The rest of the iceberg

My piece on the cybercrime law — whose title was abbreviated by the editors to “Rest of iceberg” — came out in the Philippine Daily Inquirer’s Talk of the Town section this Sunday, March 9, 2014. I am posting the original, longer version of the article here, and retaining the slightly longer title as well.

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Much of the online outrage that came in the wake of the Supreme Court’s decision in the now landmark case of Disini v. Secretary of Justice (probably more popularly known to the public as the “cybercrime case”) was directed at the portion of the ruling upholding the constitutionality of Section 4(c)4 of the Cybercrime Prevention Act (RA 10175) – the “cyberlibel” provision.

This is not surprising, considering that from the outset, this provision on cyberlibel has been the most vociferously condemned feature of the law, with academics, civil rights lawyers, journalists, and ordinary netizens all coming together to bewail its deleterious effects on free speech online. The fact that Senator Vicente “Tito” Sotto III — not exactly everyone’s favorite member of the Senate — subsequently admitted to inserting the provision at a late stage of the bill’s deliberations in Congress, only added further to the notoriety of the provision.

Even the three dissenting members of the Court, Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio T. Carpio, and Associate Justice Marvic F. Leonen, all focused their dissents mainly on the question of cyberlibel and the related libel provision in the Revised Penal Code.

But while the cyberlibel question is indisputably significant, it is definitely not the only item of concern in relation to free speech, particularly within the relatively new terrain of cyberspace, in the Cybercrime Prevention Act. The seemingly innocuous Section 6, which transplants provisions of the Revised Penal Code into the Cybercrime Prevention Act, so long as they are committed “by, through, and with the use of communication and information technologies,” is potentially an even more insidious threat to online speech than cyberlibel, yet, thus far, it has sailed largely unscathed through the storms of protest that came in the wake of both the law’s enactment and it’s “ratification” by the Supreme Court in Disini.

Section 6 is phrased simply enough:

All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

It is perhaps because of this deceptively simple phrasing of the provision that its far reaching implications, which go well beyond just the issue of libel, have been mostly overlooked. In the majority decision in Disini, the ponente, Associate Justice Roberto A. Abad, devotes a single, somewhat dismissive, paragraph to discussing Section 6, saying that the provision “merely makes the commission of existing crimes through the internet a qualifying circumstance.” And while CJ Sereno devotes a significant part of her dissent to discussing Section 6, she dwells more on the how the higher penalty mandated in the provision, again taken solely in relation to libel, creates a heavier “chilling effect” on free speech.

To my mind, there are at least two problems with Section 6 that were not substantially taken up either in the main decision, or in the dissenting opinions.

The first is a matter actually touched on during the oral arguments when Justice Carpio asked counsel for petitioners, my colleague in the House of Representatives, Neri Colmenares, if it is required for cyberlibel to exist that the computer system used be connected to the Internet. Carpio’s point was the expansive phrase “by, through and with the use of information and communications technologies” used in Section 6 seemingly allowed for application of the Cybercrime Prevention Act, and the higher penalty under Section 6, to a libellous article merely written using a computer, without necessarily transmitting or uploading the same online. Unfortunately, petitioners were unable to further develop this point, which I feel is a key issue with regard to the entire law.

The crux of this particular matter is that by treating the use of “information and communications technologies,” — an exceedingly broad term that is not even defined and delimited in the law itself — as a qualifying circumstance to all crimes defined and penalized under the Revised Penal Code, it opens the floodgates to a slew of prosecutions under Section 6 that have nothing to do with cyberspace.

For instance, using your cellphone to send threatening text messages to your ex-girlfriend’s new suitor, mislead random strangers into thinking that they’ve “won” a cash prize and will get it provided they pay a “management fee,” or inform your fellow burglars that the security guards by the backdoor of the warehouse have walked on, can now all be potentially penalized as “cyber-threats,” “cyber-estafa,” and “cyber-robbery” respectively.

