OFFICIAL ABDICATION

If there is anything that our government officials are good at, it is their uncanny ability to remain in power and enjoy the perks of their office while abdicating themselves of the responsibility to which they have been sworn into. This is the picture we have been getting lately from our congressional leaders and heads of prosecutorial agencies in the wake of the controversy on the blacklisting of local contractors by the World Bank (WB). Don't get me wrong, this is not the first time that our government officials have acted this way, but of late it has become increasingly clear how far they have gone in betraying the trust of their office.

First, congressmen have cleared the blacklisted contractors in haste by saying there is no evidence that would substantiate WB's allegations that these contractors have engaged in the nefarious enterprise of rigging the bidding for a national road project. In an article by the Philippine Center for Investigative Journalism (PCIJ), it revealed that most of the members of House of Representatives's Public Works Committee, that held hearings on this blacklisting issue, are engaged in the construction business themselves.

Wouldn't it be more appropriate for these congressmen to have left the exoneration of the contractors to our investigative agencies, like the Department of Justice or the Ombudsman? A congressional committee investigates not to determine guilt or innocence, but to determine the effectiveness of existing laws or how a particular issue could impact legislation.

Second, when it became the turn of senators to conduct hearings on the matter they turned the tables on WB by lambasting it for not sending any representative or additional information about allegations of involvement of top personalities like First Gentleman Mike Arroyo and even the president herself. The Ombudsman Merceditas Gutierrez - the government's top prosecutor tasked to investigate corruption in the government - even had the temerity to complain that the WB supplied her only with a short report about the bid rigging; that she did not receive the detailed and bulky report that Sen. Ping Lacson has.

Evidently our government officials have conveniently abdicated the functions of their office by refusing to act on a report by an international and independent body like the WB about corruption in the government. Let it be made clear that the WB does not have any political motive in implicating high government officials. It has nothing to gain by it, pecuniarily or politically.

By pointing to the WB's failure to cooperate in the investigation in not appearing before the Senate and not providing more detailed information, it seems it is now suddenly the responsibility of the WB to investigate and prosecute corrupt officials. More than any one else, it should be our government officials who must zealously pursue investigation of this bid rigging scandal and go to the doorsteps of the WB, if need be, to gather more information and not the other way around. We should be thankful rather than cynical of the WB report because it is to our best interest that we weed out corruption in the government, unless of course our government officials are engaged in a disturbing pattern of covering up official wrongdoing at the highest level, which is somehow not much of a surprise anymore with controversies after controversies about corruption at the highest level plaguing our government.

A "RIGHT OF REPLY" LAW VIOLATES PRESS FREEDOM

Not a few media organizations and practitioners have expressed opposition to the bill introduced by veteran street parliamentarian Sen. Aquilino Pimentel, Jr., which grants both persons and institutions the right to reply in print or broadcast media where they have been accused of a crime or criticized for lapse in behavior.

Otherwise known as “An Act Granting the Right of Reply and Providing Penalties for Violation Thereof,” Senate Bill No. 2150, which is currently pending consideration in the House of Representatives, requires media organizations under pain of sanctions to provide print space or broadcast time, free of charge, to the accused or criticized person in the same space or program where the accusation or criticism was made.

The flurry of oppositions and criticisms that the bill is receiving is not surprising, considering the serious implications it will have on the right to free speech and press freedom. And no matter how insistent Senator Pimentel is in defending his pet measure by claiming that it engenders rather than inhibits speech by allowing the objects of press accusations and criticisms the opportunity to counter the charges against them, the bill – no matter how well-intentioned by one who had undoubtedly vigorously fought an authoritarian regime notable for its suppression of free speech – presents clear restraints on press freedom that are hard to ignore.

The U.S. case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) is instructive in determining the constitutionality of the bill. This case was about a candidate for the Florida House of Representatives who was the subject of adverse editorials in the Miami Herald newspaper. When the newspaper refused to publish the candidate’s replies to the editorials he sued claiming a “right of reply” under a Florida statute. The Florida statute substantially provides that if any newspaper assails the personal character of any candidate, such newspaper shall upon request of the candidate immediately publish free of cost any reply he may make.

