The Best and the Worse

The coming of a new year gives us the chance to review the year that is soon to end. Here is my list of the best and the worse of the year 2010:

The Best:

1. GMA ceased to the President- What good news for those who could not last another day of an Arroyo presidency! While all the malaise of Philippine society persists, it is still a relief that the little nasty one ceased to be the most powerful official in our land. There were of course last minute scares associated with automated failure of elections and a an attempt at a Charter Change that many suspected would morph her into a prime minister. But all these did not happen- not for lack of trying, but simply because the Filipinos would have none of it.

2. Noynoy is President- Yup; he only comes in as the second best for 2010. Why? Well, it’s because people hated GMA more than they actually liked him. The elections, after the cf cards of the PCOS machines were changed at the absolute last minute, was simply a referendum: GMA if you’re a masochist, or Noynoy if you want change- full stop. As a last minute and as a reluctant candidate, P Noy simply stood on a platform of honesty in government. Perhaps, when we find the time and energy to criticize him for anything and everything he has or has not been doing, we should remind ourselves that his only promise was to be an honest President. Let’s judge him on this basis.

3. An enacted 2011 budget in December of 2010- We have forgotten that the primary task of our congressmen is not to make 20% from their pork barrel, but primarily to ensure that no public funds is spent without consent of the people. “ No taxation without representation” was the battle cry of the English revolution that ushered in modern day representative democracy. And yet, in the nine years of our recent dark ages, an Arroyo controlled Congress was absolutely remiss in its single most important function. GMA liked it when her Congress was remiss because a reenacted budget meant that she had trillions of pesos to spend as she wished.

4. Leila De Lima is DOJ Secretary- Who would have thought that this humble, unassuming and quiet election lawyer would be the best Cabinet Secretary of the current administration? In her six months in office, she has managed to redeem at least the image of the DOJ that I knew as a child, having been raised by a State Prosecutor myself. Yes, she has not improved the conviction rate of our National Prosecution Service but she has at least redeemed some of our trust in the department that is synonymous with the rule of law.

The Worse:

a) GMA is still powerful- she may no longer be the single most powerful official of the land, but she made sure that she would remain ever powerful. No, I’m not just talking about her new role as a member of Congress with the most pork. I’m referring to the fact that through a midnight judicial appointment and an ever-loyal Ombudsman, she has granted herself absolute impunity despite a change in administration. Nope, GMA has refused to quietly vanish into the night. On the contrary, people expect her to make a comeback courtesy of a House of Representatives that she, through her loyal allies, still control. It is a question of when and not if Congress will ram down out throats a constitutional amendment that would make her Prime Minister.

b) Then Justice Secretary Alberto Agra absolves Zaldy Ampatuan and cousin from culpability in the November 23 Ampatuan massacre- What gall and what nerve this Agra had in attempting to clear the smartest of the Ampatuan clan from the world’s single most deadliest attack on journalists. Nena Santos, lawyer for the Mangundadatus, declared on national radio that it was literally because of millions and millions of reasons. For whatever reasons he had, that single decision rightfully made Agra the second most hated person in government, next only to his appointing power.

c) The demise of my friend and co-convenor of the Concerned Citizens Movement (CCM), “Josie” Lichauco- Lest I forget, 2010 marked the year that one of my closest friends and co-activists moved on to the next life. Pity that Josie never saw P Noy as President but yes, she will turn in her grave if she knew who it was that P Noy brought with him to Malacanang.

Happy New Year Philippine

A Christmas tribute to Trillanes

I was ambivalent when I first saw Antonio Trillanes IV on television. But there he was, a very young man, taking a clear and unequivocal stand against evil in government. My ambivalence may have something to do with four years of brainwashing called law school. Like military cadets, we were brainwashed to think that the Constitution was supreme and that change had to be through constitutional means. Never mind that as a freshman at the UP College of Law in 1986, we had no Constitution to study but for a two-page document known as the freedom constitution. Never mind too that we started our law studies with a brand new extra-constitutional regime that was the regime of Corazon Cojuanco-Aquino.
Perhaps, the ambivalence may have been due to the many coups staged against Mrs. Aquino, a regime that I was willing to die for. There too is the fact that as a high school activist, I once told a group of PMAers who hitched a ride with my family in Baguio that I hoped that they would not end up being fascists.

