A Decent SONA


I would have wanted to hear his policy directions for the last two years of his term, which he had nothing to say about. Still, PNoy’s latest State of the Nation Address the other day was decent.

To begin with, four years into his term, PNoy finally ceased passing the buck to anyone. Gone were his annual complaints that much of the problems that his administration faced were created by his predecessor. While he still had stinging rebuke for his critics- as if he deserves only praises, at least, this time, he did not say that the problems of his administration were the creation of other people.

There too was a tacit acceptance of defeat as far as the controversial DAP is concerned. We discern this from two of his statements: one, that he will ask Congress to pass a supplemental budget for items covered by DAP; and two, he will ask Congress for a definition of “savings”. It would appear that after taking flak even from his own allies and the yellow PR machinery itself, the President has finally admitted, albeit impliedly, that the DAP is flawed. As a counsel for Petitioner Belgica in the case where the Court ruled DAP to be unconstitutional, we have always argued that in lieu of DAP, the Executive should have gone to Congress for a supplemental budget to fund the projects funded by it. We pointed out that in the case of Yolanda, all that the President required was two weeks to pass a supplemental budget. This after is the fringe benefit of controlling both Houses of Congress.

Anent the definition of “savings”, the President’s desire for a legislated definition certainly confirms that as currently defined by law, savings pertains to leftover sums after a project has been competed or abandoned. This does not currently cover the administration’s substitution of its judgment for what projects should proceed outside of what is provided in the appropriations law. Dean Raul Pangalangan observed on national television that the President’s second remark on DAP mirrors the administration’s position in its Motion for Reconsideration that “savings” is defined by law and not by the Constitution. Be that as it may, the fact is that his declaration that he would ask Congress for a definition is an admission that its own definition of “savings” as nullified by the Court lacks legal basis. Why else would he ask Congress for a definition anew?

It helped too that the President became magnanimous in the case of “Tanda”, “Sexy” and “Pogi.” He could have claimed their incarceration as a victory for his administration but rightfully desisted from doing so. First, because it is uncertain whether the prosecution of the three will actually warrant a conviction on the basis of evidence gathered by the Executive department through the Department of Justice; and two, whether the proceedings will conclude seasonably, or at least during his lifetime, even if it is certain that it is not going to be in the lifetime of all the accused. To claim the prosecution of the three would also have been wrong since until proven guilty, they enjoy the presumption of innocence.

Yes, this Sona was decent. Still, the President did leave out a lot of things. There was no mention for a second straight year of the Ampatuan massacre case and whether he can promise its conclusion during his administration. There too was no mention of the Freedom of Information law which he promised to support when he was campaigning. Likewise, there was no promise to repeal EO 464 which prohibits the appearance of Cabinet officials before legislative inquiries without permission of the President. There too was no policy direction on why he is not supportive of efforts to extend the life of Carper, or the Comprehensive Agrarian Reform Law which expired this year. And while I am sure foreign policy prudence was behind the absence of the West Philippine Sea issue in the Sona, the President should have assured the nation that we continue to be ever vigilant in the defense of our national territory.

I twitted during the course of the Sona that when all else failed, the President invoked the name of his dearly departed parents and resorted to tried-and-tested tears. That was the highlight of the Sona. For as he parries criticisms of the DAP, the President invoked the imagery of the democracy icons – his parents. He repeated their words that “the Filipino was worth dying for”. What he omitted is the fact that Filipinos are in fact, dying: from extralegal killings, enforced disappearances, torture, war crimes, and hunger.

But heck, a speech is to inform and entertain. The tears and the croaking voice was good entertainment giving the hottest telenovelas a run for their money.

Ultimately, what was lacking in his Sona was typical PNoy: what will he do for his last two remaining years in office? His omission of any agenda for the remainder of his term sends the message henceforth, that it’s all about who will succeed him in office. But the more than 700 days remaining in his term deserves an agenda which he should have discussed in his second-to-the-last Sona. The fact that he lacked a road map for the remainder of his term is confirmation that as usual, his governance will be reactive to everyday events rather than attempting to influence how the days will go by.

