As of this writing, Smartmatic (the company awarded with automating the May 10 polls) is rushing the reconfiguration of the 76,340 defective compact flash (CF) cards – which contain the program for the voting machines to work – in time for the final testing on May 7.  There is, however, a well-founded fear that this might not be done, or even if done, the result might still be suspect, considering that it took Smartmatic more or less two months to initially reconfigure these CF cards for the May 10 polls compared to the two or three days Smartmatic will do the second reconfiguring to correct the errors.

No less than the president’s top election lawyer, Romulo Macalintal, has called for postponing the elections and even went as far as withdrawing as the president’s counsel if only to stress his seriousness.  He argues that the Omnibus Election Code (OEC) empowers the Comelec to postpone the election if for some reason it becomes impossible to hold, and proposes that a 15-day postponement would be reasonable to give Comelec more time to prepare.

Constitutional Commissioner Fr. Joaquin Bernas, however, doubts the legality of Comelec’s power to postpone under the OEC.  He believes the OEC merely empowers the Comelec to postpone in local, but not in national election.

Although the Constitution sets the national election on the second Monday of May, it allows its postponement when a law to this effect is passed by Congress.  Given, however, the lack of time to convene Congress, not to mention the preoccupation of many of its members on the campaign trail and the improbability of mustering enough favorable votes, it seems almost impossible now that such a law can still be passed.

On the other hand, the Concerned Citizens Movement, which sought to stop the automated election but failed to do so in Roque v. Comelec, has filed a petition anew with the Supreme Court to hold the election under the manual system for fear of a failed election under the automated system.  It is unlikely, however, that the Supreme Court will give the petition due course.  For one, the case or controversy requirement that will move the high court to entertain the petition is missing.  While the automated election system (AES) has experienced glitches during its testing, this alone does not meet the requirement of an actual case or controversy where conflicting legal rights susceptible of judicial resolution are present.  Besides, the question on the legality of the automation law has already been passed upon by the court in Roque v. Comelec.

Other sectors, uncluding some presidential candidates, remain firm in their position that the May 10 elections should push through as scheduled.  They voice fear that the postponement of the elections will only serve the president’s plan of overstaying in power.  Malacañang, of course, is wise to distance itself from postponing the elections and the president’s prompt acceptance of Macalintal’s withdrawal seems to reinforce the administration’s lack of interest in delaying the elections.  And the Comelec is certainly unwilling to receive the ire of those against a No-el scenario by steadfastly claiming that the elections will push through and can fix the AES hiccups before Monday.  After all, if the AES fails the fault cannot be solely attributed to it as it is merely implementing a law passed by Congress.

Postponement of not, the country may be getting itself into a catch-22 situation.  If the elections proceed as scheduled, the probability of failure is not at all unlikely since no one knows what other glitchy creatures will emerge from the murky waters of an untested AES come Monday.  To be sure, no one (whether Comelec, Smartmatic or even IT practitioners) has foreseen that the CF cards of the voting machines will fail to read and accurately count votes for other positions, despite Smartmatic’s experiences in implementing an AES in other countries, such as in Curacao and Venezuela.  And it is without a doubt that there will be areas where the voting machines will fail to transmit results electronically. In a country like ours where the IT infrastructure is not developed in several areas this is a given.  In other words manual voting in lieu of automated voting will certainly take place.  It’s just a question of how much will be the extent of it.

If it comes to the point that manual voting becomes widespread, it is highly probable that the results will not be known after the term of the president and her constitutional successors ends.  Consider this: the 80,000 clustered precincts around the whole country under the AES have resulted in about 600 to even 1,000 voters per precinct, compared to the about 200 voters per precinct in the past.  If manual voting is resorted to in the event of computer problems, one could only imagine how long will the voting take place.  Long after the legally mandated closing of voting has passed more voters would still be unable to vote, resulting in their disenfranchisement.  To avoid this, declaration of failure of elections is the only viable option and in the meantime the clock is ticking, and power vacuum beckons.

