DERAILING THE CHECKS AND BALANCES

       

Early on in his term, President Bongbong Marcos is already antagonizing a co-equal branch of government, the legislature, by ordering his Executive Secretary Vic Dominguez to snub the invitation to attend a Senate inquiry on the sugar importation mess.

This does not bode well for a vibrant democratic system. Under our scheme of government, each of the three branches (executive, legislative and judicial) has the additional and important function of checking and balancing the exercise of powers by the other in what is known as “checks and balances.”   

The Constitution enumerates the several ways each branch exercises this function. For example, the president as head of the executive branch has the power to veto any law passed by Congress; the legislative branch, through the Senate, must ratify a treaty negotiated and signed by the president with another country before it becomes binding; the judicial branch, particularly the Supreme Court, has the power to invalidate the actions of both the executive and legislative branches by declaring them unlawful.

The conduct of legislative inquiries is one of the powers of Congress to aid it in crafting legislations. Legislative inquiries help Congress pass new laws or amend existing ones to address a particular problem, such as the current sugar shortage. To be sure, this function has been abused several times by scheming legislators to drag before them and publicly flail public officials they deride or to grandstand on a particular issue without the least intention of crafting a law from the exercise.

Given the importance of the sugar shortage crisis, however, the executive must cooperate with Congress in getting into the bottom of the problem so that a solution can be found. Bongbong’s directive to Secretary Dominguez not to attend the Senate inquiry is an alarming indication of his disrespect to a co-equal branch of government, which forebodes an authoritarian tendency on his part.

We all know what happened under Ferdinand Marcos, Sr.’s rule when he started acting as the executive and legislative at the same time and controlled the judiciary. Hopefully Marcos, Jr. is not trying to follow this playbook in snubbing the Senate.

THE SUPREME COURT MUST UPHOLD THE RULE OF LAW

Members of the Supreme Court.

We are not final because we are infallible, but we are infallible only because we are final. These astute words from U.S. Supreme Court Justice Robert Jackson will once again find relevance if the Philippine Supreme Court were to grant the quo warranto petition of Solicitor General Jose Calida to unseat Supreme Court Chief Justice Lourdes Sereno.

While it is beyond doubt – well, until now that is – that the chief justice can only be removed by impeachment under the Constitution, majority of the members of the Supreme Court, who have shown antagonism towards the Chief Justice and seeming fealty to the current administration, may hand down yet another controversial decision that will assert more the finality of the Court rather than its infallibility as interpreter of the law of the land.  

Although it was careful to qualify its order by the phrase “without giving due course to the petition,” the mere fact that the Court entertained Calida’s petition by requiring the Chief Justice to comment rather than dismiss it outright gives one the chills of where this Court can go.

Of course, this will not be the first time that the Court will depart from its traditional role of guardian to the Constitution if ever it decides to skirt the impeachment process and unceremoniously removes the Chief Justice from office. As the final voice on what the law is, the Court has on several occasions handed down decisions that were seen more as serving political ends rather than fidelity to the meaning of the law.

That the Supreme Court ultimately decides along political considerations in political cases is expected, for after all its members are appointed by the highest political entity of the government, the president. Inevitably, the majority that don the same political color declare what the law is consistent with the interests of their political patron.

But to overturn a well-established rule, created by no less than the Constitution, that the officials enumerated under Article XI (2) of the Constitution – which includes members of the Supreme Court – may only be removed from office by impeachment is a flagrant flouting of the rule of law.  Notably, the Supreme Court itself has consistently held in Cuenco v. Fernan, In re Gonzales, Jarque v. Desierto, and Marcoleta v. Borra that the impeachable officials under Article XI (2) can only be removed from office via the impeachment route and this cannot be circumvented by resorting to other means of removal.

In  Cuenco, for example, the disbarment case brought against then Supreme Court Justice Marcelo Fernan (who later became chief justice) was dismissed for being an attempt to remove an impeachable official via another route not allowed by the Constitution. The Court noted that since one can only become a member of the Supreme Court by being an attorney, to disbar a member of the Court would be equivalent to removing him from office which cannot be done because he can only be removed by impeachment.

The members of the Supreme Court must remain steadfast and resist any importuning albeit powerful if the Court were to remain guardian of the Constitution and protector of the rule of law. Giving due course to Calida’s petition is a first step toward the crumbling of the pillars on the edifice of the Court.

IS NOYNOY LIABLE FOR THE MAMASAPANO MASSACRE?

