Government Financed Ads a.k.a ‘Infomercials’

Direct Violation of the Laws against Premature Campaigning and Corruption

www.Shobeceo.com

OVERVIEW

Prof. Randolf S. David once asked, “What kind of rules do we need so that the merely popular do not get the power to decide for the entire nation?” This question recognizes the fact that Philippine politics has become a popularity contest wherein a famous candidate has somehow higher chances of winning. The people do not care about the platforms of the politicians. The voters do not cast their votes based on the substance of the candidate but on the basis of popularity. “For it has long been the case that suitability for public office in our country is decided not by one’s credentials or experience, but rather by one’s media projection.” Dr. Florangel Rosario Braid, the President of the Asian Institute of Journalism and Communication said, “the marriage between media and politics and the economy has shaped the culture of our politics.”

Only those who can maintain their fame get to stay in the position. This reality in the Philippine setting opens the door to graft and corrupt practices. Politicians have used the mainstream media to boost their public appearances and make the people aware that they (the politicians) are present and available for public consumption. “No longer content with speeches or press releases, they now stage, through press conferences, the grandness of public affairs and the heroism of their civic apostolate. In their hands, statecraft becomes synonymous with media visibility.”

Funds that could have been useful for other public purposes are diverted for personal gain by unscrupulous public officials who wish to stay in power or gain more of it by having government money spent for their ‘early campaigns’. This is usually made more rampant before elections take place. Massive propaganda is being used as leverage in order to retain publicity and popularity of those who seek to run for office in the next elections. Those seated in the public office takes undue advantage of their incumbency and use public funds to support their premature campaigning, which erodes public trust.  Hence the need to study the manner by which this government financed advertisements are approved.

This paper shall check whether there are sufficient rules and guidelines set before the government approves and gives financing to a particular advertisement. It shall also examine the accountability of people involved in such approval or of those whose faces are shown in the advertisements. The paper shall analyze whether there are laws violated by such practice. If there are existing laws, analysis of their efficiency shall be conducted for as observed, the practice has caused great distress to the public at large. If there are none as of yet, then the proponents shall recommend the enactment of laws, rules, or guidelines that could prevent the abovementioned misuse of public funds. shobeceo

INTRODUCTION

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Generally speaking, election as the embodiment of the popular will is the expression of the sovereign power of the people. Its purpose is to enable the electorate to choose the people that will run their government, whether national, provincial, municipal, city or barangay. It is predicated upon the representative form of government theory that the people who bear the burden of government should share in the privilege of choosing the officials of that government.  When conducted fairly, elections provide the population with an opportunity to participate in the selection of their leaders, a right recognized even in major international human rights instruments. Through elections, the voters are given a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest. It involves every element necessary to the complete ascertainment of the expression of the popular will, embracing the entire range, from the deposit of the ballot by the elector up to the final ascertainment and certification of the result.

Philippines has 17 election regions, 80 provinces, 136 cities and 1,494 municipalities. Election consists of a competition by around 17,000 candidates vying for a spot in around 3,600 political positions, for both national and local posts.  The competition is really tough and candidates are but expected to spend a lot to win a spot. shobeceo

The Role of the COMELEC

The powers of the Commission on Elections are defined in the Constitution. The functions of the COMELEC under the Constitution are essentially executive and administrative in nature. Our fundamental law has placed the agency charged with the enforcement and administration of all laws relative to the conduct of elections beyond the control of the Executive and beyond the power of Congress to abolish it, in addition to adopting other measures tending to give thereto a reasonable degree of independence. In Aratuc v. COMELEC, Justice Barredo declared that it is but proper that the Court should accord the greatest measure of presumption of regularity to its course of action to the end that it may achieve its designed place in the democratic fabric of our government.

The COMELEC’s mandate is to enforce election law. It is intended to be an independent administrative tribunal to place outside the influence or control of political parties, and the three branches of government. The intent of Constitution is to give it all necessary and incidental powers to achieve its purposes. It has powers of administration and supervision over election processes. Great latitude is given to insure free, orderly, honest, peaceful, and credible elections. Thus, the choice of means employed by the COMELEC cannot be interfered with unless the same is illegal or arbitrary. COMELEC acts in an analogous capacity to the Ombudsman with its investigatory and prosecutory powers. In pursuing this function, the COMELEC is not strictly bound by rules of evidence. However, factual findings of the COMELEC will not be disturbed by courts when there is no evidence. This rule is applied with greater force when it comes to the COMELEC since its on a level higher than other statutory administrative organs.

Whatever may be the nature of the functions of the COMELEC, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. By Constitutional mandate, it must do everything in its power to secure a fair and honest canvass of the votes cast in the elections, hence it is given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created- to promote free, orderly and honest elections. The choice of means taken by the Commission, unless clearly illegal or constitute grave abuse of discretion, should not be interfered with.  In Relampagos v. Cumba and the COMELEC, the Court upheld the jurisdiction of the COMELEC to issue writs of certiorari, prohibition and mandamus over election cases where it has appellate jurisdiction by virtue of Section 50 of Batas Pambansa Blg. 697.

As early as 2008, reported presidential frontrunners began to invade television, radio, and print media, calling attention to themselves through product endorsements and/or public-service messages.  To name a few:

·       Senate President Manuel Villar called on people to report to him all illegal recruiters, victimizing Filipinos wanting to work abroad. 

·       Senator Mar Roxas II and Senator Richard Gordon endorsed laundry soap and a brand of an anti-bacterial soap, respectively.

·       Vice President Noli de Castro made a public official courtesy on regular TV spots and even print ads for the Home Development Mutual Fund (otherwise known as ‘Pag-ibig’)

o   This is the biggest spender on infomercials, chunking P 172 million out of the recorded P 298 million expenses for government infomercials

·       Metro Manila Development Authority Chairman Bayani Fernando flooded EDSA and other major highways with his posters for MMDA

·       Department of Interior and Local Government Secretary Ronaldo Puno promoted his department with him as the main character in the advertisement and reports his accomplishments as a secretary

·       Department of National Defense Secretary Gilbert Teodoro promoting his department and its adjunct agencies to inform the public of his department under his leadership

Personal advertisements or endorsements indirectly pave the way for candidates to make an impression upon the voters even before they officially proclaim their candidacy.  On the other hand, public-service messages should concern citizens because these are publicly funded and public funds are being used for personal gain, where it should have been used for the general benefit of the Filipinos.  These activities aim to affect the voters’ perception for the coming election.  However, there is no one regulatory body directing the conduct of public officials in using these infomercials properly. 

This paper will focus on the impact of publicly funded infomercials upon the voters, the government, and on Philippine elections.  shobeceo

OBJECTIVES

a.     This paper aims to check whether there are sufficient laws, rules and guidelines set addressing the political advertisements.

b.     It shall also examine the accountability of people involved in such approval or of those whose faces are shown in the advertisements.

c.     The paper shall analyze whether there are laws violated by such practice.

·       If there are existing laws, analysis of its efficiency shall be conducted.

·       If there are none as of yet, then the proponents shall recommend the enactment of laws, rules, or guidelines that could prevent the abovementioned misuse of public funds.

SCOPE AND LIMITATIONS

a.     This paper shall be limited to a review of electoral corruption, as a form of political corruption, in the Philippines.

b.     The study will be limited to public-service messages otherwise known as ‘infomercials’ of incumbent public officials and will exclude privately funded commercials and product endorsements.

c.     The authors will be using an interdisciplinary approach in analyzing facts and in giving recommendations to resolve the issues.

ANALYSIS

Corruption Defined

In General

In one study made on the Anti-Corruption Strategy for the Philippines, corruption is deemed to be “the violation of norms of duty and responsibility for normal gain”, which includes embezzlement, a form of political corruption where public funds are used for one’s own benefit. 

Political Corruption

Political corruption is a form of corruption that is defined by Marcin Vvalecki as the abuse of state resources related to privatization or public procurement.  It is a politically motivated violence which is usually triggered by excessive competition over state resources between political factions, extreme poverty, apathy and weak civic activism, lack of independent media, control of status by moneyed interest (or state capture), lack of enforcement of political finance rules, use of discretionary or secret resources, and use of public funds and resources without accounting for them.

Susan Rose-Ackerman, on the other hand, believes that corruption sees government as an economic prism and its workings as akin to private business monopolies.  She believes that political corruption has two aspects, that is: (1) Public-private regarding wherein public officials uses public funds to serve their private interests; and (2) Rent-seeking, which is the culture that exploits the rents created by the government.  In the latter aspect, it may be said that a public official is renting an office in the government, but while in that seat he tries to exhaust all available resources in such position for private regarding.

Political corruption comes in two main forms. The first consists of private entities like individuals, corporate bodies, trade unions, trade associations, special interest groups, ethnic groups, NGOs and think tanks who provide resources to a party or candidate in return for previous or future benefit.  The other consists of parties and candidates using state funds or administrative resources to secure electoral benefits or for partisan electoral purposes.  In the first form, both the ruling and opposition parties may resort to it, while in the second form, only the incumbent parties and candidates are likely to engage in the same.

Electoral Corruption

In taking a closer look, electoral corruption, a narrower version or a subset of political corruption, has its focus on the workings and the effects of corruption in the sphere of election cases.  It is deemed to have been as old as election itself.  Corruption in election cases range from the lowest scale of the “Sunday School” variety, which involves the timing release of positive statistics on the good performance of the national economy during or before the election week to the widespread and large scale election fraud cases of ballot-buying, ghost voters, and the like.

The abuse of state/public resources for electoral purposes are often manifested through the following:

a.     Holding, for free, of political rallies in a government or a public facility while having the same facilities denied to other parties and candidates.

b.     Denying parties and candidates access to state, public, or taxpayer-funded resources such as media, conference halls, rally grounds, and the like.

c.     Using public employees to staff political rallies and party offices during the work day/working hours.

d.     Using state vehicles, aircraft of the state-owned airline, and other publicly funded facilities to convey party supporters to political rallies, polling stations or to transport party memorabilia.

e.     Compromising the political neutrality of the security agencies.

f.      Lack of equity in the vigor with which election officials and other relevant official adjudication bodies investigate and adjudicate complaints lodged by parties and candidates contesting the elections.

