It's that simple

While summing up the thesis of World Bank economist Alessandro Magnoli Bocchi in “Rising Growth, Declining Investment: The Puzzle of the Philippines,” Cocoy has tried to explain the puzzle in his own words:

The answer according to the same policy paper (of Bocchi) is that while foreign direct investment has fallen since the 1990s, the local market has not picked up the slack. Big Business has refused to reinvest substantially. The World Bank blames the lack of reinvestment on lack of incentives to do so. Businesses are profiting now, so why go out of the way to reinvest capital more than necessary? The rot sets in.

BenignO has been quick to respond, quoting himself:

We pester the elite of our society with calls for acts of heroism when the burden of extra hard work in reality falls on the shoulders of the poor masses.

We Filipinos have been imbued with the idea that our hopes for prosperity lie squarely on the shoulders of the elite, the “haves,” a handful of leaders and/or a few “extraordinary” individuals. Our society has come to (or, more appropriately never matured beyond) a penchant for giving heroic labels to these “messiahs,” as if the Philippines is constantly waiting for a hero to rescue her from her dysfunction. We expect heroic efforts from the few and continued mediocrity from the majority. We expect the low product of the majority to be SUBSIDISED by the exceptional output of the minority.

When it comes to offering solutions to the Philippine puzzle, I proceed from a standpoint quite opposite to Benigno’s. Let me also quote myself to explain my point based on established historical facts:

There are historical patterns that if we care to seriously reflect on would inform us of certain repeated forces known to have driven great events, among which is this: That history is often made by people and institutions in power and by how their power is employed by them to produce goods and services for society through the development and use of science and technology or otherwise dominate other peoples and grow more power.

Great historical events are also made when people and institutions in power, perceived to have failed society, have been overthrown, thereby allowing new institutions and ideas to be developed and instituted by the succeeding power.

Powers of ordinary men, like you and me, (not to speak of the shirtless, shoeless and toothless) are often circumscribed. For example, we would like to believe that we have purposeful ideas and intentions for the Philippines, but we can only carry our purposes as far as our relative position in the hierarchy of powers can take us, unless of course we succeed in creating movements to match the strength of the powers that be.

So, in the Philippines, there are men and women, being in command of powerful institutions of modern society, whose decisions and non-decisions have immense consequences to our society. We do know that these special people own the financial establishments, control major corporations and organizations and for the most part “capture” the machinery of the state or, at the very least, have the ready ear of those who occupy positions of direct power.

There are thus dreadful consequences if our economic elites, the taipans or the old oligarchs for example, are risk averse, content as they seem with operating public utilities with captured markets, or mega malls and real estate ventures sustained by OWF remittances. Their lack of vigorous entrepreneurship translates into our economic engines not being propelled to create greater wealth and employment opportunities to provide decent incomes for a growing population of ordinary or less than ordinary people.

The above postulations comport with the “power elite theory” which, according to H. T. Reynolds, “perceives a pyramid of power” and where 1) the most important decisions for everyone below the pyramid is made at the top by a tiny elite; 2) a relatively small middle level consists of individuals that one normally would have in mind when talking about government, e.g., senators, representatives, mayors, governors, judges, lobbyists, and party leaders, and 3) the masses, the average men and women who are powerless to hold the top level accountable, occupy the bottom.

While summing up the thesis of World Bank economist Alessandro Magnoli Bocchi in “Rising Growth, Declining Investment: The Puzzle of the Philippines,” Cocoy has tried to explain the puzzle in his own words:

The answer according to the same policy paper (of Bocchi) is that while foreign direct investment has fallen since the 1990s, the local market has not picked up the slack. Big Business has refused to reinvest substantially. The World Bank blames the lack of reinvestment on lack of incentives to do so. Businesses are profiting now, so why go out of the way to reinvest capital more than necessary? The rot sets in.

BenignO has been quick to respond, quoting himself:

We pester the elite of our society with calls for acts of heroism when the burden of extra hard work in reality falls on the shoulders of the poor masses.

We Filipinos have been imbued with the idea that our hopes for prosperity lie squarely on the shoulders of the elite, the “haves,” a handful of leaders and/or a few “extraordinary” individuals. Our society has come to (or, more appropriately never matured beyond) a penchant for giving heroic labels to these “messiahs,” as if the Philippines is constantly waiting for a hero to rescue her from her dysfunction. We expect heroic efforts from the few and continued mediocrity from the majority. We expect the low product of the majority to be SUBSIDISED by the exceptional output of the minority.

When it comes to offering solutions to the Philippine puzzle, I proceed from a standpoint quite opposite to Benigno’s. Let me also quote myself to explain my point based on established historical facts:

There are historical patterns that if we care to seriously reflect on would inform us of certain repeated forces known to have driven great events, among which is this: That history is often made by people and institutions in power and by how their power is employed by them to produce goods and services for society through the development and use of science and technology or otherwise dominate other peoples and grow more power.

Great historical events are also made when people and institutions in power, perceived to have failed society, have been overthrown, thereby allowing new institutions and ideas to be developed and instituted by the succeeding power.

Powers of ordinary men, like you and me, (not to speak of the shirtless, shoeless and toothless) are often circumscribed. For example, we would like to believe that we have purposeful ideas and intentions for the Philippines, but we can only carry our purposes as far as our relative position in the hierarchy of powers can take us, unless of course we succeed in creating movements to match the strength of the powers that be.

So, in the Philippines, there are men and women, being in command of powerful institutions of modern society, whose decisions and non-decisions have immense consequences to our society. We do know that these special people own the financial establishments, control major corporations and organizations and for the most part “capture” the machinery of the state or, at the very least, have the ready ear of those who occupy positions of direct power.

There are thus dreadful consequences if our economic elites, the taipans or the old oligarchs for example, are risk averse, content as they seem with operating public utilities with captured markets, or mega malls and real estate ventures sustained by OWF remittances. Their lack of vigorous entrepreneurship translates into our economic engines not being propelled to create greater wealth and employment opportunities to provide decent incomes for a growing population of ordinary or less than ordinary people.

The above postulations comport with the “power elite theory” which, according to H. T. Reynolds, “perceives a pyramid of power” and where 1) the most important decisions for everyone below the pyramid is made at the top by a tiny elite; 2) a relatively small middle level consists of individuals that one normally would have in mind when talking about government, e.g., senators, representatives, mayors, governors, judges, lobbyists, and party leaders, and 3) the masses, the average men and women who are powerless to hold the top level accountable, occupy the bottom.

The power elite model of C. Wright Mills, the most renown among power-elite theorists, as restated by H.T. Reynolds goes this way: “that single elite, not a multiplicity of competing groups, decides the life-and-death issues for the nation as a whole, leaving relatively minor matters for the middle level and almost nothing for the common person.”

Thus when “Big Business has refused to reinvest substantially” or, as Bocchi puts it, when politically-connected economic elites and corporate conglomerates in the Philippines find it convenient to not invest or invest only a portion of its revenues in-country, while sending considerable portions offshore, the consequence is slower economic growth in the country and less inclusive than it could potentially be.

I think I have had another occasion to reflect on the Philippine puzzle in a fairly recent response to a comment in FV in this fashion:

. . . why some nations have fared better than others in developing the institutions of capitalism, the late American political scientist Samuel P. Huntington . . . has pointed, among other things, to the “lack of national unity and the failure of dominant immigrant minorities (e.g., the Chinese Diaspora in the Philippines) to assimilate” and in the absence of such unity and assimilation, “there generally is no development of a legally, economically and politically empowered civil society concerned with the welfare of the entire nation and all its people.”

Citing liberal economist Jeffrey Sachs, Huntington also referred to “obstructive elites” whose interests are “vested in traditional conditions,” and “resist institutionalization of rule of law legal systems, norms of social mobility, and capitalist markets – all of which threaten their elite status.”

