THE RIGHT TO SPEAK

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

2011-03-30T12:50:00.001-07:00

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

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

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

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

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

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

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

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

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

Libel and free speech

2011-03-24T09:13:00.000-07:00

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

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

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

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

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

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

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

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

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

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

When hateful speech is protected

2011-03-02T15:42:00.000-08:00

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

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

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

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

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

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

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

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

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

Marcos was no hero

2011-02-25T09:17:00.000-08:00

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

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

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

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

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

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

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

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

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

People Power Revolutions

2011-02-21T10:18:00.000-08:00

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

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

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

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

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

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

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

What's the Ombudsman doing?

2011-02-11T14:28:00.000-08:00

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

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

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

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

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

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

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

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

Death as a way out: Angelo Reyes's suicide

2011-02-10T16:31:00.000-08:00

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

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

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

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

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

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

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

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

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

Revolutionary taxes and peace talks

2011-01-02T11:45:00.000-08:00

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

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

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

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

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

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

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

Are violent video games protected speech?

2010-11-18T11:53:00.000-08:00

This is the question the parties in Schwarzenneger v. Entertainment Merchants Association (EMA) 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.

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.

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.

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.

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?

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.

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.

Scrapping the Pork Barrel

2010-07-08T11:45:00.000-07:00

Many 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.

Pork barrel funds or politics refer 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.

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.

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.

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.

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.

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.

Revisiting Midnight Appointment Cases

2010-06-16T12:42:00.000-07:00

When 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 De Castro v. JBC. 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.

The widely criticized De Castro 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.

Penned by my former law professor, now Justice Lucas Bersamin, the De Castro 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.

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.

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.

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.

De Vera is in sharp contrast with the much earlier decision in Aytona v. Castillo, 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, Aytona 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.

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, Aytona was decided under the 1935 Constitution which allows reelection of the president.

A much later case, In Re Valenzuela (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.

Clearly then De Castro departed from the Aytona and Valenzuela 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. De Castro is definitely such an instance. It is highly unlikely, however, that the Supreme Court will reconsider De Castro, 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 primus inter pares status.

LONG LIVE PHILIPPINE INDEPENDENCE!

2010-06-11T11:13:00.000-07:00

Corona's Appointment Ties Noynoy's Hands

2010-05-14T12:27:00.001-07:00

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.

While De Castro v. Judicial and Bar Council 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.

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.

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.

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.

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.

(Photo Courtesy of www.caloocancity.gov.ph)

Legal and Political Ramifications of Postponing the Elections

2010-05-05T09:23:00.000-07:00

The 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Agra's Disregard of Evidentiary Standards

2010-04-22T09:47:00.000-07:00

DOJ 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.

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.

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.

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.

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.

Dimensions of a Failed Election and What GMA Needs to Do

2010-04-13T11:53:00.000-07:00

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.

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.

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 Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

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.

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 Roque v. Comelec, 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.

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 Who Will be the Evil Genius? 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.

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.

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.

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.

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.

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.

Fair Elections Act Trumps Celebrities' Free Speech

2010-02-12T15:54:00.000-08:00

The entertainment industry recently rose up in arms against the Comelec for making known its intention to strictly enforce a resolution implementing the Fair Elections Act (R.A. 9006), which requires celebrities to resign or take a leave of absence from their work during the campaign period if they campaign for or against a candidate in the May 2010 elections. Although the Comelec ruled to make the requirement optional, some quarters, like the PPCRV, still appear poise to have the law implemented.

It is well known that many movie and television personalities have endorsed or campaigned for candidates, especially those vying for national elective positions, by appearing in political ads or campaign sorties. The Comelec and proponents of the law argue that candidates who employ celebrities derive undue advantage over other candidates due to the influence these celebrities wield over their massive viewers and followers.

Celebrities, on the other hand, counter that the strict enforcement of the law violates their free speech rights and rights as citizens to support the candidates they like, not to mention their right to earn a living. There is also argument that the law unduly singles them out.

Section 6, paragraph 6.6. of the Fair Elections Act provides that "[a]ny mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period . . ."

The above-quoted provision clearly requires the enumerated persons, which include movie and TV personalities, to either resign or take a leave of absence from work during the campaign period if they are (1) candidates (2) campaign volunteers (3) employed or retained in any capacity by any candidate or political parties, including coalitions and party-list groups.

The State's interest in allowing equal opportunities for candidates in reaching out to voters by leveling the playing field - achieved through regulation of the time, place and manner of communicating political or campaign messages - has long been recognized since National Press Club v. Comelec. In fact, the Supreme Court has justified legislations of this nature under the Constitution's social justice provisions guaranteeing equal access to opportunities for public service to everyone.

While there is no question on the rule prohibiting mass media personalities, such as actors and newscasters, who are candidates, from working as such during the campaign period, a similar restriction on others who are not candidates but merely supporters or workers of candidates is unreasonable. A celebrity candidate who continues to do his or her high profile work clearly gives undue advantage over other candidates who are not similarly situated; the constant exposure allows him or her to become well acquainted with voters. Not only that, it makes the regulatory limits on broadcast time and print space useless as against these candidates. The same is true of non-candidate celebrities and other media personalities who actively campaign for or against a candidate during their shows.

Requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, invades the realm of constitutionally protected speech. The strictures of Section 6, par. 6.6. of the Fair Elections Act, as implemented by Sec. 36 of Comelec Resolution 8758, suffers from overbreath for stifling more speech than is necessary. When a celebrity endorses a candidate in a legitimate political ad or performs any act to generate support for such candidate, he or she engages in political speech protected by the Constitution. The law in question, however, in effect penalizes that speech by barring the celebrity from engaging in his or her means of livelihood, even though for a limited period only. Failure to resign or take a leave of absence from work would constitute an election offense punishable by fine and imprisonment of up to six years.

The law does not only regulate the time, place and manner of the speech involved, but targets the content itself. It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood. To pass constitutional muster, the law must be justified by a compelling or overriding government purpose and the means employed must be necessary to achieve that purpose. As previously mentioned, it is now settled that the State has vital interest in having fair or level playing field among candidates in reaching out to voters, but the manner the questioned law seeks to achieve its objective does not appear to be necessary for it is not the least restrictive means of doing it.

The equalization of political speech and opportunities for reaching out to voters is no longer served here because the celebrity cannot be said to be still furthering a candidate's campaign by simply engaging in his or her normal work. True, the celebrity, by expressing support for a candidate, would henceforth be identified with that candidate, but identification or association cannot be justified as furtherance of a candidate's campaign anymore than a candidate choosing a certain network or newspaper for broadcast or publication of his or her political ads constitutes furtherance by that network or newspaper of the candidate's campaign.

What makes the questioned provision even more unreasonable is the fact that it applies as well to celebrities and media personalities who work for a candidate in capacities that do not necessarily expose them to the public, such as being a political or legal adviser, a consultant or a speech writer, since the law covers those who work in any capacity. The law is also vague as to what the term "campaign volunteer" means. If a celebrity cooks for the staff of a candidate or hosts meetings in his mansion, could he be considered a campaign volunteer? If so, how will that possibly obscure role, although performed by a well-known personality, give a candidate undue advantage over others, as does the adviser and consultant?

Dismal Lack of Campaign Finance Reform in the Philippines

2010-02-05T14:09:00.000-08:00

While the United States is still abuzz with the US Supreme Court's recent ruling in Citizens United v. Federal Elections Commission - which removed the prohibition on campaign spending by corporations and unions directly from their coffers, in a latest round of more than a century of debate to reform campaign finance - campaign finance laws in the Philippines have remained unchanged for decades.

Money, as an essential component of politics, needs to be regulated for its corrupting influence and, peculiarly in the Philippines, to level the playing field between moneyed and cash-strapped candidates. It is a given that one cannot successfully wage a decent and successful campaign without sufficient funding, for reaching out to voters and getting one's message across, not to mention the logistics needed in maintaining a political campaign, necessitates money. But when campaign finance is not regulated - as to source, extent and manner of spending - it becomes a problem.

The most pernicious effect of loose or unregulated campaign funds is the corrupting influence huge contributors exert on candidates once elected into office. Debt of gratitude becomes a factor in the grateful official's conduct in office, whether expected or not. More often than not, however, the generous donor expects a quid pro quo; a return on investment, if you will.

A simple illustration will show how unregulated campaign funds factor into the public functionary's conduct. A person who is elected mayor in a city, for example, is the beneficiary of huge campaign contributions from businessmen. When these businessmen-contributors apply for a license in setting up new business or when legislative measures are considered in the city council that will affect their pocketbooks - such as the imposition of new or higher taxes - the mayor-beneficiary will certainly be clouded in his judgment as payback time beckons.

Even in the unlikely scenario that the contributors expect nothing in return, the grateful official will likely protect the interests of his benefactors for fear of a backlash, by displeasing them or deterring others from making huge donations to his campaign in the future.

The other problem of unregulated campaign funds is the inequitous situation it creates between the moneyed and cash-strapped candidates. While the affluent has access to unlimited resources in reaching out to voters, the candidate of small means struggles to get his or her message across, which makes politics in the Philippines largely an affair for the wealthy few.

Finally, even if it were to be assumed that a candidate spends his or her own money in the campaign, there is that danger of him or her recouping the expenses once elected into office by pursuing nefarious "under-the-table" transactions and other corrupt practices.

Ever since Batas Pambansa Bilang 881 (Omnibus Election Code), the country's basic election law, came into effect in 1985, there has only been one legislation that introduced changes to campaign finance in the Philippines, which is Republic Act No. 7166 or the Electoral Reform Law. Even then the only reform introduced, aside from the penalties imposable for violation thereof, is the increase in the amount of campaign expenditures that may be incurred by a candidate, by increasing it from P1.50 for every registered voter in the constitutency for which a candidate filed a certificate of candidacy to P10.00 for the president and vice president, P3.00 for other candidates with a party, P5.00 for other candidates without a party, and P5.00 for political parties.

A bill introduced in the House of Representatives in 2007, which seeks to punish political turncoatism and impose limits on donations and expenditures by individuals and corporations, and in the Senate in 2004 by former Senator Ralph Recto (also deals with political turncoatism, creation of a state subsidy fund to augment the campaign activities of accredited political parties, and imposes limits on contributions), never saw the light of day.

Interestingly, the target of regulation in our existing laws is the spending aspect only. Our election laws are notoriously silent on any limit on contributions which go to the core of corrupting elected officials. Any person or business entity not disqualified by law may contribute any amount to a candidate's coffers. Although the law imposes limits on the amount and type of campaign expenditures, and candidates are required to report all contributions, there is nothing that regulates the excess contributions. After the elections are over the excess pretty much becomes discretionary funds of the candidates. It is no wonder then that Congressman Mikey Arroyo could say with a straight face that campaign contributions are among the sources of his increased net worth when questioned about his Statement of Assets and Liabilities.

Even with the existing limits on expenditures, however, it is no secret that candidates have always conveniently and flagrantly ignored them. Based on Comelec's election statistics for the 2007 national and local elections, there are about 45,294,430 registered voters nationwide. At a limit of Php 10.00 per registered voter, presidential and vice presidential candidates for that election should have spent only a maximum of P450,294,430.00 - a far cry from the P5 billion that one needs to be elected president, according to a 2008 report by the Pera't Politika Working Group, which is a consortium of public interest organizations formed to monitor election spending. The same report states that the expenditure for senatorial races ranges between P150 million and P500 million, P10 million for mayor, and P15-150 million for governor. It should be noted that these figures go way beyond the limits imposed by law.

As if lack of campaign finance reform is not enough, existing regulations are rendered meaningless for want of effective enforcement. Not one candidate has yet been penalized for violating spending limits. Not that I find pleasure in seeing someone punished, I'd be happy to know if Comelec can point to particualr cases. And even if it can, such cases would surely be dismally few and involve largely unknown candidates, compared to the hundreds of candidates who routinely violate the strictures on campaign spending. According to a 2004 article by Glenda M. Gloria, entitled "Selling a Candidate," cited in Pera't Pulitika's report, the media earned more than a billion pesos from political ads for the 2004 elections in just a span of four months. This is a tell-tale sign that spending limits have been violated, yet the Comelec has not taken any action against those responsible.

This early, presidential candidate Sen. Manny Villar has already reportedly spent P543 million in political ads on TV, putting him among the top 20 television advertisers. There's no telling how much he would spend more come formal campaign period. What is certain, however, is that we would see the same deluge of television, radio, and newspaper advertisements which would gobble up huge sums of money. But after elections are over, candidates will once again doctor the contribution and spending reports they will submit to Comelec, and the latter will simply file them away and pretend that the law has not been violated.

Comelec's Flawed Reasoning

2010-01-21T11:34:00.000-08:00

In a 26-page decision, the Commission on Elections’ (Comelec) Second Division junked the disqualification case filed against Erap Estrada by ruling that the constitutional prohibition on reelection to the presidency found in Article VII, Section 4 applies only to the incumbent president.

According to Commissioner Nicodemo Ferrer, who penned the decision, “respondent Joseph 'Erap' Estrada no longer holds a public office; more importantly, he is no longer the president and wields none of the vast powers of this position. He poses no danger to anyone. Because of this prevailing status, a simple application of the rule will lead any reasonable and logical person to conclude that the prohibition against the reelection of 'The President' does not apply to Joseph Estrada.”

The constitutional provision in question is as follows: “Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.”

While it is true that Estrada is no longer president and the phrase “the president” on the second sentence of section 4 seems not applicable to him, the decision conveniently disregarded the adjective “any” before the word reelection on the same sentence. Any reelection clearly means election again either immediately after the expiration of one’s term or after an interval.

If it were the intention of the framers of the Constitution that the prohibition applies only to the sitting president, then the phrase “any reelection” would not have been used for in that case the adjective “any” would be useless. In contrast, the use of the definite article “the” before “president” presents no anomaly or tension with the interpretation of an absolute ban on reelection. The second sentence of section 4 would simply mean that once someone is elected as president an ineligibility to run for president again attaches during his or her incumbency and in the future, that is when he or she is no longer president. According to former Comelec Chairman and Constitutional Commissioner Christian Monsod, a person elected as president only gets one shot at the presidency.

In defending his bid for reelection, Estrada insists that it is the third sentence of section 4 that applies to him, rather than the second sentence. Recall that the third sentence disqualifies any one who has succeeded as president and has served as such for more than four years from being elected as president at any time. Estrada claims that he served the presidency for less than four years and, therefore, not ineligible to be elected as president. The third sentence, however, applies only to one who became president not by election but by the operation of the rule on presidential succession for two reasons, viz: first, the provision speaks of one who has “succeeded” as president; second, in prohibiting such person from becoming president again, it uses the phrase “shall [not] be qualified for election” instead of “shall [not] be qualified for reelection” simply because not having assumed the presidency via election, it would not be correct to use the word “reelection.”

The second division further justified the decision to allow Estrada to run for president by saying that “in the end, it is the Filipino people who would act as the final arbiter on whether they would have Estrada sit again as president. It is the electorate’s choice of who their president should be. The better policy approach is to let the people decide who will be the next president.”

This reasoning disregards the fact that the Constitution is an embodiment of the people’s will. While the people did not directly draft the Constitution it is the people that ultimately gave it life and binding force when they ratified it in a plebiscite. Thus, when the Constitution imposes disabilities on certain persons from becoming public officials, it is simply expressing the people’s will on who they want to run for public office. So what will is Ferrer talking about?

Besides, following Ferrer’s reasoning, if indeed it is a better policy approach to let the people decide who will be the next president then why not apply the same reasoning to other candidates that they have unilaterally disqualified for being nuisance candidates? It should be noted that these candidates meet the minimum qualifications, and do not suffer any disability, under the Constitution. To say that a person should be allowed to continue his or her candidacy and let he people decide is like saying never mind if that person is disqualified, just let the people decide if they want to elect him or her to public office.

Such a flawed and dangerous proposition, not to mention double standard as far as other candidates are concerned, disregards the basic principles of republicanism where the people’s will is expressed not only at the polls, but equally important in the institutions of democracy it created.

FVR's Mistaken View of Constitutional Violation

2010-01-19T13:45:00.000-08:00

While I was scanning the news, I came across a statement from former President Fidel V. Ramos claiming that the Catholic Bishops Conference of the Philippines (CBCP) violated the Constitution in issuing a call not to vote for candidates who support the controversial Reproductive Health (RH) Bill. According to Ramos, the CBCP's campaign violates the people's right to freedom of conscience and belief by imposing its view on them.

Conceivably, FVR was referring to freedom of religion or the free exercise clause under Article III, Section 5 of the Constitution, which prohibits the enactment of a law or any governmental act that prevents the free exercise of religion. An elementary principle in constitutional law, however, will show that Ramos's statement is incorrect.

The fundamental rights enumerated in Article III of the Constitution (Bill of Rights) can only be violated when State action or governmental conduct is involved. The Bill of Rights is meant as a check against exercise by the government of its immense powers; as a balance between individual liberty and governmental power. Thus, one will see that the enumeration of rights in Article III are directed against the enactment of laws, law enforcement functions, criminal prosecutions, imposition of penalties, etc., which are within the domain of governmental functions.

The CBCP's statement urging voters not to vote for candidates in favor of the RH Bill does not constitute action by the State. On the contrary, it should be viewed as an exercise by its members of their religious freedom and free speech rights, which are guaranteed in Article III. The very constitutional provision that FVR says the CBCP is violating in fact grants the latter and its members the right to adhere to a particular religious belief (about the claimed immorality of artificial birth control) under the free exercise clause and to express such belief under the free speech clause.

The CBCP, or any other religious group for that matter, has every right to campaign for or against a particular legislation, candidate or governmental action that it deems contrary to the tenets of its religion. The free exercise of religion clause under the Constitution guarantees this right.

Why Pacquiao Should Not Give In

2009-12-27T10:08:00.000-08:00

Manny Pacquiao has proven himself on the ring many times already that a fight with Floyd Mayweather, Jr. - although it would certainly add more laurels to his cap, not to mention money to his already bulging pockets, if he were to win and there's a big chance that he just might - is not really something to crave for, especially so in the face of the harassment, denigration and character assassination he is now taking from the Mayweather camp.

Some people are wondering why Pacquiao would not want a miniscule amount of blood taken from him close to the scheduled fight on March 13 if he is not taking any steroids or other performance enhancing drugs. In fact this is the line being drumbeaten by Golden Boy Promotion's Oscar Dela Hoya in his blog. The easy answer is that Pacquiao need not give in to each and every demand by Mayweather, especially so if Pacquiao has complied with and passed with flying colors each and every testing requirement of the Nevada Athletic Commission in (NAC) determining if boxers are clean before being issued their licenses.

Nevertheless, despite his unquestioned record since turning pro - that is until Mayweather decided to blemish it with baseless accusations - Pacquiao is willing to submit to blood tests on three occasions, viz: in January when the supposed match will be announced, earlier than 30 days before the fight, and in the locker room immediately after the fight. As observed by one sports writer, what could not be detected by a blood test done immediately after the fight that a test done before it would reveal if indeed Pacquiao were using steroids? Mayweather's refusal to this condition, as a compromise to his unreasonable demand, would only show that his only intention is to harass and subject Pacquiao to humiliation.

It is true that urine tests alone cannot detect some performance enhancing drugs, such as human growth hormone (HGH) injections, but then the testing protocols of the US Anti-Doping Agency (USADA) being proposed by Mayweather are not the tests being administered for boxers by the NAC. Lest I be mistaken, the NAC also administers blood testing and Pacquiao has always submitted to such tests before in securing and renewing his license. If the NAC's testing protocols are being challenged as insufficient or unreliable in determining whether a boxer is clean, is the Mayweather camp then saying that a whole line of other boxers who have shone on the ring, Dela Hoya included, also have questionable successes?

There is no question that Manny Pacquiao has already achieved sterling success as a boxer. He is the reigning pound for pound boxer in the world, ranking number one in many boxing magazines, including the prestigious Ring Magazine; he has been featured several times in Time magazine, among them are when he was included among the top 100 persons of the year and when he was featured on the cover of its Asia edition. He is now considered as a boxing all-time-great by boxing's respectable commentators and analysts and is even being compared with the likes of boxing legend Muhammad Ali and Sugar Ray Leonard, among others.

Floyd Mayweather, Jr., on the other hand, has not had such recognition. It is true that he remains undefeated, but that only speaks of the selectiveness of his bouts. Unlike Pacquiao, Mayweather has been known to pick only fighters that he can take. And unlike Pacquiao, he fights dull matches and preys only on his opponents' unguarded moments. In other words he plays it safe. Pacquiao, on the other hand, has taken on seemingly tough fighters for his built, size and weight. He has ventured into the unimaginable by competing in matches that boxing analysts thought were ridiculous and lopsided against Pacquiao, only to find themselves proven devastatingly wrong as each and every fight turned out completely the opposite with Pacquiao demolishing his opponents. Unlike Mayweather, Pacquiao charges even when his opponent is on the guard and ready for him, prevailing in the end as a true testament to his mettle and skills.

So what has Pacquiao to prove more? Nothing. He has done boxing a great service. He has revived a dying sport, when fans have moved on to the more violent mixed martial arts genre. As the recognized and reigning best pound for pound fighter and the welterweight champion, it is not up to him to give in to unreasonable and unnecessary demands. If Mayweather really wants to face Pacquiao, he should do it in accordance with the prevailing rules of professional boxing. In fact, if there is anyone who should dictate terms, it is Pacquiao and not the other way around.

Just Lynch Ampatuan, Jr.

2009-12-22T17:30:00.000-08:00

The National Press Club (NPC) has decried lawyer Sigfried Fortun's decision to defend Datu Unsay Mayor Andal Ampatuan, Jr., suspect on the Maguindanao massacre that claimed the lives of 57 people, including 30 journalists. It is even reportedly contemplating on declaring Fortun as a persona non grata and banning him from attending all media events.

While the Maguindanao massacre should be condemned in the strongest possible terms, we must not let our emotions get the better part of us. However strong the evidence may be against Ampatuan, Jr., no less than our Constitution presumes his innocence until evidence to the contrary is proven. Due process requires that he be given his day in court, accorded a fair trial and only after evidence for or against his innocence is presented that he may validly be judged either innocent or guilty.

In the midst of all these substantive and procedural safeguards, Ampatuan, Jr. is entitled to competent legal representation. Fortun is merely performing his legal duty as an officer of the court whose oath requires him to defend any person accused of a crime. Instead of being condemned, Fortun should even be lauded for helping make the judicial system work and go about its business of dispensing justice. Imagine if no one would represent Ampatuan, Jr. Given the seriousness of the charges against him, it is highly unlikely that the court will proceed without him being represented by a lawyer, especially so that he has preferred to be represented by one. This will definitely not be good as trial will be postponed indefintely and consequently delay the victims' relatives' - including the NPC's - plea for justice.

What alternatives do the NPC and those people who condemn Fortun for defending Ampatuan, Jr. have? If Fortun is taken out of the picture, most assuredly someone will take his position if the trial against Ampatuan, Jr. were to proceed. If no one will voluntarily represent Ampatuan, Jr., the court trying the case will be forced to appoint someone. Now, will the NPC also decry and declare as persona non grata the person who will be appointed as new defense counsel? How about the judge who will appoint the lawyer, will she also be condemned considering that she will be instrumental in giving Ampatuan, Jr. someone who will defend him?

Perhaps we should just lynch Ampatuan, Jr. and strike-off from our Constitution and statutes book due process protections and abolish our courts altogether. I am not saying this is what the NPC wants as well as those oppose to Fortun and lawyers defending undesirable people, but come to think of it this is precisely the implication of not wanting accused people to be given their day in court and accorded competent legal representation.

Were the court to deny Ampatuan, Jr. his right to legal representation and force him to defend himself, aside from violating his constitutional right to have a counsel of his own choice, the court would be prejudging his guilt already, for why would the court refuse to deny such representation if not dictated by the conviction that he is guilty of the crimes charged against him? This is not the kind of court we would like to dispense justice for us.

To be sure, there is someone out there crying how could Fortun, or any lawyer for that matter, defend a monster like Ampatuan, Jr? Some people may not buy it, but it is not for the lawyer to judge his or her client; that is a matter for the court to decide. Unless we want to go back to the age of trial by ordeal - where a person's guilt or innocence is decided in strange ways, such as being pronounced innocent if a person submerged in water does not drown or guilty if he does, or innocent if the accused's hands heal within certain days after suffering injuries from being dipped in boiling water or being pronounced guilty if the accused loses in a duel - we have to settle to the fact that we now have a judicial system that allocates responsibilities to different participants for the purpose of painstakingly ascertaining the facts and circumstances of a case to determine who is innocent or guilty.

A criminal defense lawyer, like Fortun, performs the essential function of ensuring that a person is not unjustly accused and that only after proof beyond reasonable doubt is established may an accused person be adjudged guilty and penalized. In essence he represents the criminal justice system, as much as the public prosecutor does.

If justice were to be dispensed, Andal Ampatuan, Jr. - like any other suspect and without regard to his guilt or innocence - deserves to be represented by a competent counsel of his own choice. To borrow the words of US President Obama, there is no incompatibility between our safety and ideals. We must not throw away the legal protections provided by the Constitution in our quest for justice, however reprehensible the charges against an accused person are.

Having said the foregoing, it is hoped that Atty. Fortun will stand only by what is just, ethical and proper in proceeding with the defense of his client. While he is expected to exercise utmost zeal and dedication in the defense of his client, his oath also dictates that he should not delay the cause of justice and defend his client using only fair, honest and legally permissible means.

The Evil of GMA's Congressional Bid

2009-11-30T19:29:00.000-08:00

Post-presidential involvement in politics is not something new. We know, for example, that the late Coazon Aquino continued to involve herself in politics long after she ceased being president, as did Fidel Ramos and Joseph "Erap" Estrada. In the US, from which we copied our presidential system of government, many former US Presidents continued to be active in politics long after they have stepped down from office.