And as more and more, we come to rely on our mobile phones, laptops, tablets, google glasses, and – who knows, eventually – surgically implanted computer chips, for the things we do in our daily lives, at some point, it is conceivable that all crimes will be “cybercrimes” due to the broad phrasing of Section 6. And remember, they will all be subject to the higher penalty prescribed in the provision.

The second problem is more specific, and relates to other provisions of the Revised Penal Code that have potentially suppressive effects on free speech, and that have been “imported” into the Cybercrime Prevention Act again through Section 6.

The most glaring example here is Article 142 of the Revised Penal Code, which defines the crime of inciting to sedition. This punishes any person —

who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.

This provision is adopted from the 1901 Sedition Law, or Act No. 292, promulgated by the United States colonial government to deter uprisings by the newly conquered Filipinos and punish all those critical of the government. A cursory reading of the text shows that it is deliberately designed to be broadly worded and conveniently vague – the crime is committed if “seditious words” are uttered, or words which “tend” to instigate others to meet or cabal, or which “suggest” rebellious conspiracies.

This is not surprising, as the Sedition Law was really intended as a draconian instrument to clamp down on dissent and protest during a particularly restive period in our history. Sadly, it has persisted in our statute books up to the present, and has been used by Presidents such as Ferdinand Marcos and, more recently, Gloria Macapagal Arroyo, to crack down on their critics and political opponents.

Still, it is apparent that Article 142, which should have long been struck down as a clear infringement on free speech, is now given a new, more potent existence through Section 6 of the Cybercrime Prevention Act.

Tweeting or posting on Facebook a statement calling the government “dirty,” a “dictatorship,” or “shameful,” will likely subject the hapless netizen to a prosecution for “cyber-sedition” as these are all invectives that the Supreme Court, in the 1951 case of Espuelas v. People, have deemed as seditious utterances. In fact, according to the same case, unless the criticism is “specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up,” then it is punishable under Article 142.

Browsing through my Twitter feed on any given day, I can just imagine how many potential “cyber-seditionists” there are, courtesy of Section 6 in relation to Article 142.                

Another example is Article 133, which should still be fresh in our memory in relation to the Carlos Celdran “Damaso” case. This provision that is yet another archaic, outdated throwback to colonial times, but which, for some inexplicable reason, continues to persist in our penal code, penalizes “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.”

Setting aside the venue and timing element – although, with ICT being what it is, how can you really say that you did not post, tweet, email, or text while a religious ceremony, somewhere was taking place – the phrase “notoriously offensive to the feelings of the faithful” has tremendous potential for taking to task for “cyber blasphemy” all those pro-RH people who clutter our online spaces with calls to implement the reproductive health law. I have a friend who makes a habit of debating die-hard religious nuts online, and I suppose now I have to warn him that he is now potentially opening himself up to potential criminal prosecution under the Cybercrime Prevention Act.

Finally, there is the second paragraph of Article 287, which penalizes “unjust vexation” with a nominal fine and imprisonment of up to 30 days. While seemingly innocuous, even trivial, this provision becomes potent when fused with Section 6 since it will potentially allow criminal prosecutions, which can result in a penalty of up to six (6) months imprisonment, for any vexing, irritating, annoying statement posted online. And really, on a regular day, how many annoying posts do you see on your newsfeed? Post an acerbic comment about all those selfies your friend uploads, and, thanks to Section 6, you may be looking at six months in Bilibid. Of course, you can jump the gun and sue him for his annoying selfies, “cyber-vexing” can, after all, cut both ways.

Ultimately, the problem with Section 6 is that it transplants wholesale hundreds of crimes from an 82-year old law – many of which were in turn adopted from laws enacted centuries earlier – and attempts to adopt them to the completely new, completely different terrain of cyberspace. There are bound to be problems in applying restrictions crafted in colonial times to the free-wheeling discussions on Facebook or the Twitterverse.

It is justified to be concerned about cyberlibel. But we should not forget, that it is an issue that is, very much, just the tip of a very large, very heavy iceberg.

Towards an HIV/AIDS-free society

Privilege speech I delivered yesterday, 2 December 2013, at the House of Representatives.

