Venir’s Blog

After mass yesterday afternoon, I walked the few blocks from St. Patrick’s Cathedral to Central Park.  St. Patrick’s and Central Park are, of course, main tourist attractions in New York.  Hence, sidewalks were difficult to navigate as they were filled with tourists with their cameras and backpacks and shopping bags.

On my way to the park, I saw this white truck—ubiquitous in Brooklyn—and suddenly had an urge to have some soft ice cream on a cone.  A picture of the chocolate twist flavor painted on the truck’s side looked promising but the vendor had run out of it, so I had to settle for the chocolate flavored one.  I finished my ice cream quickly, and just as quickly got thirsty.  So I had to buy a bottle of water from one of the numerous sidewalk vendors near the park. Ang mahal naman: $3 for a half-liter bottle!  But this is New York, what was I thinking?

Lugging my precious bottle of water, I entered the southwest entrance to Central Park.  Near the entrance were pretty horse-drawn carriages and the usual assortment of vendors—including portraitists who make your sketch on the spot and sellers of framed pictures of New York’s famous sights and of other memorabilia—catering to tourists.  The air was rich with the smell of horse manure, but after some time one gets used to it.  A few steps into the park and I was assaulted by another offensive smell. Mabang-ug an Central Park!  May nag-uro sa ligid.  Chaka!

Central Park is the proverbial melting pot, probably a reflection of New York’s undeniably international character.  Sitting beside a group of scantily-clad Caucasian teenagers lying on the grass was a Middle Eastern family having a picnic.  The mother and daughter in the picnicking family had traditional Islamic headdresses on, but the father was dressed in the quintessential American summer outfit—a t-shirt and cargo shorts.  And as I walked farther, I heard familiar words from another group.  A family was arguing rather loudly in Tagalog.  Some family members wanted to go to the Rockefeller Center, while the others wanted to stay in the park longer.  I was embarrassed by my eavesdropping, even though unintentional, so I moved away and didn’t wait for a resolution of the argument. 

I ended up sitting on one of the benches and watched a ballgame.  I could have watched one of the softball matches going on, but I chose a game similar to one I’ve seen while jogging at the National Mall in DC.  I never learned its name, but the game is similar to softball or baseball, except that the ball used here is a basketball (softened by letting some of the air out?) and there’s no bat.  Instead, the ball is hit by the “batter’s” foot in a manner not unlike a soccer player executing a penalty kick.  The difference, of course, is that there’s no goal here and that the direction and force of a kick are calculated based on whether or not there are players in any of the bases.  As I watched, the number of onlookers swelled and in no time some of my fellow watchers started cheering for their favorite team. 

As usual, I rooted for the underdog—the team whose pitcher was a woman of, shall we say, Rubenesque proportions.  She moved rather slowly because of her prodigious bust and waist, but I thought she pitched beautifully.  In contrast, the pitcher of the opposing team was a swaggering, big-muscled, and loudmouthed guy.  So I rejoiced very much when the team I was rooting for won.  Sometimes, you see, underdogs do win.

Towards the end of the game, I almost jumped out of my skin because a raccoon suddenly materialized near my seat.  It was a big one, around two-feet in length, and I didn’t care very much for the dark rings around its eyes.  Raccoons are a curious sort.  They don’t seem afraid of humans—or, at least, this one wasn’t.  It returned the nearby onlookers’ stare with unnerving nonchalance, even insolence, and seemed to suggest that it had as much right to be there as any of us.  After ogling us for an uncomfortably long period, it went up one of the trees and, perched on a branch, joined us in watching the game. 

It was already dusk when the game ended.  Buoyed by the underdogs’ victory, I decided it was time to look for the nearest metro station.  As I got up from my bench near the baseball diamond, I thought I saw some tiny flickering lights.  The lights were weak—it was not yet fully dark—but clearly discernible.  I walked to the bushes where the tiny flickering lights were more pronounced and saw that they were fireflies.  My heart started to sing.  There are fireflies in Central Park!  New York may be the world’s greatest city, but it shares something in common with the Gamay of my childhood:  fireflies.  I guess this is just my roundabout way of saying:  I miss home.

Since Saturday, I’ve been hard at work on my laptop, trying to find a cure to an infection that wreaked havoc on my computer. I must have unwittingly downloaded a virulent type of malware because every few minutes a couple of windows opened on my desktop, telling me that I’ve been invaded by some viruses and encouraging me to buy some software to purge the infection. The warnings were utterly believable because they gave a list of the viruses, worms, adwares, spywares, trojans, dialers, and other malwares that supposedly invaded my computer. They also carried an icon similar to the shield-shaped Windows “Security Center” icon and deceptively carried the name “Antivirus 2008 Pro.” However, a closer scrutiny of the popup windows showed a lot of misspellings. I then remembered a warning I read somewhere that a lot of malwares usually evince sloppy spelling and grammar.

In addition, instead of going to my homepage every time I opened my web browser (Internet Explorer; I have since switched to Firefox), something forcibly directed my browser to one displaying a warning that the page I was about to view was not secure and redirecting me to the website with the purported downloadable solution. Also, whenever I tried going to a new website, a different one popped out. These actions, I learned later, are called hijacking. To make matters worse, my computer started slowing down. Even ordinary applications were taking a very long time to load. Sending an email, for instance, was an exercise in extreme patience.

