Careless Whispers (Secrets, Intrigues and Confidentiality)

By Obiter07

They say gossip travels fast but it may just bring you to jail. You may not know it but sharing secrets is a crime punishable under the Revised Penal Code if you are a manager, employee or servant.

“ARTICLE 291. Revealing secrets with abuse of office. — The penalty of arresto mayor[1] and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets.”

One wonders why only managers and employees are covered. Does that mean higher ranking officers are exempt from penalty when they should be the ones in a position to know and reveal more? Household help should also be forewarned that their employer’s private lives have to remain private, details of which may not travel beyond the clotheslines and walls of the house.

Naturally, revealing industrial secrets carries a higher penalty. Though the fine is not at all high.

“ARTICLE 292. Revelation of industrial secrets. — The penalty of prision correccional[2] in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter.”

However, the violation of intellectual property rights is a totally different matter and obviously subject to severe punishment.

For the benefit of Piolo and Sam, “intriga” is actually a crime too. Unfortunately, though, Lolit can just forego a short cab ride to cough up the fine -

“ARTICLE 364. Intriguing against honor. — The penalty of arresto menor[3] or fine not exceeding 200 pesos shall be imposed for any intrigue which has for its principal purpose to blemish the honor or reputation of a person.”

To add some bite and attempt to make up for the measly penal punishment, damages may be claimed for violations of privacy, and intriguing as well, under the New Civil Code:

“ARTICLE 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”

The following general principles under the Civil Code may also be used:

“Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

Of course, when you spread something that tends to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, then the provisions on libel apply[4] And we need a whole new post to tackle that topic.

With the wider and faster variety of present-day communication tools, the penalties prescribed barely offset the damages done to the victims who may find themselves ready subjects of careless and harmful text messages, Photoshop-ed pictures or videos over the internet, or easy tabloid fodder. We hope the laws can be amended as soon as possible to reflect modern times.

[1] The duration of arresto mayor shall be from 1 month and 1 day to 6 months.(Art. 27, Revised Penal Code).

[2] The duration of prision correccional shall be from 6 months and 1 day to 6 years. (ibid)

[3] The duration of arresto menor shall be from 1 day 30 days. (ibid)

[4] Art. 353, ibid.

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Debtbed

By Siesta-friendly

With the economy driving more of our people especially much-needed professionals like engineers, scientists, nurses and doctors to work abroad, with our new “mini-size me” culture[1] caused by our much decreased (and still decreasing) disposable income, with our government practicing its own brand of Ponzi scheme of borrowing from one creditor to pay off another, with negligible budget allocations for social programs (like healthcare and education), it is disturbing and very frustrating that campaigns for renegotiating, suspending or even repudiating some of our debts have not galvanized the masses to demand the immediate reversal of fiscal policies.

It’s not hard to understand – if you are poor why spend most of your income to pay off your debt and leave very little for your family’s food, medicine, education and other daily needs? That is slow suicide. Yet, that is exactly what our government has been doing for years.

What can we do? 1^st, we’d do well to recognize the legal concept called “Odious Debt”. It’s a legal basis other countries including even the US and Great Britain have used to repudiate their own foreign debt.[2]

Repudiate Odious Debt

Legally, debt is to be considered odious if the government used the money for personal purposes or to oppress the people. Moreover, in cases where borrowed money was used in ways contrary to the people’s interest, with the knowledge of the creditors, the creditors may be said to have committed a hostile act against the people. Creditors cannot legitimately expect repayment of such debts.”[3]

The common argument against repudiating debt on the basis of it being odious is that such act would make the debtor-country an international outcast and will be avoided by future creditors. Since other countries have in fact repudiated their debt and have been able to avail of more loans, it is obvious that this is an argument concocted by creditors to scare poor debtor-countries from repudiating their debt so they can continue collecting.

The stand-out in the Odious Debt category, even in the international context, is the loan granted to the Marcos government for the creation of the Bataan Nuclear Power Plant which cost us USD155,000 a day (about USD2.3B in total) without a single watt of energy produced - on top of being set near 2 fault lines and a volcano, they were numerous safety risks found - and for a cost that would have purchased at least 3 plants instead of only 1.[4] And that’s just the tip of the iceberg for the Marcos regime and certainly together with the succeeding regimes.