It is also not a new phenomenon for a former president to run for or be appointed to a public office after completing his term. John Quincy Adams, after serving as the 6th president of the US, was elected as a member of the US House of Representatives. Now contrary to what the critics say, this would not necessarily cheapen or demean the presidency. John Quincy Adams's incumbency as congressman for 17 years was served well in championing civil and political rights that eventually led to the removal of the prohibition on introducing legislations against slavery.

Of course GMA's candidacy for Congress is unprecedented in the Philippines. What leaves a bad taste in the mouth about it, as described by Sen. Chiz Escudero, has something to do less with demeaning the presidency than with GMA's nine years of presidency being characterized by corruption and abuse of power, and a nagging question about the legitimacy of her ascendancy to power. During her incumbency, GMA's admininstration has been beset by scandal after scandal, such as the $329-million NBN-ZTE broadband network deal, $14-million IMPSA power plant project, P728-million feritlizer fund scam, P321-million Jose Pidal accounts, and, not least of all, the "Hello Garci" scandal - our very own version of Watergate which should have brought down GMA's presidency as it did Nixon's. To this day, however, not one has been put behind bars despite these egregious scandals of brobdingnagian proportion.

The opposition have raised fears of GMA manuevering her way into power again in running for a congressional seat. The theories range from her gaining the House Speakership, directing a charter change toward a parliamentary government that would make her prime minister, to acquiring immunity from prosecution. But the message that should be stressed is the evil of electing someone whose governance has been tainted with corruption, official wrongdoing, scandals, abuses of power and electoral fraud.

To be sure, GMA being back at the helm is a distasteful proposition. Reprehensible even. But for now this is conjectural and may not happen at all. The opposition should come out strong and emphasize the evils that lurked under GMA's tenure in decrying her return to politics, instead of harping on conjectures about her return odyssey to power. While it is true that none of the charges against GMA have yet been proven - at least in a court of law - there is no denying, however, that these scandals and official malfeasances did take place. And they took place under her watch, which speaks volumes about her competence and effectiveness as a leader. Even worse, the public have yet to see the hand of the law reaching the guilty, while GMA thwarted, under the guise of executive privilege, every effort to bring to light the facts and circumstances surrounding these scandals.

The candidacy of GMA will ultimately be a referendum on her presidency. Her election as a Pampanga representative come May 2010 will put a stamp of approval on all that she represented under her nine years of incumbency as president - something every Pampangueño should seriously ponder before doing.

Pacquiao Makes History

2009-11-15T20:07:00.000-08:00

Manny Pacquiao made history by defeating Puerto Rican Miguel Cotto on Saturday through a technical knockout (TKO) on the 12th round. Starting his professional boxing career at the flyweight level at 106 pounds, Pacquiao has defied conventional wisdom by moving up through six weight categories, victory after victory. Instead of weakening as he increased his weight (latest is 144 pounds), he proved even faster and a more skillful fighter. With his defeat of Cotto, Pacquiao now holds his seventh title.

If his critics weren't convinced of his abilities in his bouts with Diaz, Dela Hoya and Hatton, this time around Pacquiao's victory against Cotto leaves no room for equivocation. Cotto was a natural welterweight, holds height and age advantage over Pacquiao, is known for his power punches, and holds an impressive record (only one loss and ending most of his victories in knockouts). Saturday night's match proved that Pacquiao is truly a skillful, fast, powerful and strong fighter. To Cotto's amazement, Pacquiao landed punches after punches without him seeing - punches that knocked him twice, bloodied and bruised his face, and would have sent him on the canvass for a final knockout had not the referee stopped the fight on the 12th and final round.

Pacquiao also proved that he can take punches. Although Cotto landed a many good punches, jabs that jerked back Pacquiao's head several times, Pacquiao remained unperturbed and continued landing his firepower on the weary Puerto Rican, whose only move at the later rounds was to finish standing by running away from Pacquiao's fury - that is, until the disappointed Pacquiao caught up with him and delivered his final pounding.

Now that Pacquiao has shown who the true pound-for-pound king is, an ultimate match with undefeated Floyd Mayweather looms next year. It is reported that any time this week talks will be arranged between the fighters' promoters for this much-awaited fight. Assuming Mayweather doesn't become greedy and does not spoil (or perhaps avoid) the match-up by demanding an unreasonable sum, will that mean Pacquiao will have to temporarily shelve his political ambitions, considering that next year will be election year?

If this dream match unfolds, Pacquiao will definitely need all the time to concentrate on his training and preparation. The last thing Freddie Roach needs - and Pacquiao even more - is a boxer who will need to attend to his constituents' needs as he prepares for a big fight - probably the biggest fight of his career.

Legal Issues on Erap's Candidacy

2009-10-22T09:35:00.000-07:00

Even before former President Joseph Ejercito Estrada's Wednesday announcement to claim the presidency again, his eligibility for the office have long been the subject of much debate. Legal scholars and laymen alike have given their two cents' worth on the issue. Once again, we will revisit the legal issues surrounding Estrada's second quest for the presidency or, as he calls it, the "performance of his life."

Let us start with a little background. Estrada was elected president in 1998, but his tenure was cut short when on January 2001 he was ousted from office during the so-called EDSA II revolution where the Supreme Court, in an unprecedented manner, made then Vice President Gloria Macapagal-Arroyo the president by administering to her, through then Chief Justice Hilario Davide, the oath of office for the president. The Supreme Court later on legitimized GMA's assumption of office by ruling in Estrada v. Desierto that Estrada resigned the presidency under the artful doctrines of "totality test" and "constructive resignation." In 2004, after serving about three years as president, GMA run for and was elected as president.

The constitutional provision dealing with the election and term of office of the president is Article 7, Section 4, which is pertinent to the eligibility of Estrada to run. The provision reads as follows:

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

Those who support the eligibility of Estrada raise the following positions: (1) The bar on second election to the presidency applies only to the incumbent president and (2) Estrada served as president for two and a half years only.

The first position argues that in prohibiting the election of a person to the presidency for the second time, the second sentence of Article 7, Section 4 refers only to the incumbent president as evidenced by the use of the definite article "the." Thus, in saying that "[t]he president" is not eligible for re-election the phrase simply means the sitting president, which at present is GMA. This position is further reinforced by the use of the word "re-election." The proponents claim that re-election refers to one who has been elected to an office and is seeking to be elected to the same office immediately upon the expiration of his or her term.

Since Estrada is not the incumbent president he is not covered by the prohibition on re-election to the presidency. As former Supreme Court justice and DOJ secretary Serafin Cuevas said, Estrada is not seeking re-election but a new election.

This interpretation would, of course, mean that not only will Estrada be eligible to run for president again, but also Fidel V. Ramos and others who will become president later on - after they are no longer in office. It advances the view that the prohibition on second election to the presidency is not absolute.

The opposing view, on the other hand, states that the use of the definite article "the," before the word president, and the word "re-election" in Section 4 are not conclusive grounds in saying that the prohibition on second election to the presidency applies only to the incumbent president. It is argued that the adjective "any" before the word re-election dispels this. Thus, when Section 4 states that the president shall not be eligible for any re-election, it means that the president cannot be elected president again either immediately upon the expiration of his or her term or on any presidential election thereafter.

If the intention were that the ban applies only to the election upon expiration of the holder's tenure of office, the adjective "any" would clearly be out of place and useless. But the insertion of this adjective suggests that the ban on re-election is not limited to the election to be held at the end of the incumbent president's term but on any other presidential election. The phraseology of Section 4 looks forward which thus makes the ban on second election to the presidency apply now and in the future to the sitting president.

The adjective "any" clearly modifies the word "re-election" by giving it a non-restrictive meaning. In addition the dictionary defines re-election as to elect again. Thus, one can be considered re-elected to the same office even after the interval of one or more terms.

Proponents of Estrada's re-election also explain that the rationale of Section 4 in prohibiting re-election is to prevent an incumbent president from using the power and influence of his or her office to ensure electoral victory. Obviously this rationale would have no application to one who is no longer president, which argues for the non-application of the prohibition to a former president like Estrada. The contrary view, however, is that if indeed this is the rationale, then why is the same not true in the case of one who succeeded as president and has served as such for four years or less. The third sentence of Section 4 states that such person will be eligible for election to the presidency. Such person will be enjoying the same power and influence as president - as in the case of GMA after succeeding to the presidency in 2001 - and yet the Constitution does not prohibit him or her from running in the next presidential election. The incumbent's advantage, therefore, is not a very strong argument.

As regards the second point of those favoring Estrada's candidacy, they argue that Estrada did not finish his term as president since he only served two and a half years. This is, however, a long shot. The ban on re-election under Section 4 does not require that the president must complete his or her term before the prohibition is triggered.

A variant of this position is that since on the third sentence of Section 4 it prohibits second election only when one who became president has served the presidency for more than four years, Estrada would be qualified to run since he only served two and a half years as president. But the contrary view holds that said provision of Section 4 applies only to one who became president by virtue of succession, such as when the vice president becomes president because the president dies, resigns or becomes permanently incapacitated.

This claim is supported by the phraseology of Section 4's third sentence when it says that no person who has succeeded as president and has served under that capacity for more than four years shall be qualified for election to the presidency at any time. The provision uses the word "succeeded as president" instead of "elected as president" or "became president," which means that it refers to the rule of succession. Also, this interpretation is supported by the use of the word "election" on the third sentence of Section 4, to wit:

No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

Obviously, one who became president by the rule of succession is not elected to the office he or she succeeded. In contrast, the second sentence uses the word "re-elected" because it speaks of one who has already been elected to the presidency.

There is view to the effect that if GMA was allowed to run for president in 2004, having served as president immediately prior thereto for less than four years, there is also no reason why Estrada cannot run for president, considering that he also served for less than four years. This proposition, however, ignores the fact that GMA only succeeded to the office of presidency in 2001 while Estrada was elected thereto in 1998.

One other legal obstacle being thrust into Estrada's candidacy is his conviction for plunder, which carried the accessory penalty of disqualification. It would appear, however, that the absolute nature of the pardon granted him by President Macapagal-Arroyo has eliminated this legal challenge.

The Mercury is Rising: A Look at Global Warming

2009-10-14T14:22:00.000-07:00

As early as 1896, Swedish chemist Svante Arrhenius predicted the warming of the Earth's temperature through an increase in the emission of carbon dioxide (CO2). At that time, however, given the rate of CO2 emissions then, Arrhenius was not alarmed by this possibility. More than a century later, Arrhenius's prediction has become a reality with global warming becoming one of the most pressing threats to life on Earth.

While the Earth's temperature passes through a natural cycle of heating and cooling, or what skeptics of climate change call natural climactic swings, scientists have found that human activity has contributed to much of the heating of the Earth for the past century. And studies point to so-called greenhouse gases (GHGs) as the major culprits.

The Earth's atmosphere contains concentration of gases (such as methane and CO2) which trap some of the heat coming from the sun. These trapped heat keeps the planet warm and makes it possible for life on Earth to thrive and be sustained. This process is called the greenhouse effect. But years of massive GHG emissions and buring of fossil fuels, brought about by industrial processes, vehicle use, and every other human activity involving the use of energy, has abnormally increased the level of GHG gases in the atmosphere (now much higher compared to 650,000 years ago), thus making the planet hotter. Per the latest estimate, the world's temperature has gone up by more than one degree Farenheit and even higher in the polar regions.

The atmosphere's natural alternating cycle of warmth and cold usually takes hundreds of thousands of years. In contrast, we are now seeing an abnormal increase in global temperatures. Eleven of the 12 hottest recorded years occured between 1995 and 2005 ever since the thermometer can gauge the temperature. As a result of this, we are now seeing the effects of global warming taking its toll on Earth: glaciers and sea ice are melting (sea levels have risen faster over the last century), precipitation patterns are shifting wherein snow and rainfall has been observed to be increasing in certain areas of the planet, and some animals have changed their migration patterns by moving farther north in search of cooler climate.

There is now a general consensus that the question is no longer whether there is global warming being caused by human activity, but the question is more on what can be done to prevent or stop global warming. The Intergovernmental Panel on Climate Change (IPCC), consisting of hundreds of leading scientists the world over, which was formed by the UN Environment and Development Program in 1988 in collboration with the World Meteorological Organization, has released a report in 2001 declaring unequivocally that humans have caused the rise in the Earth's temperature.

Unless action is taken by the world's leading industrialized nations, such as China (now the biggest emitter of GHGs) and the United States, the Earth's temperature will continue to heat up to abnormal levels, increasing to as much as 10 degrees Farenheit. This will be catastrophic because it will melt the polar ice caps and increase worldwide sea levels that will flood coastal regions; extreme weathers will beset us, such as stronger typhoons and hurricanes; crop yields will drop greatly as increased rainfall is followed by longer periods of droughts; many plants and animals will become extinct as their habitats are destroyed. These are but a few of the dangers of global warming if left unchecked.

Let us hope that the Coppenhagen Climate Conference on December 2009, which will be participated by 170 countries and several non-governmental organizations worldwide, will result in an effective and sustainable plan to combat global warming and climate change.

In the meantime, let us do our part in helping in our own small way in the overall effort to stop global warming, such as becoming more energy efficient and saving energy in our daily activities. We can, for example, replace our incandescent light bulbs with flourescent bulbs, lower the thermostat in our heating systems during winter, avoid using our cars whenever possible, unplug unused applicances, turn off lights when not in use, etc. We could also help by participating in information drive to educate the public about global warming or urge our political leaders to take action. These individual actions, when combined together, will have great impact on our environment.

Please Let Us Help Philippine Flood Victims

2009-09-27T17:39:00.000-07:00

Lend a helping hand by sending your donations to the Philippine National Red Cross.

The Religious Exception

2009-09-22T13:14:00.000-07:00

Just a little over a month after Republic Act No. 9710, otherwise known as the Magna Carta of Women, has been approved, the Catholic Church is already laying the basis for an exemption from the full application of the law. In a speech during the Catholic Educational Association of the Philippines (CEAP) national convention, Monsignor Gerardo Santos, the association's president, said the CEAP will seek exemption from the provision of the law outlawing the expulsion or non-readmission of women employees or the non-admission of women in schools, on account of pregnancy outside of marriage.

Monsignor Santos is asserting CEAP member-schools' right to academic and religious freedom and vows he will see to it that such exemption is inserted in the law's implementing rules and regulations.

If and when a case involving this issue reaches the Supreme Court it will be the second of its nature. The first that landed on the Supreme Court is the 2003 case of Estrada v. Escritor (A.M. No. P-02-1651). For the first time in Philippine jurisprudence, Escritor laid down the rule on exemption of religious conduct from the application of a generally-applicable law. Briefly, the case involves a court employee, Escritor, who has been living with a man for years without the benefit of marriage. This man also happens to be married, although separated, with another woman. When an administrative complaint for immorality was filed against Escritor, she raised as a defense that her cohabitation with another man is sanctioned by the tenets of her religion and was with the knowledge and approval of her congregation's religious leaders.

In a lengthy and exhaustive opinion that is more of a dissertation rather than a court decision, then Associate Justice Reynato Puno, writing for the majority, said that the free exercise of religion clause of the Constitution protects the rights of individuals to engage in certain religious conduct - even if contrary to the provisions of existing law (read as exemption) - as long as it is based on sincerely-held religious belief and the state has no compelling interest to burden the exercise of such religious conduct. Three years after remanding the case to the Office of the Court Administrator (Supreme Court office that investigates complaints against court employees) - to determine the sincerity of the belief and its centrality to the professed believer's faith and allow the government adduce proof of a compelling state interest to penalize the non-marital relationship - the Supreme Court found for Escritor by ruling that the freedom of religion or free exercise clause of the Constitution exempts her from the provisions of the Revised Administrative Code penalizing immoral conduct.

While the Supreme Court recognized the state's legitimate interest in protecting the institution of marriage and the family, it refused to accept the government's claim of compelling state interest on such broad and general principles; it wanted more narrow or specific interests of the government that will be subverted if the non-marital union of Escritor with another man is not penalized.

The Supreme Court laid down the following important criteria when courts can carve out an exemption from a law of general applicability based on religious conduct, namely: (1) the law burdens religious freedom; (2) claimant's sincerity in his/her religious belief; (3) there is no compelling state interest involved; and (4) the burden on religious freedom is the least intrusive means of achieving the government's objective.

It is clear from the foregoing criteria that the fact that a law burdens a religious belief and its exercise, and such belief is sincerely-held by a person, if there is a compelling state interest involved and there are no alternative means of pursuing that interest, the claim of religious exemption will fail. Thus, in the American case of US v. Lee the Supreme Court of the United States found a compelling state interest in sustaining the fiscal viability of the social security system through mandatory contributions when it denied the Amish religious group's claim of religious freedom in refusing to pay social security taxes. On the other hand, the need to maintain peace and order and punish violent crimes would be a compelling state interest that would defeat a claim of religious freedom in, for example, religious practices involving human sacrifices.

The compelling state interest test is, therefore, a check on pleas for religious exemption, while at the same time it guarantees religious freedom under the free exercise clause by requiring only the strictest scrutiny of regulations, although secular in nature and are of general applicability, that incidentally burden religious freedom.

CEAP will undoubtedly rely on the criteria enunciated in Escritor in seeking the exemption from the Magna Carta of Women. Whether or not there is a compelling state interest in burdening the Catholic Church's moral doctrine as applied to unwed mothers will be a question the courts will have to address. But what is clear is that Escritor has paved the way for religious groups in seeking exemption from a law which, although is religion-neutral on its face, has the incidental effect of burdening the exercise of religious freedom.

Defeating the Intent of the Law

2009-09-11T16:05:00.000-07:00

With 11 justices concurring and three dissenting, the Supreme Court, in Roque, et al., v. Comelec, et al., G.R. No. 188456 (September 10, 2009), voted to deny the petition questioning the legality of the poll automation contract entered into between Comelec and Total Information Management (TIM)-Smartmatic to fully computerize the 2010 national and local elections.

On July 10, 2009, Comelec awarded the poll automation contract to TIM and its foreign partner Smartmatic. The purpose is to implement a nationwide automation of elections in May 2010 pursuant to R.A. 8436 (Poll Modernization Act), as amended by R.A. 9369. But UP Law Professor Harry Roque and the Concerned Citizens Movement (petitioners in the case) questioned before the Supreme Court the validity of the contract on the following grounds: (1) lack of a pilot testing for automated elections; (2) validity of the joint venture between TIM and Smartmatic; (3) failure of the Precinct Count Optical Scans (PCOS) machines to meet accuracy requirements; and (4) abdication by Comelec of control over the electoral process.

Since the interpretation of section 5 of R.A. 8436, as amended by R.A. 9369, is the most contentious, I will limit my discussion on this issue. The pertinent provision reads as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide.

Interpreting the above provision (particularly the highlighted portion), the Court ruled that the requirement that in the regular elections to be conducted immediately after the effectivity of the law automation shall be conducted in at least two highly urbanized cities and two provinces each for Luzon, Vizayas and Mindanao is not an indispensable requirement for full automation in 2010. It is not a condition precedent or a condition sine qua non for full automation in 2010.

The majority refused to characterize said provision as "pilot testing." But as Chief Justice Puno observed in his separate opinion, the intent to test an automated election system (AES) is evident from the amended text of Sec. 5 of RA 8436. There is no rhyme or reason why Congress would mandate Comelec to use the AES first after effectivity of the amendatory law (RA 9369) in at least two highly urbanized cities and two provinces for each of the country's major islands if it were the intention not to pilot test. This is clear from the following statements of Senator Richard Gordon, cited by the chief justice, during deliberations on the automation law:

Mr. President, this is precisely why we are starting the automation in two provinces and two cities so that we do not take a big bite right away. And I accepted the amendment of the Minority Leader precisely because we want to make sure that the bite is sufficiently enough for us to be able to run the automation. . . . Now, the sample is only two provinces and two cities, Mr. President, so that we would be able to get a gauge.

Now I don't know what the words "to get a gauge" means, as used above, if not to test, check, determine or judge.

The Court determined that a pilot test is not necessary by saying that (1) the limited application of automation to two cities and provinces, as provided by Sec. 5 of RA 8436, refers only to the elections immediately succeeding the effectivity of the amendatory law (RA 9369), which is the 2007 elections and (2) by holding that the last sentence of Sec. 5, as amended, stands independently of the rest of the section. The last sentence of Sec. 5 states that "[in] succeeding regular national and local elections, the AES shall be implemented ." The majority views this provision as a mandate for full automation in 2010, regardless of the holding of a limited automation during the 2007 elections.

The following words of the chief justice in his separate concurring opinion are illuminating:

The respondents’ reading of Section 5 disregards the tenor of the entire provision. A rational reading of the entire provision will show that the different parts isolated and then interpreted by the respondents are connected by the conjunctions provided, that and provided, further that and provided, finally that. These conjunctions signify that the clauses that follow the conjunction are a pre-requisite or a condition to the fulfillment of the previous clause. The words provided, that mean the same as “as long as,” “in order that,” and “if only.” . . . In this light, Section 5 should be interpreted to mean that the COMELEC is authorized to use an AES as long as the following requisites are complied with: (1) for the regular national and local elections, which shall be held immediately after the effectivity of the Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao; (2) that local government units whose officials have been the subject of administrative charges within sixteen months prior to the May 14, 2007 elections shall not be chosen; and (3) that no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. And, when the above conditions are complied with, the AES shall be implemented nationwide in succeeding regular national and local elections.

As regards the last sentence of Sec. 5, this is what he said:

The last sentence of the provision which provides that “[i]n succeeding regular national or local elections, the AES shall be implemented nationwide” may appear as not connected to the enumeration of requirements for the use of an AES. But this does not mean that it can be read in isolation and independently from the rest of the provision. Section 5 expressly declares that the COMELEC's authority to use the AES on a nationwide scale is contingent on the prior conduct of partial automation in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao.

But the chief justice, while recognizing the necessity of a pilot testing before full automation is implemented, stopped short by siding with the majority in holding that with the enactment of RA 9525 on March 5, 2009, which appropriated Php 11 billion for the 2010 elections, the pilot test requirement has been dispensed with. The argument is that it is the congressional intent in enacting RA 9525 to make way for full automation in 2010 despite the failure to implement a limited AES (two cities and two provinces automation) in May 2007.

The argument, however, of the petitioners is equally persuasive, if not more convincing. According to them RA 9525, particularly Sec. 2 thereof - as relied upon by respondents, has not impliedly repealed the pilot testing requirement of Sec. 5 of RA 8436, as amended, but in fact reinforces it as can be read from from the following proviso of Sec. 2: "the disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws . . ." In other words, the utilization of the funds allocated by RA 9525 for poll automation shall be made strictly in accordance with RA 9369. As already discussed, Sec. 5 of RA 8436, as amended by RA 9369, mandates the two cities and two provinces application first of an AES.

A rational reading of Sec. 5 of RA 8436 shows the unmistakable intention of the law to pilot test first the implementation of an AES by limiting it to at least two cities and two provinces each for Luzon, Visayas, and Mindanao. There is no other purpose that can be gleaned from said provision but to see first how automation can be carried out with limited application, before making it nationwide in scope. And this is but proper, considering that it will be the first time that automation will be carried out in the election of national and local officials.

Since the initial requirement for full automation has not been complied with in the 2007 elections, that does not mean the same rationale is no longer applicable. Now, if the pilot test required by law was not implemented in the 2007 elections for practical reasons (due to time and funding constraints), there is no reason why, for practical reasons also, that said testing cannot be implemented first in 2010 before we embark on full automation. To be sure, the limited application of AES madated after the effectivity of RA 9369 was not just inserted there by Congress for no reason at all. It was meant to pilot test automation first, plain and simple. To repeat, just because automation was not undertaken during the 2007 elections does not mean that the purpose behind a pilot test no longer applies.

Applying the pilot testing requirement of Sec. 5 of RA 8436, as amended by RA 9369, in the 2010 elections would not violate the law anymore than its non-application during the 2007 elections violated the law. On the contrary, it will serve and implement the clear intent of the law.

The Ball is Now in Noynoy's Hands

2009-09-09T08:32:00.000-07:00

On August 25, 1975, a half hour before midnight, and from his dark and desolate prison cell in Fort Bonifacio, Ninoy Aquino typed his last words of advice and farewell - or so he thought it would be - to his son Noynoy. In the concluding portion of his letter, he said, "Son, the ball is now in your hands." Ninoy could not have probably thought then that his only son would blossom into a political leader and become the standard bearer of his party, but his letter finds as much relevance today as it did 34 years ago.

Ninoy apologized to Noynoy for not bequeathing him any material wealth. He was, however, proud to tell Noynoy that he will leave him an untarnished name that he will carry for the rest of his life - that is, if he himself does not tarnish it. Now that Noynoy has publicly declared his intention to run for the presidency, the Aquino legacy, which has been rekindled with the demise of Cory Aquino and anniversary of Ninoy's death, will prove most helpful. In fact, it was these momentous occasions that propelled Noynoy into the national spotlight.

But as Ninoy said, the ball is now in Noynoy's hands. The shadows of his parents will not stay for long; as the race deepens, Noynoy will have to prove his own mettle. It will become more and more his own fight where his own strength of character, resolve, charisma, and abilities would matter. To be sure, Noynoy will be compared with the fiery eloquence and brilliance of his father, and the disarming demeanor and charisma of his mother. And there can be no pretense that Noynoy possesses these outstanding qualities. But since Noynoy's supporters have found in him the symbol of unity and integrity in governance, they are willing to overlook these absent qualities for as long as Noynoy remains above reproach and humble in his abilities.

Noynoy may not have the fat resume of an accomplished legislator who have written volumes of beneficial legislations, but he brings to the table the integrity of his name and the guarantee that he will run a clean and honest government. There is the conventional wisdom in politics that a bad economy is bad for the current administration in the coming elections. That wisdom applies equally well when the current administration is wracked by corruption and abuses. The contender that promises a clean and honest government presents the most appealing alternative, as it did in 1986. This is the promise of Noynoy that is not seen on other presidential hopefuls - at least after Mar Roxas dropped his ambition.