All these indications, of course, pointed to an infection or several infections. In fact, I would learn later that I was infected by a host of viruses and other malwares. The most irritating, however, was a spyware, a kind of program that, among others, invasively encourages one to buy some unnecessary software, tracks visited websites, and forcibly directs the user to certain sites by manipulating the internet tools in one’s browser.

I trolled the internet for (hopefully free) solutions to my problem. Naturally, since the internet offers hundreds of thousands of possible solutions, choosing the right one was tough. A lot of trial-and-error attempts ensued, and I ended up choosing a free anti-spyware software (Spybot Search & Destroy) as well as buying another (Ad-Aware 2008 by Lavasoft). I had to pay for Ad-Aware because the free version didn’t seem to work. Considering that I have an existing paid subscription to McAffee, the cheapskate in me was objecting to shelling out a few more bucks, but my programs and files are too important to be left to the mercies of some spyware-creating scumbug.

It took me several attempts to scan and clean up my hard drive before my laptop was able to regain some modicum of utility. My laptop still seems sluggish compared to its speed prior to the infection, but this may be due to some unpurged malware or the concurrent operations of my multiple anti-virus and anti-spyware programs. However, I’m happy to note that I could now use my browsers with a certain degree of confidence that they will not be hijacked. Also, unwanted windows have stopped popping up.

This experience tells me that one of the most effective ways of slowing down an information-dependent society is to have its people’s computers infected. A lot of productivity is lost whenever something like this happens because so many of us have become too dependent on the information superhighway. Indeed, waging information warfare that targets civilian installations is a form of asymmetric warfare taught in military schools. I wonder if this form of warfare would have the equivalent of suicide bombers. I just hope that the bright people out there will have a solution to electronic suicide bombing before it becomes a reality.

In the midst of irritation at being infected by a spyware, something caught my eye and made me stop. Like most everyone I know, I don’t usually read an end-user license agreement (more popularly known as “EULA”) before downloading a program. I normally just click on the “I agree” button, but something made me read the EULA for Spybot S&D. Who would have thought that a EULA could make one cry? Apparently, Spybot S&D is a work of love. Its author says that Spybot S&D is free because it is “dedicated to the most wonderful girl on earth.” Probably because of its unanticipated presence, this declaration of affection in a EULA unexpectedly stung my eyes. Whoever said there was no romance in the geeky world of ones and zeros, of bits and bytes? Now, go ahead and download a copy.

Friends know I’ve always wanted to teach.  So when I was invited to interview for a teaching fellowship at the UCLA law school, I was at first astounded.  I didn’t even apply for the job.  I remember applying there for a researcher’s position.  I first thought it was a joke, but when UCLA paid for everything—airfare, hotel, transportation, the works—to get me there, I knew they were serious. 

The interviews were fantastic and exhilarating, although there were times when I realized I was way in over my head.  For instance, when two constitutional law experts in the faculty asked me about my proposed research (I was asked to submit a research proposal prior to the interview), they must have noticed my eyes glazing over.  Let’s face it:  I studied Philippine constitutional law, not its US counterpart.  So when they asked me about the Full Faith and Credit Clause implications of my proposed research, my answers must have exposed the extent of my ignorance.  Yes, you surmised correctly:  I didn’t get the job.

I suppose the disappointment is greater when something you so desire is within your grasp but ultimately slips away.  I was told I was one of only two candidates being considered for the job.  But it was not as if I didn’t know how stiff the competition was.  Previous holders of the fellowship were alumni, with uniformly high honors, of top ten US law schools.  Had I been hired, I would have been the first foreign-educated holder of the position.

So when the rejection letter came, I was disappointed, of course, but not really surprised.  I’m just glad I made that trip to Los Angeles and renewed my ties with my friends there and with the city I adore.  I suppose I should be consoled with the handwritten note in the rejection letter telling me about the difficulty the faculty had in making its choice.  But I think my response to that was a very veniresque (adj.: denoting a high pitched male speaking voice often mistaken for that of a woman’s; cf. sopranist, a male classical singer who is able to sing in the vocal tessitura of a soprano) and disbelieving: “Charing!”

There is an interesting postscript to the story.  The California Supreme Court handed down its decision in the same-sex marriage cases after my interview.  More recently, the New York state government has announced its intention to recognize the validity of same-sex marriages contracted in places where they are valid.  The research proposal I submitted was exactly on this issue because, like many others, I suspected even then that Massachusetts would not be the last state of the Union to recognize same-sex marriages.  In fact, I used the same NY appellate court decision that Governor Paterson cites as legal basis for his action as take-off point for my argument that states should apply the lex loci celebrationis rule—that is, recognizing the legal effects of a marriage contracted in a foreign jurisdiction and valid there as such—in same-sex marriages. 

Well, all of that is water over the rainbow now.  Or, was it somewhere under the bridge?  These expressions confuse me.  Anyway, the important thing is that I tried.  I failed.  I was disappointed.  No, make that extremely disappointed.  But life must go on, right?  Perhaps I would be more useful elsewhere.  Or, perhaps, in the divine scheme of things, I’m expected to do something else.  So I’ve decided to work in a war-torn country to help “tutor its leaders on the ways of democracy,” as Chris kindly puts it.  There’s still some pedagogy involved.  But the difference, I suppose, is as vast as the difference between Kabul and Los Angeles.