A list of behest loans (i.e., government-guaranteed loans at the behest of cronies or public assumption of private debts) alone (for Ferdie’s friends to Glo’s) will probably take up dozens of pages. IPP contracts and NPC-guaranteed loans will add a few more. White elephants surfacing every few months would make it a perfect catalogue of how to bleed a country dry. And the list naturally goes on with the latest addition being the NBN (nationwide broadband network) deal, whether or not they find the missing contract.

But not only does our government favor the creditors’ stand (over providing for the people’s needs) but the government has, from the time of Marcos, bent over backwards to please our creditors by regularly automatically appropriating funds for debt repayment even before funds have been allocated for government programs.

Repeal the Automatic Appropriations law

Despite widespread poverty, rising unemployment and lack of adequate social programs, during each budget appropriation the government implements Section 31 of P.D. 1177 which states that:

“expenditures for … (b) principal and interest on public debt, (c) national government guarantees of obligations which are drawn upon, are automatically appropriated.”[5]

This means that the poor chooses to set aside funds to pay its debt before providing funds for anything else even if it results in hardly any funds allocated for its daily needs (even food or medicine).

Thus, in the 2007 national budget, the government allotted P7,133 per capita for debt repayment while allotting only P165 per capita for health and P1,827 per capita for education, culture and manpower.[6] With a government that has a propensity to borrow (its borrowings total more than the last 3 regimes combined) than to find ways to stem graft and corruption, scrap its pork barrel and streamline the bureaucracy, the Ponzi scheme continues (inducing Juan de la Cruz to either slowly starve or suffer from lack of healthcare or promptly escape if he can).

The dictator called for automatic appropriations to please his (possibly complicit) creditors. The dictatorship is gone, the housewife, the general and the actor who have succeeded have left office. The economist sitting at the top should know better but remains as insensitive as the rest who preceded her. We should discontinue the dictator’s practice and reverse the policy of pleasing creditors first before caring for the people’s welfare.

Uphold the Constitution

The Constitution lists and limits the authority of government and sets forth the following distinct mandates:

“The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.[7]

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.[8]

The State shall develop a self-reliant and independent national economy …”[9]

Promoting the people’s welfare, providing an environment that protects local industries, stimulates production and creates jobs, and creating policies free from the influence of foreign self-interest are basic strategies for real national development.

There are clear ways to rise from our debtbed, we really can’t afford to ignore them.

[1] Olarte, Avigail and Chua, Yvonne T. “Mini-size Me”. PCIJ I-Report, Issue No. 1 Jan-March 2005. http://pcij.org/i-report/1/mini-size.html, accessed September 11, 2007.

[2] Taken from http://www.jubileeiraq.org/odiousdebt.htm, accessed September 11, 2007.

[3] Taken from http://www.jubileeusa.org/truth-about-debt/dont-owe-wont-pay/the-concept-of-odious-debt.html, accessed September 10, 2007.

[4] Cabacungan, Gil C. Jr. “Saga Of Bataan Nuclear Plant Debt Ends Next Year”. Inquirer, November 24, 2006. http://newsinfo.inquirer.net/inquirerheadlines/nation/view_article.php?article_id=34487, accessed September 12, 2007.

[5] July 30, 1977.

[6] IBON Media. “Debt Payments At All-Time High: Social Services Spending Still A Casualty Of Govt’s Debt Service”. IBON Media Releases, July 18, 2007. http://info.ibon.org/index.php?option=com_content&task=view&id=161&Itemid=51, accessed September 11, 2007.

[7] Section 7, ARTICLE II, supra.

[8] Section 9, ibid.

[9] Section 9, ibid.

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The Writ Stuff (Habeas Corpus, Amparo, and Habeas Data)

By Siesta-friendly

Habeas Corpus

Habeas corpus, Latin for “you have the body”, is the name given to a variety of writs for the purpose of bringing a party before a court or judge. It’s purpose is not to determine the prisoner’s guilt or innocence but whether he is restrained of his liberty by due process[1]

Our present rules of court procedure only provides for the writ of habeas corpus ad subjiciendum (we all know it simply as the writ of habeas corpus) which is the common remedy against an alleged illegal detention. Thus, the writ ordinarily extends only to cases of “illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto”.[2] It is more commonly associated with activists being allegedly picked up by military agents but it can have equal application to, say, a child taken by one spouse without the consent of the other or a spouse being placed in a drug rehab center without the consent of the other (the Mark Jimenez case should come to mind).

