If you can't salvage 'em, SLAPP 'em

The Philippine Center for Investigative Journalism (PCIJ) per Isa Lorenzo has taken note of the “flurry of libel cases” filed by First Gentlemen Jose Miguel Arroyo since 2003 against 43 journalists involving filing fees of 1.2 million pesos and demand for damages amounting to 141 million pesos.

The result, according to Lorenzo, is a “chilling effect on writers, editors, and publishers, who may think twice before writing and publishing articles criticizing Arroyo.”

In the same PCIJ piece, Lorenzo cited quiet approvingly a lobby effort by the National Union of Journalists in the Philippines “to exert pressure on Congress in order to decriminalize libel.”

I posted two successive comments on the Lorenzo article. The first reads:

It is shameless for the Arroyos to employ SLAPP (short for “strategic lawsuits against public participation”) suits to mute critics.

Citizens who are dragged into SLAPP harassments seldom lose in court if they fight back but they are stigmatized in the short-term while stemming others from joining their or similar cause. SLAPPers attain their goals by forcing critics to spend considerable amounts of time, money and other resources defending their fundamental rights to speak out on public issues and to petition the government for redress of grievance.

Sec. 425.16. of California Code of Civil Procedure is one good model for this legal reform.

(The California law requires that a case against a person for his act in furtherance of the right of petition or free speech shall be subject to a special motion to strike, unless there is a probability that the plaintiff will prevail as determined by the court.)

The other (when the Jose Abueva Charter change proposal prescribing “responsible” exercise of free speech cut across my mind) this:

SLAPP tactics are undemocratic and anti-people power. Therefore, I’ll go as far as . . . if there is any constitutional reform that should be seriously considered today, one of them should be the prohibition of SLAPPs that the Arroyos are making the most of as staple arsenal of political vendetta versus the Filipinos’ basic right to hold their leaders accountable.

Pro-Arroyo blog-commenter Joselu, whose clever tautology laden purposely with spelling and grammar errors is quite unique in the local blogosphere, not wanting to pass up on it made this post:

it’s a free world, where in the world is it written that journalist can’t be sued for libel!!!!!
what defence doe citizens have to protect themselves from the abuseses of media/journalist.
are you saying media people can’t be wrong & can do no wrong? personaly, i think that insted of just thinking of individual rights, why not also remember that there is such a thing as responsibilities” & “consequences”. there are many journalist around who don’t get sued compared to the few who do get sued. why? does not media also have ‘bad apples” in thier ranks too? people who demand to much freedom also deny other people their freedom & rights too.

My next riposte sounded rather legalistic (because I had Malcolm and Holmes in mind):

The “rotten apple” analogy is in fact the rationale for the right to speak out freely deserving a preferred stand in the marketplace of ideas. It has to be so because free speech is also a necessary component of “political sovereignty” - or the power of the people as the source of political authority - to retain control over the leaders they have chosen to manage the affairs of the community. A rotten idea, the thesis goes, attracts no adherents and eventually it putrefies by itself to oblivion.

For example, if someone posting in PCIJ would do so to heckle at the President all for the sake of heckling, it will probably not be worth the trouble for a presidential rooter to react to the post. But if there’s any grain of logic or truth to the commentary that may linger in the public mind, refutations of various shades from supporters and flunkies alike are quickly let loose. It’s fair enough maybe. For partisans see to it their version of the image or position of their bets gets the coverage and attention in the marketplace. So too scrutiny of public figures initiated by individuals - journalists, activists, ordinary citizens or hecklers for that matter who may not have the deep resources of an organized media to fight the fat man.

The powers that be must not be too thin-skinned even to disparaging or infuriating criticisms especially if the goal of the exercise is ultimately to agitate for political action or institutional changes or, paraphrasing Justice Malcolm, to serve as scalpel to relieve the abscesses of officialdom.

It was in fact in Abrams v. U.S. (1919) where Justice Holmes has laid in his dissent the basis for the “free trade of ideas” formulation:

. . . when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Yes, to save the country. Not the fat man or his queen whose murder instincts we had once noticed here. Aren’t SLAPPs also tools to cover certain crime scenes?

