Wednesday, July 18, 2007

Lady Justice Unsheaths Or Unbalances?

Folks, I think fooling around with the ENGINE PARTS is a very bad idea, even if the Barrio Mechanics have good and noble intentions.

But I won't say any more about this until I see if Lady Justice unsheathing her sword ends up upholding human rights, or beheads the Balance of Powers while some Unelected Judges retire to Geneva with their new found international lawyer pals and the hosannas of adoring fans for their extrajudicial activism.

Today's Commentary is a comparison and analogy between the Plunder Law and the new Human Security Act.

It is useful to make the distinction between SIMPLE crimes and COMPLEX crimes.

Although defining each category in absolute terms might be difficult, the difference between the two would seem to be intuitive because COMPLEX crimes are composed of SIMPLE crimes, but not vice versa. However, the thing that makes a complex crime a crime separate from its simpler components, deserving of its own laws and rules for enforcement and punishment of its practitioners, is that the WHOLE is greater than the mere SUM of those PARTS.

In the case of economic plunder, we have a crime (1) that is composed of ACTS of PLUNDER (which are simply crimes under other existing laws, such as bribery of public officials, malversation of public funds, graft and corruption, kickback, etc.); (2) which are committed in a SERIES or COMBINATION by one or more persons in CONSPIRACY, that amount to a PATTERN of plunder; and (3) thereby illegally amassing an amount greater than or equal to fifty million pesos.

(Here now is the brilliant trial lawyer Estelito Mendoza talking about plunder in the context of the plunder trial of Joseph Estrada)

Personally, I think Joseph Estrada DID commit plunder, but that Estelito Mendoza is right that the Prosecution COULD NOT have proven him guilty of plunder because (1) they did not in fact show which of the acts alleged in the Information constituted a series, and which a combination; and (2) that none of the component simpler acts were alleged to have been done by the accused, yet, (3) NONE of those shown by the Prosecution to have performed those acts (Chavit Singson and Atong Ang) have been prosecuted or punished as conspirators, principals, accomplices or accessories--they are mere state witnesses! How indeed could Erap have committed plunder, when the basic elements have been metaphysically excluded by what the Prosecution has FAILED to do.

Now, in the case of political plunder or TERRORISM, we also have, by way of analogy, (1) Component ACTS of terrorism, namely various simpler crimes already proscribed and punished under the Revised Penal Code and existing laws (murder, kidnapping, arson, piracy, extrajudicial beheading ahem! etc); (2) where, by sowing widespread fear and panic, or threatening to, (3) organizations, networks and conspiracies of persons can COERCE the government to give into unlawful demands, i.e., to force the government to give into into POLITICAL demands to perform illegal acts or to adopt illegal changes in policy.

Without ALL three elements present and each one proved beyond a reasonable doubt, there is no "crime of terrorism"--there would only be a failure of prosecution that would incur fines on the government of typically 500,000 a day AND prison sentences of up to twelve years for the law enforcers!

FALSE CLAIMS AND FAIRY TALES about the Human Security Act of 2007 have been multiplying in media. One particularly silly idea for example that ANY act which tends to sow widespread fear and panic among the populace could be considered terrorism. (Like those oh so scary TEXT messages and HORROR movies on pirated DVDs!)

Like plunder, terrorism is a COMPLEX crime composed of simpler crimes committed as organized crime in continuing, surreptitious conspiracies called insurgencies or rebellions with the clear intent of gaining MASSIVE political power enough to challenge the government and force it to capitulate.

Like plunder and all such complex crimes, terrorism is therefore MUCH HARDER to prove against suspects than the simple crimes that compose it.

But if plunder is a series, combination or conspiracy to gain massive economic wealth and power, then terrorism is POLITICAL PLUNDER -- it is a series, combination or conspiracy to gain massive political power and influence through illegal, cunning, and violent means.

No comments: