Justice & Judiciary Reforms

Why people power flourishes in the East and founders everywhere else

People Power in Tunisia (image credit: idiemedia.org.au)

The parliament of the streets which saw its culmination in the Philippines at EDSA-1 on February 1986 took root shortly thereafter in places like South Korea, Thailand, Indonesia, Malaysia and even Burma. Were it not for the tanks on Tiananmen, it would have triumphed in China back in 1989. It has spread even to Eastern Europe and Russia and garnered support in the conservative countries of the Arab world more recently.

Today in the Philippines, there are still calls for people power. One is being launched by none other than the president of the Republic who has been hinting that if the impeachment trial of the Chief Justice Renato Corona results in his acquittal, people should take to the streets to overturn it. Another appeal is being aired by the Catholic Church, which calls on the faithful to march against the enactment of the reproductive health bill.

In the West, calls for people power more likely than not fall on deaf ears. One recent appeal was issued in the US by former speaker of the House Newt Gingrich whose insurgent campaign to win the Republican nomination for president had been dealt a deadly blow by the leading contender former governor Mitt Romney. An even more recent case is that of Kevin Rudd, a former Australian PM who resigned as Foreign Minister of his successor Julia Gillard, as he sought to challenge her for the leadership of the Australian Labor Party. As of this writing, he is expected to lose in an upcoming leadership spill within the parliamentary caucus despite his wide margin over her in opinion polls (update: Kevin Rudd eventually lost the contest in a decisive 71-31 vote).

Both men used the phrase ‘people power’ in defining their respective campaigns as a challenge to the established elites within their respective ranks. In these Western democracies, where institutions are deeply embedded, traditions observed, and the political maturity of the people is very high, such appeals are usually met with much scepticism if not outright cynicism.

It makes me wonder why people power flourishes in the East and founders everywhere else. It is a reverse twist on the book by the Peruvian economist Hernando De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. The thesis of his book is that institutions in the East are not suited for the smooth functioning of markets. Among the urban and rural poor whose informal rights to land are not recognized or protected, for example, the proper incentives for investing in the productivity of such assets is lacking.

Similarly I would argue that the reason behind people power being such a viral phenomenon in the East is due to the lack of mature democratic institutions that would mediate or provide proper regulation of political activity. People in the West can rely on these institutions to guide behaviour even in the most difficult of circumstances. Parties accept the outcome of their processes. There is a greater level of faith or assurance in their integrity even when the hand of politics is glaringly obvious.

What happened in the 2000 US presidential elections is a shining example of this. This was the contest between Vice President Al Gore for the Democrats who won the popular vote and Texas Governor George W. Bush for the Republicans who won the electoral college vote. It all came down to who won in Florida, a state governed by George’s brother Jeb Bush. Gore mounted a challenge to the results which had Bush ahead by a mere 534 votes. The state Supreme Court of Florida ordered a recount. While that recount was under way the US Supreme Court intervened. In a 5-4 vote reflecting the political views of the justices, the recount was rendered unconstitutional.

Al Gore strongly disagreed with the decision but said  “for the sake of our unity as a people and the strength of our democracy, I offer my concession.” When the canvassing of electoral college votes took place in the US Congress, Gore as presiding officer overruled many of his colleagues in the chamber on his side of the political fence who protested the decision of the Supreme Court. He in effect went against his own personal interests for the sake of the democratic institutions of his country.

If the Philippines was ever to emulate these democratic traits, it would require maturity from its leaders and people. It would require us to work within constitutionally mandated processes and institutions even when they result in outcomes that run counter to public expectations. It requires commitment by the polity to abide by the prescribed norms whether they are favourable or unfavourable to the interests of its dominant actors.

People power came about in 1986 to impose “the will of the people” following an election, the conduct of which was widely regarded as unclean and the outcome was deemed dishonest. Another episode erupted in 2001 when the Senate sitting as an impeachment court voted along political lines to go a certain way that was seen as injurious to the cause of those who massed in the streets. It led to the ouster of the man the masses deemed their legitimately elected leader and sparked a third coming of people power some months later.

In the ensuing years, people generally regarded the latter two versions of people power as an adulteration of the first. The problem however is that our present leadership does not seem to heed the lesson of that era. It still holds firm to what it claims is its legitimate right to call for a fourth episode if the current impeachment trial of the Chief Justice runs counter to its expectations.

That lesson is that people power should never be used to overturn a judicial decision or process. Imposing “the will of the people” on a court is a dubious thing because legal processes are distinct from electoral ones where the will of the people is clearly indicated. The executive cannot use its electoral mandate to impose its wishes on other co-equal branches of government claiming that “the people” are on its side.

Over-reaching or over-stepping one’s mandate is one of the reasons for building checks and balances in a democracy. If one branch of government refuses to recognize another branch’s decisions, it would be an open invitation for the military to intercede. When that happens, all bets are off.

So the only way out of our present predicament if we do not want to live under a dictatorship is to remain vigilant in the coming days but not allow our vigilance to turn into vigilantism. Otherwise, we might find ourselves stuck in the same old rut that we have found ourselves politically in the past. And being stuck in the past is exactly where we don’t want to be.

He who is without a false SALN, let him cast the first vote

image credit: truthbook.com

As we enter the season of Lent, I thought it befitting to highlight a biblical parable as it relates to the ongoing trial of Chief Justice Corona.

The story is found in the Gospel of St John (the Beloved). It talks of the need to temper justice with mercy. The Pharisees and scribes who were in those days keepers of the Jewish law much in the same way that imams and qadis are in charge of Sharia law presented a woman caught in the act of adultery to Jesus.