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NOYNOY IS WRONG TO SAY THERE ARE NO EJKs

Former President Noynoy Aquino.

On the occasion of Sen. Ninoy Aquino’s 34^th death anniversary, the son, former President Noynoy Aquino – in an answer to questions regarding the spate of killings taking place under Duterte’s drug war – said that there are no extrajudicial killings (EJKs) taking place in the country because there is no judicial killing. No judicial killings, ergo no extrajudicial killings goes his reasoning.  He added that these killings were simply murders.

President Aquino’s apparent logic is that in order for these killings to be classified as EJKs, there must also be killings being authorized by the courts under a death penalty law. The logic of opposites: night and day, black and white, legal and illegal, judicial and extrajudicial. The logic is, however, over-simplistic and disregards the essential elements of what define the term extrajudicial killings.

If indeed EJKs can only exist if there is judicial killing, why then did the Supreme Court promulgate the rules on the Writ of Amparo on October 24, 2007 with the objective of addressing the problem of extrajudicial killings and enforced disappearances? Thus, in Balao, et la., v. Macapagal-Arroyo, et al, G.R. No. 186050, 186059 (December 13, 2011), the Supreme Court pronounced the following:

The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of extralegal killings and enforced disappearances. It was formulated in the exercise of this Court’s expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. (Emphasis added).

In the earlier case of In re Rodriguez v. Macapagal-Arroyo, GR Nos. 191805, 193160 (Nov. 15, 2011), the Supreme Court said that the Writ of Amparo “serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. (emphasis added)”

It is noteworthy that the death penalty was abolished by Congress under RA 9346 (An Act Prohibiting the Imposition of the Death Penalty in the Philippines) in June 2006 and has not since then been re-imposed. Therefore, this recognition by no less than the Supreme Court of the existence of extrajudicial killings despite the absence of the death penalty in our statute books clearly contradicts President Aquino’s notion that for killings to be categorized as EJKs the death penalty must be in existence that will authorize the courts to carry out judicial killings.

For added context, the Writ of Amparo is a legal remedy whereby an individual whose right to life, liberty and security is violated or threatened can ask protective orders from the courts. In a report by the United Nations, there were 903 documented cases of extrajudicial killings from January 2001 to March 2008. In response, the Supreme Court created the Melo Commission to promulgate the Amparo rules.

Going now to the definition of EJK, the Supreme Court in the Balao case defined EJK as “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” Thus, the constitutive elements of EJK are the following: (1) there was a killing; and (2) the killing was committed without due process of law. This definition is similar to the definition given under the United States Torture Victim Protection Act of 1991 which defines EJK under Section 3(a) thereof as the “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. . . .” 

Nowhere under both definitions can be found the existence of judicial killing as an indispensable element of EJK. Clearly the existence of EJK is not premised on the existence of judicial killing.  Besides, if we follow President Aquino’s logic, it can lead to ridiculous conclusions. For example, one can argue that since there is no legal killing (because the death penalty has been abolished), there can be no illegal killing; since there is no legal prostitution in the Philippines there can be no illegal prostitution.

Notably, the phrase “without due process of law” under the second element of the definition indicates that the killing was carried out by agents of the State or State actors, such as the police or military.  In legal principles whenever due process is at issue it involves the participation of the State or the government under the concept of "State Action." In other words, the killing is carried out by law enforcers or the military without affording the victim his or her rights to due process of law.  A killing is carried out without legal authority when there is no law authorizing it (no death penalty) or the legal processes required to carry out the execution (i.e., charges are filed in court, evidence pro and con is presented, there is finding of guilt by the court) are not observed.  

Although there is a growing trend to not only limit EJKs to State actors, just the same this tendency still recognizes the participation of the State even if the killings were carried out by private individuals to categorize them as EJKs.  State participation usually takes the form of providing encouragement or support or organizing private individuals to carry out the killings.  Private armies and death squads come to mind in these cases.

By taking the position that the spate of killings taking place right now, such as the execution of Kian Lloyd Delos Santos, are not EJKs but simply murders, President Aquino has committed the mistake of unwittignly downgrading the seriousness of the problem involving these killings. 

FALSE EQUIVALENCY

Lifeless body of Kian Delos Santos being carried by police.