For those who would question Noynoy's intellectual abilities and experience to run the country, suffice it to say that we have elected before an Erap Estrada and possibly a Fernando Poe, Jr. Noynoy will not exactly be clueless and wanting in academic credentials. He graduated from Ateneo with an economics degree and has served his district in Tarlac as congressman for three consecutive terms, aside from the fact that he is now an incumbent senator. He is, therefore, no stranger to politics and the operations of the government.

The call of the times, however, is not another bar topnotcher, seasoned politician or accomplished economist. The people are clamoring for someone who can bring back confidence to government and make it work for the people. The first one appears within reach by a Noynoy presidency, but the latter still remains to be seen. For now, however, given the current dispensation, the people appear poised to put their stake on someone who could bring the first objective.

Why Don't You Sue Me in Court

2009-09-03T18:27:00.000-07:00

Thus cavalierly challenged presidential son and Pampanga 2nd District Representative Mikey Arroyo in response to probes and criticisms about his questionable Statement of Assets, Liabilities and Net Worth (SALN). Such arrogance and blatant disregard of the meaning of public accountability by an elected government official is, of course, not something new. It is certainly not news, but definitely a cause for outrage by every citizen who stands against the excesses of officialdom.

A little review of our Constitution tells us that a public office is a public trust, and public officials must at all times be accountable to the people. From this lofty principle proceed all our laws on the conduct of public officials, such as the Code of Conduct and Ethical Standards for Public Officials and Employees, the Ombudsman Act, Anti-Graft and Corrupt Practices Act, provisions of the Revised Penal Code on crimes involving public officers, laws requiring public disclosure of officials' assets, law penalizing plunder, etc. A public officer, like Congressman Mikey Arroyo, holds a position of trust and the public is, as it were, his cestui que trust (the beneficiary of the trust). He acts solely for the benefit of the public he is sworn to serve. And every trusteee owes accountability to his beneficiary by being answerable for his conduct and acting with complete transparency.

Congressman Arroyo has a lot of explaining to do on his SALN, considering that his net worth skyrocketed from Php 5 million to Php 76.9 million in just a span of three years from 2002. His 2008 SALN shows that his net worth has reached Php 99 million. But instead of providing a clear explanation, he passes the buck to his lawyers and challenges anyone questioning him to sue in court. The public that reposed its trust on Congressman Arroyo deserves an answer; if he truly believes he did nothing wrong he should clarify the entries on his SALN, rather than pass the burden to the public. As former NEDA Secretary Winnie Monsod aptly said, it is he who owes the burden and is not for the public to prove whatever is wrong with his SALN.

Okay, Congressman Arroyo did say he is not yet versed in accomplishing a SALN when he was still a vice governor of Pampanga in 2002, thus apparently attributing the relatively small sum of his declared net worth in 2002 to an honest mistake. He also explained that his wealth increased due to campaign contributions, the gifts he received when he got married, and as a result of some investments. Regarding the Beachway house in California, which was not listed on his 2008 SALN, he said it is owned by a company (Beachway Park LLC) and he merely owns a stake in said company.

Let us see how these explanations can hold water. To be sure, everybody is entitled to make mistakes, but to say that one can forget the extent of his wealth - unless you are as extremely rich as Bill Gates or Warren Buffet - is beyond belief. How could Congressman Arroyo forget to include his other assets? To say that the ballooning of his assets from Php 5 million to Php 76 million was merely the result of failure to include his other assets due to inexperience would be outrageously ridiculous. How in the world can Php 71 million be forgotten? Okay, maybe I am exaggerating and this is not really the extent of the undeclared assets, but how about his claim that he was assisted by his - take note of the plural - lawyers. Is he telling us that his lawyers failed to get all relevant information from him or they forgot to include all his assets?

It gets even worse when Congressman Arroyo said his wealth increased due to campaign contributions and wedding gifts. Is he telling us that he did not use all his campaign contributions and instead pocketed the rest? I wonder what the congressman's donors will say. How much did he receive by way of campaign donations? Can the congressman stand firm on this claim when Comelec filings of his campaign contributions and expenditures are bared? How about the wedding gifts? Again, questions of propriety will arise here because if this is true we are not talking only of small amounts. We are talking in millions of pesos! How can someone amass a fortune through wedding gifts? If some of the donors are not relatives, as I'm sure there are, the receipt of such huge sums of money by a public official - regardless of the occasion - violates ethical and legal standards, considering that he was a public official when he received such gifts.

Congressman Arroyo would also like us to believe that he had some investments. But his 2008 SALN shows that the earliest investment he acquired was in 2006. How could such 2006 investments earn him P 71 million in 2005 or earlier?

Regarding the California property, the congressman claims it is owned by a company in which he holds an interest. A limited liability company, like a corporation in the Philippines, has a legal personality separate and distinct from its members. The implication is that the company's properties are technically not owned by the members. So he could probably be excused in not declaring the property as legally he does not directly own it. But as established by Vera Files, the group blogging site that exposed Congressman Arroyo's property, the house is in the name of the congressman's wife and their investigation into the records of California yielded no results for the company. The law requires properties in the name of spouses to be declared in the SALN as well, which Congressman Arroyo did not.

Given these implausible explanations, should the public be blamed for seeking more information and clarification? By not giving straight and clear answers - which Congressman Arroyo can do even without his lawyers and the courts, if truly he is not guilty of any wrongdoing - he is only fueling further doubts on his integrity.

US Forces Do Participate in Philippine Military Operations

2009-08-27T16:13:00.000-07:00

The revelation by Lt. Senior Grade Nancy Gadian, the so-called Balikatan whistleblower, that US forces participated in military operations against the terrorist group Abu Sayyaf is not something new. The terms of Balikatan 02-01 - that huge joint RP-US military exercises in Basilan in 2002 - clearly say that US Forces can engage in combat as an act of self-defense.

It is interesting to note that our government officials are trying very hard to deny the embedding of US forces when in fact the very document signed by the government to govern the terms of these joint military exercises clearly states this. The same thing goes for the US Embassy in Manila. In a 2006 article by US Army Colonel Gregory Wilson, who has served as operations director for Special Operations Command South (based in Florida) and a command position for US forces in Southern Philippines, entitled Anatomy of a Successful COIN Operation: OEF-Philippines and the Indirect Approach (found on the US Army website!), he wrote the following:

In February 2002, the United States dispatched JTF-510, comprised of 1,300 U.S. Troops, to the Southern Philippines. Its mission was to conduct unconventional warfare operations "by, with, and through" the AFP to help the government separate the population from, and then destroy, Abu Sayyaf. The bulk of the force consisted of an air component in Mactan, Cebu, and staff and support personnel located at the JTF headquarters in Zamboanga. The tip of the U.S. spear consisted of 160 SF personnel and, later, 300 members of a Naval construction task group. All U.S. Forces operated under restrictive rules of engagement. Once on Basilan, SF advisers deployed down to the battalion level and moved in with their Philippine counterparts in remote areas near insurgent strongholds. . . (citations ommitted)

Although Colonel Wilson was careful enough to emphasize that US forces operated under restrictive rules of engagement, as are other public records on the matter, the undeniable fact is that US forces participated in Philippine military operations. And there is no denying the fact that when they did this, whether their presence is called on an "advisory" capacity only, they were not merely bringing hammers and shovels; they were in full combat gears! Now in a highly explosive conflict situation, where the object is to hunt down and kill Abu Sayyaf insurgents, firefights are bound to erupt - as in fact they did. So what would these highly trained American special forces units do in such a situation? We all know the answer to that.

But considering the colonel only said that US forces were deployed at the battalion level, which is equal to saying that their involvement in actual conflict would still be remote, skeptics would still be not convinced. The following, however, should erase any doubt about the embedding of US forces:

Soon after Balikatan 02-1, JTF-510 reorganized into a much leaner organization called the Joint Special Operations Task Force, Philippines (JSOTF-P), which continued advisory efforts with selected AFP units at the strategic, operational, and tactical levels . . . Deployed at the tactical level, SF advisory teams called Liaison coordination elements (Lce) are small, tailored, autonomous teams of special operations personnel from all services.57 they advise and assist select AFP units in planning and fusing all sources of intelligence in support of operations directed at insurgent-terrorist organizations.58 LCEs conduct Decentralized planning and execution using a robust reachback capability to the JSOTF-P to leverage additional assets in support of AFP operations.

The "SF units" referred to above means special forces, such as Green Berets, Navy Seals and other highly specialized and trained units of the US Armed Forces. If during the Balikatan 02-01 (also known as Operation Enduring Freedom) US forces were only deployed at the battalion level, the above passage clearly says after that operation, the US Forces started deploying at the tactical level - which means at the company or even platoon or squad levels, in which the actual military operations are carried out. Sure they are merely there as "advisers," but that is a very deceptive term. It will be recalled that during the early years of the Vietnam War, US Forces started being embedded on South Vietnamese Army units as "advisers" also. And, as previously observed, being deployed in a conflict situation creates the strong likelihood of being engaged in actual combat. So all this talk about US Forces being subject to restrictive rules of engagement while accompanying Philippine troops in pursuit of insurgents is nothing but quibbling.

To further prove my point that indeed US Forces participate in Philippine military operations, the following passage in a January 15, 2009 Congressional Research Service (public policy research arm of the United States Congress) report entitled Republic of the Philippines: Background and US Relations is very revealing:

In 2005, the Philippines and the United States developed and implemented combined operations against elements of Abu Sayyaf operating in western Mindanao and Jolo. The operation apparently had three objectives: (1)neutralize Abu Sayyaf-Jemaah Islamiyah training; (2) kill or capture leaders of Abu Sayyaf; and (3) root out the Abu Sayyaf forces and organization on Jolo in a similar fashion as the successfulcampaign on Basilan in 2002. The U.S. role in western Mindanao reportedly involved intelligence and communications support of the AFP, including the employment of U.S. P-3 surveillance aircraft; deployment of Navy Seal and Special Forces personnel with AFP ground units; and rules restricting U.S. personnel to a non-combat role (although such rules normally would allow U.S.personnel to defend themselves if attacked)

Note the objective of capturing and killing leaders of Abu Sayyaf and the deployment of Navy Seal and special forces personnel with AFP ground units (in boldface). US Special Forces units will accompany Philippine soldiers in undertaking missions to capture or kill Abu Sayyaf leaders or in neutralizing them. Any sensible person would know that such a dangerous mission would entail combat or actual military hostilities. Surely, these Navy Seal units won't only shout advises to Filipino soldiers while taking fire from insurgents! As also noted above, they would be allowed to defend themselves. But if the mission is to actively seek out and exteminate insurgents, the phrase self-defense appears contradictory.

A Brief Biography of Benigno S. Aquino, Jr.

2009-08-20T14:51:00.000-07:00

(In honor of the sacrifices and martyrdom of Ninoy - who was mortally felled by an assassin's bullet 26 years ago today - I am linking an article on Ninoy's brief biography)

Ninoy Aquino's martyrdom galvanized the Filipinos to unite and rise in opposition against former President Ferdinand Marcos, which restored democracy in the Philippines.

Born on November 27, 1932, Benigno S. Aquino, Jr. - popularly known as Ninoy - was destined to become a political leader in the Philippines. He traced his lineage from people who have worked with some of the country's well-known leaders. Gen. Servillano Aquino, his grandfather, became a general of the Philippines' first president, Gen. Emilio Aguinaldo. Benigno Aquino, Sr., his father, served under President Manuel L. Quezon and became a Speaker of the House under the presidency of Jose P. Laurel.

No Fully-Automated Elections in 2010

2009-08-11T15:28:00.000-07:00

UP Law Professor Harry Roque and the Concerned Citizens Movement (CCM) have been at the receiving end of criticisms ever since they filed a petition before the Supreme Court(SC)questioning the legality of fully-automated elections in May 2010. Although clearly expressing their position that they favor automated elections, Harry Roque and CCM's move is seen as abetting the agents of electoral fraud who thrive under our antiquated manual election system.

One of the major objections posed by Roque and CCM is the holding of a nationwide automated elections in May 2010. According to Roque and CCM, Republic Act 9369 (law amending the Poll Modernization Act or RA 8436) mandates Comelec to pilot test poll automation first by holding it in selected cities and provinces only for the coming national and local elections. A closer reading of RA 9369 will show that Roque and CCM are merely acting as proponents of the rule of law.

We were led to think that Congress finally crafted a mandate for full automation in the coming 2010 elections, but a review of the amendatory law will reveal that it provides for a hybrid election (partly automated and partly manual) only. The pertinent section of the law that justifies this assertion is as follows:

SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 5 Authority to Use an Automated Election System. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide."

Notice the "provided clause" in the foregoing. It talks about the conduct of national and local elections in May 2010, which provides for automated elections (AES) in at least two highly urbanized cities and two provinces for each of the country's major islands. Comelec is given the authority to choose the appropriate cities and provinces, subject to the following criteria: (1) the Sanggunian or local legislative body of the chosen cities and provinces must consent to their designation for the conduct of automated elections; and (2) the officials of the designated cities and provinces must not have been administratively charged within 16 months before the May 2007 elections.

In other words, the amendatory law mandates Comelec to conduct automated elections in 2010 in certain selected areas only. It may be argued that the word "at least" in section 6 authorizes Comelec to hold automated elections in more than two cities and provinces as such phrase only sets the minimum. And more than two could practically mean covering all cities and provinces in the country which would in fact make automation nationwide. But that would be reading into the law something not contemplated by it. First, that would mean requiring the consent of the Sanggunian of every city and province in the country, which is of course ridiculous for why would the law prescribe such consent requirement if after all every city and province would be involved. Besides, the provinces and cities could clearly defeat automation by withholding consent. Second, a nationwide automation is clearly not contemplated by limiting it to cities and provinces whose officials have not been subjected to administrative charges before the 2007 elections. Surely, there are cities and provinces the officials of which have been administratively charged.

The last sentence of section 6 states that AES will be implemented on a nationwide basis in regular elections after the 2010 elections. Now if the 2010 elections are meant to be fully-automated, why would Congress even bother inserting this last sentence? The clear implication is that a fully-automated election is only allowed in regular elections succeeding the 2010 elections.

Another provision of RA 9369 which reveals the intent of Congress on partial automation is the following section:

SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:

"Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code.
"The chairman shall first read the votes for national positions.
"Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881.

The above section, as well as section 12 of RA 6646 or the Electoral Reforms Law of 1987 and section 210 of the Omnibus Election Code as referred to therein, provide for the manner in counting of votes at the precinct level under a manual election system. It is accomplished with the chairman of the Board of Election Inspectors tediously reading the names of all candidates voted in every ballot. If it were the intention of Congress to provide for full automation come 2010, the above section 31 would surely be out of place since in an automated election either the ballots are brought to a central counting center where they are fed to counting machines or the votes on every ballot are counted as they are fed to voting machines which will then electronically transmit the results for consolidation, or by any other methodology as the voting machines permit and as determined by Comelec, but certainly it will not be in the antiquated manner provided by section 31, which is prone to cheating and election protests.

Section 31 is clearly intended to govern the manner of counting of votes in areas where AES is not implemented in 2010. These will be the cities and provinces which will not be designated by Comelec for computerized elections. And this is only possible in partially-automated elections. As for areas covered by AES, Comelec is authorized under section 18 to provide for the procedure in the automated counting of votes.

If the 2010 elections proceed under a fully automated mode, as it is being pursued by Comelec right now, losing candidates could find refuge under RA 9369 in asking for the nullification of the elections. Imagine the results of an entire election being invalidated for having been conducted in violation of law. This would be a surefire recipe for a constitutional crisis of huge magnitude that would throw the whole country in chaos. So Roque and CCM are actually doing us a favor in questioning as early as now the legality of a fully-automated elections in 2010.

But there is still hope for nationwide automated elections even if the SC were to rule against full automation in 2010. Congress could easily amend RA 9369 by removing the partial and qualified application of the AES as it now stands. If President Macapagal-Arroyo is really true to her pronouncements of favoring fully-automated elections in 2010, she could as easily certify as urgent an amendatory bill that Congress would pass.

Now if Roque and CCM are proven wrong, as I will be, then we could all concentrate on becoming vigilant to ensure the conduct of honest, orderly and peaceful fully-automated elections in May 2010.

Free Speech is the Casualty in Punishing Willie Revillame

2009-08-08T10:03:00.000-07:00

The Movie Television Review and Classification Board (MTRCB) has once again shown its penchant for curtailing free speech rights by mulling over the imposition of sanctions against Wowowee television show host Willie Revillame. Last Monday, Revillame expressed his objection to the showing of live feeds on Cory Aquino's funeral cortege during a segment of the popular noontime show. He asked for the removal of the feeds for being inappropriate and distracting.

Apparently riding on the tide of public outrage against Revillame, MTRCB Chairwoman Consoliza Laguardia said Revillame violated Presidential Decree 1986 (the law creating the MTRCB)and the KBP (Kapisanan ng mga Broadcaster sa Pilipinas) Code. Notice the haste and prematurity with which Laguardia has spoken; already, the MTRCB through its chairwoman pronounced its judgment even before the besieged showman was given the opportunity to defend his actions.

But not only is the MTRCB disregarding Revillame's due process rights, it is also arranging to violate his free speech rights by imposing sanctions for his conduct which, although distasteful and inappropriate, is a function of democracy. However objectionable Revillame's statement may be, the fact of the matter is there is nothing in either his conduct or statements that would justify MTRCB in imposing sanctions on him, for he was free to express how he felt about the mixing of the funeral procession with his game show.

Speech under our laws can only be regulated or punished if it passes a strict scrutiny test. Not long ago, Chavez v. Gonzalez made it abundantly clear that this test applies with equal vigor in the broadcast media - which is a dramatic departure from American jurisprudence from where we imported our concept of free speech. The Supreme Court in this case did away with the differentiation between print and broadcast media in the application of the strict scrutiny standard in content-based regulation of speech. Under this test, speech can only be regulated if it creates or is likely to create a clear and present danger of a grave and imminent evil which the government has the right to prevent. The government must show a compelling or overriding interest that would justify curtailment of speech.

There is nothing in the statement or conduct of Revillame that would even remotely suggest such clear and present danger. It may be in bad taste, but to say that the government has an overriding or compelling interest to prevent or punish such speech is downright ridiculous. Revillame's gaffe is the stuff of 24/7 news that thrive on controversy rather than of state interest.

In fact, a review of section 3 of PD 1986, which is being relied upon by MTRCB, would show that there is nothing that would make Revillame's case fall squarely. Said section enumerates the powers of the MTRCB and the instances upon which it may exercise its power to approve, disapprove or otherwise censor objectionable movie and television shows. Specifically, the section empowers MTRCB to regulate or prohibit media materials constituting sedition or rebellion, which glorifies criminals and condones crimes, solely satisfies market for violence and pornography, abets the traffic and use of prohibited drugs, are libelous or defamatory, or constitutes contempt of court. None of these instances cover Revillame's statement and conduct.

It is true that good Filipino customs dictate respect for the departed, but I find it hard to understand how requesting the removal of the coverage of a funeral procession in a game show - without a doubt out of place and timing in the show - could constitute such disrespect. If there is anyone who was disrespectful it was the director of the show, and not Revillame, for including or allowing the inclusion of the former president's funeral cortege during a merrymaking portion of the game show. Revillame may be guilty of insensitivity for proceeding with his show like it was business as usual at a time of national mourning, but his act of not allowing the mixing of a somber occasion with an entertaining game show was actually the right thing to do under the circumstances. He should have, however, requested the removal discreetly and should not have needlessly publicized his disgust.

Former President Corazon Aquino became our beloved icon of democracy when she stood to fill the place of Ninoy after being felled by an assassin's bullet. She led the fight to restore our democracy which gave us the freedom to speak our minds. Punishing Revillame for his inappropriate statement - which is certainly not a "crass attempt to desecrate the memory" of the former president, as her family's spokesperson Lourdes Dy Sytangco characterizes it - would be a disregard of the cherished right which Ninoy and Cory fought for.

Obama-GMA Meeting Reflects US Policy Toward Philippines

2009-07-31T12:48:00.000-07:00

Having spoken strongly against those who cling to power through corruption and deceit during his inaugural address, one would think President Obama would somehow reinforce this message during his conversation with GMA, whose waning administration as we know has been beset by serious allegations of corruption and abuse of political power. He made no qualms reiterating this in his disapproval of Honduran President Manuel Zelaya's ouster by the military, although there are still hanging questions on the legitimacy of Zelaya's actions that precipitated his removal. Instead, President Obama steered away from such hot-button issues like charter change, term extensions, martial law, corruption and human rights, despite the fact that these issues threaten the political stability of the Philippines.

To be sure, President Obama was briefed on these issues but policy considerations made them off-limits. That President Obama did not make any reference to them at all, or even a hint, is an indication that the US's only interest in the Philippines right now is regional security. Given the generous accommodation the Philippines provides to US forces, not to mention our history of unflinching support for US foreign policy in other parts of the world, GMA is seen by the US as an invaluable ally in propping up its presence in the Asia-Pacific region in the wake of the North Korean threat and the growing dominance of China. Serious questions about GMA's governance appear to be the least of US's worries for now.

Such approach to US foreign policy is not something new, where notably corrupt and dictatorial regimes have been supported by the US in the past in pursuing its interests, as in the case of Saddam Hussein during the Iran-Iraq War or of Pervers Musharaff of Pakistan in recent memory. Or closer to heart, we have the case of President Ferdinand Marcos who, until Edsa I, continuously enjoyed the support of the US. But the idea that President Obama would resuscitate this reprehensible policy is a big disappointment. After all, President Obama stressed during his inaugural speech that he rejects the false choice between America's safety and ideals; that US foreign policy - when it comes to protecting America - would not compromise its ideals. Although such pronouncement was made in the context of fighting terrorism it is safe to assume that it would also apply in other instances.

What is even disconcerting is that not only did President Obama fail to indicate US disapproval of any totalitarian tendencies and raise concerns on the disturbing corruption and unsolved human rights cases in the Philippines, he also heaped encomiums on GMA for her position on human rights and, in his words, for doing "an outstanding work on a whole range of issues." This is ironical because the human rights record of the Arroyo administration is not anywhere near acceptable. Just last year UN Special Rapporteur on Human Rights Philip Alston gave the Philippines a failing mark on human rights. And five months ago, the Philippines has been listed as the most dangerous peactime country for journalists in the wake of the numerous unsolved murders of journalists.

I don't know if corruption - where the Philippines notoriously and consistently get a high world ranking - is among the "range of issues" where President Obama said GMA is doing an outstanding work. I am sure he is not unaware of the recent World Bank report on corruption of road projects in the Philippines which are funded by no less than the World Bank, in which the US has a stake; or of the allegations of corruption in the use of military assistance funds provided by the US on the joint RP-US military exercises.

But why would the US put so much value in its relationship with an administration which, although has proven to be an important and loyal ally, is already in its waning days and risk the ire of an opposition that could seize power after the elections, given the administration's sagging popularity? This is a fertile ground for speculation of possible US support, or what amounts to the same thing, of off-hand US policy in case our much-feared apprehension of a term extension for GMA comes true. How we wish we knew what transpired behind closed doors between these two leaders.

Election Cases: Waste of Time and Money

2009-07-21T09:10:00.000-07:00

"It will only be a waste of time and money," observes Pampanga Gov. Ed Panlilio's election lawyer Romulo Macalintal, when asked for his reaction to the Supreme Court's recent ruling allowing the recount of votes cast during the Pampanga gubernatorial elections in 2007. Former Lubao, Pampanga Mayor Lilia Pineda filed an election protest against Governor Panlilio by claiming that the erstwhile priest and his followers committed various electoral frauds.

This statement, coming no less from a veteran election lawyer, speaks a mouthful about the state of election cases in our country. It pains me to say this, but election cases in general do nothing except line the pockets of election lawyers, for in most cases the winners end up with empty victories, no to mention empty purses, because the favorable verdicts come in only after they have become moot. With the 2010 elections just less than a year to go, the election protest against Governor Panlilio is yet another example of an exercise in futility. The recounting of votes, while every protestant's dream, takes the longest and is the most contentious and tedious process in an election protest. The protestee's lawyer interposes every imaginable objection from the custody and handling of the ballot boxes to be re-opened to the reading and inclusion of ballots prejudicial to his client. Take it from Macalintal, who must've handled thousands of election cases (both high-profile and low-key) already, when he said that the recount against Panlilio is futile at this point in time.

With the slew of cases being filed every three years, the Philippines probably has the richest jurisprudence when it comes to election cases. A lot of defeated candidates with money to spare, perhaps excesses from the huge campaign war chests, cry they have been cheated after every elections even when the margins are huge. Many factors can be attributed to this phenomenon - which a visiting Canadian lawyer I once met during a legal forum found unbelieveable because he has never heard of election cases in his country. For one, our electoral system is prone to cheating and election officials are bribe-susceptible. Not only can election officials in charge of counting and canvassing of votes be bribed to guarantee victory for one candidate, but election judges to assure favorable judgments in election cases. Another equally strong, if not more powerful, reason is the insatiable quest for power, with all its illegitimate perquisites that promise luxury and indulgence to the holder. Politicians with such devious motivation (and there are lots of them unfortunately!) will have no qualms bribing their way to victory, both at the polls and courtroom.

If it's any consolation, law students and lawyers won't find a shortage of jurisprudence illuminating the election code and its companion laws that makes for interesting studies and provides guidance to our courts in disposing election cases before them. At least we would not be groping in the dark as US courts did in the wake of the 2000 US presidential elections between George W. Bush and Al Gore, when confronted with thin jurisprudence in trying to make sense of their varied election laws. But then again the dispatch with which these courts came out with a decision in the Bush v. Gore case (decided in less than a month) and the recently concluded legal contest between Norm Coleman and Al Franken for a Minnesota US Senate seat (completed in eight months) would make us weep.