Electoral corruption can either be competitive or anti-competitive.  Competitive corruption exists when a variety of candidates have access to electoral corruption.  It requires that at least two contenders have close fight for the position that they are vying for and that they are able to significantly engage in electoral corruption.  It consists of “an intricate game of tricks open to all contestants”.  On the other hand, anti-competitive corruption arises when one of the contenders is more powerful than the rest.  It is a situation wherein the powerful contender – usually the incumbent – has an unmatched access to resources or control of media and for all intents and purposes, he is the only on with the ability to engage in electoral corruption.

While it has been a long-standing practice, almost like a tradition, in the Philippines, electoral corruption is known to corrode the legitimacy of the democratic process of election and of the political system at large.  shobeceo

Government-financed Advertisements (Infomercials)

The politicians who are either seeking elective posts, by trying to become reelected or by making a political comeback, find ways to circumvent the laws prohibiting premature campaigning.  “Election corruption and abuse of state resources for partisan electoral purposes begin long before the election period.” Politicians engaged themselves in an advertising race in order to obtain more media mileage. The innovative approach that the politicians were able to devise was the use of the so-called infomercials. These infomercials allegedly aim to improve the visibility and the awareness of the public about the politicians’ accomplishments in their respective department or post. The main characters in those infomercials claim that the primary aim of the infomercials is public information and not partisan politics.

Even the fisherfolk activist group Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) expressed its dismay with the government-paid infomercials and points out the fact that these TV ads cannot resolve the pervasive lack of employment, poverty, and hunger across the country. Pamalakaya national chair Fernando Hicap said, in a press statement, “The P298 million taxpayers money spent by Malacañang on infomercials have no mitigating impact on the lives of jobless, hungry, and starving millions.  The 27.6 million poorest Filiipinos all over the country will not benefit from this ‘running teleserye’ of state propaganda and political deception.” He further states that, “this barrage of infomercials promoting the senatorial candidacy of Arroyo anointed candidates in the 2010 elections is a national robbery of public funds.  Malacañang should stop this electoral oriented infomercials to stop the bleeding of national coffers and save taxpayers money from all-out financial depletion.” shobeceo

Premature Campaigning as Prohibited Activity

The main contention against premature campaigning stems from the provisions in the Omnibus Election Code of the Philippines which provides, to wit:

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having   x  x    (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. (emphasis supplied)

Sec. 80. Election campaign or partisan political activity outside campaign period. - It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (emphasis supplied)

The provision clearly deems it unlawful to engage in an election campaign or partisan political activity outside of the campaign period. However, many legal practitioners believe that there is no such thing as premature campaigning. Their main argument is that when a person has not yet submitted his/her certificate of candidacy, he/she is not yet deemed a candidate. Therefore, he/she cannot be made guilty of premature campaigning when legally speaking, he/she is not yet a candidate to begin with.

On the other hand, Sec.  13 of Republic Act No. 9369 amending Sec. 11 (now Sec. 15 as amended) of Republic Act No. 8436, provides, to wit:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (emphasis supplied)

Under this new law, it would seem that as a candidate, a person cannot be held liable for campaigning earlier because firstly, he/she is not yet a candidate unless he/she files a certificate of candidacy, and secondly, he/she is only considered as a candidate at the start of the campaign period for which he/she filed his/her certificate of candidacy, and thirdly because unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period. On the basis of this provision, a candidate may not be guilty of premature campaigning because he/she is only considered as a candidate upon the beginning of the campaign period. Prior to the campaign period, a person is not deemed a candidate even if he/she already submitted his/her certificate of candidacy. 

Unfortunately, even the COMELEC through its director of legal department, Atty. Ferdinand Rafanan said, “”In my own opinion, nobody can be liable for the election offense of premature campaigning now. Because as in the old law and in the new law, premature campaigning is still anchored on the fact that a person has already filed a certificate of candidacy.”

However, a reading of Sec. 80 of B.P. 881 would prove otherwise. There is an operative phrase defining who can be guilty of premature campaigning. The phrase “any person” is very explicit that even if a person does not qualify under the word candidate since he/she has not yet filed his/her certificate of candidacy, he/she may still be classified as a voter, a member of a party or a member of an association. The phrase “any person” is an all-embracing phrase that may even include non-voters and any ordinary citizen. But Justice Antonio Carpio said, to wit:

[B]efore a private person can commit the crime, there must first be another person who is already considered by law a “candidate.” Section 79(b) of the Omnibus Election Code provides that “the term ‘election campaign’ or ‘partisan political activity’ refers to an act designed to promote the election or defeat of a particular candidate or candidates to public office.”  Thus, there can be no premature “election campaign” or “partisan political activity” unless there is a “candidate.”

Interestingly, in the case of Rosalinda A. Penera vs. Commission on Elections, by a split vote of 8-7, the Court held that “Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended”.  Penera who was elected and proclaimed as municipal mayor of Sta. Monica, Surigao del Norte used vehicles, consisting of two jeepneys and ten motorcycles carrying multi-colored balloons. The motorcade went around three barangays in Sta. Monica, and Penera and her partymates waved their hands and threw sweet candies to the crowd. These acts were all done prior to the filing of her certificate of candidacy which is obviously outside of the campaign period. Moreover, these acts were committed on the same day but immediately before she filed her certificate of candidacy. She did all the acts on her way to the COMELEC office to file her certificate of candidacy.  Consequently, “[f]or violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica.”

Nevertheless, Justice Carpio in his dissent firmly believes that ”with the enactment of R.A. 9369, our lawmakers have decided to do away with the imposition of a penalty on premature campaigning”. Former Chief Justice Artemio Panganiban asked this question: “Even now, many have already set up billboards, ads and infomercials announcing their run for the presidency or other public offices. Can they be disqualified?” He answered his own question by saying, “No, because prior to the filing of their COCs, they cannot be deemed ‘candidates’ yet. Thus, legally, there had been no ‘premature’ campaigning.” This assumption erodes the very essence of defining when election period commences. Espousing this same view will defeat the very purpose for which elections law were enacted. Granting for the sake of argument that this contention is true, then the provision on campaign period is nugatory for a candidate and his/her followers may campaign at any time they want even outside of the campaign period, for it is only upon the beginning of the campaign period that a person filing a certificate of candidacy may be deemed as a candidate. The designation of a specific campaign period would be meaningless.

Nonetheless, since the majority opinion in Penera considers Sec. 80 of B.P. 881 in relation to Sec. 68 of the same law still relevant, this paper would adopt the same view. In effect, there is such a thing as premature campaigning and even if the person has not yet filed his/her certificate of candidacy, he/she may eventually be found guilty of premature campaigning. Surprisingly, Supreme Court spokesman Jose Midas Marquez has a different reading of the decision. In a news article,  the reasoning for his statements was “What happened in the case of Mayor Penera was she already filed her certificate of candidacy, and yet she continued with her motorcade, which was a day before the start of the campaign period. Without that filing of the COC, then that case cannot be used as basis.” He added, “”Aspirants for president with running infomercials are not covered by the law dahil hindi pa naman sila nagpa-file ng certificate of candidacy (since they have not yet filed their certificate of candidacy).”

But the Penera decision affirmed the COMELEC Second Division Resolution in SPA No. 07-224 disqualifying Penera. The same Resolution was affirmed by COMELEC en banc by dismissing the Motion for Reconsideration filed by Penera for “utter lack of merit.” The Resolution categorically stated that the basis for the decision was the acts of Penera even prior to her filing of her certificate of candidacy. In fact, the acts punished by the Resolution was Penera’s acts preceding her filing of certificate of candidacy. The statement of Atty. Marquez seems to confuse the legal minds more than enlightening them. shobeceo

Infomercials as Premature Campaigning

The alleged primary aim of the infomercials is to boost the public awareness of people regarding a certain government department, agency or accomplishment. It is of public knowledge, however, that the characters in those infomercials have already declared their intention to run for public office long before the beginning of the proliferation of their respective infomercials. The contents of the infomercials are embedded with hidden messages to keep the public informed of the characters’ existence. Infomercials call the attention of the viewers, listeners or readers to the political achievements of the politicians thus, giving the incumbent politicians an advantage over the others who do not occupy high government posts.

Senator Miriam Defensor-Santiago who is strongly against infomercials of cabinet secretaries and even her fellow senators succinctly described the practice of those politicians using infomercials to conceal their true agenda, to wit:

Unless a person is blind, deaf, or dumb, it is crystal clear that the alleged infomercials of Cabinet members are intended to camouflage the violation of the campaign ban, for the simple reason that these Cabinet members engage only in such infomercials in the year prior to election year and at no other time, and for no other reason than personal political publicity.

Politicians using infomercials found an ally in House Speaker Prospero Nograles who said, “It has become necessary considering that in our present setup, there is a tendency to project all the bad news and not print the good news. It’s a way of balancing out things and leveling the playing field”. Arguments against this view once again go back to: Why only now? And why must the infomercial focus on the face and name of the politician instead of focusing on the accomplishments of the department, agency or unit? The answer is this: “Viewers will long remember how looked and how you spoke, but will seldom recall what you actually said.” shobeceo

Infomercials Using Public Funds Must be Disallowed

Since the infomercials are about a certain government department, agency or accomplishment, they are presumably funded by public funds. The use of infomercials per se is not legally, not even morally wrong. What makes it an intolerable act is the fact that infomercials proliferate only at the time nearing the election period and those involved in the infomercials are the same persons who publicly declared their intention to run for public office.

Politicians heading a certain government agency can divert funds and allocate them for infomercials instead of using them for other practical public purposes. There is really no public interest that is enhanced in the use of infomercials. Politicians spend public funds only to boost their publicity. Infomercials serve no legitimate purpose. “By using public funds, these government officials have the financial mechanism to campaign ahead of others.”

The Commission on Audit classifies expenditures that must be disallowed as follows: irregular, unnecessary, excessive and extravagant. For information purposes, the terms are defined according to the COA Circular, to wit: (emphasis supplied)

Irregular: The term “irregular expenditure” signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or practices that have gained recognition in law.  Irregular expenditures are incurred without conforming   with   prescribed usages and rules of discipline.  There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an irregular expenditure.   A transaction conducted in a manner that deviates or departs from, or which does not comply with standards set is deemed irregular.  An anomalous transaction which fails  to  follow  or  violates  appropriate  rules   of procedure,  is likewise  irregular.  Irregular expenditures are different from illegal expenditures since the latter would pertain to expenses incurred in violation of the law whereas, the former is incurred in violation of applicable rules and regulations other than the law.