Amparo

At present, there is a proposed amendment to the rules to allow the use of the writ of amparo. It is unclear if the proposed amendments would cover all aspects of the amparo doctrine. It may be better eventually if our laws do so. The doctrine has a broad scope encompassing not just illegal detention nor actual violations, but also the prevention of possible violations, of human rights and other constitutional guarantees. “The “amparo” suit is an original Mexican institution with no exact equivalent in the common law tradition.

The word “amparo” literally means favor, aid, protection, or shelter. Legally the word encompasses elements of several legal actions of the common law tradition: writ of habeas corpus, injunction, error, mandamus, and certiorari.

There are five types of “amparo” suits: 1) “amparo” as a defense of individual rights such as life, liberty, and personal dignity; 2) “amparo” against laws (defending the individual against un-constitutional laws); 3) “amparo” in judicial matters (examine the legality of judicial decisions); 4) administrative “amparo” (providing jurisdiction against administrative enactments affecting the individual); 5) “amparo” in agrarian matters (protecting the communal [property] rights of peasants).”[3]

The amparo procedure for the protection of human rights has 2 parts: The 1st part aims to prevent the consummation of the alleged violation/s of human rights; and so, without yet deciding on the merits of the case, the court suspends the alleged illegal act/s. The 2nd part of the procedure involves proving the facts alleged and determining whether or not they do violate human rights. The acts subject of the amparo suit include all kinds of actions by any authority, even laws or judicial decisions.[4]

Applying the foregoing to the present reality of our country’s record-breaking killings and abductions of activists, labor leaders, journalists, and even priests, the alleged violators will then be promptly investigated and will not be left to merely deny they have custody of the prisoner (and render useless any procedure to produce the prisoner and make them accountable). The court can order an investigation to determine the truth of the facts alleged. This radically changes the present habeas corpus procedure where the alleged violators can simply deny they have custody and that is that, and everybody should look elsewhere.

As it is more likely that the victims of human rights violations are those who cannot afford costly, complex, inaccessible, burdensome and prolonged procedures, the proposed amendments to our rules must avoid the same. To defend against possible dictatorial leanings of leaders, the right to amparo must not be allowed to be suspended under any circumstance. And owing to the repeated allegations against military personnel, civilian courts must be given jurisdiction over them to avoid further loopholes.

Habeas Data

A companion to the habeas corpus and amparo remedies is the writ of “habeas data’ based on a person’s right to information about himself/herself, whether the information is in the possession of the government or a private entity.[5] The right includes the right to modify (even correct) or remove such information due to its sensitive, erroneous, biased, or discriminatory nature.

In recent years, recourse to the action of habeas data has become a fundamental instrument for investigation into human rights violations committed during past military dictatorships in some South American countries. Families of disappeared persons have used habeas data actions to obtain information concerning government conduct, to learn the fate of disappeared persons, and to exact accountability.[6]

In the end, of course, a writ by any other name is only as strong as the powers of enforcement. It is significant to note that the 2 farmers who last month escaped an alleged 18-month illegal and brutal detention by military soldiers went straight to the Supreme Court to seek protection and not to the lower courts, the police, their local government nor even Malacañang, and at the same time, refused protection under the Witness Protection Program of the DOJ. This act speaks volumes on their faith in the institutions which, by theory and by law, are supposed to protect them.


[1]“Habeas Corpus”. Black’s Law Dictionary. 5th ed. 1979.
[2] Rule 102, Revised Rules of Court. (July 1, 1997).
[3] Avalos, Francisco A. The Mexican Legal System. 2nd ed. Fred B Rothman & Co., 2000.
[4] Mejorada, Carlos Sanchez. The Writ of Amparo. Mexican Procedure to Protect Human Rights. Annals of the American Academy of Political and Social Science, Vol. 243, Essential Human Rights. Sage Publications, Inc. January, 1946. Pp. 107-111
[5] Declaration of Principles on Freedom of Expression, Basic Documents Pertaining To Human Rights The Inter-American System, OEA/Ser.L/V/I.4 rev. 8 (May 22, 2001)
[6] Report On Terrorism And Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (October 22, 2002). http://www.cidh.org/Terrorism/Eng/part.k.htm#_ftnref641

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