Archive for May, 2011


LEGAL NOTE 0065: VIEW ON THE SANDIGANBAYAN’S DECISION APPROVING THE PLEA BARGAINING AGREEMENT WITH GEN. CARLOS F. GARCIA.

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May 13, 2011

LEGAL NOTE 0065: VIEW ON THE SANDIGANBAYAN’S DECISION APPROVING THE PLEA BARGAINING AGREEMENT WITH GEN. CARLOS F. GARCIA.

 

 

Passion For Reason
Faustian plea bargain

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 22:58:00 05/12/2011

 

THE PLEA bargain agreement with Carlos F. Garcia, former comptroller of the Armed Forces, is the ultimate perversion of the constitutional clause which states rather grandly: “Public office is a public trust. Public officers [shall] be accountable to the people, serve them with utmost integrity, and lead modest lives.”

The fact that the Office of the Ombudsman pursued this matter even after the resignation of former Ombudsman Merceditas Gutierrez also shows that the problem goes beyond personalities. It is much more deeply ingrained in institutions. Justice officers read their duties rather narrowly. They prefer to take the path of least resistance legally while ignoring the utmost public condemnation morally.

On Monday this week, the anti-graft court, the Sandiganbayan, approved the plea bargain agreement that would downgrade Garcia’s crime from plunder to indirect bribery and from money laundering to “facilitating money laundering.” He would surrender to the government less than one-half of the P300 million in property and cash that had been stolen—and that half is impressive enough: a total of P135 million, including some P76 million in cash and a condominium in New York, and property variously registered in the name of the general or his wife or their three sons (while the general declares, in the plea bargain offer, that his wife and sons “have absolutely nothing to do with the cases he is now facing in court”). The Garcias get to keep the larger half of the loot—and worse, the general seems poised to evade further jail time if the court sentences him to time served.

What bothers me about the whole affair is the misguided understanding of the rule of law and how our law enforcement officers—from the policemen, to the Ombudsman, and finally the Sandiganbayan—interpret their mandate. Forgive the academic jargon, but the issue here is the relation between rules and norms. The fundamental norm is laid down by the Constitution: “Public office is a public trust.” On that moral principle, we are all partisan. We ought not pretend to be neutral. We have a duty actively to carry it out. A Pontius Pilate washing of hands—of passing the buck, of seeking refuge in technicalities—has no place when we have codified a moral statement in the Constitution.

If the Sandiganbayan wanted to throw out the plea bargain agreement and uphold that norm, it had a very good solid legal ground, namely, the plea bargain was offered too late. The rule says that the plea bargain may be offered either at the arraignment (the familiar scene in courtroom theater where the accused pleads “Innocent” or “Guilty”), or at pre-trial (“after arraignment but before trial”).

Instead, the Sandiganbayan looked for an exception and found it in what former Ombudsman Simeon Marcelo considers (and I wholly agree with him) a flawed reading of two Supreme Court decisions. In one decision, the SC allowed a belated plea bargain but only because the old rule prevailing then did not prescribe time limitations. In the second, the SC allowed the plea bargain for one of the lesser accused, not the principal offender like Garcia, and in exchange for vital testimony, unlike with Garcia who promised only cash and property but no truth in return for freedom. Yet the Sandiganbayan preferred to go for the exception rather than the rule.

The Sandiganbayan had another ground that is found in the text of the law itself: “[T]he accused, with the consent of the offended party and prosecutor, may be allowed … to plead guilty to a lesser offense.” Now look at the title of the case: “People of the Philippines (Plaintiff) versus Maj. Gen. Carlos F. Garcia, et al. (Accused).” Maybe the Ombudsman and the Sandiganbayan should tell us: Did the People of the Philippines really consent to the plea bargain? Constructively, who should speak the voice of the People in this case? The President as chief executive? Or maybe the commander-in-chief perhaps, since according to Garcia’s wife their wealth can be explained in terms of her husband’s comptrollership over the military budget? Either way, President Aquino has disapproved of this plea bargain loud and clear. Independent of that, the Filipino’s public outrage has been widely expressed in the media, and the Ombudsman’s acceptance of the plea bargain smacks of a breach of the attorney-client trust.

For the Ombudsman, that action can be understood either as the persistence of Merceditas Gutierrez’s influence in that office or, as I further suggest here, a deeper misunderstanding of what it means to be a fair and professional prosecutor.

But why the Sandiganbayan acted that way, for that, we must ask: Why declare the plunder case “questionable and shaky” now, and not after trial on the merits? Because at this stage, the court can still wash its hands and blame the parties who both consented to the plea bargain, and especially the Ombudsman whose job it was to have objected in the first place. For the Sandiganbayan as an institution, that would be perfectly understandable.

