UPIS 2011 Commencement Speech

My speech at the UP Integrated School graduation held this afternoon.

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Chancellor Saloma, Dean Ocampo, Dr. Zuñiga, Prof. Donkor, Dr. Tadena, Mga Mahal na Guro, Mga Magulang, Mga Bisita, Ang Mga Magsisipagtapos, Mga Kapwa Estudyante at Kaibigan, Magandang Hapon po sa inyong lahat.

Unang una maraming salamat sa pag-imbita sa akin na maging bahagi sa inyong pagtatapos. Isang malaking karangalan para sa akin ang pagkakataong magsalita dito ngayong hapon. Sa katotohanan, medyo kinakabahan nga ako. Kahit ako’y nakapag oral arguments na Supreme Court, nakipag-debate sa mga pulis sa loob mismo ng Camp Crame, at na-interview na nang napakaraming beses sa TV at sa radyo, iba pa rin talaga ang pakiramdam kapag kailangan mong magsalita sa harap ng mga guro na nung huli kang Makita ay 12 year old ka pa lamang.

Please allow me to start with a confession. Or to be more accurate, two confessions. First is that I never actually graduated from UPIS. Ayon nga sa programa, ako ay bahagi ng Batch 86 Elementary. I suppose this is a polite way of saying na sa ibang eskwelahan ako nag-high school. So actually, graduate ako ng Philippine Science. Pero bago niyo ako pag-babatuhin, bigyan niyo ako ng pagkakataong magpaliwanag. Gusto ko sana talagang mag-UPIS. Talaga. Walang biro. In fact, nagpunta na ako sa building natin dyan sa may Katipunan (na balita ko’y malapit na yatang maging Mall sa darating na mga buwan) para mag-enroll sa Grade 7. Pero, anong nangyari? Pinigilan ako ng ilan sa aking mga guro sa elem at pinilit kumbinisihin na lumipat sa Pisay. Sayang daw ang pagkakataon. So, mabigat man sa loob ko, di ako nag-UP nung high school. Hanggang ngayon pinagsisihan ko pa rin paminsan-minsan. Lalo na’t yung crush ko nung Grade 6 ay tumuloy sa UPIS…

Binawi ko naman pagkatapos ng high school. Pagkagradweyt ko, sa UP ako uli nag-aral. Kung titingnan natin ang buong kasaysayan ng aking pag-aaral, mula elem, hanggang kolehiyo, law school, at post grad, bukod sa apat na taon ko sa Pisay, at isang taon sa NYU, buong buhay ko bilang estudyante ay nasa UP ako. Kapag dinagdag ang sampung taon kong pagtuturo sa Unibersidad, 24 years na akong nasa UP. Nakabawi na naman siguro diba?

My second confession is that, after I accepted this invitation to speak, I found myself completely at a loss as to what I was going to say. I can probably explain this, in part, with the fact that I am still at that point in my life – o sige na nga, that age – where I do not expect to be giving commencement speeches. It still feels like I just graduated from high school, and it still comes as a surprise to realize that that was actually 21 years ago.

The other reason for my difficulty is more fundamental. Commencement speeches are supposed to be replete with profound insight and relevant advice. At the same time, they are addressed to a group of people – young high school graduates like yourselves – who are probably sick of getting insight and advice. After all, you are at the height of invincibility, with a decade of formal schooling behind you and the limitless possibilities of college and career waiting before you. Who needs advice?

So let’s make a deal. I won’t give advice. I won’t tell you what you should or should not do. I will not even venture to prod you down the particular paths I think you should take. Instead, I will just tell you about my own observations, my own experience about the terrain that we will, in all likelihood, soon be exploring together as fellow travellers.

First let’s start with the good news. The future – your future – is rife with opportunity. Perhaps more than any other time in the history of our country, the possibilities for the talented, the hardworking, the determined Filipino graduate, are virtually limitless. With the advent of the Internet and the rise of information technology, with the opening up of international job market and the emergence of the global economy, your choices as to the careers you will pursue and the lives you will lead are no longer confined to what can be provided in the Philippines. In fact, rather ironically, many of you will probably find more attractive choices outside of the country: a truth attested to by the fact that so many of my own classmates, in elementary, high school, and college, now live and work abroad.

Let me point out though that this is good news to you – specifically those graduating today. The unprecedented levels of mobility and flexibility, make no mistake, are not available to all Filipinos, but they are to you. After all, you are graduating from UP, which means that you have been fortunate enough to have the education and the ability that will allow you to access, and take advantage of, all these opportunities. So many of our fellow citizens, who do not have the benefit of your – our – background, unfortunately, cannot say the same.

This brings me to the second point, that hand in hand with these opportunities available to you as individuals, is the reality that collectively, our country, our community, our world, face tremendous challenges on a wide spectrum of issues. The disparity in educational opportunities I mentioned earlier is just one of these. Rampant poverty, poor governance, corruption, environmental degradation, the list of problems seems endless. But take note that I characterized these issues as challenges. They are not givens to be simply accepted, they are difficulties to be overcome, questions to be answered, challenges to be resolved.