Unnecessary: The  term pertains to  expenditures which could not pass the test of prudence or the diligence  of a good  father  of a family, thereby  denoting  non-responsiveness to the  exigencies of  the service. Unnecessary expenditures are those not supportive of the implementation of the objectives and mission of the agency relative to the nature of its operation. This would also include incurrence  of  expenditure   not dictated  by the demands of good government,  and  those the  utility  of  which  cannot  be  ascertained  at  a specific time.  An expenditure that is not essential or that which can be dispensed with without loss or damage to property is considered unnecessary.  The mission and thrusts of the agency incurring the expenditures must be considered in determining in whether or not an expenditure is necessary.

Excessive: The term “excessive expenditures”  signifies unreasonable expense or expenses  incurred  at  an immoderate quantity and exorbitant price. It also includes  expenses which exceed what is usual or  proper as  well  as expenses which are unreasonably  high,  and beyond  just  measure or amount. They also include expenses in excess of reasonable limits.

Extravagant: The term “extravagant expenditure” signifies those incurred without restraints, judiciousness and economy.  Extravagant expenditures exceed the bounds of propriety.  These expenditures are immoderate, prodigal, lavish, luxurious, waste grossly excessive, and injudicious.

Federico D. Pascual Jr. in his column in The Philippine Star, asked the following questions regarding the infomercial of Chairman Efraim Genuino of the Philippine Amusement and Gaming Corporation, who after being considered by the Arroyo administration as a senatorial bet (the news article mentioned that Genuino is seeking for the presidential post) resorted to infomercials, to wit:

Who pays for all those expensive TV ads promoting his face, name and image? Is it PAGCOR or Genuino personally? Does big-time gambling have to be advertised on mass media? How truthful are those ads showing heavily edited pictures of crowds? Why does Genuino always paste beside him the picture of President Arroyo?

Although the infomercial expenditures may not be considered as irregular since there are rules, regulations, procedural guidelines, policies, principles or practices that are easy to follow, they may still be classified as unnecessary, excessive and extravagant for these criteria call for moral and conscientious determination. It is crystal clear that infomercials serve no purpose other than to boost the public image of the soon-to-be candidates in the upcoming elections. Public spending for the infomercials is unconscionable for it deprives other legitimate and useful purpose of government funding. At the same time, the politicians receive private gain at the expense of the public being taxed for useless purposes. For all these reasons, the use of public funds for the infomercials must be disallowed. shobeceo

Role of Media on Infomercials

Media plays an important role in the Philippine politics.  “The media is often referred to as the fourth estate, more or less on the same altitude as the classical democratic powers of the judiciary, the executive and the legislative.” “Elections are the cornerstone of any democracy, and the media has a vital role — in informing the public about what the politicians are promising, in telling the politicians what ordinary people want, or do not want, and in ensuring that the polls are ‘free and fair’.”

Filipinos are known to be avid fans of teleseryes and telenovelas, even game shows and reality shows.  The habit of keeping watch of the latest news and updates through television, radio, or newspapers is inculcated in the Philippine culture and tradition.  Hence, it cannot be denied that media is a big factor in influencing the Filipinos in the matter of lifestyle, opinions, and decision-making. “That is why we have a proliferation of TV programs in which entertainment personalities are cast in public service roles, and politicians are packaged as showbiz celebrities.”

In a news article by Aries Rufo, he cited the role of media in implementing the Penera decision and the regulation of infomercials, to wit:

Caught in the middle would be the media, which will have to delicately balance its reporting to avoid being accused of engaging in premature campaigning. Election lawyers said that if the SC ruling would be strictly observed, a total news blackout on the candidates would have to be observed.

This would affect media’s effort to engage the candidates on behalf of the electorate, and generate millions of revenues from campaign ads.

True enough, the media is caught in the middle of two conflicting interests: revenue generation and responsible journalism. One of the basic reasons why companies are set up is to generate profit. Without profit, media outlets cannot be in existence. The growth in revenue of media outlets when election is fast approaching can be attributed to political advertising. “P160M in political ads boost ABS-CBN profits” and “Higher ad rates, lower tax boost GMA profits by 20%” are the common examples of headlines that people see when media outlets report their profits. This is a recognition that political advertisements contribute to the additional profits that media outlet receive.

Political advertising is a very profitable aspect of media. The radio and television frequencies are very expensive. The rates even vary depending on the time slot when the advertisement would be played. Much of a politician’s campaign budget goes to the media because of their immense reach to the masses. Because of the profitability of political advertising, the Bureau of Internal Revenue issued recently Revenue Regulation No. 8-09 which requires all political candidates or parties to withhold a five percent (5%) withholding tax on their campaign expenditures, in order also to boost government revenue. In 2008-2009, the cabinet members and executive officials advertising through the media used about 118 million pesos of public funds for their infomercials. In 2009 alone, the expenses amounted to 100 million pesos. 

The report of the Commission on Audit submitted to Senator Santiago as chair of the economic affairs committee, on 14 August 2009 by COA Chair Reynaldo Villar indicated the following figures:

 

In Round Figures:

1. Chair Agusto Syjuco, Tesda	P28.3 M
2. Mayor Jejomar Binay, Makati	P23.4 M
3. VP Noli de Castro, OVP, Pag-ibig / HDMC, HUDCC	P18.1 M
4. Chair Efraim Genuino, Pagcor	P14.1 M
5. Sec. Francisco Duque, DOH	P13.2 M
6. Chair Bayani Fernando, MMDA	P 7.4 M
7. Sec. Jesli Lapuz, DepEd	P 5.7 M
8. Sec. Hermogenes Ebdane, DPWH	P 3.8 M
9. Sec. Nasser Pangandaman, DAR	P 2.4 M
10. Sec. Ronaldo Puno, DILG	P 0.9 M
TOTAL:	P117.7 M

 

And this is the list for the year 2009, so far:

1. Mayor Binay	P23.4 M
2. Chair Syjuco	P22.5 M
3. VP de Castro	P18.1 M
4. Chair Genuino	P14.1 M
5. Chair Fernando	P 6.4 M
6. Sec. Lapuz	P 5.7 M
7. Sec. Edbane	P 3.8 M
8. Sec. Duque	P 3.3 M
9. Sec. Pangandaman	P 2.4 M
10. Sec. Puno	P .240 M
TOTAL:	P100.4 M

It is commendable that media outlets especially television stations have their respective campaigns for clean, fair and honest elections. They serve as the citizen’s watchdog against fraudulent and abusive practice of politicians. Media play a vital role in informing the citizenry of the current state of Philippine politics. It is sad to note, however, that despite the fact that the media campaign against unfair elections, no media entity has come forward to sue the politicians using infomercials. It is more dismaying that the same media entities are taking advantage of the profitability of airing and printing the infomercials. Nonetheless, it is understandable why the media enterprise do not refuse to air or print the infomercials – because infomercials are profitable.

It cannot be denied that a derivative form of infomercial is the so-called “advertorial”. It is “an advertisement, as in a magazine, produced so as to resemble an article or editorial” The writers get paid to write on a certain politician, whether be it about the latter’s personal information or his/her achievements as a public servant. It dilutes responsible journalism for the politician can dictate upon the writer as to how the article must be written. Consequently, the articles that would reach the public are one-sided and all on the positive attributes of the politician. The electorate would then be misinformed and deceived because the politicians are packaged as a perfect product when in reality, they have hidden defects. They would be made to believe that the politicians described in the article are the perfect public servants for the country. shobeceo

Infomercials as Money and Popularity Contest

Prof. Randolf S. David said, “Because we have made elections expensive and celebrity-oriented, public office has become the preserve of the very rich or the very popular.” In the Philippines, being rich makes a person popular. Firstly, he/she is popular because of the media and public attention that he/she gets. Secondly, he/she is popular because he/she can buy airtime or print space for publicity. Since election has become a popularity contest in the Philippines, whoever gets greater publicity has a higher chance of winning. In the current situation, whoever has more money increases his/her winnability. The question then becomes: Where will the money come from? 

Since the infomercials a presumably funded by the public money, then the heads of the agency or department with big budgets have the advantage of having immense funding for their infomercials. They may use the “savings” of their department to fund the infomercials. Also, they may use their discretionary funds to pay for the advertisements. More importantly, they may use the legitimate budget or the appropriation for publicity of their department to boost their personal popularity even if the advertisements do not contain useful information. The politicians may produce a thirty-second infomercial, five seconds of which would flash the name of the department and the rest would be focusing on his/her face and his/her name. The politicians will not be content with one exhibition of their infomercials for it will not be enough to mark the minds of public. The infomercials must be run again and again, all throughout the day, almost in every timeslot especially in primetime that would entail more costs. It then goes back to the question of who has the biggest budget to spend. shobeceo

Infomercials as Basis for Other Forms of Corruption

Some infomercials contain disclaimers that they were “paid for by the friends” of the politician. It is very suspicious, however, why all of a sudden there is a surge in their production at the time nearing the election. It is very unlikely that the politicians’ so-called “friends” from nowhere just contributed money for the production of the infomercials. Also, it is very notable that many cabinet secretaries engage in the infomercials all at the same time. Why was there a sudden proliferation of infomercials? Before, their departments were not even heard of by the ordinary citizens. But why spend on infomercials only now? The timing of the infomercials casts doubt on their purpose.

Granting for the sake of argument that the infomercials are paid for by the politicians’ “friends”, the contributions must then be named to the department or the agency that the politicians are heading. It cannot be a personal contribution to the politicians since the purpose of the infomercials, according to them is to boost the public awareness on their department, agency or government unit. Why then do the infomercials say “Paid for by friends of (name of the politician)”? The beneficiary should have been the department, agency or unit, not the politician. If the politician himself was the beneficiary of the contributions, he/she may be held liable for indirect bribery under the Revised Penal Code. 

