The Great Escape

On Monday last week, the first day of October, we were witness to what in the Philippines amounts to a minor miracle – a high ranking government official voluntarily relinquishing office.

In our country, where we have come to expect those in power to cling with all their might to public office even in the face of public outrage, widespread scorn, or even court orders, the resignation of Commission on Elections (COMELEC) Chairperson Benjamin Abalos came as a welcome surprise. As some quarters put it, his resignation set “an example” that should be viewed as a “victory for the public.” Similarly, it “spared” Congress and the public from the “tedious and tiring impeachment process.”

But though Abalos’ resignation may indeed constitute a refreshing draught of delicadeza amid the desert of current public conscience, it may not be as selfless as many of us would want to believe. After all, the good Chairperson, in announcing his resignation, was quick to clarify that he was “not admitting guilt for any wrongdoing” nor was he “giving up on [his] crusade to clear [his] name and reputation.” Going one step further, Abalos and his lawyer even announced that they would file libel charges against his two principal accusers, Joey De Venecia and Romulo Neri, based on the “false testimony” they gave before the Senate.

Clearly therefore, the resignation is the furthest thing from a conscience-salving confession. If anything, it would seem that the principal motivation was to avoid an embarrassing, and perhaps potentially explosive, impeachment proceeding in Congress.

Resignation as a means to avoid removal proceedings or disciplinary sanctions, though not always disallowed, is definitely discouraged under our law. For instance, under the Local Government Code, a local official facing removal through a recall election is barred from resigning. Similarly, the Supreme Court has ruled in several cases that “resignation should not be used either as an escape or as an easy out to evade administrative liability.”

The reason for this is self-evident: there is a high level of public interest in ensuring that public officials are held accountable for any wrongdoing committed while in office. While resignation may seem like a “shortcut” solution to the administrative process, it nonetheless prevents full disclosure of the extent of the wrongdoing, as well as imposition of the full set of legal sanctions.

In the case of Abalos, a full blown impeachment would have led, most likely, to disclosures that would provide a more complete picture of the entire ZTE scandal – including the names and involvement of other public figures. Similarly, a conviction by an impeachment court would be a legal finding of Abalos’ culpability that could lead to additional penalties, such as imprisonment.

As it stands, his resignation leaves too many questions unanswered. Of course, one way to find the answers, and prevent his “escape,” is to insist that, despite the resignation, criminal charges must be aggressively pursued against him.

The Legality of Forgiveness

Almost three weeks ago, the Sandiganbayan convicted former President Joseph “Erap” Estrada of two counts of plunder. In convicting Erap the court concluded that the evidence showed “beyond a reasonable doubt” that he had committed the acts constituting the crime of plunder –accepting “payoffs” from jueteng operators and receiving kickbacks from government purchases of certain shares of stock.

The verdict has since spawned a loud and oftentimes vicious public debate on the validity of the decision. Quite apart from arguments concerning the finding of guilt itself, however, a second discussion has emerged. That is, setting aside the question of Erap’s guilt or innocence, should he in fact be made to suffer the penalty of imprisonment?

The Sandiganbayan judgment sentenced Erap to reclusion perpetua or imprisonment from 20-40 years. A number of voices have been raised in support of granting amnesty or pardon to Erap, to the end that he be exempted from actually serving out this period of imprisonment. Senator Mar Roxas, for instance, filed Senate Resolution 135 urging that Erap be pardoned “at the appropriate time and on humanitarian grounds.” A Social Weather Stations (SWS) survey taken a week before the Sandiganbayan verdict showed that 84% of the public favored a pardon either immediately (48%) or after some time (36%).

In the Philippines, both amnesty and pardon have the effect of exempting a person convicted of or charged with a crime from serving the penalty attached by law to the offense. Amnesty, however, is granted to a class or group of persons, while pardon is given to individuals. Likewise, amnesty can only be granted by the President with the concurrence of a majority in Congress, while pardon is solely the act of the President. Lastly, amnesty is traditionally granted only to offenders of “political” crimes such as rebellion or sedition, while pardon can cover any type of offender

Pardon can be absolute or conditional. An absolute pardon operates to immediately and irrevocably relieve an offender from all the penalties which arise from conviction. A conditional pardon partakes of the nature of a contract, where the offender agrees to perform certain acts (get a steady job, refrain from committing other crimes) in return for being relieved from serving sentence. In our law, conditional pardons require the offender to accept the pardon, and its terms. Absolute pardons, however, immediately take effect even without acceptance.