In your enthusiasm for the grand vista of possibilities that lie before you, remain aware that so many others are denied the privilege of that outlook on the future. The sad fact is, right now, not everyone can be a graduate of UP. But more significantly, be aware that apart from the many individual opportunities open to you, there is now a collective opportunity, at this point in our country’s history, to respond to these challenges, and work for something better. The frustrations and tragedies we have had to endure over the past few years have given us a renewed perspective on the challenges facing our nation, our world. On numerous issues ranging from human rights, to the environment, to good governance, many Filipinos, both in government and civil society, have seized upon a new determination to build something better. The last time our country experienced this kind of enthusiasm for change was 25 years ago, after my own graduation from UP Elem, and after the EDSA revolution. Do not neglect to consider this opportunity as well.

Which brings me to my third and final point: in the face of these opportunities and challenges, what role should a graduate of UP play? I said earlier that I would restrain myself from giving you advice on this, your day of days, and I will keep that promise. I will leave you to answer the question for yourself – what role should you play?

Allow me to share, however, something I heard from my own high school graduation. Yes, from that other school. Something which in the 21 years since, I have not forgotten.

Our speaker then, Roberto Verzola, an engineer and social activist and currently secretary general of the Philippine Greens, talked about his own high school graduation. Sabi niya, pag-graduate daw niya ng high school, ang pakiramdam niya, dahil sa edukasyon at pagkakataon na naibigay sa kanya, parang may red carpet na nakalatag sa kanyang harapan patungo sa kanyang maningning na kinabukasan. Pero nung pinagmasdan niya ng mas mabuti, nakita niya na ang red carpet palang ito ay mga likod ng mga ordinaryong mamamayang Filipino na siyang nagtratrabaho at nagpapakahirap para mabigyan siya ng pagkakataon para sa isang mabuting kinabukasan.

I would like to think, that to a greater or lesser extent, most of what I have done, or tried to do, in the 21 years since then, has been to prove myself deserving of the unbelievable privilege given to me by my fellow Filipinos: the same opportunity and privilege that has now been given to you. And make no mistake, it is an unbelievable privilege.

I will not tell you what role you should play. That is a question that you can only answer for yourself. But I hope you will consider the unbelievable privilege you have been given, and those who have given blood and sweat so that you may exercise this privilege, when you finally determine for yourself what role you will play in your own individual futures, and in our country’s future.

Muli, salamat sa pagkakataong magsalita ngayong hapon, at isang malugod at mainit na pagbati sa inyong pagtatapos.

Congratulations, Batch 2011.

 

A few words on the ongoing impeachment

The House of Representatives Committee on Justice is currently in the final phase of proceedings to determine whether or not it will recommend to the plenary that Merceditas Gutierrez (no relation to me, for the record :p), the current occupant of the Office of the Ombudsman, be impeached. The complainants to both the first and second impeachment complaints already presented testimony at the Committee hearing last Wednesday, March 2, with the next hearing scheduled for this Tuesday, March 8.

In the interest of disseminating information, I am printing here the prefatory statement — the introduction or overview, for those fortunate enough not to be saddled with lawyerly jargon — to the first impeachment complaint which was filed last July 22, 2010 by former Akbayan representative Risa Hontiveros, retired Brigadier General Danny Lim, and Felipe and Evelyn Pestaño, the parents of Navy Ensign Phillip Andrew Pestaño who was murdered aboard a Philippine naval vessel in 1995. Hopefully, this will provide a clarification as to why Merceditas Gutierrez should be impeached.

Oh, and yes, I actually wrote this prefatory statement.

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The Office of the Ombudsman was created under Article XI of the 1987 Constitution as an independent office intended to serve as “protector of the people” principally through taking prompt action on complaints filed against public officials and other employees of the government.

The primordial purpose of the Office the Ombudsman is to enforce public accountability among public officials, through, among other measures, investigating on its own, or upon complaint of any person any act or omission by a public official that appears to be “illegal, unjust, improper, or inefficient,” and, in appropriate cases, instituting the corresponding directives to or initiating prosecution of the responsible officials.

The Ombudsman is thus vested with expansive authority and broad discretion in fulfilling its mandate of enforcing public accountability within the ranks of the government service. It is expected not to merely stand as a passive receiver of complaints from the public, but to take a proactive role in rooting out corruption and impropriety in government. It is empowered not merely to enforce the express commands of black letter law but to take action on any act or omission that may be “unjust, improper, or inefficient.”

For in the end, the Office of the Ombudsman is envisioned as the ultimate bulwark that the Filipino people may rely on against government abuse and official corruption, from the lowest to the highest echelons of the public service.

Sadly, the current holder of this crucial Office, Ma. Merceditas Navarro-Gutierrez – in the nearly five years since her appointment to fill the vacancy created by the resignation of the previous Ombudsman, Simeon V. Marcelo –  has failed to live up to this role.

During her watch, the Office of the Ombudsman, far from being an effective and reliable recourse for ordinary citizens seeking succor and relief from government abuse, has become a place where complaints of official wrongdoing go to languish, wither, and ultimately be forgotten. In many instances, some of which will be discussed in this Impeachment Complaint, Ombudsman Navarro-Gutierrez has unconscionably neglected to ensure that prompt and effective action is taken on complaints from the public filed with her office.