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Mr. Speaker, I rise today to speak before this House, to both commemorate and call to action.

Yesterday, December 1, marked the 25^th year of the observance of World AIDS Day.

I know many of our colleagues may wonder, why talk about HIV/AIDS now, when so many other concerns, some perhaps more urgent or compelling, face our nation and this Congress? In the face of issues concerning PDAF – or the absence thereof, post-Yolanda reconstruction, climate change policy, and the continuing campaign against poverty, it is tempting to brush aside the issue of HIV/AIDS and to consider it as “not a priority.”

But it is precisely this attitude of relative indifference that has brought us to the alarming juncture where we are today, where 25 years after the global community has declared an all-out campaign to combat HIV/AIDS and 15 years after we enacted our own AIDS prevention law, the increase in reported cases of HIV/AIDS has hit terrifying figures – 4,072 new cases since January of this year, 491 cases in October alone, out of the 15,774 total cases reported since 1984. That means 25.8% of all HIV/AIDS cases in the last three decades were reported in the first ten months of this year.  

I therefore rise this afternoon not only to join the rest of the world in commemorating World AIDS Day but also to talk about some of the urgent issues related to HIV/AIDS that I believe we must take up.

This time presents us with the opportunity to examine our substantial progress in the battle against the HIV and AIDS pandemic and to reaffirm our commitment to achieving an HIV/AIDS-free society. We also remember those we have lost, encourage those who continue to suffer, and lend support to their family and friends who, in many cases unfortunately, continue to bear the unfair and misguided discrimination of society.

The year 1998 marked the beginning of our country’s declaration of war against the disease with the passage of RA 8504, also known as, The Philippine AIDS Prevention and Control Act of 1998, a national comprehensive plan of preventing the spread of the disease within the populace. It outlined the necessary tools and strategy needed by the government to prevent the occurrence of new infections, control its transmissions, make available the necessary care and treatment to the victims and protect the rights of the HIV/AIDS victims and key populations at higher risk to the infection. A coordinated national response against the disease was also established through the creation of the Philippine National AIDS Council (PNAC).

In the 15 years since the enactment of the AIDS law, government worked to elevate the nation’s awareness of the disease, supported studies that aimed to reduce its transmission, and built ties with various NGOs, community groups, and international agencies to help curb the increasing trend of infections. The 1998 AIDS Law intended to curb and stabilize the spread of HIV and AIDS in the country was, in fact, hailed as “best practice” by the international community.

In addition, as signatory to the United Nations Millennium Development Goals (UNMDG), we made a commitment to halt the spread of HIV infection and to begin reducing its incidence in the country by 2015.

In the global arena, UNAIDS reports show that 95% out of 186 countries are on track with their MDG on HIV/AIDS. This marked a pivotal juncture in the worldwide effort of curbing and halting the spread of the disease. There has been a downward global trend in new cases of HIV/AIDS victims at the turn of the millennium, as 77 countries had either stabilized or reduced HIV infections within their territories—an indicator that the world may soon make the zero-infections, zero-deaths and zero-discrimination UN political declaration on HIV/AIDS an achievable reality.

These positive developments in the global arena, unfortunately, are not reflective of the current state of affairs in our country. Despite the 1998 law, and the efforts undertaken in pursuit of its goals, a triumph against HIV/AIDS is not yet within sight, as number of new HIV infections continue to expand rapidly. When the AIDS bill was enacted in 1998, HIV/AIDS victims were numbered at 189. This figure was more than doubled by 2008 as recorded cases reached a total of 528. By 2012, HIV/AIDS reached a staggering total of 3,338 cases.

Prior to 2008, HIV prevalence in the Philippines was considered “low and slow”, with only one new HIV infection being reported per day. Five years after, the tide has completely turned. HIV prevalence has now become “fast and furious”. In August of this year, reported new HIV cases increased to 16 per day, or 1 new case per 1.5 hour. This means that by the time this assemblage is adjourned at 7PM, there will be 13 new reported cases of HIV infection, with 2 new cases being reported as we conduct this session.

