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.

Institutionalizing morality

An interesting, if not exactly novel, point was raised in a forum I was at yesterday. In essence, it contends that the more serious concern with respect to the Philippine government and legal system is not the inadequacy or inefficacy of our current laws, but the character of the public officials implementing them.

Now normally, as I’ve indicated, this would hardly be a new argument. After all, I’ve heard it, perhaps phrased slightly differently, from countless fellow citizens, usually as a prelude to some appeal for greater “spirituality” in society. But with no less than the Chief Justice, our highest judicial officer, stating just last week that what the country needed was “moral force,” I think that the position merits some discussion.

To start with, I have to say that on the most basic, instinctive level, I find the first part of the argument appealing. Who wouldn’t, particularly in a country where public “servants” already awash in cash have no qualms about dipping further into an already depleted national treasury while cash-strapped taxi drivers, for all their poverty, nonetheless see fit to return thousands of pesos inadvertently left in their cabs. It’s easy enough to see that personal “character” and “morals” must play a role there somewhere.

But it is with the other component of the position that I have some difficulty with. I mean sure, we could certainly use more honest and upright women and men in government, but does this necessarily have to preclude changing the existing legal system as well?

Ideally, laws are in place precisely to encourage certain kinds of behavior and to discourage others. Granted, law and language being as subject to “interpretation” as they are, they will not always be used or followed in the manner originally “intended.” However, I do not think that this “uncertainty” in legal text unavoidably implies that one law (or one way of phrasing a law) is as good as any other. In other words, the impossibility of coming up with an ultimately idiot-proof (or perhaps, tyrant-proof) legal text should not be a justification for not striving to come up with a tighter formulation.

Just take the case of many of our public laws, a significant portion of which were enacted under the less than ideal conditions of the Martial Law regime. Or take the case of our law on inciting to sedition, which is still largely based on statutes enacted by the Americans during the early years of colonization. These laws, which we continue to observe to this day, given their context and original purpose, are, quite unsurprisingly, heavily biased toward upholding executive power as against the power of a popularly elected legislature, and the right of citizens to free speech.

I suppose we can argue that if we had a “good” President, who had a strong personal commitment to democratic ideals, it would not matter if these laws were still on the books — she or he would simply not apply them in a manner which tended to stifle democratic discourse. But that does that mean we should leave them as is, crossing our fingers that that “good” President comes to power? Or do we try and change them, making it more difficult for these laws to be “interpreted” in an abusive or oppressive manner, just in case we get a “bad” President?

Personally, I’d rather we hedge our bets.

Rights and wrongs

The start of another year! So I suppose this is a good a time as any to resume posting.

For the past few weeks, the headlines — and for that matter, most of the inside pages as well — have been dominated by news about the Alabang 3 and the alleged million peso bribes offered to agents of the Philippine Drug Enforcement Agency (PDEA) and prosecutors of the Department of Justice (DOJ) to secure their release. For the most part, the emphasis in the news articles and opinion columns written on the matter has been on the heroism and steadfastness of the PDEA officers who refused the bribes and rebuffed attempts by DOJ prosecutors (who, most would suppose, actually succumbed to bribery) to have the three suspects released. Even my own professor, former UP Law Dean Raul Pangalangan,  characterized the issue, in his column in the Inquirer, as a demonstration of “how the legitimate safeguards of due process can be misused.”

I must admit that from all appearances the issue seems fairly cut and dried. Those involved eve readily fulfill the stereotypical roles we have all come to expect in relation to the local justice system — the rich and privileged suspects, arrogant in their assumption that they can buy their way out of anything; the corrupt government lawyers, only to willing the twist the letter of the law for personal monetary gain; the sleazy private practitioner, adept at using bribes and connections to get his guilty clients off; and standing alone against this tide of iniquity, the idealistic and incorruptible law enforcement officer, a rare gem of virtue amid the decay of the criminal justice system.

But while I do not discount the bravery and integrity of Major Ferdinand Marcelino of the PDEA (or for that matter, do I doubt the corruption that pervades so much of the justice system), I cannot help but be disturbed by the fact that in the wake of this entire affair, concepts such as “due process” and “rights of the accused” have seemingly become inextricably linked to corruption and tolerance for crime; “legal gobbledygook” that repulsively smooth lawyers use as overly technical excuses to get privileged suspects off the hook.

