Sunday, 2 December 2007

What A Waste!

What Trillanes, Lim and their cohorts did in Manila Pen, I think, is indefensible. That much is certain. Despite efforts to spin what happened, focusing on their "desperation" and sidestepping what they did, is utter bullshit. It's like telling we should ignore people who rob because they did it to feed their kids.

What I am more afraid of is the seeming complicity of a big media outfit to this latest bout of military adventurism. For one, the reporting ABS-CBN, especially of its cable subsidiary ANC, was very spotty I suspect it was almost deliberate. While it had correspondents in Malacanang, it failed to get interviews from the AFP's top brass. So, while B/Gen. Lim and Sen. Trillanes were broadcasting to the whole country that different units of the military are joining them, for a long lull, there was no response from the AFP leadership, at least on TV.

It was almost like "decapitation" by failing to get an interview. This is very apparent especially after commentators doing the post mortem kept citing this lull as a sign that for a while there, everybody in the AFP was fencesitting. Evidently, if one gets his news only from the TV and cable TV, he'd get that impression.

However, Gen. Esperon was on the radio being interviewed by rival radio stations. He even said that most of those who joined Trillanes (those who were in civilian clothes and later changed to fatigues) were former soldiers who were already discharged from the service.Truly, information and disinformation are potent tools of war in the hands of those who know how to use them.

Our media must be able to draw the line between responsible media coverage and being used unwittingly as tools of psy-war. In fact, it was very clear that Trillanes and company were using them as shields. After the PNP issued an ultimatum and advised the media to vacate the hotel, the Magdalo officers kept telling them not to leave because "something big is going to happen at the end of the day".

Trillanes apparently thinks that the 11 million votes he had, which he believes came mostly from the AFP, automatically translates to support for whatever he does. By being elected, he was given a chance to work and make a reality out of his supposed ideals and convictions within the bounds of the law. Now, he throws it all away in one petulant act. What a waste.

Tuesday, 2 October 2007

The Abalos' Gambit

Some say Abalos "fell on his sword" to escape his certain impeachment and to spare Malacanang the agony of such political circus on someone so closely identified with Malacanang. I don't think opening his political veins to escape impeachment is the real reason. Those who abhor Abalos have already given themselves the masturbatory pat-on-the-back for a job well done.

I think they are underestimating Abalos.

Quite the contrary, instead of a forced move, I think the resignation of Abalos is a cunning gambit to develop his position as to the eventual criminal trial he will be facing. His term ends February next year (I think) and a few months seem too small a shield to hide behind.

Some people miss the fact that he will be tried while the Arroyo government is in power. Further, he is to be prosecuted by the Ombudsman appointed by PGMA. The same Ombudsman who sat on the Mega Pacific case even if the Supreme Court ordered it to determine who is criminally liable for the fucked-up COMELEC automation project. As expected then, she cleared Abalos.

He resigned to fast-track the criminal cases to be filed against him. He hopes that these criminal cases finish before 2010, or at least the presentation of evidence by the prosecution/Ombudsman. Expect the Ombudsman to file cases against Abalos and expect it to be fast. However, don't expect it to build a solid case that can lead to conviction. It will be bungled and hope that no one will notice the sleigh of hand.

The trial must be finished by 2010, or the prosecution's presentation of evidence at least. If a less sympathetic President is elected in 2010, he knows that while the Ombudsman has a fixed term, the executive has arm-twisting ways to pressure her to resign (just look at how Simeon Marcelo suddenly resigned from office). He isn't taking any chances.

If all goes according to plan, he's scot-free thanks to a weak case presented by the Ombudsman. And we can cry until we can squeeze blood from a stone, until vinegar turns to wine, but double jeopardy will protect him.

Am i glad that he resigned? No. I want him to be prosecuted under a new Administration and not under one that will give him acquittal in a silver platter.


Monday, 1 October 2007

The Wiretapping Controversy: Telcos Getting it Lightly

The wiretapping controversy in the Senate has been going on now for weeks. While it has been established that illegal wiretappings have been indeed routinely committed by the ISAFP, there has been yet no finding as to how. If one of the avowed purposes of the Senate hearings is the amendment of the Anti-Wiretapping Law, it must be established how such wiretapping is conducted.

Quite interestingly, a similar controversy is brewing in Greece involving Vodafone Greece and Ericsson regarding the wiretapping of more than 100 high-ranking government officials and dignitaries including the prime minister of Greece, his wife, and the Mayor of Athens beginning shortly before the 2004 summer Olympic Games. An article in New York Times regarding this:

The surveillance was done with a remarkable degree of sophistication, exploiting software developed by Ericsson, the Swedish manufacturer of the GSM cellular switches, which were used by Vodafone. Shortly before the bugging of the cellular system began, the telephone equipment maker had provided a software update to the computerized switches that route cell phone calls.

The article raises fascinating unanswered questions by noting that the Swedish phone equipment firm supplied only a portion of the the lawful intercept system — which had not been purchased by Vodafone Greece. The control interface software module was not included in the upgrade. However, because the modules necessary to essentially target and “clone” phone calls came with the upgrade, the attacker was able to control the modules inside the system, while effectively hiding from Vodafone Greece technicians.

That code permitted someone — who almost certainly had physical access to the computerized switches — to install at least 14 “shadow” cellular phone accounts. Whenever a call was made or received by one of the targets of the surveillance, one of the secretly created cell phone accounts could listen in.

The researchers note that Vodafone bungled its investigation of the crime by abruptly switching off the accounts and then erasing crucial phone and physical entry log data that might have provided clues about the intruders.


In another article, the same issue is being pursued:

A parliament committee is investigating the illegal cell phone surveillance of Premier Costas Caramanlis' and senior state security officials from just before the August 2004 Olympic Games until March 2005.

The list also included senior military officers, human rights activists, journalists, Arab businessmen and a mobile phone used by the US Embassy, according to a list of numbers given to parliament by Vodafone.

Victims of the wiretap operation were subscribers of Vodafone, which uses technology built by the Swedish telecoms equipment maker Ericsson to maintain its Greek network.

Ericsson's CEO in Greece, Bill Zikou, told parliament yesterday that software it installed in the network to allow legally-sanctioned surveillance had been exploited by a rogue programme to tap government phones.

Zikou maintained Vodafone had been informed about that legal software and had been responsible for its protection - a claim strongly denied by the British mobile phone operator.

"Ericsson provided the customer with full details and informative documents, noting that the new software package included software components for lawful interception," Zikou told parliament, according to a statement released in Greek by Ericsson.

But a Vodafone statement issued after Zikou's appearance said it had not been informed about the surveillance software.


In our case, when the telecoms were invited in the Senate hearings, they sent lawyers who seem more intent on leading the Senate on a "wild goose" chase by claiming that the wiretapping being claimed by former T/Sgt. Doble cannot be done without backing up their claim, at the very least, by presenting their technical people. Quite funny that the senators asking the questions base their questions on movies rather than on real-life controversies.

It seems strange that the telecom executives sent to the Senate are not aware of controversies of cellphone providers all over the world as far as wiretapping is concerned. To my mind, that may have been the point why they were sent. They are not technically competent to testify on the matter of cellphone wiretapping.

