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Wednesday, March 23, 2022

S1E70 - Redeeming the Institution: BARANGAY

he myth of this “Golden Age” of the martial law years has been so thoroughly debunked in social media even the Marcos campaign has virtually dropped it.

Instead of a vote-magnet it became a deadweight to carry around. Everytime they mentioned martial law, it always triggered a blizzard of follow-up questions so difficult to answer that Junior just decided to skip all debates altogether where these questions tend to get asked.

Unfortunately for him that, too, backfired because as the saying goes, “if you’re not at the table, you’re on the menu.” His absence at the podium did not stifle talk about his father's world-class kleptocracy as only another authentic Marcos like him can embody.
After the latest BIR pronouncement on the unpaid Marcos estate tax liability, there are 203-Billion even more reasons not to forget what the phrase “Marcos legacy” means.
Of course, the BBM apologists protest that we should not be raking a dead man over the coals—Ferdinand Marcos, the senior, is now a wax statue that used to lie in a glass coffin in Batac, Ilocos Norte before finally being interred amid tumultous protest at the Libingan ng mga Bayani.
Admitted. But these are the same people doing the same thing to the long-dead Jesse Robredo, minus the credibility in the accusations. That Marcos stole money is undisputably proven by the fact that the government has recovered some of it, albeit a mere pittance of what remains to be recovered yet.
On the other hand, the allegation that Leni’s highly-respected late husband stole the Supertyphoon Yolanda calamity fund is disproven not only by fact-check but by sheer logic: Jesse Robredo was long-dead BEFORE Yolanda even began as a tropical depression. The BBM people simply have to learn how to lie BETTER if they aspire to dent the unreproachable integrity of the lady in pink by villifying her dead husband. Secretary Robredo died leaving behind no derogatory record, only the support and adulation of the Camarines people who overwhelmingly voted his widow into office TWICE to Congress and the vice presidency. Leni IS Jesse Robredo's legacy.
So long as we're in the subject of legacies, maybe there IS one legacy even I would concede to the deposed dictator. I think the biggest oversight made by the BBM pipol is this: they forgot to brag about the BARANGAY.
In a cynical sense, Ferdinand Marcos invented that institution in 1974 by officially renaming the Spanish colonial-era “cabeza del barrio” into the “barangay captain” (later “punong barangay”).
By all political calculations, the draft 1973 Constitution would have never passed muster in a genuine referendum. So what Marcos did was order the convening of “citizens assemblies” all over the country. He then had photographs of them taken while they raised their hands, as though enthusiastically responding to some question. Many living eyewitnesses swear the question was, “sinong may gusto ng sardinas, ‘taas ang kamay?” because thousands of boxes of sardine cans were distributed at these citizens assemblies all over the country at the same time.
When the validity of the 1973 Constitution was challenged in the so-called “Ratification Cases” before the Supreme Court, the rubberstamp SC back in the day admitted those photographs as, “evidence” that the constitution was formally “ratified.” By informal assemblies? Go figure.
Marcos saw and quickly exploited the effectiveness of a nationwide network of loyal martial law implementors who will do all his biding for a can of sardines. So he spent the next several years strengthening the institution. The barangay captain—or “bokap” for short—was elevated to the status of a public officer, and not just an ordinary one but a “person in authority.”
Keep this in mind because if you ever figure in a physical confrontation with your bokap, you’ll be facing the charge of “direct assault”—a serious offense—and not just the less serious “physical injuries.”
Even as a lawyer, Ferdinand Marcos’ legendary legal chops is suspect. The Katarungan Pambarangay under Presidential Decee 1508 is uniquely looked upon with skepticism throughout the whole world’s legal community (seriously) in its perversion of the sociocultural-powered mediation process of the Lupon Tagapamayapa.
Although not really a court with judicial powers, the commonly-misnamed “Barangay Court” handles DISPUTES, not cases. It pioneered the idea of a collegial body, called “Pangkat ng Tagapagkasundo,” brokering an amicable settlement between disputants using weaponized embarrassment as counter-incentive. Do you ever wonder why you lodge a complaint against somebody with the barangay captain of the barangay where your “enemy” lives? Why not in YOUR own barangay, which makes more sense? The proceedings are presided over by your enemy’s barangay captain who is deemed to be the one with moral ascendancy over your “enemy” and can presumably lean on him harder enough to capitulate.