I felt heartsick when I learned that my beloved Narra is gone.  It was reportedly gutted by fire in the early hours of Wednesday, January 9, 2008. Investigators were quoted as saying that old and faulty electrical wirings may be the culprit—which is not surprising, if you ask me, considering that the building was more than half a century old.

During my time (early to mid-90s), Narra Residence Hall was probably the most rundown (and certainly the cheapest) of all dormitories in the University of the Philippines – Diliman.  Heck, it probably was the most rundown of all dormitories in the UP System.  But I will never trade the wonderful memories of my stay there.  It was in Narra where I found, and got to know, myself.  Dito ako naging tao.

I was a painfully shy poli sci sophomore when I entered Narra.  It was not very easy being gay, poor, and from the province in a learning institution that was even then fast becoming an enclave of rich and privileged students.  But I immediately felt at home in Narra because its residents were all provincianos like me.  Suddenly, my thick Waray accent and baduy clothes were no longer very conspicuous since most residents also spoke with provincial accents and wore not-so-fashionable clothes. 

It was in Narra where I started to come out of my shell.  The process was certainly incremental and I can no longer tell precisely how or when it started.  I just realized at some point that I already developed a widening circle of friends that included both gay and straight residents.  During dormitory assemblies, I had unconsciously taken on the role of articulating the sentiments and fighting for the rights of Narra’s gay (whether of the out or closeted kind) residents.  It was, I’ve come to believe, a kind of leadership by necessity and default.  Sometimes it scared me that I was openly inviting retaliation from certain groups in the dormitory.  For instance, an anti-fraternity violence piece I wrote that appeared in the Sunday Inquirer Magazine caused some fratmen-residents to call for my lynching.  But I challenged them to a debate on the issue rather than to settle it through violent and barbaric means.

I’m sure I made some enemies because of my outspokenness.  But I’m also certain that I made more friends in the process, not only among gay residents but also among straight ones.  Some of my closest friends today were fellow Narrehans.  And it should not come as a surprise that the concept for UP Babaylan was born in Narra, that initial discussions for its founding were made there, and that many founding members of the organization were Narra residents. 

I didn’t go gently when it was time for me to leave.  Apparently, there was a practice that deemed third year law students as graduate students for purposes of dormitory rules.  Since Narra during my time was exclusively for male undergraduate students, they wanted to evict me when I reached 3L.  But I threatened the Office of Student Housing with a complaint if they tried to evict me at that point.  I argued that the practice of deeming 3Ls as graduate students found no support from any rule approved by the University’s Board of Regents.  Student Housing relented and allowed me to remain but indicated that they were going to ask other 3Ls to move out.  I didn’t want discriminatory conduct, even if it benefited me, so in the end I agreed to leave the place.

One of my favorite shirts–I still have it in my closet at home–is emblazoned with the words:  “Narra:  If you can make it here, you can make it anywhere!”  The line was, of course, borrowed from the song “New York, New York.”  But nothing could be more apt.  Indeed, despite its rusting plumbing, leaking roofs and rotting ceilings, Narra produced senators, cabinet secretaries, congressmen, politicians, influential business people, and leaders of civil society, the arts, and the professions.  Moreover, Narra alumni are making it not only in the Philippines but also in other parts of the world.  Just recently, I met a Narra alumnus and successful California businessman at the Christmas lunch I attended in Las Vegas.  Originally from Cebu, he stayed in Narra during the early 1950s.  I was pleasantly surprised to hear similarities between his Narra stories and mine even though we stayed in the same dormitory 40 years apart.

Today, Narra is no more.  And I, together with Narrehans around the world, am grieving its loss.  But I intend to keep Narra alive through my memories of the place and the life-long friendships I made during my stay there.

I’m writing this post a day after Thanksgiving, which is a big thing among Americans. I did have a wonderful Thanksgiving dinner complete with the obligatory turkey, thank you very much. My kind landlord, who is vacationing with his daughter in the Middle East, and who knew that I would otherwise be alone, inveigled his friends to invite me to their Thanksgiving dinner. The hospitality and generosity of my hosts as well as the friendliness and kindness of the other guests should lay to rest any doubt about the existence of such qualities in the land of the free. I don’t fully appreciate the historical or cultural underpinnings of Thanksgiving, but it got me into thinking about things I should be thankful for.

To be honest, I was afraid I wouldn’t be writing a happy postscript to my previous post on the New York bar examinations. I found all the exams—the multi-state (i.e., federal) component, the New York State portion, and the multi-state professional responsibility—difficult. The multiple choice questions were particularly tricky because most of the time the choices all seemed to be correct. Given the degree of my uncertainty, I have no idea how I made it. As usual, I ascribe this fortunate result to God’s grace. I thank God for that grace. And I thank everyone—including gods and goddesses and, of course, fairies—who have prayed for me, wished me well, and supported me through the bar exams.