The actuation of the telecoms in the Senate hearings is quite suspicious. Information, as they say, is the real power. What if they are using the capability to listen to other people's conversation to further their own interests? Or worse, what if they are providing the capability to listen to cellphone conversations to the highest bidder?

Questions begging to be asked:

  • What are the capabilities of the government in monitoring and regulating the franchise of these telecoms?
  • What are these telecoms doing to safeguard the right of its subscribers to privacy of information?
  • What happens when these telecoms violate such?




Saturday, 29 September 2007

Back in the Saddle...

Nice to be back blogging.

The plate is full and there is a bunch of targets on the crosshairs. There is the NBN hoopla, the wiretapping controversy, and all the others in between, which is about all there is to be in Philippine politics.

Lemme just get my bearings...

Thursday, 30 August 2007

More on RA 4200 and Admissibility of Wiretap Materials

A lot has been said about RA 4200 but a thorny issue has been the admissibility of wiretapped material.

Let us try to start from the indisputable.
  1. The Bill of Rights (Section 3 (1) and (2) of Article III of the 1987 Constitution) expressly provides that evidence acquired in violation of privacy of communication and correspondence shall be inadmissible except if acquired as provided by law.
  2. RA 4200, otherwise known as the Anti-Wiretapping Law, authorizes the use of wiretapping and other similar methods provided the following is observed:

Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed.

Now, let us go to the questions.

  • Is the wiretapped material admissible as evidence against the wiretapper?
Yes.

  • Can the basis of that be found in RA 4200?

No.

DJB of Philippine Commentary argues otherwise. He argues that the basis can be found in Section 3. He says:

Most people misinterpreted the meaning of Court Orders as being valid only when they are issued BEFORE a wiretapping is done. But that is for legitimate wiretapping by the authorities, such as in kidnapping cases. A judge would never give a foreign spy this type of authorization!

But Section 3 says "before, during or after" a crime against national security is committed, Court orders may be issued authorizing "any of the acts" prohibited in Sections 1 and 2, such as possessing, copying and distributing the same.

Look how else can we prosecute real spies if we can NEVER use their illegally wiretapped products because they were illegally wiretapped.

As long as a Court says we can, we can!
That's an erroneous reading of the law. The Court Order mentioned in Section 3 of RA 4200 only pertains to acquisition of evidence through wiretapping and similar means and excludes the possession and distribution of already existing illegal wiretapped material DJB is alluding to. He missed the fact that the provision qualifies the issuance of such order on the following:

  1. that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed;
  2. that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and
  3. that there are no other means readily available for obtaining such evidence.
How can possession and distribution of illegally wiretapped material pass the requirement No. 2 and 3? Once an illegal wiretap, always an illegal wiretap. It cannot be cured.

  • So, what's the basis of the position that wiretapped material can be used against the wiretapper?
Because the prohibition of admitting wiretapped material as evidence against the wiretapper was not intended under RA 4200. It is a law intended to protect the privacy of communication and correspondence. Contrary to the letter of the law, it was not intended to protect everyone, including the person who violates it. Basic of statutory construction, "stay away from interpreting the law in a way that makes the law absurd." It is the person who was wiretapped that is afforded protection because it is his right that was violated.

DJB argues this wise:

Suppose a real spy practices espionage and tries to leave the country bearing his illegally wiretapped recordings. He is accidentally detained at the airport and is caught with the illegally wiretapped material.

The material contains scandalous conversations of govt officials, editors, publishers, private people, etc. and is prima facie evidence of the spy's violations of Section 1 of ra4200.

If the policemen decide to sell the material to the media or make lots of copies and give them away, I think they would be guilty of Section 2 violations of ra 4200 for using the illegally wiretapped materials.

But if the police submit this illegally wiretapped material to an RTC judge who authorizes them to use it as evidence in a case of espionage, this allows them to legally use the illegally wiretapped material.

Now, did the judge "CURE" (your term) the illegally wiretapped material.
Given this example, only a stupid, stupid spy would conspicuously label "wiretapped materials" as such. If the customs police or other law enforcement officer would play a CD on the suspicion that it is wiretapped material, it would constitute an illegal search. Thus, it would still be inadmissible as evidence.

It is also erroneous to say that law enforcement officers need to ask permission from the Court to use wiretapped materials in prosecuting the wiretapper. Such officer would be using it to prove that the anti-wiretapping law was violated, not to prove whatever is contained in the CD. The contents, in this instance, would be irrelevant. If the acquired wiretapped CDs, for example, were obtained through a valid search warrant or in those instances that justify a search without a warrant, why would the law enforcement officer need to ask from the Court permission to use them? Of course, they are admissible. The Court, on the other hand, is obligated to issue orders that would protect the rights of those who were wiretapped, to include hiding their identity from the public.


Wednesday, 29 August 2007

"Play It Again, Garci"

Two lawyers weighed in on the issue of admissibility of the so-called "Garci tapes" as evidence on the revived Senate investigations on the wiretapping scandal.

Prof. Harry Roque and Atty. Edwin Lacierda argue that the Senate can accept the tapes as evidence, both heavily relying on the Supreme Court pronouncement in the case of Gaanan vs IAC.

Prof. Roque wrote:

Gaanan vs. Intermediate Appellate Court, [145 SCRA 112 (1986)]: the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, following the principle that "penal statutes must be construed strictly.”

The “Hello Garci” tape is a taped conversation conducted through cellular phones. The wording of the prohibition is relative to tapping “any wire or cable”, and cellular technology does away with both wires and cables. Thus, RA 4200 is inapplicable.

On the other hand, Atty. Lacierda averred that:

It must be remembered that at the time of its enactment, there were no wireless cellular or cordless phones in existence. Since no such equipment existed, R. A. No. 4200 could not be stretched to include "wiretapping" of cell phone conversations. In addition to this, in 1986, the Supreme Court, in the case of GAANAN v. INTERMEDIATE APPELLATE COURT, defined "device" to secretly overhear or record conversations as an instrument that taps the main line of a telephone. In other words, R. A. No. 4200 was envisioned to apply only to telephone lines or what we call now in this wireless age as "landlines". The law is silent on cordless and cellular phones.

With all due respect, I submit that their reliance on the abovementioned case is misplaced.

First and foremost, Gaanan vs IAC was not about admissibility of evidence. As the Supreme Court stated at the very outset of the decision:

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.

Second, the gravamen of the offense/s defined by RA 4200 is the "act of using a device to secretly overhear, intercept, or record private communication or spoken word". While its short title says "Anti-Wiretapping Law", its title is actually "An Act to Prohibit Wiretapping and Other Violations of the Privacy of Communication, And for Other Purposes".

Parsing Section 1 of RA 4200, there are two type of acts that are made punishable under it:

  • to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word
  • to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described

The first is your conventional telephone wiretap. The second, on the other hand, involves the use of covert listening devices more commonly known as "bugs". They are absolutely correct that when Congress passed RA 4200, the legislators could not have envisioned the use of cellphones which have no wires or cables which in effect negates "wiretapping".

However, the wisdom of the authors of the law is on the second way of committing a violation of Section 1, RA 4200, i.e., the use of covert listening devices "however otherwise described". By overhearing, intercepting or recording the private communication or spoken word, the cellphone acts as the covert listening device. It is technically a "bug". Thus, while a cellphone may not be "wiretapped", tapping into it makes it a covert listening device (as a side note, the geeks at the FBI have reportedly been able to develop the capability to convert a cellphone into a conventional "bug" by remotely activating the phone's microphones and transmitting audio within the vicinity of the phone).

