The Law and Economics of Blogging

While doing research for this, I ran into this interesting article by Prof. Larry Ribstein of the University of Illinois College of Law. 

Cha-cha sa Bubog

I haven’t heard a solid argument for shifting to a unicameral parliamentary system. I remain unconvinced that economic growth is possible only with charter change.

I think the President contradicted herself in her SONA.  On the one hand she says that the political system is in the way of economic take-off but earlier she outlined the economic growth achieved during her term.  

But for me, the best argument against the shift is the seemingly overwhelming support for cha-cha in the lower chamber during the SONA.  Surveys have shown that majority of the people want President to resign but their representatives want her to stay.  There is a disconnect between public will and the will of Congress.  This problem is more fundamental: the people’s power to influence policy (through the electoral process) is hardly exercised in a system where voters do not consider their Congressman’s record in the legislature but the number of projects he funds through his pork barrel allocation.  This system insulates members of Congress from political retaliation for making unpopular decisions but it also gives him the opportunity to ignore the will of their constituency.  Unfortunately, this won’t be addressed by the shift of the parliamentary system. 

Going back to cha-cha. Here are some of the reasons brought forward so far:

(a)  Legislative Efficiency.
(b)  Reduction of Corruption.
(c)  Political Stability.
(d)  Quality Control. (more…)

iBlog Mini: Gloriagate Blogging

The UP Law Internet and Society Program is holding a roundtable discussion dubbed “iBlog Mini:Gloriagate Blogging.” This will be on August 4, 2005, from 8:30 am to noon at the UP College of Law, Malcolm Hall, UP Diliman Campus.  Featured speakers include Manuel L. Quezon III, Jove Francisco and Alecks Pabico.  For more details, visit the iBlog site. 

As with iBlog, this event if FREE with registration.  We hope to see you there!

Finally, Joker Chimes In

In an Inq7 report on the impeachment complaint, Sen. Joker Arroyo echoes my sentiments about the President’s pre-emptive filing of an answer to the impeachment complaint.  He says:

Malacañang’s preemptive move of prematurely filing, without being asked to, an answer to the sham impeachment complaint betrays that the President is getting bum advice to short-circuit, on the flimsiest of technicalities, the process of impeachment. This trivializes the sacrosanct process of impeachment, which will unleash a public backlash, as it happened in 2001.

In the past twenty or so years that I’ve known of him, he has always held ideals equivalent to my own.  He’s not known to take advantage of public opinion or be a slave to populist ideas.  I could always rely on him to articulate morally upright and legally sound views on any topic or current issue. He has managed to hold his course on his own terms and for that, I have always had the highest respect for him. 

For me and I think many others, his silence on the GloriaGate scandal has been deafening.  And when he broke it,  he did not comment on the tapes or on the President’s behavior, he instead attacked the opposition, as if he were one of the President’s lackeys. 

What happened to the Joker Arroyo who would have stood up for all of us in the halls of the Senate?  (more…)

Mini Vacation

As I was preparing for my Friday class called “Negotiation Workshop” I received an email from the Office of the Diliman Chancellor, Dr. Sergio Cao, suspending classes from 10am to 12 noon to allow students to attend a convocation organized by the Office of the Student Regent and the University Student Council.  The event supposedly “aims to unite the students in the upcoming SONA to act together along with the faculty and other sectors of UP to stand in the call for PGMA’s resignation.” 

Normally, I’d be disappointed because I enjoy doing the Workshop where students use role simulations from Harvard’s Program on Negotiation. The role simulations are designed to teach the participants certain lessons about principled negotiation.  I also require my students to prepare a journal where they document their learning experience for the day.  I end up with a mountain of reading material but I think it’s important for them to reflect on the day’s activities.

Anyway, I send out the following email to my students:

According to the Chancellor, he’s canceling classes tomorrow from 10a.m. to 12 noon to give students such as yourselves a chance to attend the Student Convocation at the UP Sunken Garden.

I will be there taking attendance.  You have to find me and sign an attendance sheet at 10, 10:30, 11, 11:30 and 12 noon.  Failure to sign one will be counted against you in the computation of your final grade.

I’ll see you there.

Thank you.

I considered placing a smiley face on this email just to let them know I was kidding but I thought the email was obvious enough. After all, I’m not going out there in the Sunken Garden with a sign-up sheet.  That’s crazy.  I would like to think I have better things to do than babysit them. (more…)

Blogging and Teaching

Robert MacMillan points out how not to blog about one’s students.

