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The Original Sin and the Continuing Crime
By mlq3 Posted in Daily Dose on March 10, 2008 304 Comments 15 min read
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080308_03co_640.jpgMy column for today is Cory, Erap, Binay, Noli, Satur and J-Lo, which discusses the question of whether united front politics have any value at this time (a very observant peek at the administration’s coalition building was in Patricia Evangelista’s Sunday column, Gangs of Manila). In my column, I point to Hello, Garci as the Original Sin and the abduction of Jun Lozada as the Continuing Crime (see Reflections on the Bangsa Moro here and here).

Concerning the Original Sin, it’s frustrating to me that much of the refusal to take the issue seriously comes from the childish argument “they all cheat anyway,” which, even if true, is beside the point: a generalization is as nothing when confronted by a specific case of someone caught.

Anyway, it also frustrates me that people insist there is no evidence, or that what evidence is hearsay, only. For their part, supporters of the late Fernando Poe, Jr. have been doing a thorough study of the fraud in the 2004 elections, and doing so, mind you, without attracting publicity or calling attention to themselves. Generally, their efforts have identified the fraud as having had three phases:

1. The disenfranchisement of voters in areas that were opposition-inclined, and the increase of voters in administration bailiwicks.

2. The systematic padding and shaving of votes, particularly in Luzon and the Visayas, to preserve the expected percentages of the candidates but which would result, over-all, in decreasing opposition votes and shifting those votes to the administration.

3. An emergency, in many ways, ad-hoc effort to secure a winning margin of votes after the results of voting in Luzon and the Visayas showed that the first two phases still hadn’t managed to obtain a winning margin for the President; in the emergency operation in Mindanao, the President micromanaged the effort, which was clumsily undertaken, and the first to be exposed.

The research of the FPJ supporters took two years to undetake, particularly because phases 1 and 2 were quite sophisticated. But they cracked the system and I’ve been nagging them to circulate their findings so the public can study their arguments. Finally, they’ve begun doing so and here’s the first of several PowerPoint presentations you can download, study, and dissect (and rebut, if you wish).

Here it is, examining phases 1 and 2 of the 2004 cheating: 2004 Electoral Fraud PPT Presentation 1 (click the PCIBChartsData12.ppt link)

Yesterday’s Inquirer editorial called the administration Spratley’s policy a Slithering policy.

As I mentioned in my entry Today the Spratlys, tomorrow Palawan (updated) , it’s well worth reviewing our Constitution. I’d referred to the relevant article before, but not the crucial last sentence which I’ve highlighted, see this extract from Article 12: National Economy and Patrimony:

SEC 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical of financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

The Secretary of Justice says he read the agreement and that nothing in it violates the Constitution. As far as his statement goes, he is correct. But as Carandang suggests below, it’s what the President did, after the agreement was signed, that could open up Constitutional questions. If the Constitution requires the President to inform Congress of any contract, then the question is, did she inform Congress? The contract itself pledges the parties to secrecy, except for authorized government agencies, clearly adhering to our own Constitution requirements; but did the President then comply?

In his entry yesterday, Ricky Carandang continues his ongoing investigations into what, really, the Spratleys deal is all about, and its potential infirmities, constitutionally and otherwise. It was an effort to wiggle out of constitutional requirements by calling a spade a preliminary earth-moving device:

Note that the President is allowed to enter into agreements with foreign corporations to explore for oil, provided this is done in accordance with the law and provided Congress is notified of the agreements within 30 days of its execution.

Congress was never notified of the agreement and the Palace had no intention of doing so. In fact, the agreement has never been released to the public. So how did the Palace lawyers get around this?

By simply referring to the agreement as a pre-exploration activity.

The palace geniuses and their allies pushing for the deal argued that by labelling the seismic study as a pre-exploration activity, it did not constitute exploration per se, and therefore they had no obligation to notify Congress. But others raised the issue that seismic mapping was in fact already part of the process of exploration. In their eagerness to sign the deal, they said by simply referring to it as a pre-exploration agreement that would be enough to circumvent the constitution. The problem is simply declaring it as pre-exploration doesn’t necessarily make it so. But that’s why the text of the agreement refers to it as a pre-exploration activity. And that’s why the [Palace] press release above made it a point to say that the agreement was not an exploration agreement, but merely a study.

The problem is that any oil industry expert will tell you that seismic mapping is in fact, part and parcel of exploration activity. In the oil exploration business, pre-exploration activity consists of mostly of studying the regulations, lining up the financing, and obtaining the licenses and the other government approvals necessary to begin exploration. Again, don’t take my word for it. Do the research. Talk to oil industry experts. Google “oil exploration” or “seismic exploration” and you’ll see ample literature out there on seismic studies and how they constitute part of exploration.

Case in point: In 2002 the Department of Energy granted an oil exploration company called Forum Energy a license to explore for oil and gas in the Reed bank of Western Palawan. The license was called Geophysical Survey and Exploration Contract (GSEC) 101. A GSEC, as its name implies, is a license to explore for oil or gas in our territorial waters. As you can see, seismic surveys are part and parcel of exploration activities. Their exploration gave them enough reason to believe that GSEC 101 contained oil and gas in commerical quantities, so Forum applied to convert their GSEC into a Service Contract (SC). Normally, having given a company a GSEC, the DOE would grant the SC as a matter of course. After all, if you let them explore, you would also let them drill. But unexpetedly, te DOE balked at convefting Forum’s GSEC into a SC, something that almost never happens.