Today, the 25th Sunday in ordinary time, I was assigned as if by some queer coincidence to do the following first reading from the Book of Wisdom:

The wicked say:
Let us beset the just one, because he is obnoxious to us;
he sets himself against our doings,
reproaches us for the transgression of the law
and charges us with violation of our training.
Let us see whether his words be true;
let us find out what will happen to him.

Who do you have in mind the wicked threaten to harm aside from Him condemned to a shameful death? If you haven’t known it yet, the US Committee to Protect Journalists has ranked the Philippines the second most dangerous country for journalists, second only to Iraq.

The Pope, the neocons and the logos

Neoconservatives are the new rulers over the foreign policy of the United States of America. Their obeisance to Western culture and civilization such as the universality of US-style democracy, the core of their beliefs, borders on piety, even fanaticism, often involving the willingness to kill and be killed for it. Neocons, seeing themselves on the side of righteousness and combating evil, advocate the exporting of modernity and democratic values via the “conversion” (regime change) of the uncivilized and undemocratic (the “infidels”). And holding the pursuit of common ground as appeasement of the enemy, they instead resort to imperial aggression through the unilateral use of economic and military hard power (“violence”).

After the 9/11 catastrophe, neocons have unraveled themselves unabashedly. “Those who are not for us are against us.” When uttered by the leader of the most powerful nation in the world, it translates to: Submit or perish. Led by Bush, Cheney, Rumsfeld and Rice, neocons divide the world into “good” and “evil,” with nothing in between. The rhetoric of heaven and hell that they employ is unfortunately the same religious language of no compromise that bin Laden brings into his politics. Both are fundamentalist and fascist. Whether you are with us or against us is not matter of rationality but of blind faith. The conflict thus turns into a Crusade or a Holy War, a fight to end all fights, unless the other converts (assuming that either is still convertible). One feeds on the other in a vicious cycle.

On record, Pope Benedict XVI has been critical about Bush’s decision to invade and occupy Iraq for the purpose of imposing democracy; opposed the concept of preventive war; condemned Israel’s strikes on Lebanon as “an attack” on a sovereign nation; and called for the establishment of a Palestinian state. But as cardinal, he has also suggested that Turkey, a secular state with a majority Muslim population, is in “permanent contrast to Europe.” So instead of joining the European Union with Christian roots, Turkey “could try to set up a cultural continent with neighbouring Arab countries and become the leading figure of a culture with its own identity”; but the Muslim community and the EU should work together to fight fundamentalism.

In a speech delivered at the University of Regensburg in Germany on September 12, 2006, Pope Benedict returned to Platonic dialogue using Qur’an’s Surah 2:256 as curtain warmer for the exercise in critical thinking in a university setting. The script based on a medieval text was between an erudite Byzantine emperor (Manuel II Paleologus) and a Persian scholar. The Pope remarked:

In the seventh conversation . . . edited by Professor Khoury, the emperor touches on the theme of the holy war. The emperor must have known that surah 2, 256 reads: "There is no compulsion in religion". According to the experts, this is one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels", he addresses his interlocutor with a startling brusqueness on the central question about the relationship between religion and violence in general, saying: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached". The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood - and not acting reasonably . . . is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...".

First of all, the quotation about Mohammed not having brought anything new but “only evil and inhuman, such as his command to spread by the sword the faith he preached” was not the Pope’s but supposedly the erudite emperor’s and it was said by the emperor as a proposition subject to vetting by the Persian scholar. Secondly, the Pope readily acknowledged the “startling brusqueness” of the Christian emperor as the latter addressed the Muslim interlocutor. Thirdly, the indictment against conversion by compulsion would cover the fundamentalisms by either side, if viewed in terms of the “profound sense of coherence within the universe of reason.”

Now, Pope Benedict may have grossly miscalculated the overreaction to his speech. Given however the wider identification in the Western world - and University of Regensburg in Germany is within that realm - of the tactic of terrorism with Muslim fanatics (they are specifically named in the charge sheet but their Western counterparts remain John Does for the most part), is it possible that the analogy was in fact meant to expose our irrationality rather their irrationality? Isn’t it suggested too that because of our self-righteousness and the putative “reasonableness of our faith”, we are wont to acting upon our irrationality with impunity? For example, how do we respond in a serious dialogue to the question of accountability when we enter recklessly, at the very least, into a war?