It is not yet late for our leaders – administration and opposition alike – to come together and sit down for a contingency measure in the event of failure of election.  They should as soon as possible provide for a transition government, a caretaker if you will, that will see the country through this first nationally-automated electoral exercise.  President Macapagal-Arroyo should initiate this move to cast any doubt on her motives.  Who knows, this might just be the legacy – a postitive one, that is – that she will leave when she steps down from office on June 30th. Until now, however, the president has yet to make any pronouncement on the eventuality of a failed election and the public is being

kept in the dark as to what contingency measures she has.

- end -

It is well known that many movie and television personalities have endorsed or campaigned for candidates, especially those vying for national elective positions, by appearing in political ads or campaign sorties.  The Comelec and proponents of the law argue that candidates who employ celebrities derive undue advantage over other candidates due to the influence these celebrities wield over their massive viewers and followers.

Celebrities, on the other hand, counter that the strict enforcement of the law violates their free speech rights and rights as citizens to support the candidates they like, not to mention their right to earn a living.  There is also argument that the law unduly singles them out.

Section 6, paragraph 6.6. of the Fair Elections Act provides that “[a]ny mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period . . .”

The above-quoted provision clearly requires the enumerated persons, which include movie and TV personalities, to either resign or take a leave of absence from work during the campaign period if they are (1) candidates (2) campaign volunteers (3) employed or retained in any capacity by any candidate or political parties, including coalitions and party-list groups.

The State’s interest in allowing equal opportunities for candidates in reaching out to voters by leveling the playing field – achieved through regulation of the time, place and manner of communicating political or campaign messages – has long been recognized since National Press Club v. Comelec. In fact, the Supreme Court has justified legislations of this nature under the Constitution’s social justice provisions guaranteeing equal access to opportunities for public service to everyone.

While there is no question on the rule prohibiting mass media personalities, such as actors and newscasters, who are candidates, from working as such during the campaign period, a similar restriction on others who are not candidates but merely supporters or workers of candidates is unreasonable.  A celebrity candidate who continues to do his or her high profile work clearly gives undue advantage over other candidates who are not similarly situated; the constant exposure allows him or her to become well acquainted with voters.  Not only that, it makes the regulatory limits on broadcast time and print space useless as against these candidates.  The same is true of non-candidate celebrities and other media personalities who actively campaign for or against a candidate during their shows.

Requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, invades the realm of constitutionally protected speech. The strictures of Section 6, par. 6.6. of the Fair Elections Act, as implemented by Sec. 36 of Comelec Resolution 8758, suffers from overbreath for stifling more speech than is necessary.  When a celebrity endorses a candidate in a legitimate political ad or performs any act to generate support for such candidate, he or she engages in political speech protected by the Constitution.  The law in question, however, in effect penalizes that speech by barring the celebrity from engaging in his or her means of livelihood, even though for a limited period only. Failure to resign or take a leave of absence from work would constitute an election offense punishable by fine and imprisonment of up to six years.

The law does not only regulate the time, place and manner of the speech involved, but targets the content itself.  It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood.  To pass constitutional muster, the law must be justified by a compelling or overriding government purpose and the means employed must be necessary to achieve that purpose.  As previously mentioned, it is now settled that the State has vital interest in having fair or level playing field among candidates in reaching out to voters, but the manner the questioned law seeks to achieve its objective does not appear to be necessary for it is not the least restrictive means of doing it.

The equalization of political speech and opportunities for reaching out to voters is no longer served here because the celebrity cannot be said to be still furthering a candidate’s campaign by simply engaging in his or her normal work.  True, the celebrity, by expressing support for a candidate, would henceforth be identified with that candidate, but identification or association cannot be justified as furtherance of a candidate’s campaign anymore than a candidate choosing a certain network or newspaper for broadcast or publication of his or her political ads constitutes furtherance by that network or newspaper of the candidate’s campaign.

