Integration of Church and State

By Siesta-friendly

Why this has not received front page news is surprising, to say the least. But beginning SY 2005-2006, the Government has implemented a Standard Curriculum for Madrasah (or Islamic) Education in public schools and private madaris (plural of madrasah) within Muslim communities. To date, there are already 35 public schools in the National Capital Region that conduct madrasah classes. Meaning, classes in Arabic Language and Islamic Values are now being conducted by state-funded educators in state-funded schools. Taxpayers, regardless of their beliefs, are therefore funding one specific religious education to one specific religious group.

Against the clear declaration in Article II (Declaration Of Principles And State Policies) Section 6 of the 1987 Constitution that the “separation between Church and State shall be inviolable”, DepEd Order No.51, s2004 which not only declares “Madrasah Education … a vital component of the National Education System” but enjoins the implementation of said Standard Curriculum, is patently unconstitutional.

If the Government can somehow unbelievably win an argument that DepEd Order No.51, s2004 (dated August 28, 2004) is not contrary to Article II Section 6 of the Constitution, then Sections 1 and 5 of Article III (Bill of Rights) of the Constitution are available to other religious groups to assail its validity. Article III Section 1 provides that no person shall be denied “equal protection of the laws” while Section 5 declares that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.”

Catholics or Buddhists certainly have a right to question why there are no DepEd Orders enjoining Catholic or Buddhist education in public schools. In a predominantly Catholic nation, it is doubtful that Catholic taxpayers would agree to, not only fund Islamic Education for Muslims, but not even be allowed to insist on Catholic Education for Catholics in state schools.

Although DepEd Order No.51, s2004 predicates its purpose by citing “the global commitment on Education For All”, national unity and the 1996 Peace Agreement, these interests are not at all served by singling out Muslim and/or Muslim education as exclusive beneficiaries of state policy.

At a time where religious fervor regularly reveals its danger and terror around the world, the government’s focus on one specific religion and one specific religious group is ill-advised at the very least. There is no better time than now to be resolute on upholding the principles of Separation of Church and State, Equal Protection and the Non-Establishment clause.

A standard curriculum which teaches all the world’s religions to foster respect and understanding of each other’s beliefs would have been the wise move.

In the realm of the religious, there may be more than one God. But in the secular world, there is but one Constitution, and it applies to everyone. At least it should.

Sources: www.deped.gov.ph; 1987 Philippine Constitution

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Law Cost Indeed

By Siesta-friendly

Having been given a budget of P12.51Billion(!), the recently adjourned 13th Congress of the Philippines went to “work” and enacted 148 Republic Acts. No need for praises though. With a budget of P12.51Billion(!), that costs us (taxpayers) oh, only about P84M(!) per law. To compare, the 13th and the 12th Congress (which enacted 172 laws) have produced a combined total of only 320 laws far lower than the laws enacted in eachof the previous Congresses: the 11th enacted 415, the 10th 573, the 9th 536, the 8th (a whopping) 975.

With a total of about 750 working days (for all 3 Regular Sessions), that’s a production rate of about 1 law per week. Taking into account the subject matter of most of these laws, 1 hour or less per law should have been sufficient (at least for most of these laws). How can it take 5 days to rename “Pennsylvania Avenue In The City Of San Fernando, Province Of La Union As Governor Joaquin L. Ortega Avenue”?

108 (or 73%) of these laws were hopelessly local in nature and utterly trivial (to the rest of the country). A breakdown of their categories is listed below to act as stark reminders of where precious national funds and legislative time have been spent (from July 26, 2004 - July 22, 2007).

The 108 local laws involve the never-ending creation of barangays/districts/cities/provinces/tourist zones (29) and the still popular re-naming/converting roads (16) and creating/separating/re-naming schools/universities (16); catching up are laws declaring local holidays (13), adding trial court branches (10) and, granting/amending local franchises (9); and perhaps to show a little diversity are laws creating marine labs/farms/centers (5), granting citizenship (4), converting/upgrading hospitals (3), scheduling ARMM elections (1), amending Marikina’s charter (1), declaring the inclusion by accretion of certain lands in Negros Occidental (1), and confirming the validity of certain TCTs over friar lands in Cebu (1). Don’t forget, that’s P84M(!) per law.