Let’s listen more:

At this point, as far as understanding of God and thus the concrete practice of religion is (sic) concerned, we are faced with an unavoidable dilemma. Is the conviction that acting unreasonably contradicts God's nature merely a Greek idea, or is it always and intrinsically true?

Isn’t this just another affirmation that what the Pope is saying about conviction against violent conversion, being intrinsically true, binds both the Christian emperor and the Muslim scholar?

God's transcendence and otherness are so exalted that our reason, our sense of the true and good, are no longer an authentic mirror of God, whose deepest possibilities remain eternally unattainable and hidden behind his actual decisions. As opposed to this, the faith of the Church has always insisted that between God and us, between his eternal Creator Spirit and our created reason there exists a real analogy, in which - as the Fourth Lateran Council in 1215 stated - unlikeness remains infinitely greater than likeness, yet not to the point of abolishing analogy and its language. God does not become more divine when we push him away from us in a sheer, impenetrable voluntarism; rather, the truly divine God is the God who has revealed himself as logos and, as logos, has acted and continues to act lovingly on our behalf. Certainly, love, as Saint Paul says, "transcends" knowledge and is thereby capable of perceiving more than thought alone (cf. Eph 3:19); nonetheless it continues to be love of the God who is Logos.

One couldn’t help but be struck by the radicalism of the Pope’s reading of the prologue in the Gospel of John. The prologue begins with these first three lines:

“In the beginning was the Word
And the Word was with God
And the Word was God.” (John 1:1)

As Christians we have learned that the Word (Logos) is the incarnate Jesus. On the other hand, certain understanding of the dogma of the primacy of papal teachings on faith and morals is to the effect that it proceeds from the transcendence of God. But now that the Pope is inviting “lively exchange” instead of pontificating, seeking common ground instead of prescribing, creating consensus instead of commanding (which with God appears to connote) is even that dogma now a fair game for a dialogue in search of “single rationality” or what’s definitive? Should Muslim theologians and scholars adopt the same attitude of creative rationality as regards Islamic teachings?

Thus, despite the bitter conflict with those Hellenistic rulers who sought to accommodate it forcibly to the customs and idolatrous cult of the Greeks, biblical faith, in the Hellenistic period, encountered the best of Greek thought at a deep level, resulting in a mutual enrichment evident especially in the later wisdom literature. Today we know that the Greek translation of the Old Testament produced at Alexandria - the Septuagint - is more than a simple (and in that sense really less than satisfactory) translation of the Hebrew text: it is an independent textual witness and a distinct and important step in the history of revelation, one which brought about this encounter in a way that was decisive for the birth and spread of Christianity. A profound encounter of faith and reason is taking place here, an encounter between genuine enlightenment and religion. From the very heart of Christian faith and, at the same time, the heart of Greek thought now joined to faith, Manuel II was able to say: Not to act "with logos" is contrary to God's nature.

Could it be that fundamentalism may also mean literal instead of enlightened reading of the Sacred Books because God’s Words (Logos) are dynamic not inert, rational not mythical? Isn’t logos a dialogue among those who want to think critically just like the erudite emperor and the educated Persian?

If we see any resemblance between the Hellenistic rulers of the ancient and the neocons of today “who sought to accommodate (their value system) forcibly to the customs and idolatrous cult of the (pagan Greeks),” do we also discern an inner dialogue between the Roman Pontiff as the erudite emperor in the exercise of his magisterium and the educated professor Ratzinger “sharing responsibility for the right use of reason”? What is the Pope’s final caveat?

The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures.

“Quite the contrary,” Federico Lombardi, the Director of the Vatican press office, attempted to clarify the Pope’s statement, “what emerges clearly from the Holy Father’s discourses is a warning, addressed to Western culture, to avoid ‘the contempt for God and the cynicism that considers mockery of the sacred to be an exercise of freedom’.”

If in the end Pope Benedict appears to adopt the logos of Manuel II, it was not so much as it was Byzantine Greek as it is intrinsically true.

Too shy to quack (on 9/11)

I have written two poems about 9/11, or specifically about the twin towers attack. The first one, twin views, I wrote a couple of days after the attack, when the recurring images of the smoldering skyscrapers were ubiquitous. I composed the second, Unleash the Peace, to memorialize my thoughts and feelings after my visit of the World Trade Center, a month after.

Twin views was a parabolic put-on for twin towers, the original title. Who would want to publish something during those trying times that could be seen as rather uncaring and insensitive to the many innocent victims of the Pearl Harbor in New York?

