Category: supreme court

surveys and the filipino elite

after reading randy david’s  Surveys and public opinion, i googled for more and found that, while it is conceded that election polls can influence voters in different ways:

The bandwagon effect, when voters rally to the leading candidate;
The underdog effect, when voters rally to the trailing candidate;
The demotivating effect, when voters decide not to vote because their candidate is already sure to win;
The motivating effect, when voters go to the precincts because the polls alerted them to the election; or
The free-will effect when voters cast their votes to prove the polls wrong.

and that, while even congress passed the Fair Election Act in february 2001, providing that

5.4. Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

surprise, surprise, the davide supreme court ruled in may 2001 that

§5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression.

googled some more and stumbled on this find: The Politics of “Public Opinion” in the Philippines (2010) by Eva Lotte E. Hedman, research fellow, London School of Economics.  excerpts [bolds mine]:

Since the restoration of formal democratic institutions and practices in 1986 … the Philippines has seen a more gradual and limited transformation in the mobilisation of voters. This change is inextricably linked with the increasing circulation in Philippine politics and society of what is commonly referred to as “public opinion.” As argued in this paper, the sheer accumulation and anticipation of surveys, reflecting back to the (disaggregated) public their (aggregated) opinion, have become inextricably linked to dynamics of bandwagoning, as well as to efforts at what scholars have described as “political branding” (Pasotti 2009). [Journal Of Current Southeast Asian Affairs, 29(4), 97-118. 101. Retrieved April 8, 2013.

… “public opinion” has gained greater circulation as political discourse and social fact in Philippine politics and society, with the popularity and poll ratings of candidates – rather than the construction and maintenance of machines – viewed as an increasingly effective and decisive mode of voter mobilisation. This trend is perhaps most evident in the close correspondence between pre-election surveys and the performance of presidential contenders at the polls in the 2010 elections. However, the rise of public opinion has also come to influence the process of election campaigning itself, as seen in the floating and junking of candidates, the party-switching of politicians, and the unravelling of coalitions, all developments noted by informed observers of the presidential elections of May 2010.[103-104]

Indeed, in the wider context of multiple parties and candidates for office without political platforms or programmes of any real distinction, the apparition of an opinionated public in survey after survey is worthy of note as a phenomenon in its own right. That is, aside from the specific content of any one survey, public opinion polling has emerged as an institutionalised practice in the Philippines, an established social fact. As already noted, the sheer increase in surveys is ample testimony to this reality (Chua 2004). Beyond the increasing number and frequency of surveys, moreover, there is mounting evidence of considerable media interest in and political controversy over the “reported findings” of surveys, focused on the facts and figures of specific polls, but also, importantly, on the very claims to professional objectivity and scientific method that lie at the heart of the production of public opinion for public consumption. As the accumulation and anticipation of surveys have achieved both momentum and continuous reproduction and circulation, the significance of public opinion as such thus extends well beyond the (instrumental) uses and abuses of surveys to encompass (structural) effects of a different order in Philippine politics and society. [105-106]

Beyond the focus on technical problems and solutions associated with polling, or the attempts at restricting the practice itself, the rise of “public opinion,” as a phenomenon in its own right, appears in a very different light, as do its purported effects, when viewed through the critical lens of the French sociologist Pierre Bourdieu, and others writing in a similar vein. As argued by Bourdieu more than thirty years ago, “public opinion” is “a pure and simple artefact whose function is to dissimulate the fact that the state of the opinion at a given moment is a system of forces, of tensions” (Bourdieu 1979). Polls and surveys, it has been argued, are thus instruments “not of political knowledge but of political action,” whose deployment inherently devalues other forms of collective action – strikes, protests, social movements – and rests on a “formally equalitarian aggregative logic” that ignores and obscures the profound realities of deprivation, poverty, and social inequality in countries such as the Philippines (Wacquant 2004; Champagne 1990). [110-111]

Viewed from this perspective, the rise of public opinion can be more readily seen to have coincided, at the outset, with the emergence of a new form of political action in the Philippines. This new political activism was directed, not merely at Marcos’ ailing dictatorship, but also, importantly, against the labour strikes, student protests and peasant movements that surfaced in the factories, the campuses, and the haciendas of the country, precisely at a time when the Communist Party of the Philippines, and its armed wing, the New People’s Army, emerged the single largest such organisation (in opposition, not in control, of state power) anywhere in the world. Long before the institutionalisation of “public opinion” through polls and surveys after the resurrection of democracy, it was this struggle for “hearts and minds” that unleashed the “will of the people” into Philippine political discourse, as seen in the high-profile campaigns to collect one million signatures on a petition for Cory Aquino to run for president in 1985, to organise as many volunteers for Namfrel (National Movement for Free Elections) in 1985-86, and, finally, to oust an authoritarian regime by means of People Power in February 1986.[110-111]

