There has been a lot of anxious speculation in social media and the blogsphere about the possible chilling effect of the new cybercrime law (officially the “Cybercrime Prevention Act of 2012”, Republic Act No. 10175) on the freedom enjoyed by netizens in cyberspace. All this hand-wringing is premature. A cursory reading of the law will reveal it to be simply an updated version of a hodge-podge of existing laws.

For instance, libel has always been a crime, whether committed online or the old-fashioned, printed way. Thus, it is Article 353 of the Penal Code that defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or nay act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one already dead. “ What the new cybercrime law simply does is make reference to the commission of libel through an electronic medium or Libel 2.0.

The new law also clearly defines offenses which have heretofore been only vaguely understood by the majority who mainly live their lives offline. These include “Cybersex”, “Cyber-squatting” and “Unsolicited Commercial Communications”, among others. Those who have been skirting the edge of the law by engaging in nefarious activities and getting away with it due to the virtual nature of their acts should beware. They may now be brought to justice before a brick-and-mortar court.

And there are sufficient safeguards to ensure that the law-enforcement authorities (in this case the PNP and the NBI) do not go overboard in going after cybercriminals. They need a court warrant (from the Regional Trial Courts) to interdict and gather admissible evidence of cybercriminal activities. Of course, there is no ironclad guarantee against abuse. But the cybercrime law has enough clearly outlined procedures to ensure that civil rights will be protected.

But the fear that Big Brother will have one more devious tool to use against the oppressed and brainwashed masses is perfectly understandable. The powers granted the government bodies concerned are not to be sneered at. The cybercrime law even provides for a Cybercrime Investigation and Coordination Center (CICC), an inter-agency body under the Office of the President “for policy coordination among concerned agencies”. This sort of Geek Central Command is tasked with “the formulation and enforcement of the national cybersecurity plan” whatever this may be. But this certainly sound dubious and sinister to the imaginative and free-wheeling souls who inhabit cyberspace.

But any law, if it is to be at all effective, must have some teeth. It is up to a concerned and vigilant citizenry to make sure that these teeth do not turn into fangs.

Teddy Boy Locsin pointed out an unforeseen but welcome outcome of the low-grade and undefined fear brought about by the new cybercrime law. He said it will force those who have anything at all worthwhile to say online to write well. Mr. Locsin sets as a tongue-in-cheek example the quality of the writing in the defunct Soviet Union, which has steadily gone downhill after the collapse of the authoritarian state. There’s nothing like a virtual gun to the head to make one choose his words wisely. And to craft one’s writings carefully and deliberately.

In other words, the best defense against anything that would curtail our freedom of expression, be it online or off, is to express ourselves in words and deeds that are thoughtful, truthful and honest. This doesn’t mean we should pull our punches. It just means we should slug it out with more finesse.

Here is a copy of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012

Republic Act No. 10175 or the Cybercrime Prevention Act of 2012
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It’s sooooo annoying talaga,  these people! Grabe! (Or words to that effect)

It’s not me talking but Mr. Conrad De Quiros in yesterday’s Inquirer. In his almost apoplectic excoriation of the exponents of “Noynoying”, he takes everything and everyone to task, from Wikipedia to leftist youth groups to Manny Villar (?). Villar is as trapo as they come, but to connect him to the rising phenomena of Noynoying is stretching it a bit far.

Calling it puerile and a “horrendous contratemps”, De Quiros equates Noynoying as breaking faith with President Aquino’s “heroic” and “epic” efforts to fight corruption. He fears that that the spread of Noynoying would be playing into the hands of Gloria Arroyo’s propagandists and lead the young to perdition and the country to ruin.

Lighten up, comrade Conrad.

Noynoying is not going to weaken the fight against corruption or render it superficial or unimportant in the minds of the people. If all it takes is the simple act of taking  “an effortless pose, or activity consisting of sitting or standing around, in an unconcerned manner” to derail the so-called fight against corruption, then there was nothing behind it in the first place but empty air.

And it’s not out of sync with events; it’s really more in tune with the prevailing zeitgeist. In the age of social media,  such stunts are valid  and acceptable forms of self-expression.

His tiresome finger-wagging notwithstanding, De Quiros was right in giving the youthful demonstrators who brought forth Noynoying proper credit for creativity. They gave a humorous, politically-meaningful and very Filipino  twist to  the largely mindless fad of planking (” to lay horizontally in a strange and unusual place” according to Urban distionary) It’s all in good fun, albeit with a serious message for the administration of P-Noy.

And therein lies the reason why people like De Quiros find Noynoying about as funny as a heart attack. It hits a raw nerve and is too uncomfortably close to the truth.