In ruling that the Florida statute violates the First Amendment’s guarantee of a free press, the U.S. Supreme Court held that government compulsion on a newspaper to publish that which reason tells it should not be published is unconstitutional. The statute was considered as a command by the State in the same sense as a statute or regulation forbidding the publication of specified matter. In other words, the U.S. Supreme Court was essentially saying that a law dictating the publication of certain matters is similar to one that prohibits their publication, which as a rule is clearly prohibited as unlawful restraint on free speech.

The U.S. Supreme Court also found the statute to exact penalties on newspapers by imposing additional printing, composing, and materials cost and by taking up space that would otherwise be devoted by newspapers to matters they prefer to print. And even if no such penalty attends the allowance of print space to persons claiming their right of reply, the U.S. Supreme Court reasoned that the statute intrudes into the function of editors in choosing what material goes into a newspaper, in deciding on the content and size of the newspaper and the treatment of public officials and issues.

The chilling effect of such regulation cannot also be taken for granted. As observed by the U.S. Supreme Court, “(f)aced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safest course is to avoid controversy . . . Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”

While this case is not binding on our courts, it is nevertheless persuasive. Historically and by practice, our own Supreme Court has on numerous occasions looked upon American jurisprudence in deciding constitutional issues, especially when it comes to free speech cases in view of the fact that Article 3, Section 4 of our Constitution – our constitutional guarantee on freedom of speech, of expression and of the press – is almost a verbatim copy of the free speech clause in the First Amendment to the U.S. Constitution.

Senate Bill No. 2150 clearly violates press freedom by forcing under penalty of law the printing or broadcasting of matters that editors or publishers of print and broadcast media may not agree with or prefer to publish. Requiring media outlets to publish or broadcast materials from persons claiming to have been aggrieved by their adverse writing or reporting is in effect meddling with the editorial discretion of said media; it would virtually make the government inject itself in newsrooms and participate in the essential task of editors in determining what to print or publish.

If this bill were to become law, one could only imagine the volume of requests coming from the government and public officials to be given print space in newspapers, airtime or spots on radios and televisions, to rebut every adverse reports against them – which are not few, I should add. In a very real sense, the print and broadcast media will be running short of print space and airtime just to accommodate, for free, these rebuttals, else they will be penalized with monetary fines ranging from P10,000 to P30,000 for every denied request.

To avoid such inconveniences and penalties, the print and broadcast media will limit themselves to printing and broadcasting non-controversial matters or issues that do not involve accusations of criminal activity or criticisms for “lapse in behavior,” as the bill words it. This will effectively chill the exercise of free speech and prevent what the U.S. Supreme Court said in the famous case of New York Times v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.”

Another questionable feature of the proposed law is its vagueness. Section 1 of the bill grants the right of reply to persons who have been criticized for lapse in behavior. What would constitute “lapse in behavior”? If I were to criticize Sen. Miriam Defensor-Santiago for laughing out too loud when giving media interviews or Jesus Dureza for praying for the extension of GMA’s term, would that be criticism for lapse in behavior?

A statute seeking to regulate speech that is vague offends not only the freedom of speech, but also the right to due process. People ought to know what is a prohibited activity in clear and precise language so that they will know what activity they will refrain from doing. A vague statute seeking to regulate speech acquires special significance because if people do not know what speech is prohibited they will refrain from speaking altogether for fear that they might violate the law.

While a responsible press is undoubtedly important and people should be given the opportunity to rebut unfair charges against them, these considerations cannot, however, trump the right to a free press and free speech in general. Needless to say, individuals aggrieved by false and defamatory reports are not without legal recourse. That our judicial institutions do not deliver in seeking redress cannot override our most fundamental liberty in a democratic and republican government. In such case, rather than making press freedom the casualty strengthening of the judicial system should be the target.