The score report I obtained confirmed my initial observation about the differences in attitudes towards bar exams in the Philippines and the United States. Whereas Filipinos are obsessed with ratings and rankings, I didn’t even get a full report from the New York Board of Law Examiners. I was informed only of my multi-state rating, probably because it helps one determine if the same result meets cut-off scores in other State bars. I have no clue about the rating I got in the New York portion. But I’m not complaining. Ignorance in this case is good for my ego because I can indulge in speculation that I did sufficiently well to pass this portion of the exams.

The good news is that all Filipino students in Georgetown who took the New York State bar exams passed. The bad news is that there was a huge mortality rate for foreign students in Georgetown. Apparently, this is true in other schools as well. A Filipino friend who graduated from Northwestern University told me that more than 70% of her foreign-educated classmates didn’t make it. I don’t know the exact mortality rate for Georgetown, but I would hazard a guess that it is probably in the vicinity of Northwestern’s rate.

It’s not that those who failed the exams are not bright. Many of those from Georgetown who didn’t make it were in some of my classes. And I could tell from class discussions and my interactions with them that they are bright, indeed. It’s probably our facility in the language. Filipinos are lucky in that regard. We learn the language even before we start school and use it as principal medium of instruction in all levels of education. Incidentally, if China is going to be the next economic superpower, which I think is very likely, then Filipinos must start incorporating Chinese (Mandarin probably?) into the educational system. Since Filipinos will soon be taking bar exams and other professional exams in China, we should start mastering the language.

At the moment, I’m in the midst of preparing documents to support my application for admission to the New York bar. Apparently, passing the examinations is not enough. I have to request both the UP College of Law and Georgetown for transcripts. I also have to provide proof of my good standing as a member of the Philippine bar. In addition, I have to submit affidavits of former supervisors in all my law-related employment. Moreover, I have to find attorneys who are willing to attest to my moral fitness to practice law in New York. Finally, I have to submit myself to an interview before they allow me to take the oath. As you can see, becoming a member of the New York bar entails a lot of work. But I passed the exams and that, you’ll agree, is enough reason to be thankful.

The river that bisects Gamay, my hometown, started flooding after the logging concession came. I was in grade school when this started. People of Gamay and the nearby towns were at first happy for the jobs that the logging concession brought. When rainy season came, however, the flooding started. The floods resulted in deaths and damages to riparian properties, including houses and livestock. Unlike in previous years, the water that came rushing through the river was reddish brown with mud and carried a lot of logging debris. My father, who came to live in Gamay after World War II, said that Gamay River was never flooded like this before.

Gamay and other towns in northeastern Samar fell under the logging concession of San Jose Timber Logging Company. San Jose was reportedly owned by Senator Juan Ponce Enrile. This, more than his prominent role in bludgeoning the Filipino people with martial law, is the reason why I never liked Enrile. In 2005, the Department of the Environment and Natural Resources allowed San Jose Timber to resume its operations after a logging moratorium was imposed in the island. Apparently, there are some trees left and they would like to come back and totally denude Samar’s forests and flood the island to death. Fortunately, the resumption order was met with vociferous opposition from Warays, led by the clergy. Warays are a patient and kind people. But we are also known among Filipinos for being courageous.

I never really came to appreciate the magnitude of the destruction that logging operations in Samar brought until I worked for Orly Mercado. Orly is passionate in his concern for the environment. His passion was contagious and I doubt if there was anyone in his Senate staff who was left uninfected by his environmental activism. As his speechwriter, I had the privilege of drafting his speeches for the environment. Armed with impeccable oratorical skills and the conviction of someone who knows he is right, Orly’s passion for the environment shone through his speeches. I have to confess that the most exciting and inspiring times of my stint in his staff were those instances when I watched him deliver on the Senate floor his speeches on the environment. Those were truly magical moments for me.

Orly may be accused of a lot of things and his conduct during and after Estrada’s abortive impeachment trial may have brought into question his political acumen. But one thing is certain: his passion for the environment is undeniable. At a time when environmental protection was impolitic, Orly was already advocating a total logging ban in the entire country. Twice during his 12-year stint, he was able to convince his colleagues in the Senate to pass his total logging ban bill. But in both instances the House of Representatives ignored his bill. The tragedies of Ormoc in 1991 and of Quezon, Nueva Ecija, and Aurora in 2004 would have been avoided had his total logging ban been approved.

Now, as if the thousands of deaths that resulted from the Ormoc flooding and the landslides in Quezon, Nueva Ecija, and Aurora are not enough, the DENR has reportedly ordered the resumption of logging in Samar. This order shows a callous and criminal disregard for the lives and livelihood not only of the island’s current generation but also of future Warays. The three provinces comprising the island of Samar are among the poorest in the country. Is it not enough that the people of the island are barely surviving? Must the government also allow the total denudation of its forests that will result in certain tragedy? Must another Ormoc happen before government stops this madness? Maawa naman kayo!

In law school, I had the good fortune of studying under Professor Antonio Oposa, the lead counsel for the plaintiffs in Oposa v. Factoran.  Oposa, as students of Philippine environmental law will tell you, is the path-breaking case that bestowed currency to the term “intergenerational responsibility.”  This case basically recognizes the obligation of the current generation to preserve and protect the environment for future generations.  Oposa echoes, even if only faintly, the belief of American Indians and other indigenous peoples around the world that we, the current generation, do not own the land. Rather, we merely borrow the land from those who will come after us. Is it not the case that when we borrow something we are obliged to return it in at least the same condition as it was when borrowed?  Given the precarious state of Philippine forests, I’m afraid this generation failed miserably in this obligation.