Noynoying is political satire and street theater in a neat package. But in its parody of the laid-back governance of President Aquino, it eloquently transmits the rising perception that nobody is at the wheel. According to Ramon Tulfo, The President apparently spends much of his time lately just watching the impeachment trial of his arch-enemy, Chief Justice Renato Corona instead of attending to pressing matters of state. Not to begrudge him his afternoon entertainment, but there are urgent matters clamoring to be addressed, not least of which are rising oil prices and the resulting hardships and civil unrest which gave rise to Noynoying.

Even the Wall Street Journal has taken notice of this phenomenon. According to a report by James Hookway, “ Basically, Noynoying involves sitting around staring into space, much like Mr. Aquino supposedly does instead of running the country”. Mr. Hookway also makes unflattering references to a staple character of Philippine folk tales, Juan Tamad. Pretty accurate, in the view of a number of people who would normally support the programs espoused by P-Noy. We want him to succeed, they say, as he is our President, for good or ill, for the next four years. But he cannot be effective unless he gets serious about the admittedly difficult and dirty job of attending to the needs of 90 million Filipinos.

But this is not a video game anymore. It behooves the President to pay attention to what Noynoying is trying to say and not dismiss it as an irrelevant fad. Behind the humor, the message is deadly serious.

 
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The case of alleged sexual harassment raised by Cristy Ramos against 2 members of the Philippine national football team, the widely (and wildly) popular Azkals, has brought the issue of sexual harassment into the forefront once more, this time in the area of team sports.

The details of the incident has been widely reported elsewhere, and need not be repeated here. Suffice it to say that it has led to wide, and sometimes acrimonious, debate online and off among those who would condemn the perceived sexual “offenders” and those who would defend, or at least offer explanations for,  their actions.

First the disclaimer: The Ramos sisters were good friends and our neighbors at the subdivision where we grew up. The Ramoses are family friends, FVR and my dad having gone to college together. However, we drifted apart during our college years, having attended different schools, although I would bump into the recently-departed Jo once in awhile, she being a popular campus figure in U.P. Diliman.  I would also see Cristy’s husband, Freddy Jalasco, socially from time to time although I have not seen him in years.

There are two particular articles which I found most enlightening, all the more so for being from the point of view of women who are no strangers to the atmosphere and psychology of men’s team sports. One is by Lia Cruz (Sexual Harassment in mens’ locker room should be challenged) and the other by Mika Palileo (What is sexual harassment? On Sofia Cristina and the woman question), both at the AksyonTV website. Their insights are fascinating and cast light on one of the darker aspects of popular sports.

But the question remains, is it sexual harassment ?

Not by the provisions of the Anti-Sexual Harassment Act of 1995 (R.A. 7877) , which defines sexual harassment as committed by “ any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.” Thus, the harasser must be: 1) a teacher, boss, coach , trainer or person having moral authority over the victim; and 2) made in a work, training or educational environment; 3) where a sexual favor is asked or required. The elements of sexual harassment, at least as it is defined under Philippine law,  are not present.  Neither does the incident fall under “Acts of Lasciviousness” as punished under Articles 336 and 339 of the Penal Code, since there seemed to be no force, threat,  violation or overt intimidation. Neither was there physical contact.

Can it then be considered as “Unjust Vexation” under Article 287 of the Penal Code ? It has certainly vexed the victim.

According to the Supreme Court in Baleros, Jr. vs. People (G.R. No. 138033, February 22, 2006, 483 SCRA 10) , Unjust Vexation is “broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. The paramount question is whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed.” By the permissive definition in the Baleros ruling (and similar earlier rulings), and the fact that the crime of Unjust Vexation is vague and undefined in the Penal Code, a case for the subject offense can be made against the Askal bad boys.

However, this will involve a long-drawn criminal trial to prove what would in the end be considered a “light offense” (maximum penalty: 30 days jail time which would be subject to probation and a P200.00 fine). And the perpetrators, who happen to hold dual citizenships, could avoid facing the music by simply staying away from the Philippines. And I would imagine that, ultimately, it would be an unsatisfying verdict even if proven.  The crime of Unjust Vexation is so vague, unclear and so far removed from what we know to be the common concept  of Sexual Harassment that, for purposes of example, deterrence or vindication of crimes against women, it just will not do.

But what recourse does a woman have, apart from seeking administrative sanctions as Cristy Ramos has done before the Asian Football Confederation  (AFC) ?

Call me biased, but I believe a criminal offense, or at least an act which should be considered a criminal offense, may have been committed. And I’m sick and tired and ashamed, as a man, of hearing the usual “boys-will-be-boys” defense  which says that popular athletes  are not responsible for their acts and unjustly places the onus on the victim.