Apologia Purisima

It’s been a week of apologies. The other significant one is that coming from former Sec. Purisima whom the media reported as having apologized to the Supreme Court for his VAT remarks.  But take a closer look at his statement :

If my actions have been misconstrued by the print and broadcast media, I apologize with sincerity and humility.

So, he’s not apologizing for anything he did. He’s sorry the media misconstrued what he said.  Moreover, he stood by his original statement that the President had asked him to study deferring the implementation of the VAT law. 

Good.

This whole contempt business was ill-advised from the start.  If the Supreme Court wants to be free from speculation, this is the worst solution because they only created another problem — what to do with Purisima?  The Rules of Court permit his incarceration for 6 months.  So, the Court will put him in jail after he stood up against the Arroyo administration?  Won’t that only create new speculation that the government pressured the court to punish Purisima in behalf of the President?

If the Court exonerates Purisima, then it would seem as if they had no basis to issue the show cause order in the first place.  Purisima has said nothing new; certainly nothing that the Court could not have known based on media reports.  Clearing Purisima may only affirm the belief in many quarters that the Court has become too sensitive to criticism and worse, impotent to do anything about it.

I hope the High Court puts a close to this matter quietly — by not issuing a resolution now but maybe 6 months from now when this whole thing has died down.  For now, they’ve made their point — criticize us and you’ll be called to explain.

A Tale of Two Apologies

A few things struck me about the President’s apology to Kris Aquino when compared to her earlier apology to all of us regarding the GloriaGate Tapes.  First, she said “I’m sorry” seven times to Kris but we deserved only one.  After all, the remarks of Sec. Gonzalez must have hurt Kris very much.  She was later quoted as saying she could never be friends with Sec. Gonzalez. 

But what about the President?  If the tapes are true, she personally nullified the votes of many of our countrymen and she used her public office in order to mobilize the COMELEC and members of the military to aid her (all in derogation of our Constitutionally protected right of suffrage).  Then when the tapes surfaced, she again used the government to threaten citizens who played or possessed the tapes, with criminal prosecution (all in derogation of our Constitutionally protected right of free speech).  Then, the NTC issued threats to the media regarding the playing of the tape (all in derogation of our Constitutionally protected right to a free press).  Don’t you think we deserve at least two “I’m sorry’s?” (more…)

Late Breaking News From the PCIJ Blog

If you are at all interested in the GloriaGate Tapes, the place to go to is the PCIJ Blog. They were the first to upload a transcript of the tapes and when INQ7 put down the tapes from their site, the PCIJ bloggers put them back right up.  More than that, the PCIJ bloggers have done the most to unravel the meaning behind the 150 taped conversations. 

Now, they’ve gone even further.  A few days ago, Sheila Coronel reported that the President actually says the word “dagdag” in one audio-enhanced conversation.  And Alecks Pabico revealed a list of people caught on the tape which includes former Presidential Candidate, Fernando Poe, Jr. who apparently placed a call to Commr. Garcillano, too.

When I learned about PCIJ’s plan to set up a blog, I was very enthusiastic.  I knew they would set the standard for citizen journalism not only because they were excellent and well-respected journalists themselves but that they were not directly or exclusively affiliated to any media outlet.  Loyal only to themselves and their cause and free from the restraints of traditional media, there was reason to believe that the PCIJ blog would do great things and set an example for other journalists to emulate. 

I was expecting a lot. But with everything that’s happened so far, I can safely say they’ve exceeded my expectations.

Learning to be a Citizen Journalist

Been to busy to blog.  I haven’t found enough time nor material to write.  On Thursday, I was going to try something new — be a citizen journalist.  I would cover an event at the UP College of Law, take notes, take pictures, record the event and write a blog entry.  I  took my laptop up to the Sta. Ana Room at the 3rd Floor of Malcolm Hall to wait for Former Cabinet Members and one-fifth of the “Hyatt Ten” namely Mr. Juan Santos and Ms. Teresita Quintos Deles, former DTI Secretary and Presidential Adviser on the Peace Process respectively.  The event was called “The President’s Ex-Men” and was organized by the Paralegal Volunteers Organization (PVO) and UP Women In Law (WINLAW). 