At first glance, it may appear that the funeral corteges and petition drives which helped to jump-start the presidential campaigns of two generations of Aquinos, a full quarter-century apart, remain a thing apart from the rise of public opinion as political discourse. Indeed, in the case of “Cory”, the public spectacle that propelled her into popular consciousness coincided with the first appearance of the Philippines’ foremost polling institution, the Social Weather Station (SWS) in 1985 and thus pre-dated the wider circulation of public opinion as political discourse under post-Marcos conditions of democratic elections. By contrast, public opinion surveys had already become firmly established aspects of Philippine election campaigns by 2010, when Noynoy’s successful presidential candidacy was acclaimed as something of a foundational moment and unique repertoire in the rise of public opinion in the Philippines [112]

While typically associated with progress and change, and, indeed, with “new citizens-cum-voters”, “People Power,” as an – perhaps all too – familiar repertoire of protest, may also have emerged as part of the obstacles to further democratization in the Philippines.

As for the new forms of voter mobilisation themselves, the May 2010 presidential victory of Benigno “Noynoy” Aquino III also signals the limited transformative potential associated with the politics of “public opinion”.

Unsurprisingly, the nature of such change reflects, in key respects, broader patterns in Philippine politics, as shown above. However, the limits to the transformative potential of “public opinion” also stem from the very deployment of polls and surveys, with their formally equalitarian aggregative logic, and concomitant devaluation of other forms of collective action and solidarities. “When used as a gauge of ‘public opinion’ […] polls not only miss the mark but shift the target,” and, thus, it has been argued, “offer at best a naïve and narrow view of democracy” (Salmon and Glasser 1995: 449). In the context of the Philippines, this shifting of the target and narrowing of the view of democracy first came into its own during the widespread popular mobilisation surrounding the rise of the first Aquino presidency. With a second Aquino elected president of the country, “public opinion” may have emerged as social fact in Philippine politics and society, but for all the countless quality of life surveys and political polls conducted in the past quarter-century on a pluralistic one-person, one-vote basis, it is difficult to dismiss the charge levelled by critics that the practice of polling serves to obscure profound realities of deprivation, poverty, and social inequality in the country today. [115]

so there.  in effect the fiipino elite has managed to appropriate, co-opt, and spin “public opinion” and “people power” to serve only its interests.  political dynasties forever.   ironic, no, wicked, that it’s under cover of “freedom of expression.”

maybe we should just boycott elections, as in jose saramago’s Seeing (2007), where government held elections and nobody came.  maybe then the ruling elite will finally get the message: tama na, sobra na, palitan na ang bulok na sistema!

televise the trial 2

the supreme court giveth, the supreme court taketh away.

june 14, 2011 the corona supreme court allowed live televised coverage of the Ampatuan multiple murder trial, bowing to the clamor for transparency and the public’s right to know.

october 23, 2012.  the sereno supreme court prohibits the live media broadcast of the Maguindanao massacre trial, bowing to the ampatuans’ rights to due process, equal protection, presumption of innocence, and to be shielded from degrading psychological punishment.

i blogged about this in nov 2010, a whole year after the maguindanao massacre.   my beef then, as now, was, is, why the rights of the accused — in an open-and-shut case like this one — should be paramount to the rights of the victims and the public’s right to know.

the law is biased enough in favor of the accused.  back in the ’90s i remember hearing the late quezon city regional trial court judge maximiano asuncion (branch 104) on tv saying that under our laws napakaraming karapatan ng akusado at iilan ang karapatan ng biktima o ng pamilyang naiwan ng biktima.  to be sure, i googled it, and the issue turns out to be a very current one in the international arena, and there are continuing attempts to balance the rights of victims with the rights of the accused.  check this out, and this.

of course the flip-flop only means another chain of motions for reconsideration atbp. which means a new round of delays, all in favor of the accused.  and of course one wonders about the sereno supreme court.  is this a show of judicial independence — that the president favors a televised trial does not count — or is this the beginning of a series of reversals, an augury of things to come?

cj sereno

first, we lost robredo.
now, we get sereno.
parang sad pareho.

i hope sereno surprises us.  otherwise the coincidence does not augur well for robredo’s legacy.

Unsettled questions #cj trial

By Ismael G. Khan Jr.

In his keynote speech at the launch of the book “History of the Supreme Court” to mark the Court’s 111th anniversary on June 11, former Chief Justice Reynato Puno decried the “spiritual slump” and apparent disarray in the judiciary in the aftermath of its “collision with the political branches of government,” as well as the widespread confusion following the conviction of now ex-Chief Justice Renato Corona by the Senate impeachment tribunal. But because of Corona’s decision not to appeal his removal, we will never know for sure how a “severely wounded” Court would have dealt with certain questions the answers to which were left hanging in the course of his impeachment trial.