“Forgiveness” is what, in essence, pardon is. It is an act of grace, or pure generosity, on the part of the President extended to a person who has been “convicted by final judgment.” In other words, it is an act of clemency extended by the Executive to one who has been conclusively adjudged as guilty by the courts.

Thus, any effort to pardon Erap, whether absolutely or conditionally, will have to wait until the full court process, appeals and all, is exhausted.

Willful Blindness

Two controversial inquiries currently being conducted by the Senate – the revived “Hello Garci” hearings starring a newly loquacious T/Sgt. Vidal Doble, and the ZTE/NBN investigation showcasing a finger-pointing (literally) Joey De Venecia – have once again thrown into the legal limelight the issue of executive privilege as against the power of Congress to conduct inquiries “in aid of legislation.” The issue first cropped up two years ago when GMA issued Executive Order No. 464, a directive criticized by many as a virtual “gag order” on administration officials.

EO 464 subsequently became the subject of a Supreme Court decision (Senate of the Philippines v. Ermita) which attempted to delineate the boundary between the powers of Congress and the prerogatives of the Chief Executive. While the decision, when actually read, seems clear enough, its impact has been greatly weakened by conflicting claims and interpretations from the two contending camps – the Senate and the Office of the President.

What does the decision actually prescribe, and how does it bear on current efforts by the Senate to extract testimony?

To begin with, the Court in Ermita clearly underscored that, as a rule, Congressional inquiries in aid of legislation must be given the broadest possible leeway. This is to ensure that Congress is always given the opportunity to equip itself with information necessary for passing legislation. Furthermore, Congress, in its representative capacity, acts as an instrument by which the general public can assert its right to information on matters of public concern.

That said, the Court likewise stated that as an exception to this rule, the claim of “executive privilege” can be raised. Executive privilege allows the President to withhold information from the public, the courts, and Congress where such non-disclosure “is necessary to the discharge of highly important executive responsibilities.” This covers information of a sensitive or highly confidential nature, such as military or diplomatic secrets, whose revelation could harm the State.

However, the Court emphasized that executive privilege is an exception that must be strictly construed. It can only be validly asserted directly by the President and only upon an explanation as to why the disclosure of the specific information would cause damage to the public interest. Therefore, unsupported claims of “executive privilege” cannot be used to justify outright refusal to appear or participate in a Congressional inquiry.

In this light, it is strange why administration officials still insist on avoiding Senate inquiries upon the bare claim that “it would violate EO 464.” First of all, no official other than the President, or the Executive Secretary acting under her explicit direction, can make the assertion. Secondly, the claim must be made with respect to specific information. Thirdly, an explanation on the danger of disclosure must accompany the claim.

A careful reading of Ermita makes it clear that these persistent refusals are anchored more on the intention to thwart, rather than uphold, public interest. But then, of course, there are none so blind as those who will not see.

The Power of Trust

The Sandiganbayan decision convicting deposed President Joseph “Erap” Estrada on two counts of plunder has been met with a storm of public reaction since it was announced last Wednesday. Oddly enough, despite the being a matter ostensibly based on technical, legal considerations (i.e. whether the evidence presented was sufficient to convict Erap “beyond reasonable doubt”), reactions to the decision, be it praise or condemnation, tended to rely more on extralegal concerns such as “public interest” or “political pressure.”

To a large extent, public reaction has focused more on the implications, the decision-making process, and the motives of the court and the government, rather than the technical legal merits of the decision itself.