The exceedingly slow pace at which election cases are resolved in the Philippines has turned election law litigation into a big joke. Although election cases are given preferences before regular courts and the election code directs their resolutions with dispatch, our legal system - with its loophole-ridden appeals process - makes it possible for parties on the losing end to prolong the litigation with the end goal of getting them through their terms before a decision is finally handed. More often than not election cases are resolved after the contested terms have expired or elections for the next terms have passed.

In my home town of Mabalacat, Pampanga, for example, when in 2001 the election protest against Mayor Marino "Boking" Morales was resolved declaring his long-time rival Anthony Dee the winner, Morales already completed his term of office. Then again in the 2007 case of Rivera III, et al. v. Comelec, et al., G.R. No. 167591 (May 9, 2007) - originally a petition to cancel the certificate of candidacy of Morales where I was one of the petitioners and counsels - the Supreme Court declared the ineligibility of Morales to run for Mayor in the 2004 elections. But this decision came only less than two months before the term for which he was found ineligible expired. There are tons of other cases bearing similar backdrops which i'm sure most of you can relate to that we need not cite them here for convenience.

Despite this sad reality, however, the Supreme Court, which is empowered by the Constitution to not only give meaning to the law but to promulgate rules of procedure in matters of litigation, has done nothing to put a stop to this abhorrence. Worse, it even sustains it by, for example, allowing wrongdoers to profit from their misdeeds by allowing "elected" candidates found to have lost the elections to keep their salaries, however miniscule they are compared to the illegitimate perquisites of their office, under the de facto officer doctrine. Would it not be more just that a usurper of public office be penalized by returning all the salaries he drew during his unlawful tenancy? The Supreme Court has also the penchant for entertaining petitions that do not establish new law and are clearly covered by established jurisprudence. Instead of declining jurisdiction and deferring to the Comelec or lower courts' rulings in cases squarely adhering to established jurisprudence, it proceeds to hear and publish full decisions in cases that could otherwise be disposed of by minute resolutions, thus adding to the delay in disposition of election cases.

Election litigations should not only be a lawyer's or politician's concern, but of every voter because it is an extension of the electoral process of choosing our leaders. They are designed - supposedly - to protect the voters' choice at the polls and ensure that those who court our votes are only those who are legally qualified to do so. But when they drag on indefinitely and are decided only when they can no longer serve their purpose or worse, when they are manipulated to the advantage of the unworthy, they subvert, and become an affront to, our sovereign will.

The Military as Arbiter of Political Conflict

2009-07-09T17:35:00.000-07:00

In the July 9 New York Times article "Fuel for a Coup: Perils of Latin America's Oversized Military," Nobel Prize winner, Costa Rican President Oscar Arias wrote that strong militaries in Latin America have paved the way for military solutions to political conflicts in the region. He observed that the coup d'état that led to the ouster of Honduran President Manuel Zelaya is something that is not unexpected in a region that "continues to view armed forces as the final arbiter of social conflicts."

While the Philippines is not as extravagant as Latin America when it comes to military spending, since the days of martial law our armed forces have increasingly taken an active role in trying to resolve our nation's manifold problems. We thought that after EDSA I the re-branding (from AFP to New AFP) and reorganization of the armed forces would eventually lead to its depolitization. But as history would have it, coup after coup have wracked the nascent administration of then President Corazon Aquino.

Yet again under the present administration, the military continued its political involvement in seeking solutions to our socio-political problems during the so-called Oakwood Mutiny despite repeated indoctrination at the nation's premiere military academy and among the ranks of active military personnel against military adventurism. Then there was the Manila Pen incident. The leader of Oakwood, Navy Lieutenant Antonio Trillanes IV, would later on be popularly elected as senator even while he was behind bars.

Coup d'état as a means of achieving change is, aside from being a crime punishable by law, without a doubt unconstitutional. Not even the present constitutional provision defining the role of the armed forces as the protector of the people can legally justify the military's role in acting as the arbiter of the country's political conflicts. That provision was meant to highlight the military's role in protecting the people against external threats or aggression, and not as a prescription against a corrupt government, however appealing the idea may be to others.

Arias says the imbalance between Latin America's fragile democracies and strong militaries, with the scales tipping toward the latter, has much to do with the militray taking an active role on the political landscape. The Honduran experience shows that when Zelaya committed flagrant disregard of the country's Constitution and defiance to its high court's ruling, the military decided to resolve the impasse by arresting Zelaya and whisking him out of the country. The Honduran military's swift action did decisively what the Supreme Court and Congress failed to do: to immediately stop the illegal actions of an abusive president.

The failure of our democratic institutions in maintaining political stability and reigning in of official excesses have left our people looking for answers elsewhere. Idealists in the military have seen this as an impetus for involvement in transforming our society by resorting to extra-constitutional measures. As citizens equally disgusted by the worsening problems in the country, these soldiers follow the route where they have been trained well in seeking the much needed change. And for a country that is yet to see a truly military rule, Marcos's martial law notwithstanding, hard line military idealists would find the idea of a military junta a seductive goal, especially so that previous administration changes have only resulted in installing new faces into power without resolving the country's fundamental problems. The guiding political aphorism, it would seem, is that when democracy fails force becomes a necessity.

To be sure, the armies of other nations are much more powerful and highly trained compared to those of Latin America and the Philippines. But we do not see the United States or United Kingdom being threatened by coup d'états. The reason is their democratic institutions and processes do not fail them. Sure there are failings here and there, but not on a scale as grand as in our country. And solutions are invariably found. In the Philippines we've seen how our democratic processes and institutions have been repeatedly mocked by those in power: until now not a single verdict of conviction has been handed down against the former First Lady Imelda Marcos despite the plethora of cases brought against her, she and her family have reacquired political power, public officals who only earn miniscule salaries continue to live lavish lifestyles, we have a president who committed an act comparable to or even worse than Watergate but continues to remain in power, scandals after scandals are being heaped upon us by government officials who remain unscathed by the scalpel of justice, etc.

For as long as we do not fully mature as a democracy, where our democratic institutions and processes are revered as inviolable, members of the military establishment clamoring for change will continue to see their relevance in instituting political reforms. As long as our politicians continue to tinker with the Constitution and unabashedly violate the law, our institutions fail to cut down official excesses and public officials defy the people's will, the military will remain an active participant of political change.

When GMA Exercises Commander-in-Chief Powers

2009-07-03T06:01:00.000-07:00

Once again talks of an impending martial law abound with the recent story in a major newspaper of a so-called "Oplan August Moon," which is allegedly a plan to extend the term of President Gloria Macapagal-Arroyo by declaring martial rule - to be accomplished by appointment to key military positions of generals loyal to GMA and creation of emergency scenarios reminiscent of the Marcos era. You may want to read Ding Gagelonia and Patricio Mangubat's interesting articles on this issue.

A review of the Constitution tells us that the president can exercise commander-in-chief powers under Art. VII, Sec. 18, which provides as follows:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. . .

The foregoing provision spells out three important powers that the president may exercise in times of national emergencies: (1) calling-out power (2) power to suspend the privilege of the writ of habeas corpus and (3) power to declare martial law.

The calling-out power refers to the power of the president to mobilize the armed forces - whose regular function is to protect the territorial integrity and security of the state against foreign aggressions - in preventing or suppressing lawless violence. In the words of David v. Gloria Macapagal-Arroyo (Prof. Randy David's first taste of eskrima with GMA), this involves ordinary police action. The Supreme Court also said in this case that the criterion by which the validity of the exercise of this power may be tested is the phrase "whenever it becomes necessary" in Section 18, meaning whenever the president determines there are existing conditions or situations - such as widespread violence, invasion or rebellion - that would necessitate the use of more force in restoring and maintaining peace and order in the country.

The power to suspend the privilege of the writ of habeas corpus (HC) and declare martial law are considered the more expansive exercise of the president's emergency powers. Martial law is distinguished from the president's exercise of his calling-out power in that in the former the country or a portion thereof is placed under military rule while in the latter the armed forces is only called upon to assist the police in maintaining peace and order. HC refers to the process by which a court compels the government to produce before it a person under the latter's custody or to justify the reason for such custody. The suspension of this privilege could lead to the detention of persons without charges.

It should be noted that although traditionally the suspension of the privilege of HC is equated with or follows the proclamation of martial law, the Constitution now makes it clear that martial law by itself does not suspend the privilege and there must be an order for such suspension.

If and when GMA declares martial law and/or suspends the privilege of the writ of HC she is required by the Constitution to submit a report to Congress within 48 hours from such declaration and/or suspension. Here again is where GMA can benefit immensely from her allies in Congress. Notice the following paragraph in Section 18:

The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Unlike the Cha-cha provision in Art. XVII, Sec. 1, there is no equivocation on the manner of voting. The Constitution explicitly allows (in fact it requires it) suspension of the bicameral process by requiring Congress to vote jointly in revoking, affirming or even extending martial law. Given the number of representatives, most of whom being administration allies, GMA can easily get congressional support. And if HR 1109 is any indication the votes alone of the loyal congressmen would suffice to meet the majority vote required.

If this happens the last constitutional resort to question the legality of martial law is the Supreme Court. Unlike in the pre-1987 Constitution era, there is no longer a debate as to whether the courts may look into the factual bases for the declaration of martial law. Where before the determination by the president of the necessity of martial law is binding and conclusive - a political question which the courts may not review - the Constitution now explicitly makes it a justiciable political question by stating in paragraph three of Section 18 that the Supreme Court may review ''the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof." In fact this provision confers a legal standing upon any citizen to bring the appropriate petition.

A word of caution however. David tells us that it will be the petitioner questioning the validity of martial law who must bear the burden of proving the insufficiency of the factual bases relied upon by the president in declaring martial law and/or suspending HC. The problem with this is that there is a strong likelihood that the Court will accord great weight to the executive department's finding of necessity (the Constitution says [1] there is an invasion and public safety requires it or [2] there is a rebellion and public safety requires it), either in subservience to GMA or what amounts to the same thing, in deference to another co-equal branch of government. As the Court ratiocinated in David in finding factual bases for GMA's Presidential Proclamation No. 1017 - declaring a state of emergency - "Owing to her [GMA] Office’s vast intelligence network, she is in the best position to determine the actual condition of the country."

I would like to believe GMA would be wise enough to cover her base if and when she invokes her commander-in-chief powers by seeing to it there would be sufficient basis for martial rule. In addition to this it would be safe to assume that she would also see to the appointment of sympathetic justices in the Supreme Court, where she is in the enviable position of filling almost half of the Court's membership as several of them retire before her term ends.

Where is Public Accountability?

2009-06-26T13:37:00.002-07:00

The head of Britain's Conservative Party, David Cameron, announced last June 25 that more than 100 of its parliament members will repay the UK government a total of 250,000 pounds, or more than $400,000, representing unjustified expense claims. This came in the wake of the expense scandal in the British House of Commons where several members of parliament (MPs), both from the leading Conservative and Labour parties, charged bogus or personal expenses against the government. After UK's Daily Telegraph exposed the scandal in May this year, several MPs, including House of Commons Speaker Michael Martin, resigned in shame.

Just recently this week in the US, South Carolina Governor Mark Sanford apologized in a press conference for having an affair with a woman in Buenos Aires, Argentina. He also announced his resignation as head of the Republican Party governor's association, and it would probably be just a matter of time before he eventually resigns as governor with the mounting calls for his resignation. This came on the heels of Nevada Senator John Ensign's similar public apology last week for his extramarital affairs with a campaign staffer.

Governor Sanford is not the first governor to publicly admit to wrongdoing in recent memory involving US politics. Eliot Spitzer, a man who was touted as a possible presidential contender like Sanford, did the same last year and resigned as New York governor after an FBI investigation revealed that he patronized a prostitution service. Of course, Governor Rod Blagojevich of Illinois was an exception by adamantly denying wrongdoing even after Justice Department investigators caught him on tape attempting to sell the Illinois Senate seat vacated by President Barack Obama. He tenaciously clung to the governorship until a unanimous Illinois Senate voted him out of office in an impeachment trial. There is an interesting parallel here with President Gloria Macapagal-Arroyo.

While sex scandals or extramarital affairs involving government officials in the Philippines are not as popular - or, dare I say it, not as exposed and a cause for official resignations (heck, we even elected a known womanizer as president!) - we surely are not in shortage of corruption scandals. On the contrary we abound with them from the lowest to the highest levels of government. But do we ever see these somber press conferences where the erring public officials admit, apologize and announce their resignations from office? Well you know the answer to that. What we see are thick hide public officials who invariably blurt the trite and tested lines "prove your accusations in court," "I serve at the pleasure of the president," "I will only resign when the president tells me to," "this is politically motivated," etc.

Resignation as a face-saving measure or dictate of delicadeza - that uniquely named Filipino virtue of acting with a sense of propriety - is an unpopular concept among our public officials who have been exposed with involvement in corruption or other malfeasances. And even when a few resorts to it, it is not out of a sense of delicadeza but to take the heat away from them, while boldly claiming their innocence. When Benjamin Abalos, Sr. resigned as COMELEC Chairman amid allegations of bribery in connection with the NBN-ZTE scandal, he never admitted to any wrongdoing; on the contrary he insisted on his innocence and vowed to clear his name. The same is true with COMELEC Commissioner Virgilio Garcilliano who resigned as a result of the so-called "Hello Garci" scandal.

What is even more distressing is that scandal-besieged public officials or figures use the notoriety they have generated from these controversies in running for public office. And some of them even get elected!

When in 2005 the "Hello Garci" tapes surfaced revealing private conversations between GMA and COMELEC Commissioner Garcilliano regarding the status of the former's votes in the just then concluded 2004 presidential elections, not a few entertained the possibility of GMA tendering her resignation or being removed from office by impeachment for what was seen as evidence of vote-rigging. But many were disappointed. Instead, GMA gave a televised address and in somber tone apologized to the people. She, in skillful spinning, downplayed the gravity of what she did by claiming it was merely a lapse in judgment and was only trying to ensure the protection of her votes as an anxious candidate since it was taking long for the results to come out. And the impeachment complaint against her did not fly.

More than three decades ago US President Richard Nixon resigned as president after his tape recordings inside the White House - revealing his involvement to cover up the break-in at the Democratic Party's headquarters at Watergate - were made public. Nixon faced the certainty of impeachment and removal from office, so he decided to save face by resigning. Although equally guilty of an egregious conduct, GMA was not similarly disposed as Nixon because unlike him, she did not face the certainty of impeachment, let alone removal from office. Her supporters and allies in the House of Representatives saw to this. Never mind the public opinion - the same care-free attitude that these representatives now brazenly display as regards HR 1109.

So what accounts for this alarming and despicable lack of public accountability among our public officials? We surely are not timid people who just allow official wrongdoing to go on unchecked. Our history clearly illustrates this. The continuing public outrage against HR 1109 speaks well of this. But still the HR 1109 congressmen are adamant in pursuing Cha-cha; they are unfazed by and continue to defy public opinion. The bar of public opinion, it seems, is no longer a controlling gauge of our politicians' conduct that they have become so insensitive of the public pulse. Where has acountability gone?

Ignorant and Ignoble

2009-06-16T18:11:00.000-07:00

"While the Court has taken an increasingly liberal approach to the rule of Locus Standi, it is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.” These are the harsh words of Chief Justice Reynato Puno in dismissing the consolidated petitions - filed by lawyer Oliver Lozano and his daughter Evangeline Lozano, who is also a lawyer, and one Louis "Barok" Biraogo - that seek to nullify HR 1109.

To receive such a strong rebuke, from the chief justice no less coupled by the near unanimous approval of a court of 13, is indicative not only of the brimming legal errors attending the Lozano petition, but also of something even more despicable. To be sure, the Lozano petition is not the first to land on the doorsteps of the High Court to be thrown out for lack of a justiciable controversy. The petition recently filed by the youthful Bohol Congressman Adam Relson Jala, asking a ruling on joint voting by Congress on Charter change, easily comes to mind. That petition was dismissed by the Supreme Court in a minute resolution for prematurity also.

And there are several other cases dismissed on similar grounds, or, if not dismissed, the issues of justiciable controversy and standing are contentious, which goes to show that they are not really easily grasped concepts even among some legal practitioners specializing in constitutional law litigations.

So what made the Supreme Court, Chief Justice Puno in particular, revile at the Lozanos by indirectly calling them ignorant, ignoble and suffering from cerebral deficit? What is it that previous suitors of the court, who were equally unlearned in the fine art of engaging its attention, did not do or have to incur the court's displeasure? Is it the personality of Oliver Lozano himself - a man who has long been associated with the Marcoses - that struck a discordant note in the mind of the chief? Is it because it was Oliver Lozano, the man who has filed four defective impeachment complaints in succession against President Macapagal-Arroyo, with no conceivable purpose but to get ahead of the flock in unseating an unpopular president to gain media mileage or for defeating legally sound impeachment complaints by playing around the one-year bar on impeachment?

Chief Justice Puno did not merely content himself in stating the usual, although seemingly arcane, legal principles that are too often involved in constitutional law litigations in disposing the Lozano petition. He went as far as question the fitness of father-and-daughter Lozanos as members of the legal profession. He branded them as ignorant, presumably of the law - which could be a ground for administrative discipline for lawyers and judges alike - and ignoble, which refers to baseness of character that would make one unfit as a lawyer. Now I am not suggesting that lawyers are angels, but if one is found wanting in the qualities required by the rules of professional responsibility his or her license may be taken away.

Perhaps Chief Justice Puno was also aggravated by the possibility that Lozano's petition could be trying to add a stamp of validity to the much-hated HR 1109 by forcing the Supreme Court to indirectly declare it legal, given that the Lower House has yet to encroach on the powers of the Senate. Indeed, the chief has said in his ponencia, maybe grudgingly, that no "usurpation of power or gross abuse of discretion has yet taken place.” This somehow undercuts the public outcry against the congressmen who have been called various distasteful names, chiefly flouters of the Constitution, in approving HR 1109. With Lozano's petition out and the High Court's ruling, these congressmen can now tell their detractors with even greater defiance that they did nothing illegal. What the Lozano petition purported to accomplish - to declare HR 1109 illegal - in effect made the Supreme Court give a stamp of validity to HR 1109. The quintessential Lozano at work!

Term Extension Scenarios

2009-06-10T08:59:00.000-07:00

I am reproducing below an interesting article from ABS-CBN, which is a collection of scenarios it gathered in the course of reporting on the charter change issue and term extension of President Gloria Macapagal-Arroyo. The words in italics are my comments. Here it is:

Scenario 1: Shift to a parliamentary system

The House of Representatives will convene a constituent assembly and proceed to amend the Constitution without the Senate. They will approve a change in the form of government from presidential to parliamentary, and lift the restrictions on foreign capital enshrined in the charter. They will then ask the Commission on Elections to hold a plebiscite. A case will subsequently be filed before the Supreme Court.

The Supreme Court approves the actions taken by a Senate-less constituent assembly, the plebiscite proceeds, and the administration makes sure the amendments are ratified by the people. Instead of presidential elections, parliamentary elections will be held in 2010. President Arroyo runs for a parliamentary seat in Pampanga, wins, and is chosen as prime minister.

Unless Malacañang manages to fill the Supreme Court with appointees who can be persuaded to follow an absurd view of our bicameral legislative structure under the Constitution, it is highly unlikely this scenario will happen. A Senate-less constituent assembly is so patently illegal that only those willing to commit political suicide, or confident that they could get away with it (Supreme Court justices included), would take this position. Although we already have congressmen who took this path, they still have so much to hurdle, legally and politically.

Scenario 2: Senators cooperate

The House of Representatives will convene a constituent assembly with some administration senators. Although the senators who will join the constituent assembly will not be enough to meet the three-fourths vote requirement in separate voting (18 senators), their presence will somehow “legitimize the process.”

The charter amendments approved by the constituent assembly are then subjected to a plebiscite. The Comelec and the Supreme Court go along with the actions taken by the constituent assembly.

If senators join, which appears to be farfetched right now, the House will pursue joint voting to avoid the problems of separate voting. The issue then on the modality of voting will be brought to the Supreme Court.

Scenario 3: Martial Law

The House of Representatives convenes a constituent assembly without the participation of the Senate. There will be street actions, but violent incidents organized by elements against democracy take place. President Arroyo will then have a basis to declare martial law.

Commenting on scenario three, Soliman said this can happen if the protests are not organized. “It [martial law] will make us vulnerable to infiltration and manipulation. When we act, we must be organized,” she said.

It's possible that con-ass congressmen, in tandem with Malacañang, are taking this direction, given their insistence to pursue a clearly illegal act of proposing amendments to the Constitution without the Senate which, as we are seeing, is continuously galvanizing the public to pour into the streets in protest.

Scenario 4: Shift after Elections

The House of Representatives convenes as a constituent assembly, a case is filed before the Supreme Court, but the process takes so long that it is overtaken by the 2010 elections. Charter change fails. Nevertheless, Mrs. Arroyo runs for and wins a congressional seat in Pampanga. But as soon as the 15th Congress is convened in 2010, charter change is approved, and there is an immediate shift in the form of government from presidential to parliamentary.

Congresswoman Arroyo becomes Prime Minister.

This is interesting, and there are indications that it might just happen, given former DOJ Secretary Gonzalez's view that President Arroyo will run for a parliamentary seat and aspire to become Prime Minster if and when the Constitution is amended, and the president's close political allies in Pampanga are hinting or encouraging her to run for Congress.

(With a report from Carmela Fonbuena, abs-cbnNEWS.com/Newsbreak)

Hubris or Stupidity?

2009-06-08T10:05:00.000-07:00

"It's up to the individual senators to endorse it. But we will go on to the next stage - convening a constituent assembly - with or without them." Thus, cavalierly proclaims Nueva Ecija Representative Rodolfo Antonino when asked about the next steps to be taken after the House of Representatives passed the much disdained HR 1109 - a resolution seeking to convene Congress into a constitutent assembly to propose amendments to the Constitution.

As if many have not spoken yet - expressing objections to HR 1109 from mild rebuke to raging outrage, that even led Jesus Is Lord (JIL) head Eddie Villanueva to call the legislators who approved the measure as terrorists and one blogger to compare them with the 9/11 terrorists - congressmen like Antonino, led by House Speaker Prospero Nograles, are still bent on their brazen attempt to introduce changes to our basic law by proceeding with their convoluted view that the House could do it alone.

As we have feared in previous postings, the majority in the House is now moving toward the most stupid thing to do by unilaterally acting to propose amendments to the Constitution. Congressman Mauricio Domogan of Baguio City minced no words when he said that the House will start with the charter change process before President Arroyo gives her State of the Nation address when Congress resumes session in July. The theory that Domogan and Antonino, the proponents' mouthpieces, are pursuing is that only a simple majority is needed to convene Congress into a constitutent assembly and that by the sheer number of those who approved HR 1109 - the gang of 174 - they already achieved sufficient votes for this purpose, thereby negating the need for the senators' votes. Yes, you got that right, these geniuses are actually saying that the Senate does not matter; in fact they intend to send HR 1109 to the individual senators, instead of the Senate as a body, as a token gesture to give them a chance to participate. So much for bicameralism. Even as now they have already amended the Constitution!

So now we can see a bifurcated process unfolding: (1) convening Congress into a constituent assembly, requiring only a simple majority and (2) proposing amendments to the Constitution, requiring three-fourths vote. According to the proponents, in both cases the senators' votes are inconsequential as the House membership alone can muster the needed votes. The grotesqueness of this is readily apparent. How can HR 1109 alone - a pure act of the Lower House - become the decision of Congress that is composed of not only the House but the Senate as well? As we have been repeatedly saying a two-chamber Congress, with limited exceptions, can only act with both Houses acting in concert. And sending HR 1109 to individual senators for their signatures will not satisfy this legal requirement even if majority of them were to sign it, since the acts of the senators could only constitute as an act of the Senate if they are acting as one body, in session assembled.

In addition, as pointed out by Fr. Joaquin Bernas, no further act is necessary to convene Congress into a constituent assembly as it is already constituted as such by virtue of Article XVII, Section 1 of the Constitution. Let me just add that Congress is automatically set in a constituent assembly mode from a purely legislative mode whenever it proposes amendments to the Constitution, even in accordance with the normal legislative route. A joint session is not even essential because what will characterize Congress as a constituent assembly is the act of introducing changes to the Constitution, for the word "constituent" refers to the power to frame a fundamental law or constitution and to introduce changes to it, as opposed to the exercise of mere legislative powers which refers to the enactment or amendment of statutes. What the Constitution only requires is that a three-fourths vote, compared to a simple majority in enacting laws, is necessary to approve the amendments and ratification by the people in a plebiscite to make them binding.

Be that as it may, nothing - legally, that is - will as yet prevent the House from proceeding. As soon as the House reconvenes, it can start proposing amendments. It can perfectly do this in accordance with Congress's power to propose amendments to the Constitution under Article XVII, Section 1. But there is a big "but." Such act would only be the sole act of the Lower House that will have to be transmitted to the Senate for its approval. Given Domogan and Antonino's statements, however, the House would proceed with step two of the bifurcated proceedings by sticking to its absurd logic that the convening of Congress into a constituent assembly (joint session is more like it) has already been approved and, therefore, the House members would be acting or representing Congress as a whole when they start deliberating and approving amendments to the Constitution in July. It's like telling the senators, "Congress is now convened into one and ready to amend the Constitution. It's up to you if you want to join or not," with the addendum, "either way, we have the votes to approve the amendments."

But why is this obssession and unwavering insistence despite the strong public outrage against charter change? How could these congressmen not heed the public sentiment and risk political suicide? It is obvious that these congressmen, a lot of them lawyers and veterans of Congress, know that without the Senate an act of the House alone cannot pass constitutional muster, and yet there is this sinister confidence to proceed. I would concede there can be a valid debate between joint and separate voting, but to say that a joint session - the vehicle to jumpstart the debate - of both Houses could be achieved by HR 1109 alone would be the height of stupidity that does not even merit the passing attention of the Supreme Court.