It is counter-intuitive to the idea of a “home court advantage.” You must trust that the barangay captain runs his community’s affairs based on the "honesty system" which can be a long stretch in many places You have to super-extend that trust to believe that universal reason and fairness would deter the barangay captain and HIS CONSTITUENT from conspiring to screw you behind your back!
It is a totally naïve setup that made sense only in the twisted value system of Marcos, best summarized by that enduring mantra of corruption, “lahat puwedeng idaan sa usapan.”
There are 42,046 barangays throughout the Philippines. They are not only the frontliners in the delivery of many ministrant functions of the government, they are literally the human face of the State. In remote countryside villages unreached by regular transportation, they are often the only interaction the ordinary citizen ever has with the government. Name any government program, these barangay officials are likely the ones implementing it: Pantawid Pamilyang Pilipino program, Bayanihan “Heal-as-One” ayuda programs—anything that entails dispensing money, benefit or favor, it is the barangays that are in charge of doing it.
Throughout martial law, Marcos used the barangays as implementors of all his "do good" policies and show window programs--Masagana 99, Gulayan ng Bayan, the 'Green Revoution', Mag-impok sa Bangko campaign, Pulong Pulong sa Kaunlaran (forerunner of the Kapihan format), etc. If it was the stuff of propaganda and public relations, the barangays were in the thick of it.
Marcos' formula for maintaining martial law was simple. For all the draconian measures he needed to do that "gentle-sloped" into the mass atrocities and human rights violations we now know of, he used the MILITARY.
But for all the deodorizing activities meant to paint a smiling face to his dictatorship, he used the BARANGAY. Is it any wonder, therefore, that today this hoodwinked class of Filipinos only remember "the true, the good and the beautiful?"
Don’t get me wrong. There are many fine barangay officials. Institutionally, the barangays have come a long way from a nationwide Marcos apparatus singularly loyal to promoting the “New Society” to now being the formal basic local government unit (LGU).
The barangay is explicitly mentioned in Article X, Section 1 of the 1987 Constitution. They no longer owe their existence to a Marcos presidential decree.
Pursuant to this, Congress subsequently enacted Republic Act 7160, or the Local Government Code of 1991. This landmark legislation fully ‘professionalized’ the barangays, laying out guidelines for how they can promulgate their own ordinances--even generate their own sources of revenue.
THAT is progress, because now the barangays are no longer a personal political machinery sworn to singular allegiance to Marcos. They are now part of the civil service and covered by the non-partisanship restrictions of our election laws. So they can no longer be exploited by political parties—including incumbent ruling parties or coalitions—for campaign purposes.
In theory.
In practical terms, barangay officials are still human, too, and they still succumb to padrino dynamics. The last barangay election was held way back in 2018. So if you are “BBM people” you’re thinking these incumbent set were all elected during the Duterte Administration—not exactly a Marcos-friendly demographic.
The present set of barangay officials have served the entire duration of President Duterte’s term, but for the most part as antagonists. If there are two things that characterize corruption under the Duterte regime, it is centralization and negotiation. Few public works projects, if any all, are still implemented “by administration” these days. Most of them are farmed out to a pool of accredited public works contractors, by fractured negotiated contracts. The illegal commissions--kickbacks--from these projects only kick in one direction: upwards to mayors, governors and congressmen—including the greediest ones of the caretaker variety who demand 40 percent.
In short, in the division of ill-gotten spoils, barangay officials have been completely cut out, for their own good and ours. No single group of people know, understand and suffer the effects of corruption more than they. Over time, many of these grassroots officials—perhaps the last remaining species of pure public officers—have countermorphed from being Marcos’ henchmen and women to now being the biggest most consequential sector to power genuine change.
All claims to the contrary, it is my firm belief now that the barangays can no longer be bought--at least, not with a can of sardines.
Of course, some politicians still try to buy them with ambulances and tarpaulins--whose only use is to remind people that this disgusting congressman still looks at barangays the same way Marcos did: "patay gutom" errand slaves chasing after a can of sardines.
I know one who runs around Benguet doing this, because he's been told that iBenguets are too polite, too naive, too submissive and too subservient to say NO to him.
But, personally, I think he will get his overdue comeuppance on May 9, as will anybody else trying to channel Ferdinand Marcos Classic.
And that is STILL bad news for Ferdinand Marcos 2.0**