That it should happen to Cristy Ramos, is doubly troubling. Putting aside the fact that she was a presidential daughter, this is a lady who knows her football. She was an outstanding varsity athlete at UPLB and a mainstay of the Philippine national women’s football team.  She’s no stranger to locker rooms. And it should be emphasized that Ms. Ramos was at the locker room before the Philippines-Malaysia friendly on official business , as a commissioner and  officer of the AFC. That she should be subject to such blatant disrespect, given her stature, makes one fear for any ordinary Filipina who might stray the Azkals way. Weren’t they already involved in one such incident in which a women claimed she was harassed at an Azkals’ gathering ?

Unfortunately, we seem to be caught in a quandary, as far as the law is concerned. Clearly, our legal concept of sexual harassment should be expanded to include cases not covered by a work, training or educational environment.  This is dangerous ground, admittedly, as a broad concept of sexual harassment might put a lot of us men in trouble. A wider-ranging law can be a potent weapon against the guilty but can just as easily be used to oppress the innocent.

At the moment, we’re in a situation described by U.S. Supreme Court Justice Potter Stewart in attempting to  categorize pornography in Jacobelis vs. Ohio (1964). His famous phase “I know it when I see it”  describes our present dilemma.   To paraphrase Mr. Justice Potter,  I may not be able to define precisely or exactly categorize the crime committed, but I know it when I see it. Cristy Ramos certainly knew it when she experienced it.
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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?

Emphatically, as always. In taking to task the prosecution team in the C.J. Corona impeachment trial for their scattershot approach which led to the sudden and unceremonious withdrawal of 5 of the 8 articles of impeachment, Senator Miriam Defensor-Santiago let loose with a few choice and colorful words.  Just Miriam being Miriam, the other senator-judges seemed to say, until Atty. Vitaliano Aguirre signaled his displeasure by a contemptuous act which he defiantly stood by. An even bigger uproar ensued.

Which led to Fr. Catalino Arevalo, S.J., in a homily at the EDSA Shrine, to denounce Miriam “as worthy of the fires of hell” for having called the members of the prosecution panel “fools”. This according to the Bible. Never one to suffer fools gladly, Miriam was quick with a retort. The Constitution provides a wall of separation between Church and State, said she, and a priest cannot violate the law in the guise of criticizing a senator-judge with the ulterior motive of promoting his own (presumably anti-Corona) political agenda. Moreover, the Bible can be interpreted in an almost infinite number of ways. Even the devil can quote scripture to suit his ends, she might have added.

Although in truth, there was no law violated by Fr. Arevalo’s words. The Constitution guarantees that every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority or that the criticizer is a Catholic priest known to be close to the Aquino family. Moreover, the separation of Church and State is an ideal not yet fully realized in our country. Various religious hues and political views are woven into the fabric of Philippine society. We take it for granted that religion and politics are forever intertwined.

Even if she might well be worthy of the fires of hell, Miriam is also willing (and no doubt capable) “to march into hell for a heavenly cause”.   In this instance, protecting the integrity of the impeachment process.

Even staunch supporters of the prosecution panel decry their lack of preparation as far as building a solid case versus Corona is concerned. They were prepared to face the cameras and present their case before the public. But not quite as ready to make a case before the impeachment tribunal. By doing so, they appeared to be toying with the impeachment process in the hope that the chips will fall their way. Such a cavalier attitude to an undertaking that has seriously impacted our democratic institutions should not be tolerated.  This was simply the stark and inconvenient truth Miriam was pointing out. Unfortunately, her manner of delivery drowned out the message.

Note that even the most virulent anti-Miriam commentators, like Randy David and Conrad de Quiros in their Inquirer columns, did not attack the substance of what she said, but merely the way she said it. Which was, admittedly, dreadful. The  “cold neutrality of an impartial judge” , a cliché by this time, has not been the demeanor exhibited by her honor against the prosecution panel. It remains to be seen whether the defense would likewise be capable of incurring Miriam’s wrath.

That said, the conduct of Atty. Aguirre was equally deplorable. His antics underscore how the whole thing has degenerated into a circus. It seems to me he thought it “cute”, although I was embarrassed for him in view of his age and supposed stature. “WHA….?!? ” This is how members of the bar and officers of the court should behave, by taking a vaguely simian stance during a hearing and when called to explain, defiantly declare that yes, he did it his way ?

It is a well-recognized precept that a lawyer, both as an officer and as a citizen, has a right to criticize in properly respectful terms and legitimate channels the acts of courts and judges. But lawyers are also bound to maintain at all times the respect due the courts and judicial officers. This includes abstaining from offensive conduct, in and out of courtroom, towards judges personally for their judicial acts. The lawyer’s duty to render respectful subordination to the courts is essential to the orderly administration of justice. This was set forth in the case of “ In Re: Proceedings for Disciplinary Actions against Atty. Almacen, L-27654, February 18, 1970. “

As Randy David pointed out, the law is nothing if not a culture of restraint. Would that some restraint, borne out of simple good manners, would now be exhibited by the dramatis persona in the impeachment trial.