Hence, in the so-called freest country in the world, I had to express myself in ciphers*. But it was very honest, notwithstanding that a couple of people that I know were seriously hurt, and one, a dear brother of a family friend, perished in the attack.

I have always viewed the twin towers as the representation of manic capitalism, which in the overall scheme of things guarantees “so many losers and so few winners.” For example, resources devoted by pharmaceutical companies to “designed drugs” ignore the yearly fatalities in millions from preventable diseases like TB and malaria if only access to existing medicines is not driven purely by the profit motive. The unavailability of a bankruptcy mechanism for sovereign debtors also kills - by the millions annually. Where are the images of the untold sufferings of real people in other unfortunate parts of the world? Who mourn their deaths, their daily 9/11?


twin views [of twin towers]

vainglory
boxed to
last Sired
in infamy
and glory
now torn
from awe
mourned,

or

a
p
uz
zle
need
ing no
clue, man
kind clambers
one side, the rest
simply rollicking down.


Unleash the Peace, initially Totem Poles, was first published here to make it look as if it were a message for peace on earth last Christmas. I actually started writing it on a subway train after my visit to the World Trade Center, about five years ago.

During the visit, I was taken aback by the hapless and helpless Americans cordoned off from the debris and the ashes of the World Trade Center, evoking the images of the indigenous people in the New World grieving at a distant over the wasteland that had been their home and the destruction of their way of life following a successful charge by the white man’s cavalry. Perhaps, a twisted, callous metaphor, yet “too close for comfort.”

Twenty-three years ago, I was first awed by the splendor of Manhattan by night from across the Hudson River in Hoboken, New Jersey. And the twin towers stood out like a beaconing lantern in the skyline as a testimony of America’s singular success story, I thought. But then, the promise of heaven on earth (and that all are created equal) remains honored in the breach, not even as regards the many who perished on 9/11 while eking out a living in America’s totem of vainglory as overworked and underpaid workers yet “too shy to quack.” Was I?


Unleash the Peace

It’s gone!
True.

The wild dancing with wolves,
The wise in commune with winds:
A “way of life” by-past.

The promise: heaven on earth, and sovereigned;
Where on Main St., a feather on one’s head unlooked.

Heavens!
Heavens hijacked! Heavens disfigured!
And the arrows landed where we truly care.

The shattered lantern too faint to hearten,
The lost ducklings too shy to quack,
The metaphor too close for comfort.

Shush . . .
The cadenced drumbeats drowned the chants of the crowd,
The best oils anointed the folly of the wise.

The eagle soared!
The nation’s impulse (power and self-same promises) in tow.
Halleluiah! Halleluiah!

Evil, all evil is fair prey!
You, too, “if you are not with us.”

Yet, one braved soul - and all it takes is one -
Implored the Manifest
(As others mourned the Spirits,
Still acrid, still uncarved, still anonymous):
Unwind the soul!
Unblurry the fury!
Unwire the fire!
Unleash the peace! Yet, yet “. . . everything will be ok,
tomorrow my tears will taste good,”
(What are we in Hollywood and Madison for?)
So, soothsaid for passersby

Like graffiti on charred bigheads
Of once proud totem poles.

* (The image of the first tower in the poem is supposed to look like a box as it does on MSWord; the other tower is just as perfect on html).

Your Honors, it's a PIG in a poke

Artemio Panganiban, then a justice of the Philippine Supreme Court, was passionate in his dissent in Santiago v. COMELEC (March 1997):

Initiative, like referendum and recall is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.

I agree. The Santiago decision has failed to pay full respect to the institutional groundwork of people power democracy as laid down in the Philippine Constitution.

The 1987 Constitution, a product of People Power uprising, under the very first section of the article on Legislative Department, has reserved to the principal, the sovereign Filipino people, a provision for initiative and referendum as an express legislative power-sharing mechanism co-existent with that so delegated by the same sovereign to the agency of the Legislature. This is a fundamental drift from a purely representative government that cannot be simply brushed aside.