Sunday, March 13, 2022

S1E69 - How dare you doubt PAGASA's weather forecasts?

ood evening class. Please bring out your umbrellas, if you brought one. I am going to go around the classroom and inspect your readiness to cope with inclement weather--like some scattered showers and thunderstorms in the early evening...perhaps when you leave this building after I dismiss you…”

My Alpha section junior law class stared back at me blankly, then started whispering to one another trying to confirm the instruction I just gave them.
“He can’t be drunk, he doesn’t drink!” I heard Miss Deema Niwala whisper to Miss Julyrain Arpeggio sitting beside her.
“Well?” I stared back at them with big beady eyes, “is everybody prepared to make it through the rain?”
“Barry Manilow, Arista Records, 1980, sir,” Miss Julyrain chirped.
“Pardon me, what did you say, Miss Arpeggio?”
“When you asked if we are prepared to make it through the rain, it reminded me of the lyrics of the third song in Barry Manilow’s self-titled 1980 album ‘I made it through the rain,’ sir,” the YouTube music vlogger of the class explained.
“Riiiiight…” I said, “everytime you recite, Miss Julyrain Arpeggio, it never ceases to amaze me how well you know pop music. It makes me smile. That’s why I miss you when you’re absent, I can’t smile without you!”
“Oh, that’s in an earlier single released in, 1978, sir, with Copa Cabana on the flipside, it was originally sung by Karen Carpenter in 1974--”
“No, no, no--it’s okay, Miss Julyrain, I’m really more interested in the class’ preparation for the rain.”
“When is this rain supposed to fall sir?” Miss Kata asked.
“According to PAGASA, between late afternoon to early evening so it should be any moment now.”
“You actually believe the weather forecast of PAGASA, Sir??” Miss Deema shrieked.
“Why, yes, of course. They have no reason to lie, do they?” I answered.
“You have no reason to be naïve, sir,” Miss Deema retorted, while rolling her eyes.
“I don’t like your attitude, Miss Deema,” I faked a rebuke, “you do know that PAGASA is a government agency, don’t you?’
“Yes, sir. “
“And you’re aware that those weathermen are highly-trained career public officers, many of them even went into foreign schooling under the sponsorship of the Philippine government, right?”
“Of course, sir.”
“Then you must treat any work that they do, any action that they undertake, with a presumption of regularity in the performance of their official duty, correct? These meteorologists are dead serious, they not playing games, you know?”
“Yes, sir. But the presumption of regularity in the performance of their duty does not imply any conclusion of correctness and validity of their work,” Miss Deema replied.
“Did you hear that, class?” I said, grinning from ear to ear.
“Did we hear WHAT, sir??” they chorused.
“Just because PAGASA weathermen are doing their job well, it doesn’t mean we have to rely on their pronouncement as diligent public officers without any question. They are human, they can be wrong.”
I continued, “You know class, there are 1.7-million public officers throughout the Philippine civil service. If only one percent of them made one mistake in one day, that’s 17,000 mistakes per day, or 6.2-million mistakes in one year. That's an awful lot of mistakes to commit."
The class gawked at me, this time with wide-open , unbelieving eyes, and go “Ooooohhh……!”
“These public officers assess how much tax you have to pay, whether you’re entitled to a passport or not, whether you are the actual person who must be arrested, whether you should receive a donor organ or it should be given to someone else less sicker than you—I can go on and on. There are literally millions of actions, decisions or dispositions that public officers make while regularly performing their official duties that have far-reaching implications in people’s lives. If they make a mistake, and we just swallow that mistake sitting down, we may not very easily undo some damage that it might cause. So what do you think,
class? Should we take a second look at this ‘presumption of regularity’ thingamajig?” I teased my law juniors.
“I think we better DO, sir” Miss Deema said.
“Alright, then…. Facts—” I cocked the rifle, so to speak, “a certain Melchor Gaspar Baltazar Licoben is appointed general manager of an electric company by that company’s board of directors. By the way, class, what is EMPLOYMENT, according to the Supreme Court?”
“It is a species of PROPERTY, sir,” Deema snapped.
“Correct, and what does the Constitution say about property in the Bill of Rights, Jack?”
Jack Makataruz stroked his mohair a few times as if to activate some brain cells, “No person shall be deprived of life, liberty OR PROPERTY without due process of law, sir.”
“Good. Now, let’s continue. So one day, this woman, Angela Maria Clara Raspael, shows up at the electric company, wearing a business suit with the words ‘general manager’ embroidered on the lapel. She has a plastic laminated appointment paper, with a gold foil dry seal, barcode, serial number, documentary stamp—special sauce, lettuce, cheese, pickles, onions on a sesame seed bun—in short, it’s got all the works. Very impressive document.”
“Did she obtain it from Recto.” Avenue, sir?” Deema asked.
“No, from Elliptical Road, somewhere around Quezon Memorial Circle,” I answered, breaking up the class into fits of guffaw, sending Miss Deema stomping her feet once more.