WHY ERAP CANNOT BE ELECTED AS PRESIDENT AGAIN

In an interesting article written by Dean Jorge Bacobo in his blog Philippine Commentary, he floated the idea of former president Joseph "Erap" Estrada, and other former presidents for that matter, being able to run for president again come May 2010.

Section 4, article 7 of the Philippine Constitution provides as follows:

"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."

According to Dean Jorge Bacobo, the provision against re-election of the president in the above section would seem to apply only to the incumbent president, otherwise the framers of the Constitution would not have used the word "re-election" and instead merely stated that the president shall not be qualified for election to the same office at any time, as the last sentence in the above section is phrased.

In other words, Erap - or even FVR and Cory Aquino - can run again as president this coming presidential election because he is not currently the president. Mr. Bacobo reasoned out that it only makes sense that the prohibition applies only to a sitting president, because as the incumbent the president has at his or her disposal immense powers and resources that might be used wrongly to perpetuate himself or herself in power like what Marcos did.

Apparently, this idea is taking form due to the growing clamor among Erap supporters that he run for the presidency again; supporters who feel that their idol was wrongly ousted from office by GMA in cahoots with the Supreme Court during Edsa Dos.

No less than Erap himself has made known his intention to run for the presidency again if, according to him, the opposition is unable to field a viable candidate in 2010, just a few weeks after he was pardoned by GMA for his plunder conviction, and under which pardon the condition that he does not run for any public office again was expressly provided.

However, it is my humble opinion that section 4 prohibits anyone who has been elected president from being elected to that same position again. The word "re-election," as used in section 4, should be interpreted to mean being elected to the same office again, whether immediately as in the case of an incumbent president or after intervening terms as in the case of former presidents.

This interpretation is justified by the use of the qualifying preposition "any" before the word "re-election." If indeed the word "re-election" refers only to the election again of an incumbent president the framers of the Constitution would not have bothered using the word "any."

Had the framers intended to make the prohibition apply only to a sitting president I would even venture to say that they would have used the phrase "immediate re-election," instead of "any re-election" to avoid any equivocation.

The fact that the last sentence of section 4 uses the phrase "election to the same office at any time," in prohibiting a person who has served as president for more than four years from being elected as president, cannot justify the restrictive interpretation of the word "re-election" in the second sentence by saying that the framers would have used the same phraseology if their intention is to prohibit former presidents as well from being elected again to the same position.

A reading of the last sentence of section 4 clearly shows that the prohibition applies only to anyone who became president not by election, but by virtue of the rule on succession as when the vice president becomes president in case the president dies, resigns, is removed from office or becomes permanently incapacitated. Clearly, the use of the word "re-election" in this case would be inappropriate as there would be no prior election to the same office to speak of.

Another point that Mr. Bacobo appears to be stressing in arguing that Erap can run again is the use of the definite article "the" before "president" as found in the second sentence of section 4, which suggets that the prohibition on re-election applies only to the incumbent president, since Erap is neither the president now nor in 2010. As previously discussed, the phrase "any re-election" in the same sentence sufficiently conveys the idea that the prohibition covers not only a sitting president but even former presidents, because if it refers only to the incumbent the phrase "any re-election" would not make sense since in that case only one type of re-election (that is, immediate re-election), and not any other type is applicable.

Now, as to the argument that the prohibition should only apply to the incumbent because the logical intention is to prevent the incumbent from abusing his or her powers in order to ensure re-election, suffice it to say that if that were the intention then why not impose the same prohibition on anyone who has assumed the presidency through succession and has served as such for four years or less? The last sentence of section 4 prohibits such person from being elected president only if he or she has served the office for more than four years.

If the purpose is to prevent an incumbent from committing abuses to perpetuate himself or herself in power, there is no reason why one who became president via the rule on succession and has served for only four years or less, like GMA, will not also commit abuses just to be elected president at the end of the term that he or she filled. Such person would still, for all intents and purposes, be the president and will have at his or her disposal the awesome powers of the presidency. I'm sure we all have heard of the fertilizer fund scam and the "Hello, Garci" tapes.