This fact gives us an insight on the relationship between courts and the public at large. Courts, in carrying out their task of interpreting the law and applying it to resolve specific cases and disputes, go through the rather technical process of evaluating evidence, weighing precedent, and rendering a judgment anchored on its appreciation of formal, established legal rules. Most members of the public will be unable to fully understand this arcane process, either because of lack of familiarity with the rules, or more simply, because they did not have the opportunity the court had to observe witnesses, read the documents, and sift firsthand through the evidence.

Nonetheless, despite this lack of understanding, we expect court judgments, as a rule, to remain unquestioned and, in fact, to be wholeheartedly accepted by the general public. For this we rely on one of the most important features of our judicial system – firm public trust in the courts.

Trust leads the public at large to accept court judgments even if they are not personally and specifically aware of their legal soundness. In other words, institutional trust in the courts dispenses with the need to convince each individual citizen of the merit of a decision by explaining at length how it was arrived at. In fact, the overwhelming majority has probably never even read an actual decision, and yet the validity of court judgments is, on the whole, accepted.

Given this, it becomes apparent just how crucial and dispensable trust in the courts is to the sustainability of our justice system. In recognition of this, the Code of Judicial Conduct specifically mandates that “a judge should avoid impropriety and the appearance of impropriety at all times,” so as to avoid the slightest doubt to cloud public trust in the courts.

The reaction to the Erap verdict, in particular the howls of outrage over alleged “political considerations” in crafting the decision, tend to indicate that, at least in this case, public trust in the Sandiganbayan is not as firm as it could be. And obviously, this does not speak well for the health of our judicial system.

Catching Up

Well it has been a quiet few months on the blogging front. Was shocked to see that my last post was in September! At any rate, I’m posting a few columns by way of catching up. A few new posts on more recent events, on the Manila Pen.. um.. incident, should be forthcoming in the next couple of days.

The Letter That Killeth

My column for the week, as scheduled.

“Prove it.”

It seems that these days, these two words are the most common rejoinder offered by those accused of wrongdoing, whether of the criminal, administrative, or moral kind. Whether coming from the head of a constitutional body being accused of accepting bribes in exchange for intervention in a government contract, or from the spokespersons of a fraternity being held to account for a hazing fatality, or from military officials suspected of directing the abduction and murder of hundreds of citizens, the response is startlingly consistent – prove it.

While the reply may be consistent with the formal framework of our legal system – a system that is anchored on such tenets as “innocent until proven guilty” and which always places the burden of proof on the accuser rather than the accused – it overlooks the crucial point that public discussions on culpability are not solely governed by strict legal rules. Accountability to the public, particularly in the case of government officials, is not the same as the criminal or administrative accountability that has to be proven in court through a specified set of formalistic procedures.

In other words, while a person who faces public accusations of wrongdoing, be it corruption or murder, may have the legal right to say “prove it” before she, he, or it is legally penalized, this does not grant absolution from the social duty to respond to public concerns.

Unfortunately, in our society, enamored as it is with black letter law and all its myriad technicalities – “legal gobbledygook” as a frustrated Senator Rodolfo Biazon once referred to them – the legal has come to automatically equated with what is proper or perhaps even moral.

One oft cited maxim in Philippine jurisprudence (which, surprisingly enough is paraphrased from Saint Paul’s letter to the Corinthians) is that laws should be interpreted not according to the letter that kills, but the spirit that gives life. Simply put, intention or purpose should prevail over a literal reading of the rules.

In these times when so many of us have lost faith in our leaders and institutions, we would do well to heed this reminder. That leaders and institutions are accountable not only for what can be formally proven in court, but to the bar of public opinion. That they should adhere not only to the literal wording of the law, but to the dictates of public trust and public interest which give the law its real and vital spirit.

A Death In The Family

Here is my column for the week. I actually feel it’s a bit too rational. I wrote a far angrier, and perhaps more impassioned, comment in one mailing list I belong to. Anyway.

The University of the Philippines (UP) is very much in the news again. Unfortunately, it is not because of any scholastic or athletic achievement (unless you count its dismal 0-10 record in UAAP basketball as a dubious distinction of sorts), but for the fact that a student has died under circumstances many consider as indicative of fraternity hazing.

