Tuesday, August 28, 2007

RA 4200, some thoughts

First of all, Republic Act No. 4200 (otherwise known as the Anti-Wiretapping Law) is a CRIMINAL statute that penalizes violation of PRIVACY as defined by it.

Second of all, the Act also LEGALIZES wiretapping under conditions prescribed by it.

Third of all, what the statute prohibits to further discourage the acts penalized is the ADMISIBILITY IN EVIDENCE of the “communication or spoken word or the existence, contents, substance, purport, effect, or meaning of the (communication or spoken word) or any part thereof, or any information therein contained” so obtained or secured in violation its provisions.

On the first point, as a criminal statute, RA 4200 should be construed strictly against the state and liberally in favor of the accused.

On the second point, if the communication is not private, the statute is not supposed to apply. Now, is a communication between the President and a COMELEC official about the conduct of a presidential election private? (Note: I am focusing my question to this and only this portion of the recorded communication in the tape).

On the third point -

a) If the record of the communication or spoken word is used in a “judicial, quasi-judicial, legislative or administrative hearing or investigation” but not introduced in evidence, and therefore there is no occasion to consider its ADMISSIBLITY, is the statute violated? (This could essentially be the point of Senator Chiz Escudero in another dimension as further elaborated by lawyer Jaxius here.)

b) If the introduction in evidence of the so-called “poisoned fruit” is being attempted in such a trial, hearing or investigation, who is the proper party to object to its admissibility?

c) May the objection be waived or is the right to object on ground of admissibility essentially waivable since it is a PRIVATE right?

d) In the case of President Gloria Macapagal-Arroyo, if her privacy right has been violated, is she not deemed to have waived it by virtue of her public acknowledgement of the content of the recording in the “lapse in judgment” speech? Or as the country’s chief law enforcer, should she not waive her private right in the public interest?

e) Is PGMA deemed to have authorized the wiretapping by her conduct of not faithfully executing the law against probable violators and therefore barred from availing of the benefits under the law, if any?

f) Since Garci denies he is the same person whose voice is recorded on the tape in question, could he be at any time an improper party to object to its admissibility?

g) When is it seasonable to object, at any time reference is made to the tape or only at such time that the tape is being introduced in evidence, which the tape being essentially a “real” (not a testimonial) evidence should be at the “offer of evidence” stage of the trial, hearing or investigation?

FINALLY, considering the well-nigh plenary nature of policymaking by Congress, may the SC interfere via a TRO with congressional hearing in aid of legislation? On the other hand, may Congress assert its prerogative to cite anyone in contempt who is enforcing such TRO, if so issued?

Sunday, August 26, 2007

Simply definitional

At mkq3’s blog, I asked BrianB (a writer who earlier in the comment thread had given a lecture on “mannered writing”): “What do you mean when you say you are a humanist?”

“Well, Abe, I suppose besides the usual definition I root for more humans instead of fewer humans, and I don’t mean I don’t like condoms.”

On the next comment, lawyer Bencard, rooting for the Chinese in the Philippines or the Chinese Filipinos, first said: “they had absolutely nothing in terms of political and economic aid from their hostile hosts but they prospered, becoming bankers, professionals, scientists and artisans of world renown. they are not the whimperers (sic), bellyachers, complainers, self-justifying people that the average pinoy is. they believe in PERSONAL RESPONSIBILITY.”

And when I asked: “Otherwise, who would an ‘average Pinoy’ be?”, Bencard promptly retorted: “to me, ‘average pinoy’ is one who, generally, blames the government for every misery he suffers in life, one who thinks the government is responsible to make him ‘happy’ and self-sufficient as a matter of natural entitlement. anyone who fits this description, including myself, is ‘average’ in my estimation simply because it is a pretty common trait.”

Then, browsing Inquirer.net, I chanced upon an item about a 41-year-old priest from northern Italy who fathered a boy and so he was asked to leave his parish.

Explaining his conduct, according to the news report he said, “The fruit of one's fertility should be a cause for joy . . . I feel false, because it is not easy to walk alone along the path to truth. Sometimes you need to find someone to walk with.”

Funny but these accounts remind me of Oscar Wilde in the dock (then charged with homosexual acts with “rent boys”) who was asked on cross-examination by the prosecutor: “What is, ‘the love that dares not speak its name’?” (The prosecutor was quoting a line that alludes to homosexuality from “Two Loves,” a poem written by Wilde’s lover, Alfred Lord Douglas). Wilde was ebullient:
"The love that dares not speak its name" in this century is such a great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, and such as you find in the sonnets of Michelangelo and Shakespeare. It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art, like those of Shakespeare and Michelangelo, and those two letters of mine, such as they are. It is in this century misunderstood, so much misunderstood that it may be described as "the love that dares not speak its name," and on that account of it I am placed where I am now. It is beautiful, it is fine, it is the noblest form of affection. There is nothing unnatural about it. It is intellectual, and it repeatedly exists between an older and a younger man, when the older man has intellect, and the younger man has all the joy, hope and glamour of life before him. That it should be so, the world does not understand. The world mocks at it, and sometimes puts one in the pillory for it.
The crowd in the gallery cheered!

Thursday, August 16, 2007

Just another acerbic wit?

(Updated Aug. 17, 2007 @11:15 am)
Now I know, by courtesy of Placeholder, Schumey and Maru, how she was trapped like a Cetacea in a sardine can, and felt that the airline seats were too small, and didn’t need a heavy sweater in the winter but a Joe Malone after climbing every steps of Parthenon (My foot . . . although I do believe her seeing herself floating by the law of buoyancy in the Aegean Sea and saving her makeup and herself from a major meltdown by natural internal combustion!) and claimed everyone but her in the economy class was yelled at for having overweight hand-carries and how in the first place she saved on her ticket and ended up on the economy class.

By the policy of some airlines, dating back to the 1980s, prickly Ms. Porky should be required to book two for one, according to a post in Associated Content.

That piece argued: “For years, airline passengers have had their carry-on baggage restricted to maximum dimensions. So, why not the passengers? One concept that is rapidly gaining in popularity is to install people sizers at all check-in counters: templates that all passengers would be required to fit through in order to qualify for a standard ticket. Can't fit through the people sizer? Buy two seats.”

“As I type this, I’d like you to know that it’s not about whining, complaining and bitching but just stating the facts.”

And the supposed facts are: “. . . I have just returned from a wonderful holiday in the Mediterranean. To cut on some costs for this impromptu vacation I was forced to fly economy class which I absolutely do not wish on my worst enemy. I was, however, encouraged by my travel agent to try out Emirates since it won the best economy class, so with great trepidation I flew on Emirates via Dubai, completely forgetting that Dubai is the hub for all the Filipino migrant workers. Call me whatever you like but when you are trapped in economy class that is filled to the brim with migrant workers the smell gets a little funky after nine hours of flying.”

I also did want to bang the keyboard more, harder and faster as I had in my last entry but some angel saved me the trip. The point is, Angelo Navarro explains to Manila Standard Today columnist Malu Fernandez -
I can take criticisms from foreigners with a grain of salt, since their observations may be due to their ignorance of our culture and values or lack of knowledge of the harsh realities of our country. But those criticisms coming from somebody who is at the very least aware of the situation of our countrymen is much harder to swallow . . . .

. . . not all Filipinos are as lucky in life as you. That is precisely the reason why millions of us are forced by necessity, and not by choice, to work abroad in search of greener pastures. True, a lot of us OFW’s may work as domestic helpers or construction workers (not the kind of people you want to be trapped with in any of your flights), but do understand that we’re just trying to make a decent and honest living to better our lives and the lives of those we love back home. We still believe there is dignity in labor, not like the corrupt politicians and greedy businessmen that bleed our country dry. And mind you, this comes as a big sacrifice for us; oftentimes we pay through our blood, sweat and tears.

Post about post:

Malu’s inspirational journey after WLS

My name is Malu Fernandez. I am 39 years old and I had WLS (Weight Loss Surgery) June 8 2005. I live in the Philippines where a size 10 is considered extra large or a plus size, this I know because I am one of the first people to open a Plus size shop. I had been wanting to have the surgery for the last three years but it was never available in my country. To have it done in the USA would cost me forty to fifty thousand dollars not including the travel expenses. Bear in mind the average income in this third world country is 3000 a year. Plus being 322-lbs meant only business or first class seats another four thousand.(Emphasis mine)

At any rate a new team of doctors trained in the USA brought the surgery here for only ten thousand dollars. So I did it. The first two weeks were a living hell I puked all day without even eating I was so weak I kept telling myself you paid ten thousand dollars to puke all day what an idiot!

Like everyone else I was instructed to eat pureed foods which I couldn't even swallow it made me puke even more it felt like I was eating regurgitated food finally I rebelled and ate a soda cracker; it was heaven and I finally stopped puking. To date I lost 40lbs but I seem to be obsessed with my scale and when my weight fluctuates I freak out. I didn't even own a scale for years simply because I just didn't care any more. Getting WLS was just because my mobility was being threatened by my obesity and my health wasn't doing any good either. I have been on diets all my life and none ever worked out I have lost a 100 lbs and gained it back simply because I couldn't control my appetite and I am an emotional eater. WLS helps me control myself because I simply cannot overeat.

However, in a country where if you weigh 150lbs they call you fat (my sis weighs 93lbs) WLS does not have the same kind of support that the USA has in terms of visits to the nutritionists group therapy etc... There is a support group but there are not enough members to give enough feedback. For instance I can't deal with drinking my vitamins they make me puke what are the alternatives? I can tolerate regular cranberry juice (but stick to diet) I can tolerate diary, I can't tolerate meat(I used to in the beginning) I can only tolerate seafood. Rice which is a staple in Asian food I can barely swallow but I can eat pasta.

But I don't have anyone here to tell me if what I am doing is right or wrong... my doctor is very competent but he travels all around Asia all the time to perform WLS so he is always out and he says there are no set rules because everyone is unique even in terms of weight loss but I cant help getting paranoid when I hear someone losing 75 lbs in 2 months and I am on my 3rd month only having lost 40lbs.

This month I got myself enrolled in a gym with a personal trainer who I see 3x a week. I even count my calories and don't exceed 1000 calories a day but still I don't know if I am losing weight fast enough despite the doctor's constant reassurance that I'm fine. My paranoia still exists that I would screw this up just like all my other diets that have failed. But after reading some of the stories on your website I realize that I just need to calm down and be patient and continue to work hard but every day is a constant battle.


If we want to be on board the Pequod and go whaling, shouldn’t we be harpooning Moby-Dicks, the likes of Mr. Nick?

Dead or alive?

Sunday, August 12, 2007

Little drops that make the ocean

Iconic Nick Joaquin was not only un-Filipino but anti-Filipino when in A Heritage of Smallness he has written: “Society for the Filipino is a small rowboat: the barangay. Geography for the Filipino is a small locality: the barrio. History for the Filipino is a small vague saying: matanda pa kay mahoma; noong peacetime. Enterprise for the Filipino is a small stall: the sari-sari. Industry and production for the Filipino are the small immediate searchings of each day: isang kahig, isang tuka. And commerce for the Filipino is the smallest degree of retail: the tingi.”

Somehow, Filipinos have decided to let the insult pass. Not Dr. Jose Rizal when a similar affront had been hurled at the “indolent” Filipinos of his time. (A couple of years ago I was equally disposed when an old hate e-mail accusing Filipinos as spurious Asians had landed on my inbox and so I blogged about The Asian hoax.)

Rizal’s answer in The Indolence of the Filipino was not surprising:
The evil is not that indolence exists more or less latently but that it is fostered and magnified. Among men, as well as among nations, there exist not only aptitudes but also tendencies toward good and evil. To foster the good ones and aid them, as well as correct the evil and repress them, would be the duty of society and governments, if less noble thoughts did not occupy their attention. The evil is that the indolence in the Philippines is a magnified indolence, an indolence of the snowball type, if we may be permitted the expression, an evil that increases in direct proportion to the square of the periods of time, an effect of misgovernment and of backwardness, as we said, and not a cause thereof. Others will hold the contrary opinion, especially those who have a hand in the misgovernment, but we do not care . . .
In defense of the “degenerate species,” Rizal made the case that Filipinos, before their “discovery and conquest” were, among others, shipbuilders, artillery manufacturers, international traders and warriors of great consequence. He did not spare both the Whiteman and the Chinaman.

How do the Europeans live in tropical countries? Rizal answered his rhetorical question: “Surrounded by a numerous train of servants, never going afoot but riding in a carriage, needing servants not only to take off their shoes for them but even to fan them! And yet they live and eat better, they work for themselves to get rich, with the hope of a future, free and respected, while the poor colonist, the indolent colonist, is badly nourished, has no hope, toils for others, and works under force and compulsion!”