These insights are interesting if juxtaposed with benignO’s lavish adulation of the market dominant Filipino-Chinese community which he seems to characterize, quite naively, as homogeneous.

But here’s what Clinton Palanca, an Oxford postgraduate tsinoy, wrote on this score:

“The ideal of the ethnic Chinese who is integrated and thinks of himself or herself as Filipino while retaining Chinese cultural identity does exist, but so does the bigot who sees Filipinos as inferior and adopts a ‘sojourner’ mentality and an instrumental attitude toward the Philippine economy. These two figures form the endpoints of a spectrum along which the Chinese in the Philippines are ranged.”

Palanca however excluded the First Filipinos from his “range” (Rizal, Aguinaldo, Mabini, Bonifacio, etc who were of Chinese ancestry and the next generation, such as Osmena, Lopez, Roxas, Laurel and even Marcos not to speak of Cojuangco, Puyat, Ongpin, and the still monosyllabic Lims and Tans). The Villafuertes and Robredos of Bicol in the regional scene are descendants of more recent Chinese Diaspora but also outside of Palanca’s range.

The “Chinese” economic elites in the Philippines who own about sixty percent of market capitalization, in particular those rentier taipans with sojourner mentalities, are ultimately recipes for a lackluster national economic progress.

In another post I also pointed out that the “Chinese” in the Philippines were Hispanicized during the Friar regime and then Anglo-Americanized during Uncle Sam’s rule.

Now this again from Palanca about the chameleonic aspect of Chinese identity triggered this time by the awakened dragon or the “emergence of China as a dominant force in the Asian economy”:

“The descendants of the older Chinese mestizo classes, who had previously downplayed their Chinese ethnicity, are now suddenly rediscovering the Chinese aspect of their ethnicity. The generation of Chinese-Filipinos who had emigrated in the first half of the century in the years leading up to the communist takeover of China and their descendants are now held in higher regard. But what has the potential to become respect can easily swing the other way to distrust if the power of the Chinese-Filipinos is seen to be too dominant — or, more to the point, if they are seen not as Filipinos, but as an ethnic minority group who has gained an incommensurate degree of influence.”

I was likewise thinking of the market-dominant and oligopolistic minority when a couple of years ago I blogged about what it would really entail for the Philippines to position itself for “economic takeoff”:

Many parts of the country still retain the basic features of the so-called traditional society. A traditional society is one whose structure has limited production functions because of its incapacity to manipulate the environment through science and technology. To break from the conditions of a traditional society that put a ceiling on its attainable output, new types of enterprising men willing to take risks in pursuit of profit or modernization must come forward. The risk-taking must happen in conjunction with the appearance of institutions for mobilizing capital like banks, the investment in transport, communications, and in raw materials in which other societies may have an economic interest, and the setting up of manufacturing enterprises using modern methods. xxx

Takeoff however may not occur if the transition is proceeding at a limited stride in an economy still primarily typified by “traditional low-productivity methods,” by dated societal institutions and values, and by parochial political institutions.

The key to economic progress is somehow attitudinal too and this happens when economic men and political animals judge such progress to be good not only for the material comfort it brings forth for their pioneering spirit but also for national identity and dignity, the welfare of the next generation and the common good.

Historically, the decisive ingredient during the transition is the building of an “effective centralized national state” imbued with a “new nationalism” x x x. When growth becomes steady and normal and institutionalized into habits and social structure and dominates the society, takeoff is said to occur.

To economist Walt W. Rostow (his two seminal books are: The process of Economic Growth [1952] and The Stages of Economic Growth [1960]), from whose insights the above ideas are mainly culled, the takeoff is spurred not only by the investment in “social overhead capital” (such as in railways, ports, roads and education) and the expansion of technological development in industry and agriculture, but also by the rise to political power of a group dedicated to the proposition that the modernization of the economy is a national goal of paramount order (underscoring not in the original).

I therefore believe that the Philippines will attain “First World” status not by the action of the “ordinary schmoe” of the tingi variety (to borrow some of BenignO’s unflattering labels) but by men and women who are in command of powerful institutions of modern society. This is so, as I said in another comment, because -

. . . a nation like the Philippines attempting to modernize must first create economic surplus. This surplus will be long in coming if we follow BenigO’s formula of “culture change” first.

My route is economic take off first, then use the economic surplus created to promote and develop quality education, the ultimate telos being “democracy of the educated” to dispense with the need for “moral and intellectual aristocracy.”

I don’t see economic take off happening with “Juan Tama” or “Ako mismo” routes, because to me these are all diversion – much like the perpetual blaming of the government, the politicians, and the supposedly culturally damaged Juan Tamad – away from holding accountable those with the wherewithal to create wealth by vigorous entrepreneurship and a great sense of country.

Now, despite the retreat of BenignO’s heroes or their less “exceptional output,” why does the Philippine economy, while not taking off, manage to chug along somehow? Well, it is because of the extra hard work of non-elites or “the poor masses.”

Or, according to economist Bocchi in his research paper -

Because its least protected sectors - the informal labor market and the non-capital-intensive activities - stimulate demand and drive supply.

- On the demand-side, work-seekers – denied entry into the formal labor market migrate massively to industrialized economies, attracted by better remuneration; the resulting remittances and transfers (which, combined, account for over 13 percent of GDP) fuel consumption-led-growth (i.e. Filipinos abroad send money to their families in country, and these spend it).

- On the supply-side, the innovative service sector and a few non-capital-intensive manufactures, still free from regulations that favor the local élite, boost exports.

To Montesquieu, what is required of a republican government to thrive is virtue which he defines as “the love of the laws and of our country.”

Virtue is taken for granted when rent seeking elites bend the laws for private gains or would rather invest offshore than in-country.

Bocchi is also blunt about it in economic terms: “To accelerate economic growth, increase employment generation, and generate public resources for social programs, rent seeking by the élites that exercise political and economic power - or 'élite capture' - must be addressed.”

It is that simple.

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Unlikely speculations

I have a slight problem following scenarios like Gloria will run for Pampanga’s second district so she can become Prime Minister or that she will declare martial law with the help of her PMA “mistahs.”

Too many things have to fall into place, for the premiership scenario…

1. She wins the congressional race
2. She becomes Speaker
3. The House and the Senate agree to a con-ass
4. Con-ass shifts to parliamentary system
5. New constitution is approved in plebescite

And most important of all:

6. After June 30, 2010, Gloria will no longer be president. At best, she will be just another member of the Lower House, and a neophyte at that. Meanwhile, the new president will be The President. He will give way to Rep. Gloria? One will have to assume the new president will not want a full 6-year term, will not do everything in his power to remain in office. In short, one will have to assume he is insane.

As to the martial law scenario with the help of her PMA class…

It will be a replay of history because Gloria’s generals will have to stay on past retirement. As a result, the promotions system will have a ceiling. And that will breed unrest among the officer corps. She and her generals will have to divide and conquer the corps through bribery and intimidation. But history has shown that those tactics have their limits, Gloria will not live forever. Neither will her core group of generals. Consequently, when the question of succession looms, the whole thing will fall apart.

What is the most likely scenario after June 30, 2010? Who knows? Desperate people do crazy things. But the best scenario is for Gloria to realize that there will be a lot of noise to bring her to justice but it’s going to be only noise. She will get away with it because that’s the way it is in this Enchanted Kingdom.

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The So-called Oplan August Moon And The Rivalry Of The Generals

“Uneasy are the shoulders that bear four stars.”

This is a not-too-cryptic line shared with me by a senior journalist covering Camps Aguinaldo and Crame and two military officers when I sought to reconfirm the incessant reports about Oplan August Moon.