The majority in the House might have just stumbled and bared its ulterior motive in following and revealing an absurd theory. Domogan and Antonino's statements may have just revealed that all this fuzz about forcing a justiciable controversy is but a smokescreen for something bigger. The stupidity of their position with which they are so confident, coupled by their indifference to the public sentiment, are sending dangerous signals that something terrible is in the offing. Take note, this adamance - which is becoming exceedingly clear as deliberate - is stoking the fire of discontent and as I write this, preparations are underway for massive protests and rallies. The hubris is simply alarming. Nuff said.

TO VOTE JOINTLY, OR SEPARATELY, THAT IS THE QUESTION

2009-06-04T10:12:00.000-07:00

Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.

LAYING THE BASIS FOR A JUSTICIABLE CONTROVERSY

2009-06-03T09:53:00.000-07:00

Concurrently with the con-ass controversy is the talk of how a justiciable controversy may be created to force the hands of the Supreme Court in settling the debate on voting separately or jointly. As explained by House Speaker Prospero Nograles "there is a need for a legal referee to come in to at least enlighten the legal minds on what to do."

I see two legal issues looming in this latest drama. One is whether HR 1109 - resolution convening Congress into a con-ass - by itself is sufficient to authorize proposed amendments to the Constitution. The other is the mechanics of voting to be adopted by Congress in proposing the amendments.

Every student of civics who has studied his or her homework will be able to answer the first issue. We don't need Senator Juan Ponce Enrile or Fr. Joaquin Bernas, let alone the Supreme Court, to tell us that in a bicameral Congress both Houses (Senate and House of Rep) must act favorably to carry out any legislative measure or resolution involving Congress as a whole. If the Constitution explicitly prohibits each House of Congress from adjourning for more than three days without the consent of the other, there is all the more reason that both Houses must agree in proposing amendments to the Constitution, which is undoubtedly a function of utmost importance. Unless HR 1109 is concurred in by the Senate or a similar counter-part measure is adopted by it, which does not appear to be the case considering the objections voiced by several senators already, this resolution is nothing but an expression of the sentiment or desire of the Lower House.

On the second issue, which has been the nagging question since this whole idea of a con-ass came to the fore, this will only become relevant once the Senate agrees to come into a joint session with the Lower House in proposing amendments. So let's not get ahead of ourselves folks because the way things are right now, as already observed, the Senate is not inclined to join; in fact, its members are averse to it, and for a good measure considering the growing public outrage against Cha-cha. Senator Pimentel read the political climate well when he said the Cha-cha and con-ass proponents face imminent political deaths.

So where is the justiciable controversy now? The answer appears to be in the most stupid direction that the House may take, which is to proceed with the convoluted view that, as an unthinking congressman said, the House can do it alone in proposing Charter changes. And Nograles's statement is illuminting when he said everything is possible in the Philippines when asked about the next steps to be taken after the approval of HR 1109. Accordingly, the Lower House will now proceed to adopt rules for the proceedings of its putative con-ass and start debating and proposing amendments to the Constitution and submit the same to the people for approval in a plebiscite.

If the House takes this patently and grossly illegal path (excuse the lawyer talk), a justiciable controversy will arise for then the House would be acting in excess of its constitutional powers from which it could legally be enjoined via prohibition and certiorari (available when a governmental body acts beyond its powers and abuses its discretions). The Senate would be deprived of its constitutional right to propose amendments to the Constitution, which would be an institutional harm or injury to it. Needless to say, the Constitution says it is Congress and not the Lower House alone that may propose amendments.

Until this happens, however, HR 1109 alone cannot be the basis of a suit as mistakenly thought by lawyer Oliver Lozano who jumped into the fray in haste by filing a petition before the Supreme Court. As held by the Supreme Court in Tan v. Macapagal, "it is a prerequisite that something had by then been accomplished or performed by either branch before the court may come into the picture." Only when the House proposes amendments to the exclusion of the Senate, will the House have performed acts the legality of which the court may rule upon. Thus, in Francisco v. House of Representatives the Supreme Court took cognizance of the petitions challenging the legality of the second impeachment complaint against former Chief Justice Hilario Davide, Jr. when it ruled that the filing of the complaint before the House and adoption by the latter of the rules of impeachment constituted the alleged constitutional acts that satisfied the prerequisites for ripeness of the suit.

But if the House takes this route - which I believe the Supreme Court would assuredly strike down - it would still fail in its effort to force the issue on joint or separate voting which the majority have been dying to have adjudicated. The majority's penchant for a ruling on the issue of joint or separate voting is tactical. If the Supreme Court rules in favor of joint voting, they could try to amass the three-fourths vote among its huge membership alone to carry out their pet amendments, effectively outvoting any opposition from the lesser-numbered Senate. The majority's seeming confidence in having its view prevail in the Supreme Court lies in the composition of the court. With President Arroyo having the opportunity to fill more vacancies in the court, we could almost be sure that those to be appointed are those who will possess similar views. Call it conspiracy theory, but it seems that even as now appointees are already being vetted by the JBC about their views on Charter change.

But then again, the majority in the House still needs to be more creative in bringing out the issue of voting jointly or separately. Thus far, there is no indication that they are anywhere near that position.

IMPLICATIONS OF THE CHA-CHA RESOLUTION

2009-06-02T10:37:00.000-07:00

And so it finally happened. The House of Representatives on Tuesday night voted to convene Congress into a constituent assembly (Con-ass) as a vehicle for amending the Constitution. But while many express fears about what may soon happen, particularly about the possibility of term extension for President Arroyo and the calling off of the 2010 elections - which by the way Malacañang has repreatedly denied, I don't think this event is enough to pave the way for amending the Constitution as some quarters fear. To be sure, it is a step toward that direction, but one that is fraught with legal, not to mention political, obstacles as to be successful in reaching its destination.

What the House did in passing HR 1109, the resolution convening Congress into a Con-ass, is to merely express its - that of the House alone - desire or decision to amend the Constitution via Congress acting in joint session. Let us not forget that we have a bicameral legislature, which means Congress is composed of the House and the Senate. Except in very limited cases, each body cannot act without the other's concurrence. The amendment of the Constitution is certainly not one of these cases. In other words, the House by itself cannot convene Congress into a joint session, let alone amend the Constitution, unless the Senate agrees. As it now stands, majority of the members of Senate object to the convening of a Con-ass.

HR 1109 can only become an act of Congress once it is transmitted to the Senate and the latter either adopts it or proposes a counterpart resolution. Then again the measure will have to be brought to a bicameral conference committee to smooth out any differences. So, contrary to the views of others that the Cha-cha train has arrived, it still has a long way to go. Given the objection of the Senate this train, as it were, does not have enough steam to reach its final destination.

The only way that HR 1109 could stir a big controversy, which will be the most stupid thing for the House to do, is for the majority to start introducing and deliberating on amendments to the Constitution under the absurd and convoluted view that HR 1109 alone would allow proposal of amendments to or revision of the Constitution under Article 17, Section 1 thereof. This will be a blatant disregard of the bicameral nature of Congress, a principle so elementary in our system of government that for our "esteemed" legislators not to know and to even invoke the jurisdiction of the Supreme Court for guidance is an assault on our senses and constitutes intellectual dishonesty of the highest order.

Okay, let us assume the majority still has the decency to comply with established parliamentary procedures by transmitting HR 1109 to the Senate for its action. Let us assume further that the Senate agrees to it and so we now have Congress ready to amend the Constitution as a Con-ass or in joint session. The next question is, how will the three-fourths vote to approve any amendment be cast? The House Cha-cha proponents maintain that by joint voting, meaning all the 275 representatives and 23 senators (298) voting together. According to Dean Jorge Bacobo (DJB) of Philippine Commentaries and the Rizalist Press, three-fourths would be 224 rounding up the number. But would there be a difference if the voting were carried out jointly or seprately? I believe there is and a disagreement on the mode might just be a ground for a legal controversy that could bring the Supreme Court in, with due respect to DJB's view in his latest posting on the subject.

I am not certain of the numbers, but for academic purpose, if the voting is carried out jointly the House would be able to, in the words of Fr. Joaquin Bernas, drown the senators in a sea of House votes. In other words the senators would be strategically outvoted every time, assuming only 51 of the representatives will not vote in favor of the majority. Whereas if the voting is done separately the senators' votes become vital for every amendment to be carried out. There would have to be three-fourths votes cast from their ranks each time, in the same manner that the representatives will need to obtain the same number of votes among them. Here lies the crux of the controversy in the event the above-mentioned scenarios take place.

But for now, let us wait and see how our "esteemed" legislators will proceed.

QUESTIONING SC ASPIRANTS ON POTENTIAL CASES

2009-06-01T17:53:00.000-07:00

There is an established precedent among Supreme Court aspirants not to discuss their positions on particular legal issues that may soon come to the court. At least this is the position taken by nominees to the Supreme Court of the United States (SCOTUS), whenever senators press them for answers on these issues during confirmation hearings. And the rule is not without reason. As future members of the SCOTUS, the nominees will be prematurely baring their decision and the vote they will cast on particular legal issues even before becoming justices and worse, even before hearing the arguments pro and con.

This, unfortunately, is not the case with the aspirants to our Supreme Court (SC). During the public interview of aspirants for the posts recently vacated by Justices Alicia Austria-Martinez and Dante Tinga, the Judicial and Bar Council (JBC) panel asked former judge and now law school dean Ed Vincent Albano, Court of Tax Appeals Justice Lovell Bautista and Court of Appeals Associate Justice Ruben Ayson about their position on the hot-button issue of Charter change (Cha-cha). Without hesitation, the three nominees volunteered similar answers by favoring a constitutional convention over a constituent assembly.

Cha-cha may soon become an issue before the SC and if these nominees were to be appointed to the court, we already know what their position is or at least we have a strong sense of where they're going. They bring with them the strong likelihood of voting down any effort to amend the Constitution via a constituent assembly. While justices are expected to be influenced by their personal opinions and beliefs in deciding cases, knowing beforehand how they will decide a particular case does not sit well with the idea of an impartial judge whose mind is supposedly not made up until the parties are heard. For a judge who has already formed an opinion, arguing your case before him or her would just be a useless exercise.

PARTIES OF CONVENIENCE

2009-05-26T19:04:00.000-07:00

In Philippine politics, political parties routinely sprout, align, merge, combine or coalesce. Really, there is nothing extraordinary or dynamic about this. It has been the norm in the current political landscape. Rather than serving as platforms for advancing a set ideas of governance political parties are nothing but mere vehicles to propel candidates to public office.

It is no wonder then that President Gloria Macapagal-Arroyo's Kampi party will seal its merger with Fidel Ramos's Lakas on Thursday in preparation for the coming 2010 presidential election. The merger will undoubtedly be seamless as, save for the choice of party standard bearers, there are no substantial differences to hammer out. Except for the personalities that constitute each party, there is really nothing that distinguishes one from the other. In fact one may even argue that the people behind these parties are the same old pols whose only interest is to perpetuate themselves in power.

Edmund Burke, the father of conservatism, defines a party as a group of men united to promote the common good in accordance with agreed principles. The Philippines, however, has evolved its own definition of a party as a political instrument to secure government positions for its members. To be sure, the varied political parties playing major roles in Philippine politics have drawn up their respective platforms of government, but these are less ideological than rhetorical. The principles to which Burke refers to are not to be found. For as soon as elections are over, politicians gravitate from one party to another - depending on which party offers the most security for reelection or one that can dispense government largesse.

Party loyalty is largely an illusory characteristic. Because of the lack of an ideological tie to their parties - which do not offer one, in the first place - party members or politicians have no qualms about jumping from one party to another or forming a party of their own to suit their personal interests under the guise of advancing the greater good. In 1991, for example, former President Fidel V. Ramos left the LDP to form his own Lakas party when he lost the presidential nomination to the late Ramon Mitra. Even as early as now, defense secretary Gilbert Teodoro's wife, Tarlac Representative Monica Louise Prieto-Teodoro, is already sending signals that in the event Gilbert Teodoro, who has just left the NPC to join the administration party, is not nominated as the presidential standard bearer of the merged Kampi-Lakas party there is a possibility that Teodoro will still pursue his presidential ambition. Her statement that there are many very powerful people who are backing the secretary's presidential bid and that if he is not anointed by the party they will go behind him are strong statements conveying this message.

It is interesting to note that as a result of the Kampi-Lakas merger former House Speaker Jose De Venecia, Jr. has tendered his resignation as Lakas's president emeritus and expressed his intention not to join the merged party. His reason is that "it is no longer of our original vision." What the erstwhile speaker is really saying is that the merged party will no longer serve his political career as did the Lakas-NUCD when he was removed as president and lost the speakership.

As the presidential election draws near we will be seeing more party switchings and realignments, all calculated to ensure the actors' success in the electoral stage. This practice will continue post elections, this time to ensure favor from the new holders of power. And the party system will be at their convenience to answer this primal need.

THE POLITICAL QUESTION DICHOTOMY

2009-05-22T11:41:00.000-07:00

Whenever there is serious disagreement between the executive and legislative branches of our government, or among members of the latter branch, especially on political issues that are laced with legal questions, which by the way seems to be usually the case these days, the third branch - the judiciary, particularly the Supreme Court - is called upon to solve the dispute. In other words the Supreme Court has become a parent, if you will, who settles quarrels among his children.

This has not always been the case. Prior to the 1987 Constitution, the Supreme Court has taken a flip-flopping position in disputes involving the political branches by either accepting or declining jurisdiction whenever in its "supreme wisdom" it considers the issue as political rather than legal, or vice versa. The standards it used were at best murky; some decidedly political cases were taken cognizance of while some that presented clearly legal issues were denied of the court's attention.

Now that the 1987 Constitution has expanded the jurisdiction of the Supreme Court it would appear that the debate on whether political questions may be entertained has been settled. The second paragraph of Section 1, Article VIII of the Constitution now defines judicial power as including the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This is called the court's expanded certiorari (pronounced as ser-shee-uh-rair-ree, or if you prefer the more sophisticated ser-shee-uh-rair-ahy) jurisdiction.

There is now an express directive for the Supreme Court to subject to judicial review actions of even the other branches of government, such as Congress, whenever such actions - although political in nature - constitute grave abuse of their discretions. Even more revolutionary is the fact that the Supreme Court's certiorari jurisdiction, aside from being a power, is now an express duty which, once invoked by a party to a controversy, the Supreme Court cannot shirk from. I said revolutionary because having copied our republican system of government and constitution from the United States, Section 1, Article VIII constitutes a radical departure from the American norm wherein the US Supreme Court retains wide discretion on whether to exercise its jurisdiction in cases involving the political branches under the political question doctrine.

The framers of our Constitution, however, made it clear during floor deliberations on Section 1, Article VIII that the definition of judicial power contained therein does not do away with the political question doctrine, that is . . . purely political questions that come to the court. This means the Supreme Court will have to distinguish between justiciable political questions (those which the court can rule upon because of the legal issues involved) and non-justiciable political questions or purely political questions. This is now the battleground in constitutional litigations involving the political departments of the government.

As early as now, we are already hearing the invocation of the political question doctrine in the petition filed before the Supreme Court by the senate minority, led by Sen. Aquilino Pimentel, which seeks to block the majority in the Senate from trying the ethics charges against erstwhile senate president Manny Villar. To be sure, the respondents will claim political question by saying that the issue involves matters purely internal to the Senate. Senate president Juan Ponce Enrile may say that the Constitution gave the Senate authority to determine its own rules of proceedings and to punish its members for disorderly behavior. The rules it adopts are, therefore, outside of the court's power of review.

Senators Pimentel and Allan Peter Cayetano, who are both lawyers, are of course aware of the political question doctrine or, as applied to the Philippines, the dichotomy between purely political and justiciable political questions. While concededly the issue on Manny Villar's ethics trial is internal to the Senate and therefore a political matter, they were careful to inject in their petition legal claims such as the violation of Villar's right to due process and equal protection under the law. More important, they allege violation by the majority of the constitutional rule on quorum in the conduct of the Senate's business. Senator Pimentel claims that instead of applying the quorum requirement of 13 to legitimize a senate proceeding when it transferred to the committee of the whole Villar's case, Senator Enrile used the much smaller quorum requirement of the ethics committee where Villar's case was originally pending. Corollarily, Pimentel and company are invoking the Supreme Court's constitutional duty to assume jurisdiction whenever a department of the government is guilty of grave abuse of discretion, as when a law is violated or disregarded in the exercise of its discretion.

Will the Supreme Court take cognizance of this new dispute involving a political body, as it has consistently done so in the past? Without going into the issue of standing, if Pimentel and company frame their issues well by clearly showing violations of the Constitution by the senate majority, there is a strong likelihood that the Supreme Court will step into the controversy. Francisco, Jr. v. House of Representatives - which involves the constitutionality of the second impeachment complaint against former Chief Justice Hilario Davide, Jr. - is instructive of the standards to apply in determining what is a justiciable political question. It held that where there are constitutionally imposed limits on the powers or functions to be exercised by the political bodies, the court has the power, a duty even, to determine whether or not the powers were exercised in accordance with those limits.

IN THE EYE OF THE STORM

2009-05-20T12:05:00.000-07:00

Dr. Hayden Kho, cosmetic surgeon and boyfriend of beauty magnate Vicky Bello, must be turning topsy-turvy in the middle of a raging storm of public condemnation after a video recording of his sexual escapade with actress Katrina Halili has circulated on the internet.

Meanwhile, legislators are scurrying to enact laws that will directly penalize the unauthorized taping and circulation of sexual conduct. This scandalous event may yet be the contribution of Katrina Halili, albeit under the most unlikely and humiliating circumstance, in the shaping of laws to protect women against sexually depraved men. A review of existing laws reveals that there is no law directly penalizing such deplorable conduct.

According to DOJ Secretary Raul Gonzalez and Sen. Bong Revilla, Dr. Kho may only be criminally charged for violation of Republic Act No. 9262 or the law on Violance Against Women and their Children. Let's examine under what particular provision Dr. Kho may be indicted.

Section 5 of RA 9262 enumerates the different acts of violence against women and their children that may be penalized under the law. In penalizing violence against women and children, the law does not limit its definition to physical violence or the infliction of bodily injuries; it includes sexual, psychological and economic abuse. Psychological abuse comes closest to defining the type of violence suffered by Halili. This is defined under section 5(i) as the "causing of mental or emotional anguish, public ridicule or humiliation of the woman . . ."

There can be no doubt that with the public exhibition of the sexual conduct between Kho and Halili, the latter suffered serious mental and emotional distress, public ridicule and humiliation. Needless to say, in a predominantly Christian country like ours with a largely conservative culture where a woman's chastity and the Filipina virtue of modesty are still valued despite growing western influences, the public showing of such unconventional and intimate congress is highly scandalous and offends sensibilities. It will put Halili in disrepute and forever stigmatize her. Even in the glitzy world of Hollywood, the public does not look favorably upon those who have suffered the same fate, like Paris Hilton, Kim Kardashan and Pamela Anderson, to name only a few.

If found guilty, Kho may spend more than six years in the can, more than what Secretary Gonzales said. Section 6(f) of the law penalizes the relevant act by prision mayor or imprisonment ranging from six years and one day to 12 years. This will disqualify Kho from availing of the benefits of probation. And by express provision of RA 9262 Halili may claim appropriate damages, meaning monetary compensation for her suffering.

Aside from RA 9262, Kho may find himself liable for grave scandal and obscene exhibition under articles 200 and 201, respectively, of the Revised Penal Code. There is grave scandal when a person offends against decency and good customs by any highly scandalous conduct. It could be theorized that the act of Kho in recording his sexual activities with Halili and subsequently giving away a copy of such recording to another by themselves constitute grave scandal. Although Kho may deny responsibility for the exhibition, the showing of the recording constitutes strong evidence of its transmission to another, for how else can such recording with a highly confidential content find its way in the hands of another? Article 201, on the other hand, penalizes the public exhibition of indecent or immoral scenes or acts, as well as the transmission of such to another.

It is interesting to note that the authors of the Revised Penal Code showed prescience by including the phrase "or any other place" in enumerating the situations where such objectionable scene or act may be shown. The phrase may very well cover the internet, even though at the time the law was adopted even televisions were not yet in vogue.

As will be expected, Kho may deny responsibility for the giving away of the recording, let alone its exhibition. Our lawmakers should see to it that whatever laws they craft to address this disturbing practice, the possible defenses that wrongdoers may put up to avoid liability should be anticipated and guarded against. A provision may be made, for example, to make the mere existence and authorship of the recording as prima facie evidence of guilt in criminalizing the unauthorized public exhibition of recorded sexual conduct between two persons.

JUDICIAL IMPROPRIETY

2009-05-13T13:41:00.000-07:00

Judge Jorge Emmanuel Lorredo of the Metropolitan Trial Court, Branch 26, of Manila is teetering on the brink of a disciplinary action by the Supreme Court and, possibly, being stripped of his robe for his continuing flagrant violation of the code of judicial conduct.

It all started with his issuance of a controversial May 4, 2009 order in connection with the perjury case filed against ZTE-NBN whistleblower Rodolfo "Jun" Lozada, Jr. by former Malacañang chief of staff Mike Defensor. Then on Wednesday, Judge Lorredo gave a one-on-one interview with TV Patrol's Willard Cheng where he once again made statements that could only be characterized other than as improper for a man who should be more circumspect and responsible in his words and conduct, given the dignity of his position as a judge and dispenser of justice.

In Judge Lorredo's May 4 order, which has already been the subject of several criticisms by bloggers, newspaper opinion writers and legal observers, he strongly expressed his desire for Defensor to settle the case against Lozada and even alluded to the possibility of Defensor being stricken with illness as a punishment from God and suffering the same fate as First Gentleman Mike Arroyo, who has a heart ailment, should he not settle. Then he went on to warn Defensor of the disaster that awaits his political career in pursuing the case and the possibility of dragging the president and Mike Arroyo into the case, including the issuance of a warrant of arrest against no less than the president of the country and a possible constitutional crisis. More on this later.

While it is true that, to a certain extent, the Supreme Court encourages the settlement of cases, the unusual and extraordinary interest of Judge Lorredo in having Defensor rethink about pursuing the case against Lozada borders on bias and partiality. It shows propensity on his part to favor Lozada. Thus, in one administrative case involving a judge, the Supreme Court held that the active efforts of a judge to have a case before him settled even if one of the parties is not receptive - as in the case of Defensor - is improper and makes the judge susceptible to suspicions of partiality. Judge Lorredo may say he is unbiased, but he is certainly showing appearances of favoritism by his inappropriate statements. The code of judicial conduct requires every judge to not only be impartial, but to also avoid the mere appearance of partiality.

By including off the mark and totally irrelevant matters, not to mention the use of intemperate language in resolving a simple motion filed in his court, and by generating unnecessary publicity Judge Lorredo showed himself unworthy of the title of a judge. What has Mike Arroyo and his ailment got to do with the setting of Lozada's arraignment and the issue on his custody? or of Mike Defensor getting ill and suffering a political setback by pursuing charges against a man who is supported by the people and religious groups? Nothing at all, and yet Judge Lorredo harped on these matters like they were pivotal legal issues. Judge Lorredo is obviously catering to the public outcry against the ZTE-NBN controversy - which involves allegations of kickbacks running in millions of dollars by high government officials, possibly including the president and her husband, in the award of a national broadband network project to a Chinese company -and wants to draw attention to himself. There is a clear stricture against judges engaging in sensational and spectacular conduct in their courts.

As a judge bound by a strict ethical code, Judge Lorredo should know better that in resolving cases before him he should not be swayed by public opinion or be free from any extraneous influence or pressure. By suggesting public opinion is strong against the ZTE-NBN scandal and the filing of charges against Lozada, and that Defensor has the opportunity to cleanse himself and regain public sympathy by settling the case against Lozada, Judge Lorredo is clearly allowing extraneous matters and what he perceives to be a strong public sentiment to influence the disposition of the case before him.

Judge Lorredo shows his clear bias in favor of Lozada when he states in his controversial order that if Defensor pursues the case against Lozada, he will have no reason not to grant a motion by Lozada to subpoena the first couple. I find it difficult to see how he could be impartial in already making up his mind about ruling in a particular way on a motion that has not even been made yet. He is like a woman saying she will give her hand the moment a suitor asks for it. He does not even know yet under what circumstances and for what purpose will such a motion be sought, if at all. Will a possible subpoena of the first couple at the behest of Lozada likely produce relevant and competent evidence? Will there be constitutional impediments in issuing compulsory process to a sitting president? But Judge Lorredo seems to know the answers to these questions already even before hearing the arguments pro and con from the parties involved, as obviously he has already made up his mind to grant such a putative subpoena.

Not only has Judge Lorredo shown bias, but is even fomenting a constitutional crisis or even a bloody confrontation by hinting that should a subpoena to the president be ignored and not implemented by the police he would deputize senators or even Oakwood coup plotter, now Senator Antonio Trillanes with the help of his comrades (meaning fellow coup plotters), who mind you is presently in jail for coup and rebellion charges, to forcefully bring the president in court notwithstanding any opposition by her security detail, the Presidential Security Group. Unbelievable! Now, I am not exactly a fan of the president or her husband nor do I agree with the indictment and incarceration of Lozada, but such mindless rantings coming from a judge who is supposed to uphold the integrity of the institutions of government and respect for the rule of law is simply outrageous that should not be allowed to pass without sanctions by the Supreme Court.

Good thing the Supreme Court has already shut this magistrate's wild mouth and prevented him from doing further damage to the integrity of the judicial system. It is hoped though that the High Court's action should go beyond mere silencing him, and instead should extend to purging him from the ranks of honest, dedicated and respectable judges, who toil everyday in their courtrooms to dispense justice to the deserving, who are now in danger of being tainted by his gross impropriety and unbecoming conduct.