Oh well, it was a decent Sona. Let’s hope for an equally decent last two years of the PNoy administration. Meanwhile, as Ellen Tordesillas suggests, let’s find ways to both survive and be amused during the last two years of this President’s term.

America: The former superpower


America is now an ex-superpower. First, it ceased to be the biggest economy in the world. It is now only the second-biggest economy. China has long overtaken it and the tables have been turned. Communist China has not only become an economic tiger; it has also become the biggest creditor of capitalist America.

And the decline of superpower America goes beyond economics. With China’s recent foray into bullyism (yes, I invented that word) in the West Philippines Sea, it has allowed China to challenge its pre-eminence in the Pacific front. This used to be its bastion since World War II. This was why despite granting the Philippines nominal independence, it insisted on utilizing the country as an unsinkable military carrier with take-off points at Clark and Subic. These were bases that used to be its biggest military installations outside the mainland US.

Today, it is longer the US Navy that is feared in this part of the world. It is now the Chinese Navy that lords it over in these waters. First it took possession of Mischief Reef in the disputed Kalayaan groups of islands from Filipino soldiers then assigned in the island. Today, it has effectively driven away all Filipino presence in Panatag Shoal, an area that is literally the backwaters of the province of Zambales. And if the respected journalist Chito Santamaria is correct, China is not just interested in the fishing waters around Panatag. The real battleground, according to Chito, is Recto Bank where Manny Pangilinan is about to drill for oil.

Amidst this newfound Chinese expansionism, where is America? Well, at the first sign of a conflict, Hilary Clinton declared that it would take a neutral stance and urged a peaceful settlement of the dispute. Later, when the standoff persisted, she declared during a US Senate concurrence hearing on the UN Convention on the Law of the Sea that China’s claims to the vast waters of the West Philippine Sea exceeded what is allowed under international law. And recently, when President Noynoy Aquino went to the US begging anew for help, no less than President Barack Obama was clearly non-committal. This is apparent in a White House release after the meeting between Obama and PNoy stating, among others, that the two leaders merely agreed on “firm support for a collaborative diplomatic process among claimants to resolve territorial disputes in a manner consistent with international law and without coercion or the use of force.”

Make no mistake about it. Uncle Joe can’t be counted upon to deal with China- the bully.

Central to American foreign policy is that as the lone superpower of the world, it can be counted upon to maintain peace and order in this planet. At the very least, if its economic woes have become so bad that it can no longer play the role of superman, it should have sufficient resources to stand by its long-standing ally when needed. But no, nowadays, the American position is for its allies to swim or sink. Full stop.

This is not to say that the American position is wrong. I for one have never believed that mother America will ever come to our rescue solely to defend our interests. This is why I have been a long supporter of the likes of Claro M. Recto and Jovito R. Salonga, who believed no one can be counted to uphold Philippine interest but us -Filipinos.

Still, this lackadaisical manner by which America seems to regard the recent threat of Chinese expansionism is a major change in its foreign policy.

Make no mistake about it. While America couldn’t care less about the West Philippine Sea, it will come back to Subic and Clark not to defend us; but to uphold its own national interest. This is why it is in the process of sending 60 percent of its navy forces to Asia. Malacañang, I’m sure would want to take credit for this. But nope, this has been in the offing even before our recent controversy with China. At most, perhaps, the actual deployment of these forces to Asia was hastened by the dispute. They will come though not because Scarborough and the Spratly islands are ours. They will come because China’s claims to these territories may precisely hinder deployment of their ships into these waters.

We, unfortunately, are irrelevant to their policy.