Through the years, in UP and in various other universities across the country, a rather alarming number of promising young men have lost their lives to the practice of hazing; “hazing” being commonly understood as a process of initiation into a fraternity or other organization which involves subjecting an applicant to humiliation, psychological stress, and in some cases, actually physical assault.

While causing injury or death in the course of hazing is clearly criminal even under our older penal laws (physical injuries or murder under the Revised Penal Code, as the case may be), in 1995 Congress enacted a specific law, RA 8049 more commonly known as the Anti-Hazing Law, defining hazing and imposing penalties on persons who inflict injuries or cause death during such process. For a hazing-related death, the law imposes the appropriately stiff penalty of reclusion perpetua, or imprisonment from 20 to 40 years, on those found responsible.

In the 12 years since the Anti-Hazing Law took effect, however, young men have continued to forfeit their lives in the course of fraternity initiations. The problem, as usual, is not so much with the substance of the statute itself but with its enforcement. In many cases involving hazing related deaths, the law is not applied to its fullest extent and the persons responsible are often charged with crimes bearing lighter penalties, such as homicide or criminal negligence.

The Anti-Hazing law also requires that school authorities be informed in writing when any fraternity or organization will conduct an initiation, and that at least two representatives from the school be present during the process to ensure that no physical harm is done to any applicant. Failure to do so exposes the officers of the organization to administrative sanctions such as suspension or expulsion. But again, this legal requirement is more often than not ignored, in some cases with disastrous consequences.

If our society is to see an end to the horrific spectacle of young men senselessly losing their lives to the ritual violence of hazing, courts and school authorities will have to enforce the terms of the Anti-Hazing Law much more strictly.

While it is perhaps unfortunate that those responsible, who more often than not will be equally promising young men, will face sanctions that could possibly destroy their future prospects, it is the only way to ensure a resolution to this problem, and perhaps more importantly, to uphold the principles of accountability and the rule of law so integral to the continued survival of our society.

Anger

There seems to be so much to get angry about these days. I find that even a short browse through my daily copy of the Philippine Daily Inquirer (yes, I am one of the dying breed who still insist on maintaining subscriptions to the traditional newsprint-and-ink version) is often sufficient to set my temper flaring.

For shaking off sleepiness, it’s almost as good as chugging down a mug of coffee in the morning.

What do I get angry about exactly? Well a lot of things. Most of which have to do with the fact that so many people in public life (I refuse to call them “public servants,” since they never act that way at all) commit the most atrocious, unconscionable, blatantly unfair, and oftentimes illegal acts without (and this is what really gets me) the barest hint of shame. Its not simply that they do “wrong,” but that they act so righteous while doing so.

Take the case of one of my favorite pet peeves, Bayani Fernando and his thug squad known as the MMDA. I know the man has received a lot of praise for his supposedly no-nonsense enforcement of the law, but in my view he has violated more laws than he has actually upheld. To begin with, his entire campaign against informal settlers, small-time vendors, and other “obstructions” to streets, sidewalks, and waterways is anchored on a resolution enacted by the MMDA; a resolution which the Supreme Court, in several decisions, has already declared the MMDA has NO POWER to enact.

Furthermore, his continued confiscation of vendors’ property and forced evictions of the poor violate not only rights very clearly enshrined in our Constitution, but numerous provisions of various laws such as the Urban Development and Housing Act.

Now, I want, no, I desperately crave, public officials to be uncompromising in the way they enforce the laws. But they must be equally stringent in obeying it themselves, and that means pursuing enforcement with due observance of legally established rights. Otherwise they are not acting as public officials but as vigilantes.

Besides, there is something which I find unacceptable in his very attitude towards enforcement. I mean, fine, we have laws mandating that sidewalks should be kept clear, but have you ever seen the MMDA enforce this rule against well-to-do homeowners whose driveways encroach on this public space? Have you seen them tow-away SUVs illegally parked on sidewalks and trash them the same way they do to the stalls and produce of itinerant vendors? If we’re really serious about enforcing the law, let’s start by cracking down on the most privileged, not the most powerless members of our society.