The Revised Penal Code also punishes the following acts (emphasis supplied):

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property x x x

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. x x x

Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

The provisions quoted above punish the illegal acts of public officials who have authority to disburse funds. Being the heads of departments, agencies or units, the politicians who have infomercials have the authority to approve the use of their respective funds or to apply the same themselves for purposes other than for which the funds were lawfully intended. The proliferation of infomercials raises the suspicion as to where the funds that the politicians use come from. During budget deliberations, department heads literally beg Congress to grant them more budget in order to implement certain projects. It is inconceivable why now the same department heads use their funds for infomercials. Are infomercials part of their priority projects?

At the same time, he/she may also be held liable under the Anti-Graft and Corrupt Practices Act, Republic Act No. 3019, under paragraph (i) which provides, to wit:

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.  Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (emphasis supplied)

Under the quoted provision above, the department, agency or unit heads may be liable since they used their positions to approve the disbursement of public funds to campaign for themselves and to boost their publicity. As heads of the department, agency or unit, they have the final word on how to spend certain funds. It is inevitable that the expenditures on the infomercials have their approval. And since their true intent and purpose is for campaigning purposes which constitute private gain, they may be held accountable for their illegal acts under the provision. Moreover, the law creates a presumption that manifestly unlawful, inequitable, or irregular transaction or acts are for personal gain. Undeniably, the infomercials will fall under those descriptions according to the Commission on Audit Circular No. 85-55-A.

Republic Act No. 6713 can also be used to deter the use of infomercials for personal gain, to wit:

Section 7. Prohibited Acts and Transactions. — In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x x x

(d) Solicitation or acceptance of gifts. — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. (emphasis supplied)

 

It is very clear that the claim of the politicians that their friends paid for their infomercials may be construed as a violation of the abovementioned law. Why would their “friends” pay for the benefit of the politicians’ department, agency or unit? Do they really have an utmost concern for the image of the department, agency or unit? Or do they want to please the politicians? These questions do not have to be answered for the answers are quite obvious. shobeceo

CONCLUSIONS AND RECOMMENDATIONS

The State, in the exercise of its inherent police power, must enact laws to safeguard and regulate the conduct of honest, orderly and peaceful elections. These various and numerous provisions of the Election Law however, were adopted to assist the voters in their participation in the affairs of the Government and not to defeat that object. For in an election, the first consideration of every democratic polity is to give effect to the expressed will of the majority. Its primal feature is to allow the citizen to vote for whom he pleases, free from improper influences.

Although afforded a prime niche in the hierarchy of rights embodied in the fundamental law, the freedom of speech may not be invoked in this instance in favor of the politicians who make use of these infomercials, for such right ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from ravishment and preserve the democratic institutions our people have. The exercise of the right must hence be subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law.

From the above facts and opinions we can see that our election laws need to be amended to adapt to the current systemic problem in Philippine politics. Our laws are outdated compared to the innovative schemes that politicians have devised in order to circumvent the mandates of the law. Politicians have become so creative that they can find ways to illegally campaign without being punished for their acts. We need, therefore, to clearly establish the punishable acts of electoral fraud and introduce special penal laws that will specifically cover electoral fraud cases.  The Fair Elections Act for instance provides that “The Senate shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and for a among candidates and assure free, orderly, honest, peaceful and credible elections.” This however does not seem to cover instances wherein media communication is being used by the politicians to engage in premature campaigning which does not even exist in view of jurisprudence to the effect that this is not prohibited until during campaign period has already started.

In addition, the media have to be more responsible in reporting and even in advertising for partisan political candidates or parties. While enterprising businesses have a legitimate cause to accept advertisements, they also have a civic duty to regulate within their own sphere the infomercials that they would broadcast. They cannot just swarm the public with infomercials and then blame the public for believing what they saw, heard or read. Also through financial disclosure, the public, especially the electorate is allowed to keep score on the amounts, sources and destinations of government money. Without it, the people would risk never knowing the price tag of their democracy or the identity of major influences behind it. “Good journalists should also report elections in a non-partisan way, suppressing their own political views in order to allow the public to make up their minds solely on the basis of what the various candidates are offering.” In media, there is a distortion in the line differentiating the money-making aspect and responsible journalism of media outlets. “Political consultants often distinguish between ‘free’ (news) and ‘paid’ (advertising) media, but this dichotomy fails to describe the continuing proliferation of media forms and formats.” The media entities must address the dilemma brought about by their two conflicting interests. It can only be solved if we have responsible and independent media. Part of responsible journalism is the duty to give to the public the truth behind the issues.   And even more than becoming a responsible journalist, a responsible citizen of the Philippines has the obligation to do only what is morally correct and to become a watchman for the country in bringing about a fair and honest election. “Acknowledging the extent to which the media have come to dominate the selection process is a challenge to journalists, who prefer to think of themselves as detached observers.”

We also need an educated and well-informed electorate. It is really the electorate who will decide who is going to win in the elections. In Germany, “On the one hand, journalists would claim they want to be fair. In addition to this ethical attitude it would be unwise to manipulate from a business angle also. Readers, listeners or viewers would react negatively should they feel that the news they are getting is manipulated. Many would simply stop buying the paper or stop listening or watching the program that they believe is reporting in a biased fashion.”

After the devastation brought about by Typhoon Ondoy, the Philippines has been declared under a state of calamity. After Ondoy, there came Pepeng and Ramil. Because of the calamities that struck the country, rehabilitation programs need immediate funding. Instead of using public funds for infomercials, the executive department must channel its discretionary funds and savings to the rehabilitation programs. Typhoon victims need new homes and a fresh start. Government infrastructure concerning flood control and calamity-prevention must also be prioritized in order to avert the same fate that Filipinos especially in flood-stricken areas experienced. In summation, there are more relevant and more compelling projects that need government funding. Infomercials should never make it to the priority list.

Each individual, from any walk of life, whether man or woman, minor or adult, has a role to play in helping the people decide for the future leaders of our country.  The citizenry has to be vigilant and report immediately any incident of possible fraud or corruption within our electoral system.  Only then can we effectively fight the abuse on government-financed advertisements, otherwise known as ‘infomercials’, of incumbent public officials, who feed on public funds for their private regard.  Each aspect of our society is not spared. All must be involved. shobeceo

Add comment November 13th, 2009

Law School Musical

Law school life oh my law school life, dadadadadada…

1 comment December 8th, 2008

Herrera vs. Luy Kim Guan

G.R. No. L-17043             January 31, 1961

NATIVIDAD HERRERA, assisted by her husband EMIGDIO SALAZAR, plaintiffs-appellants,
vs.
LUY KIM GUAN and LINO BANGAYAN, defendants-appellees.

T. de los Santos for plaintiffs-appellants.
Rafael C. Climaco and Abelardo S. Fernandez for defendants-appellees.

BARRERA, J.:

This is an appeal from the decision of the Court of First Instance of Zamboanga City (a) dismissing plaintiff-appellant’s complaint for the recovery of three (3) parcels of land and their produce in the sum of P320,000.00; and (b) instead, sentencing plaintiff to pay P2,000.00 for attorney’s fees and P1,000.00 for expenses of litigation, to defendant Lino Bangayan, and P2,000.00 as attorney’s fees and P500.00 as expenses of litigation, to the other defendant Luy Kim Guan.

The pertinent facts as found by the trial court and upon which its decision was predicated are set forth in the following portion of the decision appealed from:

The Plaintiff Natividad Herrera is the legitimate daughter of Luis Herrera, now deceased and who died in China sometime after he went to that country in the last part of 1931 or early part of 1932. The said Luis Herrera in his lifetime was the owner of three (3) parcels of land and their improvements, known as Lots 1740, 4465 and 4467 of Expediente No. 5, G.L.R.O. Record 477 and the area, nature, improvements and bound of each and every of these three (3) lots are sufficiently described in the complaint filed by the plaintiffs.

Before leaving for China, however, Luis Herrera executed on December 1, 1931, a deed of General Power of Attorney, Exhibit ‘B’, which authorized and empowered the defendant Kim Guan, among others to administer and sell the properties of said Luis Herrera.

Lot 1740 was originally covered by Original Certificate Title 8601 registered in the name of Luis Herrera, married to GO Bang. This lot was sold by the defendant Luy Kim in his capacity as attorney-in-fact of the deceased Luis Her to Luy Chay on September 11, 1939, as shown in Exhibit “2″, corresponding deed of sale. Transfer Certificate of Title 3162, Exhibit “3″, was issued to Luy Chay by virtue of deed of sale. On August 28, 1941, to secure a loan of P2,00 a deed of mortgage to the Zamboanga Mutual Building and Association was executed by Luy Chay, Exhibit “4″. On January 31, 1947, the said Luy Chay executed a deed of sale, Exhibit “E”, in favor of Lino Bangayan. By virtue of this Transfer Certificate of Title T-2567 was issued to Lino Bangayan on June 24, 1949, Exhibit “1″:

Lots 4465 and 4467 were originally registered in the of Luis Herrera, married to Go Bang, under Original Certificate of Title No. 0-14360, Exhibit “5″. On December 1, 1931, Luis Herrera sold one-half (?) undivided share and to Herrera and Go Bang, the other half (?), as shown by Exhibit “12″ and Exhibit “12-A”, the latter an annotation made the Register of Deeds of the City of Zamboanga, in which stated as follows:

Cancelado el presente Certificado en virtud de una escritura de traspaso y en su lugar se ha expedido el Certificado de T No. 494-(T-13045) del Tomo 2 del Libro de Certificado de Transferencias.

(Fdo) R. D. MACROHON Registrador de Titulos Ciudad de Zamboanga

On July 23, 1937, Luis Herrera thru his attorney-in-fact Luy Kim Guan, one of the defendants, sold to Nicomedes Salazar his one half (?) participation in these two (2) lots, as shown in Exhibit “C”, the corresponding deed of sale for P3,000.00 Transfer Certificate of Title No. T-494-(T-13045) was is to Nicomedes Salazar and to the defendant Luy Kim Guan, Exhibit ‘7′. On August 4, 1937, the defendant Luy Kim Guan Nicomedes Salazar executed a deed of mortgage in favor of Bank of the Philippine Islands to secure a loan of P3,500.00, Exhibit ‘6′. On August 17, 1937, the defendant Luy Kim Guan and Nicomedes Salazar sold Lot 4465 to Carlos Eijansantos for the sum of P100.00 as shown in Exhibit “9″, the corresponding deed of sale, and Transfer Certificate of Title No. T-2653 was issued on September 7, 1939 to Carlos Eijansantos, Exhibit “10″. Nicomedes Salazar sold his one half (?) interest on Lot 4467 to the defendant Lino Bangayan for P3,000.00 on February 22, 1949, Exhibit ‘B’, and the corresponding Transfer Certificate of Title T-2654 was issued to Lino Bangayan and to Luy Kim Guan, both are co-owners in equal shares, Exhibit “8″. Opinion of the City Attorney, Exhibit “p”, and an affidavit of Atty. Jose T. Atilano, Exhibit “O”, state that Lino Bangayan is a Filipino citizen.