Similarly, the Office of the Ombudsman, under the stewardship of Navarro-Gutierrez, has become alarmingly and unjustifiably passive in taking on prominent issues involving corruption and malfeasance at the highest levels of government. Instead of instituting investigations on its own, as it is expressly empowered – in fact, arguably required – to do so by the Constitution, it has sat quietly even in the face of the most scandalous reports of official impropriety, waiting for private citizens, or other government offices, to take up the very causes it was created to address. This Impeachment Complaint will likewise take up some of these instances.

Finally, the effectiveness of the Office of the Ombudsman under Navarro-Gutierrez in holding erring public officials to account by instituting successful prosecutions before the appropriate courts and tribunals has likewise degraded to a distressing and unacceptable degree. As this Impeachment Complaint will again show, an empirical and objective assessment of the performance as prosecutor of the Office of the Ombudsman under Navarro-Gutierrez, clearly establishes an intolerable, if not criminal, level of incompetence.

All these failings, taken together, indubitably amount to a betrayal of the public trust, and a culpable violation of the constitutionally established duties of the Ombudsman, on the part of Ombudsman Navarro-Gutierrez. This fact, in the view of the Complainants, provides more than ample basis for impeaching Ma. Merceditas Navarro-Gutierrez as Ombudsman of the Philippines under Article XI, Section 2 of the Constitution.

Breathing out

This is something I should have written 18 months ago.

I have always believed myself burdened with the curse of conscience. I could never get the hang of closing one’s eyes, ears, and mind, to the awfulness that some of our fellow human beings are forced to call their everyday lives. And seeing, hearing, and realizing the hardship that so many others are made to endure — whether by fate, destiny, God, society, or the good old semi-feudal, semi-colonial state — has, in turn, prevented me from being comfortable with living a “normal” life, with a “normal” career and “normal” aspirations.

I always had to do something. To get involved, to at least try and make a difference.

A line from Gary Granada’s Uunahin Ko Kayo has always struck a chord with me: Ang pangarap ng marami sa mundo/ Ay hindi ko hahayaang mabigo

This, for want of a better term, restlessness, pushed me to join the student movement when I was in the university, and later, the ranks of what can be loosely called the progressive movement.

For the most part, it was a decision, and a life, that I do not regret. Besides the fact that I felt “compelled” (or as I said before, cursed) to do this, being in the progressive movement has given me moments and experiences I would never trade away. I have witnessed human beings at their finest: generosity in the midst of grinding poverty, courage in the face of insurmountable odds, good will in the grip of the most heartrending tragedy, hope triumphant, time and time again, over despair.

Some of my best and closest friends, including my wife and soulmate, I have met in the course of my life in the progressive movement, and it is something that I will always hold dear.

Sometimes though, the things that are dearest to you can also break your heart.

And I suppose this is what I came to understand 18 months ago. That the more you love something, the more you invest of yourself, your effort, your time, the more painfully your heart will break when it finally lets you down.

It took me 18 months to write this, and that I now can, is a sign, I hope, that I’m better.

In the end, who I am remains essentially the same, and so, my choices stand. I cannot even imagine myself doing anything else. It is sad, in a way, but it is also, unfortunately, true. In my darkest days I thought — no, I wanted to believe — that heartbreak could change who I was, lift the curse, so to speak. But wounds heal, and eventually we remain who we are, scarred yes, but ultimately the same.

So I continue to soldier on. Fighting the same battles, tilting at the same windmills, living the same life.

Maybe someday, I’ll even get to be as happy as I was before.

Past lectures

It has been quite a while since I last posted in this blog. But this being the first month (barely) of a new year, I think it’s a good time to attempt to resume posting regularly.

Allow me to start with the text — and video! — of a lecture I gave last year at “Beyond 2010:  Leadership, Public Administration and Governance,” an academic congress at the University of the Philippines intended to discuss key issues that would confront the (then) new administration to be voted into office in the May 2010 elections.

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Decontextualized Principles and the Myth of the Secular State

(Video at http://dilc.upd.edu.ph/index.php/events/437-decontextualized-principles-and-the-myth-of-the-secular-state)

The principle of “separation of Church and State” is a mantra of near (pardon the pun) religious significance in our Constitutional order. Enshrined in Article II, Section 6 of the Constitution, which provides that “[the] separation of Church and State shall be inviolable,” it appears to establish, in clearest and most definitive of terms, an uninfringeable line between matters pertaining to religion, and matters pertaining to an avowedly secular government.

The extent of this “separation” is further expounded upon in Article III, or the Bill of Rights. In Section 5 it is provided that –

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

This provision encapsulates what are known as the “free exercise” and “Establishment” clauses. “Free exercise” is a guarantee against State interference in, and, in the extreme, suppression of religious practice of individuals. It promotes the principle of religious pluralism, where individuals are at liberty to worship in the manner they please, or even to choose not to worship at all. The “Establishment” clause, on the other hand, prevents the State from giving official sanction to a particular religious belief or denomination; in other words, the “establishment” of a state-sponsored religion.

