Thursday, June 30, 2016

146. President Rody

I have not known a 71 year old man with that much fire in the belly. Standing up to a regime whose words inspire but whose actions disappoint, he played the role of a rabble-rouser -- "Kill all drug lords" -- and the visionary -- "We'll fix this country in six months" -- thus rallying a great majority to his side on election day. He claimed he is the last card of the Philippines for true change to happen; and yet, he showed them all, he can walk away from this anytime. Upon his election, he bashed every institution in society, calling churchmen hypocrites and media corrupt, prompting an act of contrition from the church apologists and a boycott from the defiant press. But what he was really doing was horse-breaking, taming everyone of their wildness, showing everyone he was the wildest of them all, and knowing eventually what would happen to the beast once it's broken. There is no doubt he is energy, a fuel to ignite every Filipino's dream. No one can escape the polemics and apologetics that he would dictate for the next six years and beyond.  

("Bago" by Celeste Lecaroz, 4 feet x 4 feet, acrylic on canvass.)

One day we shall all be looking back to this moment: the 71 year old man with fire in the belly, rabble-rouser, visionary, horse-breaker, the energy, taking his oath to become the 16th President of the Republic, President Rody. He is the Philippines's last card  -- and we would know by then how the card turned out, maybe everything was a joke and we drew a pathetic six of flowers. But today, we trust and hope that what we have is the ace of spades. Good luck President Rody! Good luck to the Republic! 

Thursday, June 23, 2016

145. Gestalt in Law (Part One)

Gestalt is generally associated with psychology and the arts. The mind forms a whole and has tendency to organize what it perceives as parts into a whole. In  the arts, if you draw half a face, the mind recognizes it as a face, even if what is drawn is just an eye, half a nose, or half a  mouth. The mind concludes that this collection of face parts is actually a face. The sum is another of the parts. How does this relate to law? Gestalt is probably the only way at looking at the law  and how it operates in real life without going crazy. The serious anomalies in the practice of law (or should we say, "malpractice of it", to be more accurate?) is better understood if we accept that following the law is just part of the story. The innocent landing in jail, the guilty getting off scot-free, the rich getting a windfall, the poor losing what is left of them -- these law events do not tell the complete story. Law and other abstractions from reality cannot explain everything. Injustice is unacceptable but gestalt, the sum of all parts, can help us appreciate that what is written, uttered, and recorded in the annals of law have an underlying story that has been barely scratched and exposed. 

Let's get an example from a famous trial in history. 

Friday, June 17, 2016

Counsel de Officio

I flew into General Santos City this morning to attend a hearing at the Regional Trial Court. I was pleased to find the court house neatly laid out like  a big "U" with the court rooms surrounding a garden. I told the guard who courteously   accompanied me to my branch that this is probably the best looking Hall of Justice I've seen in the country. I waited for my case to be called, and the local lawyers came in trickles. A fellow lawyer who turned out to be the IBP head of legal aid guessed I was new there, and warmly greeted me and asked me about my case. I told him a rough description of it and I mentioned the name of my opposing counsel, who turned out to be in Cotabato today and would unlikely be present for today's hearing. As the court staff started calling the cases, the room was filled with detention prisoners and about six local lawyers came in, greeted each other, and watched the proceedings. As it turned out, most of the detention prisoners would be arraigned and  without   counsel. The lawyer from the Public Attorney's Office was not around so the Judge decided to appoint each of the lawyers as counsel de officio for purposes of arraignment. I'm no stranger to this, but I got really amused that my fellow lawyers graciously accepted their appointment and did their jobs with enthusiasm. 

Arraignment is a crucial step in criminal procedure, but the importance of the process is betrayed if a counsel de officio merely advises the accused to make a plea of "not guilty". In Franz Kafka's "The Trial", Francis K's predicament was precisely that he was unaware of the charges against him and yet the trial continued to proceed. And I looked at the blank faces of the detention prisoners and I could tell, most of them didn't know what was going on. That's why a counsel de officio doing services for the arraignment should inform the accused of the charges, the potential penalty, and other relevant matters, so that the accused could properly decide what to plea. 