STATEMENT OF GSIS VP ELLA E. VALENCERINA

2009-05-12T10:44:00.000-07:00

In the interest of fairness and balanced discussion, I am reproducing the following statement of GSIS Vice President Ella Valencerina in italics concerning the anti-wire tapping case she filed against ABS-CBN journalist and Probe anchor Chehe Lazaro:

“When the Pasay City Court issued a warrant of arrest against Ms. Cheche Lazaro, I initially opted not to issue a statement. I thought there was nothing more to say except, perhaps, to let the wheels of justice take its usual turn. My silence was a gesture of respect for the system.

“However, after hearing and reading the statements made by the camp of Ms. Lazaro in the news, I feel compelled to say something, without delving further in the case – for this is the sole responsibility of the officers of the court – but to clarify the false impressions that were peddled in the media.

“First, I want to make it clear that the Government Service Insurance System is in no way involved in the case of Violation of the Anti-Wiretapping Act which I have filed against Ms. Lazaro. I filed the case before the Pasay City Regional Trial Court on my own volition, without any instruction or direction from my superiors in the GSIS.

“It is a case arising from my feeling that my right to privacy, guaranteed by the Bill of Rights, has been violated. I am, after all, entitled to my rights, in this case, Section 3 of the Bill of Rights, which states: ‘The privacy of communications and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.’

“Contrary to what the camp of Ms. Lazaro has been quoted as saying, this is not media harassment. I have dealt with countless media persons and those I have met and those who know me can attest that I am the last person capable of harassing members of the press.

“The case, above all, raises the timely question: Are the media allowed to violate the individual rights of a person? I was asking the court if the media could simply call you up, record your conversation, and broadcast it for the entire world to hear; all these, without your knowledge, much less, your permission.

“There is no grand conspiracy. There are no devious schemes. Definitely, there is no concerted effort to stifle press freedom. I pursued my rights, taking the route of due process, without the need to engage in a publicity stunt.

“There is, however, a silver lining to the already tense predicament I am in for going after an influential broadcast journalist. Somehow, I received and continue to receive numerous encouragements from, surprisingly, members from the media.

“Apparently, there are many media persons who are as interested as I am to understand the parameters of honest and fair methods of gathering news. Unlike Ms. Lazaro, they are not A-list TV journalists. Most of them are reporters who go to their beats daily, send out summaries to desks, and file stories before deadlines. These are hard-working journalists who want to know: does the fame and status give Ms. Lazaro the immunity to break journalism ethics and break the law? Does the stature of being a ‘veteran broadcast journalist’ and journalism profession let one off the hook?

“Among journalists, this case will enable the profession to define, in tangible terms, the Philippine Journalist's Code of Ethics, which among others, require journalists to ‘not violate confidential information or material given her in the exercise of her calling" and "resort only to fair and honest methods in her effort to obtain news, photographs and/or documents and properly identify herself as a representative of the press when obtaining any personal interview intended for publication or airing."

“I am a believer of the significant role journalists play in a democratic system. They are the watchmen, protecting us from wrongdoings taking place both in government and private sectors. But even journalists are not infallible. They can have their share of wrongdoings. And when journalists do wrong, how can we – especially private individuals – protect ourselves from them?”

What is interesting in this statement is the claim of Ms. Valencerina to privacy and confidentiality of the communications she had with Chehe Lazaro. What is the private matter or confidential information that Valencerina gave to Chehe Lazaro that is entitled to privacy? The policies of the GSIS concerning the entitlement to benefits of its members who are government employees? Her defense of such policies in reaction to the criticisms or protest of affected GSIS employees? It defies logic that such information - matters of public concern or interest - should be confidential and may only be published or broadcast with permission. Maybe Valencerina forgot about the constitutional principle of transparency in government affairs and the consequent right of the people to information on matters of public concern.

It would have been different if the information broadcast on the Probe concerned intimate or personal details about the life of Valencerina - matters that have no bearing at all with the functions and policies of the GSIS. If such be the case, then I would have no business discussing this matter.

A MATTER OF PUBLIC CONCERN

2009-05-08T08:55:00.000-07:00

It is appalling to see the extent to which a public official would go in preventing, or penalizing, the release of information relating to the policies and functions of her office - information that should be open to public disclosure and scrutiny in the first place. Government Service and Insurance System (GSIS) Vice President Ella E. Valencerina did just that when she charged broadcast journalist Cecilia "Cheche" Lazaro and other ABC-CBN people for violation of Republic Act No. 4200, or the Anti-wire Tapping Act, after Lazaro's phone interview of Valencerina was allegedly aired without the latter's consent on the TV program "Probe" in November of last year.

The phone conversation between Lazaro and Valencerina is about the entitlement policy of the GSIS, which became part of a Probe episode entitled, "Perwisyong Benepisyo." The episode was obviously prompted by complaints against the policy from GSIS members, particularly public school teachers. Under the GSIS's entitlement policy, members can avail of their benefits based only on the amount of premiums paid by them, instead of their length of service in the government. Affected public school teachers are protesting this scheme because, according to them, they have been unfairly deprived of their benefits since the Department of Education, through which their premium payments were being coursed through, has not been regularly remitting payments for them.

Although Lazaro's claim that she sought Valencerina's permission to air the conversation prior to the interview would be her word against that of Valencerina, there apparently being no documented evidence to support it, that should be the least of Lazaro's concerns. What is essential here is that the information given by Valencerina is a matter of public concern and, therefore, is covered by the constitutional right to information. Valencerina was the vice president of GSIS - a government entity that is being sustained by public funds and taxpayers' money - at the time the phone conversation was made. The subject of the discussion concerns the entitlement policy of the GSIS that affects hundreds, if not thousands, of government employees who are members of the program.

The idea that the recording and broadcasting of the Lazaro-Valencerina telephone conversation, without Valencerina's consent, is a violation of the Anti-wire Tapping Act (AWTA) is downright preposterous and shows yet another attempt by a government functionary to curtail free speech. The AWTA only protects against unwanted recording and disclosure of private communications. Let me repeat that, private communications. Any communication made by an incumbent government official concerning the policies and functions of his or her office in response to an inquiry by the public, be they in the media or not, is public and not private communication. There is no expectation of privacy here, especially so in relation to the phone conversation at issue; Valencerina is expected to know that her conversation on a matter of public concern with a known journalist like Chehe Lazaro will be published. This is even more accentuated by the fact that Velencerino is also the head of GSIS's Public Relations and Communications Office.

It is also worth mentioning here that under Section 4 (e) of Republic Act No. 6713, or the Code of Conduct for Public Officials and Employees, public officials are required to "provide information of their policies and procedures in clear and understandable language" and "ensure openness of information." Thus, when Valencerina responded to Lazaro's telephone interview she was clearly acting in the performance of her duties as vice president and communications officer of GSIS. Again, to disabuse the minds of those who will try to seek refuge on the limitations for the disclosure of official information, the information she gave concerns a policy of her agency that affects the entitlement to benefits of several government employees, and not matters of security or personal information of individuals.

Unmasked of its pretentions, the clear purpose of this suit against Chehe Lazaro and company is retribution and attack against press freedom. If Valencerina did not like the exposure of her agency's questionable policy and the airing of grievances against it, the solution is not to attack free speech but to sit down with the stakeholders - whom she is duty-bound to serve - and either defend the soundness of the policy or come up with a mutually acceptable solution. Her action only exacerbated the situation and exposed her pettiness.

PENALTY FOR SINGING

2009-05-05T09:00:00.000-07:00

Philippine concert king Martin Nievera may soon be facing criminal charges for a modified rendition of the Philippine national anthem "Lupang Hinirang" during the opening ceremonies of the Pacquiao-Hatton bout in Last Vegas last Saturday. At first, the National Historical Institute (NHI) criticized Nievera for singing the national anthem with a different cadence, and now it is actually contemplating on filing charges against him for violation of the Flag and Heraldic Code of thePhilippines (R.A. 8491) - which provides among others that the national anthem shall be played or sung in accordance with the musical arrangement and composition of Juan Felipe.

While I am in complete agreement with the NHI that the national anthem is not meant to be interpreted in any way other than its official version, filing criminal charges against Nievera may be a bit too much, if not legally questionable. Artists and singers should rightly be criticized for playing with the tune and melody of the national anthem like it is an ordinary musical piece. To me such practice is an attempt to flourish the song and inject the singer's personality, which is not really necessary and appropriate because a national anthem is a collective representation of a country's people and their aspirations. But to actually criminally charge those who do it is going beyond the bounds of constitutionally protected speech and expression.

It is true that RA 8491 imposes fines up to P5,000.00 or imprisonment of up to one year upon anyone who violates it, such as singing the national anthem differently from Juan Felipe's musical arrangement and composition, but I doubt very much if this could pass muster under the Constitution, particularly the free speech clause. Singing the national anthem with a different tune, cadence or even lyrics may be distasteful, if not disprespectful, but I find it difficult to see how this could present a clear and present danger to the safety and security of the state that the government will have a right to stifle such form of expression. There is simply no overriding governmental interest to protect.

Also, the NHI may have to hurdle obstacles of jurisdiction should it proceed with the filing of criminal charges against Nievera. As we all know, Nievera was in Las Vegas when he allgedly violated RA 8491. Rules on criminal jurisdiction forbid charging a person outside of the court's territorial jurisdiction, unless the rules on extra-territorial application of our criminal statutes apply. I don't think singing the national anthem wrongly outside the country is an instance for the application of such rules.

Instead of threatening artists and singers with the threat of prosecution, the NHI should focus its attention more in educating the public about the value of expressing patriotism through our national symbols and understanding our heritage. This should of course include artists and singers.

OUTLAWING TORTURE

2009-05-01T16:07:00.000-07:00

Just as when torture is becoming a hot-button issue in the United States today with the debate on whether to prosecute Bush officials for their alleged involvement in the torture of terrorist suspects, the House of Representatives recently passed a bill penalizing torture.

The bill entitled "Anti-Torture, Anti-Enforced Disappearance and Internal Displacement of Persons" was introduced by Representative Lorenzo "Erin" Tañada III, grandson of the revered nationalist Sen. Lorenzo Tañada, not only to comply with our treaty obligations under the UN Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), but to strengthen our laws against the cruel and abusive practices of government authorities in dealing with prisoners or detainees.

Commission on Human Rights (CHR) Chairperson Leila De Lima and Representative Tañada have just attended the 42nd session of the UN Committee Against Torture in Geneva to report on the Philippine's compliance with the terms of the CAT. In a clear blow to the government, De Lima revealed during her speech at the session that there are numerous cases of torture being investigated and prosecuted in the Philippines which apparently establish a systematic practice in the country. She also mentioned the CHR's experience in being denied access or visitation to military detention facilities.

The Philippines became a signatory to the CAT in 1987, which under its terms the government should pass enabling legislation to carry out the provisions of the CAT. It is only now, however, that a substantial step is taken to realize our treaty obligation. But again, we are not even talking here yet of a law, since the Senate will still have to act on the matter. At any rate, the bill passed by the Lower House is a positive sign and Atty. De Lima appears to be up to the task of giving meaning to the protection of human rights.

Given the persistent cases to this day of forced disappearances or desaparecidos, extra-judicial killings of media practitioners, torture and other human rights violations, which alarmed even the Supreme Court causing it to institutionalize the writ of amparo (a court remedy to protect a person's personal safety, liberty and security chiefly against acts of government authorities), we need in addition to an anti-torture law an independent government agency like the CHR to be given more powers to address human rights violations with efficiency and dispatch. As it now stands, the CHR is merely an investigative body with no prosecutorial powers and is thus subject to the whims and caprices of the Department of Justice, which we know of course to always toe Malacañang's line.

DISTRICT CONGRESSMEN VS. PARTY-LIST CONGRESSMEN

2009-04-28T15:39:00.000-07:00

This is a supplement to my previous post concerning what I believe is a mistake by the Supreme Court in ruling in Banat v. COMELEC that there will be a corresponding increase in the number of party-list representatives whenever a legislative district is created by law.

To refresh, Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than 250, unless a law is passed changing this number. Section 5(2) further states that the party-list representatives shall constitute 20% of the total House membership including party-list members.

The Supreme Cout in Banat observed that there are currently 220 legislative districts, which means there will be 220 congressmen to be elected from congressional districts (district representatives). To determine the number of seats available to congressmen to be elected under the party-list system (party-list representatives), which under the Constitution shall not exceed 20% of the total House membership, Banat adopted the following formula:

Number of seats available to legislative districts (220) divided by .80, then multiplied by .20 equals the number of seats available to party-list representatives or 55

This formulation was clearly adopted from Veterans Federation Party, et al. v. COMELEC, et al, the pertinent portion of the ruling stating as follows:

"Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total number of representatives including those under the party-list. . . This formulation means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats . . ."

With due respect, I beg to disagree with this interpretation. The phrases “[t]he House of Representatives shall be composed of not more than two hundred and fifty members" in Section 5(1) and "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list" in Section 5(2) of the Constitution unequivocally make 250, as the total number of House members, the determinant in arriving at the number of party-list representatives. It should be borne in mind that the House membership is classified or divided into district representatives and party-list representatives. Thus, when the Constitution speaks of the "House of Representatives," "250 members," and "total number of representatives," it refers to both types of members and not only to district representatives.

The 20% party-list membership would, therefore, have to be based on 250 or any number later on fixed by Congress. To my mind, the view that the creation of a congressional district - which could either be by the creation of a province, a city with not less than 250,000 population, or a reapportionment of legislative districts - will carry with it the increase not only in the number of district representatives, but also party-list representatives is simply mistaken. It loses sight of the fact that a congressional district may only be represented by a district representative or one who is a resident of the district and elected by its constituency. A party-list representative, on the other hand, is elected through the party-list system - an entirely distinct methodology of electing a lawmaker.

A newly-created district necessarily paves the way for the creation of a new congressional seat so that such district can have representation in Congress. A party-list representative, on the other hand, is not necessary since no new constituency is created for such type of representative. Only when a party representing a marginalized or underrepresented sector is registered and voted will a party-list representative be entitled to a congressional seat. And even then, the votes obtained by its party must meet the percentage of votes set by law, the number of allowable representatives from his or her party, and the seat to be created will not exceed the 20% ceiling set by the Constitution. Given this distinct nature of a party-list representative it would be absurd - contrary to the concept of dual type of representation introduced by the 1987 Constitution - to tie the increase in their membership to the creation of legislative districts.

To maintain the 80-20 proportion whenever new provinces or cities with population of at least 250,000 are created, what Congress needs to do is provide a provision for a corresponding party-list seat.

SUPREME ERROR?

2009-04-23T13:24:00.001-07:00

The recent ruling of the Supreme Court in the consolidated cases of BANAT v. COMELEC, G.R. No. 179271 and BAYAN MUNA, et al., v. COMELEC, G.R. No. 179295 has elicited concerns about its constitutionality from some prominent legislators, bloggers, legal and political analysts, which reminded me of an old law school humor that when a lower court makes a mistake in interpreting the law it becomes reversible error, but when the Supreme Court makes the mistake it becomes law of the land.

This, I believe, is what happened in the above-cited cases which we will call Banat for brevity. Although the central ruling of the Court in Banat concerns the formula to be adopted in applying the votes for party-list representatives, which paved the way for an increase in their number from currently 22 to 55, it also created the consequent effect of increasing the members of the House of Representatives in a most questionable manner.

For ease of reference, Section 5, Article VI of the Constitution provides the following:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (emphasis mine)

Notice in the foregoing that the number of members of the House of Representatives shall be 250. These 250 shall be composed of district representatives (those to be elected through congressional districts) and party-list representatives (those to be elected under the party-list system). Section 5(2), Article VI limits the number of party-list representatives to 20% of the total House membership, including those elected under the party-list system. In other words, going by the 250 limit set by section 5(1), there shall only be 50 party-list representatives.

But Banat changed this when the Supreme Court determined there should be 55 party-list seats based on the existing 220 congressional districts. As we know, of course, every congressional district is entitled to one congressman, and since there are 220 congressional districts there will be 220 corresponding congressmen or district representatives. The Supreme Court extrapolated the 55 by following the 20% limitation in section 5(2) in this wise: 220 + 55 = 275. 20% of 275 is 55. In other words, it arrived at this number by choosing one which when added to 220 would become 20% of the sum.

The Supreme Court used 220 as the known value, which is based on the number of existing congressional districts. The implication of this is that whenever new congressional districts are created – which, as observed by constitutional law expert Fr. Joaquin Bernas, S.J., are at present merely incidental to the creation of cities or provinces – the known value increases and more seats for party-list representatives are also created. This will result in an increase in the number of members of the House of Representatives. As clearly pointed out by Philippine Commentary blogger Dean Jorge Bacobo, “every time five new Congressional Districts are created because of population growth, we are now to assume that one new Lower House seat has been created as well and made available to the Party List System.”

What is questionable about this is that section 5(1) clearly limits the number of congressmen to 250, and only a law passed by Congress can change this number by the phrase “unless otherwise fixed by law.” While the creation of a new province could very well satisfy the requirement of a law, since in that case Congress will have to pass a law and such newly-created province, by constitutional mandate, automatically carries with it the creation of a new congressional district and, therefore, a corresponding increase in House membership, the same rule cannot extend to an increase in House membership through party-list representatives. An increase in House membership brought about by the creation of a new province clearly refers only to district representatives as opposed to party-list representatives, because it is based on the creation of a congressional district.

It would be a stretch of the imagination to say that the law fixing the number of House members can be a ruling of the Supreme Court, for while decisions of the Supreme Court form part of the law of the land they are strictly speaking merely interpretations of what the law is. Clearly, the law contemplated in section 5(1) is one that is passed by Congress in the performance of its legislative function.

To quote Sema v. COMELEC, G.R. Nos. 177597 & G.R. No. 178628 (July 16, 2008), which is incidentally also written by Justice Antonio Carpio, “[u]nder the present Constitution, as well as in past Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. . .Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives.” (emphasis mine)

What suddenly made the Supreme Court reverse itself and stretch the rule on increasing House membership via the creation of a legislative district to party-list representatives is perplexing. The following obiter dictum in the Sema case is interesting, especially so that the writer therein is the writer of the Court’s opinion in Banat:

Incidentally, in the present 14th Congress, there are 219 district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces. (emphasis mine)

This observation of Justice Carpio clearly shows that only a law passed by Congress can increase House membership via party-list representatives. In fact, he was even urging Congress then that such law should precede the creation of any new province, obviously to comply with the constitutional requirement that party-list representatives shall constitute 20% of the total House membership.

So what precipitated this sudden departure from the clearly established rule that only a law passed by Congress can increase membership in the House of Representatives? Your guess is as good as mine.

TRASHING THE U.S. CONSTITUTION

2009-04-20T19:32:00.001-07:00

A U.S. soldier watches over a detainee in a prolonged
stress position at the Abu Ghraib prison in Iraq

Sleep deprivation. Starvation. Forced nudity. Prolonged stress position. Water dousing. Slamming on a wall. Enhanced interrogation techniques. Secret detention facililties. These may all sound like straight out of a Robert Ludlum spy novel, but no, these are practices that have been adopted by the U.S. Central Intelligence Agency (CIA) after 9/11 in dealing with suspected terrorists.

It is now official: the U.S. government has authorized the use of torture in interrogating terrorist suspects. This was the revelation made with the recent release of Bush administration memos that outlined and sanctioned the various extra-constitutional methods employed in interrogating terrorist suspects - just a few weeks after a confidential Red Cross report found its way to a journalist's hands which enumerated in gory details these interrogation techniques and confirmed the existence of secret detention facilities abroad being maintained by the CIA, known as "black sites," where terrorist suspects are whisked in secret for the purpose of conducting unfettered interrogations in a practice called "extraordinary rendition."

U.S. President Obama has stood firm by his campaign promises and committment to keep America's ideals and security in harmony by adhering to its values of protecting and promoting civil liberties under the constitution. Just a few days into his office, Obama issued an executive order for the closure in a year's time of the notorious Guantanamo Bay detention facilities (Gitmo) in Cuba; he appointed Leon Panetta - a vocal critic against torture - to head the CIA, who himself has recently ordered the closure of all "black sites" and an end to extraordinary rendition. And now, Obama has authorized the release of Bush administration memos on torture, which got national security hawks and right wingers peddling claims about America's safety being endangered by Obama's actions.

This is yet evidence of another instance in America's history where its constitution has been thrown out of the window under the murky justification called national security. Although Bush administration officials and supporters - mostly from the conservative right - maintain that these interrogation techniques are not torture, their very inhumane nature militates against such claim. In water boarding, for example, where a detainee is laid on his back with his feet raised while his head is covered with cloth, water is poured continuously over the covered face which produces the sensation of drowning. Another example of a reprehensible interrogation technique is deprivation of a detainee's basic necessities - which is accomplished by stripping him naked, starving him for days and depriving him of sleep. Now I don't know what's inhuman if this is not.

Fueled by fear and paranoia as a result of the deadliest terrorist attack on its soil, America has stooped down and disregarded its ideals by resorting to methods repugnant to its constitution. What was once the example and leader of democratic ideals by other countries - such as the Philippines - had gone down a path where individual civil liberties became illusory, at least as far as terrorist suspects are concerned. No matter who the victims are, however, this will not detract from the fact that America's hands were mired in the dirt of human rights violations.

It is hoped that President Obama will remain true to his committment to restore America's fallen image. Even as now, however, doubts are already lingering about his resolve when he declared immunity from prosecution of those involved in torture. Human rights groups took no pause in criticizing Obama's refusal to prosecute those who engaged in or authorized the tortures, accusing him of political expediency. But by releasing the torture memos at the risk of criticisms from conservatives and even the alienation of his own intelligence community, Obama clearly has taken a bold step in righting the wrongs of the past and moving in the right direction. The US constitution just got retrieved from a heap of garbage . . . hopefully for good.

OBSTRUCTION OF JUSTICE

2009-04-19T08:06:00.001-07:00

With the controversy on the shooting of ABS-CBN broadcaster Ted Failon’s wife and subsequent arrest of his employees, “obstruction of justice” is now probably one of the most searched – googled, if you will – phrases in the internet among Filipinos. Even before this incident, however, I’m sure you have heard it mentioned several times already after the 2007 Manila Peninsula Hotel coup when several journalists were arrested for this offense.

The plain objective of PD 1829 is to penalize people who prevent the arrest and prosecution of criminals as shown by the title of the law. Section 1 tells us the different ways how this crime may be committed, but of immediate concern are the prohibited acts attributed to Failon and his employees which are found in paragraph (b) of Section 1. The pertinent provisions are as follow:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

x x x

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

Simply put, Section 1(b) means destroying or messing up anything that might furnish evidence for the arrest and prosecution of criminal suspects. As applied to Failon and company, they are being charged under this section for cleaning the bathroom where Failon’s wife was shot; for corrupting a crime scene. The theory is that by cleaning the bathroom investigators were prevented from collecting evidence that would help them identify, arrest and prosecute the offenders.

To be liable for this crime, however, the law requires a particular state of mind or what lawyers call the mens rea. It is not enough that the prohibited act was committed; the act must be accompanied by a particular state of mind. The offense, as defined, requires the doing of the act with a guilty mind or criminal intent as opposed to one being penalized only for reasons of public policy – an offense where a person would be held criminally liable by merely intentionally and voluntarily doing the prohibited act, such as illegal possession of firearms. Obstruction, in contrast, cannot be committed by the mere intentional and voluntary commission of any of the prohibited acts in Section 1 for it requires a specific criminal intent.

The word “willfully” in Section 1 clearly indicates this, which means there was awareness that the act performed was of a particular nature or knowledge that the act will necessarily or very likely cause a particular result. In other words, the suspect knows that his act of destroying, concealing or corrupting evidence will prevent or delay or very likely prevent or delay the arrest and prosecution of a criminal suspect.

Specifically, the mens rea in paragraph (b) is the intent to impair the authenticity, legibility, verity or availability of the evidence in a crime. Applying this to Failon and company, it must be proven that their intention in cleaning the bathroom was to remove or destroy anything that might provide evidence against whoever was responsible for the shooting of Failon’s wife.

Thus, if it could be proven that the scene of the incident was cleaned for sanitary purposes or to remove traces or memory of the tragic incident the mens rea required would be lacking. Given the claim of suicide by Failon, it would not be out of the ordinary that the bathroom would immediately be cleaned. It is very likely and reasonable for someone to want that part of his house where a family member has just committed suicide to be cleared and removed of the traces of the incident, as obviously no one would want to keep seeing such a gruesome scene.

By the way, one of Failon’s employees already explained that the reason why the bathroom was immediately cleaned is to prevent Failon’s daughter from seeing the blood; apparently to protect her from witnessing such horrifying scene.

Another important consideration is the necessity of the existence of a crime. As noted earlier, the purpose of the law is to prevent obstruction in the arrest and prosecution of criminal offenders. Liability is premised on the commission of a crime and preventing or obstructing the authorities in investigating, identifying, arresting and prosecuting whoever is responsible for that crime. The sentence “in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases” in paragraph (b) of Section 1 clearly shows this.

Until now, the police are still in the dark as to whether the shooting of Failon’s wife is suicidal or homicidal. They have yet to make a definitive determination on the matter. If the shooting turns out to be suicidal, no crime was committed. There being no crime there would be no obstruction of justice to speak of, as then who would the suspects be protecting from arrest and prosecution? The raison d’etre for the crime of obstruction would simply not be there.

In Ilusorio v. Ilusorio, et al, G.R. No. 171659 (Dec. 13, 2007), the petitioner therein filed charges against the respondents for robbery and qualified trespass to dwelling. She also charged them for obstruction of justice on her claim that they destroyed or corrupted the evidence for robbery and trespass. The Supreme Court ordered the dismissal of the obstruction charge against the respondents – as inevitable and necessary – after finding no basis for robbery and qualified trespass to dwelling. Since the court found no underlying crimes there was no basis for the obstruction charge.

