Thursday, November 1, 2007

The Right to Know and the Writ of Amparo

In one of his more potent ripostes to something I said in the recent Commentary on the public's right to know and the use of anonymous sources Manuel L. Quezon III retorts with a two pairs of words: "DEEP THROAT" and "PENTAGON PAPERS." In the rest of that comment flare, MLQ3 bats for the highest priority being assigned to the public's right to know: the end your assumption is the security of the state above all; my assumption is the public's right to know above all, because it is that openness that is the surest and best defense of the state as something beyond the capacity of someone like Joker [Arroyo] to subvert.
Manuel Buencamino produces an even more comprehensive and radical Right To Know conception and manifesto --
I think we will have a basic disagreement on this issue because I believe the public has the right to pry into whatever the government does. Because it owns the government. There is no government secret so sacrosanct that I, as a stockholder of Phils. Inc, do not have the right to know about. If any of my gov't institutions wants to keep a secret from me then that's their lookout not mine. I uphold the right of owners to look over the shoulder of their hired help.
Hmmm...I wonder if those starvation wages that we the Owners pay the "Hired Help" have anything to do with the legendary level of graft and corruption in the Philippine government. But Yak asks the right question:
"Is the media the only way for people to know about the truth in governance?"
Of course the answer is NO. Congress also has a right to information, as great as any in mass media in its investigations in aid of legislation. Congress is even granted the power to summon before it anyone who may have information needed to make good laws as well as to perform oversight functions over the rest of the Government, including the exposure of wrongdoing.

And now, even the Supreme Court is getting in on the act as a hyperactive Supreme Court with a very inventive Chief Justice Reynato Puno rolls out new Rules of Court to combat the culture of impunity and solve the "pestering problem" of extrajudicial killings of activists, clerics, journalists and judges. (Hey, what about all those ambushed, assassinated, beheaded, extorted soldiers, policemen, businessmen and barangay officials, Yer Honour?)

In roughly as many days of fanfare since their new Pro-Human Rights Rule of Court was promulgated, the Supreme Court has issued three successiveWRITS OF AMPARO against no less than the Commander in Chief and the Armed Forces of the Philippines, and the National Police --
You, respondents President Gloria Macapagal-Arroyo, AFP Chief of Staff General Hermogenes Esperon, Philippine National Police General Avelino Razon, Major Darwin Sy a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Captain Angelo Cuaresma, a certain Jonathan, Police Superintendent Edgar Roquero and Police Senior Inspector Arsenio Gomez are hereby required to make a return of the writ before the Court of Appeals Ninth Division on or before 4 p.m. of November 9, 2007," the high court ordered.
The first writ of amparo was on behalf of missing students Sherlyn Cadapan and Karen Empeno and farmer Manuel Merino. The second for farmers Raymond and Reynaldo Manalo who claim they escaped military detention and torture and are still behing harassed. The third writ was on behalf of "an urban poor leader and her children" who filed a petition for amparo because "they are being harassed by motorcycle-riding men wearing bonnets or ski masks" after the mother was allegedly "abducted" by Air Force intelligence agents trying to get information on her NPA connections and acquaintances.

So does the public really have "the right to pry into whatever the government does because it owns the government?" Do we have the right as ordinary citizens to pry into military secrets, diplomatic secrets and other national security secrets? To demand the inspection of military offices and facilities allegedly for the purpose of "identifying places of detention"? Perhaps to find where all the desaparecidos are being kept and tortured? To demand the Supreme Court's protection when we are harrased by men in bonnets on motorcycles? Three emphatic WRITS OF AMPARO issued by the Supreme Court seems to be a flexing of the Judiciary's muscles (PDI) against the government, police and military and on behalf of whom?

May we force open for our examination and disposition any and all records of the government or any private or public institution that keeps "databases or stores of information" that may contain data about us, with the power to have such information expunged if we, "by self-determination" consider them to be erroneous or offensive to us? We won't know for sure until the Supreme Court issues a WRIT OF HABEAS DATA for our edification.

What I think Mr. Buencamino actually means is that we ought to have the right, and that it would be awfully nice if we could know instantly about every act of wrongdoing that happens in the government. The problem in real life is that we cannot judge beforehand whether some wrong doing is involved or not.

But I think the public's right to know is way over-rated as "the surest and best defense of the state..." as MLQ3 claims. It presumes that the power of OBLOQUY or public ridicule resulting from exposure on the front pages, is still an effective deterrent, antidote or punishment for acts of government wrongdoing and corruption.