 
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The time has come to revive my moribund blog. I stopped writing and posting as the well had run dry, so to speak, and I found myself at loose ends as to whether I wanted to continue blogging or not.
But the most gripping legal drama of the decade began to unfold over the past two months and I felt the urge not to let the event go unremarked.

My views are, to borrow Thomas Merton’s phrase, that of a “guilty bystander”. I am guilty of many things, not least of which is a recurring apathy and indifference towards events swirling around me, and an unhealthy tendency to focus on my own peculiar miseries. What Merton called “a spurious self-isolation in a special world”. This is an attempt to break out of my shell and once again engage with the world at large. If only through the blogosphere.

For starters I wanted to write about something arid yet compelling, oftentimes insufficiently understood but nowadays a subject of much heated debate – constitutional law. I am far from being an expert, or even an assiduous student, of the Constitution. Yet it is my conceit that I have something worthwhile to say on the subject, if only from the point of view a curious observer.

The members of the Senate impeachment tribunal, in investigating the possible source of the leaked bank documents which the prosecution wants to use against Chief Justice Renato Corona, has zeroed in on Banko Sentral ng Pilipinas examiner Jerry Leal. Mr. Leal has admitted that he took part in a 2010 BSP audit of the Philippine Savings Bank (PSBANK) branch where C.J. Corona held several accounts and that he particularly asked to be provided with Corona’s records. This has led Senate President Juan Ponce-Enrile to remark that he can think of no other source of the leak but Leal.

Intriguingly, Senator Enrile also said that the leaked bank documents may be allowed in evidence, despite the fact that it may have been acquired unlawfully or in violation of the Bank Secrecy Law (R.A. 1405). Thus , although it may be what is known as the “ fruit of the poisonous tree” and therefore inadmissible in evidence under ordinary circumstances, the Senate apparently believes that the impeachment trial is an exception to the rule.

Why so ? Although the Bank Secrecy Law itself provides that the confidentiality of bank deposits may be set aside “in cases of impeachment” , the evidence in question was not the subject of a judicial order or subpoena but appears to have been unlawfully obtained by a bank regulator in the performance of his official duties. Strictly speaking, this is illegally obtained evidence. Hence, coming from a debased source, it’s now seen as “poisonous” .

What exactly does the phrase “fruit of the poisonous tree” mean ? Chief Justice Reynato Puno gives a precise definition in People vs. Alicando (G.R. No. 117487, December 12, 1995):

“ We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the “fruit of the poisonous tree,” a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States (308 U.S. 338 [1939]). According to this rule, once the primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the ” fruit ” ) derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the “fruit of the poisonous tree” is the indirect result of the same illegal act. The “fruit of the poisonous tree” is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained.”

Looking at the bank documents leaked by Leal, we see that it is not only the fruit of the poisonous tree but the poisoned tree itself. How can these therefore be ruled admissible in evidence ?

There are several possible legal justifications for admitting what are admittedly illegally obtained evidence, tree, fruits and all.

One is the long-standing ruling of Supreme Court to the effect that violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019), or cases involving unexplained wealth of public officials or dereliction of public duty are to be considered exceptions to the law on bank deposit secrecy (PNB vs. Gancayco, G.R. No. L-18343, September 30, 1965 and subsequent similar decisions). The 2nd article of impeachment against C.J. Corona focuses on the alleged large and unexplained discrepancies between the sums in his bank accounts and that reported in his Statement of Assets, Liabilities and Net Worth and is thus analogous to an anti-graft case.

The Senate may also take cognizance of the doctrine laid down in U.S. vs. Calandra (414 U.S. 338 [1974]) which provides for an exception to the Nordone decision, the latter being the basis for our adoption of the exclusionary rule known as the “fruit of the poisonous tree”.

Under the Calandra ruling, illegally seized evidence may be admitted in grand jury investigations if the invocation of the exclusionary rule (poisonous tree) would unduly impede the grand jury’s investigative and accusatorial functions. It may reasonably be argued that the Senate impeachment proceeding is more akin to that of a grand jury investigation than a criminal prosecution. The role of a grand jury is to ferret out the truth by a thorough and extensive investigation, unhindered by the challenge that it may have acted on the basis of incompetent or inadequate evidence. This is precisely how the prosecution in the Senate impeachment trial wants to paint the proceedings.