So, I did everything I set out to do. I took 2 photos with my cellphone, placed my MP3 Player near the speaker, and with my laptop, started taking notes.  But even with the best intentions, some things always go awry.  And that was not my day.  First, I didn’t save the file with my notes and just shut my laptop.  It would later crash and take the file with it to cyberspace heaven.  Second, I placed the MP3 player far too close to the speaker that the audio was terrible.  I haven’t had the heart to download the pics but given my luck, they’re probably off focus and not good enough to upload. 

So, being a citizen journalist is hard.  Who knew? 

I’m now waiting for this connection to  . . . . .

Court Contempt Threat for Purisima Only Raises More Questions

There’s little doubt in my mind that the Supreme Court issued the show cause order against former Sec. Purisima to indirectly declare that it was not pressured into issuing the eVAT TROs.  The Court’s order went like this:

Acting on print and broadcast accounts in the last few days that former Secretary Cesar V. Purisima of the Department of Finance claimed or insinuated that the Court was pressured or influenced by President Gloria Macapagal Arroyo or Malacañang Palace to issue the Temporary Restraining Order in these cases, the Court RESOLVED TO DIRECT former SECRETARY CESAR V. PURISIMA to show cause, within a non-extendible period of five (5) days from receipt hereof, why he should not be held in contempt for such act or conduct which puts the Court and its Members into dishonor, disrepute and discredit, and degrades the administration of justice.

Under the Rules of Court, Purisima risks paying a fine or imprisonment or both, if found guilty of indirect contempt.  But is he guilty?  As far as I know, he did not categorically declare that the Supreme Court was pressured by Malacanang to issue the TRO.  In fact, he adopted the oft-used phrase “I neither confirm nor deny.”  Did he insinuate that the Court was influenced by the President?  Maybe.

But that’s beside the point.  Whatever the Court does to Purisima, this move to cite him in contempt will not quell the speculation or clear itself of the charge.  It will only add fuel to the fire because now it seems that the Court is taking retaliatory action against Sec. Purisima in behalf of Malacanang.  (more…)

PGMA’s Statement on the Various Calls for Her Resignation

Mga minamahal kong kababayan.

This is a democracy that’s held together by the Constitution and the rule of law. The Philippines has fallen into a dangerous pattern where the answer to every crisis is to subvert due process rather than work within the system. This must stop.

I was duly elected to uphold the Constitution and ensure that the institutions of the nation were strengthened, not weakened. With all due respect to former president Aquino and others, I say that their actions caused deep and grievous harm to the nation because they undermine our democratic principles and the very foundation of our Constitution. Once again, we’re subverting the rule of law and perpetuating a system that’s broken and will remain broken until fundamental reforms are put in place.

As former president Aquino is well aware, the President is charged by the nation to defend our hard-won democracy at all costs. To those who’ve forgotten this, I say, take your grievances to Congress where I’m very willing to submit to due process as called for by our Constitution. (more…)

Statement of Former President Corazon Aquino

ONCE again, I must involve myself in what I hope and prayed to be spared from, after devoting the best years of my life in the service of our country and at a price that included the highest
 
anyone can pay. But duty to one’s country in a critical time cannot be shirked. It is my difficult duty now to ask for a supreme sacrifice to be made.

I will not judge the lapse of judgment that the President had the humility to confess but I cannot escape the conclusion that is plain for all to see: the country cannot continue in its present tumultuous state; good and effective government has become an impossible undertaking.

Without this sacrifice, our country faces only a future of danger to its freedom and progress. That sacrifice must be made by the President as soon as possible. I told her this personally when we met last night.

At this juncture only two constitutional paths remain open for the peaceful and democratic resolution of the present crisis crippling the government and endangering the nation. (more…)

Of Leadership And Credibility

WITH deep concern and firm resolve, after a long period of reflection, debate and consultations, we, the undersigned, are hereby submitting our collective irrevocable resignation.

As early as Tuesday, July 5, we had already made our decision to resign. The President preempted our moves. This preemption does not change our conviction that her decisions as of late are guided mainly by her determination to survive as President. We believe that she will continue to make her decisions according to this norm.