In a span of nine days, new rules have revolutionized the Philippine justice system.  A new rule on the admissibility of DNA evidence became effective last October 15, 2007.  Nine days later, the much heralded rule on the writ of amparo also became effective.  Filipinos should be glad that, at least in the judicial branch, their taxes are working at a furious pace.  And at the rate the Supreme Court is issuing new rules, I may have to reconsider my view that Congress is the best arena for lobbying to amend the rules on changing entries in birth certificates.  (See blog entry on Silverio v. Republic of the Philippines.)  The Supreme Court shares with Congress the power to promulgate rules to enforce constitutional rights. 

Philippine justice system catches up with technology

Finally, decades after DNA evidence was made admissible in other jurisdictions, Philippine courts now allow the introduction of evidence made possible by advances in molecular biology and biotechnology.  There were, of course, attempts in previous years to introduce DNA evidence before Philippine courts.  As in any new form of evidence, however, Philippine judges viewed DNA with suspicion, if not outright animosity.  DNA evidence was given, at best, persuasive weight.  With the adoption of the new rule on DNA evidence, all of that has thankfully changed.

DNA evidence is particularly useful in establishing paternity as well as in criminal cases.  But having practiced criminal defense, my interest in DNA testing relates to criminal litigation.  Section 4 of the new rules on DNA evidence allows DNA testing of suspects even before they are charged with an offense.  In other words, the police may conduct DNA testing of a suspect even without a court order.  How is this reconciled with the right of a person against self-incrimination?  If I remember correctly, the right against self-incrimination only applies to involuntary testimonial evidence from the suspect.  Hence, if the evidence sought to be obtained is not testimonial in character—as in the case of DNA testing, which only requires object evidence, such as body fluids or tissues—its procurement without the suspect’s consent has been ruled as not violative of the right against self-incrimination.

DNA testing is useful not only for identifying the criminal but also for establishing the innocence of the wrongfully convicted.  Sections 6 and 10 of the new rule provide for post-conviction DNA testing.  DNA evidence can eliminate the possibility of a person ever having committed a particular crime.  In other jurisdictions, it has enabled the release of wrongfully convicted persons who had been serving years, even decades, in prison.  Under the new rule, exculpatory DNA evidence may lead to the filing of a habeas corpus petition for the release of a convict.  

The adoption of this new rule is certainly a cause for hope.  But it should be appreciated with caution and in the proper perspective.   DNA testing is an expensive procedure.  In fact, in its first decision directing a trial court to use DNA evidence under the new rule, the Supreme Court indicated that expenses for the procedure will be borne by the government.  Moreover, even in jurisdictions with far greater resources than the Philippines and where DNA evidence had been made admissible decades ago, backlogs in DNA databases are causing delays in DNA matching.  Let’s just hope that a mechanism will be established (perhaps a non-profit organization can operate a socialized DNA testing laboratory?) to help ensure the accessibility of the technology to those who most need it—the poor litigants.

The protective writ against extrajudicial killings and enforced disappearances

According to the new rule, “the writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.” By demanding greater accountability from public officials, the new writ is the Supreme Court’s response to extrajudicial killings and enforced disappearances in the country. The protective writ is available not only against a violation of the right to life, liberty, and security but also against the threat of such violation.  Section 17 of the rule establishes a greater burden to public officials by requiring them to observe extraordinary diligence in the performance of their duties.  More dramatically, it totally eliminates the presumption of regularity in the performance of public functions.

The writ of amparo is, as pointed out by Fr. Joaquin Bernas, S.J., of Latin American provenance (originally called “recurso de amparo”).   According to Fr. Bernas, an eminent constitutional law expert, the adoption of this writ is in accordance with the power of the Supreme Court to promulgate rules for the protection and enforcement of constitutional rights.  I would like to view the adoption of this rule as an indication of an increasingly activist judiciary.  That is not necessarily a bad thing, especially if the judiciary serves as the last recourse for victims of human rights violations.  (Elsewhere, I have argued against the expanded power of judicial review under the 1987 Constitution.  But that issue requires an entirely different discussion, which is not relevant here.) 

Despite its expanded powers of judicial review, the judiciary has no enforcement powers.  It relies on the executive branch for the enforcement of judicial decisions.  What happens when the executive branch decides to do to the courts what it has been doing to the legislature?  It will be recalled that the Arroyo administration has been defying a lot of summonses from Congress, a co-equal branch, to the extent of issuing gag orders to executive officials. 

This troubling scenario becomes less farfetched when one considers that national security—the usual excuse given by law enforcement officials in refusing to explain disappearances and similar acts—is given short shrift by the new rule.   Whenever national security is invoked, the same does not automatically trump individual claims and dispose of the case, as in previous times. Instead, the court will hear the claim in camera to assess if it has any merit. 