According to the Torah (the Law of Moses), she was to be stoned to death, so they were hoping to test Jesus by asking him what was to be done to her. His reply to the stone wielding lynch mob assembled awaiting his judgement was “him who is without sin among you, let him cast the first stone.” The message of the parable is for us not to be quick to condemn others when one is not blameless too.

To those seeking to crucify the chief justice based on his failure to file accurately his SALN (statement of assets, liabilities and net worth), we can perhaps paraphrase the bible by saying, “he who is without a falsified SALN (or an undervalued tax declaration), let him cast the first vote”.

One wonders using the same “if you’ve got nothing to hide, then bear it” argument how many congressmen and senators would be able to bear the same level of scrutiny that CJ Corona has had to bear. It appears that even the president had to revalue his assets upwards several times over in his latest SALN because what he declared previously was incredibly small.

As the prosecution team sought to present evidence that Corona had accepted gifts from a litigant in a case before the high court, a similar allegation was being laid at the feet of an official close to the president involved in the government’s gaming corporation. By the way, the palace justified the acceptance of these gifts as “standard practice” in the industry or as “cost-saving” measures. By that they hopefully didn’t mean the government intended to charge the trips made by wives, children and nannies in the first instance. Meanwhile an ex-senator and cabinet secretary noted they too received the same perks from the firm involved in the chief justice’s case.

On top of all this, it seems that in acquiring evidence to convict Corona for unexplained liquid assets that several laws may have been violated or that branches of the government were illegally used to undertake a hatchet job on the president’s political foe since 2010. This follows from the testimonies of bank officials who were audited by the same public agencies. It appears then that those who present such evidence to convict the Chief Justice for disregarding the rule of law may have been guilty of doing the same themselves.

“That may be so,” supporters of the impeachment case may say, “but it shouldn’t detract from the fact that Corona is guilty.” They who plead with the jurors to go beyond the letter of the law and convict him based on some higher principle of justice should in their haste to pass judgement reflect on whether they too would be able to pass the standards they have set for their enemies.

They can’t have it both ways. They can’t justify similar offenses committed by people on their side of the fence while throwing the book at those on the opposite side. They need to straighten their crooked halos a bit and think of the implications of their statements. Otherwise the public may grow weary of their double-speak.

“Judge not, that you may not be judged,” goes another biblical passage.

A few years down the track it may be their turn to suffer the same intrusion of privacy and scrutiny. So in the interests of justice and fairness, it would be best to either apply the same standard and level of scrutiny to all or none at all. That is what the term ‘equal treatment under the law’ means. Either that or we show mercy in this instance and charge everyone involved to “go and sin no more”.

The Ends Justify the Means

Has the fight against corruption become like the war on terror?

Remember the ‘war on terror’? It seems ‘so last decade’ right? Do you remember how it ended? When ‘dubya’ launched it, he framed it in high moralistic terms: fighting for ‘the cause of freedom’, bringing justice to ‘those evil-doers’, ‘preserving our way of life’. Yet, in their pursuit of the perpetrators of 911, the Americans and their ‘coalition of the willing’ ended up dispensing with the very ideals they sought to uphold.

In their desire to ‘even the score’, the agents of this war trampled upon the basic freedoms and human rights that their sacred document considered ‘to be self-evident’. To bring the outlaws to justice, they may have violated international law. They tortured suspected individuals, detained them indefinitely without charge, denied them the right to a fair trial, and did this all at the expense of the taxpayer. The total bill for this war was largely responsible for the ballooning deficit of the US Federal Government.

We now turn our attention to the Philippines and its fight against corruption. The same sort of high-minded rhetorical flourishes accompany it. The same sort of idealistic pursuit of justice, freedom and preservation of democracy motivate it. The fear was that the Evil One deemed responsible for the ‘ground zero’ of corruption was ‘heading for the hills’ in the same way that the Al-Qaeda chief Osama bin Laden did and was not to be found until many years later.

The same way that evidence of mass destruction was presented before the UN to justify a ‘pre-emptive strike’ on a sovereign country ‘a smoking gun’ has been dug up from questionable sources to convict an ‘enemy of the state’ in the minds of the public, which upon closer examination appears to be a mere fabrication (just as the evidence against Saddam apparently was).

‘Had we rushed to war?’ was the burning question in their minds after the US occupation of Iraq was in full swing. America had gotten itself mired in a decade long conflict all because in the heat of the moment, its president used the heroism of those who suffered from terror attacks to force his views on Congress to authorize a war that later proved to be misguided. His trigger-happy administration learned to rue the day that it did this.

Similarly has the prosecution of the war on graft led to some dead ends in the case of the Aquino administration? The articles of impeachment against Chief Justice Corona which were rushed through the lower house now seem to suffer incurable infirmities. Many of the charges seem baseless. The charges that do matter don’t seem to match the evidence presented. The prosecution’s appeal to the jury to look beyond legal formalities is an admission that their case is inherently weak.

A much deeper worry is the implication that a vendetta mission had been afoot as early as November of last year. If one follows the paper trail of leaked documents, the logical conclusion would be that instruments of government were used inappropriately and illegally to gather evidence against targeted officials. The conclusion would be that the very same ideals that the fight against corruption seeks to uphold have had to be compromised to achieve its goals in an ‘ends justifies the means’ sort of way. How then should we describe it? The word ‘Kafkaesque’ comes to mind.

Dreaming of EDSA

Two images may be evoked when considering the event called EDSA-1 in today’s context.

The first has to do with past atrocities committed prior to the event that led to local mobilization and international pressure for the autocrat President Marcos to step down just as many in the Arab people have witnessed take place in their own countries. The second has to do with accusations of present day corruption, impunity and dictatorship by stealth that either camp on the Aquino-Arroyo divide have been hurling at each other.