One thing that immediately struck me when this story hit the headlines was the fact that the PDEA refused to release the suspects despite an order from the DOJ, claiming that said order was still subject to “automatic review.” Now while most of us may believe that the suspects were “really” guilty, and that the DOJ order was “really” prompted not by sound legal considerations but by cold, hard monetary ones, should we really be happy at the thought that, in this particular case, instead of seeking recourse through the proper legal venues, the arresting officers simply chose to ignore what on its face was a legal order of release from a duly empowered civilian authority?

Article 125 of the Revised Penal Code requires that suspects arrested without a warrant (as in this case) can only be kept in police custody for a maximum of 36 hours before formal charges must be brought against them in court. In this case, formal charges were not brought precisely because the office that was tasked to bring them, the DOJ, found, at least ostensibly, that the arrest, and consequent search, of the suspects was invalid. Yet notwithstanding this, the PDEA chose to keep the suspects in custody well beyond the legally permitted 36-hour period.

Now I may not exactly be the biggest fan of the DOJ (or more precisely, this particular DOJ), but I am certainly less inclined to allow on-the-ground law enforcement agencies like the PDEA to ignore clearly established legal rules and act in whatever manner they feel is “right,” laws and rules be damned.

While I strongly agree that the corruption in the criminal justice system urgently needs to be addressed, I feel just as, if not more, firmly that simply ignoring procedure is definitely not the way to go.

Two legal wrongs will not certainly make a right.

Post illness ramblings

I’ve been home for a week, grappling with a particularly vicious and unrelenting case of the flu. I suppose this comes as a forceful reminder of how good it feels to simply not be sick. To be able to take a deep, cleansing breath and not hear the rattling of phlegm or succumb to another agonizing bout of coughing. Oh well, at least I have time to write again.

I have to admit it’s been a while. A long while. My last entry was over half a year ago, made in the aftermath of my latest entanglement with the inequities (iniquities?) of this administration. Many months have passed since then, and I’d like to think I’ve come to live a quieter sort of life. Or relatively quieter, to be more accurate — at least I’ve managed to avoid appearing in further televised inquests at Camp Crame…

Not that I haven’t been up to the odd bit of “subversive activity” — to borrow a term from my last tongue-in-cheek conversation with my former professor, Philip Alston. I have continued to participate in the usual legal engagements with the government and its officials (always on the other side, which of course, is invariably and inevitably the “right” side, just ask any of my clients). For the most part, however, I’ve come to devote more time to teaching and research, the bread and butter concerns of my academic persona.

I’m not sure how long this phase will last, of course. For one, I cannot honestly say that I have accepted — or perhaps more accurately, resigned myself to — living out my days as a cantankerous college professor, striving to spice up my writing and conversation with a bit of Left (though not too Left) politics, all the while working on building up a respectable paunch on faculty luncheons and seminar buffets. In addition, I do not know if I can actually live with myself if I sit out all the good fights I am sure will come. I’ve never been able to simply sit on the sidelines and cheer while others engaged in what I felt were worthy struggles. My one big vice, unfortunately, and my undoing in all likelihood.

Well, what will come, will come. In the meantime, I suppose I should focus on shaking off the last stubborn vestiges of the flu, and getting back to work and, hopefully this time, regular writing.

Friday Night Lights

Last Friday, somewhat to my surprise and slightly against my initial inclinations, I found myself at the detention center in Camp Crame, visiting the detainees from the Manila Peninsula incident of the previous day. I had come to act as counsel in the inquest proceedings set for that evening, representing Dodong Nemenzo, the former UP President, and a man I personally held in the highest esteem, both for his ideas and his ideals.

While waiting for the inquest to start (it was scheduled for 8 PM, but consistent with typical “Filipino-time,” actually began almost two hours later) I stayed inside the detention center and talked with some of the other detainees. Far from being the dour and serious affairs most people would probably expect (after all, we were in a detention area in the middle of a military camp, surrounded by several thousand armed police officers, and the people I was with stood accused, rightly or wrongly, of attempting to overthrow the government), the conversation was, for the most part, light and even humorous. A perfect complement, I suppose, to the surreal fact that from the Crame detention center, you could clearly see the lights from the bars and restaurants in nearby Greenhills. This probably stands as proof positive that we Filipinos are a cheerful, or at the very least, a resilient people — we can find it in ourselves to laugh and trade bad puns while undergoing detention for rebellion.