The problem with Forum was that after the Philippines and China (and later Vietnam), signed the Spratly deal the Chinese government began to apply pressure on the Philippine government not to convert Forum’s GSEC into a SC, because GSEC 101 was part of the area included in the joint exploration deal. In asserting its rights under the Spratly deal, China is now questioning the granting of exploration licenses in an area where we were already granting drilling licenses to private companies. As far as I know, China did not contest the granting of the GSEC to Forum in 2002, but the Spratly deal has emboldened China to do that now. Forum saw the writing on the wall and sold its stake in GSEC 101 to Monte Oro Resources and Energy, a local firm partly owned by Walter Brown of Philex and and reportedly, Enrique Razon of ICTSI (yes, there’s a story here which I will save for a later date).

As we can see from this example, the Spratly deal has already weakened our claim on certain territories we claim as our own, like Palawan.

In view of the preceding sentence, see RP knew Spratlys exploration ‘too close’ to Palawan. See also 6 Philippine-occupied islands covered in Spratly agreements. As with all the ongoing scandals, the net keeps catching more than the usual flotsam and jetsam: De Venecias, Razon behind oil, gas extraction by UK firm. The only question is, as Senate to start new probe on Spratlys exploration, is, will it serve as a distraction from the NBN-ZTE deal? Perhaps not, as it’s all related, anyway.

And as usual, it’s the behavior of the Palace that validates the old saying that where there’s smoke, there’s fire. Instead of asserting that its embarked on a visionary initiative, the Palace’s reaction is to duck responsibility: Spratlys project put on hold as Chinese ODA mess rages. And not only ducking, but it’s trying to pass the buck: Palace: Let De Venecia explain Spratlys deal. But the problem with this is that if the ex-Speaker acted as the broker, his brokering the deal required presidential approval. The Palace is probably calculating that de Venecia will not want to incriminate himself and so, won’t incriminate the Palace. And others who may be considered collateral damage in the deal, won’t spill the beans either: Mañalac knows more than Spratlys deal: The hotshot geologist was fired for allegedly blocking Palace interest. But by all accounts, even if summoned to the Senate, he won’t talk beyond confirming that the contract he signed was, to the best of his knowledge, constitutionally-sound (and as I’ve pointed out, probably so, up to the point of signing but not thereafter).

The Palace itself has acknowledged what’s at stake: Gonzalez: 3 trillion cubic feet of gas at stake in Spratly deal.

For reference, since Text of Spratlys agreement disappears from DFA site (sourced from Newsbreak):

Agreement-Bilateral Marine Seismic Undertaking.pdf.

and

Tripartite Agreement-Marine Scientific Research.pdf.

As for what seismic exploration is, it’s explained in NaturalGas.org. See also the Encyclopedia of Earth entry. Greenpeace states, unambiguously, that seismic exploration is “the first stage of oil and gas exploitation in an ocean area.” How everything comes together can be gathered by looking at the processes (and incentives) granted by the Nigerian National Petroleum Corporation:

The investment opportunities in the downstream are many. Some of them are:

Refining, Petrochemicals and Gas Utilization

In order to reduce the investors’ risk, speculative seismic data acquisition is carried out in the deep offshore using the services of reputable data acquisition companies. In the inland area, there is direct involvement in exploration activities.

For his part, Mon Casiple says one problem is that there are oppositionists more interested in dribbling the ball than in going for the game-winning three-point shot:

In the meantime, the Senate plans to continue the hearings–possibly with new witnesses–amidst a spreading and more organized public campaign against the Arroyo administration. This maintains pressure on the president while avoiding an immediate decisive confrontation that forces a GMA resignation.

A prolonged crisis scenario without a decisive ending favors those who do not want GMA to resign immediately and therefore usher in a Noli de Castro presidency. If the crisis does not force their hand, they would want to prolong things and bask in the priceless public fascination with the scandal.

What I think we have here is a dribbling of the ball. Meantime, there are unforeseen consequences–not the least of which is a possible polarization of the situation.

The ultimate futility, politically speaking, of arguing that the economy is doing well to justify turning a blind eye to official corruption,is exposed by Amando Doronila in ADB report links RP corruption to investment dip (here is the ADB paper he commented on:critical-dev-constraints.pdf.) The futility of that argument is further demonstrated by the results of parliamentary elections in Malaysia. No one can doubt that the ruling party had put in place an economic policy resulting in growth. But along with inflation, it was the issue of crime, including allegations of widening official corruption, that forced the Prime Minister to call for early elections and the elections resulted in the defeat of the ruling party -the first since 1967. See Malaysia’s Leaders Suffer Setback in Time.com, and Malaysia’s ruling coalition suffers stunning blow Malaysia’s ruling coalition suffers stunning blow and Shock election result for Malaysia’s ruling party in the Financial Times. Incidentally, t seems a blogger, Jeff Ooi, has also been elected as an opposition MP!