Every now and then, our hardworking lawmakers remembered they constituted the Congress of the entire Philippines and produced 39 laws with national significance. The most number are of course tax fund-related (7) - how else to fund each P84M(!) law-making process. 4 laws grant broadcasting franchises. 4 laws concern labor and 2 laws govern corporate entities. 4 are judicial system-related: 2 laws ‘strengthening’(huh?) legal offices (PAO & OSG), 1 law finally creating ‘A Comprehensive Juvenile Justice And Welfare System’, and the 4th prohibiting the imposition of the death penalty (or should we attribute this particular hard work to the Catholic Church?).

On the peace and order front, there were 3 concerning the military - 1 created a new military rank (whoopee) and another redefined the term ‘veteran’ (hard work indeed) - and, of course, the popular Human Security Act was enacted which, by the way, also defined ‘terrorism’ (much more popular). There were 2 laws on the ‘home’ front - 1 on the Rent Control Act of 2005 and the other amending “The Urban Development And Housing Act”. 2 laws were election-related - 1 of which amends the law on the Automated Election System (a lot of good that’s done so far).

Other acts were of limited national consequence -

• “An Act Declaring As Unlawful Any Form Of Cheating In Civil Service Examinations … ” (apparently some forms of cheating were legal before)

• “The Volunteer Act of 2007″ (because, obviously, we can’t trust the gov’t to do its job so we must push for volunteers)

• “An Act Authorizing The President Of The Philippines To Sell A Certain Parcel Of Land Of The Private Domain Of The National Government To The Ramon Magsaysay Award Foundation” (whatever)

• “An Act … Establishing ..The National Archives Of The Philippines …” (better late than never)

• “An Act Defining Handline Fishing, Providing Effective Regulations Therefor …” (and why shouldn’t they make it more difficult for traditional fisherfolk to catch fish?)

• “An Act Providing For The Control And Elimination Of Human And Animal Rabies …” (before an epidemic breaks out I guess)

To be fair, the 13th Congress also came up with these:

• “An Act Establishing A Standby Fund In The Sum Of Eight Hundred Fifty Million Pesos (P850,000,000.00) For The Clean Up Of The Guimaras Oil Spill, For The Relief Operations For The Victims Of The Eruption Of Mayon Volcano, And For The Emergency Repatriation Fund To Be Used For The Repatriation, Evacuation And Relief Of Overseas Filipino Workers And Other Filipino Nationals …”

• ” The Biofuels Act of 2006″

• “An Act Prohibiting The Detention Of Patients In Hospitals And Medical Clinics On Grounds Of Nonpayment Of Hospital Bills Or Medical Expenses”

• “An Act Amending Republic Act No. 7277, Otherwise Known As The ‘Magna Carta For Disabled Persons, …” (which should also be under the better late than never category)

Still, that’s the lowest number of enactments since 1987 (the post-Marcos era) and P84M(!) per law. It seems that “Law Cost” is not “Low Cost”. Obviously, we get what we deserve since these lawmakers needed our votes to get in Congress in the first place. We are part of the problem. We can’t expect our leaders to change unless we change ourselves (including how we review their performance).

Source: www.congress.gov.ph

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BOOK ALERT: “WE DID NOTHING (Why the truth doesn’t always come out when the UN goes in)

By Siesta-friendly*

Title: “WE DID NOTHING (Why the truth doesn’t always come out when the UN goes in)” (Penguin Books Ltd., 3rd ed., 2003)
Author:, (a freelance Dutch journalist)

“[T]o save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,” … “to reaffirm faith … in the equal rights of … nations large and small”, and “to promote social progress and better standards of life in larger freedom”. Ahh, the lofty goals of a dreamy group which established the United Nations on June 26, 1945. Reading Polman’s book, let’s see if reality matches up.