What happens when, for example, the military claims that the disclosure of a particular matter would harm national security and the court disagrees?  Can we expect the military, with its enormous resources and coercive powers, to obey a court’s order to disclose?  Ultimately, it boils down to the respect for the rule of law by the President.  As commander-in-chief, she holds the supreme authority over and accountability for the conduct of the armed forces.  Whether the military follows a court order or not is ultimately the President’s decision.

Tying aid to improvement of human rights record

With the adoption of the writ of amparo, Chief Justice Reynato Puno has reason to be miffed at the United States government’s making the improvement of human rights situation in the Philippines a conditionality for the release of military aid to the county.  Reports indicate that it was the U.S. Senate that made this conditionality.  It will be recalled that the U.S. Senate Foreign Relations Committee conducted a hearing on extrajudicial killings in the Philippines last March 14, 2007.  Representatives of human rights NGOs were invited to the hearing and provided damning testimony on extrajudicial killings and enforced disappearances in the Philippines.

But I’m sure the Chief Justice realizes that this encroachment on Philippine sovereignty is merely a by-product of a foreign policy based on mendicancy.  I’m also sure he knows that the Philippine Supreme Court is receiving funding from the United States Agency for International Development (USAID) under the latter’s judicial reform program for the Philippines.  In any case, I’m not altogether sure if this conditionality is a bad one given the circumstances.  I have always advocated for hitting regimes with bad human rights records where it hurts the most—the purse strings.  Of course, there is also the matter of the aid-giver’s human rights record.  But then again, it is not the United States that is asking for aid. 

My friend, the philosopher and soon-to-be-married Heidi P. Cruz, once said that the ability to appreciate jazz music is a distinguishing characteristic of highly evolved persons. While I demurred outwardly when she said this, I was secretly pleased with her comment. You see, I love jazz. Just don’t ask me why. I can’t read music and am a complete ignoramus when it comes to musical techniques. I can’t even identify the various sub-genres of jazz or name all prominent artists that a jazz lover is supposed to be familiar with. I just know that I feel good when I listen to this kind of music. I get lost in it. And in those times when I feel troubled—as I do today—I take solace in it.

I associate jazz with that simple, uncomplicated stage of everybody’s life: childhood. I was born in a small town in a remote part of the country. There was neither electricity nor running water when I was growing up. People went to bed early and rose early. And in a mish-mash of Greek mythology, Christian belief, and popular culture, the town had, and continues to have, a tradition called “Diana,” where a band went around the town playing beautiful melodies before the break of dawn. A Diana was considered de rigueur in feast day celebrations for an important saint, particularly the town’s patron saint, St. Michael the Archangel. But the music was not always decidedly religious. In fact, I discovered jazz through a Diana.

The first time I heard Chuck Mangione’s “Feels So Good,” it was being played not on a flugelhorn as the original artist did but on a trumpet. It took decades before I would learn the title of this song, and it was, of course, courtesy of philosopher Heidi when we were in law school. But that morning when I first heard it, I was entranced. Imagine yourself as a young child waking up on a woven mat spread over a hard wooden floor, safely cocooned in layers of blankets between your sleeping parents, glimpsing through sleepy eyes the pinkish sky at the break of dawn, and listening to a moving rendition of “Feels So Good.” You could hear the music faintly as the band starts playing at the other end of the town—it was a small town after all and the only noises you could hear at night were sounds made by nocturnal creatures. And then the sound gets louder, the music fuller as the band comes nearer your house. It was a magical moment; I was captivated for life. I suppose I decided then and there, albeit unconsciously, that this will be the song of my life.

Today, my musical tastes may have become more diversified. A sampling of the genres in my iPod would show the range: jazz, pop, reggae, rock, and R&B. There even are smatterings of hip-hop and classical music. But judging from the play count in my iTunes, there is no denying my preference for jazz. I’m increasingly finding solace in the music of Louis Armstrong, John Coltrane, Ella Fitzgerald, Al Jarreau, Spyro Gyra, Dave Koz, Antonio Carlos Jobim, and of newer artists like Rick Braun, Diana Krall, Chris Botti, and even Michael Bublé. I doubt very much if this growing preference for jazz is a manifestation of what Heidi calls “higher evolution.” More probably, it just means that my troubles are increasing exponentially as I grow older. Whatever the case may be, I’m just so thankful for jazz, and praise heavens for all those wonderful artists who make me feel so good with their music.

There was a time when it was impossible to mention “Armed Forces of the Philippines” and “human rights” together in the same sentence without evoking a violent reaction in me.  You see, I was three years old when Marcos declared martial law and Gamay, along with the entire island of Samar, was in the middle of a violent conflict between communist guerillas and government military forces.  Caught in the middle were innocent civilians whose only fault was to live in an island where extreme poverty made it a fertile ground for the communist insurgency.  I therefore write as someone with firsthand knowledge of the conflict.  I was there.  It was part of the story of my childhood.

During martial law, human rights violations were the norm in small town Philippines, at least in those towns occupied by the military.  Martial law, after all, implied the suspension of important civil liberties.  In my town, anything that the military said was the law.  Such niceties as human rights were never mentioned, much less observed.  This experience, incidentally, served me well when I wrote a graduate seminar paper at Georgetown on the need for a truth commission for the Philippines.  My paper argued that a truth commission 20 years after martial law may be necessary to enable the country to finally move on.