As admitted by both parties (plaintiffs and defendants), Luis Herrera is now deceased, but as to the specific and precise date of his death the evidence of both parties failed to show.

It is the contention of plaintiff-appellant that all the transactions mentioned in the preceding quoted portion of the decision were fraudulent and were executed after the death of Luis Herrera and, consequently, when the power of attorney was no longer operative. It is also claimed that the defendants Lino Bangayan and Luy Kim Guan who now claim to be the owners of Lots Nos. 1740 and 4467 are Chinese by nationality and, therefore, are disqualified to acquire real properties. Plaintiff-appellant, in addition, questions the supposed deed of sale allegedly executed by Luis Herrera on December 1, 1931 in favor of defendant Luy Kim Guan, conveying one-half interest on the two lots, Nos. 4465 and 4467, asserting that what was actually executed on that date, jointly with the general power of attorney, was a lease contract over the same properties for a period of 20 years for which Luy Kim Guan paid the sum of P2,000.00.

We find all the contentions of plaintiff-appellant untenable. Starting with her claim that the second deed executed on December 1, 1931 by Luis Herrera was a lease contract instead of a deed of sale as asserted by defendant Luy Kim Guan, we find that the only evidence in support of her contention is her own testimony and that of her husband to the effect that the deceased Luis Herrera showed the said document to them, and they remembered the same to be a lease contract on the three properties for a period of 20 years in consideration of P2,000.00. Their testimony was sought to be corroborated by the declaration of the clerk of Atty. Enrique A. Fernandez, who allegedly notarized the document. Outside of this oral testimony, given more than 23 years after the supposed instrument was read by them, no other evidence was adduced. On the other hand, defendant Luy Kim Gua produced in evidence a certification¹ signed by the Register of Deeds of Dipolog, Zamboanga (Exh. 11) to the effect that a deed of sale, dated December 1, 1931, was execute by Luis Herrera in favor of Luy Kim Guan and entered in the Primary Book No. 4 as duly registered on September 30, 1936 under Original Certificate of Title No. 14360. It is to be noted that the deed of sale was registered shortly after the issuance in the name of Luis Herrera of Origin Certificate of Title No. 14360 pursuant to Decree No. 59093, covering the two lots, Nos. 4465 and 4467 (Exh. 5) dated April 7, 1936. In virtue of said deed of sale of December 1, 1931, Original Certificate of Title No. 1436 was cancelled and Transfer Certificate of Title No. 1304 (Exh. 12) in the names of the conjugal partnership of the spouses Luis Herrera and Go Bang, one-half share, an Luy Kim Guan, single, one-half share, was issued on September 30, 1936. Later, or on July 23, 1937, Luy Kim Guan, in his capacity as attorney-in-fact of Luis Herrera, sold the half interest of the latter in the two parcels o land, in favor of Nicomedes Salazar, whereupon TCT No. 13045 was cancelled and TCT No. RT-657 (494-T-13045 (Exh. 7) was issued in the names of Luy Kim Guan an Nicomedes Salazar in undivided equal shares. On August 4, 1937, both Luy Kim Guan and Nicomedes Salazar mortgaged the two parcels in favor of the Bank of the Philippine Islands for the sum of P3,500.00 (Exh. 6). On August 17, 1937, Nicomedes Salazar and Luy Kim Gua sold their respective shares in Lot No. 4465 to Carlo Eijansantos (Exh. 9), subject to the mortgage, resulting in the issuance of TCT No. 2653 (Exh. 10) covering the entire lot No. 4465 in the name of said Carlos Eijansantos. On February 23, 1949, Nicomedes Salazar sold his shall share in Lot No. 4467 to Lino Bangayan, as a consequence of which, TCT No. 2654 (Exh. B) was issued covering said Lot No. 4467 in the names of Luy Kim Guan and Lino Bangayan in undivided equal shares.

With respect to Lot No. 1740, the same was sold by Luy Kim Guan, in his capacity as attorney-in-fact of Luis Herrera, on September 11, 1939 to Luy Chay (See Exh. 2) who, in August, 1941, mortgaged the same (Exh. 4) to the Zamboanga Mutual Loan and Building Association (See TCT No. 3162 [Exh. 3] issued in the name of Luy Chay). Later on, Luy Chay sold the entire lot to defendant Lino Bangayan by virtue of the deed of sale dated January 31, 1947 (Exh. E), and as a consequence thereof, TCT No. 2567 was issued in the name of said vendee. (See Exh. 1). As a result of these various transactions, duly recorded in the corresponding office of the Register of Deeds, and covered by appropriate transfer certificates of title, the properties are now registered in the following manner: Lot No. 1740, in the name of Lino Bangayan; Lot No. 4465, in the name of Carlos Eijansantos; and Lot No. 4467, in the names of Lino Bangayan and Luy Kim Guan in undivided equal shares.

In the face of these documentary evidence presented by the defendants, the trial court correctly upheld the contention of the defendants as against that of plaintiff-appellant who claims that the second deed executed by Luis Herrera in 1931 was a lease contract. It is pertinent to note what the lower court stated in this regard, that is, if the second deed executed by Luis Herrera was a lease contract covering, the 3 lots in question for a period of twenty (20) years, there would have been no purpose for him to constitute Luy Kim Guan as. his attorney-in-fact to administer and take charge of the same properties already covered by the lease contract.

Coming now to the contention that these transactions are null and void and of no effect because they were executed by the attorney-in-fact after the death of his Principal, suffice it to say that as found by the lower court, the date of death of Luis Herrera has not been satisfactorily proven. The only evidence presented by the Plaintiff-appellant in this respect is a supposed letter received from a certain “Candi”, dated at Amoy in November, 1936, purporting to give information that Luis Herrera (without mentioning his name) had died in August of that year. This piece of evidence was properly rejected by the lower court for lack of identification. the other hand, we have the testimony of the witness Chung Lian to the effect that when he was in Amoy the year 1940, Luis Herrera visited him and had a conversation with him, showing that the latter was still alive at the time. Since the documents had been executed the attorney-in-fact one in 1937 and the other in 1939, it is evident, if we are to believe this testimony, that the documents were executed during the lifetime of the principal. Be that as it may, even granting arguendo that Luis Herrera did die in 1936, plaintiffs presented no proof and there is no indication in the record, that the age Luy Kim Guan was aware of the death of his prince at the time he sold the property. The death of the principal does not render the act of an agent unenforceable, where the latter had no knowledge of such extinguishment the agency.²

Appellants also raise the question of the legality of the titles acquired by Luy Chay and Lino Bangayan, on ground that they are disqualified to acquire real properties in the Philippines. This point is similarly without me because there is no evidence to support the claim. In fact, in the deed of sale as well as in TCT No. 3162 issued to Luy Chay, the latter was referred to as a citizen of the Philippines. Nevertheless, the lower court acknowledged the probability that Luy Chay could have been actually a Chinese citizens.³ At any rate, the property was subsequently purchased by Lino Bangayan, as a result which TCT No. 3162 in the name of Luy Chay was cancelled and another certificate (TCT No. T-2567) was issued in favor of said vendee.

As to Bangayan’s qualification, the lower court held that said defendant had sufficiently established his Philippine citizenship through Exhibit P, concurred in by the Secretary of Justice. We find no reason to disturb such ruling.

With respect to Luy Kim Guan, while it is true that he is a Chinese citizen, nevertheless, inasmuch as he acquired his one-half share in Lot No. 4467 in 1931, long before the Constitution was adopted, his ownership can not be attacked on account of his citizenship.

Appellants, in this appeal, contest the judgment of the court a quo awarding defendants Lino Bangayan and Luy Kim Guan attorney’s fees in the sum of P2,000.00 each, and expenses of litigation in the amounts of P1,000.00 and P500.00, respectively. We agree with the appellant in this regard.

This Court has laid down the rule that in the absence of stipulation, a winning party may be awarded attorney’s fees only in case plaintiff’s action or defendant’s stand is so untenable as to amount to gross and evident bad faith.⁴ The same thing however, can not be said of the case at bar. As a matter of fact, the trial court itself declared that the complaint was filed in good faith. Attorney’s fees, therefore, can not be awarded to defendants simply because the judgment was favorable to them and adverse to plaintiff, for it may amount to imposing a premium on the right to redress grievances in court. And so with expenses of litigation. A winning party may be entitled to expenses of litigation only where he, by reason of plaintiff’s clearly unjustifiable claims or defendant’s unreasonable refusal to his demands, was compelled to incur said expenditures. Evidently, the facts of this case do not warrant the granting of such litigation expenses to defendants. In the absence of proof that the action was intended for reasons other than honest, we may agree with the trial court that the same must have been instituted by plaintiffs in their belief that they have a valid cause against the defendants.

WHEREFORE, and with the above modification, the decision appealed from is hereby affirmed in all other respects without prejudice to appellants’ right to demand from the agent (Luy Kim Guan) an accounting of proceeds of the agency, if such right is still available. No costs. So ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes and Dizon, concur.

Add comment September 16th, 2008

What the heck is the NBN deal all about?

Today I am about to attend a talk regarding the NBN deal and I have to admit that I still don’t have a firm stand regarding the supposed bribery and corruption that went along the said deal.  I am still at a limbo on who and what to believe.  For one, there are many claims and coutner-claims that surround the issue.  But what I am certain about is that I am to bound to believe the side or party who can and will produce solid evidences regarding the issue.   So far, all we have are testimonial claims and evidences, which canot be a solid ground to decide upon the matter.  Hearsays or testimonies can very well be corroborated.