As far as the image of the past is concerned, many victims still await closure to the dark episode in their lives and the nation’s history. There can be no more appropriate response to their plight but a recognition and apology from the perpetrators of the suffering they have caused. Barring that, the billions of pesos in escrow or in the form of stocks held by those deemed to have illegally acquired it awaiting legislation for their proper distribution to the victims would be a nice token.

The Palace has demonstrated that it can muster a third of the House behind a petition which those signing weren’t even given the opportunity to read to impeach one of the highest officials of the land. If it can use its moral authority to muster support for prosecuting someone in this way, it can perhaps devote a similar amount of effort towards enabling a final judgement to be carried out through legislation. After all its Righteous Path seeks to right the injustices of the past.

In keeping with the memory of EDSA, what better way to honor the lives of those who sacrificed so much to restore our freedoms?

As far as the image of the present is concerned, the picture is more muddled. They say that the price of freedom is eternal vigilance. Care however must be taken that our sense of vigilance does not turn into vigilantism. The strategy and tactics employed by the present government to browbeat the appointees of its predecessor into either submission or expulsion seem a bit heavy handed. This is true particularly when statements are construed towards the overthrow of decisions made by legal institutions through the “will of the people” in order to produce “the rule of law”. If Mr Marcos used the threat of force to intimidate the judiciary into submission and legitimating his “constitutional dictatorship”, the threat of a people power revolt is being held over the heads of the senator-judges of the impeachment court to tow the administration’s line.

The pursuit of anti-corruption measures is an honourable past-time, but restraint must be shown so that it does not degenerate into a vendetta mission that weakens political and legal institutions in the process. We must remember that EDSA-1 occurred because the Marcos regime was either unwilling or unable to entertain or accept the leader of the opposition’s offer of national reconciliation and an orderly transition process through a power sharing deal. EDSA-1 culminated in the overthrow of Mr Marcos and the formation of a revolutionary interim government to lay the groundwork for a democratic transition. In the wake of their overthrow, its loyalists sought to marshal forces to stage a counter-revolution to restore the old order.

The present situation is quite different. After handing over power in an orderly fashion, the previous dispensation in appointing its proxies to constitutional bodies sought to stage a defensive rather than offensive move against those in the present one. In other words, it is not seeking to overthrow the current government, nor destabilize it. It merely seeks a kind of immunity from prosecution. The last line of defence it has, the twelve justices out of fifteen appointed by Mrs Arroyo, has been rattled by the current proceedings in and outside of the Senate. Ironically, the fate of the country’s young legal and institutional traditions rests on the shoulders of a man that was once the architect of their subversion under martial law.

If EDSA-1 was the result of our political leadership failing to come together to form a power-sharing government of national reconciliation, today our democratic institutions are being stressed to the point of breaking once again with the ratcheting up of rhetoric by both sides of the political divide. So much has been invested by the administration in going after the Arroyos and their proxies to the point that the outcome of the impeachment trial has become an all-or-nothing proposition.

There is a tendency to romanticize the people power revolution of 1986, to appropriate the imagery, the language and the memory of this event for political purposes today. We need to recall however that the assassination of the president’s father in 1983 and subsequent events caused the country to plunge into an abyss that led to a lost decade economically. This came about because those in power failed to recognize how tenuous their grip on power was and see their interests better served by accommodating their opponents.

The extreme polarization that characterized that period has returned. It is a reminder to all of how contentious politics is in this country. People power is resurfacing to break the stalemate. This is putting a heavy burden on the institutions charged with arbitrating the situation and the humans that preside over them. Ironically, the deciding votes could be cast by an Enrile, a Cayetano, a Marcos, and an Estrada. Will they be intimidated by the threat of people power?

While the president claims to represent the will of the people and the chief justice represents the judiciary whose authority is legitimated by the constitution ratified by the people. The senator-judges whose mandate comes from the people, the same national electorate that voted in the president, are torn between their sympathies for public opinion and their obligation to the constitutional and legal processes. Despite all the coverage surrounding their chamber, their position is increasingly becoming unenviable.

So returning to the commemoration of EDSA, there are two ways to think about it. We can view it as the victory of people over tyranny, a victory which could be made complete by compensating those stripped of their human and property rights under the Marcos regime using the amassed hidden wealth of the dictator and his cronies, retrieving any of that wealth that got plundered on the way to its intended beneficiaries, and punishing those who did the plundering.

Another way of viewing it is as the result of a failure by our political elite to come to an amicable settlement that would serve the interests of the country and provide an orderly transfer of power. In this vein, the current rupture in our politics may be viewed as another failure by our leaders to work out their differences within the confines of our institutional processes, the very same processes that the people in EDSA-1 fought to restore.

Spokes in the Wheels of Justice

Towards a Genuine Agenda for a Just Society

As the world of the blogosphere, twitterverse and mainstream media soak up as much as it can from the Corona impeachment trial, delving into the subtle elements of the rules of court, rules of evidence and so, on, one wonders about the long-standing issues related to injustice and impunity that slip below the radar as far as the public policy agenda is concerned.

The wheels of justice revved up so expeditiously in the lead up to the impeachment of Corona, but they grind ever so slowly in the case of so many others. To wit, I now turn the spotlight on them in the form of a Top 5 ranking. I ask the question, what is happening to these “five spokes” in the “wheels of justice” given the fact that P-Noy’s administration has placed “judicial reform” at the top of its agenda. I highlight the status of the issues involved, some history, current developments and provide some justification for including them in the top five list. Well, without further ado, here they are:

5. Freedom of Information (FOI) Bill.

The president sent to Congress his version of the bill on Thursday, February 2, 2012. It took at least eighteen months for his government to come up with its own version of the proposed law. At first, the Palace was rather reticent about endorsing any version of the FOI bill as urgent when it hammered out its legislative agenda. Finally, it relented after several months of mounting public pressure from concerned citizens on the issue.