Third, even admitting for the sake of argument that RA 4200 does not cover tapping cellphones, it does not make it automatically legal. It merely says that the act is not punishable under such law. For the tapes to be validly admitted as evidence before the Senate, it must pass the muster of the constitutional provision that says:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.


Clearly, a violation of the privacy of communication and correspondence can only be admitted as evidence if it was acquired as prescribed by law. Since no law authorizes the act of overhearing, intercepting and recording of private communication over cellphones, any evidence acquired through such acts, though they may not be criminal (admitting for the sake of argument that they are not covered by RA 4200), are still inadmissible. Not all matters that are considered of public interest justify the setting aside of constitutional rights. There must be a law!

I can only imagine of one scenario where such tapes will be accepted as evidence, i.e., in a criminal proceeding against the wiretapper as object evidence where the content shall be irrelevant.

In contrast to the paeans of praise The Philippine Commentary is heaping on Sen. Chiz Escudero, I think he got swatted like a pesky fly by Brenda. Chiz was basically arguing that the tapes be conditionally admitted as evidence subject to a declaration of inadmissibility in case it is subsequently proven to be wiretapped material. What? In effect, he suggests that the Senate accept the tapes, play it, analyze it, turn it upside down, and when they are sure that it is wiretapped, declare that it is inadmissible as evidence. Doble comes to the Senate presenting alleged wiretapped material and the Senate says, "Ows, baka naman spliced lang sa studio yan? Hane, tingnan natin." Such sophistry, Chiz! No wonder DJB is beginning to worship at your feet.

Frankly, I cannot understand why the opposition senators insist on playing the tapes. Everybody who cared to hear it has already done so. An inquiry in aid of legislation that intends to prevent or discourage "wiretapping" need not go into the contents of the tape. They need to ask Doble who he did it with, how it is done, with the help of whom, how extensive is the operation, who orders it, etc. They will not find the answers to such questions listening to Gloria telling Garci, "Yung dagdag, yung dagdag."

If they want to go back to the electoral fraud issue, they better convince their counterparts at the Lower House to impeach her.


Monday, 27 August 2007

"SB 1862: A Slippery Slope" Part 1

Senate Bill 1862 seeks to provide a fixed term for the CSAFP and major service commanders of the AFP. Originally introduced as Senate Bill 1284, after committee hearings it was substituted with SB 1862 which is a result of a merger of SB 1284 and SB 67 of Sen Loi Estrada which intended that no officer be appointed as CSAFP when he has less than a year in the active service. It also includes the qualification that the CSAFP and the major service commanders "can only be removed for cause."

The objectives of the bill, according to its principal sponsor Sen. Biazon, are as follows:

  1. To prevent the trivialization of the position of the Chief of Staff thereby preserving its integrity; and
  2. To provide stability to the leadership of the Armed Forces of the Philippines by fixing the duration of the term of corps leadership so as to ensure continuity and consistency in the formulation and implementation of policies and programs.
I am afraid the legislation might have unintended consequences. This is a piece of legislation too preoccupied with the present, it disregards the future.

In intending to depoliticize processes concerning the armed forces, it might undermine the principle of civilian control of the military. In attempting to make the armed forces apolitical, we are courting them to throw their hat into the political ring. In attempting to insulate the armed forces from politics, it might lead to an armed forces who has a separate definition of "national interest" from the civilian authorities.

In the book "The Man on Horseback", Samuel Finer avers that:
"The moment the military draws this distinction between national interest and the government in power, they begin to invent their own private notion of national interest, and from this it is only a skip to the constrained substitution of this view for that of the civilian government; and this is precisely what we have defined as the very meaning of 'military intervention'."
My position that making the CSAFP a statutory position with a fixed term clashes with the principle of civilian control of the military rests on the fact that the CSAFP remains in the chain of command of the AFP. Reference has been made in the Senate deliberation proceedings to the Nichols-Goldwater Act of 1986 which reorganized the US armed forces following the slew of debacles it encountered, primarily concerning inter-service rivalry and service inter-operability. The said law prescribes a term of office for the Joint Chiefs of Staff and limits the US President's choice for the position to the major service commanders (chiefs of staff), vice chairmen of the Joint Chief of Staff and the unified commands (Centcom, CPAC, etc).

There is, however, one very glaring difference. The Joint Chief of Staff has no operational command of the troops. He is not part of the chain of command. Without authorization from the President or the Secretary of Defense, he cannot command the troops on the ground on his own authority. He is, however, not powerless. He is the most influential military man on the President's round table. And this is why many consider that the Nichols-Goldwater Act makes the Joint Chief of Staff too powerful. If he can monopolize the President's ear, he is the kingmaker!

Contrast that situation here. The CSAFP and the service commanders retain their position in the chain of command. There is a unified commander in the field but I do not know of any operational guideline that straightens out the matter of accountability and conflicting orders.

Now, if the CSAFP already exercises operational command of the troops, is the senior military adviser of the President, and with the subject bill, equipped with a fixed term, what are the consequences? Further, as the proposed law intends, he can only be removed "for cause" which the proposed law strangely fails to provide.

At the center of this question lies the principle of civilian control of the military. At the outset, let me make it clear that this principle is not the same as the principle of "civilian authority is supreme over the military". The former is only a component of the latter. The former emanates from the so-called "commander-in-chief powers" of the President. The 1987 Constitution makes the President the sole entity who has operational command and control of the troops.

So, what happens when the CSAFP disagrees with the President over a matter of policy or strategy, even privately? Who wins? Is this a "cause" that would justify getting fired?

If the President replaces or fires the CSAFP, he would be opening himself/herself to accusations that he/she is attempting to subvert the integrity of the armed forces. Under the proposed law, the burden of proving that the termination or replacement of the CSAFP was for a legal cause would be upon the President. Every action or omission of the President will be scrutinized and analyzed for politicking. What we will then have is a President who will have to tiptoe around all issues concerning the military. The President is virtually a hostage.

Friday, 10 August 2007

An Apology to MLQIII

I guess I owe an apology to MLQIII because of an earlier blog piece where I wrote:

Had he asked his lawyer friends, they would probably tell him that Trillanes and Jalosjos, at the time the said SC ruling was handed down, are basically on the same boat as far as the presumption of innocence is concerned. Jalosjos, while convicted by the trial court, was still presumed to be innocent because his conviction was on appeal. At that point, he remains an accused and not a convict by final judgment. You don't grade the presumption of innocence by the stage of the proceeding. Until such conviction is by final judgment, i.e., there is no more appeal or the right to appeal has been lost by inaction, the right of the accused to be presumed innocent remains.

I basically generalized that a trained eye would spot the error in MLQ's article. He wrote:


Pimentel justified his decision by citing the case of Romeo Jalosjos, who'd been convicted of statutory rape and reelected congressman, but was refused permission to attend sessions of the House of Representatives because the Supreme Court said he had to serve his sentence. In a word, Pimentel decided that an individual facing trial is on par with someone who has already been convicted of a crime.