Pictures of people who have been raped or killed by alleged drug addicts with captions asking why there was no rally held for them by the same people who held rallies for Kian Lloyd Delos Santos, the 17-year old killed by policemen under questionable and suspicious circumstances, are being circulated on social media. The question of why anti-Duterte lawmakers, like Trillanes and Hontiveros, have not visited these victims’ wake is also being asked.

The problem with this argument is that while the case of these crime victims is the same as that of Kian – all of them were brutally killed – the similarity ends there. The former were killed or victimized by criminals who may have been drug-crazed, but Kian was killed by the police. Let us pause and absorb this well: killed by the police (with emphasis). The police are supposed to be the guardians and protectors of the people; they are supposed to enforce the rule of law; preserve peace and order; stop and prevent crimes; apprehend and neutralize criminals. The police are supposed to keep and make us feel safe in their presence, not sow terror on the citizenry by killing innocent civilians or disregarding the rule of law.

Obviously, we do not expect the same protection or safety from criminals, whether high on drugs or not. We know their object is to inflict harm and are up to no good. So, when these deranged beings go killing spree or commit heinous crimes, we as a society are shocked by the depravity of their crimes but we accept as a sad fact of life that there are such evil men ever lurking in society. And we look upon the authorities – the police – to protect us from these kinds of people.

But what do we do when the police themselves become the very evil against which we seek protection? When the police become the very evil that threaten our lives and limbs, we find ourselves in graver danger because unlike criminals the police freely roam our streets under the badge of authority. They can go about their nefarious ways, armed by the state, unhampered by anyone. Who will we call for help or protection when the very people who are supposed to provide it are the very cause of our distress?

But now that this matter has been brought to light, let us call for justice for every victim of crime, especially victims of heinous crimes. Let us demand from the government and the police to protect us against criminals; let us demand from government that those responsible be prosecuted.

If we cannot see these very clear distinctions, we are truly lost and are driven only by our political persuasions. Victims of common crimes deserve our utmost sympathy and the criminals our most vehement condemnation.  But when the police, whom we have armed and whose salaries we foot through the taxes we pay so that they can make our streets safe and protect us against bad elements of society, become the very threats to our safety and well-being, the line must be drawn and we must become vigilant and resist such evil if we are to survive.  And when there is no one to whom we can turn to for help, we have only ourselves to protect us. 

We still speak not with bated breath

Source: dailyopinioninternational.com

When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule.  This issue assumes much relevance at a time when we celebrate the 28^th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.

Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces.  This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.

The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution.  It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 

The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts.  Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.

One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath.  28 years later we can still speak freely against the government and our public officials without fear of punishment.

And what about the anti-cybercrime law that punishes online libel?  Did it not remove or downgrade our free speech right with the connivance of the Supreme Court?  There is so much misinformation circulating the web about this.  Freedom of speech is not absolute.  The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence).  These are unprotected speeches that the state may validly regulate.

Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law.  What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published.  If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.

The anti-cybercrime law does not punish protected speech.  By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported.  Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.

Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements.  The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials  remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.   

The Magic that is Christmas

The Star of Bethlehem .

In a recent Pew Survey in the U.S., it found that only about half of those who celebrate Christmas see it as a religious celebration while the rest see it as a cultural non-religious event.  But whatever belief one has about Christmas, the fact of the matter is that Christmas is a celebration that is based and rooted on the birth of Jesus Christ; in fact, the name with which this globally celebrated event is known is derived from the name of Christ himself. 

Every time Christmas comes, I am in awe of the far-reaching influence and legacy that this humble carpenter from Nazareth has left in this world.  His ministry is brief (a little over three years) and confined in and around the area of his birthplace (biblical accounts show that he never traveled more than 200 miles from Bethlehem), and yet Jesus left an enduring and worldwide teaching of love, peace, generosity and humility that no being who has set foot on the face of the earth has ever done.  He is truly the savior of the world!

Commercialism aside, what with all the merchandise being pedaled to us by merchants, there is no other season of the year where gift-giving is so pervasive and the air is filled with the ambience of kindness and forgiveness.  It is this time of the year where people are more tolerant and forgiving, letting go of offenses against them with the usual remark, “forget about it, it’s Christmas anyway”;  it is this time of the year where goodwill among men pervades and you see people with happy countenance everywhere.

There is no other event where even fighting men dropped their rifles and muted their canons and crossed enemy lines to engage in Christmas greetings and songs and even exchanged gifts, as was done by German and British soldiers around Christmas time during World War I. 