Of course, not all the conversations I had that Friday evening involved joking around. One which stands out in particular is the talk I had with the sometimes admired, oftentimes reviled icon of anti-administration sentiment, Senator Antonio Trillanes IV.

I must confess at the outset that when I came to Crame that Friday, I did not really count myself as a Trillanes fan. I mean, yeah, I was thrilled that more than 11 million Filipinos voted him into the Senate last May (if the COMELEC hadn’t “misplaced” my voter record, I would probably have even cast my lot with them). But this was really more because I saw him as a symbol of resistance, rather than actually agreeing with the actions he had chosen to undertake. Taking over a luxury residence in Makati, and then surrendering after 23 hours is not exactly my notion of effective political action. And the events of the previous day had not exactly done much to lessen my cynicism. If anything, Manila Pen in 2007 seemed a smaller-scale, less successful (if there is such a thing) version of Oakwood in 2003.

That said, however, despite a full supply of cynicism and lawyerly skepticism, I came away from Crame last Friday, counting myself as a Trillanes fan.

I do not mean that I agree with what he did (however various observers may choose to construe it). But I’d like to think that I at least came to understand in part why he did it. And it is for those reasons that I have come to admire the man.

What struck me most was Trillanes’ overwhelming, overpowering sincerity. The man is a believer. Not simply in the righteousness of his own cause, after all, even Jovito Palparan is probably completely convinced of his own virtue, but more significantly, in the capacity of Filipinos to recognize what is right and act accordingly. Responding to a point raised about the difficulty in getting people to mass up at a distant, inaccessible Makati hotel on a rainy Thursday, Trillanes quite simply stated that he believed that “people should be willing to walk a mile in the rain for their country.” Up to now, I am awed by such faith in us Filipinos.

While many of us may criticize the impracticality, or even the outright naivety, of this view, we have to acknowledge its compelling character. For two and a half years, efforts to stand up to the GMA regime — a regime that has consistently proven itself to be ruthless, corrupt, and utterly bereft of moral or legal scruples — have been bedeviled by questions of practicality and expediency. Who, or what, do we replace her with? How do we go about it? Who do we accept as allies? Without necessarily dismissing the legitimacy of these concerns, I think the time has come to ask ourselves if in focusing on the logistics of the struggle, we have wavered in our conviction to wage it in the first place.

And maybe that is why, last Friday, I became a Trillanes fan. For despite all our condescension towards his “political naivety,” and all our snide remarks regarding the “inept” way he carried out the Manila Peninsula affair, he remains a man who dared to act on the outrage that still roars so fiercely in our hearts.

On the Alston Report

Was writing this brief comment on the Final Report of UN Special Rapporteur Philip Alston — my professor at NYU as it so happens — when the Manila Peninsula “incident” took place. Distractions and all, it came out in the Inquirer on Saturday, December 1.

Earlier this week, Philip Alston, the United Nations Special Rapporteur on Extrajudicial Executions, released his final report on the extrajudicial killings in the Philippines. Consistent with Alston’s earlier public pronouncements on the issue, the report concluded that responsibility for most of the killings, particularly those of leftist activists, could be laid at the doorstep of the military.

According to the report, these extrajudicial executions were carried out as part of a military counter-insurgency strategy which targets leaders and members of “front” organizations of the CPP-NPA. The “official line” of the AFP that the killings were the result of internal purges within the ranks of the communist insurgency was dismissed as being “strikingly unconvincing.”

The report, however, did not stop there. While dismissing the military’s theory of internal purge, it nonetheless recognized the responsibility of the CPP-NPA for some extrajudicial executions, most notably the murder of civilians under the guise of “revolutionary justice,” and the killing of peasants in the course of agrarian reform disputes. The report was just as firm in characterizing these CPP-NPA killings as being clear violations of international law.

Responses to the report have thus far run along predictable lines. A spokesperson for the President was quick to deny that there was an official “policy” supporting the killings. The PNP doggedly insisted that the report was merely an “opinion” and that any of its findings should be supported by “evidence which could stand in a court of law.” On the other side, the party-list groups Bayan Muna, Anakpawis, and Gabriela immediately called for the sacking of top defense officials for their culpability in the killings, while remaining silent on the report’s similarly firm indictment of the CPP-NPA.

These initial reactions, anchored as they are on the vested political interests of these various groups, fail to adequately grasp the purpose and full import of the Alston report.