People interested in questions of autonomy might want to take a look at The coming pain in Spain in The Economist, which discusses the reasons why Spain’s ruling party faces a tough time at the polls.The problems of bureaucratic reforms is also tackled in another Economist article, What’s holding India back?

In All Roads Lead to Rove, Slate’s Dahlia Lithwick looks at a book by one of the attorneys fired for partisan political reasons by the Republicans, an issue the writer says was raised “some zealous congressional oversight and award-winning journalistic coverage” by a blogger. The question of executive privilege has also been raised in the United States, particularly as the present American administration keeps mutating its definition:

As Mukasey has argued and Jonathan Turley has decoded, the Bush administration formulation of executive privilege constitutes a perfect legal möbius strip: “[L]awyers cannot commit crimes when they act under the orders of a president – and a president cannot commit a crime when he acts under advice of lawyers.”

In Questionable privilege? Alex Pabico of the PCIJ introduces readers to Executive Privilege Versus Public Interest by Atty. Nepomuceno Malaluan, which provides an exhaustive overview of executive privilege issues that have arisen in the Senate. In his column today, Fr. Joaquin Bernas, S.J. dissects the proposed compromise peddled by the Supreme Court in Anatomy of a rejected compromise.

Starting at midnight tonight, there will be a major transport strike: Provincial bus operators to join strike; government fielding free transport. The cost of oil is just one of the bread-and-butter issues of which every government has a horror: today’s Inquirer editorial calls it a Food emergency. See Prices of rice seen high in all of 2008 and RP, others hurting as rice price skyrocket and DTI heeds flour millers’ appeal, but . . . and

And in another triumph of the rule of law, Imelda not guilty of dollar salting.


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  1. To Jeg: on “The SC incredibly ruled that Susan Roces had no legal personality to pursue the case after FPJ died.

    Underpinning the SC ruling is the recognition that not every accused person is actually guilty of committing a crime; that it is the obligation of the State to protect the rights of its citizens which includes the presumption of innocence until proven guilty and the right of the accused to face the accuser.

    Don’t be quick to believe that “rule of law” is discretionary. The next accused may be you, or your friends.

  2. I dont get it, UPn. In this case, Susan Roces accused GMA of electoral fraud. Susan Roces is a citizen and she is alive. GMA could face her accuser.

    (I have to admit thought that the facts of the case is hazy to me. I dont recall the details and most likely got them wrong. But theoretically, do you think that Susan could not accuse GMA of fraud?)

  3. Jeg,

    “Yes. But this time I read a shrug in your comment. 🙂 One of the great insights of the American jury system is that the jury not only judges the facts of a case, they can also judge the law. Jury nullification has occurred in instances when the jury felt the law was unjust. Juries are the last line of defense against the power abuses of the authorities. We dont have that here. Perhaps we will one day as we mature as a people. We’re still a young country.”

    bencard may be the best one to evaluate your comment.

    but let me take a shot at it – it may not be correct to say that the jury can also judge the law. an american jury is purely a trier of fact. a jury still gets guidance from the judge on the law. a jury does not nullify decisions; the judge nullifies a jury decision (i think it is called a directed verdict, am i right bencard?)

    i don’t think having a jury is a sign of ‘maturity’. there are a lot of non-jury trials in the US.

  4. Anthony Scalia, if the opposition won by cheating and they’re now in power (without using the resources of the office of the president), those who lost will now be fighting for their ‘lost’ position right? But now that the cheaters are in position, it’s just normal that the losers who believe they lost because of cheating will fight.

    If the administration has proof that the opposition cheated then why not bring it to the courts? The obvious answer is a question, what for? It’s not the issue here though. It is a number of people that believe there was cheating done by the administration, and that the Hello Garci recording is one proof. If you believe that there’s no hard evidence of cheating, you can continue to do so.

    Please continue your job creation thing, that’s very commendable. I hope there are more Pinoys like you. On the other hand, it doesn’t stop you from joining this forum, it doesn’t stop you from finding the “truth”, right?

  5. Jeg: jury decisions to acquit are usually allowed to remain because of double jeopardy : that a defendant can not be tried twice for the same crime on the same set of facts.

    It appears that for Canada (vic will have to speak up) despite what their Charter of Rights/Freedom states, Canada laws allow the prosecution to appeal an acquittal. AND if the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgment would have been annulled.

  6. Jeg: Maybe if it was a tandem FPJ-Prez/SusanRoces-VP and they both lost, then Susan Roces has a claim. But if she is filing for civil damages — “loss of income and stature” as First Lady — despite it sounding heartless, I’ll agree with throwing out the case.

  7. “cvj – just to be clear, modern society, as world history would have it, is reckoned from the 1830s thereabouts.” – Maginoo

    Sorry, missed this one. I agree. By some accounts, it may even be earlier.