Law thrives though on stability. Law exists, among others, to achieve predictability. This is why an activist lawyer, which is how I would like to think of myself, appears to be a contradiction in terms. Activists seek to change. Lawyers seek to preserve the status quo through the legal fiat that the Constitution is supreme.

But there was excitement when I first saw him on television. Part of it was that he and his men were doing what I myself would want but could not do myself: to bear arms against an evil regime. But amazed as I was with the picture of more than 300 men offering their lives to rid the country of corruption, the lawyer in me could not initially fully appreciate their heroism. This explains why as I annotated one State-of-the-Nation Address immediately after the Oakwood incident with no less than Korina Sanchez, I could not articulate even a token of appreciation for what Trillanes and his men did. It took many years of my own struggle against the cheating, lying, stealing and murderous evil regime before I could fully appreciate their heroism. In fact, it was not only after I saw a video of him walking out of his detention before I could fully appreciate the heroism of Trillanes and his men.

Whenever I feel tired of standing up against evil in government and have the occasional urge to retire into the stereotype of an upwardly mobile lawyer, I think of Sonny Trillanes and the many years that he spent behind bars fighting a regime and a system that is rotten and evil to the core. Whenever I feel that this nation deserves to continue to wallow in poverty because despite a change in government, corruption remains endemic; I ask myself: what have you actually done for this country? Certainly, nothing can compared to what Trillanes and his men did: like Ninoy, they were willing to die for this country. And unlike me and others who have only raised their voice against evil in government, Sonny gave up seven long years of his youth for this country.

Sonny’s and our fight, though, is far from over. We had high hopes that President Aquino, if only because of his pedigree alone, will usher in the winds of change and actually rid this place of both poverty and corruption. We had high hopes that after nine years of unabated killings and enforced disappearances, that P-Noy, himself a victim of these killings, would put an end to impunity at last. But no, almost six months into his administration, all we see are landmines laid by the previous regime both in the Ombudsman and in court. It also does not help that there is much squabbling within Team P-Noy. And yes, in this team itself, you have recycled personalities from the evil regime, some of whom with prior record for kleptocracy parading as members of civil society. There too are virtual unknowns whom we did not see nor hear from in the struggle against the evil one. Some did nothing but claimed credit for rallies that we organized and paid for ourselves.

Sure, the fight against corruption is far from over. Sure, we continue to wallow in poverty. Sure, the killings are continuing. But for as long as we have young Filipinos willing to die for this country, there will always be hope for this country. That is the true legacy of Sonny Trillanes and his men.

But lest we forget, hero as he is, he too is human. I can only imagine Sonny’s happiness as he celebrates his first Christmas with his very young children as a free man. To Sonny, and the many heroes like him, Merry, Merry Christmas and may P Noy make do with his promises in the coming new years.

Senator Lacson and the Webb case

The Webb acquittal proves that Senator Panfilo Lacson is right: the Philippine justice system is an absolute failure. No less than a complete overhaul of the system is required to make it work anew. Let me count the reasons:

One, it took 19 long years for the Philippines to finally dismiss the criminal case for the killing of three members of the Vizconde family. This is a very clear breach of the duty of the state to protect and promote the right to life of the three murdered Vizconde family members. The UN Human Rights Committee has consistently held that this duty includes that to provide an adequate remedy under domestic law and the duty to pay compensation to the victims thereof.

In the case of Marcellana v. Republic of the Philippines, the Human Rights Committee declared that a failure of the state to investigate, prosecute and punish the killers of Eden Marcellana et al. for a period of five years (since the killing has occured too long ago) already amounts to a breach of a state obligation.

The recent Supreme Court decision acquitting Hubert Webb and five others is a continuing breach of this state obligation because meanwhile, the true killers have gone scot-free. Hence there was a failure to investigate, prosecute and punish the perpetrators of these murders. Needless to say, the failure of the Philippines to punish the killers of Salvador Dacer and his driver is also a breach of the state obligations on the right to life.