“You’re missing the point, class,” I banged the blackboard, “apparently, Miss Raspael recently resigned from the mail room and heard that the electric company pays its general manager well. So she took stock of her electrical abilities, and thought, ‘I’m not that bad, I know how to turn a light switch on and off, and I know the rule on how to twist a light bulb when changing it: lefty loosey, righty tighty. I think I can manage, in general, so I must be general manager material!’
The class couldn’t stop laughing. So I banged rhe blackboard again. “Anyway, she wrote the president and said ‘dear mister president, it is YOUR honor to endorse me for this job, so let’s get it on!”
“Marvin Gaye, Motown Records, 1973, sir,” Miss Julyrain said.
“I’m sorry, what’s that, Miss Arpeggio?”
“ ‘Let’s get it on’ is the title of Marvin Gaye’s sexually-explicit song released in June 1973, which some people suspect Ed Sheeran copied sir,” the class’ instant composer detailed.
“Riiiight…” I said, “anyway, so now there are two people, and only one position—start to evaluate the tenability of each person’s claim. Let’s start with Licoben. Miss Deema?”
“Well, for starters, sir, he is already an employee of the company so his tenure in office is primarily ex-contractu,” Deema said.
“That’s a very astute observation, Miss Deema,” I acknowledged, “and when there is a valid subsisting contract between two parties, what can the government NOT do?”
“Not just the government, sir, the VERY STATE itself cannot impair that contract, unless that contract is invalidated for cause.”
“So you are invoking the presumption of regularity in the performance of duty by the company’s board of directors when they appointed Licoben?”
“No, sir,” Deema said, surprising me a little bit….oh, okay, surprising me A LOT.
“Would you like to hear my explanation, sir?”
“I would LOVE to hear your explanation, Miss Deema!”
“Well, first of all, sir, the electric company is a private entity. It may be under government regulation, but it’s still private, just like all banks are under BSP regulation, but they remain private except maybe a couple of government banks with incompetent managers—”
“Stay on track, Miss Deema…”
“I’m sorry sir, so anyway the electric company’s directors are not public officers. Presumption of regularity does not apply to them. Their actions are conclusive upon the company because they are the policymakers of the company. If they hire a general manager, there’s no one in the company higher than them to assail their discretion.”
“Riiiight…” I said, “so you’re saying Licoben is unprotected in terms of state guarantees?”
“NO, sir, I am saying the exact opposite. Licoben’s employment is a police power matter because private employment in the Philippines is governed by Presidential Decree 442, the Labor Code of The Philippines. Labor regulation by legislation is an exercise of the State’s police power. PD 442 is a police power law.”
“What is the implication of that on the comparative merits of the two competing appointments,” Miss Laarnee?
“Well, sir, the employment contract of Licoben consists of hundreds of pages because all the provisions of PD 442 are DEEMED WRITTEN AND INCLUDED in the employment contract of Licoben, whereas the appointment paper of Raspael is just one page, two at most—similar to two-ply toilet paper, sir.” The class break out laughing again.
“Now wait a minute,” I said, “wouldn’t Raspael be entitled to equal protection of the law?”
Deema stood up quickly, “No, sir. Not under PD 442 because she and Licoben are NOT equal. Only Licoben is covered by the Labor Code because he is privy to an employer-employee contract, one that is between him and the electric company. Raspael has no employer-employee relationship with the electric company. Equal protection of the law means equality among equals. Raspael is not an employee. She is not protected by the Labor Code. And she can prove that to herself. She can go to any Labor Arbiter and they will tell her there is no cause of action for “illegal non-acceptance of endorsement!”
“I see…and what about the claim that her appointment paper was created by public officers acting with presumption regularity, Miss Deema?”
“It fails utterly sir, it is only a disputable presumption which cannot prevail against a CONSTITUTIONAL guarantee against being deprived of employment without due process. The facts do not include any mention that Miss Raspael brought action to invalidate Licoben’s employment as general manager first. She wanted a slamdunk, instant substitution—and there is no provision under any law that makes THAT possible.”
I looked around the class and I could see they’re beginning to grasp the intricacies, “Well what about the appointmemt of Raspael, can we evaluate that, too? Where is Jack? Advocate for Miss Raspael, what does she have going for her, Jack?”
“Sir? Uh…..well…uh,” Jack Makataruz hesitated.
“Take your time, Jack,” I said, “think really hard. Come up with one thing—ANYTHING—that works in Raspael’s favor…”
“I got it sir!” Jack beamed with excitement, “her laminated appointment paper would be waterproof, sir!"
Miss Deema just had to have the last word, "that means she can join you in believing PAGASA's weather bulletins, especially those rain predictions, sir!"**
(Read past lectures you missed in class here : “alphasectionclass.blogspot.com” )