Luisita: P Noy’s Victory


Predictably, the Supreme Court decision on Hacienda Luisita had mixed reviews. The left slammed the decision as being blatantly pro-Cojuangco since the Department of Agrarian Reform had long declared the stock distribution option null and void since 1995. Lo and behold, the left lamented that the Court is now saying that the tenants, through yet another referendum, and not the Constitution and our laws, will determine its legality. Hacienda Luisita Inc. was also unhappy with it. It wanted a decision that would recognize the validity of a series of referendum where allegedly, at least 70 percent of the tenants voted in favor of the stock option. But there is someone who ended as a victor with the decision: President Benigno Aquino III. No, it is not because he stands to benefit from this decision. His Statement of Assets and Liability for the past year posted a tremendous increase in cash and assets precisely because he divested himself of his minority shareholdings in the company. And no, it wasn’t also because he made good on his promise to redistribute the Hacienda to its tiller-tenants on or before 2015. On the contrary, the farmers are almost back to square one even if the DAR had already decided in their favor and against the SDO. The President became the ultimate victor in this case because while he could have influenced how the decision would be penned by the highest court of the land, he did not. Proof of this is how his lone appointee to the Court voted. Justice Maria Lourdes Sereno lacked the usual propensity of newly appointed justices to vote in favor of their appointing power, at least while newly appointed. In fact, Sereno was one of four who dissented and declared that the SDO was contrary to the letter and spirit of the land reform law. President Gloria Macapagal Arroyo would not have hesitated to talk to her new appointee to vote in favor of her interest. The controversial book by Marites Vitug claimed that she employed regular gofers whose task was just to liaison between her and some Justices of the Court. But in Aquino’s case, I heard Justice Sereno herself declare, in a lunch tendered in her honor by the University of the Philippines, that this President appointed her despite not having personally known her, but also that he did not ask any favors in return, not even regarding Hacienda Luisita which he co-owned at the time she was appointed. We cannot underscore Aquino’s victory in this regard. Arroyo’s unforgivable sin was not just in being corrupt herself, but also in corrupting our democratic institutions, such as our courts. It happened when she left the vetting for judicial posts at the hands of her cousins, the De Leon spouses, who in turn, nominated appointees on the basis of loyalty to Malacañang, and not on the basis of proven competence. Then there was her built in system of influencing and meddling in judicial decision-making through gofers. The lowest point for Arroyo was when she appointed a Chief Justice despite an express and literal prohibition in the Constitution. Not even the decision in De Castro can cleanse the former President of this sin. Credit must be given where it is due. Mr. Aquino could even have played hardball with the court in exchange for a favorable decision on Luisita, but he did not. He could even have promised that his allies in the House of Representatives would let go of the impeachment complaint against one member of the court in exchange for a decision upholding the series of referendums that were already held at Luisita. He did not. Fact is, this was one rare occasion when the most powerful official of the land allowed the Court to perform its constitutional function unhindered by presidential powers and prerogatives. This is truly refreshing. *** I am shocked that a majority of our people find the punching incident of Mayor Sara Duterte acceptable. The reality is those series of punches, including the manhandling that Sheriff Abe Andres suffered under the hands of the mayor’s bodyguards, constituted the imposition of sanctions without according the lowly sheriff his due process right to be heard. Furthermore, such punches were inflicted on a person in authority while the latter was discharging his duties. It was hence the crime of assault on a person in authority, and not just physical injuries. What makes matters worse is that the victim personifies our judicial system. Those punches were hence potent strikes not just on a sheriff, but also on the entire judicial branch of government. This made those punches affronts on the rule of law. The fact that the Mayor’s constituents should come to her defense comes with no surprise. Davao has been notorious for what Human Rights Watch claims to be almost a thousand cases of extralegal killings in the form of vigilante killings. What worries advocates of the rule of law is that in that city, almost everyone, with the possible exception of the Church, have expressed support for these killings. I have heard many Davao locals claim that these killings have kept the city drug free and peaceful. They miss the point. The right to be heard is the cornerstone of human rights law. By punishing a person before hearing his side, we wreck havoc on a legal system that has accorded protection to human beings amidst temptations by despots and anarchists to resort to law of the jungle.