The radical upward surge on the HIV/AIDS situation in the country, thus, requires that we bring this issue to the forefront of the Congressional agenda.

Accomplishing the goal of an AIDS-free society requires us to reconfigure our knowledge and understanding of the subject, scrutinize the emerging trends and developing dynamics within the population afflicted with HIV/AIDS and craft an up-to-date effective prevention and control response which takes into account the experiences of the last 15 years.

As I mentioned earlier, within this year alone, a total of 4,072 HIV/AIDS cases were already recorded. This is 40% higher compared to last year’s figure of the same period and a thousandfold increase since the enactment of the AIDS law. Health experts have explained that the massive jump of infections is due to low use of condoms, multiple sexual partnerships among key populations at higher risk to infections, and unregulated sharing of needles among people with injecting drugs (PWID). Unprotected sex, in particular, doubles a person’s likelihood of contracting HIV and unregulated needle-sharing has become a major cause of transmission for the disease.

A closer look on the epidemic situation in the country reveals shifting trends and changing dynamics in the demographics of people affected by the disease. Out of the recorded four thousand plus HIV/AIDS cases this year, a hugely disproportionate distribution was apparent, in terms of geographic, gender and age. A huge concentration of the victims now are the young generation, belonging to the 20-29 year age bracket, predominantly male (95% of the total cases) and they are found mostly in NCR, Region 7 and 4A (Manila, Davao and Angeles, Pampanga). HIV prevalence within these regions are pegged at 5% or higher—surpassing the HIV prevalence within the general population. They are now flagged as priority areas that are in dire need of focused intervention on prevention, treatment, care and protection. Manila, for one, is of particular concern as it accounts for more than 50% of the total number of new HIV cases recorded this year.

Although sexual contact remains the dominant mode of virus-transmission, its main drivers have now changed faces. Prior to the turn of the millennium, females were considered the main drivers of the disease: specifically, those engaged in sex trade. Recent studies made by the Department of Health and various other international agencies reveal, however, that males having sex with other males (MSMs) now predominate. They comprise 80% of the total number of HIV cases in the country.

According to government epidemiologists, if nothing is done to address and reverse the existing conditions, HIV cases are projected at an all-time high of 45,000 by 2015. This bleak prediction should urge us to step up our game and meet the demands of the developing dynamics and changing conditions that continue to encourage the spread of the disease.

The fact that the disease afflicts less than one percent (<1%) of the general population should not deter us. We should not let the number fool us into treating this issue with a great degree of political comfort and complacency. Instead, this should challenge us to take firm actions to prevent the disease from becoming a full blown pandemic, as has happened in many countries. Prevention is better than cure, but for diseases such as HIV and AIDS that has irreversible infections and with no discovered cure, prevention is the cure.

The government has made progresses in areas such as: providing wider access to anti-retroviral treatment (ART), a treatment used to slow down the progress of HIV in the body to victims and the highly at-risk population; investments were placed on research aimed at reducing the spread of the disease; and, leveling up of the peoples’ knowledge of the disease were undertaken. The manner of discourse, however, is largely saddled by our country’s traditional values and culture. These considerations continue to prevent an open debate and discussion of the issue in the public arena, thus, limiting peoples’ understanding of the issue.

The continuing stigma and discrimination against HIV/AIDS victims and their family has also greatly hampered the achievement of a future that is AIDS-free. The shame, guilt, fear of alienation, discrimination and other perverse repercussions that come along with being identified with the disease pushes victims to hide their conditions, not seek treatment or disclose their status to their partners—thereby, increasing the likelihood of the spread of the disease.

I remember reading a news report back in 2010 about Rolly (not his real name), a person living with HIV, who worked as a dancer in a bar. In the article, he recounted the painful ordeal he encountered due to his condition. He related how, at his workplace, people living with HIV/AIDS like him were locked inside a room and those who served them food would kick it under the door. They were treated like outcasts. For people like them, discrimination and stigma is a harsh reality they have to live on every day. Another report published in 2008 told of the horrific experience by a family in Olongapo, who, after it was discovered that one of their family members was HIV positive, woke up to find a their house on fire. It was later found out that their neighbors, afraid of possibly catching the virus carried by their family member, colluded to torch their tiny hut.