Despite the current plight of the country on the issues on the NBN deal, we, as citizens, are duty-bound to know the issues surrounding the country’s present struggle.  We must be informed and make a firm stand on the issue.  We should not rely on what people or congregations say we should believe.  We must personally know the issues and assess it based on our own set of values, beliefs, and understanding.  As part of that duty, I am posting below the timeline, from Inquirer, of what happened during that deal.  I hope that this will help in assessing the issues and, at the very least, being informed about it.

LENGTH AND BREADTH OF THE BROADBAND DEAL:

JULY 12, 2006 — The Department of Trade and Industry executes a memorandum of understanding (MOU) with the Zhong Xing Telecommunications Equipment (ZTE) International Investment Ltd. to cooperate in the development and implementation of various investment activities in the Philippines, including the National Broadband Network (NBN) project.

JULY 13 — President Gloria Macapagal-Arroyo announces at the Clark Special Economic Zone the creation of a cyber corridor covering the cities of Baguio, Cebu, Davao and Manila and Clark. The corridor will host call centers and outsourcing companies and will be supported through additional digital infrastructure.

AUG. 1 — Ms Arroyo names Ramon Sales, head of the government’s Information and Communication Technology (ICT) as “focal personâ€? or coordinator for the Cyber Corridor.

AUG. 7 — ZTE Corp. submits to the Commission on Information and Communications Technology (CICT), an attached agency of the Department of Transportation and Communications (DOTC), a proposal for the NBN Project.

SEPT. 4 and 6 — ZTE writes to CICT regarding clarification on the project proposal and incorporating the suggestions of CICT.

SEPT. 8 — China Eximbank, through its general manager, Li Xiaoping, writes the National Economic and Development Authority (NEDA) informing that they are ready to exchange opinions and explore cooperation opportunities after China Eximbank and ZTE held discussions resulting in the conclusion that they may be available for transaction on the NBN project.

OCT. 23 — CICT endorses ZTE’s proposal to the NEDA for further evaluation and action.

NOV. 21 — Secretary Michael Defensor wrote to Minister Bo Xilai of the Ministry of Commerce, People’s Republic of China, to verify and confirm the interest of Chinese companies in arranging a comprehensive solution, to include financial and technical support, for the development and implementation of the NBN and Distant Learning projects of the Philippine government.

DEC. 2 — Chinese Ambassador Li Jin Jun informs Presidential Chief of Staff Michael Defensor through a letter that the Chinese government intends to support the NBN project and that China has designated ZTE as the contractor.

JAN. 2, 2007 — The DOTC receives a letter from Amsterdam Holdings Inc. (AHI) dated Dec. 5, 2006 informing the DOTC of its project, Orion Network, and requesting a favorable endorsement to NEDA. Also mentioned in the letter is a request for the government to designate the DOTC as the project’s coordinating agency.

JAN. 3 — NEDA requested the DOTC with TelOf (still under CICT) to take the lead in the preparation and implementation of Cyber Corridor projects taking into consideration the requirements of concerned end-user agencies. NEDA also requested for the submission of the necessary NEDA-ICC documents to facilitate processing of the project particularly the IP-based National Broadband Network Project

FEB. 13 — Executive Order No. 603 was issued by the President transferring the TelOf and all other operating units directly supporting communications from the CICT to the direct control and supervision of the DOTC.

FEB. 14 — NEDA refers to the DOTC for assistance and recommendation on the possible reconciliation of three similar proposals: 1) the Cyber Education Project (CEP) of the Department of Education (DepEd), 2) the NBN project endorsed by CICT (ZTE project proposal) and 3) the build-own-operate (BOO) NBN project of AHI.

FEB. 19 — DOTC/TelOf officials and personnel attended the meeting at NEDA Board Room to discuss the technical details and concerns on the NBN project.

FEB. 26 — ZTE submitted to DOTC copy of their NBN proposal which they have submitted to CICT and was subsequently endorsed by CICT to NEDA.

FEB. 27 — DOTC received another letter from NEDA dated Feb. 20, 2007 requesting for the submission/endorsement of a reconciled project proposal in view of the Feb. 13, 2007 joint NEDA-ICC and Cabinet meeting wherein the DOTC was instructed to sort out possible overlaps on the Cyber Education project of the DepEd and IP Based National Broadband Network Project of the DOTC/TelOf.

MARCH 1 — DOTC/CICT submits to NEDA the evaluation made on the three project proposals and recommends the implementation of a single government IP platform.

MARCH 1-20 — ZTE submits to the DOTC a revised NBN proposal with technical solution, project feasibility report, price summary, etc.

MARCH 23 — The DOTC endorses to NEDA the revised NBN proposal of ZTE.

MARCH 26 — The NBN project is presented to the joint ICC Cabinet Committee and ICC Technical Board meeting for deliberation and approval.

MARCH 26 — Ambassador Li Jin Jun writes a letter to Ms Arroyo, conveying that the Chinese government will fully support the NBN project of ZTE and the Distance Learning project of the DepEd.

MARCH 26 — AHI offered to build the NBN for the government for $242 million, questions the DOTC’s alleged bias for ZTE that offered to build the same facility under a $262-million government-to-government loan agreement. (Reported March 27, 2007).

MARCH 29 — The NEDA board approves the implementation of the NBN project.

MARCH 30 — ICT technical working group recommends the direct contracting mode in the procurement for the supply of equipment and services for the NBN project.

MARCH 31 — DOTC officials award the contract to ZTE, saying that AHI’s unsolicited proposal lacked complete documentation necessary for it to be considered.

APRIL 10 — BAC for ICT, considering RA 9184 and the recommendation of the TWG-ICT, have resolved to recommend that the procurement for the supply of equipment and services for the NBN project will be undertaken thru direct contracting and to refer the matter to the GPPB and NEDA for approval.

APRIL 16 — DOTC writes to GPPB and NEDA requesting for opinion and approval of the procurement process for the implementation of the NBN project, respectively.

APRIL 16 — TWG submits evaluation report and recommendation on the technical aspect of the draft as input for DOTC Legal Office’s final review.

APRIL 20 — Secretary Romulo Neri of NEDA writes to Minister Bo Xilai of Ministry of Commerce and Chairman/President Li Rougu of China Eximbank endorsing the NBN project for loan financing of the People’s Republic of China under the Preferential Buyer’s Credit Facility of China Eximbank.

APRIL 21 — Transportation and Communications Secretary Leandro Mendoza and ZTE vice president Yu Yong sign the $329-million NBN contract in Boao, China, in ceremonies witnessed by Ms Arroyo.

APRIL 24 — The GPPB advises DOTC that an opinion from the Department of Justice (DoJ) may prove relevant in the DOTC’s final determination on whether the NBN contract is entered into pursuant to Section 4 of RA 9184 mandating observance of executive agreements or Section 50 of RA 9184 on Direct Contracting.

MAY 28 — DOTC requests the Department of Finance to facilitate the availment of a soft loan from the China Eximbank.

MAY 31 — DOTC requests for opinion from the DoJ on the following issues: 1) whether or not the proposed NBN project can be considered an executive agreement by virtue of MOU signed between GRP (DTI through Secretary Peter J. Favila) and ZTE and subsequent “exchange of notesâ€? between representatives of GRP and GOC and 2) granting the NBN project is deemed to be an “executive agreement,â€? would the mode of procurement fall under EO No. 423, s.2005, on alternative mode of procurement (direct contracting) or under the last sentence of Section 4 of RA 9184.

JUNE 20 — Communications Assistant Secretary Lorenzo G. Formoso III discloses at a business forum the loss of the two “sovereignâ€? contract documents — one for ZTE and the other for the CEP.

JUNE 21 — The DoJ requests for clear and legible copies of the following documents: 1) letter of Ambassador of China Li Jinjun to Presidential Chief of Staff Michael T. Defensor dated Dec. 2, 2006; 2) contract for the Supply of Equipment and Services for the National Broadband Network Project between the DOTC and ZTE Corp. and 3) the Loan Agreement with the China Eximbank.

JUNE 26 — The Senate calls for an investigation of the broadband contract, saying that ZTE has been involved in “questionable dealsâ€? in other countries.

JUNE 27 — Mendoza says the NBN contract with ZTE is still subject to review by the Department of Justice and the Department of Finance.

JULY 11 — DOTC submits to the DoJ the requested copies of 1) letter of Ambassador of China Li Jinjun to Presidential Chief of Staff Michael T. Defensor dated Dec. 2, 2206 and 2) the reconstituted NBN contract.

JULY 26 — Justice Secretary Raul Gonzalez issues an opinion that says that the contract is an executive agreement and does not need to go through a public bidding.

AUGUST — Iloilo Vice Gov. Rolex Suplico asks the Supreme Court to nullify the ZTE contract for being unconstitutional and to stop its implementation.

AUG. 6 — The President’s legal adviser, Sergio Apostol, says the project cannot be implemented because the contract is nonexistent, having been stolen in China shortly after the signing.

AUG. 7 — Trade Secretary Peter Favila says the supposed ZTE contract is just a memorandum of understanding (MOU) or Memorandum of agreement (MOA) and not a supply contract.

AUG. 9 — DOTC confirms it has signed a reconstituted supply contract with ZTE.

AUG. 25 — The Philippines and China sign a $1.8-billion loan agreement, allegedly including an amount for the NBN project.

AUG. 27 — Favila says $400 million of the $1.8 billion is not meant for any particular project like the NBN.

AUG. 28 – Nueva Vizcaya Rep. Carlos Padilla lodges a criminal complaint against Mendoza and two assistant secretaries of the DOTC at the Office of the Ombudsman for allegedly “giving undue advantage� to ZTE.

AUG. 29 — Padilla, citing a column by Jarius Bondoc in the Philippine Star, tags Commission on Elections Chair Benjamin Abalos Sr. as the poll official who allegedly lobbied for the ZTE broadband contract. Padilla says Abalos played golf with ZTE executives in Shenzhen and at the Wack Wack Golf and Country Club in Mandaluyong City just weeks before the contract was signed.

