The First Year

It’s hard to be objective in assessing President Noynoy Aquino’s first year in office. He being the historic first to get an overwhelming mandate from the Filipino people, those evaluating Aquino, like me, would like to see him succeed. His victory is shared with the people, while his failure will be borne by the people alone. On the other hand, because he has a popular mandate, there are those who simply will never appreciate what he has done. Former President Gloria Macapagal Arroyo would be in this group.

But because politics has become a science, leaders have to be evaluated at least on the basis of what they promised they would do once given the mandate.

First, he promised that he would not be corrupt, and that neither would he tolerate corruption. Mr. Aquino scores big in this category. Fault him for being indecisive, fault him with KKK, fault him with lack of vision, but his primary promise was to be clean. He scores a perfect 10 on this one. Let’s put it this way, with parents like Ninoy and Cory, does he have a choice? Of course not. He would be hounded by his own parents from their graves if he were to be corrupt.

The next question though is: Has he promoted his own standard of honesty in the entire governmental machinery? Again, the answer is a resounding no. But this is to be expected. PNoy can only hope to lead by example. He cannot rid the entire system of the malaise, at least not after only 365 days. Where he needs improvement though is in implementing the laws and the rules as head of the executive branch of government. It’s not enough to be honest himself. He has to ensure that those who were corrupt are punished so that others will learn by way of example not to be corrupt. The fact is one year later, PNoy has not filed even a single case of corruption against Arroyo or her cohorts. Tax cases are simply no substitute for the enforcement of the country’s anti-graft laws. We need to hold the corrupt responsible for their deeds in order to uphold the principle that public office is a public trust. Somehow, enforcement of tax laws does not have the seriousness and resolve as upholding the most basic constitutional principle on governance.

He promised to address poverty. Unfortunately, whether or not he succeeded here will be purely speculative. Both gains and setbacks could be attributed to the past administration. What is important is how novel he has been in implementing this promise to uplift majority of our people from poverty.

I’m afraid that the answer is that there has not been too much imagination. What the President has to show for this promise is the conditional cash transfer program, a flagship also of the past administration; and the public-private partnership (PPP) program, which still has to be implemented.

Where Aquino needs to be credited, though, is the perception that under his watch, there will be a level playing field for business translated lately into an upgrade in our credit rating from Moody’s and other credit rating agencies. In fairness therefore, if only because of very limited time, we need to give the President a modest seven out of 10 on this criterion.

Then there is peace and order. He did promise that extralegal killings would stop and that their perpetrators will be punished. He even made mention of the Maguindanao massacre in particular, but without saying what he would promise for the case.

Well, the killings have not stopped, killers have not been convicted, and the Maguindanao massacre prosecution is on-going without clear indications either when it will end, or how. Here, the President almost fails, but for some redeeming points. Leila De Lima is still a gem for being the Secretary of Justice with a human-rights perspective. De Lima is about to take the ultimate litmus test herself that will determine her place in Philippine history and in the floor of the Senate: whether to charge her own client, Joel Reyes for the murder of Doc Gerry Ortega. But certainly, PNoy’s choice for the Justice portfolio is like an oasis in the desert. Furthermore, while the killings have not stopped, gone is the perception that the killings are tolerated by the highest officer of the land. This at least gives hope to both victims and advocates alike. My score here: eight.

PNoy’s Waterloo: the promise that we, the people, would be his boss and that there would be no kaibigan (friend) and kamag-anak (relative) in governance. There may not have been a literal breach of his promise insofar as relatives are concerned, to the chagrin of Rep. Peping Cojuangco et al., but instead, there were kaklase (classmates), kaibigan and kabarilan (shooting buddies). Mr. President, when you promised that we the people would be your boss, we expected not only pro-people policies; but also officials who will be pro-people themselves. We simply have not seen these from your KKKs. In fact, they may end up destroying your administration. My score here: seven.

How did the President do? Not bad. On the basis of only four criteria, he scored eight out of 10. This means that in my book, Aquino was a good President this past year, although with a lot of room for improvement. With five years still to go, there’s plenty of time and opportunity for this. Make no mistake about it, we the people are hoping and praying for PNoy’s success.