Many elements of the law remain contentious which means that you can expect the debate in Congress to be fierce. The House of Representatives will need to reconcile the different versions of the bill. The question is whether the Senate will have time to deliberate on it given the proceedings currently underway there.

I include this in the Top 5 Spokes of the Wheels of Justice because an FOI law would allow for greater transparency. Greater transparency would be required in ensuring that government disclose to the public what it knows about certain issues that impact on people’s lives, safety and well-being.

This is just an extension of the freedom of the press, something that was uppermost in the mind of P-Noy’s father when he languished in prison and in exile and struggled to let the world know about his story. The FOI Bill needs to have safeguards, but the risks of greater accountability should not detract from the overall vision of having a more accountable, transparent, and just society.

4. Reproductive Health (RH) Bill.

After vacillating over whether to certify as urgent any of the reproductive health bills in Congress, the president finally gave his seal of approval by proposing his own version of the RH bill. The clock ran out last year though as Congress went into recess. The problem will be enacting the bill so close to an election year when the anti-RH adherents will be fired-up to go against legislators who vote in favour of it.

The longer the impeachment trial drags on, the greater the likelihood that the RH bill will not pass, considering where we are in our political/electoral cycle.

The reason why reproductive health comprises a spoke on the wheel of justice is that it directly affects the future health and well-being of at least half the population, and it indirectly affects every newborn child. Those who study women’s issues will tell you that the way women’s rights are treated in society is a proxy for how just and tolerant society is more broadly.

The question is will we have to wait until after the 2013 elections before this bill get passed?

3. Coco levy funds

If the FOI Bill is a carryover issue from Gloria Macapagal-Arroyo’s presidency, and the RH Bill goes all the way back to Fidel Valdez Ramos’, the disposition of the coco levy funds goes all the way back to Ferdinand Edralin Marcos’. The coco levy fund was administered by P-Noy’s uncle, Danding Cojuangco. The current Senate president had a hand in it too.

The Supreme Court recently ruled and affirmed the Sandiganbayan antigraft court’s decision which awarded to the government close to a quarter of the shares of San Miguel Corporation that Mr Cojuangco controls. It said that the funds should be used only to benefit the farmers who had contributed to the levy after it was mandated by Mr Marcos.

This prompted a farmer’s party-list organization to press for the president’s endorsement to the house of a bill that would facilitate the return of the fund to the farmers. The said shares in San Miguel are estimated to be as high as one hundred and fifty billion pesos (Php150 Billion) presently. If spread over five years, the annual disbursement could exceed the budget for the conditional cash transfers.

This is definitely a spoke in the wheel of justice since coconut farmers occupy the lowest rung in the ladder (sorry for getting my metaphors mixed up) in the agricultural sector. They constitute the poorest of the poor. While rice farmers continue to receive billions in subsidy from the grains program each year, no such assistance is extended to coconut farmers. Yet, the biggest growth in agricultural productivity can be had if this fund were used to assist them in making their fields more productive by introducing other crops.

With the appointment of a former aide of Mr Cojuangco to the cabinet, one can be certain that the views of the old man will be represented at the table when Cabinet decides on the issue. The longer it takes for such an anomaly to be corrected (the farmers have already waited a quarter of a century), the bigger the insult suffered by those who deserve just compensation. It is their money after all.

2. Comprehensive Agrarian Reform Program with Extensions (CARPER)

This problem goes back so long, I will not even bother to try to “date” it. The Huk rebellion in the 1950s following the war led to the election of President Ramon Magsaysay who promised to institute social reforms. What was applied though were band aid solutions. His popularity among the people which improved social cohesion and public trust in government and the availability of land in Mindanao made it possible to skirt the issue of land reform.

CARPER is just the last in a long succession of policies aimed at solving the land issue. Its immediate predecessor CARP was enacted by the late-Corazon Cojuangco Aquino’s presidency. The program was given a new lease on life at the end of GMA’s term. The current president promised to complete its implementation including resolving the Hacienda Luisita issue before stepping down in 2106. The Hacienda Luisita issue dates back to the time of Ramon Magsaysay when the government bankrolled its acquisition by the Cojuangcos by guaranteeing loans to P-Noy’s grandfather Jose Cojuangco.

Aside from the vexed issue of land distribution under CARPER, there is currently the issue of land grabbing allegedly taking place. An international fact-finding team recently investigated reports involving land covering three towns of San Mariano, Ilagan and Benito Soliven. At the heart of the problem lies Green Future Innovations, Inc which plans to put up a bio-ethanol plant that will cost $120 million. It was alleged that more than a thousand farmers and indigenous people were displaced by the project. The area involved is 2,200 hectares. The infusion of capital by a Japanese partner into the project was hailed as one of the positive developments coming out of the president’s trip to Japan last year.

Again, these are mere allegations at this point, but they are disconcerting given the context. They raise the question of whether the government has a land use policy in mind and how it plans to handle the question of foreign ownership of land. This is a sleeper issue. The same thing could conceivably be duplicated by China in its search for energy resources. At the root of this problem is the question of property rights. How are they defined and protected? What measures will the government take to ensure that land is used productively to benefit our national interests.

1. Compensation for Martial Law victims

I place this on top of the agenda. Why? Because in the others (save perhaps for the RH Bill and the case of Hacienda Luisita), people were deprived of either their property or right to information. Here, they were deprived of their lives and their liberty. The arbitrary use of police powers by the state to abuse its people, the very citizens whose rights they are meant to protect, well, no graver injustice can be said to occur.