MLQIII asked Atty. Lacierda to weigh in on the matter and the lawyer affirmed MLQIII's position. He wrote:


If you read the Jalosjos decision, the background scenario is that he has already been convicted and is sitting in prison. The equal protection of the laws says that all persons similarly situated should be similarly treated. Jalosjos and Trillanes are not in the same situation. Trillanes has not been convicted so far. His detention is due to the fact that the crime he committed is non-bailable, not because he has been convicted. Thus, he continues to enjoy the presumption of innocence. That is the big difference. By all accounts, your analysis is clear and correct.

What followed was an exhaustive argument on MLQIII's blog on the right to be presumed innocent and the effects of a finding of conviction by the trial court on such right. In hindsight, I think we need to revisit what MLQIII wrote and parse it line by line so that we can see what was erroneous in it which should have been seen by a trained eye.


So here it is again:

Pimentel justified his decision by citing the case of Romeo Jalosjos, who'd been convicted of statutory rape and reelected congressman, but was refused permission to attend sessions of the House of Representatives because the Supreme Court said he had to serve his sentence. In a word, Pimentel decided that an individual facing trial is on par with someone who has already been convicted of a crime. (Emphasis mine)

There was nothing of that sort in the SC ruling. Jalosjos was not serving his sentence. He is detained because the accusation against him is a capital offense. Even prior to conviction, he is denied bail. His conviction actually plays little part on the issue of his detention. What is operative here is the offense charged. Section 78 of the Revised Penal Code states
"No penalty shall be executed except by virtue of a final judgment."

A judgment of conviction becomes final (a) when no appeal is seasonably filed, (b) when the accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (d) when the accused applies for probation, thereby waiving his right to appeal.

An appeal of the conviction of Jalosjos pending with the Supreme Court leads us to the only conclusion, Jalosjos was not yet serving his sentence.

Which leads to the question, what is the effect of an appeal? Atty. Lacierda wrote:

The constitutional presumption of innocence really means that accusation is not synonymous with guilt. But if one is convicted, then it showed that the presumption has been overturned and it is now the turn of the accused to prove that the judgment of conviction is wrong. Moreover, to be very technical about it, an appeal is a statutory right, not a constitutional right.

He seems to mistake an appeal of a criminal case with that of an appeal in a civil case. He seems to be placing a burden on the accused to prove that the conviction was wrong, which was agreed to by some of the commenters.


However, jurisprudence holds that an appeal of a criminal conviction "throws open the entire case wide open for review, and the appellate court can correct errors, though unassigned, that may be found in the appealed judgment" (People vs Feliciano, GR 127759, Sept. 24, 2001). The appeals court may even reverse the trial court's decision on the basis of grounds other than those that the parties raised as errors. The burden of proof never shifts and the quantum of proof that the conviction be beyond reasonable doubt remains, even on appeal. As the SC said in People vs Lagmay (1999), "the presumption of innocence is not a mere procedural tool of the law. It is not overcome by the presumption of regularity; indeed, it can be rebutted only by proof beyond reasonable doubt."

It shows how painstaking the standards the law and the rules have set for the judiciary
before it finally convicts an accused. To hold otherwise is to cheapen the Constitution's guarantee to a person's right to life and liberty.



Friday, 3 August 2007

Legal Advocacy and Political Advocacy: Discerning the Difference

Deliberate failure to discern between the two has been, for a long time, an exclusive enclave of lawyers who would rather have their cases tried in the "court of public opinion" rather than by the judge. Hoping that a strong public clamor would influence to a certain extent the judge's ruling, it takes a judge with unwavering moral courage and nerves of steel in disregarding public opinion in making his decision.

This has been the seeming approach of the defense counsel in the Sonny Trillanes case who, as the ruling of Judge Pimentel said, exerted "undue pressure" upon the court by citing the wrong precedents. By citing and insisting that Trillanes deserves the same treatment that the other courts have given to Nur Misuari and Erap, they pushed the wrong button and instead were awarded a mild rebuke from the judge.

I don't know where the counsel of Trillanes got the idea that orders of other courts bind another because such order sets a "precedent". Under the principle of stare decisis, only final judgments of the Supreme Court and appellate courts become precedents and bind lower courts to follow the settled rule. Thus, the order of the other courts regarding the case of Nur Misuari and Erap are, at most, persuasive only in character.

By taking a rather "combative" stance, the defense counsel - probably taking the cue from his client - has been playing to the gallery on the issue of Trillanes' temporary liberty to be able to take his position in the Senate. They have been playing to the hilt the "bad boy with the heart of gold" (Robin Padilla) formula in the court that has given them success in the last elections. But that is still par for the course. Ultimately the court still has the power to cite in contempt a lawyer who would continue to cross the line.

What is disconcerting however is the growing penchant of the media, particularly of political commentators who, wittingly or unwittingly, blur the line between legal advocacy and political advocacy. Take for instance the columns of Manuel L. Quezon III and Conrado de Quiros on the decision of Judge Pimentel.

MLQIII wrote:

Pimentel justified his decision by citing the case of Romeo Jalosjos, who'd been convicted of statutory rape and reelected congressman, but was refused permission to attend sessions of the House of Representatives because the Supreme Court said he had to serve his sentence. In a word, Pimentel decided that an individual facing trial is on par with someone who has already been convicted of a crime.

Had he asked his lawyer friends, they would probably tell him that Trillanes and Jalosjos, at the time the said SC ruling was handed down, are basically on the same boat as far as the presumption of innocence is concerned. Jalosjos, while convicted by the trial court, was still presumed to be innocent because his conviction was on appeal. At that point, he remains an accused and not a convict by final judgment. You don't grade the presumption of innocence by the stage of the proceeding. Until such conviction is by final judgment, i.e., there is no more appeal or the right to appeal has been lost by inaction, the right of the accused to be presumed innocent remains.

On the other hand, De Quiros wrote:

Frankly, I don’t know how Pimentel became a judge. His wife certainly may not trust him to go to the market to buy apples and oranges, or indeed bananas -- he can’t judge the difference. Trillanes’ and Jalosjos’ cases are the same banana? Pimentel probably had in mind the banana National Security Adviser Norberto Gonzales shoved into his mouth while being grilled by senators about his attempt to sell Philippine security to the US Congress and being reduced to speechlessness in the process. The banana failed to revive his voice and Gonzales excused himself from further torture by citing high blood pressure. That’s the same banana Pimentel is eating.
I don't know if he is trying to be cute. He does not know Judge Pimentel and clearly he lacks the qualification to question the judge's competency and ability. Well, he could be an expert on fruits, that people can give him.

He further wrote:
Pimentel may not know it (which is probably why he is a judge in Gloria Macapagal-Arroyo’s courts), but there is something in law called “precedent.” Lawyers quote it to show that there has been a ruling by other courts on the same case, and a judge would be well advised to heed it. As far as I know, neither in the United States nor in Timbuktu, neither here nor there, has citing precedent ever been called applying undue pressure. It is all very well to be independent -- though one must wonder at the independence of a court that swallows hook, line and sinker a prosecution’s argument -- but it is not all very well to be independent of thought.
Again, if only De Quiros researched or asked his lawyer friends, he would come to know that not all rulings or orders of the courts are precedent-setting. While you may use those orders and rulings to persuade the courts to rule in your favor, it is not duty-bound to follow it.