Two, it took 14 long years for the Philippine court system to acquit Webb and his co-accused. Under both International Human Rights law and the bill of rights of our Constitution, the accused has the right to a speedy trial. By any standard, 14 years is not speedy. And to think that this was the most sensational case that the country had prior to the Ampatuan massacre. Surely, one may speculate that the process could have taken longer if the case was not reported by the media as widely as it did the Vizconde case, and if it did not have such high-profile respondents. Simply put, 14 years behind bars for a crime that the accused did not commit is arbitrary and cruel punishment itself. Add to this the notoriety that as declared by the UN Human Rights Committee in the case of Wilson vs. Republic of the Philippines that conditions in our prison system are torturous, the 14 years that Webb et al spent behind bars is also tantamount to 12 years of continuing torture. Sure, critics of Lacson will say that he has to go through the process. I can only conclude, though, that Lacson, unlike Webb and the others, is unwilling to spend even a night in jail for a crime that he did not commit, knowing fully well how long it would take to prove his obvious innocence.

Three, we have a sick if not incurable investigative pillar of the criminal justice system. The decision of the Supreme Court was a very strong and clear indictment of the National Bureau of Investigation, which in the olden past, was considered to be more professional than our police force. The court declared that Jessica Alfaro was not credible and that her testimony was unbelievable. Again, if the NBI can coach and present witnesses to give fabricated testimony in a case involving accused who are scions of the rich and powerful, one shudders at what they have been doing to the common man. Can anyone fault Lacson for complaining that evidence against him is fabricated?

Four, there is the prosecution pillar of our criminal justice system that allowed the prosecution of innocent men to proceed even in the absence of credible evidence. In law school, we teach our students that the purpose behind a preliminary investigation is two-fold: to prevent waste of government resources in the prosecution of cases that cannot be won, and to ensure that the innocent do not have to undergo the cost and rigors of a long and protracted trial. Here, the public prosecutors should be taken to task for one, believing a person without credibility and whose testimony is unbelievable; and two, for allowing the long and protracted litigation knowing fully well that meanwhile, the right to liberty of the accused were curtailed. True that Webb and company can recover P10,000 each for their wrongful detention. That amount, though, cannot even come close to compensating even one day that an innocent person spent behind bars.

This I understand is why Lacson has been asking Secretary Leila De Lima to review his case. Simply put, the Senator, unlike the Webbs, will not wait for 14 years before he is declared innocent of trumped-up charges.

Five, we have inept and incompetent inferior courts that lack competence in appreciating evidence. The Supreme Court was very clear on why both the Regional Trial Court and the Court of Appeals were wrong. Aside from believing a person with no credibility and whose testimony was also unbelievable, both lower courts, according to the high court, should have appreciated the defense of alibi where the place of alibi was on the other side of the planet and when the same is fully documented. Maybe we should amend the law and make judges liable for clearly wrong decisions particularly where the accused was made to spend time behind bars.

Six and finally, Jessica Alfaro, the witness whose testimony the court did not believe – was almost certainly a recipient, like Cesar Mancao, of huge amounts of public funds since she was admitted into the Witness Protection Program. No wonder that the likes of professor Philip Alston, UN Special Rapporteur on Extralegal Killings, recommended a complete overhaul of the Program. How could the prosecutors behind the WPP believe the tale of one whom the court described as a “a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers”? In the same vein, how could the WPP believe Cesar Mancao, himself without credibility, and his ever changing testimonies? I certainly hope that Secretary De Lima will be true to her promise to give priority to the overhaul of the WPP before we become even more notorious as a killing filed.

Conclusion: Senator Lacson, you’re correct. As painfully learned by Webb and five others, and the Lauro Vizconde, our justice system sucks.

Anger as Philippines says will skip Nobel ceremony -AFP

Anger as Philippines says will skip Nobel ceremony
AFP – Thursday, December 9SendIM StoryPrint
MANILA (AFP) – – The Philippines confirmed on Thursday it would skip the Nobel peace prize ceremony for Chinese dissident Liu Xiaobo following pressure from China, triggering anger from human rights advocates.

The decision by one of Asia’s most vibrant democracies to stay away from Friday’s event in Norway comes as it seeks to build stronger military and economic ties with communist China.