Tuesday, March 8, 2022

S1E68 - The true essence of the "Rule of Law"

here is Miss Carla Adaawan?” I picked out a particular student because I knew she is from Tabuk City, which is in Kalinga province. This province was particularly significant during martial law because of the Chico River Dam controversy.

“I’m present sir!” the spritely girl stood up.
“Miss Carla, last April 24, your city marked the death anniversary of your folk hero, Macli-ing Dulag—” she cut me short.
“No, sir, we did not,” she said, hanging her head low as though she was embarrassed to say what she just said.
“No? I didn’t know that—and I’m surprised, because here in Baguio we exhibited his bullet-riddled door in Malcolm Square to remember the night he was murdered,” I said.
“We heard about it, sir, and the grateful people of Kalinga salute the noble people of Baguio for doing that. To think that Baguio is 450 kilometers away from that infamous crime scene—”
“Barrio Basao, Tinglayan municipality,” Jack Makataruz interjected, without being called.
“That’s right, classmate,” Miss Carla acknowledged, “and if that Chico Dam project had pushed through, it would have submerged eleven more villages further upstream. You wouldn’t know it from the lack of official acknowledgment of these historical facts.”
“That is really sad,” I consoled, “you know, there’s a library, an art gallery and a scholarship program in memory of him here in Baguio, and I know of at least three plays that are written by Baguio playwrights about the life of Macli-ing Dulag. Are you telling me there’s nothing like that in Tabuk City, Miss Carla?”
“None that I know of, sir. No monument, no street, no public building, signboard or marker named after Macli-ing Dulag in Tabuk, which is ironical considering he is our version of Andres Bonifacio,” the girl from Tabuk lamented.
“That’s why we’re so amazed that you here in Baguio would commemorate our hero better than we did in his own home province,” Miss Carla said, her voice cracking a little bit.
“If it’s any consolation, young lady, that is a biblical phenomenon,” I said, “there’s no monument or marker honoring Jesus Christ in Nazareth either, and that’s His ancestral town.”
Miss Deema butted in, “Prof is right, just like Jesus said ‘a prophet is without honor in his hometown.’ In fact, don’t even be too impressed with us here in Baguio. Our first Filipino mayor is Sergio Bay-an, and we have no monument to his honor, either.”
I steered the class back to the lecture. “Anyway, the reason I asked the question, Miss Carla, is to jump off our discussion tonight about the ‘rule of law.’ Does anybody have any idea what that lovely phrase ‘rule of law’ means?”
“Let me try, sir,” Miss Deema stood up again, “rule of law is the prevalence of justice, by actions that are responsive to logic, reason and fair play.”
The thing with this particular law student, Miss Deema, is whenever she recites I often don’t know how to evaluate her answer. She can string words together to come up with something that sounds like a quotation from a textbook, one I most likely did not prescribe for the class. So I just wing it.
“That’s fine, Miss Deema, but how does the law figure in all that? Mustn’t there always be a law behind our actions for us to be able to say we are following the ‘rule of law’?”
It was Miss Carla who spoke, “Sometimes, I feel it’s the opposite, sir. The Chico Dam Project is the perfect example. It showed the people of Tinglayan the most hideous face of the law, sir, where the military was used to enforce a project rejected by the people. And yet they kept saying the project is in line with a very important national program. We were accused of defying the 'rule of law' for opposing the threatened displacement of Igorot villages by that hydroelectric dam.”
“What national program was that, Miss Carla?” I asked.
“The national electrification program, sir,” Miss Carla answered, “the Chico Dam project was funded by the World Bank and the lead agencies were the National Power Corporation and the National Electrification Administration.”
At the mere mention of NEA, the whole class groaned, “Oh, no--NEA na naman!”
Jack Makataruz stood up, “Why is it that everytime NEA is mentioned, there is always injustice and militarization involved! In Kalinga, soldiers were used to terrorize the Tinglayan villagers. Here in Baguio, NEA used the PNP to terrorize BENECO. NEA is always associated with blatant abuse of power, sir!”
“Well, that is not really a balanced statement, Jack,” I said, “I happen to observe that everytime NEA is involved, the ‘rule of law’ is always invoked, too. You do agree that we need the rule of law if we are to remain a civil society, don’t we?”
“Of course, sir,” Jack conceded, “but the rule of law is not a matter of defining it, it’s a matter of observing it.”
“Actually, I’m fine with Miss Deema’s definition,” I said, “but paper law is far different from law as experienced on the ground. That’s why I called Miss Carla here, who is from Kalinga. She has experienced that difference. Miss Carla, tell us more about the people of Kalinga’s experience with the rule of law.”