In the interest of fairness, it must be pointed out that both sides to the conflict were guilty of human rights violations.  The communists had their share of human rights violations.  Young, bright and talented people who refused to be recruited to the New People’s Army (NPA) were either summarily executed or disappeared.  There was, for instance, this talented athlete from my town—still in his teens but already showing enormous promise in provincial and regional athletic competitions—who was reportedly killed by the communists when he refused enlistment into the NPA.  When a childhood friend’s mother was killed by the communists, the town was gripped with fear and speculation for months.  The NPA reportedly cut her tongue off before killing her because they suspected her of spying for the military. 

And then there was this sweet, elderly couple who tried to escape the communists, who killed all their children, by moving to my town from a different part of the island.  This couple importuned my parents to allow them to stay in and tend to our coconut farm.  Those few years they stayed in our farm were some of the most memorable years of my childhood.  In those days, my family stayed at the farm for a couple of weeks during summers when school was not in session.  At night, after dinner, we were entertained by the husband whose beautiful playing of the violin still haunts me to this day.  As the family’s youngest kid, the couple understandably doted on me.  Unfortunately, the couple had to flee again when they learned that the communists found out where they were hiding.  We heard that they were subsequently captured and killed by the communists.

But in the balance of things, the atrocities committed by the communists pale in comparison to those perpetrated by the military.  I can say, in retrospect, that almost every conceivable violation of internationally accepted norms on the conduct of internal armed conflicts was committed by the military.  In my town’s case, these included unjustified killings, tortures, mutilations, rapes, wanton destruction of property, and many other violations. 

Gamay was occupied by the 60^th Battalion of the now-defunct Philippine Constabulary (PC). The 60^th PC Battalion declared many far-flung barrios of Gamay “no man’s land” on suspicion that their residents were providing aid and comfort to communist guerillas.  Residents of those barrios were forcibly evacuated to the town (the family of the incumbent mayor, about whom I wrote in an earlier blog, was among the evacuees), taking them away from their homes and farms, their only means of livelihood.  Recalcitrant people who ignored the warning and chose to stay on in their homes learned the meaning of “no man’s land” the hard—and, in most cases, fatal—way.  Those who survived recounted how their barrio was bombed and strafed by the military, and how houses and other structures were burned to the ground thereafter.  The objective, apparently, was to literally leave no human being alive in those barrios. 

Living in town was not much better.  Families dug out fox holes inside their homes to have a place to hide when guerillas attacked the military camp in town or when drunken soldiers started firing their guns away.  The military lorded it over the town, trumping all civilian authority.  They felt entitled to much of the residents’ property and even to the honor of many of the town’s young women.  The commanding officer, a married man, even took the beautiful and only daughter of one of the town’s more prominent families as his mistress.  During that time, it really felt as if the commanding officer of the 60^th PC Battalion was some vassal lord, and we the inhabitants were all his cowering serfs. 

Woe to the farmer who happened to be at his farm when a military operation was ongoing.  Jacinto, my eldest brother, was making copra when, unknown to him, a military contingent was passing through our coconut farm.  He was, in fact, at the top of a coconut tree picking its mature fruits when he heard somebody bark at him in Tagalog to come down.  When he looked down, he saw the military men aiming their firearms at him.  He would recount later on that his fear made him slide down the tall coconut tree in a matter of seconds.  Once on the ground, the military asked him to explain what he was doing.  My brother tried to explain in halting Tagalog but the military either misunderstood or disbelieved him.  They tied my brother’s hands behind him and dragged him to their camp, which was at the outskirts of the town.  Once there, the military started interrogating my brother.

Fortunately for my brother, people who saw him being brought to the military camp reported his capture to my family.  In a hasty conversation, my parents decided that it would be more effective to have a woman plead for my brother’s liberty.  And this was one of those instances when I was able to observe how fierce my mother’s love could be.  Once it was decided that she will plead for my brother’s release, my normally fastidious mother forgot that she was wearing a tattered housedress and immediately ran to the military camp.  It must have been a spectacle to behold a barefoot, middle-aged woman sprinting towards the military camp.  My mother was wailing while running, saying over and over that her Jacinto was not a guerilla.  When she reached the camp, she requested to see the commanding officer of the 60^th PC Battalion even as she continued keening and tears were running down her cheeks.  There must have been something in the way she looked and sounded that made the camps’ guards relent to my mother’s request. 

When she was brought to the commanding officer, my mother explained in her broken Tagalog that my brother was merely trying to make some copra because it had been a long time since the coconuts were harvested and the family badly needed the money.  She invoked the name of every civilian authority in town—it was a small town, after all, and everyone was related to everybody else—and tried to tell the commanding officer that we were an upstanding and law-abiding, though poor, family.  When these didn’t seem to work, my mother utterly humbled herself and kneeled in front of the commanding officer while crying and pleading for my brother’s release.  She would tell us later on that she would have kissed the ground on which the commanding officer stood had it proved necessary.  The urgency of my mother’s pleas was no doubt informed by the fact, well-known in the community, that other prisoners before my brother had been killed after being tortured.  That night, we all cried with joy as my mother brought my brother back home.