Otherwise what we’re propping up is not a strong State, but merely a loudmouthed, oppressive bully.

Impunity

I’ve started writing a column for a newspaper so I suppose I should post the first one here.

“Get out of the Philippines,” was the suggestion I received from a friend of mine recently. Surprisingly, she was not basing her proposal on the usual economic considerations but was instead, referring to the rampant killings of activists, journalists, and, well, lawyers.

Of course, I did not take her concerns about my personal welfare seriously. After all, even in the most trigger-happy environment, who would bother gunning down a law professor? Apart from disgruntled students, that is.

What I did take seriously, however, was the solution she put forward: Leave the Philippines. She did not suggest seeking succor from the courts or protection from the police; she proposed flight

Of course, the rather extreme notion of fleeing one’s native land only becomes reasonable in the light of one fundamental fact – nobody really trusts the courts, much less the police. Instead, the vast majority have become convinced, despite the bold and extremely laudable initiatives of our Chief Justice, that neither the courts, the police, nor the entire criminal justice system will be able to protect us from becoming victims of crime, whether killings carried out by professional gunmen (or disgruntled students), robberies aboard FX taxis, or the theft of our cellular phones.

This lack of trust in state mechanisms for law enforcement has its roots in the general perception that, in a seemingly overwhelming number of crimes, the agents of the law have failed to bring the perpetrators to justice. In the more spectacular cases involving the murder of activists, the police have rarely, if ever, made any plausible arrests, and the courts have not made any convictions. In the more mundane instances involving cell phone theft, the ordinary citizen, recognizing the futility of filing a police report, will simply write off the loss.

All these are indicative of what is known as a “culture of impunity.”

Impunity, simply put, is freedom from the consequences of one’s acts. In the case of criminal acts, these consequences should ideally involve punishment. A culture of impunity, therefore, arises when criminal acts have gone repeatedly unpunished to the point where this failure has become the norm rather than the exception.

In our case, most of us have gone through outrage at and disappointment with the government, to cold acceptance of its inability to protect us. And like my friend, we have learned to cope with this institutional failure.

The problem with merely coping, though, is that it concedes that government’s failure is inevitable and, more crucially, unchangeable. This is a premise that we cannot afford to accept if we still intend to continue living in the Philippines and generally trying to make things work. We must retreat from acceptance, and once again try to find our outrage, reclaim our collective expectations, and force government to live up to them.

Otherwise, we might as well take my friend’s advice, and join the mad rush to the airport.

It begins again?

So for the umpteenth time I try to start, and hopefully sustain, a blog. Over the years I have tried to maintain several journals, both online and in the more traditional paper and ink form, but I have never been able to for any appreciable length of time. Looking back on all those years of starts and stops, of long silences, and frantic efforts to catch up, what stands out is the fact that I write the most, and perhaps the best, during the loneliest periods of my life.

During my first few years at the University, when I was a socially inept, painfully insecure adolescent (come to think of it, maybe I still am at heart), whose major preoccupation was how to hoodwink some hapless coed into becoming my girlfriend, I filled pages upon pages of a battered Cattleya notebook with my undoubtedly pathetic frustrations and longings. But when my prospects started to pick up — friends, a social life, and yes, that long awaited girlfriend (who to this day I am firmly convinced I did NOT deserve ;p) — the writing dropped off. Well I still did quite a bit of writing, after all, it was during this time that I started working for the student paper, but not in a journal.

Years, and many girlfriends later, I once again found myself in the social doldrums. A three year relationship had just ended (and rather messily at that) and as a consequence I was broke, homeless, and rather pessimistic about my life in general. And at that moment, reunited with the angst-ridden existence I thought I had forever left behind, the words started pouring out once again, ceasing only when, a year or so later, I once again achieved a certain conventional level of stability.

Given this history then, I am actually somewhat worried that the fact I am attempting to start a journal again means that something is wrong with my life. And with a wife, a four year old, and monthly car payments, even the barest hint of yet another crisis of meaning on the horizon is truly cause for worry.

Oh well, I suppose that if worse comes to worst, I can simply just go into another long hibernation.