It is one thing to argue before the courts the merit of one's case and another to take your issues to the bar of public opinion through a very supportive and biased media. I am reminded of the actuations of some media personalities (Ricky Carandang easily comes to mind) who readily express legal opinions and then immediately issue a blanket disclaimer that he/she is not a lawyer. If it wasn't an informed opinion, why even say it?

Rene Saguisag in his column clearly disagreed with the decision of Judge Pimentel but he clearly does not believe that Judge Pimentel is a nincompoop (as de Quiros did) and stopped short of insinuating that there were political considerations in the decision (as what MLQIII did).

Wednesday, 1 August 2007

Preventing Urban Landlessness: Putting A Cap on the Interest of Loan Agreements with Mortgage of Family Homes as Security

The past few years, Cavite bore witness to the rise of several lending and financing companies and personalities. With an eye to make a quick and effortless buck, they provide credit and financing at iniquitous, unconscionable and exorbitant rates. The prevailing rates stand at 5% monthly interest. Computed at annual rates, it would sum up to a neat 60% interest on loans ranging from P 100,000.00 to P 500,000.00.

What makes it doubly wrong is that these lending and financing companies have taken a liking to requiring residential house and lots as collateral with verbal assurances that they will not foreclose as long as the debtors pay interest monthly. As verbal assurances go, they fly in the face of what these lending and financing companies do when our provincemates fail to pay their obligation.

Of course, our provincemates can run to the courts to have the mortgage instruments reformed and the interest rates lowered to a more equitable and reasonable rate as enunciated in the decisions of the Supreme Court in Spouses Solangon vs Salazar (GR 125944, June 21, 2001) and Medel vs CA (GR 131622, November 7, 1998). However, the nature of judicial proceedings being passive and such remedy largely unknown to our provincemates, rare are instances that victims resort to courts. Sad to say, there remains a prevailing apprehension among our poor provincemates with regards our courts of justice, seeing them as exclusive for those who have money. It also does not help that these lending and financing companies are fronted by supposed lawyers. Thus, they are forced by circumstances to sell their land instead of being judicially or extrajudicially foreclosed by these lending and financing companies.

Letting these credit and financing companies go unfettered in their business would run to the ground the spirit and intent of various social justice legislations, especially those that involve redistributing residential lands to the landless. As it stands, a good number of my oldtime neighbors face the danger of being mere transients.

I gathered that there are pending bills before both Houses of Congress intending to regulate these lending companies and the way they do business. I am referring to House Bill 120 authored by former Representative now Budget Secretary Joey Salceda and its counterpart Senate Bill 1180 introduced by Sen. Ramon B. Magsaysay both titled “AN ACT REGULATING THE ESTABLISHMENT AND OPERATION OF LENDING COMPANIES IN THE PHILIPPINES AND FOR OTHER PURPOSES.”

However, Section 9 of the proposed legislation weakly states:

“Amount and Charges on Loans -An LC shall grant loans in such amounts and reasonable interest rates and charges as may be agreed upon between the LC and the borrower or debtor. Provided, however, that the agreement shall be in compliance with the provisions of Republic Act No. 3765, otherwise known as the Truth in Lending Act and Republic Act No. 7394, otherwise known as the Consumer Act of the Philippines; And provided however, that, the Monetary Board, in consultation with DTI and the industry, may prescribe such interest rate as may be warranted by prevailing economic and social conditions.”

It would be unwise to put a cap on the interest rates on all loan agreements because it might unduly restrict the free flow of capital and trade. What the situation entails, in my opinion, is a legislation that would put a cap on interest rates of loan agreements secured by a mortgage of the residential house and lots of the mortgagor. The Rules of Court under Rule 39, Section 13 exempts the family home from attachment. However, as an exception, the family home can be foreclosed if subject of a mortgage.

Thus, the said legislation should have the following salient features:

a. The cap for the interest rate of loan agreements covered by a mortgage of the mortgagor’s residential house and lot should be pegged at the legal interest rate, 12% per annum.

The Supreme Court’s decisions on matters involving the rate of interest (as stated above in the cases of Solangon vs Salazar GR 125944, June 21, 2001) and Medel vs CA GR 131622, November 7, 1998) have been uniform in this respect.

b. Should be applicable only to residential house and lots with a value of 2 million pesos or below

This proviso is just one of the limitations to make it applicable only to those who belong in the lower brackets of our society. However, to make it applicable nationwide, we may use the zonal valuation of the BIR to determine the proper threshold in the respective provinces or administrative regions.

c. The said house and lot is the family home

The intent of this legislation is the prevention of the uprooting of families and making them mere transients though landlessness. Congress has crafted various legislations to solve landlessness. This proposed legislation intends to make sure that such laws do not go to waste.

d. It is the only house and lot owned by the mortgagor

To prevent abuse, it must be stressed that the subject family home is the only house and lot owned by the mortgagor.

Monday, 30 July 2007

Alternative Party-List Law

I don’t think it needs further discussion that RA 7941 is a poor implementation of the constitutional directive for Congress to enact a law on party-list representation. Basically, the criticisms zero down on the following:

  • The 3 seat limitation – some groups want more because they argue that voters are being disenfranchised because some votes do not translate into seats , e.g. if 10% should get 5 seats, the votes beyond 6% are disregarded

  • The 2 % threshold – the difference between 2% of 100,000 and 10,000,000 is about 198,000 votes. How representation referred to in Constitution be based on a number which relies on the number of votes cast on the party-list elections?

  • The Panganiban Formula – the criticism on the so-called Panganiban Formula is that it awards party-list seats so niggardly. The thing is, it is RA 7941 that does so. The SC cannot go around and interpret RA 7941 as independent of legislative intent. That would be judicial legislation. Contrary to the criticism, the Panganiban Formula actually sets the bar lower for additional seats. Under it, if the first party is entitled 2 additional seats, a party must get at least 50% of the votes of the first party. But if it is to be really proportional, 50% should only get 1.5 seat. To my mind, a party should get at least 66% of the votes of the first party to be entitled to an additional seat.

Given this, an alternative to RA 7941 needs to be figured out. Am not talking of refashioning RA 7941 out of its flaws. What is needed is something that reorients the qualifications and parameters for selection of party-list representatives.

The only thing that will remain is the 20% threshold because that is stated in the Constitution.

First, I would do away with the 3-seat limit. Not that it means a party-list would be entitled to a number of seats relative to its share of votes, what I mean is that each party-list can only be entitled to one seat. How many voices do you need to be heard in Congress, by the way?

To my mind, a party-list group should be distinguished from district representation because its constituency should be based on its grassroots organization and should not grovel for votes like their counterparts. Their advocacy should not be based on popularity but organization. Consequently, their qualification to file a certificate of candidacy, aside from the fact that they should represent a marginal sector of our society, is the claim that they have a substantial membership base.

Thus, to those in the party-list, the election is merely a confirmation of what they claim in their certificate of candidacy.

The next repercussion to this is the avoidance of groups who merely represent an advocacy and not a marginalized sector. Thus, we find in the present dispensation the election of groups who are mere shells of an organization. They get elected by prostituting themselves for votes to the general public or by paying the “smooth operators” in Comelec.

Thus, we also avoid a very annoying sight where party-list groups competing and campaigning for votes during election time. Should it not follow that when they claim that they represent a constituency when they filed with the COMELEC, such constituency is already existing and not to be squeezed out of the general public come election time? Party-list representation should not fall under popular representation. That should be left strictly to district representation.