If these issues remain unresolved until the next impeachment case, they would be equally unsettling, especially to the 31 constitutional officials whose fame, fate and fortune could be held hostage to an uncertain and, worse, partisan political environment. Let’s go over the more important unsettled—and unsettling—issues.

1. The most crucial is the Supreme Court’s power of judicial review. Article VIII, Section 1 of the 1987 Constitution states clearly that it is the Court’s duty “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” Note that the Constitution makes this a “duty” of the Court. Precisely, this is what it did in dismissing the impeachment case filed against then Chief Justice Hilario Davide in 2003. But Senate President Juan Ponce Enrile, as presiding officer of Corona’s impeachment trial, sternly warned the Court not to entertain that notion on the premise that it is only the Senate that has “the sole power and authority to try and decide all cases of impeachment.” Recall that neither the 1935 nor 1973 Constitution mandated that “duty,” which would have made it both easy and expedient for the Court to dismiss any such appeal as a “political question” that fell outside its jurisdiction.

2. What offense, criminal or otherwise, has Corona been convicted of? Note that even as he voted to convict Corona, Enrile strongly insisted that “the Chief Justice does not stand accused of having amassed any ill-gotten wealth before this impeachment court.” He went so far as to state that “the Chief Justice had justifiable and legal grounds to rely on the Supreme Court’s procedural and policy guidelines governing such disclosures as embodied in a resolution promulgated way back in 1989 when the respondent was not yet a member of the Court.” Enrile even conceded that Corona believed in good faith that the timely and periodic filing of his sworn statements of assets, liabilities and net worth complied with the guidelines of the Court, the law, and the Constitution.

However, the fine distinction between Paragraphs 2.2 and 2.4 in the Articles of Impeachment obviously got “lost in translation.” It was not at all appreciated by a majority of the senator-judges—and certainly not by an already cynical and disbelieving nation that was bombarded for five months by a media blitz about Corona’s lack of character and probable culpability. It is important to emphasize that the impeachment court had earlier disallowed the introduction of evidence in support of Par. 2.4 which pertained to ill-gotten wealth. Par. 2.2, on the other hand, accused Corona of failing to file accurate and complete SALNs. And his belated revelations and admissions concerning his substantial dollar and peso bank deposits, as well as his self-serving interpretation of confidentiality laws, were what finally proved fatal to his defense.

3. Corona was convicted on the basis of the second Article of Impeachment for culpable violation of the Constitution and betrayal of the public trust for his failure to file accurate and complete SALNs. Most of the senator-judges considered the enormity of the amounts in pesos and dollars that Corona neglected to disclose as having established a prima facie case of ill-gotten wealth under the Anti-Graft and Corrupt Practices Act (RA 3019) and the Code of Conduct for Government Officials and Employees (RA 6713). Actually, the term used in RA 3019 is “unexplained wealth,” which “refers to assets which a public official has acquired during incumbency, whether in his name or in the name of other persons, consisting of property or money, which are manifestly out of proportion to his salary and to his other lawful income.” On the other hand, the term “ill-gotten wealth” is specifically related to the crime of plunder, a nonbailable offense, under RA 7080. It is important to bear this in mind in the event that criminal charges are filed against Corona, a definite possibility intimated by no less than President Aquino.

4. If “unexplained wealth” can be explained away, as the term suggests, the failure to file a complete and accurate SALN may justify nonprosecution for the offense. This appears to be the reasoning behind the votes to acquit by Senators Joker Arroyo, Miriam Defensor-Santiago and Ferdinand Marcos Jr. In simple terms, Arroyo’s argument was that there was no such crime as failure to file an accurate or complete SALN until the impeachment court made it so for the first time. Santiago, on the other hand, contended that such a crime, even if it did exist previously, was not an impeachable offense since it could not be equated in terms of scope, nature and gravity to “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of the public trust.” Marcos was of the same mind, and argued that Corona “must be presumed to have acted in good faith … and that not all omissions and misdeclarations in the SALN amount to dishonesty.” Arroyo and Santiago are held in high respect for their expertise in the law, and Marcos must have consulted his wife, no mean legal scholar herself. Their reasoning surely deserves a more in-depth examination before the next impeachment case comes along.

In the impeachment trial, legitimate questions were raised in relation to substantive and procedural due process, the quantum of proof required to establish or verify a fact and its admissibility in evidence, the degree of respect due impeachable officials and their right against self-incrimination, the scope and extent of the rules on sub judice and trial by publicity, principles of statutory construction, and reconciliation of seemingly inconsistent laws. These remain unsettled even as they are bunched in the layman’s eyes under the rubric of legalese and technicalities. To ensure that the rule of law and impartial administration of justice are not sacrificed in the future, a focused and sustained effort must be made to resolve these quandaries, particularly where they involve amendatory legislation or policy reformulation.

Ismael G. Khan Jr. was the Supreme Court’s first spokesperson, assistant administrator and chief of its Public Information Office from 1999 to 2007.