Taken together, these three basic Constitutional principles – separation, free exercise, and Establishment – lay the foundation, at least theoretically, for the secular Philippine State.

But is the Philippine State truly secular? Conventional wisdom, and even simple, casual observation, would seem to indicate a contrary conclusion. God, religion, and the ubiquitous images of Mary and the various saints, are indispensable features of everyday life in our country – even the part of that life that supposedly falls within the avowedly secular sphere of the government and the State. Hence we have small shrines to Mary and the saints in government offices, opening prayers at government sponsored public events, and a President who claims to make political decisions based on God’s guidance.

This contradiction, however, is not a recent phenomenon. Nor is it, unfortunately, confined to what some might be tempted to dismiss as trivial deviations from what is otherwise a firmly upheld Constitutional standard.

When the Malolos Constitution was adopted by the fledgling Philippine Revolutionary Government in 1899, it included a provision recognizing “the freedom and equality of all religions, as well as the separation of the Church and the State.” (Dean Raul Pangalangan, in an article in the Philippine Law Journal, notes the irony that this adoption took place in a Church) This provision however passed only by the narrowest of margins, a 26-25 vote in the Malolos Congress. Subsequently, even this barely won concession to secularism was set aside upon the advice of Apolinario Mabini – adviser to President Emilio Aguinaldo and a well-known liberal and progressive – who felt that the provision should be suspended to avoid the “divisive effect” it would have on the Republic which at the time was facing war.

This brief historical vignette underscores the difficulty in institutionalizing pro-secularist principles in the context of the Philippine society and culture. Separation of Church and State, free exercise of religion, and the Establishment clause are concepts borrowed largely from the liberal tradition of the United States and Western Europe. These concepts, however, arose in a specific socio-historical context – the ascendancy of reason as against superstition, the emphasis on individual liberty as against institutional authority, the rejection of the infallibility and “God-given” authority of the Church. They were reflections of the thoughts and ideas of, if not the societies, then at least the dominant political actors of the time.

In contrast, there was no similar social or cultural foundation among the decision makers of the Malolos Congress, much less in the general populace. By and large, revolutionary rage was vented on corrupt Spanish friars (the Padre Salvis and Damasos of Rizal) and not against the institution or beliefs of the Roman Catholic Church. Individual liberty, to a large extent, was still very much subject, if not subsumed, to the demands of family, community, and other social institutions. The notion of a “free-agency” of religious belief – where one could pick and choose one’s religion at leisure, discarding one, picking up another, or choosing to go completely without, was virtually non-existent. Instead, Filipinos were expected to live and die in the arms of the faith into which they had been baptized, which for the vast majority, was Roman Catholicism.

It is thus not surprising that these secularist principles, decontextualized from their societies of origin, would have difficulty achieving widespread acceptance and faithful (again, pardon the pun) compliance.

The contradictions brought about by decontextualization have also led to contradictions within the legal framework itself. While the Constitution formally mandates the observance of the general principles of separation, free exercise, and non-establishment of religion, other parts of the same document flout these general rules and create zones of exception.

One of the most obvious is in the grant of tax exemptions to religious organizations. Article VI, Section 28(3) provides that –

Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

This in effect creates a State subsidy – in the form of a tax break – for religious, charitable, and educational institutions. Put another way, it lets other taxpayers – you and I, for example – assume the burden for these institutions. While it may be understandable that charitable or educational institutions may be given this subsidy – after all, they are, at least arguably, performing functions in the nature of “public service” that the State would otherwise have to devote resources to – it boggles the mind how and why religious organizations should fall in the same category. Religious services cannot be construed as “public service” if, for nothing else, because of the Establishment clause, and yet that is precisely what we have here.

In a similar vein, Article VI, Section 29(2) provides –

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

While the first part of this provision is clearly consistent with the Establishment clause, the latter part creates an exception where public funds may in fact be paid out to religious professionals – that is when they are assigned to armed forces, penal institutions, orphanages, or leprosariums. The question that must be asked is, why? Simply, because the persons in these establishments are more readily confronted with hardship, suffering, and the possibility of imminent death? That being so, why must it necessarily follow that in such cases the response is for the State to fund the provision of a religious means to provide some form of comfort? If religion is essentially a private (read: non-state) undertaking, why must the State spend for under any circumstances?

There are other examples – for instance the “option” to have religious instruction in public schools in Article XIV, Section 3, and the “anti-abortion” clause in Article II, Section 12. The first allows for religious teaching at the option of parents, even without the confines of State-established, State-run, State-funded public schools. The “anti-abortion” clause, on the other hand, mandates a perpetual Constitutional ban on abortion – a prohibition that many will argue is not based on scientific or human rights-based considerations but simply on the doctrinal bias of a specific religion. The ultimate point is that despite the formal adoption of secularist principles, the Constitution itself provides for a not inconsequential number of deviations from what is supposedly a cardinal foundation of our concept of government.