Meeting of two presidents


I was witness to a historic meeting between two presidents: President Noynoy Aquino and Judge Sang-Hyun Song, President of the International Criminal Court, last Monday at Malacañang’s “yellow room”.
Since the year 2000, the Philippines, under then-President Joseph Estrada, signed the Rome Statute of the International Criminal Court. This is the first permanent international tribunal created to prosecute the most serious crimes that can be committed against the international community: war crimes, crimes against humanity and genocide.

The problem was that under former President Gloria Arroyo, the country shied away from membership in the court for various reasons. The most important among which were the opposition of the United States to the Court, and the Mrs. Arroyo’s own fear of being prosecuted before the Court.

“You do not even have to persuade me to join the Court”, a beaming P-Noy told Judge Song. “In fact, I have already sent the Rome Statute to our Senate for its concurrence.”

Under our constitution, no treaty may become valid and binding unless it is concurred in by two-thirds of all the members of the Senate. As early as 2005, we sought to effect that transmittal even through a petition that we filed in the Supreme Court in the case of Pimentel versus Executive Secretary. But with one signature, P-Noy achieved what we have been trying to do for nine long years: the transmittal of the statute to the Senate preparatory to our membership in the ICC.

Song, as diplomats often do, read from a prepared statement. He spoke about mankind’s painful experience with impunity and the need to ensure that individuals who may commit the most serious crimes should be brought to justice. He spoke about the 114 countries that have already become members of the Court, and his wish to see the Philippine as its newest member.

On hindsight, while Song’s statement was both officious and moving, it was not even necessary. The President, himself a victim of the extra-legal killing of his father, committed to make such killings a crime against humanity as part of state policy. He recognizes the need to effect an end to impunity through penology. Indeed, President Aquino needed no persuasion at all.

***

With the President was his entire legal staff: the Justice Secretary, the Solicitor General, and the Presidential Legal Counsel. There too was the Defense Secretary and some officials from the Department of Foreign Affairs. Before leaving the Palace, we were told by the President’s protocol officer, Ambassador Miguel Perez Rubio, that the President was leaving for Indonesia in about six hours and was taking a budget airline at that.

That, too, was historical. It was the first time for a sitting Philippine president to take a budget airline for an official trip abroad. I was so happy to hear this and could not help comparing the humility and prudence of P-Noy to the extravagance of his predecessor who spared no expense in her foreign trips. It was yet another reason to be proud of P-Noy.

Prior to the meeting with P Noy, President Song was in the Senate where he was assured by Senator Loren Legarda, chairman of the Senate committee on foreign affairs, of the chamber’s prompt action on the Rome Statute. She promised that the Senate concurrence would come before the Senate goes on recess on 9 June of this year.

Later in the day, the Philippine Coalition for the International Criminal Court and Centerlaw, a civil society organization which I chair, tendered a dinner to honor President Song at the Club Filipino. As host and moderator, I recalled how five years ago, Judge Song came on an unofficial meeting to lobby for our membership in the ICC.

Because his first visit was a purely civil society initiative, I recalled, to the audience’s delight, how we billeted Judge Song then in a motel in Quezon City. What a difference an official visit could make; this time around, he was billeted at one of our posh hotels.

Judge Song then spent the following morning addressing a standing-room-only crowd at the Malcolm Theater of the UP College of Law. He left yesterday afternoon for Malaysia. He left a community of admirers and a country hopeful that the ICC could end impunity in our land.

While saying goodbye to Judge Song in Diliman, the House committee on justice made history when they found probable cause for impeachment against Ombudsman Merceditas Gutierrez. Almost at the same time, the festive mood at the UP College of Law was shattered by the news that the Supreme Court had voted to admonish 36 of my colleagues for their statement “Restoring Integrity”, an official statement of the faculty of the UP College of Law deploring an act of plagiarism at the Supreme Court. Then I heard a radio report that Rep. Rodolfo Fariñas of Ilocos Norte was inquiring from the secretary of the House committee on justice about the status of the impeachment complaint against Justice Mariano Del Castillo.

One battle at a time. That was what I told myself before succumbing to a long and well-deserved sleep.