  8. Jon Mariano,

    “Anthony Scalia, if the opposition won by cheating and they’re now in power (without using the resources of the office of the president), those who lost will now be fighting for their ‘lost’ position right? But now that the cheaters are in position, it’s just normal that the losers who believe they lost because of cheating will fight”

    but the cheating protesters are not coming to court with clean hands

    “If the administration has proof that the opposition cheated then why not bring it to the courts? The obvious answer is a question, what for? It’s not the issue here though. It is a number of people that believe there was cheating done by the administration, and that the Hello Garci recording is one proof. If you believe that there’s no hard evidence of cheating, you can continue to do so.”

    i can’t answer for gloria et al. but i think any effort to run after opposition cheats will just be deemed a form of vendetta (they wont be coming to court with clean hands also)

    er, as for ‘Hello Garci’ – i strongly suggest you hold any conclusions for the meantime until you heard all the pure unadulterated tapes in the possession of Sen. Kit Tatad. The impure adulterated versions of eager beaver, bayani- and clarissa-ocampo-wannabe Alan Paguia are dubious!

    “Please continue your job creation thing, that’s very commendable. I hope there are more Pinoys like you. On the other hand, it doesn’t stop you from joining this forum, it doesn’t stop you from finding the “truth”, right?”

    thanks. right. if i may stress this, there are pro-gloria congressmen back in 2005 who voted for impeachment, because they believe that impeachment proceedings are the best forum in ‘knowing the truth’.

    yes, i join you in the ‘search for truth’

  9. Jeg,

    electoral protests are personal to the protester. it does not survive him if he dies while his protest is pending.

    but there are other non electoral cases in which the heirs of the dead litigant will simply substitute the latter in the case, and the case continues

  10. Scalia: an american jury is purely a trier of fact.

    As usual let us turn to that font of human knowledge, Wikipedia:

    “Jury nullification refers to a rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what the law is or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be, or the legitimacy of a law itself. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a “dead-letter” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law. Jury nullification is a reminder that the right to trial by one’s peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.”

    From the article Jury Nullification. (//en.wikipedia.org/wiki/Jury_nullification) Emphasis added.

    Bencard’s opinion would be useful, but I think being an ‘order’ guy, I suspect he doesnt like it.

  11. “electoral protests are personal to the protester. it does not survive him if he dies while his protest is pending.” – Anthony Scalia

    Public Office is not an inalienable right (like life, liberty and property) of the candidate, so the protest should not be limited to the losing candidate. To safeguard the integrity of the process, even those who are not candidates should be able to lodge a protest.

    This is the spirit behind having UN election observers in election hot spots around the globe. That’s also the spirit behind having citizens watchdog groups like One Voice or NAMFREL. Everyone who has a stake in the system should be an election observer whether they belong to the losing, winning or neutral side.

  12. May I point out a non-sequitur if you dont mind, Scalia? There are kids reading this and they might learn something. Of course this is also an invitation for you to find flaws in my logic and point them out for the benefit of the kids.

    i don’t think having a jury is a sign of ‘maturity’. there are a lot of non-jury trials in the US.

    The existence of Non-jury trials does not follow from the premise that a having a jury sufficiently educated to render a just verdict is a sign of maturity.

  13. I meant The existence of Non-jury trials does not disprove that having a jury sufficiently educated to render a just verdict is a sign of maturity.

  14. Jeg,

    i thought ‘nullification’ refers to ‘nullifying’ a judgment

    the ‘nullification’ refers to the action of a jury to go against the clear provisions of a law.

    ‘nullification’ only goes as far as preventing the application of the law on a particular case. in other words, ‘nullification’ is not the same as invalidating a law or declaring it unconstitutional. ‘nullification’ may be ‘judging the law’ but it is ‘judging the law’ as far as one case is concerned only.

    ‘nullification’ does not conflict with being a trier of fact. as a matter of fact (no pun intended), because it is a trier of fact, a jury can render a ‘nullification’. in other words, the ‘nullification’ is the by-product of being a trier of fact

    oh, i also have a wiki entry for you:

    “A jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law”

    from

    http://en.wikipedia.org/wiki/Jury

  15. @Jeg:

    Proposition 1: Having jury trials is a sign of maturity. [A implies B.]
    Proposition 2: Having non-jury trials is a sign of lack of maturity. [not-A implies not-B.]
    Observation: The US has both jury and none-jury trials. [A and not-A].

    Question: Does that make the US mature or immature or both? [B or not-B or both]?

    If there is a fallacy committed. Is the fallacy that ‘maturity’ is treated as a binary value (either you are B or not-B) instead of something that is a matter of degree? or
    Is the fallacy that Proposition #2 above does not necessarily follow from Proposition #1?

  16. ‘nullification’ only goes as far as preventing the application of the law on a particular case.

    Yes that’s what it says in the wiki article I quoted. A series of such verdicts could — could — render a law ‘dead letter’ or lead to its repeal. It also says

    The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law

  17. Jeg,

    When I said that democracy’s operational foundation is via the one-man, one-man vote, I meant in particular the way we elect our President / Vice President and the context was when Estrada who was duly elected in 1998 was unseated by an elite, without the participation of the broader democratic infrastructure. Taking from it from BrianB, not engaging in intellectual masturbation there whatsoever.

    Of course, we also have a representative democracy in our legislative apparatus. But the foundation is still direct democracy where people vote for their respective district representatives. Laws are not made directly by the people but through their reps.