As the proceedings went on, I noticed the lawyers were doing their second round of duties already, and I had not been appointed yet. I looked at the small crowd in the courtroom, and it seemed they were wondering why this Manila lawyer in a blue suit was not doing what the local lawyers were doing. So, when my case was called, I told the Judge, "Your Honor, before we proceed, I noticed I am the only lawyer here who has not been appointed as counsel de officio, and I am getting embarrassed already. (Laughter from the lawyers and the court staff) So, please your Honor let me tell you I can do that work too, and I will stay a bit to help out the court perform its duties." After my case was called,  I got appointed as counsel de officio to help in the arraignment of two brothers accused of theft. I can't write anything further without breaching confidentiality, so I will stop here. I'm new in General Santos, but I certainly like the legal community here. 

Thursday, June 16, 2016

Notes on the Comelec Omnibus Rules on Campaign Finance or Why do we love to make rules we can't follow?

When Heaven Torres, my partner in the IT firm Aceron and Torres Automated Circuits, Inc., (ATAC), and I first read the Comelec's Omnibus Rules on Campaign Finance which was promulgated in October 2015,  we knew it would be controversial. Section 2 Rule 10 of the same rules declared in clear and unequivocal terms that the filing of the Statement of Contributions and Expenses (SOCE) thirty (30) days from election day (May 19, 2016) was non-extendible. This would be a big change from the past elections in which extensions were granted. 

Further, amendments were not allowed, and filings which contained errors would be considered as not filed. Already, I thought the Comelec was even stricter than the BIR, which allowed amendments within three (3) years from filing of a tax return or before a BIR audit takes place whichever came first. But the Comelec in promulgating these rules appeared to be trying to exercise its plenary powers in a grand manner (shades of Malcolm fans in there probably), and cared not for precedents of filings from other agencies like the BIR and the SEC, such that it ignored the possibility of anyone missing the deadline or filing an erroneous SOCE.

This became the premise of our software project,  Fearless Election Finance Software (EFS) that we designed (actually Heaven did the design by longhand and passed  it on to a programmer) -- to help candidates hurdle the rigid requirements of the rules and submit their reports within the deadline. To market the software, we embarked on a seminar roadshow in Luzon and Cebu,  and we realized that the rules had more serious problems than just the deadline and its prohibition on amendments.

First, the spending limits were too low. A candidate was only allowed to spend three pesos per registered voter. Yet, the average town had about 15,000 voters, so a Mayor, for example, could only spend Php 45,000 for the entire campaign. Anyone who would dare follow it would never win. For those without political parties, the limit was five pesos, and political parties had an additional five pesos. Still, the amount could hardly even cover the cost of gasoline or cellphone load for the entire campaign. 

Second, some provisions were impossible to enforce. Section  4 of Rule 6 provided that all campaign materials even those donated by voters should be authorized by the candidiate and would be counted against the expenditure limit. This was the offshoot from Ejercito vs Comelec GR No. 212398 ( in which a campaign donor of the Laguna governor   bought   airtime from a TV network amounting to more than five times the  expenditure  limit, thereby causing the ouster of Ejercito from the seat of the Province of Laguna. While clearly media expenditure was severely limited by the rules, other campaign propaganda like billboards, stickers, posters, and give-aways would be impossible to monitor not just for the candidate but also for the Comelec. How could they be counted against the expenditure limit then? Further, with the advent of social media (which carried the Duterte campaign), how could the Comelec quantify the money being spent on status messages, memes, tweets, and comments? And we're not even talking about illegal expenditures, such as money used to buy votes. The Comelec hardly spent time monitoring and catching vote-buying, which was a more serious and prevalent election offense, why would it spend time counting election expenses? Indeed, the Comelec was setting itself up for failure by raising the bar so high on this aspect of campaign finance.

Third, a lot of candidates did not care. They would do their reports the old way, cram, falsify, and challenge the Comelec's resolve to enforce its rules. While the Ejercito case set an unusual precedent of unseating an incumbent governor for violation of a Comelec rule, nothing else came out of the 785 cases on election finance pending with the Comelec from the 2013 elections. We wrote the Campaign Finance Office to clarify some matters on rules and we never got an answer, because none of its lawyers were available. It seemed, therefore, that Comelec's posturing on this grand rules to govern campaign finance would be melted by the realities of governance, the tyranny of the urgent and the overbearing demands of duty and the scarcity of time and resources to fulfill these duties. No wonder old time politicians would be the least bothered by the rules.