By this act, we are not making any judgments on the tapes and “jueteng” issues. There is a proper forum to resolve those issues consistent with the rule of law. More pressing and immediate concerns confront our people today than poisoned politics or infirmities in our Constitution. At the core of these concerns are the issues of leadership and credibility–the ability of our President to continue to lead and govern our country with the trust and confidence of our people. (more…)

Statement of the Jose P. Laurel Constitutional Law Society

We, the members of the Jose P. Laurel Constitutional Law Society, as citizens and students of the U.P. College of Law, in the exercise of our freedom of speech, hereby affirm our duty to participate in public deliberation of matters affecting the nation, and collectively express our opinion on the present controversy involving President Gloria Macapagal-Arroyo.

Last week, the President, in response to repeated calls for her to explain her side on the Gloriagate tapes, issued a public statement apologizing for what she believes was a lapse in judgment in calling a COMELEC official in order to protect her votes.

We cannot accept such an empty apology. (more…)

The Search for a Rallying Point

I’m still in a state of shock at today’s events (see ABS-CBN News’ Timeline).  With the numerous calls for resignation, things are coming to a head for the President.  She has lost the support of the very sectors that first brought her to Malacanang and she has becomea political pariah.

The time is now ripe for people to take action.  The only problem is that no rallying point has emerged.  During EDSA 1, the stretch of highway dividing Camp Crame and Camp Aguinaldo was the logical choice.  The purpose was to protect Juan Ponce Enrile and Fidel Ramos from violent retaliation by then President Marcos.  In EDSA 2, the marian shrine became the rallying point largely because the mass action stirred up memories of the first EDSA revolution  - the ouster of a sitting President in a military-backed civilian coup. 

This time, the rallying point is not so clear.  (more…)

The GloriaGate Tapes are Admissible (Sometimes)

The following is based on the notes I took when Prof. Hilbay gave his talk on this topic at last week’s forum on the GloriaGate Tapes.  All errors are mine. 

Prof. Florin Hilbay shared his views on the admissibility of the Gloriagate Tapes and concludes that the tapes would be admissible, notwithstanding RA4200, only in an impeachment proceeding when the Senate is sitting as an impeachment court.

He first examined the Constitutional provision on the privacy of communications and concludes that the right is not absolute.  The Constitution says that “upon the lawful order of the court” the privacy of an individual may be breached and the resulting evidence admissible.  He argues for a liberal interpretation of the word “court” that includes the Senate sitting as an impeachment court.   Others have just assumed that the Constitution refers only to the regular courts but he says there is no take such a limited view.

He then says:

“I’ll give you a textual argument.”  Although RA4200 only allows the court to authorize wiretaps before the taps are made, the same limitation is not found in the text of the Constitution.  The Constitution does not prohibit the “court” to admit a wiretap that has been made without prior authority.

“I’ll give you a functional argument.”  Courts are always open and continually operating which gives law enforcement officers a full opportunity to secure a wiretap warrant before the fact.  In contrast, the Impeachment Court is an ad-hoc body that is in no position to give the same authority to collect evidence.  An Impeachment Court has to contend with the evidence already collected and available.  This justifies the Impeachment Court’s wide discretion in allowing the presentation of evidence — even those illegally obtained.

“I’ll give you an historical argument.” The 1987 Constitution is replete with several provisions that underscore the primary importance of transparency in government.  Admitting the tapes during an impeachment proceeding would give life to those provisions.

“I’ll give you a structural argument.” The Constitution provides  no standard of evidence nor any definition of what constitutes impeachable offenses. Under these conditions, applying the Rules of Evidence would be improper.  The Impeachment Court should be given a free hand in making determinations respecting these issues.  It should not be constrained by the law or the Rules of Court.

Prof. Avena’s Take on the GloriaGate Tapes

I attended part of last week’s forum on the Legal and Constitutional Issues surrounding the Gloriagate Tapes and here are my notes of Prof. Victoria Avena’s talk  (as usual, all errors are mine):

Relevant PGMA Admissions in the Apology Statement.  Prof. Avena recognizes that the statement was the work of “lawyerly wisdom” and contained little that could pin the President down. 

• First, GMA did not make any admission relating to the tapes. She merely made mention of the “issue of the tapes.”  This is the only reference to the tapes in the statement. She therefore makes no categorical link between her statement and the GloriaGate Tapes.
• Second, when GMA said that “the election results were already in and the votes had been counted”, she was telling a half-truth.  Although the teachers had completed the counting of the ballots, the count that matters is that done by Congress sitting as a National Board of Canvassers. That count had not yet been done nor completed.
• Third, GMA admits that  she “had conversations with many people, including a Comelec official” but does not say she talked to Commr. Garcillano.  She uses the word “official” which could be understood to mean a number of people other than the Commissioners themselves.