AUG. 30 — Abalos admits that he and some ZTE officials were golfing buddies and that ZTE executives paid for his trips to China. However, Abalos maintains that he never helped the company to win the deal. Abalos says he and ZTE officials met with Finance Secretary Margarito Teves at Teves’ house in Alabang, Muntinlupa, “one afternoon last year,â€? but adds that the NBN project was not discussed.

AUG. 31 — Teves confirms that he was introduced to ZTE officials at a meeting with Mendoza and Abalos and that they talked about the NBN project.

SEPT. 1 — Abalos says he called Teves and that the latter supposedly apologized for saying that Abalos was present when the project came during a discussion in Wack Wack.

SEPT. 5 — Romulo Neri, former NEDA director general and now Commission on Higher Education head, neither confirms nor denies that he was offered P200 million to support the NBN project. (A Newsbreak report would later say that Abalos offered Romulo P200 million so that NEDA would “helpâ€? with the ZTE deal.)

SEPT. 9 — Ms Arroyo talks with Chinese President Hu Jintao about the controversial NBN project on the sidelines of the Asia-Pacific Economic Cooperation Summit in Sydney, suggesting that Favila and Chinese Commerce Minister Bo Xilai work together to resolve the issue.

SEPT. 10 — AHI asks the Supreme Court to compel Malacañang to give it a copy of the contract won by ZTE. AHI also seeks for a temporary restraining order on the implementation of the government’s deal with ZTE while its petition is pending.

– AHI cofounder Jose “Joeyâ€? de Venecia III says at a forum that the supply contract with ZTE is overpriced by about $130 million to cover “commissions.â€? He describes Abalos as appearing to be the “captainâ€? of those who were brokering the ZTE deal. De Venecia says Abalos offered him $10 million in December 2006 to back off from the project.

– ZTE denies bribing government officials to bag the $329-million contract, saying that its initial offer of $262 million grew to $329 million because the government’s requirements changed.

SEPT. 11 — Acting on the petitions of Suplico and AHI, the Supreme Court issues a temporary restraining order on the implementation of the NBN project.

– Sen. Panfilo Lacson calls the President the driving force behind the deal with ZTE as he came out with a “reconstitutedâ€? copy of the supply contract.

SEPT. 12 — Sen. Juan Ponce Enrile says the “reconstituted copyâ€? Lacson presented was merely a supply agreement and that the more binding contract, the financial agreement, has not yet been approved.

In a letter to the blue ribbon committee, Mendoza begs off from attending the Senate hearing on the NBN project, saying that the two pending cases in the Supreme Court seeking to block the ZTE deal prevent him from speaking out on the matter.

SEPT. 14 — De Venecia says in an affidavit dated Sept. 11 that he was wiretapped by Abalos to monitor his conversations with ZTE officials and that it was Abalos himself, in a fit of rage, who admitted the offense sometime in February. Abalos denies the wiretap allegation and says that his lawyer is preparing to file several libel charges against De Venecia.

De Venecia says that a “mystery man� is part of the cast of characters behind the $329-million contract, but says he will reveal the person’s identity only if asked at a proper legal forum.

SEPTEMBER — De Venecia says he has received threats from powerful persons, including one that supposedly came from Mendoza’s camp. Mendoza scoffs at this allegation, calling it a “fairy tale.â€?

SEPT. 17 — The President’s husband, Jose Miguel Arroyo, boards a plane for Hong Kong on the eve of the Senate hearing on the NBN deal.

SEPT. 18 — De Venecia admits to the blue ribbon committee that the “mystery manâ€? is the President’s husband.

De Venecia says it was at the “reconciliation� meeting in mid-March at Wack Wack that Arroyo, whom De Venecia assumes was asked by Abalos to talk to him when Abalos failed to talk him out of the project, shoved a finger at him and told him to “back off.�

Other personalities present at the meeting other than himself, Arroyo, Mendoza and Abalos were Jimmy Paz (Abalos’ chief of staff), Quirino de la Torre (Abalos’ security staff), Ruben Reyes and Leo San Miguel.

In his testimony, De Venecia quoted his father as saying that Ms Arroyo asked Abalos during a golf game in Shenzhen in October last year why ZTE could not just undertake the project the way AHI had proposed (at no cost to the government).

The First Couple and Speaker Jose de Venecia Jr., during a 10-city visit in China, were invited by the ZTE president to play golf. Abalos was one of the guest players.

SEPT. 19 — Arroyo, through his lawyer, confirms that he met with De Venecia at Wack Wack, but says it was “a purely chance encounterâ€? that did not include his barking at the businessman to “back offâ€? from the NBN deal.

Arroyo says that he merely “reminded� De Venecia that his being the Speaker’s son made it inappropriate for him to get involved in government contracts. The President’s husband denies that Abalos was at the meeting, saying that only he, De Venecia and Mendoza were present. De Venecia says Arroyo’s version of the meeting was “totally false.�

SEPT. 20 — Mendoza confirms at the second Senate hearing that the meeting took place and reiterates what Arroyo had declared through his lawyer that Arroyo did not raise his voice.

Mendoza even describes Arroyo as “mild-mannered,� while portraying De Venecia as someone who dogged him and went to see him in his office “several times� to follow up on his firm’s unsolicited NBN proposal.

After the hearing, Mendoza tells reporters that it was the Speaker, the younger De Venecia’s father, who aggressively lobbied for his son’s firm to bag the contract.

Favila says he is open to modifying or even rescinding the NBN deal and says he will talk to his Chinese counterpart, Trade Minister Bo Xilai, to discuss other options to undertake the NBN project, including its “cancellation or abrogation.�

SEPT. 22 — The President suspends the NBN project “indefinitely,â€? but senators say they will continue the probe despite the suspension.

SEPT. 24 — Ms Arroyo allows Neri, who failed to attend the Sept. 20 hearing due to “intestinal flu,â€? to attend the Senate probe. Earlier, Press Secretary Ignacio Bunye said Neri was part of the President’s official delegation to the United Nations General Assembly that is scheduled to leave for New York the next day, but Neri himself later told reporters that his trip had been canceled.

SEPT. 25 — The President discloses at a meeting in Malacañang that she had the NBN project “discreetly investigatedâ€? and found that the reports of bribery tainting the project were “uncorroborated.â€?

SEPT. 26 — Neri admits at the Senate hearing that Abalos offered him P200 million in exchange for giving the approval on the NBN project. Neri says he mentioned the bribe offer to Ms Arroyo, who he says told him to decline it.

De Venecia reiterates his earlier claim that Abalos offered him a $10-million bribe, which the Comelec chair vehemently denies. Abalos also denies brokering the NBN deal for ZTE.

Add comment March 12th, 2008

National ID System: For the Go or Forego

The case of Ople vs. Torres in 1998 paved the way to the feasibility of a National ID System. The case centers around the validity (constitutionality) of A.O. No. 308 (National Computerized Identification Reference System). It was found to be unconstitutional for posing a threat to the right to privacy. The court says that to be valid, it must be narrowly focused and a compelling interest must justify the law’s intrusion to individual rights. Moreover, intrusions into the right must be accompanied by proper safeguards and well-defined standards, which is lacking in the proposed system.

(Here is how a National ID System usually works)

Now, in a command conference in Camp Aguinaldo, the AFP has made a recommendation to President Gloria Macapagal-Arroyo to revive the National ID System. AFP spokesperson, Lt. Col. Bartolome Bacarro said, “The recommendation for the revival of the national ID system is to accelerate accomplishing the [President’s] marching orders given to the AFP [to eradicate the communist insurgency by 2010].�

PGMA expressed her favor for using the National ID System to “provide services to our citizens”, particularly on government departments like Social Security System (SSS) or the Philippine Health Insurance Corp. (PhilHealth). The main point of its implementation would be on having a greater coordination between government agencies, with the end of overcoming the threat to our national security.

However, Interior Secretary Ronaldo Puno said that it is not possible to implement it within the year because we are not prepared, at this moment, to use a consolidated singular ID. It would take some time to complete the system analysis of all ID schemes, but we are getting there. Hopefully, this recommendation will be approved and the law will be perfected in no time.

Add comment January 8th, 2008

DOJ website hacked: NBI is now on the hunt

A felon is a felon, whether it be against a private individual or the government!

YEZ! Last thursday, Jan. 3rd, some felons greeted DOJ with a big surprise for the New Year. For a few hours, visitors of the Department of Justice’s website saw Wizard of Enchanted Kingdom, instead of Justice Secretary Raul Gonzalez.

 There was no major disruptions in the operations of DoJ, but the incident remains to be a great mockery and an on-the-face insult to the department. If hackers can access even the government department’s websites, how much more private individual’s websites.This poses as a warning to different business establishments as well who uses the internet as a means of a selling point or keeps record or uses the worldwideweb as a means of communication. Important files on the net may no longer be safe and we all have to be cautious.

The DoJ website was hosted by PLDT, who has promised to investigate the event as well. As of now, the NBI is also conducting their own probing and hunt for who is liable for the hacking. Note that hacking is punishable under Republic Act No. 8792 or the E-commerce Law. As Sec. 33 of the said law provides:

“SEC. 33. Penalties. - The following Acts shall be penalized by fine and/or imprisonment, as follows:

(a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption,destruction, alteration, theft or loss of electronic data messages or electronic document shall be punished by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;…”

Add comment January 4th, 2008

MACBOOK PRO STOLEN on CHRISTMAS! 40K REWARD

(I’m posting this to help the victim..to what’s the least that I can do)

STOLEN: Macbook Pro 2.4GHZ, 2GB RAM, 120GB HDD - SERIAL # W8732099X92
WHEN: DEC.23,2007
WHERE: Tagaytay City
REWARD: P40,000 for recovery and information leading to recovery
CONTACT: MARK DE LOS REYES, 0917-893-2392

My sister’s Macbook Pro laptop was stolen last DEC. 23 from our home in Tagaytay. Someone had taken her laptop from a table inside our house while it was charging. Charger, and case were taken as well. My sister is supposed to graduate this coming year and all her work files were in that computer. (my christmas gift to her was an external hdd for her to back up her files, but unfortunately the laptop was stolen before she could use it.) Her thesis and a lot of her design work remains inside, so the laptop’s contents are more valuable to us than the actual laptop. The computer is passworded, so it is likely that the person who has it will bring it to a store or shop to have the hard disk reformatted.