There are therefore sufficient legal grounds to allow the Leal leaks as evidence, if only because, to paraphrase Calandra, the potential damage to our political institutions and processes by the imposition of “fruit of the poisonous tree” rule outweighs any possible abridgement of personal privacy rights on C.J. Corona’s part.

Of course, the defense will have equally persuasive evidence to counter the admission of the leaked documents. Expect legal fireworks at the resumption of the Senate hearing on March 12.

A scholarly but very accessible and lucid article on the Bank Secrecy Law has been written by Franz David Ong Lim and published in the Philippine Law Journal of the U.P. College of Law (vol. 77 [2002]). It’s available below and worth your while.

Bank and Secrecy Law in the Philippines
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Death is one of the most universal of taboos. Not the rituals of grief, burial and mourning which are many, varied and almost always public in character. I mean the actual act of dying. This most mysterious of earthly transitions is done in private, even for the most well-known of persons, with a few family and close friends in attendance and maybe a man or woman of God around to ease the way.

Public deaths, on the other hand, serve a social purpose. For instance, public executions are meant to be cathartic events in which society extracts its pound of flesh, as it were. It supposedly serves as a deterrent to criminal or aberrant behavior and reflects the manner by which justice is served within a community. It’s also morbidly entertaining and can even be interactive, such as in the practice of stoning or the spectators’ participation in the gory events in the Roman Colosseum.

Other public deaths, such as the assassination of Ninoy Aquino, serve as a catalyst for social upheaval and change.

Suicide is a more complicated phenomenon in which no easy generalizations can be made. It can be done privately or in plain of view others, but even the most secretive act of taking one’s life assumes a public aspect upon the discovery of the body. The act itself is shocking under any circumstance, being so contrary to what we normally know and expect of human behavior. Thus, the ripple effects of a suicide extend beyond the immediate family or social circle of the victim to the society at large. I knowingly use the word “victim” as I believe those who kill themselves are casualties of one or another of life’s events which makes continued living unbearable. However, some suicides are more publicly significant that others.

The suicide of Mohamed Boazizi, a young Tunisian who immolated himself in protest over the oppressive and autocratic rule of strongman Zine el Abidine Ben Ali and led to his ouster, is a public death. It started a conflagration which has spread to Egypt and threatens to engulf the entire region. In 60 years, there has never been one case of a successful, popular revolt toppling an Arab regime; now, within a span of 2 months, two governments in the Middle East have fallen.

The suicide of Anglo Reyes is a public death, as he led a public life which, for good or ill, “shaped and reflected the events of his time“. As explained by Prof. Randy David:

Although he was a professional military man, Angelo T. Reyes became a key player in the nation’s political stage. Whether he welcomed it or not, he unexpectedly found himself, as head of the Armed Forces, thrust into the role of political arbiter during the crisis of January 2001. At that crucial moment, the military became, once again, the deciding factor in an unstable political equation. Reyes made the decision to lead his soldiers in withdrawing support from President Joseph Estrada, paving the way for the accession to the presidency of Vice President Gloria Macapagal-Arroyo.

Having cast his lot with GMA, Mr. Reyes prospered for a long while, even after he retired from military service. He assumed numerous cabinet posts, in fact too many, according to his detractors. This may have been his undoing as he should have sought elective position earlier, and retained some degree of political power and influence, before he was permanently tarred by the corrupt brush of the shamelessly venal Arroyo administration.

Stripped of political influence, he knew that he was vulnerable. He had a thorough understanding of how the political system works—its hypocrisy, its rottenness, and its rituals of degradation. But he could not summon enough will to bow to its sometimes brutal ways once he found himself at the receiving end of power.

And so he ended his life. And this is not always the easy way out, as many would like to believe. It takes a certain amount to steel in one’s personality to pull the trigger.

On a certain level, his motivation was certainly self-serving. He was, by his own estimation, extremely self-assured, even arrogant in the eyes of others. He wanted to regain some control over events which now threatened to destroy him, his family and what he saw as his historical legacy, most specially as a professional soldier. His suicide was premeditated and not an impulsive act, which are how most suicides are seen by those who study the phenomenon. Angelo Reyes knew what he was doing. He said so himself. In his “last” interview he stated pointedly:

Living life without honor is a tragedy bigger than death itself.

He could have stonewalled and gone the legal route in deflecting the accusations against him. Others have done so and lived to tell the tale (as well as enjoy their ill-gotten wealth). But this was not the soldier’s way. As a warrior, honor impelled him to fall on his sword. In doing so, he was successful to some extent in saving his good name and dignity. This is an example which others similarly situated should consider following, for their own sake and, more importantly, for the good of the country.