    Contrast 2001 with 1986: liberal democratic paradise. Corazon Aquino installed as president via people power, formed an interim revolutionary government, a new constitution drafted which was overwhelmingly ratified by the people in 1987. At least in form, it was a complete democratic revolution — at least in form.

    In 2001, what happened even in form, it was half-baked, the constitutionality of the exercise was rammed in by Hilario Davide via the term “constructive resignation”. The fascism there was by the few who ousted Estrada, but in so doing disenfranchised the millions who were not for people power at that time. It is safe to guess that the greater number who support Estrada did not agree to it. The bastardization of the rule of law started at that time, which of course GMA has done over and over again with much impunity.

    We are still left though with the 1987 Constitution and I still hope that any people power moves still emanate from it and fall within its boundaries.

    My main point is this: we have come to be surface form-addicted/ersatz democrats, without respecting the spirit of democracy, which is about people, equality and yes, about the Law (not Bencard’s law).

  18. A jury system requires that the citizens know their ‘power,’ and that they know how government and the judicial system works. If we have a citizenry that knows both, then we are on our way to maturity and a jury system is feasible. MLQ3 has written before about the need to teach the young on how the government works implying that the young in general have only a foggy idea of how it does work. Therefore as far as knowing our power and how it is applied in government, we are not yet mature (a matter of degree).

    [1] having a jury is NOT a sign of ‘maturity’ because [2]there are a lot of non-jury trials in the US.

    In the above statement, you can’t arrive at [1] because you observe [2].

  19. Jeg,

    (haay naku eto na naman po!)

    i think you were the one who floated the proposition that having a jury system is a sign of maturity

    “juries are the last line of defense against the power abuses of the authorities. We dont have that here. Perhaps we will one day as we mature as a people. We’re still a young country” – Jeg comment # 149

    so this comment of yours is the non-sequitur:

    “May I point out a non-sequitur if you dont mind, Scalia? There are kids reading this and they might learn something. Of course this is also an invitation for you to find flaws in my logic and point them out for the benefit of the kids.”

    “i don’t think having a jury is a sign of ‘maturity’. there are a lot of non-jury trials in the US.

    “The existence of Non-jury trials does not follow from the premise that a having a jury sufficiently educated to render a just verdict is a sign of maturity.”

    one unsolicited advice my friend – in a true intellectual discussion, a third party should be the one to point out which argument is fallacious. if one of the two discussants calls the other discussant’s argument fallacious, it is self-serving.

    a true intellectual discussant just lets the argument/s speak for themselves. such a discussant will point out the flaw in the other’s argument but by being factual.

  20. “sorry cvj, but thats the law.” – anthony scalia

    To the pre-modern mind, that reason is good enough.

  21. cvj,
    The inherent fallacy in Direct Democracy is no high order philosophical mystery. Just like a bus or a ship, you can’t have– everybody driving it without running it aground. The real mystery is why anyone thinks it is some kind of ideal. It is the same fallacy by the way, as the idea that all income and wealth is ideally equally shared. Direct democracy is the political equivalent of another false utopia: the fully egalitarian society of the communists that have all turned out to be cruel dictatorships and totalitarianisms.

    Jeg, Direct Democracy is not the opposite of Right Wing Fascism because it is close to being “liberal fascism” roughly the rule of “liberals” without consideration for the majority will because they believe they are morally qualified to act without the majority.

    Liberal fascism shares one quality fully with right wing fascism: vanity.

  22. @devilsadv8

    re: Bush win in Florida

    Kawawa nga talaga si Al Gore doon. Talo siya talaga sa bilangan dahil punch-hole through system ginamit doon at talaga naman daw nakakalito (sabi ng isa kong lolo na matanda na). Remember it was a also a long legal battle to do manual recount. So it’s hard to prove na they really wanted to vote Gore but the hole went through on Ralph Nader’s. May pagka-boplaks naman kasi nag-design ng sistemang iyon…:D

    @UP n

    Hindi naman siguro cultural. Pinoys are still generally honest..but our politicians ay talaga namang yaki-kadiri….Sa Australia rin na mandatory voting, the votes are counted manually rin…I asked an Aussie lawyer and she said:

    “Basically it involves casting your vote by filling out a paper ballot. The ballot boxes are then opened at the close of the polls in front of all the scrutineers (one from each party) by AEC officials, and then manually counted with the scrutineers looking on. The system is very efficient, but remember – Australians invented the ‘secret ballot’ and we have compulsory voting. We get lots of practice to do the business properly!”

    So wala ring pinag-kaiba sa atin….and yet she claims this is ‘efficient’. So wala tayong excuse except that we have to count more votes than the Aussies…

  23. DJB, that only reveals the limits of arguing by analogy, i.e. comparing society to a bus or a ship. You seem to equate direct democracy with a free for all which is not the case. Rather, direct democracy is the Public Sphere, i.e. organizations and individuals working outside the Institutions of State, existing side by side and interacting with the State i.e. within which our elected representatives perform their functions. Working together, the interaction between the systems of representative democracy (as embedded in the Institutions of State) and direct democracy (as manifested via the Public Sphere) will move us towards the democratic ideal of the rule of all by all. On a more practical level, each would compensate for each other’s weaknesses.