Interestingly, section 4 does not require that for the prohibition on re-election to apply an elected president must have finished his or her term of office. The law only requires that one must have been elected to the presidency to trigger the ban on re-election. Thus, the fact that Erap was not able to finish his term as president will not exempt him from the ban. It is a familiar principle in legal interpretation that where the law does not distinguish or qualify, no distinction or qualification should be made.

Now, is there a way that Erap can become president again? My answer is yes. Erap can become president again - repugnant as it may sound - by running as vice president in the coming elections. If he wins and the newly-elected president will step down from office voluntarily or otherwise, then Erap becomes president again. To be sure, it will not be the end of the story for legalists because they could still theoretically question the assumption to office by showing that the whole thing was a ploy to circumvent the constitutional prohibition. What cannot legally be done directly cannot be done indirectly.

THE IMPLAUSIBLE RESADO

As a famous novel cliché goes, the plot thickens. So goes the development in the Alabang Boys case when an investigation is launched anew over allegations that DOJ Special Prosecutor John Resado and his wife received deposits in the sum of P1.6 million in their joint bank account the day he ordered the dismissal of the charges against trio Brodett, Tecson and Joseph.

In his lame attempt to turn the tables on PDEA, DOJ Special Prosecutor John Resada made a surprising but ridiculous claim that it was PDEA lawyer Alvaro Lazaro who attempted to bribe him to drop the charges against the Alabang Boys.

Given his training as a lawyer, let alone his background as a DOJ prosecutor, Resado should know the words “afterthought” and “belated” – lingos with which lawyers are so familiar and glibly use in advancing or defending the cause of their clients. I’m sure Resado himself have made use of these terms several times before in resolving cases brought before him for preliminary investigations.

The implausibility of the claim can readily be seen. It was only after more than a month and a series of congressional investigations, not to mention the media interviews – since Major Marcelino bared alleged bribery attempts to secure the release of the Alabang Boys – that Resado accused Lazaro of being the one who attempted to bribe him.

The Alabang Boys case revolves around the allegations that there were attempts by well-to-do young men arrested in a drug buy bust to bribe PDEA agents and, more seriously, that DOJ prosecutors were bribed in dismissing the charges against them. If the former claim places the PDEA in a good light, the latter casts a serious doubt on the credibility and integrity of the DOJ as an important pillar in the administration of justice; it is an assault not only on the involved prosecutors, but on the institution itself.

Now if indeed Lazaro attempted to bribe Resado – an information that is important and vital in the investigation of this case – Resado should have revealed it at the outset instead of withholding it. The explanation that he was not given the chance to do so is simply ridiculous.

Something as important and serious as the claim that it was in fact PDEA’s lawyer that was guilty of bribery would have been among the major talking points of Resado’s counter-charge in trying to clear himself and in effect the DOJ; besides, if truly Resado was prevented from making the revelation during the congressional investigation, he had several opportunities to do so during the media interviews he gave before and after the investigation. A DOJ press conference was not farfetched.

Viewed now in the light of the timing and circumstances of the revelation, Resado would have himself called his allegation as a “belated” attempt and an “afterthought,” if he were to write the resolution of a similar case before him. It is belated and an afterthought because, as previously discussed, the alleged bribery attempt of Lazaro is something one would not normally keep to himself unless there are extraneous circumstances (excluding the ridiculous claim of lack of opportunity), such as coercions or threats against the claimant’s personal safety or that of his immediate relatives. And it is something one would only make to extricate himself from a difficult situation.

Resado never mentioned that he or a member of his family was ever threatened not to make the revelation about Lazaro’s alleged bribery attempt, thereby negating any plausible extraneous circumstance to justify his previous silence on the matter.

Lazaro’s counter-argument to Resado’s allegation is also worth noting. He argued that if indeed the charges against the Alabang Boys are dismissible then it makes no sense in saying that these boys orchestrated a bribery attempt for the dropping of the charges against them. Why would one go into the trouble of bribing someone to dismiss cases that are bound to be dismissed anyway? If the defendants failed to realize their favorable position given their lack of legal training, surely their lawyer would have seen it from a reading of the arresting officers’ affidavits and any testimony they might have given during the preliminary investigation.