Thus, when the news broke out that the Liberal Party (LP), the party of the outgoing President, missed the deadline and asked for an extension, we were aghast at the incompetence of the LP leadership,  which jeopardized all its winning candidates as the same rules provided that the failure of the winning candidate or the party which nominated the winning candidate would result in the candidate not being allowed to assume office. The implications were disastrous: the Vice-President, five senators, hundreds of congressmen and local officials were LP candidates. If the Comelec rule would be followed, they would be barred from assuming office; and following the Maquiling ruling, their runner-ups would assume their offices. 

Yet, Romulo Makalintal and Sixto Brilliantes, two of the leading election lawyers in the country who should take credit (or be blamed) for the quality of elected officials we have, dismissed this view on the ground that the rules of the Comelec were unconstitutional. I told my friends that we got to hand it to these guys for playing with the hand dealt to their clients. To say it in the vernacular, "kung baga sa pusoy, buhaw na akala mo naka full house pa." (If this were poker, they have bad cards, but they're playing it as if they have full houses.) If the rules didn't work for their clients, the Constitution did. Well, these statements should have been uttered in October when the rules came out. The two gentlemen were just using the Constitution as an afterthought. 

But today, the Comelec blinked. Voting 3-4, the Comelec extended the deadline to June 30, 2016 and disregarded Section 2 of Rule 10 of their own Omnibus Rules on Campaign Finance, which stated, 

"Section 2. When and how to file the SOCE and its supporting documents. - Not later than thirty (30) days after the day of election, or by 08 June 2016, Wednesday, all candidates and parties who participated in the 09 May 2016 National and Local Elections, regardless of whether they won or lost, must file their Statements of Contributions and Expenditures (SOCEs) and the relevant Schedules and supporting documents. Filing of these campaign finance disclosure reports and statements must be done in person, whether by the candidates and/or party treasurers personally, or through their duly authorized representatives, before the offices listed in Section 3 of this Rules. Duly authorized representatives of candidates and parties must present a written authorization from their principals, using Form SPA-C in the case of candidates and Form SPA-P in the case of parties, before they can submit the campaign finance disclosure statements and reports of their principals. Submissions via registered mail, courier or messenger services shall not be accepted.

"The 08 June 2016 deadline shall be final and non-extendible. Submissions beyond this period shall not be accepted. COMELEC Resolutions Nos. 9849 and 9873, Minute Resolutions Nos. 13-0775 and 13-0823 are hereby repealed, insofar as they allowed the belated submission, amendmentand/or correction of campaign finance disclosure statements and reports and the imposition of late penalties for the 2013 National and Local Elections. [n]"

The Commissioners who voted to grant the extension might as well have eaten the paper on which their rules were printed. The question is which other provisions of this rule could be changed? The no amendment rule? The spending limit rule? They should change them now before another case lands on their desk that would force them to amend the rules again. 

I think it was President-elect Duterte who declared that the laws in this country are mere suggestions. He might as well be talking about the Comelec rules which governed the elections that he won. This might not be the first time that the Comelec reversed itself, especially in the enforcement of its own rules. And they could not be faulted or be singled out as the only agency which did  (think  of the Supreme Court and its flip-flopping in the cityhood cases) but the other question is why did they have to make their rules so hard in the first place? They only made it difficult for those who complied and submitted on time, and made it easy for those who failed, crammed, and challenged the Comelec's resolve to enforce its own rules. It's like being up early for the plane only to find out that some children of god who partied all night would be late and make everyone wait, the pilot gladly obliging a reprieve. Somehow one imagines those who benefitted from Comelec's reversal of their own rules are mocking everyone concerned about this fiasco of the SOCE,  and are saying to themselves, "What are we in power for?".

The Commissioners who voted for the extension claimed that they did not want their rules to have absurd consequences such that those voted in office would not be able to assume their functions. And I gave a deep bass guffaw as I heard the quote from the radio. Tell that to ER Ejercito,  I said. And I decided that all is well in this corrupt republic.