Faced with an impending death, a hostile and discriminating society, it seems the story of ‘Rolly’ aptly describes the experience of living with AIDS—that the discrimination from the society against HIV/AIDS victims can be much more painful and fatal more than the virus itself.

We have made significant progress in other areas of our development goals. This time, let us channel this nation’s creativity in the serious fight against HIV/AIDS making good of our commitment in eliminating HIV/AIDS in our society. Let us ensure that no infections occur due to lack of information, or worse, misinformation, no death due to lack of treatment and no discrimination due to lack of understanding and compassion.

The nation must be equipped with the necessary information that will guide them to stay healthy and avoid the infection. Enough funding should be made available to aid the health sector provide the necessary quality and accessible prevention, treatment, care and support services to people living with HIV/AIDS and to those who are highly at-risk of contracting the virus.

It is time to open the debate and discussion of the issue in the public arena. There is a need to break the myths and misconceptions that surround the disease, which, consequently, breed stigma and discrimination from the society.

That is why, earlier today, I, with two other members of this distinguished House, the Honorable Teddy Brawner Baguilat of the Lone District of Ifugao, and the Honorable Lani Mercado-Revilla of the 2^nd District of Cavite, did our small part in attempting to lift the stigma attached to HIV/AIDS by undergoing voluntary HIV testing at the free clinic currently set up at the House of Representatives medical building. The clinic will be open for three days, and I urge all of you, my esteemed colleagues, to take the test, if only to show to our constituents and fellow Filipinos that there is nothing to fear, or to be ashamed of, insofar as these crucial preventive practices relating to HIV/AIDS are concerned.

The issue of HIV and AIDS is one that is not, and will never be, an exclusive topic that is reserved for the victims, their families and their friends. It is our issue too, as a nation and as a country striving for inclusive economic growth and development. It is our moral obligation and common mission to ensure that, in our journey toward progress, no one is left behind — not the poor, not the sick, not the old, not the weak. We should not let anyone fall between the gaps and inadequacies that characterize several of our laws and institutions. And to be willing and ready to lend a hand those who do.

I hope, my dear colleagues, that we will take up this challenge.

Thank you, Mr. Speaker, and good afternoon.

Akbayan to Aquino: Abolish the Pork

Akbayan Partylist today called on President Benigno Simeon Aquino III to immediately and without conditions abolish the Priority Development Assistance Fund (PDAF) following the shocking revelations in the recent COA audit on the heels of the P 10 Billion Napoles-pork barrel scam. The progressive-coalition partner of Aquino said that the pork barrel is “incompatible with the President’s reform agenda.”

“We call on President Aquino to support us in our call for the total and unconditional abolition ofthe pork barrel system. This is a system that has been exposed time and again as a tool of patronage politics aimed to foment elite rule through political dependence,” Akbayan Rep. Walden Bello said.

 

Incompatible with good governance

“We believe that the scandalous revelations in the COA audit and the Napoles investigation clearly indicate that the prevailing usage of the pork barrel is incompatible to the principles this administration has time and again stood up to uphold. It leads us away from the straight path and back to a dark and corrupt past. As a leader who has unequivocally demonstrated his commitment to good governance and honest service, President Aquino must take the bull by its horns and make good on his promise to eradicate systemic corruption by abolishing the PDAF once and for all,” Bello added.

Akbayan also echoed a similar call to Congress, which is currently at the center of the scandal.

“We call on our colleagues in the House of Representatives and Senate to respond to the people’s growing clamor on this issue. The widespread and pervasive abuse of the fund revealed by the COA report are a damning indictment of the PDAF as a policy. Congress can no longer shut its eyes to how badly the PDAF has been exploited by the unscrupulous. It must act decisively against corruption and for the integrity of our institutions,” Rep. Barry Gutierrez declared.