What makes the questioned provision even more unreasonable is the fact that it applies as well to celebrities and media personalities who work for a candidate in capacities that do not necessarily expose them to the public, such as being a political or legal adviser, a consultant or a speech writer, since the law covers those who work in any capacity.  The law is also vague as to what the term “campaign volunteer” means.  If a celebrity cooks for the staff of a candidate or hosts meetings in his mansion, could he be considered a campaign volunteer?  If so, how will that possibly obscure role, although performed by a well-known personality, give a candidate undue advantage over others, as does the adviser and consultant?

(For comments and other articles by Jun Bautista, e-mail him at rybautistajr@gmail.com or visit his “The Right to Speak” blog at www.articleiii-4.blogspot.com )

Money, as an essential component of politics, needs to be regulated for its corrupting influence and, peculiarly in the Philippines, to level the playing field between moneyed and cash-strapped candidates. It is a given that one cannot successfully wage a decent and successful campaign without sufficient funding, for reaching out to voters and getting one’s message across, not to mention the logistics needed in maintaining a political campaign, necessitates money. But when campaign finance is not regulated – as to source, extent and manner of spending – it becomes a problem.

The most pernicious effect of loose or unregulated campaign funds is the corrupting influence huge contributors exert on candidates once elected into office. Debt of gratitude becomes a factor in the grateful official’s conduct in office, whether expected or not. More often than not, however, the generous donor expects a quid pro quo; a return on investment, if you will.

A simple illustration will show how unregulated campaign funds factor into the public functionary’s conduct. A person who is elected mayor in a city, for example, is the beneficiary of huge campaign contributions from businessmen. When these businessmen-contributors apply for a license in setting up new business or when legislative measures are considered in the city council that will affect their pocketbooks – such as the imposition of new or higher taxes – the mayor-beneficiary will certainly be clouded in his judgment as payback time beckons.

Even in the unlikely scenario that the contributors expect nothing in return, the grateful official will likely protect the interests of his benefactors for fear of a backlash, by displeasing them or deterring others from making huge donations to his campaign in the future.

The other problem of unregulated campaign funds is the inequitous situation it creates between the moneyed and cash-strapped candidates. While the affluent has access to unlimited resources in reaching out to voters, the candidate of small means struggles to get his or her message across, which makes politics in the Philippines largely an affair for the wealthy few.

Finally, even if it were to be assumed that a candidate spends his or her own money in the campaign, there is that danger of him or her recouping the expenses once elected into office by pursuing nefarious “under-the-table” transactions and other corrupt practices.

Ever since Batas Pambansa Bilang 881 (Omnibus Election Code), the country’s basic election law, came into effect in 1985, there has only been one legislation that introduced changes to campaign finance in the Philippines, which is Republic Act No. 7166 or the Electoral Reform Law. Even then the only reform introduced, aside from the penalties imposable for violation thereof, is the increase in the amount of campaign expenditures that may be incurred by a candidate, by increasing it from P1.50 for every registered voter in the constitutency for which a candidate filed a certificate of candidacy to P10.00 for the president and vice president, P3.00 for other candidates with a party, P5.00 for other candidates without a party, and P5.00 for political parties.

A bill introduced in the House of Representatives in 2007, which seeks to punish political turncoatism and impose limits on donations and expenditures by individuals and corporations, and in the Senate in 2004 by former Senator Ralph Recto (also deals with political turncoatism, creation of a state subsidy fund to augment the campaign activities of accredited political parties, and imposes limits on contributions), never saw the light of day.

Interestingly, the target of regulation in our existing laws is the spending aspect only. Our election laws are notoriously silent on any limit on contributions which go to the core of corrupting elected officials. Any person or business entity not disqualified by law may contribute any amount to a candidate’s coffers. Although the law imposes limits on the amount and type of campaign expenditures, and candidates are required to report all contributions, there is nothing that regulates the excess contributions. After the elections are over the excess pretty much becomes discretionary funds of the candidates. It is no wonder then that Congressman Mikey Arroyo could say with a straight face that campaign contributions are among the sources of his increased net worth when questioned about his Statement of Assets and Liabilities.

Even with the existing limits on expenditures, however, it is no secret that candidates have always conveniently and flagrantly ignored them. Based on Comelec’s election statistics for the 2007 national and local elections, there are about 45,294,430 registered voters nationwide. At a limit of Php 10.00 per registered voter, presidential and vice presidential candidates for that election should have spent only a maximum of P450,294,430.00 – a far cry from the P5 billion that one needs to be elected president, according to a 2008 report by the Pera’t Politika Working Group, which is a consortium of public interest organizations formed to monitor election spending. The same report states that the expenditure for senatorial races ranges between P150 million and P500 million, P10 million for mayor, and P15-150 million for governor. It should be noted that these figures go way beyond the limits imposed by law.

As if lack of campaign finance reform is not enough, existing regulations are rendered meaningless for want of effective enforcement. Not one candidate has yet been penalized for violating spending limits. Not that I find pleasure in seeing someone punished, I’d be happy to know if Comelec can point to particular cases. And even if it can, such cases would surely be dismally few and involve largely unknown candidates, compared to the hundreds of candidates who routinely violate the strictures on campaign spending. According to a 2004 article by Glenda M. Gloria, entitled “Selling a Candidate,” cited in Pera’t Pulitika’s report, the media earned more than a billion pesos from political ads for the 2004 elections in just a span of four months. This is a tell-tale sign that spending limits have been violated, yet the Comelec has not taken any action against those responsible.

This early, presidential candidate Sen. Manny Villar has already reportedly spent P543 million in political ads on TV, putting him among the top 20 television advertisers. There’s no telling how much he would spend more come formal campaign period. What is certain, however, is that we would see the same deluge of television, radio, and newspaper advertisements which would gobble up huge sums of money. But after elections are over, candidates will once again doctor the contribution and spending reports they will submit to Comelec, and the latter will simply file them away and pretend that the law has not been violated.

According to Commissioner Nicodemo Ferrer, who penned the decision, “respondent Joseph ‘Erap’ Estrada no longer holds a public office; more importantly, he is no longer the president and wields none of the vast powers of this position. He poses no danger to anyone. Because of this prevailing status, a simple application of the rule will lead any reasonable and logical person to conclude that the prohibition against the reelection of ‘The President’ does not apply to Joseph Estrada.”

The constitutional provision in question is as follows:  “Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.”

While it is true that Estrada is no longer president and the phrase “the president” on the second sentence of section 4 seems not applicable to him, the decision conveniently disregarded the adjective “any” before the word reelection on the same sentence.  Any reelection clearly means election again either immediately after the expiration of one’s term or after an interval.

If it were the intention of the framers of the Constitution that the prohibition applies only to the sitting president, then the phrase “any reelection” would not have been used for in that case the adjective “any” would be useless.  In contrast, the use of the definite article “the” before “president” presents no anomaly or tension with the interpretation of an absolute ban on reelection.  The second sentence of section 4 would simply mean that once someone is elected as president an ineligibility to run for president again attaches during his or her incumbency and in the future, that is when he or she is no longer president.  According to former Comelec Chairman and Constitutional Commissioner Christian Monsod, a person elected as president only gets one shot at the presidency.

In defending his bid for reelection, Estrada insists that it is the third sentence of section 4 that applies to him, rather than the second sentence.  Recall that the third sentence disqualifies any one who has succeeded as president and has served as such for more than four years from being elected as president at any time.  Estrada claims that he served the presidency for less than four years and, therefore, not ineligible to be elected as president.  The third sentence, however, applies only to one who became president not by election but by the operation of the rule on presidential succession for two reasons, viz: first, the provision speaks of one who has “succeeded” as president; second, in prohibiting such person from becoming president again, it uses the phrase “shall [not] be qualified for election” instead of “shall [not] be qualified for reelection” simply because not having assumed the presidency via election, it would not be correct to use the word “reelection.”