Yet,  a quarter of a century has passed, and we are still awaiting some final closure to this issue. Even after the case was won securing money from the Marcoses to compensate the 7,500 victims, the orderly distribution of ten billion pesos worth of those funds is yet to be framed by Congress. A bill in the House has already made its way through the appropriations committee as of February 7, 2012. This paves the way for deliberations on the floor. Whether or not there will be enough time to hammer out the bill and enact it this year is another question. In March last year, victims started to receive compensation in the form of a $7.5 million award from a US court.

After waiting so long, the end is finally in sight. Each year, a few of the original surviving victims pass away without seeing their claims recognized. Honoring them and their loved ones through compensation would be the best way to bring closure to this dark chapter in our nation’s history.

Conclusion

In pursuing justice, the Palace has chosen to focus on the injustices that occurred during the last five years of the Arroyo presidency by going after her henchmen  whom she had left behind entrenched in certain sensitive positions. Last year saw a growing body count of individuals tied to the former regime. The latest target, the chief justice, is currently occupying the nation’s attention with live coverage of his courtroom drama unfolding daily.

Meanwhile, there are decades’ old injustices perpetrated by past regimes that remain unresolved. Indeed, if the Palace had pursued these cases with as much vigour and swiftness that it demonstrated when it filed the impeachment complaint against the chief justice, then perhaps its victims would be able to heave a heavy collective sigh of relief. The wheels of justice they say grind slowly. Justice delayed is justice denied. Let it not be said that this government turned its back on “the least of our brethren” whom it claims to be fighting for.

Pseudo-trial

What happens when social media takesover the justice system?

As per the Julian Assange case in Britain where the WikiLeaks founder may find out about his fate through the social networking site, could the same thing be envisaged here? Could the use of social media be the same as serving notice to the parties to a trial?

Imagine what would have happened in the case involving Gloria Arroyo’s hold departure order if that had happened? The government’s excuse that it had not received a copy of the decision would not have been available if the decision had been uploaded immediately and tweeted to the court’s “followers” within minutes.

The trial of Chief Justice Corona too could be determined by the media (including Facebook and Twitter). Once cannot discount the possibility of an Arab Spring-like uprising taking place in the aftermath of the trial. Since the prosecution seems to be facing strong headwinds, the conduct of a separate trial by citizen’s groups and netizens in the public arena including the blogosphere seems to be suffering no setbacks.

Forget about establishing the “facts” of the case in the formal court, this is all about shaping the minds of the jurors in the court of public opinion. Call it forum shopping if you like, but parties to this impeachment trial do not feel compelled to abide by the “rules of the game”… so much for strengthening the “rule of law” and “institution-building”.

All this wouldn’t sit too well with senator-judges who are hoping to make an impartial decision based on evidence. What we are witnessing is the mirroring of the justice system in the trial by the senate, where poor evidence gathering, poor homework lays a poor foundation for the prosecution, which inevitably leads to a poor conviction rate.

Except that in this case it is a trial by jury, and the jurors, unlike a proper court, are not restricted from reading (and discussing) the news related to their case. As such, their decision will ultimately reflect the biases formed in the gallery. In a proper court, this would be grounds for a mistrial, but in this pseudo version of Law and Order, the rabble run the show.

P-Noy strokes nation’s ‘pleasure zones’

Here we go again. As the Philippines enters 2012, the stage is set for another round of reality TV/courtroom drama to unfold as the trials of former president and now congresswoman (FPANC?) Gloria Arroyo and her minions get underway.

Despite the political, economic and natural disturbances that visited the country last year, President Noynoy Aquino (P-Noy) ended last year cresting on a wave of popularity as evidenced by his public poll figures. Depending on which side of the debate you are on, 2011 proved to be either a very productive or very unproductive year for the country.

For those seeking to go after FPANC Arroyo and her proxies, 2011 yielded a very rich bag of goodies. The body count of former Arroyo allies piled up during the year to include: one former armed forces chief of staff (who fell on his sword), the ombudsman and a junior senator (who both resigned),  an anti-insurgent general (on the run and in hiding) and several police officials, and the former Comelec Chair, current Chief Justice, and the former first gentleman  himself (who are all awaiting trial). To the faithful, P-Noy promises many more scalps, including some associate justices of the Supreme Court appointed by Mrs Arroyo.

To those looking for a steady hand on the till to manage the economy, 2011 left much to be desired. I won’t go into all the details. One only needs to look at the slowing GDP growth figures. Employment generation may have been robust and inflation might have been under control, but this can be attributed mostly to the prudent handling of monetary policy by the Bangko Sentral, not the administration.

As one of the worst cyclones in living memory devastated northern Mindanao, the president too weathered some criticism over his response to the crisis. Such criticisms however were easily swept away with the torrent of foreign assistance and soft loans offered by the international community in the wake of the incident and the public outpouring of solidarity for the victims during the Christmas season.

Finally, to those seeking for “space” to allow our institutions to recover from the constitutional and legal brinkmanship that occupied the nation’s attention during the nine years of the Arroyo presidency, 2011 provided no respite from the political derby. The current lull in hostilities between the competing forces of the Aquino and Arroyo camps only offers them a chance to brace for the bumpy ride that is about to ensue.

The task of any rational observer of these events is not so much to determine who is right and who is wrong. As Daniel Kahneman, the father of behavioral economics wrote,

Our preferences are about framed problems, and our moral intuitions are about descriptions, not about substance.