But there remains one mystery. Cutting short the Garcia trial will stall further truth-seeking into dirt and sleaze in the Armed Forces. Surely an anti-graft court should be interested in exposing the tentacles of corruption. That the Sandiganbayan would knowingly go along means it sees its job in this case as merely to judge Garcia, rather than to find out how he was able to amass his stash and with whom he had conspired all these years. In effect, our justice institutions focused on a punitive rather than preventive approach to corruption, and, strangely, ended up leaving the guilty unpunished.

(Email: passionforreason@gmail.com)

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WHO IS GEORGE YEO?

Filed under: TRIVIA — Leave a comment
May 12, 2011

Who is FOREIGN MINISTER GEORGE YEO? He is the  kind of leader that Singapore needs most in a time of transition. To find out, please read below:

 

Public Lives
A turning point inSingapore

By Randy David
Philippine Daily Inquirer
First Posted 22:15:00 05/11/2011

Filed Under: Elections, foreigner, Asia Australia – South Asia

SINGAPORE HELD its general election last Saturday, May 7. But even in our politically obsessed society, hardly anyone took notice. This indifference is understandable. Filipinos are generally uninterested in the politics of other countries, except theUnited States.Singaporeis also one country that most people do not associate with politics. After all, this city-state has been ruled by the same party, the People’s Action Party, since it became self-governing in 1959. One cannot expect to find meaningful politics in a situation like that.

But all societies evolve. And, as we are seeing all over the world, even the most tightly ruled states must sooner or later change, if they are to avoid implosion. The problem of all authoritarian societies is the same: when people are unable to freely express their opinions, the feedback mechanism is blocked. Out of fear, citizens censor themselves, giving the impression that everything is all right. Government thus operates ever more blindly, guided only by its illusions.

Singaporeis no exception. Despite registering the highest economic growth rate in the world (14.5 percent) in 2010, its leaders could sense the simmering dissatisfaction among ordinary Singaporeans. Public housing has become more expensive, well beyond the reach of low-income groups. The latter see the growing foreign community, which now constitutes more than a third of the population, as edging them out of the nation’s jobs and limited facilities. They are not persuaded by the argument that foreign workers contribute immensely to the nation’s prosperity.

Globalization is certainly a factor. Young Singaporeans are heavy Internet users. They are more connected to their generation and are aware of what is happening in the world. Despite government regulations that block websites deemed offensive, they find ways of expressing themselves on many  issues facing their society.

Recognizing the importance of the political discourse that is going on in personal blogs and social networking sites like Facebook and Twitter, theSingaporegovernment recently allowed cyberspace campaigning for the elections. “For the first time,” reports the New York Times, “campaign recordings can be posted as long as they are not ‘dramatized’ or published ‘out of context.’ Video taken at an election rally can be uploaded onto the Web without being submitted to the Board of Film Censors.”

By coincidence, I found myself inSingaporeon election day. Campaign posters and tarpaulins were not visible in the center of the city. But the engagement of ordinary Singaporeans in this year’s general election could be felt from the first hour that the results started to come in. All the taxicabs I took had their radios tuned into the announcements, with the drivers pounding on the steering wheel in unabashed elation or dismay over the results. This continued well into the following day, Sunday, when the total votes obtained by the government and the opposition became clear.

The PAP-led government posted its lowest share of the votes since the 1965 general elections, afterSingaporebroke away from the Federation of Malaysia. At 60.1 percent of the total votes, this was still a decisive victory for the PAP. Winning 81 of the 87 parliamentary seats, and conceding only six to the opposition, they retain control of parliament. So, what is new?

What is new is what the figures above do not, by themselves, tell. The six seats that the ruling party lost were won by only one opposition party—the Workers’ Party (WP)—the party founded by David Marshall, Singapore’s first chief minister. Five of those six opposition seats are for the Aljunied group representation constituency (GRC), where the government fielded one of its brightest and most senior Cabinet members, Foreign Minister George Yeo. An opposition slate led by the WP secretary general himself, Low Thia Khiang, trounced Yeo’s re-electionist team.

I met George Yeo casually at an international conference in Singapore in April last year. He was the luncheon speaker at one of the sessions. I must say I have never been impressed listening to a government official of any country speak. He was different. Unassuming and laid-back in demeanor, he spoke without notes for about 15 minutes, covering a broad range of issues from history to culture, from economics to biotechnology. He spoke about globalization and the future of Asia with sensitivity and optimism.

Yeo represents the most outstanding achievers of the generation after Lee Kwan Yew, who were not specifically trained to become politicians. A Catholic in a predominantly Buddhist society, he earned a first honors degree in engineering from Cambridge University on a scholarship. He rose to become brigadier general in the Singapore Air Force, and then took an MBA at Harvard Business School.