“Actually, we have our own law which is even older than this republic, sir, we call it ‘pagta ti budong’ or system of peace pacts. It unifies our different tribes based on common interests, including common defense of our homeland. During the Chico Dam controversy, it underpinned our common opposition against that NAPOCOR-NEA project.”
“Riiiight… so, of course, the government recognized your indigenous budong and respected the ‘rule of law’ the way the tribal people have understood it for centuries, being the embodiment of their hopes and aspirations as a people, am I correct?”
“No, sir, you are wrong,” Miss Carla retorted, “President Marcos back then brushed aside the indigenous law. He made his own law and imposed Manila’s development concept on all Kalingans, whether we liked it or not.”
“What law would that be, Miss Addaawan?” I asked curiously.
“It was Presidential Decree 848, sir, imposed by Marcos in 1975, designed to suppress opposition to the Chico Dam project by taking over the leadership of all those communities fighting the dam.”
“What was that law all about, tell your classmates,” I encouraged the girl.
“It isolated the four municipalities of Lubuagan, Tanudan, Tinglayan and Pasil and formed it into the Kalinga Special Development Region or KSDR, sir, on the pretext that these were economically-depressed municipalities, they were placed directly under the Office of the President.”
“In other words, class, these were ‘ailing’ municipalities, so the national government exercised some form of ‘step-in’ rights to take over the administrative operations of their LGU’s,” I supplemented.
The class went into their usual long, “Ooooohhh…!”
“That sounds familiar, sir, it’s the same thing NEA is saying about BENECO—that it’s an ailing cooperative and that they want to exercise ‘step-in’ rights and take over its operations,” Miss Deema said.
“Didn’t the Kalinga people find that a little odd?” I said, “You’d think the President might be interested in directly managing places like Makati, Quezon City or Taguig. But why was Marcos so interested in meddling in Tinglayan? Are there any big industries in Tanudan or Lubuagan or Pasil, Miss Carla?”
“None, sir, and President Marcos never even once set foot in Kalinga,” the Tabuk girl said.
“Really?” I exclaimed, “so how did Marcos get directly involved in running the operations of the KSDR?”
“Sir, one day somebody just showed up in Kalinga with an appointment as Special Administrator. He told everybody he had the full support of Marcos, and it wasn’t hard to believe.”
“Really? Why?”
“Well, because he was supposed to be this civilian administrator, sir, but he could move battalions of soldiers around like a general, he could even order them to hamlet a village, restrict people going in and out of those villages,” Carla said.
Miss Deema couldn’t hold herself back, “Is she describing the NEA of today, sir?? Because that’s exactly the situation NEA created in BENECO!”
“How exactly do you mean by ‘exactly’ Miss Deema?”
“Somebody—some incompetent technically-challenged woman—suddenly just showed up here in Baguio with an appointment as general manager, also making everybody aware she is backed by President Duterte. Even if we assumed, for argument’s sake, that she is general manager of BENECO, that doesn’t even make her a government official. And yet she can move contingents of PNP police officers around, she can even give instructions for them to physically drag people out of a building. And she can hamlet an entire state university campus and restrict people going in or out of the Benguet State University! Those university officials were scared shitless of her!” Deema said, her eyebrows knitted together so close it looked like they actually crossed each other.
“Language, Miss Deema!” I cautioned, “but--my, my, that IS frighteningly close to a Chico Dam experience,” I said, “I wonder if there is any law backing all of that—”
“In Kalinga the government kept saying there was, sir,” Carla spoke again, “it is section 5 of PD 848, may I read two paragraphs of it sir?”
“Go ahead, Miss Carla.”
“The Region shall have the following duties and functions: (a) To develop and undertake such action projects as may be necessary to achieve the purposes and objectives of this Decree; (b) To call upon and enlist the assistance of any department, bureau, office, agency or instrumentality of the government as it may require in the performance of its functions—”
“Wait, stop right there!” I said, “what Miss Carla just read, class, is a classic example of a self-propagating rule. You have two provisions--the first one says ‘you can perform these functions if they are necessary’ and then the second one says ‘whenever you are performing a duty, that performance is a necessary function.”
“So, let me ask you, what is the limit of your authority under a law like that?” I threw the question at the class.