For qualification, the 2% threshold should be discarded. Taking into consideration the deliberations of Congress for RA 7941, the solons chose 2% because they assumed that such percentage would show that a party-list group that obtained such percentage would show that they indeed have a solid constituency. However, as several critics pointed out, basing it on the total votes cast would result in absurdity. Thus, if only 100,000 people voted for the party-list election, a measly vote of 2,000 would entitle a party-list to a congressional seat.

I suggest basing it on a real number. If Congress wants a benchmark of constituency, why not use the numbers we use for district representation. What is good for the goose is good for the gander. Under this, we might use two figures:

  • a number based on the average number of voters per congressional district (total number of voters nationwide divided by the number of congressional districts)
  • a majority based on the mean number alluded to above

Thus, if we have 40 million voters and 200 congressional districts, the number required for qualification in the first case would be 200,000. In the second case, it would be 100,001.

In the current set-up, if 40 million participated in the party-list elections, a party-list groups needs 800,000 votes to qualify. If only 20 million voted, 400,000. If only 100,000 voted, a measly 2,000 would entitle a party-list group to a seat. It is absurd that as the number dwindles, it becomes easier to obtain a seat in Congress.

Theoretically, the number of party-list groups that can qualify equals that of district representation. How do we trim that so that the 20% threshold is met?

That is why the initial qualification should be further subjected to another threshold. A party-list who obtains this initial qualifying criteria should rank in the list of top vote-getters within the number of seats allocated for the party-list. Thus, if 50 seats have been allotted for them, a party-list group should rank within 1-50 of the top vote-getters to be finally entitled to a seat in Congress.

Got Tagged, I'm It?

I've been tagged by cvj of Placeholder and Manila Bay Watch. The rules, as copied from cvj, are as follows:

  • In the 8 facts about [name], you share 8 things that your readers don’t know about you. At the end, you tag 8 other bloggers to keep the fun going. Each blogger must post these rules first.
  • Each blogger starts with eight random facts/habits about themselves.
  • At the end of the post, a blogger needs to choose eight people to get tagged and list their names.
  • Don’t forget to leave them a comment telling them they’re tagged, and to read your blog.
Here goes:

  1. I am left-handed but I write with my right hand. This is because my aunt tied up my left hand behind my back when she was teaching me how to write. Karma struck when 2 out of her 3 kids turned out to be lefties and she wasn't successful in turning them to righties.
  2. I was rated a sharpshooter (a notch below expert) on the caliber .45 pistol and M16/M14 rifles. I always tell my friends I deliberately missed the higher qualification because "sharpshooter" sounds very much cooler than "expert". Hehehe. Yet, I have an aversion to guns.
  3. I once had mlq3 as a classmate in Kas 150 under Prof. Guerrero. But I'd trade that in an instant to switch places with a friend who was a classmate of then "dyosa ng CSSP" Reema Padilla.
  4. I believe I was drunk half the time I was in UP.
  5. Most people I know eat "tortang talong" with ketchup. Rare do I see people eat it with soy sauce which is the way I like it.
  6. I started getting a bit of a paunch when I stopped drinking. Safe to say then that it is no mini-beer belly.
  7. My smoking habit is so bad I still smoke even when I have a cough. Well, at least I've weaned myself away from two-pack a day (topak days?) habit. Syado magastos.
  8. I have a bad case of sleep paralysis, particularly hypnogogia (paralysis before falling asleep accompanied by hallucinations).

The part about tagging bloggers, I'll pass. Most of the bloggers I read have already been tagged and suffice it to say I have started blogging only recently and I have yet to increase my blog-reading above 10 blogs. Those who have not been tagged I do not personally know or have expressed aversion to tagging. So, am I perpetually IT? :D

Thursday, 12 July 2007

The MILF: A Head Without A Body

The recent ambush that resulted in the killing of 14 marines and the mutilation of some of the dead soldiers should put into question the capability of the MILF to rein in its supposed "fighters."
The MILF, it seems, more like an association of warlords organized merely to inveigle political concessions out of the government but has no real operational command over its armed components. Nothing shows this better than the prevalence of the so-called "MILF Lost Commands".
Thus, Sec. Puno's fear of "balkanization" of Mindanao becomes more and more believable. Once the so-called "Bangsamoro Juridical Entity" is established, it will just be plagued with hungry and greedy warlords like a carcass attracts vultures.
Maybe, we need to tell the MILF to rein in its forces just like the government's precondition for the CPP/NPA for the resumption of the peace talks. Until then, all bets are off.

The AFP in the City...

In the matter of the presence of the military in the cities, some pundits and legal eagles have opined that this will delve into the matter of factual determination of the basis to call out the armed forces.
Such a question has been answered by the SC in the case of IBP vs Zamora. The SC held that the calling-out power of the President is necessarily discretionary and the judiciary cannot be called upon to overrule the President's wisdom unless, of course, if such power was made in such a way constituting grave abuse of discretion.
I humbly disagree however that the controversy will fall under the calling-out power of the President. It seems clear - based on the oscillating position of Malacanang regarding the military deployment in urban areas - that such is not under the calling-out power of the President. There has been no order from Malacanang for the AFP to conduct what it has been doing. Indeed, CSAFP Esperon has been consistent in claiming that the deployment is a unilateral initiative of the AFP in pursuance of its mandate to curb insurgency.
In relation to this, RA 8551 has given back the primary role of conducting counter-insurgency operations intended for the PNP under RA 6975. To properly mount a challenge to these deployments, to my mind, requires revisiting the case of IBP vs. Zamora, RA 6975 and RA 8551.
As can be gleaned from Section 12 of RA 6975, and therefore also in RA 8551, the counter-insurgency operations mentioned therein pertain to "where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles".
On the other hand, the "counter-insurgency operations" being conducted by the AFP in urban areas do not involve these but involve more of the so-called "winning the hearts and minds" strategy which are in the nature of delivering basic services (civil-military operations in military parlance) and law enforcement, activities that should properly pertain to the PNP and other civilian government agencies.
We do not have an equivalent of the Posse Comitatus Act, a law in the United States that forbid the use of the armed forces in the execution of the laws except upon cases and under circumstances expressly authorized by the US Constitution or Act of Congress. What we have is a provision in the 1987 Constitution (Section 5(4), Article XVI) that says:
No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.
Therefore, under the premises declared in IBP vs Zamora, there is an insidious incursion of the military in the task of law enforcement and other govermental duties which properly pertain to civilian government agencies, in violation of Section 5(4), Article XVI of the Constitution.

Monday, 9 July 2007

Human Security Act of 2007: How to use it and How not to

Observers and pundits have complained of the stupidity of the Human Security Act of 2007 and it would seem they are right. It starts with a convoluted legal definition of terrorism and actually has provisions that would make it highly inapplicable for being impractical.

While others pundits have basically pointed out the various loopholes of the law, allow me to try to outline what the security agencies can legally do, as opposed to what they have been doing all along, within the confines of Human Security Act of 2007.

One very glaring loophole of the law is its provision for compensation of P500,000.00 pesos for everyday that an accused has been held in detention for charges of terrorism if he is subsequently acquitted. Take note that nowhere in the law does it state that to be entitled to compensation, he must have been wrongfully accused. Thus, under the law a person who was acquitted for failure of the prosecution to prove guilt beyond reasonable doubt may be entitled to compensation. The law provides:

SEC. 50. Damages for Unproven Charge of Terrorism. – Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five Hundred Thousand Pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation...