Was the government’s treatment of Mrs Arroyo and Chief Justice Corona fair? The answer depends on how you frame the problem. If it is about making her ‘accountable’ for her actions, then the answer would be, ‘yes’. If it is about adhering to the principles of separation of powers and the rule of law, the answer according to many legal peak bodies is ‘no’.

Is the government doing a good job? Again, that depends on the mental frame. If it is about ‘restoring faith and trust’ then, we would have to answer in the affirmative. But if it is about delivering the fruits of development in an experiential manner, then we would have to answer in the negative as far as fiscal spending is concerned.

As for the continued confidence the public expresses through polls in the president, one would have to conclude either they agree with the way he has been running the country or that Filipinos are extremely overconfident and optimistic about his prospects despite a lack of tangible results.

A study by Kahneman and Richard Thaler (the co-author of Nudge, which is the how-to book of applying behavioral economics to public policy) into fairness in economic transactions offers us a clue as to why P-Noy’s number remain above the clouds. As Kahneman explains,

Remarkably, altruistic punishment is accompanied by increased activity in the “pleasure centers” of the brain. It appears that maintaining social order and the rules of fairness in this fashion is its own reward.

What this means is that bringing the Arroyos and their ilk to justice provides just as much utility to a majority of Filipinos as milk and honey. In other words, they are engaged and have decided to go along with P-Noy on the “joyride” down the high road of Daang Matuwid.

The problem is that sacrificing actual bread and butter issues for “mental stimulation” could prove destructive down the road, especially given the length of time that would be required to complete the journey. This is perhaps where the exuberance and overconfidence argument sets in.

Currently, the plan is to impeach not just the chief justice but a majority of his associates on the bench appointed by Mrs Arroyo. With the Supreme Court set to weigh in on whether the articles of impeachment were signed by the congressmen under duress, it seems unlikely whether the trial of the chief justice could be wrapped up in the three to six months originally projected by one senator-juror.

Despite calls for the CJ to go “softly into the night” and rumors of two associates willing to retire early of their own accord, it seems unlikely that they will. Even if the CJ were convicted and the two rumored justices resigned in the coming year, the Arroyo appointees would still hold a majority. Three more justices would have to be impeached to gain a comfortable margin for P-Noy in the high court.

Assuming an average of six months each (an optimistic assumption) to impeach and try the CJ and three other justices along with the heroic assumption that two would go voluntarily in the interim, it would take another 24 months to finish the task. Insert a six month period in between as 2013 is an election year, and that means middle of 2014 would be the soonest possible date for P-Noy to “clear the decks”. That leaves him one year to push his “reforms” as the last twelve months of his presidency from July 2015 to June 2016 is a lame duck period.

According to P-Noy, the Arroyo influenced Supreme Court is standing in its way preventing major “reforms”. Talk of “original sin” has alluded to this. If that is truly the case, then the nation will have to wait until late into the Aquino II presidency before anything gets accomplished. The fact that they have succumbed to a kind of “confidence bias” in predicting when this will be has led them to view P-Noy’s presidency with favor (a case of irrational exuberance?).

Another warning to those entertaining such stroking of the nation’s erogenous zones again comes from Kahneman who tells us that

Other classic studies showed that electrical stimulation of specific areas in the rat brain (and of corresponding areas in the human brain) produce a sensation of intense pleasure, so intense in some cases that rats who can stimulate their brain by pressing a lever will die of starvation without taking a break to feed themselves.

Indeed, taking the need to fulfill some sense of fairness or altruistic justice to the extreme could cause the nation to be mesmerized, intoxicated with the chemicals that stimulate those “pleasure zones” in the brain. At some point, however, either the powerful effect of this stimulant could wear off or millions of our countrymen could follow the trajectory of these lab rats, withering away, unable to wean themselves off the steady drip of anti-Arroyo mania.

Like a Thief in the Night

image of Michaelangelo's Last Judgement from freepublic.com

That is not how the government acted in seeking to put Mrs Gloria Arroyo behind bars. Rather than keep the former president guessing as to the date when formal charges against her would be laid, President Aquino announced back in September what the timetable for it would be. Here is how he phrased it,

We will start filing the cases before the end of this year and with a little cooperation from the judiciary, maybe we can put some of these people in jail next year.

This signalled to Mrs Arroyo that she had to make travel plans as soon as possible, which then forced Justice Secretary Leila De Lima to take it upon herself to place the congresswoman under a departure watch list to keep her in the country even before preliminary investigations were concluded. This according to one justice meant that De Lima was now “more powerful than the court which can only do the same “after the filing of the information and the issuance of an arrest warrant“.

With a little cooperation from the judiciary”: those words of P-Noy now seem ominously prescient of events as they unfolded because straight after thwarting an attempt by the former president to leave by disregarding an injunction from the high court on the watch list order, the government then turned to a joint panel between the Comelec and the DOJ set up to look into electoral fraud to file a case before a regional trial court against Mrs Arroyo. This timeline shows that within the space of a few hours upon receiving their case files which numbered several thick ring binders, a judge issued an arrest warrant.

Had this judge not been so “cooperative”, Mrs Arroyo might have successfully fled the scene since the Supreme Court had by then thrown out the government’s appeal to have its injunction on their watch list order lifted. And so despite the fact that it had foolishly forewarned the former president of its intended moves, the government somehow managed to keep her in the country long enough for an arrest warrant to be served.

In the process of doing so, however, the government may have committed a few grave mistakes. These might come back to haunt its case. Certainly if it is found that it acted inappropriately, the president needs to own up to it because it was he who set the wheels in motion that eventually landed the government in a whole heap of trouble. Particularly with respect to his campaign promise to uphold the rule of law, P-Noy will be ultimately responsible if it is determined that his government usurped judicial powers or acted in contempt of court.