Having said this, I was surprised when Sr. Superintendent Elmo San Diego, head of the Quezon City Police District (QCPD) which is investigating the Failon case, said during a press conference that even if they found Failon’s wife’s shooting to be suicide that would not mean there would no longer be criminal liability for obstruction of justice. I thought it was only his head of criminal investigation, Superintendent Mabanag, who was ignorant when he said no warrant is necessary for arrests under PD 1829. If it was suicide what crime Failon and company were supposedly preventing from being investigated, and who were they supposedly protecting from arrest and prosecution? San Diego is clearly equally clueless about what he is saying.

A GROSSLY MISINFORMED COP

2009-04-17T11:09:00.000-07:00

I mentioned in my previous post how the police made a mess with the arrest of ABS-CBN broadcaster Ted Failon's driver and three house helpers in connection with the shooting of his late wife, Trinidad Arteche-Etong. As it is, public outrage not only from the Failon family but from public officials and other observers rained on the Quezon City Police District (QCPD) for the brusque and cavalier manner with which its personnel carried out the arrest of Failon's employees, which resulted in an immediate backlash with the relief of the cops involved.

Luckily, however, the sacked policemen's superior Chief Superintendent Franklin Mabanag came out of the incident unscathed despite his clear involvement in the fiasco and clear command responsibility. In one of the coverages by ABS-CBN's TV Patrol news on the arrest of Failon's employees, Mabanag was seen arguing with Failon's lawyer about the questionable arrest. When the lawyer asked Mabanag if the police have warrants for the four's arrest, Mabanag curtly replied that the four were arrested for violation of PD 1829 (law on obstruction of justice) for which arrest warrants were not necessary. Yes, you heard that right lawyers out there, Mabanag boldly declared that an arrest for PD 1829 requires no warrant.

Now, I am wondering where the heck Superintendent Mabanag got that ridiculous and grossly misinformed statement. I have yet to come across a law, a rule of procedure or jurisprudence - let alone an amendment to the Bill of Rights of the Constitution (it is true that cha-cha is being cooked but congress has yet to finalize it) - which says that little understood Marcos-era law has been added as one of the instances of a warrantless arrest under Section 5, Rule 113 of the Revised Rules of Criminal Procedure. For emphasis, again let me enumerate (this time verbatimly) the instances of a valid warrantless arrest under Section 5, Rule 113:

"Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. x x x"

Clearly, there is nothing in the foregoing that includes PD 1829 as an exception. One would also search in vain the provisions of PD 1829 and will find nothing that says an arrest under this statute requires no warrant. Besides, even assuming that PD 1829 says something to that effect, it would have been rendered unlawful already by the 1987 Constitution.

Philippine National Police Chief Versoza should immediately order the relief of Superintendent Mabanag as head of the QCPD Criminal Investigation Division and send him back to schooling to learn the rights of an accused person and basic criminal procedure. Better yet, Mabanag should act honorably by acknowledging his inexcusable mistake and voluntarily step down as an officer and a gentleman.

FLAGRANT VIOLATION OF LAW

2009-04-16T13:20:00.000-07:00

I don’t know why the police keep violating the protocols established by law in carrying out their duties, especially the constitutional protections accorded each individual suspected of a crime. Is it lack of training, forgetfulness, comprehension or plain disregard for the law borne of a cavalier attitude – nurtured by that Maoist principle that power comes from the barrel of a gun?

Whatever the reason is, the plain fact is that the police never seem to learn from their mistakes in disregarding constitutional safeguards that only make criminal defense attorneys too happy in taking the cases of their clients and arguing for the dismissal of the charges against them on constitutional grounds – never mind the evidence, however overwhelming it is, for when the court finds the police violated the suspect’s constitutional rights in obtaining evidence against him, such evidence becomes useless.

This again is shown in the arrest on Thursday of ABS-CBN broadcaster Ted Failon’s driver and three house helpers in connection with the shooting of Failon’s wife last Wednesday. Despite frantic protestations from the arrestees’ lady lawyer about the absence of warrants of arrest, the police proceeded with the arrest in haste by collaring, handcuffing and herding the arrestees into their patrol cars, as if they were dangerous criminals.

By the way, the police later on issued a statement saying that the four were not arrested but merely invited for questioning. But no amount of spinning will detract from that fact that these hapless individuals were arrested, however the police would like to characterize it. Clearly, the four were not free to decline the “invitation” since they were collared and even handcuffed as they were led into the patrol cars. Those were clear indications of restraint on the arrestees’ freedom of movement.

Article 3, Section 2 of the Constitution declares in no uncertain terms the right of every person against unreasonable seizure to be inviolable. This constitutional protection is bolstered by the Rules on Criminal Procedure which requires every arrest to be accompanied by a valid warrant issued by a judge and enumerates limited instances when a warrantless arrest may be valid, namely: (1) when, in the presence of a police officer, the person to be arrested has committed, is actually committing, or is attempting to commit a crime; (2) when an offense has just been committed and the arresting officer has probable cause to arrest; and (3) when the person to be arrested is an escaped prisoner or detainee.

Since Failon’s driver and house helpers were arrested without warrants, their case should fall under the exceptions enumerated above for the arrest to be legal. The arrest, however, does not fall either under number (1) or number (3). The police were not present at the house of Failon on the Wednesday morning that his wife was shot; they did not witness the clearing or attempt to clear a possible crime scene. The police effected the arrest only on Thursday. Obviously, the four are not fugitives from justice.

Likewise, the police had no probable cause to arrest them based on number (2) because it is not yet established that a crime of obstruction of justice was in fact committed – that is only a belief being entertained by the Quezon City Police District (QCPD) – nor were the police with personal knowledge of facts or circumstances that the arrestees committed the alleged crime. The police were only drawing their conclusion that the arrestees could have been the ones responsible for the clearing of what could be a possible crime scene simply because they were under the employ of Failon. This is not the probable cause required by law.

Take note, it is not even established yet that there was a crime committed, since Failon’s wife could have committed suicide. If there was no crime how could there be obstruction of justice?

Clearly, the police acted in haste and without putting much thought into what they did. While zealousness in the performance of a public duty is commendable, respect for the law and rights of others is equally important. If the police do not want to be accused of inaction, if that is what impelled them to take hasty moves, they could have filed charges before the appropriate court or prosecutor’s office for a proper determination of possible culpability of their suspects. It’s not like by the time the police have secured warrants the suspects would have fled already; there is clearly no such exigency in this case.

What is sad in this is that even in cases where the police have correctly pinpointed the culprits in a crime, the suspects go scot-free because of the constitutional short-cuts taken. One need only survey the multitude of cases that reached the Supreme Court to see that skirting the requirements of the law in exchange for a quick arrest does not really serve the police well. By doing this the police are only making a mockery of themselves.

THE POLITICAL LEADER CALLED JESUS

2009-04-09T18:17:00.000-07:00

While most people see Jesus as a religious leader- a savior - it is undeniable that Jesus was also a political leader of his time. Palestine, as present-day Israel was known during Jesus's time, used to be an occupied province of the Roman Empire, which was then divided into Galilee and Judea. It was then being administered by the ruthless and disciplinarian Pontius Pilate with the cooperation of Jewish puppets like King Herod and the religious elite - the Pharisees.

During the time of Jesus, the Jewish people were under the oppressive rule of the Romans. To make matters worst, their own leaders curried favors with the Romans to remain in power and religious leaders engaged in lavish lifestyles out of the taxes they exacted from the people, in addition to what Rome demanded. Poverty was massive and the Jews were restive of their unfortunate lot.

This made the Romans particularly strict in maintaining peace and order in their occupied territory. They saw to it that any dissent, or what they perceived to be as one, is promptly suppressed, such as the arrest and beheading of John the Baptist when he started attracting massive following out of his teachings on repentance and baptism.

Enter Jesus of Nazareth. Son of a carpenter or a mason, as some historians speculate, Jesus grew up as a poor boy in a small village where he saw poverty everywhere. This, historians believe, might have been one of the major reasons why Jesus grew up to advocate for the poor that infuriated those in power and led to his crucifiction.

Jesus introduced revolutionary ideas that ran conter with the conventional wisdom of the time. He brought hope and promise of a better life to the poor that gained him mass following, which made the Romans and religious elite uneasy. While the message of Jesus was spiritual in nature, such as by promising to the poor the Kingdom of God, everlasting life, love for one's enemies, those in power saw his growing ministry as a threat to them - an erosion of Roman political authority and religious influence of the Pharisees.

In a real sense Jesus was a political leader because he espoused ideas that run counter with the estabished order. The line between religion and politics was blur during those days; in fact Jerusalem, then considered a religious mecca for Jews, was the center of both religious and political power. But unlike most political leaders who went against the establishment, Jesus did not advocate the overthrow of the government nor called on the people to rebel against the Pharisees. He did not call for civil disobedience, rather he asked them to give what is due to Ceasar. He even proclaimed that he did not come to destroy the law but to fulfill it. But those in power thought otherwise.

However the Romans and Jewish religious leaders viewed Jesus, his teachings endured and spread like wildfire that even his death and the passage of time could not contain. The irony is that the Roman empire - under whose power and authority Jesus was executed - eventually embraced his teachings and adopted Christianity as its official religion. Today about two billion people, around one-third of the world's population, are Christians. Amazing how a poor boy from a small village could become the center of a world religion.

40 YEARS OF INSURGENCY

2009-03-30T12:01:00.000-07:00

The New People's Army (NPA) - armed wing of the Communist Party of the Philippines (CPP), which has been waging an insurgency war in the Philippine countryside - turned 40 last Sunday. Despite decades of waging war against government forces in the hinterlands, however, it is doubtful if the CPP and NPA would ever take power in the Philippines.

If there was a moment in our history that the revolutionary movement could have taken power, it was during the Marcos era where repression and iron-clad totalitarianism ruled the country. History tells us that revolutions - whether bloody or peaceful - find opportune moment and achieve great success whenever the people suffer great oppression in the hands of the government. The moment of success was especially ripe during the EDSA uprising, but the CPP and NPA were nowhere to be found. They failed to galvanize the masses into action and take over the reins of power.

It may be argued that had the NPA taken action, the country would have been plunged in bloody civil war. But is this not supposed to be the ultimate objective of an armed revolutionary movement? To seize power through violent means? Truth is, the NPA - and the revolutionary movement in general - is still ill-equipped and lacking in mass support to morph into an offensive force that can threaten the government out of power like the Sandinistas of Nicaragua that overthrew Anastacio Somoza in 1979 or Fidel Castro's revolutionary movement that ousted the dictatorial government of Fulgencio Batista from power in 1959.

The Filipinos, as a people, are still not keen on the idea of a communist take over of our country. To be sure, there are still extrajudicial killings of activists and opposition leaders attributed to certain government elements and corruption in the government is still massive, but these still do not rise to a level as rampant and flagrant under the Marcos regime that provided the receipe for a rebellion. Not yet at least.

But even if they do - which I hope not - the communist revolutionary movement will still find it difficult to make relevance to a population that will surely find mainstream leaders who will make them rise up against an oppressive government, short of waging a bloody revolution. And even when armed struggle becomes an option, the one that will find support will be coming from the right rather than from the left; by revolutionary leaders and soldiers in the military establishment. Our history clearly shows the military has been a decisive force in regime changes.

That is only the political aspect. On the military aspect, the old communist strategy of a protracted war that starts in the countryside then gradually spilling into the centers of power does not appear to be working for the CPP-NPA. Our experiences in regime change show that immediate take over of the centers of power appear to be the most efficacious means of effecting a take over of the government and consequently the country. For this to work, however, a massive force and firepower is required. Obviously, the CPP-NPA is still not ready for this type of military operation. Not only will it find it difficult to generate mass support for the reasons already mentioned, but it will be overwhelmed by a strong military opposition. The communist rebels are still not capable of engaging the military in a face-to-face confrontation, reason why after several years in the moutains they are still waging a guerilla warfare.

As an indication of its outmoded propaganda strategy that all the more makes it irrelevant to the country's political landscape, the CPP's congratulatory message to the NPA contained the following misleading statement: "The new chieftain of US imperialism [Barack] Obama has followed the path of [George W.] Bush in endorsing the brutal military policy of the Arroyo regime by justifying it as antiterrorism."

With his hands tied between two wars that is draining the US economy and testing the patience of Americans - not to mention the gargantuan economic problems facing the US - US President Obama could care less what President Arroyo's military policy is. Obama did not even give her as much as a greeting or a smile when she recently visited Washington, D.C. And during US Secretary of State Hilary Clinton's Asian tour, which is a reaffirmation of US interest in the Pacific region, the Philippines was not even important enough to be within her itinerary. With the pull out of US military bases from our country, we have become far off the radar of the US; its interest in our country now is nothing more than ensuring that we do not become a breeding ground for terrorists. Clearly, the communist movement is running out of ideas to shore up its waning insurgency campaign.

By failing to capture the seat of power in the darkest days of our history, it would even be more difficult now for the CPP-NPA to generate mass support and achieve its revolutionary objectives. Its armed cadres will be but roving patrols in the countryside who may occassionally see action in chance encounters with the military, but with no real chance of taking over the reigns of power in the country.

PACQUIAO - A COLLATERAL DAMAGE

2009-03-27T08:58:00.000-07:00

It is saddening that the so-called "People's Champ," Manny Pacquiao, almost embroiled himself in a legal battle with Solar Films or ABS-CBN just a little over a month before his much awaited bout with "Triggerman" Ricky Hatton this coming May. If any, it must be the continuing public support and upcoming fight of Pacquiao that have stayed the hands of either company in pursuing a legal action against him. Besides, it would be bad publicity.

Despite the unfavorable opinions Pacquiao got from some commentators and sports writers about his attempted break away from Solar Films and failed partnership with ABS-CBN for the exclusive coverage of his fight with Hatton, I am still inclined to give Pacquiao the benefit of the doubt. Without meaning to put down Pacquiao, the man never really got a decent education, let alone a training in the intricacies of contract law. Even top executives with MBAs from well-known universities constantly seek the advice and guidance of their lawyers in contractual matters, which brings me to the point I would like to make. Manny Pacquiao would not have broken his contractual obligation with Solar Films were it not for the advice of his lawyers.

It does not take a lot of thinking to understand that Pacquiao has been in the thick of a gruelling training for these past few months in preparation for his fight with Hatton. As would probably be the case during this period, the legal, administrative and marketing aspects of his career would normally be taken cared of by his support staff. I do not pretend to know the way things work at the Pacquiao camp, but I would surmise this is pretty much how they would be done. Pacquiao, therefore, would rely heavily on his people to address these other concerns. Meantime, he would concentrate on his training.

It is safe to assume that Pacquiao, occupied with his training, has relied on his lawyers about the propriety of breaking his conract with Solar and inking another one with ABS-CBN. Whether it was someone from ABS-CBN who urged him to form a partnership with the network and whether this network's lawyers advised him of loopholes in his contract with Solar, ultimately Pacquiao would have to ask his lawyers if such move could be done. To say that Pacquiao's lawyers made a mistake for letting him get into a legally questionable transaction is putting it mildly. Screwing up is more like it, and for this firing them and getting competent ones should seriously be considered by Pacquiao.

As I write this, it seems though that Pacquiao continues to employ the same incompetent staff that he has, for he continues to make public statements that serve no purpose but stoke the fire and keep it burning. The best thing for him to do is to keep quiet about this already and concentrate on his training. Focus on the upcoming fight and let this fiasco die down.

It is obvious in all these that Pacquiao has been caught in the ugly ratings war between GMA and ABS-CBN. Pacquiao has an existing contract with Solar for a block time coverage by GMA of his match with Hatton. ABS-CBN is clearly envious as such coverage will command huge viewership both in the Philippines and abroad. Even assuming that it was Pacquiao who approached ABS-CBN, the latter was duty-bound to do a due dilligence review of Pacquiao's contract with Solar before inking a deal with him. Now we do not know yet if indeed the Pacquiao-Solar contract suffers a defect, but with Pacquiao backing out of his deal with ABS-CBN just a few days after and honoring his committment with Solar, this tells us that the contract might be rock solid.

In its bid to outdo its fiercest rival, ABS-CBN failed to exercise propriety by immediately jumping into an agreement with Pacquiao. Never mind the collateral damage.

A DANGEROUS COUNTRY FOR JOURNALISTS

2009-03-24T09:18:00.000-07:00

Slain body of Badrodin Abbas, a local
radio commentator in the South who was
killed by unidentified gunmen early this year.
(photo from http://www.esic.org/ )

The recent listing of the Philippines as the most dangerous peacetime country for journalists in the so-called impunity index of the New York-based Committee to Protect Journalists (CPJ) is another huge setback to our country's reputation in the international community. When it comes to negative ratings, sadly the Philippines is always among the topnotchers.

But we are not concerned here about reputations only. More importantly, we are concerned that our country continues to slide down from a civilized path, where the reign of terror tightens it clutches as one journalist after another suffers violent death. The killing of journalists is without a doubt a tool to silence the media and stifle press freedom; those who orchestrate the killing of media men want their dastardly acts to serve as object lessons to other journalists that criticisms or other negative publicity against them will only have fatal consequences.

According to CPJ, there are 24 unresolved murders of journalists for the past ten years in the Philippines that makes it the sixth most dangerous country for media men. The other top five countries in the list are Iraq, Sierra Leone, Somalia, Sri Lanka and Columbia - countries which have been in armed conflict for years. The saddening fact is that, compared with these countries, the Philippines is not in armed conflict as these countries are. Sure, we continue to wage a fight with communist rebels in the countryside and Moro Islamic rebels in the South, but these conflicts do not rise to the level that these other countries are in, aside from the fact that the killing of journalists in our country are not related to these problems.

The culture of violence in our country continues to propagate because, as observed by the CPJ, killers ply their nefarious trade with impunity by evading arrest, escaping prosecution or avoiding conviction - which speaks a legion about the ineptness of our criminal justice system, that includes our law enforcers, prosecutors and the courts.

In trying to parry the blame on the government for this alarming situation, Press Secretary Cerge Remonde accuses journalists of partiality or partisanship in their work. He said that journalists lack objectivity and end up becoming spokespersons of politicians. Assuming this to be true, does that mean that those who are opposed to politicians being catered by journalists or hurt by the views of the biased journalists are justified in killing them? Is it now suddenly the fault of these journalists that they are dead? Come on, Mr. Secretary. I'm sure you could say someting better than this. This may not be the intended meaning of your statement, but the way it is worded it surely conveys such an insensitive meaning and reflects badly on your qualifications as a press secretary.

Besides, in several developed countries the media is openly partisan by favoring one political party over another or reporting along certain ideological lines. Rupert Murdock's Fox News, for example, is openly conservative and does not mince words in attacking President Obama and the Democrats, as does MSNBC in taking on liberal views and criticizing Republicans. But are the lives of the journalists or reporters of these news networks ever in peril? And how about political journalists, such as radio and TV commentators, whose job is to air their comments or views about current political issues. Do they not become necessarily biased by taking a particular position?

The danger in the Philippines is that there is so much lawlessness because a lot of criminals don't get apprehended or even if they do, the wheels of justice grind so slowly that the effectiveness of the justice system is seriously compromised. Add to this are corrupt prosecutors and judges that allow these malefactors to walk. Oh - and I forgot to mention - life is so cheap in the Philippines that for as low as P5,000.00 one can hire an assassin. Lest I be misunderstood, I do not relish saying these awful things; I say them with dread and great concern at how deep our country has fallen on the precipice.

It does not take a rocket scientist to figure out how this alarming problem can be solved. The answer is right in front of us: an effective criminal justice system, which means a clean police force that is efficient in crime solving, a prosecution service in the caliber of Patrick Fitzgerald that respects no holy cows in extending the arm of the law to wrongdoers, and courts that swiftly administer justice and are impervious to corruption.

Indeed, these are things easier said than done, but they are achieveable for others have approximated, if not fully accomplished them. Now, if our leaders are not up to the task - which is apparently the case now - then they have no business governing.

NICOLE'S VERSION OF HELEN OF TROY

2009-03-19T10:47:00.000-07:00

The other day, Umagang Kay Ganda's Anthony Tabernas made an interesting analogy about Suzette Nicolas's, "aka" Nicole, action in accusing US marine lance corporal Daniel Smith of rape. He compared her to Helen of Troy who, by leaving her husband King Menelaus and following Paris, ignited a war between the Trojans and Acheans in what came to be known in Greek mythology as the Trojan War.

In certain ways, Nicole became a sort of Helen of Troy by becoming the center of a controversy that almost strained the relationship between the Philippines and the United States. If you will recall, Nicole accused Smith of raping her while the latter was participating in joint military exercises between Philippine and US troops pursuant to the Visiting Forces Agreement (VFA) between the two countries.

To make a long story short Smith was eventually found guilty. This is where all the controversy started. While Smith was detained in a city jail awaiting the result of his appeal, he was whisked away to the US embassy in Manila by virtue of an agreement between Philippine and US authorities, known as the Romulo-Kenney Agreement, purportedly in compliance with the provisions of the VFA. This created a huge uproar, not only from Nicole's side, but from political leaders and groups who saw this as a denigration of Philippine sovereignty.

Groups opposed to the VFA saw this as an opportune moment to revive calls for the scrapping of the agreement and promptly filed a case with the Supreme Court by questioning anew the constitutionality of the VFA. Although the High Court's decision fell short of petitioners' expectation with the affirmation of the validity of the agreement, it was nevertheless ruled that the Romulo-Kenney Agreement was not in accord with the terms of the VFA and directed - or should I say advised - the US and Philippine governments to agree on the detention of Smith by Philippine authorities. No one knows what happened to this supposed agreement, as Smith continues to remain on the premises of the US embassy in Manila.

Imagine the controversy and division sparked by this case of Nicole. It almost strained the relationship between the Philippines and the US with the threat of abrogation of the VFA, and angered a lot of us with the kowtowing of our leaders to US wishes. Many have fought to help Nicole secure the justice she sought. And all of these went for naught with the sudden and unexpectated recantation of Nicole's testimony that she was raped by the American marine.

Indeed, Nicole trifled with the courts and made a mockery of the legal system, and betrayed the efforts of those who fought for her with this questionable turn-around. She had effectively perjured herself by swearing to testimonies bearing conflicting versions. And most reprehensible, she lied to the Filipino people, not to mention the deprivation of Smith's liberty - if indeed she was not raped.

ASSAULT IN A POLICE PRECINCT

2009-03-16T20:12:00.000-07:00

What happened last March 14 at the Batasan Hills Police Station 6 in Quezon City - where a DZMM reporter and two ABS-CBN newsmen were assaulted by three people who were then filing a complaint against a neighbor - is reflective of the disturbing culture permeating our police force.

It all started when DZMM reporter Dexter Ganibe was attacked while making his regular rounds at the police station, presumably to gather news. ABS-CBN cameraman Benny Ganelo, who happened to be there, saw the incident and attempted to cover it, but was prevented from doing so when he was also attacked by being punched and stabbed in the stomach with a ballpen. The daring lady assailants even wrecked his video camera and snatched the tape.

All these happened inside a police precinct right under the noses of the police. So what were the police doing and why did they allow this incident to happen? A certain police inspector Alex Alberto offered a lame and pathetic excuse by saying that since the assailants were women they were reluctant to intervene for fear of touching their sensitive parts that would become the source of controversy. Can you believe this? The first and foremost consideration for every policeman should be the safety of the citizen he is duty-bound to protect and that duty must be discharged regardless of the gender or status of the assailant. What if the attack went beyond mere infliction of physical injuries and escalated to a more serious level?

A police station should be the least of all places where a citizen is likely to be victimized by criminal assault. To serve and protect the public has always been - and should always be - the guiding principle of our police force. The police are there to prevent crimes and ensure our safety, but what happens when even the police cannot live up to this standard like what happened in the ABS-CBN newsmen incident? The public's confidence in the police as the protector of the people gets eroded.

We should not brush this aside as an isolated incident. I'm sure we have all been witnesses to cases of crime victims being allowed to beat, assault or attack suspects while in police custody. These things happen while the police are watching or even handling the suspects, as if they are being entertained by the victims' outrage. Even worse, sometimes it is the police themselves who beat their suspects to a pulp.

Needless to say, even criminal suspects deserve to be protected from physical harm and any assault against them is no less a crime. Besides, these people are still suspects who, in most cases, have not even been charged in court yet - let alone adjudged guilty. Every citizen, no matter how circumstanced, should find safety at the hands of the police. Instead of fearing their presence, the police should provide comfort; comfort in the thought that their presence protects us against criminal elements and those who want to do us harm.

With the involvement of our police force in manifold controversies ranging from corruption to rub-outs, our confidence in them continues to decline so much so that we cower instead of finding comfort in their presence. To be sure, there are still good policemen out there, but this disturbing culture of malfeasance among the rotten is also pulling them down and threatens to soil their reputations unless something is done to stop this malady. Even more worrisome, a distrustful public creates the danger of experimenting with its own version of law enforcement.

THINGS TO BE WARY OF POLL AUTOMATION

2009-03-13T10:19:00.000-07:00

Two days ago, Jonah Goldberg, director of National Campaign for Fair Elections of the Washington, D.C.-based Lawyers Committee for Civil Rights Under Law, testified before the US Senate Committee on Rules and Administration in regard to the problems besetting US elections. He drew largely from the experiences and observations of hundreds of legal volunteers across the US who participated in the program called Election Protection - headed by the Lawyers Committee and launched in 2001 and every US elections thereafter to assist voters in the voting process. I was fortunate to join this program during the last US presidential election.

Based on the information culled by Goldberg's group, the major problem that crops up every election in the US, including the one in November of last year, is voter registration. According to Goldberg, the voter registration system in the US is antiquated and is the major cause of voter disenfranchisement and delays in polling places. A lot of voters were not able to cast their votes because their names were missing from voters registration lists, and poll workers were forced to sift throught their records on election day to find these missing names that caused much of the long lines during the last election, but to no avail.