Prof. Avena concludes that there is no admission that can be taken against her since all her statements are exculpatory.

A Divided Supreme Court Issues the VAT TRO

Last Friday evening, as I prepared to go home for the weekend, I received a flash report from the Supreme Court’s Public Information Office, with a copy of the Court’s TRO against the implementation of the EVAT law.  Some quarters have insinuated that the GMA-controlled Court (she appointed 9 of the 15 sitting justices) issued the TRO to give Malacanang some respite from the barrage of attacks it has been receiving in the past few weeks.  That may be the case but for me, I was intrigued by the unique way some Justices voted on the issue. The order states:

Davide, Jr., C.J. and Puno, J., voted against the issuance of the TRO, for collection of taxes cannot be enjoined being the lifeblood of the nation, without prejudice to their stand in the earlier EVAT cases. Sandoval-Gutierrez, Carpio and Corona JJ., called by long distance from Madrid and conveyed their votes for the issuance of the TRO; and Ynares-Santiago and Austria-Martinez, JJ., conveyed their votes for the issuance of the TRO through cellular phones.

This is the first time I’ve heard that Supreme Court justices  had participated in deliberations through telephone and cellular phone.  While the Rules do allow a single Justice of the Supreme Court to issue the TRO (Rule 58, Sec. 2), I wonder why the Court felt that the participation of all the justices was necessary. After all, it’s not as if Justices Carpio or Corona are working on their caseload while they’re in Madrid.  (more…)

UP Law Faculty Statement on the GloriaGate Tapes

We, the Faculty of the University of the Philippines College of Law, in line with our responsibilities as lawyers, educators, and citizens of the Republic, have decided to present our collective views on the issue of the “Gloria Tapes.”

We believe that Malacañang’s confirmation that President Arroyo made the calls to Commissioner Garcillano implies more than a mere “lapse of judgment” or simple impropriety. We believe that it constitutes an inexplicable and inexcusable failure to adhere to fundamental precepts of the Constitution.

President Arroyo took an oath to faithfully and conscientiously fulfill [her] duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate [herself] to the service of the Nation.” (Article VII, Section 5) Under Section 17 of the same Article, she is mandated to “ensure that the laws be faithfully executed.”

Among the laws that the President swore to preserve, defend, and faithfully execute is Article IX, Section 1 of the Constitution, which guarantees the independence of the COMELEC. A series of direct, personal calls from the Chief Executive, a candidate in the elections, to a COMELEC official during the election period, already grossly violates that independence. Taking into account the content of the conversations – which indicate manipulation of the canvassing process, concealment of illegal acts, and outright electoral fraud – underscores the debasement of the constitutional right to suffrage, the very foundation of our democracy, and establishes the criminal culpability of President Arroyo.

Fulfillment of these fundamental constitutional duties did not require any “judgment” on the part of President Arroyo – only full and faithful adherence to basic and straightforward provisions of the Constitution.

We believe that with this glaring failure to abide by the duties of her high office, President Arroyo has lost the capacity to serve the public trust with the utmost responsibility and integrity. She has become morally, and constitutionally, unfit to be President.

We are therefore calling upon President Arroyo to resign.

If she takes our nation’s best interests to heart and is genuinely sorry for her failure to do her duty, she should step down. Resignation is the best apology she can offer the Filipino people.

We are likewise calling on the Commissioners of the COMELEC to vacate their posts in view of the serious damage the “Gloria Tapes” issue has done to their credibility and integrity. They must be reminded that they are bound to perform their duties honestly, faithfully, and in such a manner as to be above suspicion of irregularities – a standard they can no longer meet in the current situation.

It must be emphasized that, contrary to the claims in some quarters, resignation is constitutional. Voluntary relinquishment is one of the constitutionally recognized means by which the Presidency can be vacated. (Article VII, Section 8 ) Likewise, calling for the President to step down is perfectly in accordance with the exercise of the constitutional right to free speech, and cannot be abridged through prior restraint or threat of subsequent punishment. (Article III, Section 4) We are constrained to reiterate this point in the wake of the dire warnings and threats of prosecution that have been made by the Department of Justice.

We make these statements on the basis of what we believe the Constitution, the laws, and public interest prescribe. We do so pursuant to our appreciation of what our responsibilities demand.