Resado seems to be treading on dangerous grounds. In trying to parry possible charges of bribery and violation of the Comprehensive Dangerous Drugs Act of 2002, possibly for bungling the prosecution of drug cases under section 92 which carries a maximum penalty of imprisonment for 20 years (by law the maximum is imposable for convicted public officials), Resado inadvertently exposed himself to a string of violations of law, from banking, financing and tax laws to ethical rules for public officials and lawyers, for operating an underground lending business.

Resado’s latest refusal to waive his right to secrecy of his bank deposits, rather than help his defense, will only raise more questions on his innocence. Since he already exposed himself to possible tax evasion charges it is now pointless to hide under the veil of the bank secrecy law, for more sums of undeclared income would not make much of a difference anymore in so far as his self-incriminating declaration is concerned.

There are now only two narrow options that Resado must choose from in the face of these developments: (1) come clean and reveal whatever he knows, if he has anything to confess about the Alabang Boys case, and he might just be able to work out a plea deal with fellow prosecutors; or (2) get a darn good defense attorney and stop making incredible and incriminating statements.

OBAMA WAS INAUGURATED AS 44TH US PRESIDENT

His election to the presidency of the United States in November 2008, while marking a very historic moment in America, is surely not the climactic point in former Senator Barack Obama’s ascent to power. Today, before an estimated crowd of two million from all across America, and in the icy cold Washington weather, Barack Hussein Obama was sworn in as the 44th president of the United States – officially sealing the first African-American’s assumption to the highest office in the land.

After being administered the oath of office by Supreme Court Chief Justice John Roberts, Pres. Barack Obama delivered the inaugural address in his usual eloquent and measured oratorical skills that caught the nation’s attention and fired up his quest to the presidency.

While the theme of President Obama’s speech revolved around the need to return to the old values that shaped America as a nation of opportunity and power – such as hard work, honesty, courage, fair play, loyalty and patriotism – in confronting its new challenges, he sent a strong message against America’s enemies and in stressing his uncompromising stand of adhering to America’s ideals in protecting its security.

President Obama warned would be aggressors in no uncertain terms that they will not outlast America and will be defeated. At the same time he is leaving an open door for authoritarian regimes and expressed readiness to help them if they are ready to embrace and practice democratic ideals, such as Cuba, for example, with whom the U.S. has had strained relations for years since Fidel Castro came into power in 1959.

In what may be considered as a strong rebuff of George W. Bush’s policy on torture and other practices of questionable constitutionality in dealing with terrorists, such as the maintenance of the Abu Ghraib and Guantanamo prisons, renditions, and surveillance of citizens’ personal communications, Obama declared as false the choice between safety and ideals in defending the nation’s security. Obama appears to be stressing here that the constitutional safeguards and protections will not be set aside for the sake of national security, in contrast with Bush and Cheney’s policies.

For all the fanfare and festivities that marked this historic inauguration, hard work and seemingly insurmountable challenges immediately await President Obama. Confronted with the war in Iraq and Afghanistan, a steady threat to the nation’s security, a spiraling economy, and a demanding foreign policy environment in the Middle East, Obama knows that he does not have the time to spare in confronting the pressing problems of the world’s most powerful nation.

It is to his credit and a testament to his readiness that President Obama and his team of savvy political advisers and strategists started laying the groundwork for a ready and working president come day one; his people coordinated one of the smoothest transitions to power in U.S. presidential history, his key economic and national security team have been assembled long before the inauguration, and his economic relief plan is already being worked out with congressional leaders.

Both America and the world await what type of leader President Obama will be. There is obviously great expectation as to what can be achieved, and as soon as Obama started rolling his sleeves there will surely be disappointments and there will be those who will start questioning their allegiance and support; there will be unpopular decisions that will be made, statements that will not be acceptable, priorities that will not get support, but if the presidential campaign, transition, and inauguration – accomplished with organization and high efficiency – coupled with Obama’s vision and a popular support are indications, there is hope that an Obama presidency might just turn out to be the leadership that America and the world need.