Whether you are a believer or not, the song is right. Christmas is “the most wonderful time of the year.”

Merry Christmas to you all and let us keep the spirit of kindness and giving alive!    

 

 

The Thin-Skinned Brillantes

Comelec Chair Sixto Brillantes, Jr.

“The interest of society and the maintenance of good government demand a full discussion of public affairs . . . a public officer must not be too thin-skinned with reference to comment upon his official acts,” so goes Justice Malcolm in the landmark case of US v. Bustos, in his disquisition on freedom of speech.

But Comelec Chairman Sixto Brillantes, Jr., a former San Beda College of Law professor and practicing lawyer,  must have already forgotten this mandatory case law reading in law school when he threatened to sue critics of the just concluded midterm elections in the Philippines.  Reacting to allegations of massive glitches in the implementation of the 2013 computerized elections and criticisms that it was worse than the 2010 elections, Brillantes said “[t]hose people who keep on blabbering but know nothing, they are the ones I’m going to charge.  All of them.”     

While it is completely understandable that planning and handling the elections in 1,630 municipalities and cities around the country is a daunting task and must be draining, physically and mentally, Brillantes should not lose sight of the fact that he took the job of election chief voluntarily and as a public office, it is open to public criticisms, whether justified or not.

Threatening to sue critics – aside from being stupid, because criticism of official conduct, unless proven to be malicious, is not libelous – has a chilling effect on free speech, for it deters others from commenting on what they perceive to be inefficiencies in the government and calling on public officials for any wrongdoing.  In a democratic society like the Philippines, freedom to comment on the workings of the government and conduct of public officials is one of the strongest checks against the excesses, abuses, and other misconduct of officialdom. 

 

 

Duterte's Chilling Proposition

     

The offer of a five-million-peso reward money by Davao City Vice Mayor Rodrigo Duterte to anyone who can literally bring to his office the head of notorious carnapping (motor vehicle theft) suspect Ryan Yu – made on national TV, no less – sends a chill to the spine and speaks badly of the country’s state of law enforcement.

While this is nothing new for a man who has been dubbed by Time magazine as the “Punisher,” for his reputation for alleged extrajudicial killing of suspected criminals during his tenure as mayor of Davao City, Duterte’s offer sends the message that law enforcement in the Philippines is inept, hence the need for vigilantes to carry out the job that the police have failed to do.

Every law abiding citizen should come out and condemn this reprehensible incitement to lawlessness by no less than a public official. Duterte was actually telling the public to kill and mutilate by decapitation a man who has yet to be pronounced guilty by a court of law. Although Yu is the suspected – take note, “suspected” – mastermind of several cases of carnapping, he is no less entitled to his day in court and could only be meted with criminal punishment after he is found guilty of the crimes attributed to him. Also, Duterte was not only prescribing a penalty that has been abolished in the Philippines, but is prescribing a punishment so savage and shocking to our senses that it should have no place in civilized society.

Vigilantism, which is what Duterte was encouraging, degrades law enforcement and incites lawlessness.  While the reward system to capture suspected criminals is meant to help law enforcement, this is not exactly how it is supposed to work. For safety reasons and observance of the rule of law, private citizens should only be required to report to the authorities the whereabouts of suspected criminals and not put the law into their own hands by carrying out the arrest themselves, let alone kill the suspect!

Vice Mayor Duterte should be brought to task for his reckless and dangerous conduct. As a public official, he is duty-bound to observe his oath of fidelity to the Constitution and the rule of law. The Code of Conduct and Ethical Standards for Public Officials and Employees require him to refrain from doing any acts contrary to law and public order.

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

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

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

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

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

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

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

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

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

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

Libel and free speech

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

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

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

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

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

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

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

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

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

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

When hateful speech is protected

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

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

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

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

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

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

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

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

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

Marcos was no hero

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

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

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

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

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

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

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

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

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

People Power Revolutions

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

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

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

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

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

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

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

What's the Ombudsman doing?

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

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

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

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

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

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

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

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

Death as a way out: Angelo Reyes's suicide

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

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

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

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

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

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

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

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

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

Revolutionary taxes and peace talks

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

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

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

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

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

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

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

Are violent video games protected speech?

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

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 refers to the practice of allocating public funds to finance local projects, usually infrastructure projects, in a lawmaker’s district or, in the case of senators, in localities selected by them. Each congressman is allocated pork barrel funding of up to P70 million, while each senator up to P200 million.

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.