“The sky, sir” Miss Laarnee Iwasan, the girl working at the electric company, said.
“That’s correct, Miss Laarnee,” I said, “that’s just like saying ‘Rule No. 1: I am always right’ and ‘Rule No. 2: in case I’m wrong, refer to Rule No. 1.”
“I think you lectured on that already, sir,” Deema said, recalling what I taught the class about the limits of the power of delegation through legislation, “no law can be so broad that all discretion is left to the implementor, making him even more powerful than the legislature. It just so happens that during martial law, President Marcos WAS the legislature.”
“As a matter of fact, he was also the court in many criminal cases,” I supplemented, “thankfully under the 1987 Constitution, only a judge can issue a warrant of arrest, or search warrant. But during martial law, President Marcos issued countless so-called ‘dog warrants.”
“Dog warrants, sir??” the class chorused.
“We called them ‘dog warrants’ because of its acronym ASSO—for Arrest, Search and Seizure Order. The point is if you define the rule of law as merely ‘adherence to law’ what happens if the law itself is oppressive?”
“It becomes the LAW OF THE RULER, sir.” Deema sighed, "that's why I am not lamenting rhat Marcos is gone!"
"Ain't no way his imbecile son is getting back either!" Miss Kata added.
"Then I have bad news for you," I said, "only his cadaver is gone. In the heart of our disgustingly frustrating legal culture, Marcos is still very much alive. Do you know what was Ferdinand Marcos' favorite thing to do when he was the one-man Philippine government?"
"Raiding the public coffers, sir?" Deema said sarcastically.
"Next to THAT, Miss Deema," I said, as the whole class broke out in guffaws. "No--he loved creating new government offices whose titles ended in the word 'AUTHORITY' You can count them if you want: National Grains Authority, which later became National Food Authority, Philippine Tourism Authority, National Economic Development Authority, National Cottage Industry Development Authority, Philippine Coconut Authority--the list is looooong, class."
"But the peculiar thing about these 'authorities' class, is the way they are structured. Marcos made each agency a carbon copy mini-dictatorship, just like the Office of the President. And in each office, he always installed a 'mini-ME' of his choice--and they all acted like miniature Marcoses who reported directly to him."
"I thought all of that was corrected after rhe EDSA People Power revolution, when Cory Aquino became president, sir??" Miss Kata exclaimed.
"Well, she must have overlooked many of these PD's. In fact, we in the legal community are not even sure if we have DISCOVERED all of them, because a lot of them were not even published."
"Then how do you discover these secret PD's sir?" Miss Laarnee wanted to know.
"The usual way is to just WAIT. Sooner or later somebody will come forward, acting entitled, reminding you of that signature Marcosian arrogance, and claiming authority under this PD or that, or even this implementing rule or resolution nobody has heard of before. Then we all have to scramble to verify the claim."
"What about the miniature Marcos? What does he or she do in the meantime, sir?" Jack asked.
"Usually, he or she insists on his or her authority and he or she shouts 'RULE OF LAW!!!!' to high heavens, like he or she is a victim in some way," i answered.
Miss Carla stood up, "Well, today, sir we never heard from the KSDR again, like it doesn't even exist anymore. NAPOCOR and NEA just used it as a battering ram against us Kalingans while the Chico Dam project was ongoing. But when the World Bank pulled out, the money went dry. And we never heard from NAPOCOR or NEA again."
"Yes, that's NEA's modus operandi!" Deema butted in, "when there's no more money, they're gone!"
"Unfortunately, the money did not run out before they could kill the leader of the opposition to that dam project," I intoned.
"But at least, our villages were saved, sir. So justice won in the end--against the rule of law," Miss Carla said.
“There you go, THAT is what you need to understand about the ‘rule of law,” I summarized, “it’s not about legal oneupmanship, or a battle of who can exploit the law more for his own advantage. It’s about achieving the aims of justice even if it means defying the law when it betrays justice. And to be willing to pay whatever price the fight for justice demands.”
My class fell silent, so I waited a few moments before delivering the final point of the evening’s lecture.
“In the simplest terms--after paying the tuition fee for all of you with his own life, this was the lesson imparted to us by who, Miss Carla?”
“Macli-ing Dulag, sir,” Miss Carla Adaawan, the girl from Tabuk City, Kalinga said. Then she sat down, buried her face in her hands and started sobbing.
“Go now and fight for the true essence of the ‘rule of law’ Alpha Section…class dismissed.”***
(Read past lectures you missed in class here: "alphasectionclass.blogspot.com" )