The tragedy of Angelo Reyes is that, despite his avowed intention to “come clean”, in the end he did not. He lacked the courage to name names and help cleanse the institutions which he served so loyally and bravely. And he tried to minimize his role by saying, truthfully enough, that: “I did not invent corruption. I walked into it“. But he lacked the will to walk out of it, until the only way he could leave was horizontally and feet first.

Be that as it may, the man is dead, and we condole with his family and friends as “Taps” is played today for a fallen warrior.

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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?

Philippine Star columnist Yoly Villanueva-Ong wrote an impassioned piece in support of the discredited and scrapped “Pilipinas Kay Ganda” branding campaign of the Department of Tourism. Ms. Villanueva-Ong is the founder and head of the Campaigns and Grey ad agency, which helped conceptualize the aborted undertaking. By her own admission, she is not a disinterested observer.

In rather purple prose, she expressed her indignation at the “coordinated online outrage” by a “Gruesome Malicious Army” and “net-dicts” intending “to wreck havoc on the new, popular government“. It’s GMA and her stooges and a shadowy cabal “who fancy themselves divas of righteousness” behind all this, you see, and it’s all politically-motivated. “Politically-motivated” being the standard, catch-all retort of those caught in the act of bending the rules for their own benefit.

But this argument skirts the central issue of the whole brouhaha, which is that the whole concept was a bad idea to begin with and was simply called out for being what it was – a bad idea. And which is why the head of the new, popular government shelved the whole scheme.

And Ms. Villanueva-Ong, with her Harvard degree (as she takes pains to point out in her article), is dead wrong about there being an orchestrated, unified effort to stick it to the vanguard of the new, popular government (as personified by DOT Usec Vicente “Enteng” Romano, the brains behind the slogan/logo fiasco). By this, she presumably means an attack utilizing social networking sites like Twitter and Facebook and other online communities. Ms. Villanueva-Ong misses the point of what social networking is all about, which is simply to foster social interaction. It’s not primarily to bring about social or political change, although that may well happen. But at its core, social-networking is simply people wanting to connect with other like-minded people. There is no sinister, hidden agenda.

Malcolm Gladwell explains this lucidly in his article in the New Yorker (October 2010) “Small Change: Why the Revolution Will Not Be Tweeted” in which he explains why Tweeter and other new tools of social media will not necessarily be an effective tool for social activism. Gladwell makes a distinction between “strong-tie” groups, for example the nascent Al Qaeda, characterized by a tight, hierarchical organization and pre-existing interpersonal ties between members and what he calls “weak-ties” groups, like Twitter or Facebook, which are loose, democratic and decentralized.

“The platforms of social media are built around weak ties. Twitter is a way of following (or being followed) by people you may never have met. Facebook is a tool for efficiently managing your acquaintances, for keeping up with the people you would not otherwise be able to stay in touch with. That’s why you can have a thousand “friends” on Facebook, as you never could in real life.

The evangelists of social media don’t understand this distinction: they seem to believe that a Facebook friend is the same as a real friend xxx.

Because networks don’t have a centralized leadership structure and clear lines of authority, they have real difficulty reaching consensus and setting goals. They can’t think strategically; they are chronically prone to conflict and error. How do you make difficult choices about tactics or strategy or philosophical direction when everyone has an equal say?”

No one can manage, must less control, the denizens of cyberspace and point them one direction. It’s like herding cats, as I’ve heard it said more than once. At best, social networks can disseminate information and ideas. But concepts, abstractions and theories, once thrown unto the online free market of ideas, live or die on their on merits.

I’m sorry to disappoint Ms. Villanueva-Ong, but there is no movement out there which wants her “stoned, flayed, crucified and burned at the stake“. I can understand her disappointment though because, as she herself reported: “the fight is not about who should lead the marketing effort, but who will disburse the marketing monies“.

This is another clear example of the paranoia afflicting the stalwarts of the new, popular government. They see enemies lurking in every bush, woodpile and website. They refuse to acknowledge the plain, though painful, truth that the cause of all their woes is their own arrogance, ineptitude and cluelessness.

One final word. What is to me very disturbing about Ms. Villanueva-Ong’s article is her saying that the P4.7 million or U.S. $ 105,000 (her own calculations) misspent on the “preview” launch of the “Pilipinas Kay Ganda” concept is a “paltry” sum spent for “food, drinks, fireworks, talents, staging etc.”. For her, maybe, P5 million is small change. But for many Filipinos like me, who have never been near much less had at my disposal such an amount, this is a king’s ransom. Scores of our countrymen die each day for want of even a minuscule fraction of what Ms. Villanueva-Ong considers paltry. And lest Ms. Villanueva-Ong forget, this is the Filipino people’s money, paid for by the blood, sweat, tears and even lives of Filipinos here and abroad. We have a right, as taxpayers, to a proper accounting. We have a right, as Filipinos, to be outraged.