The Supreme Court, however, speaking through then Justice, and later Chief Justice, Hilario Davide, ruled in Santiago that while Republic Act No. 6735 is “intended to include the system of initiative on amendments to the constitution,” it is “unfortunately inadequate to cover that system.” The inadequacy however was more of a defect in style or in form, but enough to consign, in the language of Davide speaking for the Court, “the right of the people to directly propose amendments to the Constitution through the system of initiative (to) remain entombed in the cold niche of the Constitution until Congress provides for its implementation.”

It would have been easy for the Supreme Court if the will was there (as in the infamous concoction of “constructive resignation”) to give its imprimatur for the institutionalization of people power by reasonably filling in the interstices in the law. The will was wanting obviously, prompting Justice Panganiban to speak loudly of his frustration: “With all due respect, I find the majority’s position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relive him of pain . . . we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously . . . Indeed, there is a right way to do the right thing at the right time and for the right reason.”

The majority in Santiago also ignored the plea of the late senator Raul Roco during his sponsorship of R.A. 6735 (also known as the Roco Law), the enabling law under dispute for the people’s initiative to amend the constitution. Senator Roco argued:

Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people.

The restrictive, if not anti-people power, route taken by the Supreme Court in Santiago, would be quite understandable in the context of the political milieu still obtaining at the time decision was handed down. Amending the constitution through people initiative that would have allowed President Fidel Ramos to stay in office beyond his single term of six years was then seen as a haunting reprise of the dirty tricks Marcos had employed to perpetuate himself in power. That in a nutshell explains the zeal on the part of the majority to “burning the whole house to kill the rats.”

Now that EDSA II has been demoted in Estrada v. Desierto (March 2001) to an inchoate cousin of EDSA I, talks of “people power fatigue” are still up in circulation, and the people’s clamor for public accountability via impeachment have been brusquely quashed twice in the House, does the logic of Panganiban in Santiago still hold water?

To any critical vetting, the Panganiban dissent stands up all because it pays fealty to our constitutional regime since 1987. Our present state of constitutionalism, it should be underscored, could now be said to have accommodated people power democracy as having been integrated in our borrowed form of republicanism. This ideology finds support in Article XIII, Sections 15 and 16 of the Constitution defining the role and rights of people’s organizations separately from the right peaceably to assemble or to petition the government for redress of grievances as well as in Article VI, Sections1 and 32 in relation to Article XVII, Section 2 thereof reserving to the people the power of initiative and referendum.

This is therefore an earnest appeal to the Hon. Artemio V. Panganiban, now Chief Justice, to adhere to his intellectual honesty and consistency by leading his robed brethren to join him this time and uphold the constitutional mechanism of people’s initiative and thereby “(institutionalize the) legacies of the world-admired EDSA people power.” The Panganiban Court however must declare in due time the loco motive of Arroyo’s charter change in the same way that Chief Justice Roberto Concepcion in Javellana v. Executive Secretary (March 1973) has in good conscience taken judicial notice of the ludicrousness of the citizens’ assemblies that supposedly ratified the Marcos constitution.

It comes as no surprise why former senator Rene Saguisag, placing himself into the shoes of the 10,000, 000 (or at least 6,000,000) Charter change petitioners, in good conscience has seen as equally preposterous any claim that the Filipinos’ direct action for constitutional amendment from a presidential to parliamentary form system is understood by them in a constitutional sense:

If asked to vote today on PI (People’s Initiative), maybe I should at the least abstain. What they say is clear to 10,000,000 Filipinos is not clear to me at all. I trained in the law but cannot pretend to understand what Raul (Lambino) & Co. say is clear to 10,000,000.

I know my limitations.

But the Legions (principally, Sigaw ng Bayan and the Union of Local Authorities of the Philippines) don’t. Their shameless scheme is just another Marcosian scam, nay, an open and shut “Hello Garci” chicanery perpetrated right under everyone’s nose. Hence, doing the right way, the right thing at the right time and for the right reason is of no other moment than today. The Panganiban Court should not pass up such a win-win opportunity.

Again, pursuant to the correct opinion of Panganiban in Santiago v. COMELEC, the Supreme Court should rule swiftly in this manner: Reverse Santiago by recognizing and upholding People’s Initiative under the Roco Law but derail and kill the locomotive of Charter change by simply taking judicial notice of the so-called people’s constitutional amendment campaign as being a PIG (People’s Initiative ni Gloria) in a poke that it is.

(This piece, an updated version of my blog here, is in response to the renewed attention to the Charter change debate.)