“The rivalry between the generals from PMA Classes ’76 and ’78 is fueling the rumors even as military intelligence investors have separately obtained leads indicating the possible involvement of the political opposition in the plot,” my sources told me.

(L-R: IBRADO, BANGIT, VERSOZA, ROSALES)

“They are trying not to be drawn into it but Lt. Gen. Victor Ibrado and Director-General Jesus Versoza, AFP Chief of Staff and PNP chief respectively, cannot prevent their mistahs from talking.“

The two military officers said, "there’s no question about their loyalty to the Flag," but the two other generals “waiting in the wings” are becoming the focus of intrigue because they are next in line to Generals Ibrado and Versoza.

The two being referred to are military intelligence chief Delfin Bangit and national capital region commander Roberto Rosales.

Director Rosales, who is president of PMA Class ’78, is widely respected in the police corps ,“while Director-General Versoza “has seen his slate affected by the recent ‘Euro generals scandal and question about his management skills.”

“In the case of Bangit, intrigue heightened when Malacanang itself announced he was the successor of recently retired CoS Jose Yano only for the announcement to be cancelled without explanation,” my two sources noted.”

That was then followed by the promotion of Gen. Ibrado as chief of staff with Yano being named ambassador to Brunei,

“The military brass, of course, respect the prerogative of their Commander in Chief (Pres. Gloria Macapagal Arroyo) to “change her mind and undertake deep selection,” my sources, speaking on condition of anonymity, said.

The bigger revelation my journalist source shared is this: a top-ranking general told me "intelligence probers are closely examining a document referring to important event/s which may take place between August and October.”

The document allegedly "makes reference to former President Joseph Estrada’s political group Pwersa ng Masang Pilipino."



My source would not go further when asked if Mr. Estrada himself could be implicated to the so-called ‘Oplan August Moon’ except to say “we don’t know if there is an actually military-format Operation Plan except what has been referred to verbally in the Camps.”

(This writer is trying to get the side of Mr. Estrada.)

"The improvised bombs recently used or left at the Department of Agriculture, the Office of the Ombudsman and privately-owned condominium Burgundy One Place appears to be the work of amateurs and not ordnance experts."

(ARCHIVE PICTURES)

Note: C-4 is a high quality, very high velocity military plastic explosive.
C4 is supplied in bulk drums, in a slightly powdery form. Upon manipulation the material immediately consolidates into a rubbery fully plasticised mass which may be kneaded and pressed into any shape. The material has excellent mechanical and adhesive properties, and may be stretched into long strands without breakage.
In its original powdery form the explosive may be poured into charge containers, then pressed into intimate contact with the liner.

“We believe the C-4 explosives were not sourced from anywhere in Metro Manila but could only have come from Mindanao,” my sources revealed.

Speaking separately to journalists yesterday, Senator Rodolfo Biazon, a former chief of staff and seasoned field commander in Mindanao, said his doubts about the possible involvement of national security adviser Norberto Gonzales.

The online report of ABS-CBN News says in part:

Sen. Rodolfo Biazon on Thursday assailed National Security Adviser Norberto Gonzales for contributing to the climate of instability by downplaying bomb-related incidents in Metro Manila this week.

“I’m not talking about specifics, whether administration or opposition. But to hear the national security adviser say about the need for a revolution, the putting up of a junta, the putting up of a transition government is fuelling all of these speculative conclusions,” Biazon said in a radio dzMM interview.

The senator added he could not believe Gonzales’s cold reaction to the bombing of the Office of the Ombudsman and the attempted bombing of the Department of Agriculture offices in Quezon City.

Gonzales and the military had said that the bombing attempts are part of a trend that usually happens before the President's State of the Nation Address (SONA).

The statements were made in reaction to allegations that some people in the administration are creating a scenario that may be used to justify the declaration of emergency rule.

Biazon alleged that the real root cause of the destabilization scenarios is none other than Gonzales.

The senator said Gonzales has been advocating a revolution and the establishment of a junta to be led by President Arroyo.

He recalled that Gonzales raised this during a seminar conducted by the Center for Strategic Studies in Davao City in 2006 for junior military officers.

“Three years ago, Gonzalez conducted a seminar in military camps, and he said there is a need for a revolution, from liberal democracy to social democracy,” Biazon said.

He said the junior officers in the seminar were told that the Armed Forces of the Philippines, as the only sector with “the power of the gun,” can carry out such revolution.

http://www.abs-cbnnews.com/nation/07/02/09/biazon-hits-gonzales-view-metro-bombings

The events of the coming days or weeks can either heighten the apprehensions or ease public disquiet.

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Honduras May Embolden GMA

While the ouster of Honduran President Manuel Zelaya last Sunday could serve as a stern warning to President Gloria Macapagal-Arroyo (GMA) - and perhaps an encouragement to the military - that tinkering with the Constitution to extend her tenancy in Malacañang is a risky move, it could on the contrary embolden GMA in pursuing her nefarious political agenda.

The parallels between the Philippines and Honduras are uncanny. As we all know very well GMA's allies in Congress have been assiduously pushing for charter change by resolving to convene a con-ass. Zelaya's ouster was precipitated by his insistence on having a constitutional convention (con-con). Both moves are seen as attempts to extend the president's term of office. GMA's allies want to proceed with a con-ass even without the Senate (clearly unconstitutional), while Zelaya wants a referendum on the convening of a con-con without congressional authorization as required by Honduras's constitution.

While GMA's supporters may argue that she has nothing to do with the cha-cha efforts in Congress, there is convincing evidence to the contrary. The prime movers of cha-cha in Congress belong to GMA's party and it is safe to say that as president GMA has a strong involvement on this issue. Also, the recent admission by former DOJ Secretary Raul Gonzalez, one of GMA's most trusted advisers, that GMA has every reason to remain in power either as president or prime minister to immunize herself from suits, is a very persuasive argument for GMA's involvement.

Going back to Honduras, it is disappointing to know that the international community - including the UN, Organization of American States, and the US - was quick to condemn the removal of Zelaya and announce its disapproval of the existing government, given the background of Zelaya and what prompted his removal. A review of what happened in Honduras shows that it was Zelaya who first committed constitutional shortcuts by disregarding the Honduran Congress in calling for a referendum to amend the constitution. The Honduran Supreme Court, backed by the attorney general, ruled that Zelaya's call for a referendum was unconstitutional. Zelaya defied the Supreme Court ruling by firing the army chief who refused to support Zelaya's self-initiated referendum. This prompted the military, in support of the Supreme Court's ruling, to arrest Zelaya. As a result of this the Honduran Congress installed Roberto Micheletti, the constitutional successor to the president.

Now there is much debate whether the removal of Zelaya could be considered as a coup. While there was a seeming disconnect at first between the US State Department and White House's characterization of the event, President Obama finally stopped equivocating by calling the removal as a coup and an illegal one at that. I am not sure what the Honduras Constitution says about the removal of the president (whether it could only be done through impeachment), but there is argument to the effect that Zelaya was arrested for flagrant violation of the constitution and it was not the military that took power but rather his constitutional successor, Micheletti, and the Honduran Congress approved this.

But coup or not, there is no debate that Zelaya violated the Honduran Constitution when he tried to pursue a referendum on cha-cha without congressional authorization. None of those who disapprove of Zelaya's ouster dispute this. Despite Zelaya's brazen disregard of Honduras's Constitution and defiance of the Supreme Court, however, the international community remained mum on this issue and instead chose to look only at his ouster by the military. The outrage against constitutional violation is one-sided. By the way there is strong public support among Hondurans for Zelaya's removal; like GMA he is not a popular president.