I think the Power of Obloquy in the main stream media has long been blunted by over-use, the ennui of familiarity. No more is the old Voice of Omniscience of mass media. Of course we want an open society, marked by a vigorous and free press. And Press freedom allows even a kind of journalistic jingoism, gang-banging journalism that uses intrigue and innuendo to electrify the game and the players into often self-revealing animation or reaction.

But "the public's right to know" as practiced by even the Freest Press imaginable cannot be the "best and surest defense" and cannot be reasonably given priority over the needs of national and state security. For one thing, there is a great deal more to the Press and journalism than those serious exposes and tendentious editorials.

It is no exaggeration to say, for example, that Press Freedom, because it is based on Freedom of Speech and Expression, includes the right to literally tell tall tales, to sell advertising, to publish comics and entertainment columns, inane pictures, social gossip columns and solipsisms, obituaries, New Age fairy tales, as well as to make front page headlines and serious columns and editorials. But from the constitutional standpoint, all these genres of the Mass Media are equivalent in standing and protection before the Law.

Clearly it is a social good of the highest order, this right of the public to know or more accurately, the right of the public to find out and or be entertained.

Given what the Supreme Court is doing now, I have a feeling we shall actually discover how relatively benign is the practice of the Public's Right to Know when wielded by newspapers, radio and television!

The Supreme Court is getting into the business of the Right-to Know, maybe from reading PDI and the Business Mirror too much, has flung wide open the Judiciary's doors, come one, come all, ye activists, clerics, journalists and judges. The High Court is handing out Writs of Amparo like hotcakes.

But I could not say the following any better than Viking in that previous comment thread on this topic, where he says
The full exercise of the 'right to know' doesn't guarantee access to the correct information, and even if the info disseminated were correct, access to media and interest in subjects is uneven. Let me just say that 'right to know' is a necessary condition for democracy, whether that right is used by the press or a branch of government.
Necessary but insufficient, and dangerous!

The Supreme Court is playing with fire, in my humble opinion with the writs of amparo and habeas data. Like the Senate executive session leak, this may turn out to be another example of one institution abusing its privilege and discretion, unwisely and imprudently.


the bystander said...

"The Supreme Court is playing with fire, in my humble opinion with the writs of amparo and habeas data. Like the Senate executive session leak, this may turn out to be another example of one institution abusing its privilege and discretion, unwisely and imprudently."

1. Do you acknowledge the existence of extra-judicial killings and abductions? If you do, how do you propose to resolve them?

2. Do you believe that Mrs. Arroyo, as Chief Executive, has done enough to resolve this problem? If you do, please tell me what has so far been done by this administration?

3. If in your humble opinion, the Supreme Court is abusing its powers with this writ of amparo and habeas data, then what do you call the actions of the Executive branch with respect to its perceived tolerance of the abuses allegedly committed by the military?

I suggest you read carefully the rules. The issuance of the writ itself does not ipso facto conclude that a respondent is already guilty. Due process is still observed.

DJB Rizalist said...

Really? The respondent is not already guilty? then why is it the facilities of the military that are to be inspected to "identify the place of detention" of the "urban poor leader"? Why is the writ to be returned by the Commander in chief herself? What if 2, 20, 200 or 2000 of Joma's hordes begin asking for writs. And what about those other extrajudicial killings, like the beheadings of soldiers, the assasination of policemen and barangay officials by the Nice People's Army, huh?

the bystander said...

Before I answer your question, again, i would like to know how do you propose to resolve the problem of exta-judicial killings? I think it's only fair that you also make known your "suggestions" because you seem so aghast at the Supreme Court for promulgating such rule.

The inspection of military facilities is but a temporary relief (through an inspection order) granted to a petitioner precisely to ASCERTAIN the veracity of his allegations as contained in the petition. That's why it's called an "inspection" order because its main purpose is to inspect whether or not the victim is being held against his will in the suspected place of detention.

Besides, The Armed Forces of the Paranoid has nothing to hide, right? In most cases, their victims are no longer inside the military's torture rooms. They're already buried six feet under the ground.

As with other petitions filed in court, the mere filing of the petition does not right away result in the issuance of the writ. Courts, despite the presence of some rotten judges, are not that gullible to issue writs of amparo like some routinary issuance of court clearances.

Again, read the rules carefully. The rule was promulgated not just for Joma's disciples but is technically available to anyone (activist, journalist, soldier, poiceman, neo-con, etc.) "whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity."