The second division further justified the decision to allow Estrada to run for president by saying that “in the end, it is the Filipino people who would act as the final arbiter on whether they would have Estrada sit again as president. It is the electorate’s choice of who their president should be. The better policy approach is to let the people decide who will be the next president.”

This reasoning disregards the fact that the Constitution is an embodiment of the people’s will.  While the people did not directly draft the Constitution it is the people that ultimately gave it life and binding force when they ratified it in a plebiscite.  Thus, when the Constitution imposes disabilities on certain persons from becoming public officials, it is simply expressing the people’s will on who they want to run for public office.  So what will is Ferrer talking about?

Besides, following Ferrer’s reasoning, if indeed it is a better policy approach to let the people decide who will be the next president then why not apply the same reasoning to other candidates that they have unilaterally disqualified for being nuisance candidates?  It should be noted that these candidates meet the minimum qualifications, and do not suffer any disability, under the Constitution.   To say that a person should be allowed to continue his or her candidacy and let he people decide is like saying never mind if that person is disqualified, just let the people decide if they want to elect him or her to public office.

Such a flawed and dangerous proposition, not to mention double standard as far as other candidates are concerned, disregards the basic principles of republicanism where the people’s will is expressed not only at the polls, but equally important in the institutions of democracy it created.

Some people are wondering why Pacquiao would not want a miniscule amount of blood taken from him close to the scheduled fight on March 13 if he is not taking any steroids or other performance enhancing drugs. In fact this is the line being drumbeaten by Golden Boy Promotion’s Oscar Dela Hoya in his blog. The easy answer is that Pacquiao need not give in to each and every demand by Mayweather, especially so if Pacquiao has complied with and passed with flying colors each and every testing requirement of the Nevada Athletic Commission in (NAC) determining if boxers are clean before being issued their licenses.

Nevertheless, despite his unquestioned record since turning pro – that is until Mayweather decided to blemish it with baseless accusations – Pacquiao is willing to submit to blood tests on three occasions, viz: in January when the supposed match will be announced, earlier than 30 days before the fight, and in the locker room immediately after the fight. As observed by one sports writer, what could not be detected by a blood test done immediately after the fight that a test done before it would reveal if indeed Pacquiao were using steroids? Mayweather’s refusal to this condition, as a compromise to his unreasonable demand, would only show that his only intention is to harass and subject Pacquiao to humiliation.

It is true that urine tests alone cannot detect some performance enhancing drugs, such as human growth hormone (HGH) injections, but then the testing protocols of the US Anti-Doping Agency (USADA) being proposed by Mayweather are not the tests being administered for boxers by the NAC. Lest I be mistaken, the NAC also administers blood testing and Pacquiao has always submitted to such tests before in securing and renewing his license. If the NAC’s testing protocols are being challenged as insufficient or unreliable in determining whether a boxer is clean, is the Mayweather camp then saying that a whole line of other boxers who have shone on the ring, Dela Hoya included, also have questionable successes?

There is no question that Manny Pacquiao has already achieved sterling success as a boxer. He is the reigning pound for pound boxer in the world, ranking number one in many boxing magazines, including the prestigious Ring Magazine; he has been featured several times in Time magazine, among them are when he was included among the top 100 persons of the year and when he was featured on the cover of its Asia edition. He is now considered as a boxing all-time-great by boxing’s respectable commentators and analysts and is even being compared with the likes of boxing legend Muhammad Ali and Sugar Ray Leonard, among others.