But apart from these internal contradictions in the law itself, the more glaring and apparent contradiction, as already mentioned earlier, lies in the variance between black letter law and actual practice.

One of the obvious examples is found in Article 133 of the Revised Penal Code which punishes the crime of “offending religious feelings.” This provision states that –

The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.

This very clearly elevates the concerns of a particular religion to the level of State-interest. The absurdity of the provision is readily seen in court decisions attempting to apply it, in the process grappling with a “legal” way of construing what exactly would be “notoriously offensive to the feelings of the faithful.” The result is inevitably a supposedly secular court, composed of supposedly secular magistrates, sifting through religious dogma to determine what would be “offensive” thereto.

In a similar vein, take the case of the party-list elections, where under the Constitution –

The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

Despite this express prohibition against the participation of religious groups, it is an open secret that numerous party-list groups – including the top vote getter in the 2007 elections – are barely disguised fronts for religious organizations.

More recently, the case of Ang Ladlad similarly underscores the intense influence religious precepts have on supposedly secular, religiously-neutral law.

In the original decision of the Commission on Elections Second Division denying accreditation to Ang Ladlad, a party list organization representing lesbian, gay, bisexual, and transgendered (LGBT) persons, they cited Article 201 of the Revised Penal Code, which punishes “Those who shall publicly expound or proclaim doctrines openly contrary to public morals.” Despite the textually neutral formulation of the provision, the COMELEC managed to slip in religious dogma by using it to construe “public morals.” Citing verses from the bible and Koran, and quoting a 1960s American Christian evangelist, the decision proclaimed that Ang Ladlad “apparently advocates sexual immorality” as it condoned consensual partnerships between persons of the same sex, and as such, should be deemed as violating Article 201 of the Revised Penal Code.

This conclusion, of course, can only be made possible by equating the supposedly secular concept of “public morals” with the tenets of a particular faith – in this case the Christian and Muslim religions both of which have certain fundamentalist doctrines against homosexuality per se. What is even more alarming is that, from the tone of the decision, the election commissioners concerned did not even seem to be aware that they were slipping religious considerations into secular law – they simply assumed that public morals should necessarily be sourced from religious tenets.

Really, the indications are all around us. For how can we really believe in a secular Philippine state when everyday we are confronted with the overlap of government and religion? In the words of my friend and colleague in the faculty of law, Professor Florin Hilbay in an article on the Establishment clause –

Is there a place for secular constitutionalism in a place where the Supreme Court distributes “ecumenical prayers” and allows the holding of Catholic masses in its main session hall, where politicians regularly invoke God as the source of everything they do and what happens to them, where public school teachers pray and post religious icons in their classrooms, where public airports display statues of Mary the supposedly-virgin mother of Christ, where the main campus of the University of the Philippines is the site of the Church of the Holy Sacrifice, where government institutions decorate their buildings and offices with Christ-mas trees and nativity scenes, where most public holidays are Christian holidays, where divorce and abortion are banned, where religious organizations endorse candidates for public office, where religious organizations obtain money from government, where the Catholic Bishops Conference of the Philippines gets to say whether the President ought to be impeached, where towns and villages are regularly named after saints, where revolting includes trooping to a Catholic church in EDSA?

The point then, ultimately, is that we cannot rely on formal rules establishing a secular state, transplanted, decontextualized, and cut-and-pasted into our own unique milieu, and expect that they will be sufficient, by themselves to end centuries worth of entanglements between the State and the religion. In the end, a secular state must be built from the ground up, and will not arise by simple Constitutional fiat.

Short Primer on Martial Law under the 1987 Constitution

Just a short discussion of the provisions of the Constitution governing the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus, for reference during these times.

Article VII, Section 18 of the Constitution begins as follows –

“The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.”

This provision expressly states that the power of the President to proclaim martial law or suspend the privilege of the writ can only be exercised in case of invasion or rebellion and only when public safety demands it. It requires either a foreign military invasion or a public and armed uprising against the government. Under the present Constitution, the grounds for declaring martial law have been limited to “[actual] invasion or rebellion, when the public safety requires it,” in contrast to the 1973 and 1935 Constitutions which provided that “imminent danger” of invasion or rebellion could be a basis for the same. The mere threat of rebellion, therefore, without an actual armed uprising, cannot be a valid justification for declaring martial law or suspending the privilege of the writ.

With regard to the effect of such proclamation or suspension, Section 18 continues by providing that –

“A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

And further –

“The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

What this means is that martial law shall not lead to a military takeover of all government functions, a suspension of all civil liberties, and the unrestricted authority on the part of the authorities to detain anyone indefinitely. The Constitution, and as a consequence the Bill of Rights, shall continue to have force and effect. Congress, as well as local legislatures, and the regular civilian courts shall remain open and continue to exercise their functions. Persons arrested in connection with the rebellion or invasion can only be held a maximum of three days before they must be formally charged in a civilian court. In other words, martial law under the present Constitution is not intended to result in a complete shutdown of civilian government the same way it did in 1972.

The proclamation is also subject to “review” by both Congress and the Supreme Court. The provision provides –

“Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.”

Likewise –

“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.”