  24. jeg,

    Under our system, everyone has the benefit of trial by jury if the offense is punishable by 5 years of more or charged with serious criminal offense, yet can choose to be tried by Trial Judge Alone..
    Subsection F of Legal Rights..charter of rights and freedom.
    f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

    So it follows whichever the accused choose for offenses for which qualify for jury trial it her or his choice, for offences which penalties under five years, it is tried by Trial Judge alone.
    So I believe the system has nothing to do with maturity or whatever, but has lot to do with Impartiality and Independence of the Judiciary and also the competence of the personnel, including the State Prosecutors and the Defense Counsels..

  25. @nash: Vote-counting… Hindi iyong bilangan kundi iyong transmission. Isang linggo ang numbers-delivery from Naga City to Manila; dalawang linggo from Cebu; tatlong linggo from GenSan. And then, what-is-sent is not equal to what-is-received.

  26. In addition to vanity, FASCISM characteristics include belief that one’s group is the victim; current crisis beyond reach of traditional solutions like the constitution or “rule of law”.

  27. ‘Isang linggo ang numbers-delivery from Naga City to Manila; dalawang linggo from Cebu; tatlong linggo from GenSan.’

    Even with FedEx or DHL? Maybe it went through Customs.

    ‘And then, what-is-sent is not equal to what-is-received.’

    This is the problem with a 100% manual counting. Too many COMELEC people refuse to count correctly. I think the ballot should be split between national and local. Manual counting for the local and automated counting for the national.

  28. cvj-

    good idea, but quite difficult to implement and manage. for one, with so many actors, interest groups, lobbies in philippine political setting, including hundreds of NGOs, state institutions will be hard pressed sorting out the various views, agendas, pleas, etc.

    the framers of the present constitution had this wider participation in mind with the party-list system in congress. any charter change move should include expanding the party list system.

  29. @UP n

    OO, the numbers go through a rift in the time space continuum kaya natatagalan…. 😀 I wonder how long it takes Baguio votes to be transmitted to Manila. From experience, the city finishes counting at around midnight, that morning the local positions losers are expected to concede (and they should given that cheating is unheard of for our local positions).

    Really, it should take only 8 hours (the time it takes for a bus to get from our city to manila) and then pagdating, dapat tally na agad dahil you don’t need to count ballots naman na…you just add the total. If I’m not mistaken, British Polls only transmit their tallies and not the ballot boxes…

    Oh well.

  30. LET’S ALL GO TO CONSULTING!!!

    “He said that as ZTE technical consultant, the unwritten agreement between him and the company was that he would be paid for “out of pocket expenses” and some $1.6 million, or a success fee of one-half of one percent of the gross of the $329-million contract. He said he had been reimbursed from P3 million to P4 million.”

    Leche. Why do we have to get external consultants eh meron namang DOST/ASTI.

    Shet talaga.

    Ang 3 to 4 million consulting fee, marami sanang naitulong yan for our scientific and technical agencies.

    Finally, we used stop asking Lacson to supply witnesses….they have all been duds since time immemorial. Wala namang naidadagdag na bago ang so-called ‘star witnesses’ niya.

  31. to BrianB, who said : DJB, your clerico-fascist thesis is fully dependent, obviously, to the passivity of the people.

    Passivity of the people is not necessary, in fact, fascism wants the people to be mesmerized and inspired. And you do this, to inspire them, by repeatedly showing them/the people that they are victims, and then that it is your way that is the path across the desert. And yes, you can tell them that the Constitution is in the way, and you have to ignore it, break it even, because it has been obsoleted by the gravity of the times.

    For better clarification, review Abe Margallo’s posts. Repeatedly, he has said …. it’s worth it for the greater good.

  32. “good idea, but quite difficult to implement and manage. for one, with so many actors, interest groups, lobbies in philippine political setting, including hundreds of NGOs, state institutions will be hard pressed sorting out the various views, agendas, pleas, etc.” – maginoo

    From the point of view of the State, i think the key to manageability is not to be too inclusive. One of the mistakes in the aftermath of EDSA Dos was to include Civil Society (i.e. Dinky et. al.) as part of government. They (Solita Monsod et.al.) even tried to run for the Senate. This had twin negative effects. One is that it weakened the Public Sphere because its more active agents left it in favor of government service. The other is that those from Civil Society who became part of the State were co-opted and/or corrupted. The Hyatt 10 barely made it out.

    As John Dryzek wrote,

    “It is important to distinguish between inclusion in politics and inclusion in the state…democrats, including deliberative democrats, should generally favor a state that is in important aspects exclusive, for exclusion properly arranged can actually benefit democracy and democratization, even from the point of view of those excluded”

    What then should be included as part of the State? According to Dryzek, the determining factor would be whether interests coincide with State Imperatives.

    “When it comes to action in the vicinity of the core functions of the state, oppositional groupings can only be included in the state in benign fashion when the defining interest of the grouping can be related quite directly to a state imperative…If the interest of an oppositional group cannot be so related to an imperative, then inclusion means being co-opted and bought off cheaply…”

    To a certain extent, ‘insurgents’ should remain insurgents to keep the politicians honest and focused.