‘Tongpats’ and the Spratlys

It’s a relief to have a President who is standing up to a bully. Whereas GMA sought to give away Philippine territory in exchange for anomalous Chinese deals, PNoy, even with absolutely no military firepower, has advanced the Philippine claim to the Kalayaan group of islands and the West Philippine seas firmly and without hesitation. This group of islands in the West of the country was described in maps merely as “hazards to navigation” until the 70’s. That was when we discovered oil in the area. The science is since oil and natural gas products are found in the continental shelf, the soil and sub-soil constituting the prolonged landmass of the Palawan archipelago, it may be that further petroleum resources are located in the other portions of the continental shelf beneath the rocks and islets constituting the Spratlys group of islands. This explains why China, Vietnam, Brunei and Malaysia all proceeded to lay claim to part or the entirety of the Spratlys. The title of the Philippines to the islands is because of discovery coupled with effective occupation. While it was a fact that many of the disputed islands, including Spratlys Island itself, which Taiwan has referred to as “Itu Iba”; were then under Japanese control during World War II, Japan nonetheless renounced its title to them without specifying to whom it was relinquishing the title. This prompted Thomas Cloma, a Merchant Marine school owner, to claim title to the islands by way of discovery of islands that were “terra nullius”, or without an owner. This claim to discovery was then espoused by Diosdado Macapagal. We have since by law, created the Municipality of Kalayaan as the local government for the area, and appended it to the Province of Palawan. We have also since performed acts indicating the exercise of sovereignty, referred to as “effectivities”. These would include the building of military installations on islands under our control and the award of concessions to explore for further mineral deposits in the area. While our mode of claiming title to the Spratlys may not be iron-clad, as in fact, it is hinged exclusively on the assumption that it was rendered “terra nullius” with the Japanese renunciation, still, the Philippines is the only country which has scientific evidence to prove that bulk of the contested area constitute its extended continental shelf. This much we have proven in the UP Law Center’s Institute of International Legal Studies Project on the Extended Continental Shelf. Further, as we are the closest claimant to the disputed islands, we are the only one that can claim a presumption of ownership over them. And as the only archipelagic claimant country, we have a monopoly to the claim that the islands, rocks, islets and waters surrounding them form part of our archipelago. The claim to title of China and Vietnam appear to be even more porous than ours. To begin with, both countries rely on ancient historical title, which of late, has been ruled by international tribunals as almost impossible to prove. China for instance, cannot prove an intent to possess the islands in the concept of an owner because sovereignty was foreign and unknown under its Confucian legal system. Likewise, Vietnam’s claim to historical title is impossible to prove using modern day rules of evidence given that very old records cannot be authenticated precisely because the persons who executed them are no longer around to identify them. Malaysia and Brunei, on the other hand, lay claim to portions of the area solely as part of their respective continental shelves. Of course, it is still our wish that the Spratlys controversy is resolved peacefully and preferably through negotiations, binding mediation, arbitration, or even through judicial means, either before the International Court of Justice or the United Nations Tribunal for the Law of the Sea (UNTLOS). Meanwhile, it imperative that other than showing political will, that this reform-minded PNoy Administration undo GMA’s machinations which collectively, weaken our claim to the disputed area. First, there is the Joint Seismic and Exploration Agreement with China. As far as I know, the only way to prospect for oil in the continental shelf is through seismic testing. As such, these tests can only be conducted by Filipinos or through FTAA’s, if foreigners are involved. The Joint Seismic agreement, apart form violating the Constitution, will weaken our claim in the same way that an owner of disputed property weakens his claim when he agrees to use and exploit the disputed property with his adversary. Second, there is an urgent need to repeal the 2009 archipelagic baselines law, which my good friend and ally, Senator Sonny Trillanes, authored while behind bars. This law incorporates the Spratlys under the so-called “regime of islands”. A state only adopts this regime for offshore islands, or islands located so far away from its mainland. Obviously, by resorting to this method, we undermine what could be our strongest claim to the islands: that is, that not only are they proximate to us; but more importantly, they form part of our archipelago. Third, there is need to annul all the anomalous Chinese deals that were given to the past administration as consideration for our national territory. To those who have been asking how the “tongpats” could be recovered by the project proponent of the National Broadband Network, the answer is now clear: it is the Spratlys, Diwalwal, North Davao and Northrail, all of which were granted by the past administration to Chinese companies. Tongpats for national territory: unforgiveable!

Live coverage?