At the moment, the president is assailing the Supreme Court for the speed in which it issued its injunction on the government’s watch list order as he spoke before his “home court” the Makati Business Club, saying

(O)ur lawyers all know that it takes the Supreme Court 10 days, normally, to attend to motions, and it decides to issue a TRO for Mrs. Arroyo in three, who can avoid wondering what she did to merit such speedy relief?

And yet the president doesn’t see the irony of his position because the government was quite happy to get a lower court judge to issue an arrest warrant on his adversary in a matter of hours, which was a far more difficult decision to make. Certainly, when it comes to fostering the rule of law, what this government has in mind is something quite different from the standard.

Like a thief in the night–that is how the Hacienda Luisita decision was handed down by the high court in the midst of all this. Oral arguments had been heard and the judgement of the court had been pending. No one knew the day or time when it would materialize. Suddenly either by coincidence or by design the justices rendered a unanimous vote in favour of the farm worker beneficiaries to have the Aquino-Cojuangco estate title transferred directly to them.

Having justified its bold and decisive actions against the court’s injunctions because of the ensuing confusion surrounding it, the government through its spokesman immediately informed the public that it would respect this particular decision as public support had been mounting in favour of it. The only caveat was for the determination of ‘just compensation’ for the president’s relatives and other issues that the court still has to settle.

The initial action by the Arroyo government to revoke the stock distribution option taken by the Cojuangcos in complying with the agrarian reform law was suspect according to US officials based on confidential diplomatic cables as a form of retaliation by Mrs Arroyo on the matriarch of the Cojuangco clan for supporting calls for her ouster back in 2005. What the Supreme Court ruling now does is open up the possibility for a counter-retaliatory move on the part of Mr Aquino against the Macapagal-Arroyo clans who also own sugar plantations.

This tantalizing opportunity could reverse the destructive pattern of competition by ruling elite factions to accumulate wealth through landholdings using the weak system of property rights in the country in order to consolidate power. Now in a bid to weaken each other, these same ruling elites might now work to dismantle each other’s landholdings. Given that one faction controls the executive and another holds the sympathies of the judiciary, this feud might actually produce something positive for the country.

Like a thief in the night—that is not how events overtook this government on the economic front. For one, the debt crisis in Europe was unravelling like a train wreck in slow motion for several years now. The seeds of this crisis were actually sown during the last one when governments pumped liquidity into their banking systems and engaged in stimulatory fiscal spending. It was only a matter of time before bond holders began to raise the cost of public debt.

The government had ample time to prepare the nation for this crisis, to bullet proof it by sustaining demand through public construction and investment. The early warning signs that its fiscal consolidation was going too far and actually dampening growth in demand were quite evident during the end of last year. The government had ample opportunity to correct its course and make the necessary adjustments. It may turn out in the end that a transition to a new government may have caused unnecessary disruptions to patron-client networks in the bureaucracy. Reconfiguring these networks took too much time.

Finance officials might have taken this as a welcome blessing as the slow spend rate allowed them to limit the fiscal deficit while sticking to the president’s no new taxes pledge. Meanwhile,with the fiscal space it had from fiscal consolidation, it cut tariffs on certain industries. It balanced this decision by removing power subsidies to exporters in special economic zones. These could threaten the growth of some industries and lead to the closure of others at a time when global demand for our exports is already weakening or restructuring as some economists have noted.

The biblical phrase “like a thief in the night” comes from the parable of the ten virgins found in the canonical gospels of the New Testament. It is also known as the parable of the wise and the foolish virgins. The five virgins who were prepared for the bride-groom came to his wedding feast, while the other five who weren’t were excluded. It has an eschatological message: to be prepared for the day of judgement. The final reckoning.

With the second coming of the Aquino dynasty, will the country be prepared to pass the test? Or will it simply slip into oblivion? The day of judgement is nearly at hand!

A Quarter of the Way

image courtesy of 123rf.com

That is how much of P-Noy’s term of office would have expired by the end of next month. It usually marks the end of the window of opportunity for introducing major reforms. In the case of the US presidency, the current occupant of the White House President Obama was able to introduce his stimulus program, banking reform and of course, the once in a lifetime reform of the healthcare system within his first eighteen months in office.

At the end of that period, the tea party movement rebelled against the direction he was taking the nation and voted the Democrats out of their majority in the lower house of congress. The new Republican-led house’s intransigence over the deficit has blocked any further reforms (witness the failure of the super committee over the weekend), and it will probably take another election to allow the grid-lock to be broken.

As we approach the quarter mark of P-Noy’s presidency, it is worth reflecting on his accomplishments or lack thereof and the conditions under which he has had to govern that may or may not have enabled him to achieve what he promised during his campaign. More than anything, I believe that these first eighteen months have highlighted the inconsistencies in his promises and the inevitable tensions that come about from pursuing them.

Firstly, let me tackle his social contract and the plugging of the fiscal deficit. Due to his pledge of no new taxes, the finance and budget departments have had to rely on better tax compliance and program savings in order to bridge the government’s fiscal gap while attending to social and economic infrastructure programs. This is in a country of very wealthy elites who are averse to paying their fair share of taxes.

Despite my distaste for the government’s attempts at “fiscal consolidation” a euphemism for austerity measures I dubbed the “surplus fetish”, one benefit that I now see with the way in which they have gone about things is that it has exposed the inability of tax agencies even under the best efforts of honest officials to raise enough revenue to meet the government’s social compact obligations.

This is why Secretary Purisima, in a bid to shore up enough revenues down the track has flagged a few revenue measures to congress including the rationalization of fiscal incentives, the indexation of sin taxes, and as recently as this week the raising of a minerals tax similar in vein to the Australian resource rent scheme. These three taken alongside the stricter enforcement of the tax code on self-employed entrepreneurs and professionals could yield an estimated four hundred billion pesos, enough to close the fiscal gap and then some.