This lopsided view from the international community could embolden GMA in acting á la Zelaya. It tells us that no matter how brazenly the president may commit constitutional shortcuts it would now be at the risk of being internationally condemned and isolated to overthrow her; that a people power backed by the military may no longer be acceptable as EDSA I or EDSA II was. The administration might just capitalize on this development in discouraging the people and the military from resorting to another people power to unseat an extended GMA presidency or, perhaps, a GMA prime ministership.

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A few billions and the future of Philippine science

President Gloria Macapagal-Arroyo will go down in history as the only Malacanang tenant to seriously consider the importance of investing in big scale science infrastructure. While previous presidents have paid lip service to the importance of science, their words did not match the budget appropriations, until Gloria came around.

Gloria has issued an executive order creating a national science complex at University of the Philippines (UP) Diliman. While the idea of a science complex/campus had been floated as early as the 1970s it became a distinct possibility in 1983, when the UP's science college was established, But it was only during the latter half of the Aquino and Ramos presidency when buildings were constructed. However the complex was left unfinished as budget allocations were small. During the Erap presidency science took a backseat. In the Arroyo presidency, the complex was allocated 3 B PhP.

The money has been spent in completing the physics and math buildings, erect the chemistry, biology, molecular biology, environmental science and science administration buildings. The money also allowed for the completion of the road network to service these buildings. These buildings form the important core of basic science disciplines that hopefully can let the country play catch up with Asian countries with respect to science. The only thing missing in this complex is a medical sciences institute. Medicine if it ever can contribute to and benefit from Philippine science should be integrated with the NSC as the case in top universities overseas. Unfortunately the organizational structure of UP leaves the medical sciences in UP Manila.

However, once more former UP Visayas chancellor and Professor of Marine Sciences Flor Lacanilao sheds light on another problem that has hardly little to do with science infrastructure but more on science manpower. But before we go into the negatives, let us dwell on the positives first. UP and the top universities in the country has largely realized that real academic reform lies with promoting research and publication. The benefits of these will filter down to state of the art teaching thereby improving the main function of a university. But as Lacanilao writes, there are counter-productive processes in universities that may make the multi-billion peso investment in science infrastructure redundant. This I believe is largely cultural. For instance, the doctoral degree is still seen as the culmination of a research career whilst in reality, this is the basic qualification. Research performance is best measured in the number of papers published and citation indexes. But in many Philippine universities these measures are not often used.

Another problem that hampers science development in the Philippines is the lack of good research mentors. This has been often raised by UP science dean Prof. Caesar Saloma. The only cure for this problem is to promote and give incentive to research and research faculty members as based on merit and not on seniority.

However a science or in more general terms academic, meritocracy will require a paradigm shift Philippine universities. In the Philippines we hear of people WANTING to be chair, but in overseas universities, people AVOID the Chairmanship like the plague. Administrative duties take time from research and research is the way that promotions are measured. But unfortunately someone has to be the chair!

I hate the misuse of the term 'ecology" in deciding faculty appointments. The appointments in this system are designed not to disturb the "ecology" of positions in a department. In this culture, seniority is the main criterion in promotions and tenure. In a meritocracy, there are measurable indices for assessing academic performance.

Lacanilao suggests that UP focuses more on graduate training rather than undergraduate training. But this is not good politic and won't be bought by Congress (or the Parliament after 2010!). What UP can do is to develop certain campuses as graduate campuses (presumbably the NSC will become this) while other campuses can be developed as centers of undergraduate training. But it has to be considered that excellent graduate training is synergistic with excellent undergraduate training. It is obvious that good talent comes from the undergraduate sector. The promising talents need to be identified at the undergrad level and be encouraged to go into graduate school.

The idea that UP focuses on graduate teaching and research and let other universities focus on undergraduate teaching isn't new. In 1947, Professor Merill of Michigan gave a speech to convocation at UP precisely suggesting this path.

The Philippines still lacks scientists. While we have more PhDs now than 30 years ago, we still have not developed critical mass in many of the disciplines. This hinders development of more scientists. Most of the PhDs are lone experts.

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Populist Rhetoric

Masterfully played by dishonored Erap Estrada, the populist rhetoric is now being employed by the contenders for the presidency. In impoverished and developing countries where poverty is prevalent, taking a populist stand can get you places. It can make a monster appear angelic in the eyes of the poor. It is a very successful way of winning the hearts and minds of the people especially those who "think" that you can relate to them. It gets into one's nerves at times. Take the case of Manny Villar who takes you back in youth and tries to convince you that he is poor. Everytime his commercial comes up, I quickly change the channel.

But the practice has gotten Hugo Chavez to perpetual power and has somehow legitimized his presidency despite subverting their constitution. The same cannot be said about Manuel Zelaya of the Honduras who was kicked out of office by the Honduran army. Zelaya tried to change their constitution in the guise of change. At least the Honduran judiciary and congress were independent enough to abide by their laws. But the people of Honduras who have been tricked into believing that reforms are coming continue to support Zelaya who is a member of the oligarchy. Now if only the world could accept that democracy can be manipulated.

Gloria Arroyo is also using the populist strategy through her "social programs" aimed at the poor. The difference is that Filipinos are now more discerning. Her advantage however comes from a weak judiciary and a congress who seems to be fond of "loot bags" and junkets. Will the populist rhetoric work its magic for the contenders in 2010? I don't think so. The Villars are not so popular with their constituents nor with investors whom they've eased out to give way to their businesses. I should know, I was one of their victims. Mar Roxas may have a shot but has to change his strategy at some point to a more believable one.

Only time can tell if indeed this ploy still works. Judging from the dynamic Philippine political landscape, this may not be a formula for success.

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Pyonyang awaits

"If North Korea is saber-rattling on the part of their dear leader, here we are titillating. But you can call what is happening in the Philippines as also saber-rattling. Well, on the Korean side they’re also titillating. Pero mas maganda yung ating expression." – Fidel V. Ramos

Former President Fidel Ramos refuses to go away. Before he left for a conference in Mumbai, he advised Gloria Arroyo to fess up and reveal her plans post-2010. Upon his return, he suggested to Arroyo that she try to resolve the impasse over North Korea’s nuclear weapons program.
"Our efforts should be on the diplomatic side because we have diplomatic relations with North Korea."

He said it would be worth her while to mediate the conflict because, if the situation deteriorates into a nuclear face-off, trade among Asian nations will suffer.
"That is the biggest damage that could happen in the Philippines."

He also reminded Arroyo that there were 50,000 Filipinos who live and work in South Korea.
Arroyo should listen to Ramos. He is not making light talk. He has seen her attend all sorts of international conferences, dishing out unsolicited advice to world leaders on matters ranging from the global financial crisis to global warming. He believes she can talk some sense into Kim Jong-Il.

She could be the right person to do it. My research showed that Kim and Gloria are soul mates.
A backgrounder on Kim, prepared by Global Security Org., shows that Kim, like Gloria, is a micro-manager.

“Kim Jong-il micro-manages every detail of government business. Kim Jong-il created a system of summarizing an account of events from all over North Korea into a daily report format during consolidation of his power within the party. Even county or municipal parties are to report directly to the party center if the event is deemed significant enough to warrant its attention. (Party center is the term North Koreans use to refer to Kim)
And they have similar personalities.

“Kim Jong-il's impatience and extemporaneous behavior contrasts markedly with Kim Il-sung's magnanimity and charisma. The elder Kim was mindful of advice from others, while Kim Jong-il is arrogant and self-centered in policy decision. In addition, the junior Kim does not take kindly to criticism or opinions different from his own. Kim Jong-il's personality can be characterized by suspicion, and is extremely emotional in his expression of his likes and dislikes, which borders on double personality.”

Further investigation uncovered more parallels.

They both majored in economics; he on Marxist political economy, she on capitalism and neither one of them has anything to show for it other than a “military-first” policy to maintain power amid economic decay.