The Executive, therefore, must justify, in a formal report to Congress, the proclamation of martial law or the suspension of the writ. This must be within 48 hours of the proclamation or suspension. Congress, after this, may choose to revoke the proclamation or suspension by majority vote of all members, voting jointly – that is as one chamber, with the vote of a Senator having the same weight as a Representative. Even without the revocation, the proclamation can only last for a maximum of sixty days, after which Congress must concur, by majority vote, to extend it.

Any citizen is also granted standing to question before the Supreme Court the sufficiency of the “factual basis” for the proclamation or suspension – that is, whether there was in fact an actual invasion or rebellion and whether public safety required such proclamation or suspension.

(Extra)ordinary Circumstances

Under ordinary circumstances, I would be completely sympathetic.

Politics in this country being the dirty, dreary, and sordid business it is, I would readily understand why an honest, upright, and intelligent human being like Professor Randy David would not want to get into it, much less stand for election as a candidate. After all, what reasonably decent and relatively sane person would want to? Politics, and elections, in our corner of the world have long since degenerated into the nearly exclusive preserve of the notoriously unqualified and the viciously unscrupulous – not exactly the company one would be interested in joining.

Sometimes though, politics is too important to leave to the politicians. And as numerous advocates, analysts, and public intellectuals – including Professor David – have pointed out repeatedly, this is one of those times.

Eight years of Gloria Macapagal Arroyo have made clear to even the most apathetic, disinterested, and apolitical among us just how rotten politics in the Philippines has become. We have been forced to come face to face with the awful truth of how corrupt our Congress is, how weak our public institutions are, and how infinitely malleable our laws can be made to be. In the end there can be only one conclusion: we need new leaders.

It was amid this clamor for new blood, for better options, for more acceptable choices, that Professor David’s announcement that he would run against GMA if she sought election to Congress in the second district of Pampanga came to electrify the nation and give us all some measure of hope. Predictably, the more cynical immediately deemed it a lost cause from the outset – a David versus Gloriath scenario where David had absolutely no chance of prevailing.

But the likelihood or unlikelihood of winning was never the point. It was always simply the idea that a well-respected academic and public intellectual was willing to step out of his comfort zone and take a stand, futile or not, for what he believed to be right. It allowed the rest of us to believe in the assertion that politics need not be left to the politicians, but could be reclaimed by honest, upright, and principled citizens who found the courage to throw themselves into the fray.

Simply put, what David versus Gloriath gave us was hope. Hope that there were still good men and women ready to stand up to the tyranny of politics-as-usual. Hope that in the end, this might even be enough to pull our nation out of the quagmire of corruption and opportunism it had fallen into.

And it is because I cannot bear to see this hope wither away that I cannot bring myself to sympathize with Professor David’s decision not to run.

I understand that he is being asked to take on a massive burden, that he is being asked to risk a career and reputation painstakingly built through decades of hard work, that he is being asked exchange the comfort and familiarity of the academe for the harshness and uncertainty of politics.

I understand that it is not easy, but I must nonetheless ask.

Because I believe that our nation, and our people, need to believe that there are those among us willing to pay the price for principle. That for every Gloria Macapagal Arroyo that rises to embark upon a career of rapacity, there will always be a Randy David ready to stand in the way.

These are not ordinary circumstances, and as such ordinary people – workers, teachers, and yes, even public intellectuals – are called upon to take on extraordinary challenges. I hope we are up to them.

Remembering Hope

Two Saturdays ago, I heard of Cory Aquino’s death and was rather surprised to find myself deeply affected. I was gripped by a feeling that was part sadness, part nostalgia, and part… something else. It took me a while to identify what that “something else” was, but eventually I recognized it for what it was — the faint, bittersweet remembrance of youthful hope.

Cory Aquino’s presidential campaign and the popular uprising that followed it 23 years ago probably means a lot of things to different people. But for me, it will always be the time that I fell in love, fatally and irrevocably, with the idea of what our country could be.

I suppose it was unavoidable that my impressionable 12-year old mind would become enamored with the excitement for change that so charged the air then. Cory’s candidacy at the time did not only represent something better than the status quo, i.e. an improvement from the Marcos regime, but was a beacon for the nation’s long pent-up enthusiasm for change. And when the EDSA uprising came and catapulted Cory to the presidency, despite the best (or perhaps worst) efforts of the forces supporting the old regime, it seemed the perfect affirmation of our faith in the boundless possibilities of such enthusiasm.

Of course, later, the disappointments would come. The massacre at Mendiola, the (re)institution of the total war policy, the unthinking assumption of illegitimate public debts – these and other decisions by “President Cory” would eventually dampen even the seemingly limitless enthusiasm of the campaign and at EDSA. The “Cory magic” would eventually fade in the face of harsh, unforgiving Philippine reality.

Still, having felt that wonder once, I never quite looked at that “reality” the same way. The most serious social problems were simply challenges that would inevitably be overcome, obstacles to be swept aside by sheer effort of will, by our indefatigable belief in ourselves and in the power of our collective enthusiasm. No matter how overwhelming our nation’s troubles seemed, the hope, no, the conviction, that that better community, that better country, that better world we craved, always remained within our grasp if we worked hard enough, if we trusted in ourselves and in our fellows enough, never faltered.