A close friend of Prime Minister Lee Hsien Loong, Yeo will lose his Cabinet position. It is no small irony that this man who pledged to be the voice of reform in the People’s Action party should be the main casualty of the party’s perceived shortcomings.

Yeo is the kind of leader that Singapore needs most in a time of transition. He has his ears closely pressed to the global ground in which his country has to manage the contingencies of its transformation into a fully modern society. If Singapore were the Philippines, Yeo would be the opposition’s best bet in the next election. But he’s not a politician, and he seems, in any case, far too ahead of his country’s politics.

Email: public.lives@gmail.com

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LEGAL NOTE 0063: WAS THE KILLING OF BIN LADEN LEGAL?

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 LEGAL NOTE 0063: WAS THE KILLING OF BIN LADEN LEGAL?

Bin Laden and the law

By Professor Harry Roque

Published in ManilaStandard Today on 12 May 2011
 No doubt, Osama bin Laden is loathsome. He was accused by the civilized world for perpetrating the most murderous crime against humanity committed in recent years: the World Trade Center bombing that claimed the lives of at least 3,000 civilian  lives. He is also said to be the leader of the dreaded Al Qaida, a notorious terrorist group that has either claimed responsibility or said to be responsible for many terrorist acts worldwide. So when news broke out that Osama bin Laden was killed, most of the civilized world rejoiced. Be that as it may, human rights and humanitarian law advocates have sounded the bells of alarm.  Despicable as he may have been during his lifetime, the circumstances of his killing may have undermined the  normative system that we have nurtured to provide protection to human beings against potential abuses of states. Specifically, nagging doubts have now been expressed on the legality of his killing under international law, and with good reason.

The right to life is a cornerstone of human rights law. It is a guarantee against the arbitrary taking of life. According to the United Nations Human Rights Committee, this right is absolute. Side by side with human rights law, international humanitarian law is also the applicable law where there is an on-going armed conflict. Here, the point of divergence between these two branches of international law is on the issue of culpability. While human rights law provides that the right is absolute, humanitarian law nonetheless exempts those who may kill from criminal liability if the killing is done pursuant to the laws and customs of warfare. In times of armed conflicts, killings would not be criminal if combatants will target only valid military objects, the definition of which is a person, thing, or object whose destruction will contribute to the military objective, that is:  subjugation of the enemy with minimal collateral damage. All killings of civilians, including combatants who have laid down their arms, are hence prohibited and criminal.

Given that the right to life is absolute under human rights law, the first issue is whether bin Laden’s killing is justified under international humanitarian law. The US impliedly says it is when its authorities invoke “self-defense” as a justification for the killing. The problem here is that “self-defense” may only be invoked in case of an armed attack. In the case involving the US-backed Contras out to topple the then-Sandinista government in Nicaragua, the International Court of Justice defined an armed attack as the “sending of regular armed forces or its equivalent into the territory of another state”. The questions insofar as the Al Qaida is concerned are: does it have regular armed forces or its equivalent? Did it send its forces into the territory of another state? And if so, whose territory? 

Furthermore, self-defense is subject to both necessity and proportionality. According  to United Nations special rapporteur on extrajudicial killings, Philip Alston,  a targeted killing is legal “only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal forcenecessary).”

The American Supreme Court has had at least two  instances to rule on the characterization of the US “war against terror” In the cases of Hamdan and Boumediene, the Court refused though  to categorically rule that the conflict was either international or non-international. Instead, it nullified the measures adopted by the Guantanamo Military Tribunal as contrary to the rules and customs of warfare. It ruled that its procedure was contrary to Common Article Three of the Geneva Conventions, specifically, the provision that the imposition of penalties must be done only after judicial determination that conforms to minimum standards recognized by civilized nations. The invalidated procedure included a refusal to grant the accused access to evidence presented against him.

While these two American decisions may be read to mean that the “war against terror” is governed by international humanitarian law, it still does not answer the question of whether the killing of a combatant, even assuming bin Laden to be one, is justified under all circumstances. It is hence no different from the question of whether all combatants may be killed all the time.

Interestingly,  the Supreme Court of Israel may have already ruled on this issue. In the 2006 Targeted Killings case, two human rights NGOs challenged Israel’s policy of targeted killings or assassinations as violative of international humanitarian law and human rights law. The Court found that a civilian taking a direct part in hostilities, including members of a  terrorist organization —may be lawfully targeted, provided four conditions are met i.e.,  the attacking State must have accurate and verifiable information about the target; any killing must be thoroughly investigated and if innocent civilians are killed compensation must be paid;  any killing must not violate the principle of proportionality; and most importantly,  “a civilian taking a direct part in hostilities cannot be attacked  if a less harmful means can be employed”.

Since US authorities have admitted that bin Laden was unarmed when he was killed, the conclusion is that his killing was not justified. As explained by the Israeli Court, it is because: “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”
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