Please spread the word among technicians and other apple stores so that this laptop may be found soon. My sister’s career depends on it.

Hopefully we can all still have a happy new year.

-Mark De los Reyes
0917-893-2392
timdlr@gmail.com

Add comment January 3rd, 2008

Media ‘processing’ - Rightful or a Violation of a Right?

The recent Trillanes coup (attempt) gave rise to but another controversy that the State is now faced with. Right after the surrender of Trillanes and his supporters, the police force proceeded in gathering all the media people involved, or were together with Trillanes’ team, inside the Manila Peninsula Hotel. The policemen explained that it was for a short inquiry or processing, to verify the media people’s identity and/or participation with the coup (attempt).

It must be noted that before the said processing, the media people were forewarned and asked to leave the premises for their safety and to easily facilitate the negotiation and/or arrest of the group of Trillanes. But the media people did not listen and chose to remain inside the Manila Peninsula, for some personal or competitive purposes. In that light, the media people became instruments to obstruct, or at least make it more difficult, for the police force to execute its plans in order to end the nuisance at once.

The press plays a very important role in the society. It shows to the world what is truly happening in a micro and/or macro prospective. It influences the way people think and perceive things. It can even create a certain culture or belief, if it wishes. It can also serve as a cover up for protection by some accused. And the latter is exactly what the policemen wish to avoid in heeding for the media to move out of the premises.

To some people, the media’s act was heroic and shows true dedication in the service of nation in showing what is happening to the world. But to some it is pitiful, in sane, or worse, a conspiracy to protect the accused. As a dear Constitutional Law professor, Dean Andy Bautista, has mentioned, “It is just like in a burning house! We cannot absolutely deprive the owners of the house to go inside and save some belongings, but as a rule of duty, we must do so for their protection. Now if they insist in doing so, they may do so, but not without taking the risk for themselves.” The media people, in insisting to stay inside the Manila Peninisula during the coup (attempt), should bear the hassle of any processing, inquiry, or whatever procedure that the police enforcers may require them to undertake. That is not just for their own safety but more for the nation’s security, knowing that some Magdalo can very well be in a disguise as a media man, simply to effect an escape. I am sure that a true dedicated serviceman wouldn’t want someone (an accused) to use his/her name (service) as a means of escaping liability from the State.

So now we come to the famous question of whether the holding made against the media people constitutes an arbitrary detention or a violation of the freedom of the press and a deprivation of their right w/o due process of law. Due process of law, as well as the equal protection of the law, is provided for in Article III, Section 1 of the 1987 Philippine Constitution:

Section 1: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws”

Due process, as contemplated by the law, can either be ‘Procedural due process’ or ‘Substantive due process’. Procedural due process requires a step-by-step procedure of how a law (or a thing) shall be implemented, and faithful execution according to the prescribed procedure is tantamount to compliance with due process. On the other hand, Substantive due process is the absence of arbitrary laws and questions the very essence or substance of the law itself, as whether it is just or not.

Without a doubt, the policemen has complied with the proper call of procedure in dealing with the media men. The processing is applied to ‘all’ members of the press, without distinction as to who is famous or not (shame to those who were even proud of being able to escape from this process). Now, the last question is whether there was an actual need for the said processing, it is ’substantial’ and just? I personally believe that the police enforcers had a reasonable ground to conduct the said processing. It is paramount to public interest that they assure that they are not setting free the people liable to the distress that just occurred. The main consideration for the act is the general welfare of the community, especially those within the surrounding vicinity. Hence, there is no violation of due process, whether procedural or substantive.

I would like to end this with a call on the press for a balanced judgment. It was obvious from the interviews with Trillanes how their group push and pursued on using the media as a means to get the sympathy of the people and/or as a cover (protection) from the armed forces. For a couple of times, they insisted on the fact that the present administration is willing to sacrifice the media people just to get what it want. By mid of their act, they were firm on their stand that they will not surrender, no matter what. And at the end of the day, they moved on to say that they will surrender since their conscience cannot take it, to put the media peoples’ lives at stake, as compared to what the administration was willing to sacrifice. On the other hand, many believe that the real reason behind the surrender was the fact that no one heeded their call. They received only a minimal support, if not none, that is not sufficient to actually bring their mission to success, and so they surrendered and gave the lame excuse of ‘for the sake of the press’, again to gain sympathy and the side of the press. Whereas, in the first place, they are the ones who put not just the press but the whole nation at stake. They put at stake the slowly growing and recuperating economy back to zero. Investors were threatened, tourists were frightened, citizens were sacrificed. How can one call for a positive change if he himself is the greatest contributor for a nuisance. Clearly, everyone must rethink things out.

Add comment December 2nd, 2007

Trillanes walks out to march along Makati..

Inquirer reports today…

MANILA, Philippines — (UPDATE) Detained Senator Antonio Trillanes IV and other officers accused of leading the July 2003 rebellion walked out of their trial Thursday and marched through the streets of Makati calling for the ouster of President Gloria Macapagal-Arroyo.

The walkout began shortly after the trial resumed after a brief recess. Brigadier General Danilo Lim, who himself is detained and facing coup d’etat charges following an alleged failed coup attempt in February 2006, was pulled away by several soldiers from the witness stand.

Trillanes and Lim said they were calling on the Filipinos to withdraw support from the government because the President has corrupted its institutions.

“We are joining the people… because the President continues to violate the Constitution of the Philippines repeatedly,� Lim told DZMM’s Teleradyo program, adding they were “calling for the removal of an illegitimate President.�

Trillanes, Lim and the other accused soldiers were joined by civilians, including a group of militant farmers and opposition figures led by former vice preisdent Teofisto Guingona.

It was not clear if the prisoners’ guards had joined the protest, but they marched along with the accused.

Add comment November 29th, 2007

Citizen Joseph Ejercito Estrada

“Former ‘The King’ action star turned President turned Jail-man, now a free Citizen of the RP”

The life of Mr. Joseph Ejercito Estrada is full of surprises and the whole Philippines witnessed the ups and downs he went through in life. From being the famous action star, he entered the world of politics, which made him and broke him, at the same time. I, personally, pity the plight that he had to go through. Many believe that Estrada is, indeed, a good man but was too kind and gullible, thus, was swayed easily by people surrounding him.

He was born in April 19, 1937. His birthplace, Tondo, is one of the poorest parts of Manila, the capital of the Philippines. Took up Engineering at Ateneo de Manila. He was expelled. His family was displeased with his dropping out of college and his involvement in a street gang that they forbade him from using his family name, thus, he adopted the surname “Estrada” (Spanish for ‘road’) as a last name.

He used to work as an ambulance driver before trying his hand on acting. When he entered the showbizness, he often played heroes of the downtrodden classes, which gained him the admiration of a lot of the nation’s many unschooled and impoverished citizens. This later proved advantageous to his political career. He was the first actor to be inducted in the FAMAS Best Actor Hall of Fame of the Filipino Academy of Movie Arts and Sciences in 1982. He also became a Hall of Fame awardee as a producer. A double feat that no one has ever achieved such so far. He played the lead role in more than 100 movies, and was producer of over 70 films.

Estrada entered politics in 1967 by running for mayor of San Juan. He came to be known as the ‘Man of the Mass’. He had a heart for the poor and the downtrodded loved him, making him win as the President of the Philippines in 1998. As a President, he faced a lot of criticisms. A lot of people questioned his capabilities to run the country, some even attacked his personal capacity and background, but one thing is for sure, he did really won the 1998 election with the mass support he got. Later in 2001, he was accused for corrupt practices with his involvement in some jueteng money and was imprisoned for six years until his final verdict, which affirmed his conviction last Sept. 12, 2007.

Sandiganbayan declared him not guilty on the count of perjury but was found guilty beyond reasonable doubt on his plunder case and was sentenced to reclusion perpetua (or imprisonment of 20 to 40 years, carrying with it the accessory penalty of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon ~ Art. 41 of RPC)

Upon the imposition of the final verdict against the former president, Estrada even told the AFP that he was resigned for the latest drama in his presidency, the last and best performance of all. While the prosecution’s lead counsel Dennis Villa-Ignacio (by beloved professor in Criminal Law 1 at the Ateneo Law School, Rockwell) proudly asserted: “It shows that our judicial system really works.This is the last chance for the state to show that we can do it, that we can charge, prosecute and convict a public official regardless of his stature.”

However, another episode arose from the supposed ending of Mr. Estrada’s story. He was recently granted pardon by President Gloria Macapagal Arroyo and again many people criticized the grant given to him. From the standpoint of SP Villa-Ignacio, he told us once, in class, that he has no problem with the grant of pardon if ever, it is up to the President. For them, they have proven that there is still justice and that what’s most important is that the money that Estrada got from illegal transactions be recovered and be given back to the the sovereign, where it truly belongs. After all things said and done, the end is yet to be uncovered. We all have to be part of this ending, not by doing protests and creating noise that put no end to controversies, but by starting peace within ourselves. If the real players in the battle can forgive and time can heal, who are we to play the judge. I am no Estrada fan nor a supporter. I was one among the first who condemned and hated him from the day he stepped his foot at Malacañang. But nothing has happened, and nothing will happen if we’ll all stay in one corner and gnashed our teeth in dismay for the government or for the people in the government. We’ll have to step up and take our own roles as part of this State. Mind you, but we all have a role to play (or at least a role not to play). Everyone simply wants peace and order for the nation.

Oppositions may play an important role at times but too much oppositions brings out nothing. Our government is being crippled by too much criticisms that it is no longer able to do its job, which the people elected are well capable of doing, but they can’t because of too much politicking, publicity, criticisms, etc. The People Power we had, indeed proved a lot about the sovereign’s capacity to oust an unwanted or improper official. But even that power, when put into abuse as a threat to all officials, becomes evin in itself. We scare away good servants. We drive away sincere public service. And worst of all, we throw justice away to the pit of greed and self-interest. I am not saying that we should all forgive Estrada and put behind the wrong things he has done to the country. But it might be helpful to look forward than backwards, and help each other to move on and sail the country back on its way. IT IS TIME TO GO! As the former Pres. Estrada has gone away from his jail. It is time for the Philippines to head on from the bad memories of the past. We must all take our role and take the lead…on our own little way.

 

Add comment October 30th, 2007