To begin with, the principal objective of a report by a special rapporteur is to assess a State’s compliance with its legal obligations in a given area under international law. Hence, the report opens with an enumeration of applicable treaties that the Philippines has ratified, namely the International Covenant on Civil and Political Rights and the Geneva Conventions. These form the legal basis for Philippine obligations with respect to the issue of extrajudicial killings.

These obligations, according to a familiar mantra, are those to respect, protect, and fulfill, in this specific case the right of persons to life and to judicial process. The obligation to “respect” requires government to refrain from engaging in extrajudicial killings. The obligation to “protect” mandates government to prevent third parties, whether rogue soldiers or armed insurgents, from doing the same. The obligation to “fulfill” compels government to put in place the necessary mechanisms, such as courts clothed with adequate powers, to ensure enjoyment of the rights.

Under this framework, it does not matter if government does not formally adopt a policy condoning the killings. It still is in breach of its obligations so long as the killings are perpetrated by its agents, in this case the military, and it fails to take appropriate actions to stop them and enforce liability on the perpetrators.

Similarly, as the report is concerned with the larger issue of State compliance, it should not be characterized in the same manner as a criminal investigation. Insistence on the report following the formal rules of evidence observed by courts is misplaced, since what is at issue is not individual criminal culpability, but the adequacy of State action with respect to its obligations under international human rights law.

The fairness or validity of the report, rather, should be assessed by the methodology utilized in collecting the information on which it was based. In the case of the Alston report, it was anchored on extensive interviews from the government, military, and civil society, as well as documents provided by these same groups. In other words, its conclusions are derived from weighing of the information from various, undoubtedly contradictory, sources.

That the report paints a grim picture of the Philippine situation cannot be denied. But rather than viewing it as a public relations dilemma that has to be “handled” or dismissed, government should take up the real challenge of acting on the recommendations set forth in the report. After all, Alston’s investigation was done at the behest of the Philippine government itself. It would be the height of obtuseness, not to mention absurdity, for the government to dismiss the selfsame findings it sought.

Christmas Grifts

Last Thursday, at a breakfast meeting between GMA and around 190 of her congressional allies, it was reported that envelopes containing amounts between P200,000 to P500,000 were distributed. At another meeting held a few hours later, this time between the President and local government officials, more of the money-filled envelopes were given out.

So far, two people have publicly confirmed the cash distribution. The first, Cebu congressman Antonio Cuenco, in a radio interview, stated that the P200,000 was a “Christmas gift.” Later, perhaps realizing that this admission may have been a bit too honest, Cuenco backtracked and said he was merely “joking.” The second was Pampanga Governor Ed Panlilio, who claimed that while he was walking toward his car, he was given P500,000 in a brown paper gift bag by a Malacañang staffer for “barangay projects.”

Even going solely by appearances, there is something extremely suspicious about putting huge sums of cash in envelopes and paper bags and handing them out to public officials. In a government bureaucracy that has created an entire culture out of paperwork and red tape, where money disbursements are made though checks and supported by countless written approvals and endorsements, it is strange to see cash handed out in such a fashion – casually and seemingly without a paper trail. It is a practice you would expect from drug dealers or jueteng operators, but certainly not from upright members of the public service.

However, going by the explanations given by Cuenco and Father Ed, the whole matter crosses over from merely “looking suspicious” to becoming “outrightly illegal.”

The Revised Penal Code states that the crime of indirect bribery is committed by a “public officer who shall accept gifts offered to him by reason of his office.” Similarly, PD 46 makes it crime for “any public official and employee… to receive, directly or indirectly… any gift, present or other valuable things on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position.”

Clearly therefore, attempting to justify the receipt of P200,000 in cash by calling it a “Christmas gift” only makes it more obviously illegal under the law.

Packaging the distribution as disbursements for “barangay projects” or some other public purpose, on the other hand, will not automatically make it valid. All disbursements of public funds have to be supported by an allocation under the Congress-approved budget, and must follow the proper administrative and accounting procedures. It is highly doubtful that handing over a paper bag with P500,000 cash in a parking lot to a provincial governor constitutes sufficient compliance.

Laws and regulations concerning the giving of money and other assets to public officials have one basic, common purpose – to ensure accountability and integrity in the public service. It should be crystal clear that handing out bundles of cash at breakfast meetings and in parking lots does nothing to further either of these interests.