Polman first tackles Sierra Leone, September 2000. UN Secretary-General Kofi Annan has failed to find 4,000 extra troops pursuant to the Security Council resolution ordering the expansion of the UN force from 13,000 to 17,000. The ‘Fabulous Fifteen’, more popularly known as the Security Council, comprises the 5 permanent members: China, France, Russia, UK and the USA and 10 non-permanent members with 2 year memberships). France, UK and the USA have naturally signed the resolution (if not actively pushed for it) yet not one Western country is involved in the UN military effort in Sierra Leone.

Polman notes that “[o]f the ten largest contributors to UN peacekeeping missions worldwide, nine are rated poor or below.” The eager 10 are: India, Bangladesh, Ghana, India, Kenya, Jordan Nigeria, Pakistan, the Philippines and Poland. Where are the Fabulous Fifteen who ordered the troop presence in the first place? After watching Kofi Annan on TV call on the UN to show in Sierra Leone “something like solidarity of peoples that transcends race and geographical distance’, an Indian blue helmet interprets and says ‘[B]ut of course there’s something like solidarity between peoples …Western states are quire prepared to fight the rebels here down to the last Third World soldier.’

In 2001, as Jordanian and Indian troops were being withdrawn by their governments frustrated with the non-participation of rich nations to join the UN force in Sierra Leone, Kofi Annan is left asking “Can the Council keep adopting resolutions that requires us to deploy troops, while its own members do nothing, particularly those major countries with large forces?”

And before you praise the eager poor nations for their selflessness, “[m]ost soldiers from rich countries receive the UN allowance directly, but the governments of poor countries generally put the proceeds in their own pockets.” Peacekeeping is just good business as far as these governments are concerned.

Somalia, December 1992. To prevent famine and protect humanitarian aid from being stolen by warring clans, US President George Bush Sr. orders Operation Restore Hope to enable the US military to protect the aid convoys. The US demands that the UN follow with a peacekeeping mission (which became known as Operation Continue Hope). However, the US thought it dangerous for their own soldiers to disarm the warring clans and, having suddenly decided to leave due to the deaths of 18 US soldiers brought about by an attack on 3 Black Hawk helicopters, with no US firepower and no mandate to shoot unless in self-defense, the incoming UN peacekeepers then became sitting ducks.

The mayhem that followed was immediate. US President Bill Clinton promptly tagged the Somalia mission as a UN failure, himself famously proclaiming that “[t]he UN should learn to say No”. As media reports largely ignored the fact that the UN only does what the Member States order it to do, the Clinton sound bite stuck.

Haiti, September 1994. To prevent thousands of more Haitian refugees fleeing by boat to Florida, US President Clinton orders Operation Restore Democracy to enable the US military to unseat military junta leader Raoul Cedras and re-install ousted President Jean-Bertrande Aristide. The US demands that the UN follow with a peacekeeping mission (which became known as Operation Uphold Democracy). However, … well … you get the picture just take out the downing of the black hawks and retain the sitting ducks part.

The usual restrictive UN mandate (of not firing unless in self-defense and not interfering unless mandated to do so) comes from Chapter I, Article 2, Paragraph 1 of the UN Charter which states: “[t]he Organization is based on the principle of sovereign equality of all nations” and Chapter I, Article 2, Paragraph 7: “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …”

The absurdity of fully implementing these provisions was best seen in Bosnia, 1992-1995 (where thousands died in places directly under the supervision of UN battalions), and, of course, Rwanda, March 1994-1995. “On 11 January 1994 [General Romeo Dallaire (the Canadian UN Force Commander in Rwanda)] sent a telegram to the Head of Peacekeeping Operations in New York [the future UN Secretary General and Nobel Peace Prize recipient, Kofi Annan], reporting that extremists in Rwanda were fomenting civil war. He also predicted the genocide … New York replied the same day. Dallaire should take no action … [s]uch ‘offensive operations’ … fell outside the mandate that the Security Council had issued …” Mr. Annan would continue his passiveness despite repeated faxes by Gen. Dallaire.