“It is confirmed that there will be no Philippine official at the ceremony,” Department of Foreign Affairs spokesman Eduardo Malaya told AFP.

He said Manila’s envoy to Oslo, Elizabeth Buencuceso, was out of Norway on an official consular mission.

“Our ambassador to Norway has a scheduling conflict,” he said.

However two senior government officials who did not want to be named said the move was meant to appease China, which had repeatedly warned governments around the world that ties would be harmed if they attended the ceremony.

China reacted furiously to the decision by the Nobel Committee to award this year’s peace prize to Liu, who was jailed for 11 years last December on subversion charges after calling for reform of one-party communist rule. Related article: US pressured China to release dissident: cables

“We do not want to further annoy China,” said a senior diplomat at the Philippines’ foreign affairs department who asked not to be named.

President Benigno Aquino’s spokesman, Herminiano Coloma, declined to comment when contacted by AFP about the decision, referring all queries to the foreign affairs department.

But another presidential palace official said Aquino “did not want another irritant” in his government’s ties with China.

The Philippines has been working hard to repair diplomatic ties with China following the botched ending of a bus hijacking incident in Manila that left eight Hong Kong tourists dead in August. Related article: Rights groups push for Nobel laureate’s release

The Philippines is also seeking to buy military hardware from China — the nation’s armed forces chief, General Ricardo David, is in Beijing this week on a procurement mission.

Trade between the countries has been expanding since the 1990s, with China now the Philippines’ third largest trading partner next to the United States and Japan.

Human Rights Watch said it was “shocked and disappointed” at the Philippine decision, especially as the country had always been a leading supporter of Myanmar’s democracy heroine Aung San Suu Kyi, herself a Nobel laureate.

“The Philippines prides itself on its democratic values, which is why it is shocking to see this government turning its back on Liu Xiaobo’s non-violent struggle for free expression in China,” said Elaine Pearson, the group’s deputy Asia director.

“By declining the invitation to attend the Nobel Peace Prize ceremony, the Philippines is failing to live up to its promises to promote human rights in Asia.”

Lawyer Harry Roque, chair of the Manila-based Center for International Law, also expressed outrage.

“We should not have allowed China into bullying us not to attend the ceremony. This is an abdication of our moral duty to the world as the source of people power, of liberal democracy,” Roque told AFP.

“That was a regrettable decision, because in effect what we did was to support an affront on freedom of expression.”

Calls to the Chinese embassy spokesman in Manila went unanswered on Thursday.

Vietnam and Afghanistan are other Asian nations to have declined to attend Friday’s ceremony in Oslo. Related article: Pressure mounts on Serbia to reconsider Nobel boycott


I expected the recent decision of the Supreme Court declaring EO 1 creating the Truth Commission unconstitutional. I did so because I have known since the appointment of its current Chief Justice, that the court is one of the many institutions that have been weakened by former president Gloria Arroyo to ensure her impunity. In a previous published commentary, I said that a constitutional crisis would not be forthcoming if P Noy honors his campaign promise never to recognize what he himself described as a “midnight Chief Justice”. This, I said, has become a political question because it is on the basis of this promise , among others, that an overwhelming majority of the electorate elected him into office. Instead, I warned that a constitutional crisis in fact be would be forthcoming if it is the Court itself that abdicates from its primary mandate to uphold the supremacy of the Constitution.

By ruling that a toothless tiger such as the Truth Commisison is unconstitutional, the Court, in the exercise of its educational function, has effectively accorded Gloria Macapagal- Arroyo with impunity. First, it was the Ombudsman that told us that the former president could not be investigated for lying, cheating and stealing. Now, it is the Supreme Court telling us the same thing. Where should ordinary citizens now go for redress of grievances against public officials suspected to have breached the constitutional precept that public office is a public trust? Where should we go now to enforce this trust ? Until this decision, we thought we can go to the court of last resort.

Truth to tell is that I myself am not a big fan of this commission. I have written that it would be a toothless tiger unless it utilizes existing powers of the Department of Justice to conduct preliminary investigations, the Office of the Solicitor –General to file civil cases for forfeiture of ill-gotten wealth, and the Anti-Money Laundering Council for forfeiture of dirty money. All these suggestions fell on deaf ears. But precisely because it is a toothless tiger, how on earth can it be unconstitutional?