 

Congress and the “anti-corruption consensus”

“Congress must sustain its commitment to the people’s interest by taking collective action on the PDAF. We must unite on a clear anti-corruption consensus,” Gutierrez said.

Akbayan said that while a number of lawmakers have responsibly utilized their PDAF to provide important social services and other development projects for their constituents, this cannot make up for the massive levels of PDAF-related corruption exposed by the COA audit and the Napoles scam inquiry.

“We understand the reality that millions of Filipinos suffer inadequate social services and the lack of other important programs for their welfare, and that they expect their representatives in Congress to fill in these gaps. However, this short cut to social service delivery has unfortunately been subverted by an unscrupulous few into a major thoroughfare for corruption,” Gutierrez said.

“What is clear from the recent scandal is the fact that despite existing safeguards, corrupt politicians and officials have found a way to repeatedly and massively  abuse PDAF. While a gradual phase out of the PDAF to ensure the implementation of budget reforms and the readjustment agencies’  priorities to deliver basic services to the people would have been ideal, the extent and pervasiveness of last week’s appalling revelations demand that we cut clean by doing away with the entire pork barrel fund,” Gutierrez added.

 

Radical budget reforms and FOI

Gutierrez also urged his colleagues to face the challenge of abolishing pork and put into place radical budgetary and fiscal reforms that will secure the welfare of the people.

Gutierrez emphasized that the Napoles scandal happened also partly because the bureaucacy hides the details of  spending from the scrutiny of the public, which merits the urgent passage and implementation of  a Freedom of Information Act.

“We must capitalize on the current public outrage not only to push for the abolition of PDAF but also to implement far- reaching reforms into the budget system. Top priority should be transparency and accountability – not only must the government explain to the people how the budget was spent, the people must see for themselves where the money is going and that is only possible through a Freedom of Information law,” Gutierrez said.

The other reforms Gutierrez want to introduce to the budget system are 1) institutionalization of people’s participation in the budget process, 2) control over the impoundment power of the Executive and 3) reforms in the budget savings and augmentation.

Gutierrez also expressed the need for the executive agencies to rise to the challenge and look at the more equitable distribution of social welfare services and programs.

“We cannot leave the people behind. Abolishing the pork should free up significant funding for the people, it is the duty of the executive to implement more sophisticated systems that will make the services more responsive to the needs of the millions of impoverished families all over the country,” he said.

 

“PNoy, join us”

For her part, Akbayan National Chairperson Risa Hontiveros  urged President Aquino to join the people in the call for the abolition of the PDAF, especially since the damning evidence in the Commission on Audit Report for 2007-2009 all point to anomalies done during the time of Gloria Macapagal-Arroyo and involved her henchmen.

“The daang matuwid, the effort to rid our government from the vestiges of corruption of the previous administration continues up to this day. Based on the recent CoA report, all fingers continue to point to Gloria and her minions. Once more, President Aquino should take a stand with the people, and this time, to get rid of the pork barrel,” Hontiveros said.

“And if the process of investigations uncover similar anomalies under the new administration, the same process of accountability must apply. That’s how we should walk the tuwid na daan,” Hontiveros added.

 

“100,000 people’s auditors”

Hontiveros said she has tasked all of her party-mates to act as “people’s auditors” to help in protecting the people’s resources from being plundered.

“I urge the President to join us in this crucial battle. I have tasked the 100,000 members of Akbayan to act as independent auditors to monitor and protect the nation’s coffers from corruption. If PNoy will join us, he will have thousands of auditors ready to do battle to cleanse the “tuwid na daan” of corrupt practices and other abuses,” Hontiveros said.

Akbayan also announced that they are refusing their current allotment of PDAF and will instead focus on cleansing the budget process through reforms.

“We are not accepting our current PDAF allocation with due apologies to all our constituents who will be affected by this decision. We have survived Arroyo’s brutal reign without the pork barrel. The only difference between then and now is the fact that real, substantive, and far-reaching reforms are possible because of the people’s conviction to cleanse the system, and the administration’s commitment to correct the sins of the past,” Hontiveros said.