Tuesday, March 1, 2022

S1E67 - Exploiting the confusion created by the "fog of war"

he action of the National Electrification Administration (NEA) in appointing Ana Maria Rafael as general manager of Benguet Electric Cooperative is illegal because it violates Section 26-B of P.D. 269.

That provision prescribes the mandatory qualifications for general manager. Rafael lacks those qualifications.
There are two elements of a valid appointment.
The first one is POSSESSION OF ALL THE QUALIFICATIONS AND NONE OF THE DISQUALIFICATIONS to the position. This is called the Substantial element.
The second one is ADHERENCE TO THE PRESCRIBED PROCESS of making the appointment. This is called the Procedural Element.
NEA violated BOTH. It appointed Rafael who did not possess the qualifications required by P.D. 269.
It made the appointment through a resolution that violated ITS OWN PROCEDURES in the selection and recommendation of a GM.
To top it all, when it could not get the board of directors of BENECO to approve its recommendation of a SINGLE nominee, it just went ahead and usurped the power to appoint that lies exclusively in the board and made the appointment itself by an act “ultra vires” (meaning “in excess of” or “beyond its authority.”)
None of these violations are curable.
Those are the facts, and they are undisputed.
Originally, the doctrine of the “Fruit of the poisoned tree” is applied to a criminal case. In the absence of a valid search warrant, the Supreme Court held, all articles seized during such a search are inadmissible.
The same principle is, in fact, evident in this BENECO-NEA controversy. In light of the illegal appointment of Rafael by NEA, all of its subsequent actions in furtherance of that illegal appointment are ALSO illegal.
If the appointment is poisoned, then all subsequent actions by BOTH the appointee and the appointer are also poisoned.
If the appointment itself is invalid, all actions pursuant to that appointment are also invalid.
If we take into consideration the relevant timeline, NEA entered into this regime of invalid actions AFTER it made that illegal appointment of Rafael and served the copy of the appointment to BENECO on August 27, 2021.
In short, everything NEA did in furtherance of that illegal appointment after August 27, 2021 are all void.
THIS ISSUE HAS NOT BEEN RESOLVED BY ANY COURT, contrary to all public posturings of NEA. This is the main issue in the case now still pending in the Court of Appeals. It is also the main issue in the administrative case filed by Rafael against the board of directors, the general manager and some department heads and officers of the BENECO employees labor union before NEA.
By the way, this administrative case is where I am counsel for the Magnificent Seven and Laarni Ilagan.
What is the status of these cases? The one in the Court of Appeals has been submitted for resolution, so we are just waiting for the Decision, which should come out anytime. The counsel representing BENECO GM Mel Licoben in this case is the constitutional law expert Atty. Lauro Gacayan.
I am only his student.
In the NEA case (Administrative Case No. 11-09-21) where I am defense counsel for the BENECO officers, I have submitted my Position Paper three (3) months ago, or last November 29, 2021. Under NEA Rules, NEA may either decide the case already, based on the Position Papers submitted, or it may opt to go into full-length hearings before making its final decision.
It may also, wittingly or unwittingly, just sit on the case which, to my personal observation, is what it seems to have opted to do. At any rate, if it’s taking the Court of Appeals this long to contemplate the case, I certainly don’t expect an administrative body to go any faster. So it’s really down to a waiting game.
In the meantime NEA and Rafael are maintaining that her appointment is “valid until annulled.”
It is not. There is no such presumption in law and I challenge anyone to a public debate anytime anywhere who claims otherwise.
It is true, “valid until amended or repealed” is a solid doctrine of law. But it applies to legislation. In fact, it is carved in granite in our Civil Code that “laws are repealed ONLY by subsequent laws.”
What NEA and Rafael have done is hijack that principle to claim in effect, that a NEA Resolution can only be repealed by a subsequent NEA Resolution. So if NEA does not invalidate its own resolution appointing Rafael, the appointment stands. That is what they mean by her appointment being PRESUMED “valid until annulled.”
Additionally, they say unless a court invalidates her appointment, it stands.
That is ALSO wrong.
If an appointment is invalid on its face, then it has no legal effect. It’s very easy to prove this. And I can even get NEA to agree with me 100%. Let’s suppose NEA appointed ITS OWN ADMINISTRATOR as the new Energy Secretary, would NEA contend that the appointment is “valid until annulled?”
If an act is done ultra vires, that act need not be judicially declared invalid, all citizens belonging to the society of reason may simply defy it.
If the City Council of Baguio, for example, enacted an ordinance IMPOSING THE DEATH PENALTY as a penal provision, and the mayor did not veto it, may we then keep EXECUTING violators who are caught, in the absence of any court decision declaring the ordinance invalid in the meantime?
Of course not.
The ordinance is invalid, it cannot be enforced. Of course you have to go to court to formally expunge it from the records. But you don’t have to obey that ordinance in the meantime—even without a temporary restraining order stopping its implementation. Imposing the DEATH PENALTY is way in excess of a local legislative body's authority. Only Congress can do that. So if the City Council imposes that penalty, even if they complied perfectly with the process for local legislation, it would STILL NOT ENJOY even a scintilla of presumption of validity at all.
So, with even more reason, a mere appointment IF INVALID ON ITS FACE does not enjoy any presumption of being “valid until annulled.”
However, don’t take my word for it. Go to the Rules of Court, look at Rule 131, section 2. There you will find an enumeration of forty seven (47) specific instances of disputable legal presumptions. Presumption of validity of an appointment to an office is not one of them.
Finally, NEA and Rafael, joined by the in-house legal luminary of the DILG, all said a RESOLUTION is a mere statement of the mind, or of the opinion of the body making that resolution. They stressed that a RESOLUTION is not enforceable because it is only binding on the persons, single or collective, who made that resolution. That's why to them the concurrent resolutions of the Baguio City Council and the Benguet provincial Board declaring Rafael a "persona non grata" are mere scraps of paper.
Then this means, all resolutions by NEA are not binding on anyone except upon NEA only. BENECO has no legal duty to obey a NEA “resolution.”
NEA must be consistent. They cannot assign one meaning to the word "resolution" when it favors them, and assign a different meaning when it's against them. That is gross abuse of discretion.
So I issue this challenge to NEA: convert that resolution appointing Ana Marie Rafael as general manager of BENECO into an ORDER.
Go ahead and retain all of its invalid essential elements and RE-ISSUE IT AS AN ORDER.
If NEA will do this, I promise to challenge it in court, in behalf of an organized alliance of its member consumer owners.
And I will do it as a teacher of law, in the interest of advancing legal education in the country.*
(read the lectures you missed in class here: “alphasectionclass.blogspot.com”)