Sure the commission will duplicate the functions of the Ombudsman. But since when did the enforcement of the country’s anti-graft laws become the sole monopoly of the Ombudsman? The last time I read our constitution, it is still provided that the power to enforce all laws is an executive function. Moreover, the duplication, unfortunately, is not just happening, even if we want it to happen. This is because the current Ombudsman has opted not to investigate, more so charge her appointing power with anything. Full stop.

And because the investigation of the possible commission of a crime is an inherently executive function, I find nothing unconstitutional in the fact the commission was both created and funded by the president. This is not the first fact-finding commission created. We have had the Agrava Commission, the Feliciano Commission, the Davide Commission and the Zenerosa Commission, to name a few. Al of them were created by sitting presidents and funded from lawful appropriations made by Congress to the Office of the President. None of these commissions were declared unconstitutional. It alarms me hence that one with only the power to unravel the truth is ironically, the commission declared to be unconstitutional.

Yes, there is also the objection that it violates the equal protection clause. But there can only be such a violation if among others, a rule is applied in a dissimilar manner to persons similarly situated. Where is this dissimilar treatment? Marcos was accused of widespread plunder and was dealt with by the Presidential Commission on Good Government. Gloria Macapagal-Arroyo, suspected of similar plunder, is now sought to be dealt with by the Truth Commission, minus the compulsory and sequestration power of the PCGG. Where is the dissimilar treatment? The fact that no commission was established against former presidents Ramos and Estrada is because neither could rival the avarice of either Marcos or GMA. Where then is the violation of equal protection?

In the final analysis, I myself disapproved of this Truth Commission because it could not bring Arroyo and her cohorts to justice. Even so, I was hoping that while Ombudsman Gutierrez is there to accord GMA impunity, the nation could at least ferret out the truth on such scandals such as Northrail, NBN-ZTE, Jose Pidal, the Macapagal Highway, Swine scam, and Hello Garci scandals. While the truth would not mean punishment for GMA and her cohorts, other truth commissions established in South Africa, Argentina and Australia have at least proven to contribute to the reparations of victims since to know the truth would enable them to begin the process of recovery. That was all that I expected of this Commission. And yet, with the vote of 10 men and a woman, even that is gone.

Will someone please tell me since when the quest for the truth has become unconstitutional?

Philippine government decision to boycott Nobel Prize a blow to free expression

The Center for International Law (CenterLaw) urged the Philippine government yesterday not to bow to Chinese pressure to withdraw its participation in the Nobel Peace Prize awarding ceremonies for jailed Chinese pro-democracy dissident Liu Xiabo, saying a withdrawal “is a blow to the cause of free expression.”

“More than ever, we are called to uphold free expression is a cornerstone of democracy,” said Prof. Harry Roque, Centerlaw chair. “The last thing the Philippines should be known for is as a supporter to the repressive policies of the Chinese government.”

The Philippines has declined an official invitation from the Norwegian Nobel Committee to the awarding ceremonies for Liu, a renowned Chinese writer and human rights activist, who is serving an 11-year prison term in a Chinese jail for campaigning for reforms and an end to one-party rule in the People’s Republic of China.

News reports say Department of Foreign Affairs officials have publicly declined to offer an explanation for not attending the ceremony but a senior Filipino diplomat was quoted as saying on condition of anonymity that the Philippines did not want a further strain to its relations with China, already frayed as it is by President Aquino’s botched handling in August this year of a bus hostage incident where eight Hongkong tourists perished.

But the Centerlaw chair said the Aquino administration’s decision to decline the Norwegians’ invitation is “a blow to the cause of free expression.”

Centerlaw, which Roque heads, is a non-profit organization dedicated to the promotion of free expression in the Philippines and in the Asian region.

Following the announcement by the Nobel Committee of its decision to recognize Liu for his unstinting advocacy, the Chinese government has embarked on a campaign to boycott the awarding ceremonies.

Roque said Liu is a prisoner of conscience who only wanted greater freedoms for his fellow Chinese. “And yet the Chinese government is calling him a criminal for simply saying what many others cannot say in public.”