Both have dealt head on with their countries’ hunger problems. Kim heard about rabbits the size of dogs so he decided that breeding giant rabbits was the solution to North Korea’s famine. Gloria’s husband saw that many of the nation’s hungry were toothless so he decided to donate free dentures to those with nothing to eat.

Kim spends his country’s resources on nuclear power development. Gloria spends it on political power enhancement.

Both appreciate a good drink. He gets drunk on Hennessy, she on power.

Both are avid golfers. His propaganda bureau claims he routinely shoots three or four holes-in-one each time he plays a round. She does not publicize her scores but, like Kim, she has a propaganda bureau that will tell you anything she wants you to hear.

Kim is retiring for health reasons. She is not retiring, also for health reasons.
The list of similarities is far from complete.

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Bernas: Jointly or Separately

Since we have been debating this matter ourselves here at Philippine Commentary, most lately in this post, I think it is appropriate to now reproduce Fr. Joaquin Bernas' PDI column from yesterday in which he summarizes his point of view and the various arguments regarding charter change under the 1987 Constitution. I must say, the quality of argumentation on this blog from lawyers and nonlawyers alike stands toe-to-toe and head-to-head intellectually with the Founding Father. I'm proud of the work everyone is doing on this all important issue. But now...Fr, Bernas on voting jointly or separately: (I reserve my own caveats for the comment thread)

One of the central issues in the current debate on Charter change is the role that the Senate should play. At the moment it is fairly certain that the Senate is not yet willing to join Charter change. But the likelihood is that it will join after the elections of 2010. When it does, how will the voting be—jointly or separately?

That the Senate should be part of the process is beyond question. You can probably count with the fingers of one hand the number of politicians who will question that proposition. As to the manner of voting, however, there is ample debate. I have written on the subject in the past, but it may not be unhelpful to rehash my views on the subject.

The constitutional text is not very helpful. It simply says: “Any amendment or revision of this Constitution may be proposed by the Congress, upon a vote of three-fourths of all its members . . .”

Indeed, there are provisions which specify when the two houses vote separately, namely when breaking a tie between two presidential candidates (VII,4), when confirming the president’s nomination of a vice president to fill a vacancy (VII,9), when declaring a president to be incapacitated (VII,10), and when Congress declares the existence of a state of war (VI,23). From these it might be concluded that when the Constitution wants separate voting it so indicates unequivocally.

There is, however, also a provision which requires Congress to vote jointly, namely when Congress wants to revoke a declaration of martial law or a suspension of the privilege of the writ of habeas corpus (VII,18). From this, it may, with equal logic, be also concluded that when the Constitution wants the two chambers to vote jointly, it so indicates unequivocally. One might also add that voting jointly is so unique for a bicameral body that it is allowed only in one specific instance.

My conclusion from these two separate set of provisions is that the solution to the textual ambiguity cannot be found in any of the separate provisions of the Constitution. These separate provisions do not illumine but only heighten the ambiguity. Thus we are forced to look for clarification and help from elsewhere.

Are there other aids to constitutional interpretation when faced with textual ambiguity? There are. I suggest an exploration of these aids. And the final conclusion may depend on the modality of interpretation that is chosen. Briefly, what are the possible approaches?

One approach used for dealing with an unclear text is historical. It involves an analysis of the intention of the framers of the Constitution and the circumstances of its ratification.

Another is the structural approach. This involves drawing inferences from the architecture of the power relationships in the constitutional arrangement. Structure is what the text shows but does not say. An easy example is “separation of powers.” The text does not say it, but the actual distribution of powers to three departments shows it.

And, of course, there is the doctrinal approach which simply follows earlier judicial decisions. This is the doctrine of stare decisis.

Still another is the ethical approach which seeks to interpret the Filipino “ideals and aspirations” embedded in the constitutional document.

Finally, one might use the prudential approach by weighing and comparing the costs and benefits that might be found in conflicting rules.

I suggest that a combination of the historical and structural approach will be helpful.

Historically, the current provision on amendments and revision was debated on and approved on July 7 and 8, 1986. The prevailing mood then among the members of the Constitutional Commission looked like a preference for a unicameral legislative body. In fact the draft at hand provided for unicameralism. For that reason, the amendatory provision of the 1973 Constitution for a unicameral Batasang Pambansa was copied. On July 28, 1986, however, after much debate, the commission, by a very close vote of 23-22, decided to go bicameral. The commission, concerned as it was with other issues, did not look back. Now we are left with the necessity of trying to construe the meaning of a constitutional provision originally designed for a unicameral legislature but now being placed at the service of a bicameral legislature.

How should a bicameral Congress use it? Congress should use it the way bicameral Congresses are expected to act.

When we look at the reasons the framers of the Constitution went bicameral, we can easily see that the arguments for bicameralism were the traditional ones which say that (1) an upper house is a body that looks at problems from the national perspective and thus serves as a check on the parochial tendency of a body elected by districts, (2) bicameralism allows for a more careful study of legislation, and (3) bicameralism is less vulnerable to attempts of the executive to control the legislature.

I would focus on the second and third arguments. First, bicameralism allows for a more careful study of legislation. Simply put, two heads can be better than one. And since the Constitution is the supreme law of the land, any change done through a bicameral body must be accomplished through the most thorough decision-making process, namely a two-step process.

Second, bicameralism is less vulnerable to executive pressure. In the current context, the prevailing suspicion is that President Gloria Macapagal-Arroyo is pushing her own agenda. True or not, the suspected agenda need purification.

Am I therefore saying that a unicameral body is incapable of a thorough study? I am not saying that. In fact, during the debates of the 1986 Constitutional Commission I voted for a unicameral body. (However, in retrospect and looking at the current House of Representatives, I am glad my side then lost!) What I am saying is that, since Congress is bicameral, it must act as bicameral.

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Dancing jailbirds

Americans have been amused by our Cebu jailbirds dancing to Thriller and Heal the World as a tribute to the King of Pop. Now even Anderson Cooper of CNN found it amusing and had a laugh. Perhaps the Yanks can be more amused if instead of agnozing what to do with Gitmo, they step back a while and let the inmates dance Thriller. The jaded would even agree that this is punishment that fits the crime since Guantanamo is really a surreal place on earth.

Since penal theory says that these punishments are meant to reform, perhaps Obama and the US Congress can get tips from the warden of the Cebu maximum security prison. According to him, the inmates behaviour had improved. Cebu tourism now sells the dance routine performed every month. It seems to be a sort of touristy trap 'cultural show" we are dished out when we are on the complimentary hotel city tour!

And old Raul Castro now holding on to a silly and outdated socialism may find Gitmo attracting Euro and USD spending tourists. Who knows the Cubans may boost their tourism revenues and turn on the water back to Guantanamo.

And who is the Thriller? Not Wacko Jacko but Wacko Bin Laden!

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Where is Public Accountability?

The head of Britain's Conservative Party, David Cameron, announced last June 25 that more than 100 of its parliament members will repay the UK government a total of 250,000 pounds, or more than $400,000, representing unjustified expense claims. This came in the wake of the expense scandal in the British House of Commons where several members of parliament (MPs), both from the leading Conservative and Labour parties, charged bogus or personal expenses against the government. After UK's Daily Telegraph exposed the scandal in May this year, several MPs, including House of Commons Speaker Michael Martin, resigned in shame.

Just recently this week in the US, South Carolina Governor Mark Sanford apologized in a press conference for having an affair with a woman in Buenos Aires, Argentina. He also announced his resignation as head of the Republican Party governor's association, and it would probably be just a matter of time before he eventually resigns as governor with the mounting calls for his resignation. This came on the heels of Nevada Senator John Ensign's similar public apology last week for his extramarital affairs with a campaign staffer.