Ordinarily, to be entitled for damages for malicious prosecution, there must be a separate judicial proceeding to determine whether indeed there was malicious prosecution. And it is not the government that would shoulder the compensation, it would be the government officials who are deemed to have acted beyond their powers who shall be liable.

Thus, the law shortcircuits its intent both ways: government agents acting in good faith to stop terrorists would hesitate from applying its provisions and stupid government agents can be gung-ho with it because they won't be paying the compensation after all.

Taking this into consideration, government agencies led by a person in his right mind will not file any charges of terrorism unless they are sure that they can get a conviction. As in everything that enters the courts, there is no such thing as an open-and-shut case.

How should they go about it then?

Use its provisions for investigation and the gathering of evidence. Then, file a case under the Revised Penal Code or special law, not under the anti-terrorism law. For example, murder or multiple murder, as the case maybe. In the long run, what's the difference between 40 years and reclusion perpetua anyway?

What then is the use of the anti-terrorism law? Just a justification for the enumerated powers for our national security agencies. Not that they have not been doing these things anyway.

Fleshing out the possibilities...

There has been much talk about the public's reaction to the upcoming decision of the Sandiganbayan on the Erap plunder case. However, opinions have crystallized on the possible reactions on basically whether it would be acquittal or conviction. However, there are varying degrees under each possibility which can possibly impact on the reaction of the public and various interest groups.
Let's take a second look on what are the possible decisions of the Sandiganbayan.
Let's start with the more problematic Not Guilty scenario. Under our criminal justice system, an accused will not be found guilty under the following:
  1. He did not commit the crime he is accused of
  2. The prosecution was not able to discharge the burden of proving the guilt of the accused beyond reasonable doubt

Some observers, apparently laboring under the assumption that the Sandiganbayan cannot reach a decision independent of personal and political considerations, argue that acquittal is the remotest possibility not because of the evidence presented but because they fear that acquittal would require the reinstatement of Erap to the presidency. Not only are they proceeding from a wrong and borderline malicious assumption, they are basing their fears on a wrong reading of the law, as Atty Marichu Lambino points out in mlq3's blog.

The acquittal of Erap has no legal implication as to the loss of the presidency. There should be no quibbling as to the finality of the Supreme Court's decision in Estrada vs Desierto, at least if we are to continue claiming that we are a "government of laws and not of men." Even if it can be argued that the Supreme Court's decision was wrong and be subsequently overturned, Estrada supporters cannot find comfort in that because the decision is already an operative fact and we don't have anything that would justify “a principle of absolute retroactive invalidity.”

What then is the basis of this fear? Another outburst of "people power", a redux of "The Empire Strikes Back" or "The Return of the Jedi" depending on where you are sitting on the current political spectrum (a more substantial discussion of the Philippines in the light of Star Wars parallelisms would probably be discussed in another post).

There are various factors to consider whether this scenario will unravel or not. Suffice to say that taking into consideration the current disposition, it remains a long, long, long shot. The best recourse for the country, if GMA cannot be legally kicked out of office, i.e. impeachment, is to sit out the next three years. Ironically, it is the same thing that we should have done in 2001. Years from now, historians would probably say that our curse was "people power". Marx did say that history repeats itself, first as a tragedy, the second as a farce.

On the other hand, Erap may be found Guilty under the following circumstances:

  1. He has committed the crime charged in the information which is Plunder
  2. The prosecution failed to prove plunder but nonetheless proved that Erap is guilty of a lesser crime necessarily included in plunder (violations of the anti-graft and corrupt practices law)

One thing needed to be pointed out is the lack of finality of the Sandiganbayan's decision in case the verdict it comes out with is one that would convict Erap. Erap has the option of appealing the decision to the Supreme Court. If that happens, what can be seen is just a prolongation of the status quo. Unless, of course, the administration would insist on throwing Erap to Bilibid. However, it would not be politically astute as it would definitely rile up Erap's more rabid supporters. The administration has successfully justified Erap's incarceration in Tanay when he should have languished in a city jail somewhere during the trial. It wouldn't be difficult to justify his continued incarceration in Tanay while he appeals his conviction.

An ideal set-up for final and executory conviction of Erap is that it be done after the term of this administration. By then, he'd be over 70 and presidential clemency would be easier to swallow.

Sunday, 8 July 2007

Erap Aftermath?


Whether Estrada be acquitted or convicted, the cards are stacked in the administration’s favor.

If he is convicted, there’s the appeal to the Supreme Court. Unless the administration makes the blunder of transferring him to Bilibid and making a martyr out of Erap, it would just be status quo until the high court makes a final ruling.

If he’s convicted of a lesser charge, pardon can only be given if he does not appeal and he has always maintained that he won’t accept clemency from Mrs. Arroyo.

If ever he is acquitted, I don’t think he’d ask for the presidency back. He has made peace with the fact, i think, that it is lost. He’d probably content himself with making sure that he’d be a thorn in the side of Mrs Arroyo and be the opposition’s capo.

More importantly, there’d be little chance of people massing in the streets.

First, you have the weather. And I wouldn’t put it past the Arroyo government to do “cloud-seeding” just in case there’d be an attempt to gather people.

Second, by the end of the rainy season, at the very least by mid-October, there’s the general sense of well-being due to the Christmas season.

By January, when people are more hot-headed and now predisposed to mass-actions and protest rallies probably because they are again neck-deep in debt due to the holiday festivities, the issue would have blown-over.

Friday, 29 June 2007

New SND and amnesty in the making...

Conjuangco scion Gilbert Teodoro has been appointed as the new Secretary of National Defense in place of Sec. Hermogenes Ebdane who was put back in his erstwhile position at the DPWH. Hmm, I wonder what the AFP top brass will think of it. Another outsider, another mighty-tooty lawyer to be under. To be fair, they were kinda impressed with Avelino Cruz way back.

Hmmm, I wonder how long it would take for Sec. Teodoro to impress the armed forces. And maybe, just maybe, having a civilian, a lawyer to boot, back at the helm of the DND will put a stop to the legal brinkmanship being practiced by the AFP in the conduct of its counter-insurgency operations.

Hmmm, another amnesty for coup plotters in the offing? We should expect another round of military adventurism in the future then.

Tuesday, 26 June 2007

A New Animal...

Philippine political evolution has given birth to a new animal. Quite different from its most immediate progenitor, Lintang Garci, Lintang Bedol is the most pernicious animal ever to come out of its gene pool.

While most leeches, or in the vernacular “linta”, are known to be predatory, they are known around this part of the globe as blood-suckers or haemophagic leeches. They attach to the host, suck blood, then fall off to digest after they are full.

Lintang Garci and Lintang Bedol are of this haemophagic variety. However, they are even more. They not only suck blood, they wreck havoc on the national scale, corrupting elections and installing unelected leaders. More than sucking blood, they suck the moral fiber out of society.

While they are both known to be slippery bastards, with the uncanny ability to lie between their teeth without batting an eyelash and able to exploit the letter of the law to advance their interests (well, the devil can quote scriptures, right?), what makes Lintang Bedol more dangerous than Lintang Garci is shown by its tendency to strike back like a cobra when cornered.