“We are used to not having our share of the PDAF. As such, we will instead turn our attention to ensuring that every peso this administration spends goes directly to the people, and help ensure that the bureaucracy  provides clean, honest public service,” Hontiveros said. ###

 

A paradigm shift in resettlement policy

Posting the first ever privilege speech I delivered on the floor of the House of Representatives, just this last Wednesday, 7 August 2013.

—

Mr. Speaker, I rise today to speak on an issue that concerns millions of our fellow Filipinos: the issue of informal settlers, their human rights, and the Constitutional and statutorily-imposed mandate on the Philippine State to ensure that these rights are respected, protected, and fulfilled.

Ever since the ratification of the 1987 Constitution on February 2, 1986, more than a quarter of a century ago, the State has been charged with the express obligation of ensuring the rights of informal settlers – our fellow Filipinos who in a less enlightened and compassionate time were derogatorily referred to as “squatters” – and working for the betterment of their lives. Under Article XIII, Sections 9 and 10 of the Constitution, it is provided that –

“The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner.”

These provisions highlight two mandates in the Philippine constitutional order. The first is the commitment of the State to undertake a continuing program of urban land reform and housing with the end view of securing affordable housing and basic services to the underprivileged. The second is the State obligation to respect and protect the right of the poor against forcible eviction.

These provisions of the Philippine Constitution were given statutory “teeth” with the enactment of Republic Act No. 7279, known as the Urban Development and Housing Act of 1992 (UDHA), which took effect on March 28, 1992. UDHA had two major components – the first dealt with the details of the constitutionally mandated program to provide affordable housing to the underprivileged, while the second provided protection against forcible evictions.

UDHA was intended to provide a complete solution to the problem of informal settlement by ensuring that homeless Filipinos would be provided homes by the government working hand-in-hand with the private sector. Those who had set up their dwellings in “danger zones” or areas intended for public use would be provided with safer, equally accessible, and more importantly, permanent homes at affordable cost.

Unfortunately, two decades after UDHA, reality has not lived up to the intention. As of 2011, the Housing and Urban Development Coordinating Council (HUDCC) estimates that the total national housing backlog is at 3,756,072. This means that over 3.7 million Filipino families do not have safe and secure dwellings. Assuming an average family size of 5, this indicates that more than 18 million Filipinos live under these precarious conditions.

And by all indications, this backlog is growing as population increases, migration to urban centers intensifies, and the government continues to miss its annual housing targets. HUDCC estimates that the housing backlog rises by more than 195,000 every year. On the other hand, the government has only managed to provide resettlement to 235,214 families in the 14 year period from 1998 to 2011, or an average of 16,801 families per year.

And how many of these families that have been resettled actually went on to live permanently in their new neighborhoods as opposed to defaulting on their housing payments and going back to a condition of informal settlement? The alarming answer is, we do not know, since apparently government agencies have not tracked this statistic. There are numerous reports, however, from NGOs working with urban poor communities of families being forced to abandon their “new communities” – mainly because of lack of employment opportunities in the far flung relocation sites where they have been shipped off to – to go back to living in informal settlements in the cities from which they previously came.

Clearly, one of crucial issues in the government housing program, particularly in relation to the relocation of informal settlers, is sustainability.

Mr. Speaker, I have spent the better part of my professional life working as a lawyer and an advocate for the urban poor sector, and I have seen firsthand how indescribably awful the conditions in some government relocation sites are. Shoddily built, half-finished structures, without electrical power, without potable water, in remote, hard to reach areas – this unfortunately describes many of the relocation sites I have been to. It comes as no surprise to me personally, therefore, to hear about how many of our fellow Filipinos who have found themselves consigned to this dismal fate, have decided to simply go back to their previous state of informal settlement.

Recently, however, a glimmer of hope has emerged on the bleak landscape of government resettlement policy that may eventually lead the way to a more sustainable approach to the issue.