DJB Rizalist said...

It's like my liver taking over by heart function, or the brain doing the gonad's work. It is simply not right for the judiciary to try and micromanage the military. I don't much care that they SAY they are trying to solve "extrajudicial killings." It can only result in Reynato Puno getting some big fancy job, like head of junta or judge in Geneva. It's one big grandstanding ploy that will only increase the one million case backlog that the Judiciary should put its shoulders to the millstone to work off.

They are offering false hope and snake oil to real victims, though the chatter in leftist weblogs from the Utrecht Space Station is all praises for these politicians in judge's robes.

Whatever happened to separation of powers, to judicial restraint. To the cold impartiality of neutral judges.

No wonder Puno and the Supreme Court have negative trust ratings from the Filipino people, according to the latest SWS surveys.

Maybe our people are so dumb and sheeplike anymore, whereas it is the Supreme Court justices that are unable to see how they are being used and manipulated by propaganda. they really need to get out more.

Why, around the time puno was called the war on terror "mindless" and a "knee jerk reaction" to graduating students of UE, some Marines were getting their heads hacked off.

yet he's never decried those "extrajudicial beheadings" and is intent on giving them their own homeland as ancestral domain.

Sorry, I side with the AFP and the soldiers on the ground doing their duty as they swore it.

if they want to solve the extrajudicial killings, let them be cops or NBI agents, not unwitting protectors of the NPA, or destroyers of the Rule of Law from within.

the bystander said...

Had you offered some solutions, I could have given credence to your criticisms of CJ Puno and his Supreme Court.

The pool of blood we see is not merely propaganda as Norberto Gonzales and reactionary priest Romeo Intengan would like to impress upon. It's for real. Only those who refuse to see even when they're eyes have already been opened are still in a state of denial. But that's understandable. No hardened criminal in his right mind would admit to his own crime.

The beheadings of the marines are equally condemnable but I do not see that same condemnation when it comes to the murders of militants and journalits.

The real destroyers of the Rule of Law from within are those who maintain an unofficial policy of liquidating activists and journalists and passing them off as the handiwork of purging by their own ranks. The cornerstone of democracy is its tolerance varying political ideologies. Sad to say, the people who vow to protect the democratic system are themselves destroying its very essence by their intolerance of ideologies which areno to their liking.

DJB Rizalist said...

there are thousands, hundreds of thousands, maybe millions who would consider themselves to be activists, community organizers, leaders of the people with a rich diversity of ideologies, yet it is a curiosity to me that most of those involved in these extracurricular killings are identified with the one unique group of such activists that also have an "armed wing" that is engaged in self proclaimed protacted revolutionary struggle to overthrow the government by violent means.

It is such a unique and discriminating group, that people like Popoy Lagman and Arturo Tabara are suspiciously not on this list maintained by one of the front organizations, perhaps because their extrajudicial killings were admitted to and rejoiced in by the self same NPA and its sympathizers.

There is a counter insurgency war on, in case you didn't know. The issue of the extrujudicial killings is part of the agit propaganda of one side.

I do not condone extrajudicial killings of any kind by any side, but I also do not automatically accuse the duly constituted authorities of murders and mass murders that the left has amply demonstrated its own ability and predilection to carry out.

Therefore, I do not yield any moral high ground to those who are part of such a propaganda effort. Not necessarily you of course, otherwise you would not indulge me in this discussion at all.

But don't you see, there is a fallacy been foisted on the public by the most sophisticated propaganda machine in the archipelago. The fallacy of selective attention.

DJB Rizalist said...

The solution I am proposing is very direct and simple: for the CPP NPA to stop their insane violence and criminal activities, their extortions and cell site bombings, their assassinations and depredations on the people. Failing that, any mass organization that has members or leaders wishing to make sure they are not suspected or attacked by the military, ought to plainly and clearly denounce violence as a means of advancing their objectives and I am fairly certain they would have no trouble. I think it is those who play cat and mouse with the authorities and play both Dr. Jekyll and Mr. Hyde that get themselves and sometimes their innocent loved ones in harm's way.

Yak said...

I still maintain my stand that both private and government media entities alike should be policed by competent agencies (not necessarily government-appointed bodies). Having said this, the right to know has its limitations and boundaries after all. If some people want it to be free for all then we might as well abolish the state and proclaim a country of anarchy.

With regards to the "writ of amparo" and the writ of habeas data, I was able to read that these prerogative writs were patterned after the latin america experience. I am not so sure if this has been effective in the other side of the world but it has been very common knowledge that in some countries in "latin america", the human rights abuses are much much worse than what we have in the philippines.