When Lintang Garci was being hunted down for his 2004 exploits, he simply disappeared. He challenged his detractors to file charges against him. Never did he challenge the Comelec.

With Lintang Bedol’s challenge to the Comelec to sue him, he has ascended another step in the evolutionary process. This is an animal that will that will probably rank with praying mantises and the black widow spiders, animals whose participation in the sexual act usually results in the death of their mate.

The sky is the limit for Lintang Bedol.

While the Romans had Lamia or Hannibal to scare their children to sleep, future Filipino children should probably have Lintang Bedol as their bogeyman. Our political future depends on it.

Sunday, 24 June 2007

Esperon and Legislative Inquiries: Finding a Common Ground

As I have commented in the Philippine Commentary, in circumstances where the executive and legislative departments of the government are at loggerheads, a military officer is put between a rock and a hard place if summoned to attend a legislative inquiry. While Esperon's declaration that he will use EO 464 in case he will be required to appear before Congress has been highly criticized as another example of a military officer talking about something he hardly has a clue on, it reflects the general confusion of military officers on this matter.


On the one hand, as a military officer and following the principle of subordination to authority to the Chief Executive under its commander-in-chief power, he may be ordered by the President not to appear before Congress under the pain of court martial if he insists on doing so (Gudani vs Chief of Staff).


On the other, military officers have the duty to advise Congress on matters of professional expertise in accordance with the latter's duty to make legislative inquiries in pursuance of the legislative mandate. Further, the power of Congress to conduct legislative inquiries has been said to be broad and encompassing that it can demand officials of the executive to appear before it, except when executive privilege is invoked.


On the practical side, his career will surely suffer if he gets on the bad side of the two protagonists. Where is he to turn to? Is it possible to find a common ground and before a court order from the SC is issued? Senator Joker Arroyo, in a recent statement, said it is embarrassing to have another Supreme Court decision to decide on a tiff between the executive and the legislative.


As a matter of procedure, instead of demanding that military officers appear before Congress, why not ask their immediate civilian superior to appear before it? The Secretary of Defense, as the alter-ego of the president has the authority to speak on matters involving the armed forces and national security. In this way, we skirt the issue of placing military officers in a situation where politicians can pressure them to air their political views. In a perfect world, military officers should have no political views or they keep it to themselves lest they prejudice the subordination and loyalty required of them and demanded by their oath and commission. We all know that we don't live in a perfect world and we have one of the most politicized military on this side the free world. At the very least, the exchange between members of Congress and the Secretary of Defense will be as between politicians, not between a politician and a soldier.

If that cannot be implemented or the matter really needs the attendance of the military officer, unless executive privilege shall be invoked, military officers should attend legislative inquiries. The compromise really can be found in the manner and selection of questions to be propounded to the military officer. In this respect, Malacanang's position on the matter of prior knowledge of the line of questioning and general topic of the inquiry appears to be on the spot.




Lando...

When i first heard the song, I thought to myself "What the hell is thing song blabbing about?" Well, forgive me for thinking that because I only heard the refrain which I thought smacked of viligantism.

After hearing the whole song, I concluded that the Filipino rap community has a future after all.

Saturday, 23 June 2007

Left-Right Combination (Parang Boxing?)

I don't see how the left-right political spectrum applies to Philippine politics anymore. And I still read about a lot of people using the left-right spectrum to describe political conviction.
Using the left-right political spectrum, I think,benefits only the local communist movement as it evokes an image of thecommunist party standing for the people. Thus, they use the rhetoric of democracy and "power to the people" even when we all know what they mean is"power to the party". They are to the extreme left of the traditional left(by traditional left, i mean harking back to the French Parliament during the time of the French Revolution where it was supposedly derived from).
Makes sense? It doesn't to me.
In the United States and Europe, there are various opinions about what determines whether one sits on the left or on the right, but it is generally drawn along the following lines (Thanks to wikipedia):
  • Equal outcomes (left) versus consistent processes (right). It is basically a process-based reasoning vs end-result principles dichotomy. Pre-EDSA II, Erap and his group are rightists invoking the "rule of law" (consistent processes) vs the left, the civil society's insistence on People Power as a justified use of the people's sovereignty (equal outcome). Presently, GMA is a rightist, invoking the "rule of law" to suppress dissent and Erap aleftist, rousing the people to oust GMA. Conclusion: In the Philippinesetting, left-right politics is based on your location vis-a-vis the seat ofpower. You are a rightist if you, or someone you support, are in power andleft if you are "out left in the cold".
  • Redistribution of wealth and income (left), or acceptance of inequalities as a result of the free market (right). In this respect, everyone is a leftist based on what they say. Even the elites are leftist because they saythey believe in the redistribution of wealth as a prerequisite for national development, its just that they believe in giving the wealth of the other elites and not theirs. No one is a rightist. I haven't heard anyone stand upto say "let us accept the present poverty as this is a result of the freemarket. It's the "invisible hand" of Adam Smith at work."
  • Whether the government's policy on the economy should be interventionist(left) or laissez-faire (right). Push. Well, maybe confused. Basically, floating in the middle. Politicians have basically fudged the difference (some do not even know there is a difference). They can basically hover above the issue by saying the government should intervene when it needs to and not when it doesn't. That is probably why they sing and dance atpolitical gatherings during election periods, no question and answer portion.
  • Support for widened lifestyle choices (left), or support for traditional values (right). Conservative vs Liberal. Again, push. It depends on who the politician is facing. If they are facing church groups, extol traditional values. Kapag mga yuppie, siyempre liberal tayo repapits. Pag nagkaipitan, kung saan mas maraming botante, hanggang eleksyon lang naman eh.
  • Whether the state should prioritize equality (left) or liberty (right). Parehong positive. No choice, extol both.
  • Whether the government should promote secularism (left) or religious morality (right). Same as widened lifestyle vs traditional lifestyle.
  • Collectivism (left) versus individualism (right). Yung para sa tama. Pag na-elect na, collectivism yata pero yung pagkakaiintindi nila, para may collection. Colect and collect lang.
  • Support for internationalism (left), or national interest (right). Politiko: Again, yung para sa tama lang. Tamaan sana kayo ng kidlat.

I think all politicians have moved to the center, at least, based on what they claim to stand for. Or maybe they have become politically ambidextrous.Either way, only the Left is left standing. So, for the sake of clarity, why don't we just call them Communists?

Thursday, 21 June 2007

Those Geniuses at the DOJ...

After spending valuable government resources pursuing and flushing out from hide-outs the venerable Senator-elect Gregorio B. Honasan, the DOJ now comes up with a resolution clearing him of coup d'etat charges. Instead of hunting terrorists, military and police intelligence operatives were hunting down the ultimate political opportunist for months. And now, this?

For those who watch professional wrestling, GBH would put Rated-R Superstar Edge to shame. Nobody could do so much damage nary the contrition. He says he always had the best intention for the country. Yeah, right.

Wow, the DOJ must be populated by ultra-just and outstanding lawyers. On second thought, it might just mean their a bunch of idiots down there. Wait, now that I thought about it, it might just be that they're a bunch of mindless puppets whose strings are being pulled from somewhere along the banks of Pasig River.

wasn't it a few months ago that the maverick senator was reported to have met with the President in Malacanang?