Governor Sanford is not the first governor to publicly admit to wrongdoing in recent memory involving US politics. Eliot Spitzer, a man who was touted as a possible presidential contender like Sanford, did the same last year and resigned as New York governor after an FBI investigation revealed that he patronized a prostitution service. Of course, Governor Rod Blagojevich of Illinois was an exception by adamantly denying wrongdoing even after Justice Department investigators caught him on tape attempting to sell the Illinois Senate seat vacated by President Barack Obama. He tenaciously clung to the governorship until a unanimous Illinois Senate voted him out of office in an impeachment trial. There is an interesting parallel here with President Gloria Macapagal-Arroyo.

While sex scandals or extramarital affairs involving government officials in the Philippines are not as popular - or, dare I say it, not as exposed and a cause for official resignations (heck, we even elected a known womanizer as president!) - we surely are not in shortage of corruption scandals. On the contrary we abound with them from the lowest to the highest levels of government. But do we ever see these somber press conferences where the erring public officials admit, apologize and announce their resignations from office? Well you know the answer to that. What we see are thick hide public officials who invariably blurt the trite and tested lines "prove your accusations in court," "I serve at the pleasure of the president," "I will only resign when the president tells me to," "this is politically motivated," etc.

Resignation as a face-saving measure or dictate of delicadeza - that uniquely named Filipino virtue of acting with a sense of propriety - is an unpopular concept among our public officials who have been exposed with involvement in corruption or other malfeasances. And even when a few resorts to it, it is not out of a sense of delicadeza but to take the heat away from them, while boldly claiming their innocence. When Benjamin Abalos, Sr. resigned as COMELEC Chairman amid allegations of bribery in connection with the NBN-ZTE scandal, he never admitted to any wrongdoing; on the contrary he insisted on his innocence and vowed to clear his name. The same is true with COMELEC Commissioner Virgilio Garcilliano who resigned as a result of the so-called "Hello Garci" scandal.

What is even more distressing is that scandal-besieged public officials or figures use the notoriety they have generated from these controversies in running for public office. And some of them even get elected!

When in 2005 the "Hello Garci" tapes surfaced revealing private conversations between GMA and COMELEC Commissioner Garcilliano regarding the status of the former's votes in the just then concluded 2004 presidential elections, not a few entertained the possibility of GMA tendering her resignation or being removed from office by impeachment for what was seen as evidence of vote-rigging. But many were disappointed. Instead, GMA gave a televised address and in somber tone apologized to the people. She, in skillful spinning, downplayed the gravity of what she did by claiming it was merely a lapse in judgment and was only trying to ensure the protection of her votes as an anxious candidate since it was taking long for the results to come out. And the impeachment complaint against her did not fly.

More than three decades ago US President Richard Nixon resigned as president after his tape recordings inside the White House - revealing his involvement to cover up the break-in at the Democratic Party's headquarters at Watergate - were made public. Nixon faced the certainty of impeachment and removal from office, so he decided to save face by resigning. Although equally guilty of an egregious conduct, GMA was not similarly disposed as Nixon because unlike him, she did not face the certainty of impeachment, let alone removal from office. Her supporters and allies in the House of Representatives saw to this. Never mind the public opinion - the same care-free attitude that these representatives now brazenly display as regards HR 1109.

So what accounts for this alarming and despicable lack of public accountability among our public officials? We surely are not timid people who just allow official wrongdoing to go on unchecked. Our history clearly illustrates this. The continuing public outrage against HR 1109 speaks well of this. But still the HR 1109 congressmen are adamant in pursuing Cha-cha; they are unfazed by and continue to defy public opinion. The bar of public opinion, it seems, is no longer a controlling gauge of our politicians' conduct that they have become so insensitive of the public pulse. Where has accountability gone?

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A Community Left Out in the Cold

By ATTY. RODEL E. RODIS

[Philippine Commentary warmly welcomes our new Contributing Author. Rodel Rodis is an outstanding leader of the Filipino American community, one of its highest elected officials as member and President of the SF City School Board and through many decades of legal and social service.]

SAN FRANCISCO - Greg Macabenta, Baylan Megino and I answered the call of Rudy Asercion, Executive Director of the West Bay Pilipino Multi-Service Center, to attend the public hearing of the San Francisco Board of Supervisors on June 22 to speak out in favor of providing city funding to West Bay Pilipino Multi-Service Center, the community non-profit agency that provided services last year to 3500 Filipino families in the South of Market (SOMA) district of San Francisco.

Rudy had sent out an SOS email expressing outrage that the Filipino community had been totally excluded from the $9-M of city funds that would be allocated to various community agencies throughout San Francisco. Every ethnic community in every section of the city would receive their share of city funds, all that is, except for the Filipino community which was completely shut out.

The public hearing would begin at 5 p.m. and Rudy lined up early to get us speaking cards so that we could express our support for the inclusion of the Filipino community in the allocation of community funds. When Greg, Baylan and I arrived at the second floor of City Hall, Rudy was there with our speaking cards informing us that “we’re no. 4”. We were elated to hear that we would be among the first to speak as we saw over 400 people lined up all over City hall carrying their own speaking cards ready to advocate for funding their various community programs.

After waiting in line outside the chambers of the Board of Supervisors for about an hour, we learned to our frustration that before our “group 4” could speak, groups A to Z and 1 to 3 would speak first. Wow! Greg, publisher of Filipinas magazine, still had the July issue of his magazine to “put to bed” that evening so he couldn’t wait hours to speak. He asked Rudy’s permission to leave which Rudy gave, grateful that Greg had shown up to express his support.

All the ethnic groups from every part of the city were represented among those waiting to make their pitch for funding to the Supervisors. We were not the only Filipinos there as idealistic young Pinoy students from San Francisco State were poised to speak on behalf of the Veterans Equity Center (VEC), and young Pinays from the Asian Women’s Shelter (AWS) were also there to speak of the high incidence of domestic violence in the Filipino community. Representatives of a Filipino workers group providing support to exploited Filipino caregivers were there as well to make their case for funding.

Every one would be allotted one minute to speak and then the bell would ring which would alert the speaker to end his or her speech. While everyone more or less kept to the time requirement, a few would greatly exceed it, prompting a second bell.

It was about 10 p.m. when were told to line up as “group 4” would soon be called. A dozen speakers later and it was finally our turn. Rudy Asercion spoke first and described the vast array of services provided by West Bay to serve the poorest of the poor of SOMA including after-school tutorials, financial literacy and healthy lifestyle programs as well as life skills training. West Bay had collaborated with the Filipino Senior Center, the Filipino Family Resource Center, the South of Market Clinic and the SOMA Employment Center to present a comprehensive package of services for the Filipino community.

Rudy was followed by Baylan who pointed out that Filipinos comprise more than 6% of the San Francisco city population and that we have “the highest teen pregnancy rate, the highest dropout rate, the highest mortality rate due to domestic violence, and the highest mortality rate in several types of cancer”. She expressed shock that given the basic needs of our community that no grant funds were recommended for any of the Filipino community organizations.

Then it was my turn. As a former elected official of the city for 18 years, I personally knew many of the Supervisors. In my speech, I described the history of West Bay as the most empowered and empowering Filipino community agency in the SOMA district. By 2005, after 35 years of solid work in the community, West Bay had been duly recognized by four city departments as the agency that best served the SOMA community and was properly awarded $468,501 in city funds for its various programs.

But then in that year 2005, the San Francisco Chronicle reported that a West Bay employee was involved in a Medicare scam in the South of Market district. This news article provided the district’s supervisor, Chris Daly, with the excuse to ask the Board of Supervisors to freeze the city funds that had already been allocated to West Bay until, he said, West Bay was cleared of any involvement in the Medicare fraud.