Per se, I think that these two writs might just be encroaching on some jurisdictions that might involve purely security and peace and order matters. The mere fact that these so-called progressive and militant groups identify themselves with what djb dub as the "nice people's army", I think they are all fair game for all philippine security forces. How do you fight those people who hide behind the very laws that they want to abolish (since they want to overtake the democratic state and put up their own communist state). It's really an irony that communists seek protection from the very laws they swore to topple down.

Now I wanna ask djb and most especially bystander, have you been a victim of the npa? Some of my relatives were - some of them even visited by these pathetic kangaroo courts - threatened and terrorized. Needless to say, i abhor, i hate, i despise any trace of communism that's in the line of ideology of the npa. I even think that these people should be annihilated by the afp and pnp. I see them as termites and virus of the society.

manuelbuencamino said...


You buy into that national security doctrine too easily.

viking said...


If anything useful is to come out of the debate you've started, I suggest we all help out to refine a "Freedom of Information' bill being prepared by Nepo Malaluan of Action for Economic Reforms.

As I understand the US version, the public ultimately will have access to all info on government activity. Confidentiality has a shelf life and this is a deterrent to illegal activity if the official cares about her or his role on history.

viking said...

in history, I mean.

DJB Rizalist said...

mb, viking, yak,

I would offer the idea that national security is really the full implementation of the letter and spirit of the Constitution.

The Constitution is the answer to the problem that exists between the more or less permanent and ideal institutions of the state that we the people have created and seek to maintain, and the mortality and moral frailty of the individual human beings that we place in charge of these institutions by election and appointment.

While I subscribe to MB's idea that the public have a largely unlimited right to find out things about how those representatives are performing their duties and responsibilities, I don't believe we may do so to the detriment of the system itself. The rule of Law regulates this interplay between individuals and institutions inside and outside of the government, by perpetually balancing the rights, interests and privileges of each as against the other.

But that is also why the conceptual problem that I want to pose is still the problem of PRIORITY among these rights, interests and privileges.

By making national security the highest national interest I am not siding with government against the people, nor is vice versa a correct position in my opinion.

What we must discern is the long run interest of the whole enterprise. The presence of an evil tenant in one institution cannot and should not be resolved by a destruction of that institution.

To the extent that certain sworn enemies of the state are already committed to a complete overthrow and replacement of that system, I believe it is principled to oppose them even when it seems they are only after some proximate good.

Take the extrajudicial killings. Suppose there is at least one case in which someone has been wrongfully killed because the authorities make a mistake in the heat of the battle against the largely anonymous insurgency. That is one case too many, but I would be very leery of any radical re-ordering of things just for the sake of solving and bringing justice to that one case, since we may never even be sure that this hypothical applies.

The writs of amparo and habeas data are such novel and disruptive ideas that I have automatically taken the conservative stance to oppose their introduction and application until we are more certain that their use will not give those enemies an upper hand.

What I can see (and hear from looking at cpp websites and manifestos) is their increasing glee at having coopted, at least intellectually, the Supreme Court itself, whose thinkers are obviously (to me) so riven with guilt and self-loathing over the prospect that these killings are indeed going on that they are now willing to throw the baby out with the bath water.

Too often in the past, we have all seen the power of the Court to create historic situations that have ultimately wreaked havoc on people'ls lives in complete repudiation of their supposed good intentions.

Take the case of the impeachment rules or that stupid act of Davide in swearing in GMA "to avoid violence!"

The Supreme Court is not at all the weakest branch of the State, but the most harmful when they are wrong, because they are ones with the "tools" that can turn nuts into bolts, make North into South, and damage the very engines of the Ship of State with their constructions and other barrio carpentry.

We must stop looking at them as bearers and interpreters of the Ark of the Covenant, and be responsible for our acts and thoughts directly.

God Save the constitution!

Tiki Music said...

The writer's solution is questionable because it concludes that the CPP-NPA is responsible for these crimes. I'm not sure which part of the Constitution allows one to make such conclusions without the benefit of a trial or an investigation.

DJB Rizalist said...

Is it not reasonable to assume that if a country has had a violent communist insurgency for the last forty years, that there would be casualties--many casualties on both sides? Anyone who maintains lists of those who are alleged victims of extrajudicial killings, should not be choosey about who gets on the lists without inviting this writer's observation that they are being one sided, not him.