In April 1995, when the tables were turned (after nearly 1,000,000 Tutsis are murdered by Hutus) and Polman found herself staring at 150,000 Hutus standing on a mountain plateau squeezed together for 62 hours straight guarded by 1,000 Tutsi soldiers who automatically kill any Hutu who dares run away, she asks the UN Commander to do something and stop the murders. The UN Commander says “We have orders to co-operate with the Rwandan authorities, not to shoot at them.” Polman persists “[b]ut surely you can if those authorities are killing innocent civilians under your nose.” The reply – “Not even then. No.”

Polman’s book details the dreadful routine of – including the dangers, hopelessness and absurdities faced by - UN blue helmets during peacekeeping missions in all parts of the world she visited them (Somalia, Haiti, Rwanda). They are the UN much different from the UN embroiled in politics at the headquarters in New York and more likely a concept alien from the imaginings of the UN founders. Despite everything, they go on, both soldiers of peace and unwitting pawns.

_______________
*Self-explanatory.

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TO LEGALLY GO WHERE NO LAWYER HAS GONE BEFORE

By Obiter 07*

Cyberspace. The Final Frontier. With due apologies to Star Trek fans, a voyage to this new place of enterprise requires lawyers and laymen to have unique navigational skills that even Capt. Kirk would find challenging. The dips and turns of cyberspace law can prove to be quite tricky and treacherous.

It has been described as a “vast library” of “available and indexed publications” as well as a “sprawling mall offering goods and services.” It‘s also been called one big copying machine, for reasons we will find out later. But this library and this mall only exists online, with no concrete presence in the real world, and is in that sense intangible, although tangible goods and services may be sourced from it. The internet’s quality of being almost limitless defies any effort to keep it in check. Although its impact all-encompassing, we will try and look at certain points to pique the interest and to show how things are going.

Valid Document

Let us take up the bread and butter of legal relations - the contract - and see how it has morphed to have new characteristics as used in the internet. How do you say yes or as we say in legalese, express your consent to an agreement? In the real world, we simply sign an agreement and that is that.

On the internet, consent can deemed to have been given by merely clicking a button. Who really reads the lengthy terms and conditions of the license agreement before clicking yes? Assuming that you read that electronic contract, did you understand the ramifications? The agreement can provide that if you file suit, you can only do so in Timbuktu or some other inaccessible place. What law then will govern the agreement? How do you get someone to represent you in Timbuktu? And if you do win the case, how will the judgment be enforced?

If you receive an offer from someone via SMS and you answer with the typical “k”, did you know that this can already form a binding contract under the Philippine E-Commerce law as this can be considered to be an electronic document? Another country has even banned the use of SMS as a means for divorce declarations by Muslims.

It is interesting to note that at least three cases with cyber overtones have already reached our Supreme Court. One involved a labor case on the validity of notices sent by email which it found to be lacking in authenticity. Another was on the use of computer print-outs as basis for dismissal from employment which was invalidated again for lack of authentication. In another, the court allowed the use of print outs from computer diskettes in a criminal prosecution. We can expect more in the years to come.

Jurisdiction

Under Philippine law, the form of contracts is governed by the place where they are executed. But when you click on a contract here in the Philippines for a site that is located somewhere in Brazil, where did you actually execute it? Here or in Brazil? Or did you do so in every place along the path the electrical impulse traveled from your keyboard towards its destination?

In our jurisdiction, the place where a crime is committed dictates where the criminal case can be filed. But if the scam originates and is perpetrated offshore, how will the culprits be brought to justice? And would our courts even have jurisdiction? It has even been argued that the “borderless internet” is outside the criminal jurisdiction of one country. This very argument was raised before our Supreme Court involving an on-line gambling franchise granted by the PAGCOR yet claiming to be beyond Philippine jurisdiction since the gambling is done on-line. The case has since been decided on other grounds.