In 2011, the Aquino Administration released 10 Billion Pesos to the National Housing Authority (NHA) as the first tranche of a 50 Billion Peso fund intended to “to ensure safe and flood-resilient permanent housing solutions for Informal Settler Families (ISFs) living in Danger Areas of the National Capital Region” through a five-year resettlement program aimed at providing safe and permanent housing to the 104,219 ISFs in NCR by 2016. An additional 10 Billion Pesos was released to NHA in 2012, and 7.5 Billion Pesos was released for the same purpose earlier this year to the Socialized Housing Finance Corporation (SHFC), which brings the total fund released to 27.5 Billion Pesos since 2011.

But while, the huge allocation for this program is encouraging, the more innovative part comes from the framework adopted by the agencies involved in implementing it. Started during the term of the late DILG Secretary Jesse Robredo, the framework, which is now expressed in a Joint Memorandum Circular (JMC) signed and adopted by the various government agencies working with the program, mandates that resettlement sites should be on-site, or, in situations where this is not possible, in-city. Furthermore, the resettlement should be conducted in accordance with a “people’s plan,” a proposal developed by the community being relocated itself, with the assistance of concerned government agencies.

The official adoption of an “on-site, in-city” policy governing resettlement, and the primary role given to the “people’s plan” in implementation, are extremely significant and groundbreaking steps that will likely prove to be crucial innovations in ensuring the sustainability of future resettlement projects. The on-site, in-city paradigm ensures continued access of ISFs to their employment and a market for their microenterprises, while the institutionalization of the people’s plan process ensures a level of participation and, more importantly, ownership of the program that will make ISFs active partners in the initiative instead of simply being passive subjects to the same. Both contribute greatly to enhancing sustainability, and ultimately, viability of the resettlement program.

In fact, Mr. Speaker, if I may venture to suggest, these two policies – on-site, in-city relocation and the reference to a people’s plan – instead of just being expressed in an executive issuance, should be considered for institutionalization through inclusion in a new statute.

But much as I would like to end on this hopeful note, I feel compelled to express my concern with the future implementation of these two crucial, one might even say revolutionary, new policies adopted in the JMC, in the light of a news article that came out two days ago in the Philippine Daily Inquirer. It would be most unfortunate, in my view, that just as a new hope for future sustainability of the government housing program springs forth, that same hope would be nipped in the bud before being given a chance to fully bloom.

The article, entitled “Relocation of estero families on,” written by Niña Calleja, Marlon Ramos, and Nathaniel Melican, talks about the impending relocation of 606 ISFs in San Juan, and 871 more in Quezon City as part of the implementation of the program I mentioned before. This is part of the phase of the program which aims to relocate 19,440 ISFs within the next 12 months.

My concern stems from the fact that while the article, which quotes several department and agency heads involved in the program, talks about the numbers, the funding, and other details, it makes no mention of the JMC, which governs the relocation process under the program, or the two key policies I highlighted: on-site, in-city relocation, and the people’s plan. In fact, the article expressly mentioned that the first batch of ISFs would be moved to San Jose del Monte, Bulacan – a fine place, to be sure, but clearly not on-site or in-city.

Of course, it is difficult, not to mention ill-advised, to make snap judgments on policy implementation on the basis of a single news article – which, to be fair, mentioned that the move was “voluntary” – but still, it is somewhat disturbing that this early in the program’s implementation, with the ink barely dry on the JMC, that there is already an apparent lack of emphasis on two of its most important, and most significant, policy innovations. Time will tell whether this was mere inadvertence or something more serious.

In the meantime, Mr. Speaker, it only underscores the need to continue to monitor implementation of this program, and to take the necessary steps to further strengthen, and possibly, enshrine these principles into our government’s framework for the socialized housing program.

We will continue to watch, and to work. The millions of our fellow Filipinos who still continue to dream of having their own homes, in living sustainable communities, deserve no less.

Thank you, Mr. Speaker and good afternoon.

 

 

On Human Rights and Impunity

Uploading the link to a video of my talk on Human Rights and Impunity, during the UP Academic Congress in February 2010.

http://dilc.upd.edu.ph/index.php/eve/458-addressing-impunity

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.

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.

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.

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.

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.