LEGALITY OF MANDATORY DRUG TESTING IN SCHOOLS

The spate of publicity recently generated by the so-called Alabang boys case, which involves allegations of bribery of anti-drug enforcement agents and Justice Department prosecutors, has impelled the government to carry out a plan of action to curb the growing menace of dangerous drugs in the country.

One thing we are thankful of controversies is that government shifts into gears, albeit fleetingly in most cases, to address problems which have been begging attention for some time already.

In what appears to be a sweeping move to address the worsening drug problem, Pres. Gloria Macapagal-Arroyo declared herself as the country’s anti-drug czar and bared plans to institute a nation-wide mandatory random drug testing of students in secondary and tertiary education.

As in most other governmental moves affecting individual liberty, this plan has elicited not a few objections, not least of which are those coming from our esteemed lawmakers – who by the way crafted the law that provides for this type of testing.

Drug testing not only of students, but also of employees, public officials, candidates for public office and criminal suspects, is required by Section 36 of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165).

As early as 2004, the legality of this particular provision of law had already been questioned before the Supreme Court in the consolidated cases of Social Justice Society v. Dangerous Drugs Board & Phil. Drug Enforcement Agency (G.R. No. 157870), Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board & Phil. Drug Enforcement Agency (G.R. No. 158633), and Aquilino Q. Pimentel, Jr. v. COMELEC (G.R. No. 161658) – the decision in all said cases being promulgated only on November 3, 2008.

Petitioners in Social Justice Society and Laserna, Jr. chiefly argued that mandatory drug testing of students constitutes unwarranted intrusion into their privacy and violates their right against unreasonable searches and seizures under the Constitution.

The Supreme Court disagreed with these claims by ruling that schools and their administrators stand in loco parentis over their students, students have reduced expectation of privacy in school, and the testing is reasonable.

Citing two U.S. cases, the Supreme Court said that schools and their administrators have substitute parental authority and responsibility over their students, with the common interest to promote the health and well-being of these students by adopting reasonable measures.

The Court cited the deleterious effects to the young of dangerous drugs and how it may affect not only users, but other members of the academe. It found the presence of a compelling need to address the grave problems of drug addiction as a justification for intrusion into the privacy of students, which the Court pointed out as subject to limitations.

By entering schools, students have reduced expectation of privacy. Their rights to privacy are circumscribed by the school policies and regulations governing student conduct on campus; students in effect submit to the substitute parental authority of schools and their administrators and waive their privacy rights by enrolling in schools.

Aside from finding the mandatory drug testing as a justified form of intrusion into students’ privacy, the Court also found its reasonableness in the manner it is to be carried out by being a “suspicionless” and “random” arrangement. It is not to be carried out in the context of a criminal suspicion and not directed against any particular individual.

Unlike in the mandated drug testing of criminal suspects, which the Supreme Court found as unlawful in Laserna, Jr., the testing of students is not intended to criminally prosecute them, but to stamp out illegal drugs and in the process safeguard students’ health and well-being from the harmful effects of dangerous drugs.

The Court noted that if any student is found positive for the use of dangerous drugs this will not necessarily result in criminal prosecution, because Sections 54 and 55 of the law provide for voluntary submission to a treatment or rehabilitation facility for drug dependency and concomitant exemption from criminal liability.

Finally, the law was found to provide sufficient safeguards against arbitrary and abusive testing by requiring the test to be conducted by government-accredited facilities, maintaining confidentiality and ensuring proper chain of custody of test results, among other things.

As the Supreme Court had already ruled on the legality of mandatory drug testing for students in secondary and tertiary education, what is left now is the proper implementation of the testing itself. Parents, school authorities and students must become vigilant to ensure that any testing is carried out in accordance with the strict requirements of the law to prevent the system from becoming a tool for abuse and wrongdoing.