In a case involving cameras and naked women, the City of Tampa, Florida sought to enforce a zoning ordinance against adult entertainment providing webcam access to women who were at times naked. The court ruled that there was no such entertainment provided in the city as the offering occurs in “virtual space.” Is there new rule now - no site, no foul?

For a criminal case for libel, our rules provide that the place of first publication lays the venue. But in cases of cyber libel, where is the first publication for something posted on the internet to the world at large?

Consider this file swapping software which was targeted by a lawsuit from the entertainment industry filed in the U.S. The software was developed in Estonia, under commission from a company based in the Netherlands. This company sold the software rights to another company based in Vanuatu which has executives in Australia. The U.S. court ordered the developers to cooperate with the litigants but an Estonian court ruled otherwise. A Netherlands court held that local distributors of the software are not responsible for any piracy by its users. The current owner of the software argued that it is not subject to U.S. laws. Pretty complicated, right?

Law and technology

As an example of how complex the interplay of the law and technology can be in cyberspace, the right to free speech has been invoked by someone seeking to post the source code for a DVD decryption program that allows the copying of disks. Is this really free speech or an infringement of intellectual property? Everything is up for downloading and copying as the internet has likewise become notorious for allowing the wholesale infringement of intellectual property rights. Books, music and software seem there for the taking without the need to pay for it.

Even a domain name has been given constitutional protection. This has occurred in one instance where an individual used the name of a shopping mall which he was critical of and to which he appended the word “sucks.” Here in our country, a telecom company faced a similar situation where a critic was able to register its corporate acronym as a domain name for his website and used it as a pulpit for his views. A case was filed but this was apparently settled later on.

On the labor front, U.S. cases have recognized the right of the employer to monitor employee e-mail and use of the internet over any privacy expectations of the employee. It has sanctioned dismissals and disciplinary measures based on such monitoring. However, an employee has claimed that he should not have been dismissed from employment for visiting an adult chat room during working hours as this was only a result of trauma suffered during his service in Viet Nam. Hence, this was a form of discrimination against someone with a disability. Now that is one excuse not everyone can use. But he does argue that if those with drug or alcohol problems are placed in programs by the company, so should he.

It is now no longer “your money or your life” but “your money or your file”! Only recently, there was a report on a computer virus demanding that ransom be sent to a certain address otherwise it would start deleting your files. Once you did, you would get a number to deactivate the virus. And to give new meaning to the word “hijack”, one virus encrypts the data in a computer to deny you access and then demands payment before it can be opened.

In one case, law enforcers used a private individual as a “hacker vigilante.” They used information provided by an anonymous computer hacker as evidence against the accused for violating child pornography laws. The evidence was initially suppressed then allowed, since the government did not know of nor did it encourage the hacking. This seems to be a big loophole in the making for government abuse.

Private Information

The trickiest part for all of us - is our own identity and information on the internet. By simply buying something, you reveal so many details a lot of which can be used against you, not the least of which is your credit card number. Might be better to Mirandize ourselves each time we go on line: “You are now in the internet. You have the right to an attorney and should consult one before transacting, preferably one who knows the law in multiple jurisdictions. You have the right to remain anonymous. Anything you input can and will be used against you by hackers and other evildoers.”

And so the new saying might go: Cyberspace: The final frontier. This is the new age of new enterprises. Its never-ending missions: To explore new ways, to seek new targets and new markets; to legally go where no lawyer has gone before. For this, we can only have one admonition and it is not the Vulcan “Live long and prosper” but rather “Caveat Emptor.” Buyer Beware.

__________
Sometime litigator now corporate lawyer who has been in law practice for almost 15 years.. Some of his other writings have also appeared in more reputable publications.

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