Another problem that was encountered, which accounts for one-tenth of the recorded problems, had to do with breakdown of voting machines. Servers in other polling places have crashed, machines malfunctioned or broke down, and there were no available on-site technical support to immediately address these problems.

This should be a stark warning to us as we gear toward the automation of our elections in 2010. Sen. Francis "Chiz" Escudero was not merely making political sound bites when he said that he has no problems with poll automation, but that we should see to it that we have a reliable registration of voters. In fact, even before R.A. 9369 - our election automation law that was passed in 2007 - voter registration has always been problematic. Aside from voters' names missing from the rolls, there are double or even multiple registrants who are able to vote several times in different polling precincts, and the specter of dead voters rising from the graveyards to cast their votes.

COMELEC should also look into the very real problem of voting machines shutting or breaking down on election day. This will become especially true in far flung areas where there are no technology infrastructures in place. If in the US - where most cities are unquestionably technologically fitted - they are still not immune from computer glitches, what more in our country where most of our localities are still strangers to modern technology?

2010 should be a very lucrative year for IT people who will surely be in high demand in the coming computerized elections, for the automation law itself requires the Board of Election Inspectors to be staffed by a trained computer specialist so that a technician will be handy onsite should problems occur, as i'm sure they will. It is only hoped that we have enough people, not to mention the funds, to fill this need.

Finally, I agree with legislators who are calling for the passage of a companion law to the recently passed poll automation budget. As R.A. 9369 now stands, it has provisions that seem to conflict with an automated election. Curiously, it still provides for manual counting of votes by retaining the system in past elections, as provided in the Omnibus Election Code, while at the same time it authorizes the COMELEC to conduct computerized elections which will automate not only the voting but the counting as well. How will they reconcile these conflicting provisions?

Likewise, there is nothing in the automation law that states the basis for a manual counting or recount. If you will recall, the recent senatorial race in Minnesota between Saturday Night Live comedian Al Franken of the Democrats and Norm Coleman of the Republicans ended in a hand recount when the results of the computerized count turned inconclusive, several absentee votes were alleged to have been improperly excluded, and votes were not properly cast. The Minnesota experience serves as an object lesson in voting problems associated with automated voting and counting.

COMELEC is clearly in favor of using the Optical Mark Reader (OMR) system of voting machines, which counts and records votes by reading ovals opposite candidates' names that have been shaded by voters to indicate their votes. The Minnesota experience shows that voters can get lost following instructions as several ballots unrecognized by the OMR machines turned out to be improperly accomplished, such as crossing or checking the ovals instead of shading them or shading them incorrectly. Take note, these are middle class natural-born English speaking voters we are talking about.

I favor an automated election because it is fast, easy, convenient and less prone to cheating. But Congress and the COMELEC should see to it all the safeguards are put in place - and promptly at that as the 2010 elections are fast approaching - to ensure what we have always been dreaming of as a clean, honest and fair election. Let us not automate for the sake of automaking. If we can't do it come 2010 because of our unpreparedness, let's take it easy and wait for the succeeding elections because lack of preparation spawns the opposite of the benefits in an automated election. An ill-prepared automated election is something election fraudsters are only too happy to have.

FAILURE OF REGULATION

2009-03-09T10:09:00.000-07:00

If Legacy president Celso Delos Angeles, who is alleged to have bilked millions of pesos from his pre-need company prejudicing hundreds of plan holders and investors, is following the footsteps of Bernie Madoff - who himself has defrauded investors in billions of dollars - our Securities and Exchange Commission (SEC) seems to be following also its couterpart agency in the United States in failing to heed signs of investment fraud that lead to catastrophic losses. Our SEC is, after all, patterned after the US.

The testimony of SEC officials during the recent Senate investigation on the state of the pre-need industry in the country is most revealing. Director Aquino of the SEC Non-traditional Derivatives Department, the department that directly regulates pre-need companies, revealed that Delos Angeles's license renewal application was delayed - filed only in March when the rules require it to be filed in November - due to failure to comply with several requirements, chief among them is the maintenance of a set amount of trust fund to answer for plan holders claims.

Pressed by Senate President Enrile's questioning, Aquino admitted that he did not bother to inquire as to what beset Legacy for its failure to promptly meet the requirments and seasonably file its application for renewal of license. It was also revealed that despite Legacy's failure to comply with other important requirements its license was nevertheless renewed.

SEC Commissioner Jesus Martinez, head of the oversight committee on pre-need that supervises the work of Aquino, appears unaware of this situation. Neither is SEC Chairperson Fe Barin. To top it all, Commissioner Jesus Martinez, supposed to oversee the operations of pre-need companies - or of the SEC departments monitoring them, if that is how he wanted his oversight functions to be characterized, was found to have been in constant personal contact with Delos Angeles whose Legacy company is supposed to be under the supervision, regulation and monitoring of the SEC. By the way, Martinez denied he ever had communication with Delos Angeles and Legacy's officers prior to the Senate investigation. He would later on claim that his contacts with Delos Angeles consisted merely of sending daily biblical text messages spanning a period of one year. Interesting.

But what gets even more interesting is the claim of former top Legacy officials that Legacy (1) purchased an expensive Ford Expedition from Martinez's son and (2) purchased a house for Martinez in the sum of P5 million. And yes, Martinez saw nothing wrong with that.

Not only were issues of corrupt practices and unethical conduct surfaced in this investigation, but also issues of gross negligence in the performance of duties of the SEC as an agency tasked to guard against investment and corporate fraud, and the protection of the investing public. Senator Biazon was right in saying that this Legacy mess falls squarely on the shoulders of Chairperson Barin, who failed to see the direction Delos Angeles's company is taking and to prevent the syndicated divestment of plan holders and investors' money. She may claim that she did not see this coming, but this all the more makes her incompetent and undeserving in retaining her post because the very reason why her agency was created is precisely to guard against this type of problem.

Clearly, there was failure of regulation. If Chairperson Barin was merely following the footsteps of her agency's counter-part in the US, perhaps she should also follow what its leaders did: step down from office. That goes the same for the other commissioners and enforcement officers who failed to protect the interests of the investing public they were sworn to protect.

Meanwhile, it will do our legislators well to focus more on the legislative aspect of the problem and stop acting like prosecutors or trial lawyers in the investigation they are conducting. It is a waste of taxpayers' money and time for them asking evidentiary details which are better reserved for our prosecutorial agencies like the DOJ and the Ombudsman. Their primary purpose in conducting investigations is to aid legislation; find out where the regulation failed so that measures can be instituted to prevent similar occurences in the future.

As for Delos Angeles, I hope he does a Bernie Madoff again by pleading guilty. Madoff just pleaded guilty to the charges against him which could put him behind bars for 150 years. This is, however, wishful thinking. Clearly, Delos Angles is without remorse for he even had the temerity to lash back at the senators who are investigating him by accusing them of engaging in political grandstanding, and for belittling the poor plan holders who confronted him during the investigation. This guy is something.

PRIMER ON POLL AUTOMATION

2009-03-06T09:56:00.000-08:00

Photo from http://www.happening-here.blogspot.com/

Poll automation is the buzzword for the coming 2010 elections. To better understand the issues - which are not few - and give our two cents worth, we should first educate ourselves what this poll automation or computerization of the elections is all about.

On January 23, 2007, Republic Act No. 9369 was signed into law. The complete name of the law is too long so let's just call it the election automation law. This law authorizes the Commission on Elections (COMELEC) to use an automated election system for local and national elections. This law, passed by the 13th Congress, is the basis of the current move to automate the upcoming elections.

However, as elections draw near, some congressmen - others even voted for the automation law - are expressing doubts if automation, let alone full automation, can be achieved by 2010. Legislators are divided into two camps: (1) those that favor full automation - meaning complete computerization of the voting and counting process from the precinct to the national level and (2) those that call for partial automation or hybrid elections - meaning computerization only in certain apects while retaining manual work in other aspects of the voting and counting process.

The chief proponent of partial automation is House Deputy Speaker Pablo Garcia of Cebu. Garcia proposes a hybrid system where voting and counting at the precinct level and canvassing at the municipal, city, provincial or district levels are held manually just like what we have been doing in past elections. The automation comes only in the transmission of the results from the precinct to the municipal and city level, then from there to the provinicial or district levels, and so forth. Garcia justifies his proposal by arguing that full automation violates RA 9369, which mandates both manual and electronic system of elections.

Garcia also claims that a fully automated election is unconstitutional bacause people will not have a conscious, deliberate and intelligent participation in the electoral process.

Another variation of the proposal for a hybrid election is limiting automation to national positions (president, vice president, senators, and party list representatives), while retaining manual elections for local positions from congressmen to governors, vice governors, mayors, vice mayors, provincial, city and municipal board members. COMELEC disagrees with this proposal by saying that it will only cause confusion to voters and poll officials.

On the other side is Cagayan De Oro Representative Rufus Rodriguez who has filed a bill for full automation.

Another issue confronting congressmen is the mode of computerization that will be carried out by COMELEC. According to House Speaker Prospero Nograles, a companion bill to the recently passed poll automation budget of P11.3 billion is needed to guide COMELEC on the manner of carrying out the automation. Meanwhile, COMELEC Chairman Jose Melo and Makati Representative Teodoro Locsin, Jr., chairman of the House committee on suffrage and electoral reforms, agree that COMELEC gets to decide on the type of automated elections and not Congress. Locsin filed a resolution asking Congress not to hint or impose a technology of choice on the COMELEC as it will be the one to decide the matter.

Although COMELEC appears to be leaning toward an Optical Mark Reader (OMR) system, some groups such as the Movement for Good Governance are proposing the so-called Open Elections System (OES). The OMR uses the same system for computerized testing wherein voters shade a bubble or circle opposite the candidate of choice on specially prepared papers, which will in turn be fed into a computer. The computer will scan or read the marks made and record them as votes. Under the OES, voting and counting at the precinct level will be the same as in previous elections, but after getting the results they will be entered into a computer using the OES software, which could then be accessed through the internet by the public.

Proponents of the OES claim that the OMR system lacks transparency, because everything is left to computers which could make the internal process of vote recording, counting and tabulation suspect. Voters, they say, are wary of a process that they do not see. Unlike the OMR, the public can see the votes for each candidate and the results obtained at the precinct level in an OES. Furthermore, they argue that handwriting is essential because this allows for the determination of whether the same person cast more than one vote for a particular candidate. Obviously, this cannot be done in an OMR system where only shaded boxes or bubbles could be seen and which allows one person to shade more than one ballot. OMR proponents, on the other hand, counter that handwriting is one of the biggest problems in past elections. According to them, by determining the choice through shaded boxes or bubbles, ineligible handwriting, voter forgetfulness of candidates' names, mistakes in spellings, and problems associated with similarly-named candidates are avoided. They also criticize the OES by saying it is too dependent on individuals who could manipulate the results being entered into a computer.

Election watchdogs National Movement for Free Elections (NAMFREL) and Parish Pastoral Council for Responsible Voting (PPCRV) reportedly support the OMR in principle, while the social action arm of the Catholic Bishops Conference of the Philippines (CBCP), the National Secretariat for Social Action-Justice and Peace, is endorsing the OES.

Other systems are the punch card system and the direct reading electronic voting system (DRE). Voters punch a hole with a metal stylus to indicate their candidate of choice on cardboards, which are fed to computers in a punch card system. The punched holes are read by the computer as votes. This is the system that was used in Florida during the 2000 US presidential election where former Vice President Al Gore, then a presidential candidate against George W. Bush, sought a recount of the votes on claims that many ballots (cards) were not properly punched by voters, leaving the punched-out portions still hanging attached to the ballots, hence were not read by computers. These came to be known as the famous hanging chads.

The DRE allows voters to cast their votes either by touching the computer screen (using touch screen technology) or by using a computer mouse to click on the candidate of choice.

The last Autonomous Region for Muslim Mindanao (ARMM) elections used the OMR and DRE systems.

Now that the P11.3 billion poll automation budget has been passed, COMELEC Chairman Jose Melo announced that bidding for the automation machines is already being worked out and hopes to choose the supplier by May. It may dampen the spirit of OES proponents to know that COMELEC seems to have already chosen the Precinct Count Optical System or the OMR system by lining up possible bidders for this type of machine.

ONE BILLION FOR THE PRESIDENCY

2009-03-03T18:21:00.000-08:00

Sen. Manny Villar's recent statement that those who could not even raise one billion pesos should not think of running for president has elicited varied, but mostly unfavorable reaction from his colleagues in the Senate. Foremost among those who severely criticized the erstwhile senate president is Sen. Richard Gordon by saying that Senator Villar's statement smacks of arrogance and conveys the impression that only the moneyed can ran for president.

But isn't Senator Villar simply stating a sad reality of Philippine politics? That only the moneyed ones - the rich and influential - corner the elections? Senator Gordon is either being naived or hypocrite in lambasting Senator Villar. Having been a long serving mayor of Olongapo City and now senator, he should know very well that money talks in Philippine politics. Instead of trying to appear innocent and immune from money politics, Senator Gordon and his like-minded colleagues can better spend their time - and the taxpayers' money, I should add - by rethinking our laws on campaign spending.

While surely money is essential for launching a successful campaign, measures should be put in place to enable qualifed, but less wealthy individuals to vie for public office and to prevent elected officials from becoming beholden to special interests. Campaign finance is admittedly a murky area; it is for this reason that serious study on the matter should be made and not simply be a passing interest that serves only the thirst for publicity of politicians.

The money that elevates a candidate to a public office is as much important as his or her qualifications, because its nature and source will speak legions about what type of public official he or she will become. Ever heard of Italy's mafia-financed politicians? or more relevant to us, the jueteng-financed politicians?

AN OPEN SECRET

2009-02-26T09:27:00.000-08:00

The World Bank report on bid rigging and other corrupt practices in connection with the national road construction project did not reveal, but merely provided evidence of a long standing practice in infrastructure projects by the government. The interviews of the WB Integrity Vice President detailing the bid rigging and pay-off to the politicians, recently provided by Sen. Panfilo Lacson, is not something new to us.

It is a well-known fact that corrupt politicians, from the municipal to the national level, always have cuts (better known as "commissions") in various infrastructure projects being implemented by them. It all starts with the bidding process. Prospective bidders for a project, who usually know each other, will agree on the winner, with the losers receiving a pay-off. A variation of this is that the favored bidder - because it offered the most attractive commission to those implementing the project - will be tipped-off with the winning bid price. To the contractor this latter scheme is more favorable because it reduces the cost of bribery.

Still another methodology is for the bid administrators not to soil the bidding process, allowing it to go smoothly until the awarding. Feelers will be sent to the winning bidder-contractor to put up "facilitation fees" before the project is awarded. Of course, nobody among the bidders knows yet who won the bidding. This is to insure against the winner not giving in to the project administrators' demands; if the winner refuses, they could always approach the other bidders who may only be too happy to oblige.

Now that the favored contractor has been awarded the project, it's time to line the pockets of the public officials in charge of the project. In most cases, I would assume that the pay-off comes earlier since it is easier to have leverage pending award of the project.

The first scheme is what is known as the "everybody happy" system. Everybody - from the bid participants to the public officials in charge of the project - gets his cut. Investigators from the FBI anti-corruption task force and Ombudsman should take heed of this system as from here, they could extract evidence from unsatisfied participants; there could be instances when somebody complains for not getting paid well. So much for "everybody happy."

The contractors involved in these corrupt practices are as guilty as the scheming public officials. Their willingness to give commissions perpetuate these dirty practices. I have yet to see one brave soul from these contractors, despite the pervasiveness of the practice, come out and positively identify corrupt public officials. Obviously they want to protect the profitability of their industry. And how, one might ask, do they still profit from these tainted projects for having already shelled so much money for bribery? Just look at the quality or costs of our infrastructure projects: either we are cheated out of the quality of their materials or their prices are bloated.

These substandard infrastructures are yet again the source of corrupt money that will soon line the already deep pockets of contractors and crooked politicians. Is it still a wonder that the repairs of our roads and bridges never stop? So the cycle of corruption goes on.

The inconvenience and danger of this can readily be seen. Our already messed up traffic system gets further clogged, delaying movement of goods, supplies and people. The saddest part is lives are put in danger. When substandard buildings or bridges collapse people will get hurt or even die.

In the end, the WB report will probably remain only with what it is: a report. Corruption in the infrastructure area is so pervasive that I doubt it very much there would be many public officials who would be willing to pursue it. It is a very lucrative industry and one of the major sources of ROI, and at the same time capital, for those extravagant campaign spendings. Just do the math and see for yourselves how paltry the salaries of public officials are vis-a-vis the expenditures they incur to acquire and maintain power.

EDSA: WHAT COULD HAVE BEEN?

2009-02-25T09:31:00.000-08:00

Twenty three years ago thousands of people from all walks of life massed at Epifanio Delos Santos Avenue (EDSA) to demand the ouster of former strongman Ferdinand E. Marcos. This climactic event in Philippine history, which came to be known as the bloodless People Power Revolution, toppled the Marcos regime - ending his decades-long totalitarian rule that was characterized by corruption, official abuses, human rights violation, suppression of free speech, and a tanking economy.

More than two decades have passed, but until now pundits are still debating about the significance and contribution of EDSA. Regardless of what people think about it, I think EDSA I was an important turning point in our history. It provided an opportunity to start with a clean slate after Marcos turned the country into tatters. But the leaders of the so-called "revolution," united only in ousting Marcos, were not prepared for this ultimate objective. Political aspirations and convenience dictated much of their actions.

What Cory Aquino should have done is to institute sweeping reforms. Reform is not even the right term; the more inclusive word "change," - that is, "revoultionary change" - is more like it. A thorough and exhaustive investigation should have been done to round up all those who were in cahoots with the dictator and place them behind bars, and not allow them to roam freely as a lot of them still do now; heck, we even allowed them to assume high positions in the government. We are too forgiving a country or, should I say, too indifferent for allowing such travesty to happen.

Those who assumed power after Marcos was ousted lost sight of the fact that a revolutionary government had just been installed. It was the right time to purge the evils of the previous regime in a top-to-bottom shakedown; the bloated bureaucracy should have been cut down, projects that do not work brought to a halt, questionable foreign loans (those that only benefited private interests) reviewed and renegotiated or perhaps repudiated, iniquitous laws repealed, and personalities who helped engineer and benefited from the suppressive regime brought to jail.

No other time could have been more appropriate, politically and legally. The newly-installed government was popularly backed by the people; the international community recognized its legitimacy; and the Supreme Court gave its imprimatur of legality. As history would have it, however, the sweeping or revolutionary changes that the people expected - after putting their own lives on the line in what could have been a completely refurbished government that puts country first before everything - were nowhere to be found. (Photo from Richard Deats homepage)

THE BETRAYAL OF NICOLAS V. ROMULO

2009-02-23T13:05:00.000-08:00

The promulgation of Nicolas v. Romulo on February 11, 2009 drew a maelstrom of anti-US sentiments not seen since the heyday of the U.S. military bases in our country. The Supreme Court in this case reiterated its affirmance of the validity of the Visiting Forces Agreement (VFA) in the earlier case of Bayan v. Zamora by saying that, contrary to the position of those opposing the VFA, the US recognizes the VFA as a valid and binding international obligation on its part which, therefore, complies with the requirement of Sec. 25, Art. XVIII of the Philippine Constitution. This provision requires agreements involving the presence of foreign bases, troops or facilities in the Philippines to be recognized as treaties by the foreign contracting state.

When the Constitution requires a foreign contracting state to recognize its agreements with the Philippine Government regarding the presence of foreign bases, troops or facilities in our country as treaties, what becomes determinative is the law of such foreign country. Did the US treat the VFA as a treaty under its laws? The US Constitution requires the concurrence of the US Senate for the validity of treaties entered into by the US Government. Although US officials recognize the VFA as a binding international obligation of the US, this did not make it a treaty. At best, it is merely an executive agreement. We can readily see here the unequal treatment accorded us by the US Government - or should we say the continuous kowtowing of our officials to our one-time colonial master; while we have given the VFA the more dignified status of a treaty by going through the motion of having it concurred by the Senate, the US merely gave it the status of an executive agreement which, under US laws, is inferior to federal laws. A treaty - side by side with federal laws - on the other hand, is next only to the US Constitution in importance in the hierarchy of laws.

In addition, the US Supreme Court ruled in the 2008 case of Medellin v. Texas that for treaties or international agreements to become binding domestic laws in the US, such treaties or agreements must be self-executing (meaning, by their terms they are immediately implementable) or the US Congress has enacted laws implementing them. The VFA is neither self-executing nor supported by an implementing legislation by the US Congress. This undercuts the argument that the VFA is recognized as a binding international committment in the US. The inequality of the situation is that while we made ourselves bound by the VFA, the US did not.

BACKGOUND ON THE VFA/DANIEL SMITH CONTROVERSY

2009-02-20T19:17:00.000-08:00

Lately, we have been hearing a lot of noise about the Visiting Forces Agreement (VFA) brought forth with the recent decision of the Supreme Court in the Suzette Nicolas rape case. For those of you who want to be in-the-know and weigh in on the issue, this is a brief summary.

In December 2006, US Marine Lance Corporal Daniel Smith was convicted by the Makati Regional Trial Court for raping a certain Suzette Nicolas while participating in joint military exercises with Philippine armed forces pursuant to the VFA between the United States and the Philippines concluded in 1998.

While detained at the Makati city jail he was transferred to the US Embassy in Manila by agreement between the Philippine Department of Foreign Affairs (DFA) and the US Ambassador to the Philippines known as Romulo-Kenney Agreement, purportedly in accordance with the VFA.

Suzette Nicolas and others, via petition to the Supreme Court, sought the transfer of Smith back to Philippine detention facilities on the ground that the VFA and the Romulo-Kenney Agreement were void for being contrary to the constitutional provision that requires agreements or treaties involving foreign troops presence in the Philippines to be recognized as treaties by countries to which such foreign troops belong. It was argued that, contrary to the constitutional requirement, the VFA was not recognized as a treaty by the United States. Some senators and cause-oriented groups decried the unequal treatment the United States has accorded us by not submitting the VFA for the concurrence of its Senate as provided in their Constitution concerning treaties, in the same manner that our own Senate had done so.

On February 11, 2009, the Supreme Court ruled that while the US did not submit the VFA for concurrence by its Senate, the VFA has been recognized by representatives of the United States as a binding international agreement regardless of how it is denominated, whether as a treaty or executive agreement. As such it does not ran afoul of our constitutional requirement. Besides, the Supreme Court found the VFA as an implementation of the 1951 RP-US Mutual Defense Treaty, and this treaty has been concurred in by the US Senate.

But our senators, chiefly Fancis “Kiko” Pangilinan and Joker Arroyo, are not satisfied and are moving for the abrogation of the VFA. What do you think?

BARRING DEPARTURE OF "TOURIST WORKERS" MAY BE ILLEGAL

2009-02-18T11:38:00.000-08:00

As part of its declared intensified campaign to prevent Filipinos from becoming victims of illegal recruitment and human trafficking, the Bureau of Immigration (BI) has recently barred 133 Filipinos from leaving the country through the Diosdado Macapagal International Airport (DMIA) on suspicion that they are “tourist workers.”

“Tourist workers” is the term being used to describe Filipinos going to countries like Singapore, Malaysia and more recently to Dubai, using only tourist visas, but whose real purpose is to obtain employment.

While the avowed objective of the BI is laudable, the restriction of citizens’ mobility by preventing them from leaving the country may be constitutionally questionable as a violation of the right to travel.

Article 3, Section 6 of the Constitution provides as follows:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (italics supplied)

The above provision clearly recognizes the right of every citizen to travel or move from one place to another. And movement from one place to another includes travel within the Philippines and travel from the Philippines to other countries. In the 1989 case of Marcos v. Manglapuz – which involved the right of the Marcoses to bring the remains of deposed President Ferdinand Marcos to the Philippines – the Supreme Court ruled that the constitutional right to travel does not include returning to the Philippines from other countries.

Every person, therefore, has the right to leave the country freely. In totalitarian regimes, like in the former Soviet Union, East Germany or in present-day North Korea, there is no such right of mobility. Citizens of these countries could not freely move from one place to another, much less leave their countries, to prevent them from bonding together and form groups to overthrow the government. The intention is to stifle or suppress dissent.

The only limitations on the exercise of such right are (1) lawful court order or (2) law, in the interest of national security, public safety or public health. Thus, a court order can validly restrain an accused or convicted person from leaving the country by means of a hold departure order, or an administrative regulation from the Department of Labor can prevent the deployment abroad of domestic workers pursuant to the constitutional mandate to protect labor as held in Philippine Service Exporters, Inc. v. Drilon.

In the absence of a valid court order or law that authorizes the restriction on the right to travel, the BI’s program of preventing so-called “tourist workers” from leaving the country suffers serious doubts as to its validity or legality. Mere suspicion that these persons are not really going to the intended country of destination as tourists is not enough. There must be clear standards or guidelines provided by law to establish that these persons are indeed seeking employment abroad under the pretext of going on a tourist visit, otherwise the program will be prone to abuses and its reach would extend even to legitimate tourists who will clearly suffer great inconveniences.

Finally, it bears noting that our countrymen are going at great lengths to find decent employment that our government has miserably failed to provide. These 133 people who may have been unlawfully deprived of their constitutional right to travel probably invested their life’s savings, pawned their valuables, mortgaged their homes, or borrowed money they could ill-afford to pay just to realize the promise of better money abroad and free them from the clutches of poverty, only to be turned back by agents of a government that has proven inept at providing decent-paying jobs to its citizens.

At a time when the unemployment rate is 7.4%, we cannot blame our countrymen for taking the short cuts in finding livelihood for their families. Unless our government gets serious in the business of governance no amount of regulation or enforcement measures can prevent this continuously growing diaspora. If government cannot provide a better alternative, it is probably better off allowing these determined individuals to find their destinies abroad and instead put in place an effective mechanism to protect them against abuses and other wrongdoings.