  33. cvj,

    “To the pre-modern mind, that reason is good enough”

    wow! you found a kindred spirit eh. it really takes one to know one

    sayang. you should have filed an amicus curiae brief immediately after the SC dismissed FPJ’s electoral protest. so the 15 justices could have been illuminated by your rare wisdom and reversed their dismissal of the FPJ protest.

    tsk tsk tsk sayang na sayang. the 15 justices are now left to their ‘pre-modern minds’

  34. cvj,

    fallacy? sez who? you?!!

    my goodness, you still haven’t noticed yet – calling an argument fallacious is the final resort of someone who just ran out of wise arguments

  35. cvj,

    oops i forgot. the generous use of ‘fallacy’ in expressions is covered by the bill of rights.

    i didn’t mean to interfere with your constitutional right to free expression

  36. Nash

    Consultants are being used to think outside of the box. Kaya medyo mahal 😀 (I know kasi konsuhultant din ako!) and mr san miguel is a consultant of zte not the government. I watched TV kanina and ang mali lang sa sinasabi ni san miguel e wala syang narinig about the commissions pero imposible yun. Pero pag consulting kasi tulad ko meron kaming NDA na sinasabi. Sticking to the NDA ang buhay minsan namin. We hear nothing and we see nothing at minsan if we were asked hindi kami consultant or hindi namin client yung clients namin.

    Maraming inconsistencies ang testimony kanina ni Leo San Miguel nagtaka ako kung baket hindi na tinanong ng mga senador kung ano ang ginagawa ni FG sa meeting nila sa wack wack nung sya ay pinalabas nina joey at nasabihan si joey nang back off. Amazing diba. At imposibleng hindi nya din alam ang mga patong at commissions dahil sya nga ang technical head. Ibig sabihin sya din ang gagawa ng mga specs at magpapatong kung magkano eto. Yung analogy nya na yung unang proposal e pang 2 bedrooms na bahay lang tapos yung pangalawa e pang 8 bedrooms na at halos kalahati lang ang dinagdag sa presyo e medyo sablay. Although andun na yung foundation pero syempre lalakihan mo pa ang mga gamit para maging 8 bedrooms sya. Kunwari seset up tayo ng 100 seats call center sa halagang 5 million at gusto maging 500 seats syempre magdadagdag ka na ng mga gamit na halos tritriple sa pang 100 seats lang.

    sa electoral protest naman. although patay na si fpj, WALA BANG KINALAMAN DUN ANG BOTO KO? Hindi naman si FPJ lang ang nawalan eh KUNDI YUNG MGA BOMOTO SA KANYA. Anong klaseng utak meron ang magsasabing moot and academic na ang protesta ni FPJ? Bumalik muna siguro sa grade school dahil ang tinuro sa akin sa mababang paaralan sa probinsya namin eh ang KARAPATAN MO SA PAGBOTO AT SA RESULTA NG PAGBOTO ay protektado ng batas.

    Hindi ba sabi sabi e THE VOICE OF MANY IS THE RULE OF THE LAW? ano na sa latin yung VOX POPULI ET something something something diba?

    😀

  37. Anthony:

    Since the Lower House could not be relied upon for now if there is a reasonable ground to impeach the president, do you honestly believe that if we bring the case to the court for those involve in the various scandals, excluding the president since she is still immune from suit, we will have a better chance of winning the case? Do you believe that the president will not use the executive power to suppress if not tamper significant documents?

  38. i just became aware of the discussion here concerning jury trials. i believe anthony scalia is correct in stating that a jury is only a trier of fact, not of law, and could render verdict only in accordance with the specific instructions of the trial judge who has exclusive prerogative to lay down what the law is. this is how it works, at least, in u.s. federal civil procedure to which most states’local practice conforms. to be sure, a party aggrieved by a jury verdict may appeal on the ground that the verdict is against the law. i don’t think (with due respect to wikipidia -lol), that the so-called “jury nullification” of an existing law is an existing practice at present. personally, i would think that is tantamount to jury legislation, a repugnant idea.

    btw, to digress a bit. sorry to jump the gun, mlq3. i know you would have a thread on this. i just could not help mentioning that panfilo lacson’s and aquilino pimentel’s “surprise witness” not only surprised but stunned them, to the chagrin of the rest of the salivating senators. the bomb that witness leo san miguel was supposed to detonate turned out to be a stink bomb that blew up in the face of the witchhunters and their shell-shocked “witnesses”, i.e., de venecia, lozada & madriaga.
    i like the way mr. san miguel turned the tables on his tormentors, thus: to roxas – “a lie corroborated by a thousand lie is still a lie”; to: to m. consuelo (de bobo) madrigal – “i’m sorry for not being able to tell you what you want to hear” after the good senadora said to him “getting the truth from you is like pulling a wisdom tooth”; and to biazon – “do you want me to speculate for you?” but the best part, i think, were the promises of san miguel, lozada and madriaga to submit to a lie detector test to be arranged by roxas at his own expense. i just hope the test covers all aspect of the witnesses’ testimony, including lozada’s alleged kidnapping and the supposed current threats to “assassinate” him.