The barbarity of military operations was appalling.  To this day, I still can’t forget the nauseating feeling of seeing all those human ears—chopped off and strung together like some kind of a trophy—that the 60^th PC Battalion brought back to the town after every operation.  Whenever the military killed an NPA Kumander, that is, a high-ranking communist guerilla, they brought the cadaver to town and displayed it along with the chopped off ears of lower-ranking guerillas at the town plaza.  This was supposed to serve as a warning to guerillas and their supporters that a similar fate awaited them. 

When I learned that one of my classmates in law school graduated from the Philippine Military Academy and served in the PC, I recounted my childhood experience and asked him if the operations of the 60^th PC Battalion were in accordance with the military’s rules of engagement.  Perhaps at a subconscious level I was still hoping that the 60^th PC Battalion was merely an aberration.  But I was wrong.  “We are soldiers, Venir,” my classmate told me, “and we were trained to follow orders.”  Apparently, chopping off the ears of enemies killed in combat was a standard operating procedure drilled on every cadet in the Academy.

I often say that had I been born a few years earlier, I would have been one of those Kumanders who fought the military.  Had that happened, I would have fought beside the communists not necessarily because I subscribed to their ideology.  I suspect, too, that many of those from my town who joined the communists did so for sheer lack of choice.  Indeed, if the only manifestation of government authority was the barbaric conduct of the 60^th PC Battalion, was there any choice but to go to the hills?

I was flooded with all of these memories when I read an Inquirer report that the Armed Forces of the Philippines is planning to create an in-house human rights office.  This is supposedly an attempt by the military leadership to institutionalize respect for human rights in the organization.  To my cynical mind, perhaps it is just a public relations stunt aimed at repairing the damaged image of the military in the light of its reported involvement in abductions and extrajudicial killings of human rights activists. 

This is one of those moments when I wish I’d accepted the offer to be called into active duty in the military several years ago.  I wrote about this offer in a previous blog (“Becoming my father’s son”).  Had I accepted that offer, I would most probably be a full colonel by now and, given the above background, would have been qualified to join that proposed human rights office.  Come to think of it, given the specialized training in international human rights law I recently obtained, I’m probably qualified to head that office today.  I would be particularly interested to know if military personnel are still trained to chop the ears off killed enemies during operations.  But I sincerely hope that the Philippine military has become more humane 20 years after martial law. 

For the second time in my life, I’m reviewing for the bar examinations.  This time, the review is for the New York State bar exams.  For someone who vowed never to take the bar exams again after those grueling four Sundays in September nine years ago, the current exercise is akin to masochism.  But if you believe in the Creator, a Supreme Being, a Deity, or the Force, please say a little prayer for me.  Or if you don’t believe, then just wish me luck. 

As I write this, I’m already midway through my review classes.  Imagine trying to learn in less than two months material that normally takes three years to study and you can envisage the kind of a bind that I’m in.  I’ve enrolled in a review program that is so intense I’m starting to have multiple choice dreams.  Believe me, they’re not very sexy.  Incidentally, Chris wonders if I’m having any review done given the blogging that I’ve been doing lately.  Well, blogging is my way of getting away from the review, even if only for a few moments.

For once, I’m thankful for the Philippines’ being a copycat of the U.S.  (Now, indulge me and take a pause here and imagine Cherry Gil’s La Viña saying to Sharon Cuneta’s Dorina:  “You are nothing but a second rate, trying hard copycat!” sabay tapon ng tubig sa mukha in “Bituing Walang Ningning.” Or was it “Bukas Luluhod ang mga Tala”?  I know, I know.  It’s not very apropos.  But I just can’t resist it.)  Indeed, many Philippine legal concepts, especially in constitutional law, corporation law and the law on evidence, are U.S. transplants.  But major differences remain.  The Philippines took its civil law system from its Spanish colonizers, while the U.S. took its common law system from its English colonizers.  I would thus need to unlearn a lot of Philippine law to pass these exams.

There is one very striking difference between the Philippine bar exams and those in the U.S.  I don’t mean the fact that more than 50% of the points in the latter exams are from multiple choice questions.  I understand that the Philippine Supreme Court has commissioned a study on the possibility of including multiple choice questions in the purely essay Philippine bar exams.  So that point of difference will soon disappear.  The striking difference I’m referring to concerns the attitude towards the bar exams in both jurisdictions.  While the goal in the Philippines is to top the exams, in the U.S. it is merely to pass them. 

Apparently, performance in the bar exams here is not deemed a good indicator of how a person would perform in the legal profession.  Instead, law firms and other employers put a high premium on grade point average, class rank, and membership in law reviews.  But then again, as anyone who went to school could attest to, even grades could be deceptive.  For instance, I know people who “shopped” for teachers known for their generosity in giving grades.  On the other hand, I had classmates who purposely sought out good teachers even if they also happened to be miserly with grades. 

Justice Harry Blackmun’s grades at Harvard Law School were merely passing.  But he went on to write the decision in Roe v. Wade, arguably one of the most momentous decisions of the U.S. Supreme Court.  So, high grades are not very good predictors of performance in the real world.  As for the bar exams, we are repeatedly told that a high rating is good but not required.  That apparently is something that the Philippines has yet to copy from the U.S.