A year and five months after some victims of the Ampatuan massacre asked the court for leave to broadcast the trial live on television and radio, the Supreme Court finally allowed this live coverage, so we thought. In their pleadings, the victims alleged that because every killing of a journalist is prima facie an affront on press freedom, the public at large have now acquired a right to know what is happening in the trial of a massacre that resulted in at least 32 counts of infringement of press freedom. This right to know and right to information on matters concerning public concerns should prevail as against the right of the accused to be protected against perceived pre-judgment. The fact is that the prohibition against live coverage of criminal trials originated in the United States where ordinary individuals, or a jury of “peers” will determine the guilt or innocence of an accused. Because this juries are composed of ordinary people with no training on the formal rules of evidence, American courts originally sought to protect the integrity of the process by insulating the jury members from pubic opinion which may arise from a live coverage of the proceedings. Through the years, though, American courts have discovered that there is no basis for this earlier fear of a pre-judgment. One, it appears that while jury members are untrained in law, they are nonetheless given directions by the Judge on how to appreciate certain evidence presented before them. Two, and more importantly, it has been the experience by American courts that jury members take their roles more seriously than originally thought. In fact, many of them have said that where life or liberty is at risk, they decide the issue of guilt or innocence independent of any outside information that they may acquired in the course of the trial. If only because we do not have a jury of one’s peers, we have more reason that live coverage must be allowed in our jurisdiction. To begin with, Filipino judges are presumed to be experts in evidence. Hence, there is more reason they should not be influenced by media coverage of cases pending before them. On a very pragmatic level, the live coverage would mean that the victims, already of limited means since they lost their bread winners, no longer have to come to Manila just to witness the proceedings. They can now do so in the comfort and safety of their homes. Moreover, the public, since they will now have the chance to listen to and hear the testimony of witnesses, can make heir own conclusions on the reliability and weight of the testimonial evidence. Also, because live coverage will inevitably prompt all the lawyers involved in the trial to be in their best behavior, live coverage may also assist in expediting the proceedings. No lawyer would ant to be accused of being the cause of delay. Having said all these, there remains the matter of guidelines issued by the Supreme Court. Apparently, and if we are to believe Court spokesman Midas Marquez, the Court required that all media outlets seeking to broadcast the proceedings must do so continuously until the proceedings are terminated. Apparently, the published guidelines also provide that the proceedings must be broadcast in its entirety, without commercial breaks, and without commentaries. While I have no issues against the provision that the broadcast should only be through one camera which should be static, I was perplexed to hear from the Court spokesman and administrator that the guidelines provide for all or nothing: broadcast everything or nothing at all. My view is that any act, be it from Congress, the Courts, or the Executive which would substitute their judgment for the editorial judgment of media practitioners on what should be covered or what should be broadcast, is an infringement of freedom of the press. In fact, in the United States, the right to reply, a mandatory act that would compel media owners to print the side of a person being written about was unconstitutional because it is the editors who should have the discretion on what should or should not see print or broadcast. Similarly, US courts have invalidated the right to reply as a violation of the due process clause since property rights of media owners are violated when they are compelled to carry a reply even if in their judgment, such is not necessary. These arguments apply equally to the guidelines issued by the court. It is the editors who should have the discretion to determine what to broadcast, and not the Court. Likewise, why should the Court compel them to broadcast the entire proceedings when the business reality is that the broadcast industry relies on precious air time for their advertisement revenues? To compel them to dedicate precious air time solely to the Ampatuan trial is tantamount to a taking without due process of law. To recapitulate, while the Court was correct in ruling that live coverage of the Ampatuan trial will not violate the rights of the accused, it should reconsider its guidelines which appear to violate the letters an spirit of press freedom. I hope the court can still amend its guidelines to suit its ends and protect the ever-important right to a free and vibrant press.

Too late the hero

At long last, the Anti-Money Laundering Council  finally filed a petition to freeze the Ampatuans’ assets with the Court of Appeals. Of course, the CA , because  its Justices are not from another planet, naturally issued a temporary freeze order . The question now is this: Wwill there still be assets to freeze at this […] More →

On Ampatuan asset freeze: we hope AMLC isn’t too late the hero

We sincerely hope the anti-Money Laundering Council (AMLC) isn’t playing too late the hero here. This was the reaction today, (June 8, 2011) of lawyer Harry Roque, counsel for some relatives of journalists who perished in the November 23, 2009 Ampatuan massacre after hearing the news that the AMLC has finally obtained a 20-day freeze […] More →

VIP treatment

It happened last Thursday, the day when this column is regularly published. The prosecution has at least four witnesses ready, three of whom we were going to present as private prosecutors. While Cipriana Gatchalian, wife of slain journalists Santos “Jun” Gatchalian was scheduled to testify, Joseph Jubelag was not. Joseph could have been the 33rd […] More →