Enacting these revenue measures would lift the tax collection effort to a more sustainable nineteen percent of GDP, a position last held in the late-90s when the country eked out a surplus. The reform of the tax and incentives system would allow a more progressive and equitable fiscal expenditure program. One reason why the growth of the last decade was not felt by the broad masses of people was that the growth went largely to big business in the form of profits. Benefits through the tax system could not be shared with the less fortunate as the tax collection rate continued to decline despite the growth.

The absence of a successful asset reform program to tackle landlessness in the rural sector led to continued urban migration and growth of informal labor markets. This normally would lead to greater social insurance spending by the state, but this has only been recently addressed with the conditional cash trasnfers program. By next year, the government believes it will cover two of the four million poorest households. The funding comes from the scaling down of the grains importation program, a low lying fruit. To cover the remainder would require doubling the current thirty billion pesos spent on the program. This can only be accomodated through new taxes.

Secondly, given the new-found consensus around new revenue measures, getting them adopted will entail the exertion of executive will and the full cooperation from the congressional leadership. The legislative record of the government has been rather dismal with only 3.25 of its thirty three priority measures passed this year.

These include the reform of government-owned and controlled corporations, changes to labor regulations covering night shifts for women and the synchronization of the elections in the autonomous region of Muslim Mindanao with the rest of the country. The passage of an ammendment to the Electric Power Industry Reform Act that contained one fourth of the recommended changes of the administration accounts for a quarter-measure (hence 3.25 out of 33 measures).

At this rate, it will take a little over ten years to get all of the priority bills passed, including the reproductive health bill which has been seized on by the local Occupy movement. The actual tally of bills passed was seven, three of them not flagged as urgent including one that granted Philippine citizenship to a certain Marcus Eugene Douthit. The country spends about a hundred and ten billion pesos a year for both houses of congress. This is about sixteen billion pesos per measure, which represents very low value for money.

Contrast that with the performance of the Gillard government in Australia which passed two hundred and fifty measures this year including a highly contentious carbon tax and emissions trading scheme. This is quite impressive considering that it has had to seek an alliance with the Greens and a few independents to see these bills through both the lower and upper house.

In the Philippines, the majority in the lower chamber is always loyal to the president, which makes the Senate the only real check on executive power. But the senators unlike in the past are not particularly hostile to P-Noy, which represents a window of opportunity. Unfortunately, much of the upper chamber’s attention has been devoted to controversies involving the former regime which is perhaps why it has had little time to devote to other matters.

Thirdly, the pursuit of the rule of law and anti-corruption under the rubric of Daang Matuwid (Righteous Path) and the prosecution of the former president have come into conflict with each other. It is clear that P-Noy does not want a repeat of the ongoing saga with the Marcoses. This is perhaps the reason why he sought to bring Mrs Arroyo to justice by sending her to jail before Christmas this year.

The lady he has put to the task, his justice secretary, might have skirted a few legal formalities in order to make that happen. This is the conclusion arrived at by a few dispassionate observers including legal luminary Fr Joaquin Bernas, SJ, dean emeritus of the Ateneo Law School from where a number of the president’s men have been trained.

During the campaign, it seemed that the rule of law was intertwined with bringing Mrs Arroyo to justice for misdeeds done while in office. Now, given the situation where the high court is stacked with her appointees, certain exigencies have to be dispensed with in going after her. Indeed it would be preferable from Mrs Arroyo’s point of view for these cases to be tried immediately while she still enjoys some legal cache with those on the Corona bench.

In pursuing the case against her, P-Noy runs the risk of succumbing to the “dark side” by employing extra-legal or extra-constitutional tactics as she did during her presidency. Rather than lifting the country out of the mud, what could happen is that his presidency could get dragged through it with her. The impending release of the Supreme Court’s order to distribute his family’s hacienda to its poor tenants can be seen as a form of retribution. It distorts the narrative of “light vs darkness” by laying the blame for social inequity and injustice squarely on the president.

At any rate, what economists and foreign investors mean when they refer to the rule of law has nothing to do with prosecuting former incumbents but with the securing of ownership and property rights and the efficient enforcement of contracts. And here once again, the pursuit of daang matuwid has led to the scrapping of a few contracts involving foreign donors and their suppliers for the simple reason that they were signed by the former president. This has if anything maintained the image of the Philippines as a country with a high sovereign risk attached to it.

In conclusion, it is worth reflecting on how the shadow and specter of Mrs Arroyo’s administration has haunted her successor. In the first instance, an absence of public trust in government has cemented the idea in P-Noy’s head that he could only fund his social contract by improving tax collection rather than new taxes. This has been shown to be a false economy of sorts. Secondly, investigations into anomalies committed by her have distracted congress from pursuing his legislative agenda. Thirdly, prosecuting her at all costs has compromised his pursuit of the rule of law, property rights and good governance.

At some point, P-Noy will have to pivot from correcting the errors of the past to ensuring a brighter future for all. To do that, he will have to wrestle with the internal inconsistencies of his reform agenda and exert executive will to get his measures passed as well as restraint when required to show an even hand in prosecuting Mrs Arroyo.

In the end, he would want to avoid a problem known to economists as the winner’s curse. This situation could arise if he becomes overly-invested in the hunt for personal vindication against Mrs Arroyo and her minions. In seeking to settle a few scores with her, he might eventually get side-tracked into a very personal and passionate fight. This could detract him from pursuing a much broader reform agenda for the country. In this manner, he could easily squander the remaining time he has in office and wind up with very little to show for it.