For two months the various city agencies that funded West Bay, together with the FBI, investigated the Medicare scam charge and determined that only one West Bay employee (out of 30 West Bay employees) was involved and she had already resigned. West Bay, they concluded, had nothing to do with the scam. Despite this clearance, however, the Board did not restore the funding back to West Bay, which was then forced to lay off all of its employees and to eliminate the programs that had been effectively serving the community since 1969.

But the Filipino community would not let West Bay die. Slowly but surely, over the years, under the leadership of Rudy Asercion, West Bay came back, once again serving the needs of the most underserved community in the city.

As my time was running out, I prepared to sum up. “Supervisors, I urge….” Then the bell rang and as I was about to finish my sentence, Supervisor John Avalos curtly cut me off saying “Thank you!” as if to say “Next!” Avalos did not do this to any other speaker. I looked at Avalos and remembered that he was Daly’s chief deputy in 2005 when Daly cut off the funds to West Bay. No wonder.

Later, as Rudy, Baylan and I left the chambers, one of the Supervisors, Bevan Dufty, ran after us to apologize for the discourtesy extended to me. He asked for more information about the programs of West Bay and promised to do what he could to restore the funds to West Bay.

A community forum to discuss the exclusion of the Filipino community in the San Francisco city budget will be held on Saturday, June 27, 2009 at 12 noon at the Social Hall of the San Francisco Philippine Consulate at 447 Sutter Street. For more information about West Bay, call (415) 431-6266 or log on to www.westbaycenter.org.

(Send comments to Rodel50@aol.com or mail them to the Law offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127. For past issues, log on to Rodel50.blogspot.com).

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Rope-a-dope?

Lakas Kampi is indeed a giant. Organization, money, government resources are in their hands. But flashback to 2007 senatorial elections. Although Lakas Kampi was divided in the local level they were solidly united behind the senatorial ticket and yet they were routed. Because the choice was clear. The opposition had no problem communicating its message to voters. There were no distractions. The focus was on GMA and any national candidate associated with her became her.

Lakas Kampi is doomed at the national level if 2010 is fought like 2007. So the idea is to throw the opposition off its game. No middle of the ring toe-to-toe fighting. Move to corners and tire out the opposition with feints like cha-cha, GMA running for congress, transition governments, and all sorts of other talk.

PaLaKa is big in the small pond (congressional and local offices) but is nowhere in the big pond. As long as the face of corruption looks like a frog they will get nowhere. If they cannot elect a president or a majority senatorial slate, they are nothing. So they throw in everything, every impersonal “objective” issue to avoid turning the fight into personalities.

Here’s the thing. They will keep pushing chacha etal until time runs out. Why? Because that way, we debate legal issues instead of focusing on the personalities who will stand in for Gloria in 2010.

Take Gilbert Teodoro for example. Here’s a guy who, if only he were not in Gloria’s camp, would merit serious consideration. But we are not looking at him that way and asking ourselves why a guy like that would run on the ticket of a party that totally supports everything Gloria has done.

He sells himself as Mr. Clean in the cesspool. As if that’s possible without totally washing himself clean off Gloria and her followers. But until time for cha-cha runs out he will get a free pass.

And after chacha runs out, the next issue will be the legality of Gloria running for a lower office. And all that time Gilbert and Gloria’s senatorial slate will be under the radar.

How do we, without defaulting on the cha-cha issues, keep the heat on any and all national candidates running under Gloria’s party?

Because at the end of the day, if Lakas Kampi control the national offices, we are fucked.

The war is all about “who” not “what.” Because in politics, it is the “who” that tells us the “what comes after.”

Let’s not lose our focus.

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The Last Time Comelec Tried Automation...and the Next

At the IBLOG5 Bloggers Conference held at Malcolm Theatre of the U.P. College of Law last month, I was seated beside the Comelec's Spokesman, James Jimenez who has been a blogger for many years and is the sort of government official who takes public abuse with apparent good humour and equanimity. I suppose that is a necessary qualification to work at Comelec!

At the time, there were still three live bidders under consideration by Comelec to automate the 2010 elections (AMA, Israeli firm Gilat, and Smartmatic). But there was also a lot of talk that there would be a failure of the bidding process and 2010 would have to be conducted manually. But James gave an upbeat presentation of the Comelec's automation plans and confidently predicted there would be a clear winner whose system would be acceptable "even to people like you"--whereupon he cast a friendly but chiding elbow and evil eye at me. Sitting on the front row of IBlog5, James Jimenez reminded me about the last time that Comelec tried to automate the elections. That was under Ben Abalos in 2003 with his ill-fated MegaPacific Automated Counting Machines and the billion peso bidding fiasco that was so severely dealt with by the Supreme Court in its en banc decision, penned by Chief Justice Artemio V. Panganiban: Information Technology Foundation v. Comelec [G.R. No. 159139. January 13, 2004]

My favorite passage of this SCoRP decision striking down Ben Abalos' scandal tainted automation project of 2003 is the following paragraph that happens to contain Footnote 54:

J. Panganiban: But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and “re-programmed” the software to the point where the automated system could function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the automated system performs dismally and inaccurately or, worse, is hacked and/or manipulated?[54] What then will we do with all the machines and defective software already paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in case of failure of the automation?

And here indeed is Footnote 54 of the above SCoRP decision:

[54] In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled “Digital ‘dagdag-bawas’: a nonpartisan issue” by Dean Jorge Bocobo, from which the following passages appear:

“The Commission on Elections will use automated counting machines to tally paper ballots in the May elections, and a telecommunications network to transmit the results to headquarters, along with CDs of the data. Yet, with only five months to go, the application software packages for that crucial democratic exercise--several hundred thousand lines of obscure and opaque code--has not yet even been delivered in its final form, Comelec Chairman Benjamin Abalos admitted last week.

“My jaw dropped in amazement. Having built software for General Electric Co.'s medical systems business and military aircraft engines division (in another lifetime), I have learned the hard and painful way that 90 percent of unintended fatal problems with complex software lies in the last 10 percent of the code produced. From experience, I can assure you now with metaphysical certainty that not even the people furiously writing that software know whether it will actually work as intended on May 10, much less guarantee it. Simply put, the proposed software-hardware combination has neither been tested completely nor verified to comply with specifications.”

It's flattering to be quoted by SCoRP in an historic decision, but I feel absolutely no regrets whatsoever that Abalos' Automated Counting Machines were TKO'd by the Supreme Court in 2004, nor any remorse that I had played some very small role in stopping it. But, of course, after the 2004 national elections, I did wonder if the Supreme Court had not in fact been led by the nose to scuttle a system that the likes of Virgilio Garcillano, Bedang Bedol and their ilk probably did not want in place at that point in history. I doubt that we shall ever know...But fast forward to the present and James Jimenez's prediction or promise that 2010 would be an automated election.

I was skeptical at the time, sitting there with him at IBlog5, but now, lo and behold, the Poll Automation Law shepherded through Congress by Sen. Dick Gordon has apparently resulted in Comelec selecting a system and service provider to undertake the historic first-ever automated Philippine national elections in 2010. In its Notice of Award to the winning consortium bidder, Total Information Management Corp. plus Smartmatic, Inc., the Commission said:

You are hereby notified that pursuant to En Banc Resolution No. 8608 dated June 09, 2009, the Commission AWARDS to your joint venture the contract for the procurement of counting machines, including the supply of ballot paper, electronic transmission services using public telecommunications networks, training, technical support, warehousing, deployment, installation, pull-out, systems integration and overall project management, for the Automation of the Counting, Transmission and Canvassing of Votes for the May 10, 2010 Synchronized National and Local Elections, particularly:

...Particularly 7,191,484,739.47 pesos worth of goods and services.

Something James told me at IBlog5, which really stuck to my mind, was a conceptual distinction he made to me about automated systems being TAMPER-PROOF or being TAMPER-EVIDENT.