Half a decade after EDSA, when as an undergraduate at the University of the Philippines I marched against the Cory government’s plan to extend the Bases Agreement with the United States, it was, quite ironically, this selfsame conviction, born during the Cory campaign, that lay at the heart of my motivations.

The years, of course, eventually took their toll even on this remnant of hope that I took from EDSA. Though I forsook academic achievement and a mainstream career in favor of continued involvement in what can only be broadly called “the progressive movement” (in a vague, distant sort of tribute to something briefly glimpsed in 1986), disappointment, frustration, cynicism, and plain weariness ultimately reduced that fierce, vibrant hope into a dull throb of dissatisfaction. Enthusiasm for change gave way to anger with the status quo. It became more important to crush the oppressors than to build a future for the oppressed. Hope became hate.

Every so often, though, that dull ache of dissatisfaction would flare up, somewhat painfully, into a semblance of the old, lost optimism.

Two Saturdays ago was one such moment.

Cory Aquino’s death opened the way for a celebration of her life. And fairly or unfairly, it once again reemphasized for many, including myself, that 23 years ago, she symbolized the power of possibility. Her passing, and the outpouring of support and gratitude that emerged in response to it, helped me remember that at the core of our dissatisfaction with our current leaders, at the heart of our frustration with our country’s woes, is that belief, deeply buried though it may be, that we still can build a better world.

I would like to think that in the end, the social change so many of us crave will not be brought about by the jaded cynics, but by those who continue to hope, and to dream. Cory’s triumph in 1986 proved that those who hope can wage a successful struggle. Cory’s passing now reminds us that those who struggle must not neglect to hope.

A rainy afternoon in Bulacan

Monday last week, braving pouring rain and heavy traffic, I made my way to a small community in Norzagaray, Bulacan. I had been invited by a group of sometime clients to a celebration. After over a decade of effort, they had finally signed an agreement which would grant them formal rights over the land on which they had their homes, and they wanted to mark the occasion with food, alcohol, and, of course, the inevitable round of videoke songs, in the company of friends and associates — a circle which included me, their sometime lawyer.

And it was there in Bulacan, under a tarpaulin leaking rainwater, over steaming bowls of lomi and bottles of lukewarm Red Horse Beer, listening to my companions talk animatedly about their plans for the future of their community, that I was once again reminded of why I became a public interest lawyer.

It was not so much the fact that I was overwhelmed by the copious (though in my opinion, largely undeserved) thanks they gave me (though I was overwhelmed, believe me). Nor was it the chance to bask in the pleasant afterglow of a long and hard-fought legal victory. It was simply the rare opportunity to be part of something that actually felt genuine.

You could see it in their eyes, a shine that was equal parts hope and confidence, the realization that they, through their own efforts, had managed to secure a place for themselves despite all the disadvantages of poverty and lack of influence. It was a wonder, and a privilege, to behold.

The cynics among us will always maintain that everything we do is ultimately done out of self-interest. If this is true, then that rainy afternoon in Bulacan was one of the few times I fulfilled mine — to witness, firsthand, the overwhelming humanity of a group of ordinary people winning for themselves a long-sought and much-deserved measure of dignity and security.

Thursday blues

There was a time, not so long ago, that I looked forward to Thursday.

Every Thursday evening I would meet a small group of my closest friends at Taby’s — a small establishment along Maginhawa Street in Sikatuna Village — to engage in long, drawn-out conversations  over seemingly endless rounds of San Mig Light. Our discussions would cover a diverse array of topics, ranging from the profound to the prosaic to the obscene to the downright obscene, and they would last, as most drunken conversations do, well past the time decent, law-abiding, god-fearing citizens would be expected to be home in bed.

These Thursday “appointments” were kept with a commitment bordering on religious fervor. Neither typhoons nor coup attempts nor the explicit disapproval of spouses and girlfriends could keep us from our Thursday beer and conversation.

But sadly, those days are gone. Life and local politics have conspired to deprive us of these Thursday gatherings, and I, for one, believe we are the poorer for it.

To start, Taby’s closed down a few months ago, after some homeowners in the area apparently complained to barangay officials. Something regarding noise and a consequent lack of sleep, or some other, equally unreasonable, issue. After all, how can you put the alleged need for sleep on the same plane as the incontestible necessity to have drunken discussions with one’s friends? At any rate, though we’ve tried to look for an alternate venue, we have yet to find one as comfortable or convenient.

Work schedules for some of my friends have also shifted, making it less convenient for them to meet on Thursday evenings. So the Thursday gathering, observed so religiously before, has become a far less certain affair. The near blasphemous idea of shifting to Wednesday has even been raised; I mean who ever heard of drinking on a Wednesday?

So now, Thursday is just another day, when we might or might not meet for drinks and conversation. Just another day indistinguishable from the rest of the humdrum week. One more pillar of stability in an otherwise chaotic existence toppled and forgotten.

How does one cope with such meaninglessness?