And the “industrious” Chinaman: “so rarely does he take up agriculture . . . .”

The current efforts of Dr. Amy H. Sturgis to dismantle The Myth of the Passive Indian, by which “generations of scholars took as gospel and applied to other indigenous groups” who “had no real history prior to European contact, when Western influences at last put them on a path to genuine social evolution,” are no less Rizalian.

Dr. Sturgis wrote that during the Columbian conquest, the Aztecs were “more sophisticated in terms of construction and cleanliness than their counterparts across the Atlantic” and had made “extensive use of ceramics to build up the soil, elaborate road systems, and artificial ponds and canals—‘a highly elaborate built environment, rivaling that of many contemporary complex societies of the Americas and elsewhere.’”

Nick Joaquin, on the other hand, while demeaning his compatriots who “act on a pygmy scale,” extolled the Whiteman who are “accustomed to thinking dynamically” and their “murderer mentality” which, according to Joaquin, the Filipinos lack, and also hailed the Chinese who “clambered to the top of economic heap and are still right up there.”

If Joaquin’s subjects were the Semites, and he was not as vague as T.S Elliot, then the Jews would raise hell to bake what would be his Nobel Prize. But fortunately for him, Filipinos, as Joaquin claimed, are small-minded and don’t think as big as transforming a dessert into a verdant field or could only mount an uprising “large in number but small in scope.” So, the foremost Filipino novelist, essayist, playwright, poet and biographer remains a revered National Artist, the highest award for arts in the Philippines.

“We seem to be making less and less effort, thinking ever smaller, doing even smaller. The air droops with a feeling of inadequacy. We can’t cope; we don’t respond; we are not rising to challenges.” By “We” Joaquin meant the run-of-the-mill Filipinos excluding of course icons like him or towering personages like Jose Rizal or the “Chinese in the Philippines” who can handle “the big deal.”

If Rizal had been hell-bent to uphold the Filipino race, Joaquin’s denigration was unrelenting:
The depressing fact in Philippine history is what seems to be our native aversion to the large venture, the big risk, the bold extensive enterprise. The pattern may have been set by the migration. We try to equate the odyssey of the migrating barangays with that of the Pilgrim, Father of America, but a glance of the map suffices to show the differences between the two ventures. One was a voyage across an ocean into an unknown world; the other was a going to and from among neighboring islands. One was a blind leap into space; the other seems, in comparison, a mere crossing of rivers. The nature of the one required organization, a sustained effort, special skills, special tools, the building of large ships. The nature of the other is revealed by its vehicle, the barangay, which is a small rowboat, not a seafaring vessel designed for long distances on the avenues of the ocean.
Today, the small rowboat mentality, a social phenomenon that has swept the country, has caught the serious attention of world-class observers and in the Philippines has become the only pillar of economic growth and development vastly outperforming the combined achievements of the “Chinese in the Philippines” and the once-almighty Foreign Direct Investment (FDI) that bigheads in IMF and World Bank have prescribed for the Philippine government to seize upon. The IMF/WB strategy has foundered on the rocks condemning a third of the population to isang kahig isang tuka subsistence or otherwise, if fortunate to posses some skills, to brave the uncertainty of distant shores like the seafarers of the old realm, for many “a blind leap into space.”

The barangays of eight to 10 millions Filipinos (the annual deployment is estimated to be close to a million now) have settled in exile in some 193 countries as tourism professionals in Dubai, seamen in Sydney, mechanics in Nigeria, domestic helpers in Hong Kong, teachers in South Korea, japayukis in Japan, and health care providers in USA, remitting back home dollars, dinar and dirham to the tune of US$100 billion since 1975, or ten times the Marshall Plan, the US economic aid used to rebuild Europe after WWII. And this is happening on a “people-powered” philanthropy of the tingi system variety on a monumental global scale.

The economics of migration, born out of petty thinking and desperation, is now the big picture. The swellheads in the elite community will not say it loud - that the national development policy revolves around the phenomenon and that the Philippine economy today is consumption-driven, propped by the economic activities of the Filipino diasporic community, small in amounts but large, nay, gigantic, in scope, much like the “little drops of water that make the mighty ocean” to borrow the highbrow gentility of a literary biggie, yet the much admired Nick Joaquin.