Speaking to ABSCBN News this past week, Comelec Spokesman James Jimenez mentions the fact that the Smartmatic system of 82,000 plus counting machines will be transmitting RAW PRECINCT DATA to a Comelec Database that could theoretically provide a strong measure of transparency would go a long way to securing the election. The idea here is that the "addends" that will eventually be canvassed and summed up for final vote tallies will be open to the public.

But the details of this open public database are unknown:

(1) Will it be online such that an outfit like Namfrel or a Bloggers Consortium, or some large nonpartisan citizen's group, could indeed organize an independent canvass using the exact same data as the Comelec and Congress--at least for the President, Vice President and Senators?

(2) Will it have the bandwidth ("big iron") to service the likely flood of public queries and organized efforts at auditing the results? Or will the thing bog down on Election Day and the Comelec will sheepishly apologize because they put some poopy laptop in to service the gigabit per second incoming query data?

(3) What would happen in the case of massive discrepancies? Can an independent group get special Comelec certification to help specify and build this major aspect of transparency? There are after all still 4 billion pesos left in the automation budget!

People who are interested in this aspect of the 2010 Automation Election need to get organized around the effort RIGHT NOW! The election is less than a year away.

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Who Will Guard the Guardians of Democracy?

Suppose the Lower House convened itself into constituent assembly sans the Senate’s participation and introduced amendments to the Constitution. Let’s suppose further that a Malacanang-funded plebiscite was called by the Comelec for the purpose of amending the Constitution. Let’s finally suppose that the Supreme Court affirmed such acts of the Lower House and the Comelec via a final unanimous decision.

Clearly, the ruling of the Supreme Court in the above situation is erroneous, wrong and unconstitutional.

My lessons in constitutional law teach me that a Supreme Court’s decision is invariably right, right or wrong, and becomes the law of the land. No other department of the government can overrule such decision.

Who can then correct the decision of the Supreme Court that is obviously unconstitutional? My lessons in constitutional law say that only the Supreme Court itself may reverse its earlier decision that is perceived to be unconstitutional through a proper case. This is a long process and may not even occur if no similar case occurs.

There’s another way and it’s also a long shot and very theoretical, i.e., the people in their exercise of sovereign power (or through their representatives) may change the constitutional provisions interpreted wrongly by the Supreme Court in accordance with the amendatory provisions of the Constitution.

In my view, there is no better action against any infidels of the constitution than the exercise of direct people power.

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Amongst the Legal Eagles on Constituent Assembly

OR, How Two Opposed Arguments Reach the Same Wrong Conclusion on Conass

I attended yesterday's conference at the Ateneo de Manila University Law School at the Rockwell Center in Makati on the Constituent Assembly proposal of the Lower House. I recorded the four main speakers and offer a summary and reaction to their statements in the Comment Thread. I invite all Philippine Commentary authors, readers and visitors to listen to the speeches and enter comments on this important and crucial issue facing the nation...

Joaquin Bernas, SJ [MP3]

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Manuel L. Quezon III [MP3]

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VICTOR F. ORTEGA [MP3]

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ADEL TAMANO [MP3]

Before his address to ADMU law students yesterday about the brewing controversy over House Resolution 1109 to convene the Members of House and Senate into a Constituent Assembly, I asked Founding Father Joaquin Bernas a hypothetical question:

If the Senate--for whatever reason and no matter how unlikely it actually is today--were to pass a resolution of its own, agreeing to convene in Joint Session with the Lower House, AND agreeing to make no distinction between Members of the Senate and Members of the House when voting to propose amendments to or revisions of the Constitution--would this be Constitutional? In other words does the Congress have the power under the Constitution to decide via separate Joint and Concurrent Resolutions that henceforward the Members of House and Senate will VOTE JOINTLY when proposing Charter Changes.

I was SHOCKED and DISAPPOINTED at his answer: "NO!" Fr. Bernas said, he would go to the Supreme Court himself with a justiciable controversy over such a hypothetical move by the Senate, because as he very plainly made clear in his talk to the students, he believes this would violate the essential bicamerality of the Congress.

I BEG TO DISAGREE.

For I cannot understand how such an arrangement would be unconstitutional. To me, as long as the Senate and the House SEPARATELY agree that their Members will VOTE JOINTLY on chacha proposals with both Houses applying the three fourths majority rule, the Constitutional provision is completely upheld:

Article 17 Section 1: Any amendment to, or revision of this Constitution may be proposed by: (1) The Congress, upon a vote of three fourths of all its members; or (2) A Constitutional Convention.

Indeed, the present arrangement is one in which Senate (without passing an explicit Rule) and House (by adopting Rule XX in 2007 and since 1987) have SEPARATELY decided that their Members will propose charter changes in the manner of processing bills...i.e. that they will vote SEPARATELY.

Just last Friday in his PDI column, Fr. Bernas defined for us what he calls the "1109 Purists" among the House Members backing what is essentially a unicameral conass. This group of people believe that it would be unconstitutional for House and Senate to VOTE SEPARATELY because they believe the "plain language and meaning" of the cited provision FORCES a joint voting of all the Members of the Congress.

Now of course anyone who understands the Distributive Law of Multiplication under Addition can see the utter weakness and fallaciousness of this argument from Bernas' 1109 Purists. It is abundantly clear, and mathematically undeniable, that the constitutional requirement of "three fourths of all its Members" can be complied with entirely and compleatly by the Congress under EITHER a joint or separate voting rule.

But is Father Bernas' own position and argument any stronger than that of the Unicameral or 1109 purists? I think only very marginally so, and as I will show below, his argument leads to the SAME wrong conclusion as that of the House. I would characterize Bernas' position as a "1935 Purist!" in which he makes an appeal to the explicit nature of the provision in the 1935 Constitution which instructs the House and Senate to meet in joint session for joint deliberations, but separate voting. This is his position too: that House and Senate can meet in joint session but must vote separately.

I agree with his conclusion, but I don't believe the justification for it is IN the 1987 Constitution! Even with Fr. Bernas' recollection that during the 1986 ConCom deliberations which crafted 1987, they had fully intended to say "voting separately" but just forgot after the Bicameralist won by one vote, we are still faced with the plain text of the Constitution which plainly allows either JOINT or SEPARATE voting. As Father Bernas himself says in the speech, "What the Constitution does not prohibit, is allowed". (He says this in explaining that the Congress may propose ANY amendment or revision).

I think that BOTH the arguments of the 1109 Purists and the 1935 Purists (with whom I side only philosophically) are EQUALLY WEAK and FALLACIOUS.

The only thing they seem to agree upon however is the conclusion that this must all be settled by the Supreme Court (SCoRP), with the 1109 Purists banking on the 14 of 15 Justices reportedly in GMA's pocket (I don't necessarily believe that), and Fr. Bernas on the fundamental principle of Bicameralism.

AGAIN, I BEG TO DISAGREE.

I think that the CONGRESS has the entire discretion and power to decide HOW it will exercise Constituent Power. I think that the Constitution, grants to it that power, save that it must comply with the three fourths majority rule. I do not believe that the Supreme Court can, or should decide for the Congress. The TEXT of the Constitution DOES NOT PROHIBIT either joint or separate voting. Both modes would be Constitution IF AND ONLY IF either rule is adopted SEPARATELY by both Houses of the Congress.

I believe that the central issue here is not: "Joint or Separate Voting?" but: "Who decides: SCoRP or the Congress!"

IF the Congress cannot agree on HOW it will exercise Constituent power, they would not violate anyone's rights, neither each other's, if they DO NOT or CAN NOT propose charter changes! Yet is it not obvious that up until GMA and the House minions decided they would be willing to throw the country into Constitutional Crisis by intentionally and despicably igniting a "justiciable controversy" that the Congress HAD ALREADY decided it would be voting separately?

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