Stifling free speech in the workplace

An article I wrote on a recent Supreme Court decision and its implications on free speech in the workplace just came out on Newsbreak. Here is the link to the original article. The full text follows –

The freedoms of speech and of expression have long been acknowledged as indispensable to a democratic society. The eminent American jurist, Benjamin N. Cardozo, speaking for the United States Supreme Court, stated that the freedom of thought and speech “is the matrix, the indispensable condition, of nearly every other form of freedom.”  Our own high court has characterized the freedom of expression as being “a fundamental postulate of our constitutional system.”

International human rights law likewise recognizes the fundamental importance of free expression. Article 19 of the Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of expression and opinion” and that this right includes the freedom “to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

But despite this widely recognized primacy of the freedom of expression, the Philippine Supreme Court, in a decision handed down by its Second Division last November, has laid down a new doctrine that threatens to seriously undermine the exercise of this essential right in the context of labor relations.

The said decision concerned a labor dispute between the management of Dusit Hotel Nikko and members of its employees’ union. In the course of the dispute, several employees came to work with shaved heads and were prevented from working by the hotel. Speaking through Associate Justice Presbitero J. Velasco, Jr., the Court, in its decision in the case of NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. Court of Appeals,  ruled that the act of several hotel employees in reporting for work with shaved heads, ostensibly in violation of the hotel’s grooming standards, constituted an illegal strike and was “not a protected action;” in other words, that the act of shaving one’s head as a means of protest transgressed the limits of freedom of expression and could validly be restricted by law.

The Constitution and law recognize two types of activities that can be undertaken by workers collectively – strikes and other peaceful concerted activities.

A “strike” is explicitly defined as “any temporary stoppage of work by the concerted action of employees as a result of an industrial dispute.”  The right to strike is recognized under the Constitution,  but may only be exercised “in accordance with law,” that is in the manner prescribed and with due observance of the requirements set forth under the Labor Code.

Any other “peaceful concerted activities” short of a strike are not, however, subject to the same degree of regulation. These concerted activities fall under the mantle of the constitutionally protected freedoms of speech, expression, and assembly, and may only be prevented or restricted upon a clear showing that a “clear and present danger” to public interest exists.

The legally allowable degree of regulation, therefore, is determined by how a particular act is characterized: Is it a strike, in which case more stringent restrictions may be applied? Or is it another type of peaceful concerted activity, which can only be restricted when there is a clear danger to public interest?

In finding that the act of coming to work with a shaved head, even without an express refusal to work, amounted to a strike as it forced the hotel to “choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work,” the Supreme Court has dramatically expanded the legal definition of strike. It has characterized speech which is “detrimental to the employer’s reputation” as amounting to a strike and therefore subject to more stringent restriction. In so doing, it has opened the door to more intrusive regulation of activities which in the past would be considered as protected under the freedom of speech and expression guarantees of the Constitution.

In past years, the Supreme Court has exercised a tremendous amount of care in order to avoid precisely this kind of encroachment into the constitutionally protected sphere. In one decision, the Court upheld the primacy of freedom of expression over property rights, and allowed workers to join a rally even during working hours. According to the Court:

“As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all.”

In fact, even in cases where the Court has found an illegal strike to have occurred, it has taken pains to distinguish between the invalidity of the strike – for having failed to adhere to the process required under the Labor Code – and the protected character of specific acts done during the strike. For instance, in one case where the Court declared a strike at a hospital illegal, it nonetheless clarified that the “wearing of armbands” and “putting up of placards” cannot be construed as illegal, as “they are within the mantle of constitutional protection under freedom of speech.”

The Dusit decision, unfortunately, does away with such fine distinctions, and raises concerns about the way in which the freedoms of speech and expression will be construed within the workplace in the coming years.

To begin with, it is an abrupt turnaround from the recognition of the primacy of the freedom of speech particularly with respect to property rights. Dusit implies that if workers’ speech is detrimental to an employer’s reputation – in other words, it “embarrasses” the employer – then it may be disallowed, and, in fact, punished. This reverses the long-established hierarchy of rights that give more weight to free speech than to property interests.

Furthermore, by expanding the definition of a strike, and, as a consequence, the range of workers’ activities that may be subject to more stringent regulation, it severely limits the freedom of workers to speak and express themselves within the workplace. It is easy to envision that Dusit may eventually be used to restrict activities such as wearing of pins or armbands or displaying placards or signs.

For employees in the public sector, this expanded definition has even direr consequences. Since public employees are allowed to organize and engage in peaceful concerted activities but are prohibited by law from conducting strikes, expanding the notion of “strike” to cover not only cases of actual work stoppage but also any action “embarrassing” to the employer may eventually lead to a total restriction on any type of activity critical of or in protest against the government.

This will undoubtedly constitute a significant erosion of these fundamental freedoms. The mere possibility that the Dusit decision may signal a sea change in the State policy on freedom of expression within the workplace is threat enough. For as pointed out by the Court:

“Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”"

If we are to continue to uphold the tenets of our democratic society, we should strive our utmost to ensure that that crucial “breathing space” continues to be respected by our courts.