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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?

Almost four year ago, I wrote an entry “Flying the Coop” in which I observed:

A recent news item says that more pilots have been leaving the country for greener pastures overseas. Philippine Airlines, Inc. (PAL) has lost about 20% of its pilots over the last three years and more are about to fly the coop. This is an alarming development in our continuing brain drain. Even our best trained and highest compensated professionals are packing their bags. A desperate policy resolution from the Philippine Overseas Employment Administration limiting the number of pilots who can work for international airlines has failed to stem the tide.

Things have apparently gotten worse since. Over the weekend, at least 23 international and domestic PAL flights have been cancelled due to the fact that there were no pilots to fly PAL planes. Eight more flights were cancelled today.

Apparently, a critical number of PAL’s A320 Airbus pilots resigned and immediately left for more lucrative posts overseas, without giving sufficient notice or allowing for enough time to bring replacements on board. This prompted PAL management to threaten legal action against the fleeing aviators, citing flagrant violations of their training and employment contracts. Unfortunately, going to court won’t solve PAL’s woes. The judicial process will just drag on without addressing the fundamental reality that PAL cannot compete with the wages and perks being offered by other airlines in the Asia-Pacific region and the Middle East. Market forces are at work here which will not bend to PAL’s will.

A restrictive employment covenant in their employment contracts may prevent some of these aviators and other skilled workers from transferring to competitors abroad. This is a common enough clause in contracts for so-called “mission critical” workers, or those who are considered integral to an industry’s sustainability. But this will not solve the problem. PAL cannot seek judicial enforcement of every agreement that may be breached by its pilots. And under settled cases, the employer has the burden of proving that the restriction is valid and reasonable and does not impose an “undue burden” on the employee. It can be convincingly argued that working in the Philippines constitutes an undue burden.

Sadly, this goes beyond mere inconvenience and embarrassment. It’s a major setback for the air travel and tourism industries. And it actually places the flying public in grave danger as PAL and other airlines might be tempted to allow underqualified or raw pilots to handle its planes.

This trend has grave implications, not the least of which is its effect on domestic air travel safety. With our best pilots and flight engineers gone, can the airlines ensure that the riding public is given a safe ride ? We foresee turbulence ahead for the airline industry.

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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?

Justice Mariano Del Castillo is being accused of plagiarism in not properly citing the scholarly authorities used in the decision in Viduya vs. Executive Secretary, which he penned. An ethics committee has been formed to investigate the matter, chaired by Chief Justice Renato Corona, with Justice Teresita de Castro as the working chair and Justices Roberto Abad, Jose Perez, and Jose Mendoza as members.

But did he actually copy the words of an article written by Mark Ellis, executive director of the International Bar Association, and passed them off as his own ? Mr. Ellis’ article, entitled “Breaking the Silence on Rape as an International Crime”, was published in the Case Western Reserve Journal of International Law and makes the case for considering rape as a crime against humanity, like piracy, genocide and other heinous offenses, and therefore “ subject to universal jurisdictions under customary international law”.

The Viduya ruling, in disposing of the claims of Filipino victims of Japan’s wartime policy of forcing women to work as sex slaves serving Japanese soldiers, held that the Philippines is under no obligation to assist in pursuing the comfort women’s claims. It essentially becomes a diplomatic issue. According to the Court, since “ The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan thereby creating serious implications for stability in this region”, the Court cannot compel the government to take up the cudgels for the victims. The petition was accordingly dismissed.

Although it may appear from a quick and superficial reading of the Ellis article and the Viduya ruling that they espouse differing views on how rape should be treated under international law, they are actually on the same page. Both seem to “ fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law”. But it was precisely in explaining the immediately preceding quote that Justice Del Castillo might have sailed into intellectually dishonest waters.

In the decision’s footnote (no. 65) to the quoted sentence, Mr. Ellis noticed uncanny similarities with the words and structure of his article and was understandably concerned. Here he was, presenting his best arguments for rape to be considered as a crime against the whole world, and it was being used in a judicial decision which says that this just isn’t yet so. Both are correct, from each one’s perspective, but it was unfair for Mr. Ellis’ that his ideas would be so utilized. Not only was there no proper acknowledgment or attribution, his words were used to bolster a position which he was opposing. A bit like being “fried in your own lard”, to use a popular Filipino saying.

What is plagiarism ? A good working definition is provided by uslegal.com, as follows:

Intentional or unintentional use of another’s words or ideas without acknowledging this use constitutes plagiarism: There are four common forms of plagiarism:

• The duplication of an author’s words without quotation marks and accurate references or footnotes.
• The duplication of author’s words or phrases with footnotes or accurate references, but without quotation marks.
• The use of an author’s ideas in paraphrase without accurate references or footnotes.
• Submitting a paper in which exact words are merely rearranged even though footnoted.