  39. jason born,

    “Since the Lower House could not be relied upon for now if there is a reasonable ground to impeach the president, do you honestly believe that if we bring the case to the court for those involve in the various scandals, excluding the president since she is still immune from suit, we will have a better chance of winning the case? Do you believe that the president will not use the executive power to suppress if not tamper significant documents?”

    as for the reliability of the Lower House – around 84 are needed to impeach gloria. i guess instead of organizing rallies, people should just concentrate on working on congressmen to impeach her. that is, by the way, a lot closer to removing gloria than repeated people power attempts!

    as for cases – it would be best if the anti-gloria school will get their act together, collect all evidence, then file the case the moment she becomes plain mrs GMA at 12 nn of 30 June 2010

    if cases are filed now, the resources spent in organizing rallies should be channeled exclusively to monitoring cases filed

    as for the possible use of executive privilege, creativity is needed to skirt ‘executive privilege’

    mga engot yung mga senador natin. pinipilit pa ring pakantahin si Neri without the ‘executive privilege’. evidence is already sufficient to file cases against gloria, even without Neri’s further testimony on what gloria told him

  40. @kamote

    “Consultants are being used to think outside of the box. Kaya medyo mahal (I know kasi konsuhultant din ako!) and mr san miguel is a consultant of zte not the government.”

    Ok, to clarify, was his fee part of the $300M-something which is going to be our utang? If ZTE paid him then that’s their call, but if his talent fee formed part of the $300M something utang, then it’s different…sayang ang pera talaga…

    I have two things then

    1. Why would ZTE need a separate Technical consultant ???? Corruption allegations aside, telecommunications is ZTE’s core competency. It boggles me that they would need to hire this man if his role was purely technical. To the company, I think he is unnecessary..

    2. I have nothing against consultants (I too was one, laki pera talaga yan for minimum effort). You need to bring in outside help – to give advice on things you don’t have the expertise on….but hello, come on!!!! This is a broadband network!!!! This is yesterday’s technology. The government is NOT building a particle accelerator or a nuclear power plant…. 😀

    cheers

  41. tonio, if that is the case, i think lozada would win hands down. if roxas will spend for the state-of-the-art technology, i believe we would have a better idea of who is lying, rather than just rely on lozada’s tears, dramatics and witless humor.

  42. kamote, i think san miguel testified that the main reason he was hired by zte as consultant is because of his varied technical experience and his ability to bridge the language barrier. he also said his compensation would be on a “success fee” basis, i.e., he would only be paid if the project pushed through. kind of like a lawyer’s “contingent fee” – a percentage of the amount recovered in the action in lieu of a fix retainer or hourly fee. a contingent fee is usually high because of its uncertainty.
    i think san miguel also testified that although he was able to get reimbursed for his actual out-of-pocket expenses, he did not get a cent in commission because of the botched deal.

  43. madonna, i just chanced upon your reference to “Bencard’s Law”. just what exactly is that? there is a body of Law that governs a whole society, consisting of the constitution, legislations, executive orders, and binding decisions of the courts. opinions, including those of mlq3, abe, justice league, upn, scalia, geo, djb, bencard and others in this blog, are not Law.

  44. Here’s Barack Obama on Constitutionalism and “Deliberative Democracy” –

    The answer I settle on — which is by no means original to me — requires a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had . . . .

    What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery — its separation of powers and checks and balances and federalist principles and Bill of Rights — are designed to force us into a conversation, a “deliberative democracy” in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.

    The historical record supports such a view. After all, if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us . . . .

    It’s not just absolute power that the Founders sought to prevent. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or “ism,” any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the Inquisition, the pogrom, the gulag, or the jihad.

    GREAT GUY. GREAT AMERICAN. GREAT LEADER

  45. I think Barack Obama will focus the war on terror where it is needed. While Hillary won’t. I hope the Democrats choose Barack Obama for their candidate and not Hillary. Because she could lose to John McCain. He’s got the better chance and he comes from the Immigrant Tradition of America. Everyone’s favorite story.

  46. Clerico fascism is a well studied phenomenon in Europe. People Power was its most successful cooptation here. CVJ’s “direct democracy” turns out to be representative democracy that is periodically hijacked by elite moralists. A new form of it to be sure, sneaky, cunning and self-preserving people power that hides under the skirts of representative democracy.

    Heck that’s just like Davide putting on the Chief Justice’s costume just before he shredded the Constitution. Exactly what the present day clerico fascists have been whispering in Reynato Puno’s ear that he could also do in the “proper forum” of some Parliament of the Streets.

    I’ve got news for you: the People won’t be fooled twice by Damaso in Red.

  47. abe, nothing new to me. obama’s statement is a summation of modern concepts of governance articulated by legal philosophers throughout the ages from plato to cj marshall and others that followed him. it is nothing but a re-affirmation that in modern democratic society, absolute authority is lodged on the Law that is living and not static, rather on “the king, the oligarch, the dictator, the majority or anyone else who claims to make choices for us”.

    the fact that obama utters it doesn’t give it any more validity than it already has. i still don’t trust him.

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