But did Mr. Justice Del Castillo really lift words and phrases from Ellis’ work and pass them off as his own ? From where I sit, it looks like he did. It’s doesn’t jump out at you and one had best read the Ellis article and the Vinuya decision in full before deciding, but it seems Mr. Ellis has a point. Apart from verbatim phrases lifted from the article, the flow of Mr. Ellis’ ideas, or at least a significant part of them, appears to have been duplicated in the Vinuya decision.

We may grant that, as Justice Del Castillo said in his defense, there was no malicious intent in his inclusion of Mr. Ellis’ work and that these were mere “appendages” which would not have affected the final outcome even if they were removed. But the fact remains that he may have copied Ellis’ words without attribution and this is more than sufficiently damning. It all comes down to a question of integrity. If the Supreme Court can be dishonest in seemingly minor things, how can we expect it to be truthful and forthright on the bigger issues ?

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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?

Photo by Anton Sheker of Blogwatch.ph

It was a good start, as these things go. The air was festive at the site of the presidential inaugural ceremonies, in the sense that it felt like a campaign rally for Noynoy Aquino. The predominance of yellow was expected although still a bit grating to those of us who were not enamoured of the President to begin with.

The entertainment segment preceding the formal oath-taking was entertaining, although some elements were a bit off. Juana Change as mistress of ceremonies, removed from the context of anti-government rallies, looked lost, fat and freakish. The songs were rehashes of campaign ditties with a few revisions to make them more “inclusive”. There was an earnest attempt to give life to a theme of reconciliation but it was still sounded and felt like a victory party for President Noynoy. Fair enough. He won and is now the Head of State.

P-Noy looked embarrassed at times at the outpouring of love and acclamation. Jojo Binay looked alternately bored and annoyed, slumped next to his boss, but came to life when it was his turn to take the oath of office. The foreign dignitaries looked bemused and bewildered at all the hoopla. Erap Estrada looked pensive, maybe looking back at the many lost opportunities. Kris Aquino appeared troubled but the rest of the Aquino sisters were glowingly beautiful. Chief Justice Renato Corona was putting a good face to an awkward situation.

Or so it seemed to me watching things unfold on T.V. The personalities and speculating on what they might have been feeling was far more interesting than the actual event itself. It is a historical watershed, for all that, and was all it was touted to be: part celebration, part pep rally, part traditional commemoration of yet another shift in the Philippine political galaxy, the first peaceful transition from one administration to another in 12 years.

But as for lasting change ? We shall see.

There was nothing at all earthshaking about his inaugural speech. The same issues which served him well during the campaign were trotted out: the fight against corruption, the need for employment generation, creating a healthy investment climate, adequate health services and the like. He reserved his fighting words for his predecessor and promised that those who thrived under her crooked reign would face the bar of justice. He shrewdly relied on his folksy, populist approach, more reminiscent of Erap than Cory, promising not to tolerate abuses of power but forgetting to mention that “walang kama-kamaganak”.

It certainly creates great expectations from the citizenry, even among us who did not vote for President Aquino. Expectations which, if not managed well, could spell trouble for him down the road. But he knows this, and has brought the Filipino people into the equation, as shown by the repetitive rituals of oath-taking during the ceremony involving the crowd. Just to bring home the point that good governance is everyone’s responsibility.

He sometimes tripped on his words and seemed short of breath, with his smoker’s cough threatening to make an appearance at one point. But all went well in the end.

A few points I can think of why I’m optimistic about a Noynoy presidency.

First, there’s no doubt that he was popularly elected. He can draw on the goodwill and euphoria generated by his having been swept into office in such a fairy-tale fashion. People will cut him some slack, beyond the so-called 100 days honeymoon period. He has the opportunity and luxury of making hard, even unpopular, decisions during his first months in office, maybe until the end of the year. He can make full use of it.

And he has shown some political astuteness in choosing some good people for his cabinet and not limiting his candidates to those who openly supported him and he feels comfortable with. Like Linda Baldoz as Labor Secretary.

Also, he can slap down people if need be, quietly but firmly. He handled Jojo Binay and Gen. Delfin Bangit quite well when they tried to bully him. He put them in their proper place, which is outside what they presumptuously believe is their vested sphere of influence.

As Colin Powell said, being in charge means pissing some people off. Noynoy can show them who’s in charge, if he wants to.

It was raining hard this morning but now the sun’s out. A good sign.

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Have you read my other popular articles like Libel on the Internet under Philippine Laws (Part 1), Libel on the Internet under Philippine Law (Part 2) or on Freedom of Expression?