Floyd Mayweather, Jr., on the other hand, has not had such recognition. It is true that he remains undefeated, but that only speaks of the selectiveness of his bouts. Unlike Pacquiao, Mayweather has been known to pick only fighters that he can take. And unlike Pacquiao, he fights dull matches and preys only on his opponents’ unguarded moments. In other words he plays it safe. Pacquiao, on the other hand, has taken on seemingly tough fighters for his built, size and weight. He has ventured into the unimaginable by competing in matches that boxing analysts thought were ridiculous and lopsided against Pacquiao, only to find themselves proven devastatingly wrong as each and every fight turned out completely the opposite with Pacquiao demolishing his opponents. Unlike Mayweather, Pacquiao charges even when his opponent is on the guard and ready for him, prevailing in the end as a true testament to his mettle and skills.

So what has Pacquiao to prove more? Nothing. He has done boxing a great service. He has revived a dying sport, when fans have moved on to the more violent mixed martial arts genre. As the recognized and reigning best pound for pound fighter and the welterweight champion, it is not up to him to give in to unreasonable and unnecessary demands. If Mayweather really wants to face Pacquiao, he should do it in accordance with the prevailing rules of professional boxing. In fact, if there is anyone who should dictate terms, it is Pacquiao and not the other way around.

While the Maguindanao massacre should be condemned in the strongest possible terms, we must not let our emotions get the better part of us. However strong the evidence may be against Ampatuan, Jr., no less than our Constitution presumes his innocence until evidence to the contrary is proven. Due process requires that he be given his day in court, accorded a fair trial and only after evidence for or against his innocence is presented that he may validly be judged either innocent or guilty.

In the midst of all these substantive and procedural safeguards, Ampatuan, Jr. is entitled to competent legal representation. Fortun is merely performing his legal duty as an officer of the court whose oath requires him to defend any person accused of a crime. Instead of being condemned, Fortun should even be lauded for helping make the judicial system work and go about its business of dispensing justice. Imagine if no one would represent Ampatuan, Jr. Given the seriousness of the charges against him, it is highly unlikely that the court will proceed without him being represented by a lawyer, especially so that he has preferred to be represented by one. This will definitely not be good as trial will be postponed indefinitely and consequently delay the victims’ relatives’ – including the NPC’s – plea for justice.

What alternatives do the NPC and those people who condemn Fortun for defending Ampatuan, Jr. have? If Fortun is taken out of the picture, most assuredly someone will take his position if the trial against Ampatuan, Jr. were to proceed. If no one will voluntarily represent Ampatuan, Jr., the court trying the case will be forced to appoint someone. Now, will the NPC also decry and declare as persona non grata the person who will be appointed as new defense counsel? How about the judge who will appoint the lawyer, will she also be condemned considering that she will be instrumental in giving Ampatuan, Jr. someone who will defend him?

Perhaps we should just lynch Ampatuan, Jr. and strike-off from our Constitution and statutes books due process protections and abolish our courts altogether.  I am not saying this is what the NPC wants as well as those opposed to Fortun and lawyers defending undesirable people, but come to think of it this is precisely the implication of not wanting accused people to be given their day in court and accorded competent legal representation.

Were the court to deny Ampatuan, Jr. his right to legal representation and force him to defend himself, aside from violating his constitutional right to have a counsel of his own choice, the court would be prejudging his guilt already, for why would the court refuse to deny such representation if not dictated by the conviction that he is guilty of the crimes charged against him?  This is not the kind of court we would like to dispense justice for us.

To be sure, there is someone out there crying how could Fortun, or any lawyer for that matter, defend a monster like Ampatuan, Jr?  Some people may not buy it, but it is not for the lawyer to judge his or her client; that is a matter for the court to decide.  Unless we want to go back to the age of trial by ordeal – where a person’s guilt or innocence is decided in strange ways, such as being pronounced innocent if a person submerged in water does not drown or guilty if he does, or innocent if the accused’s hands heal within certain days after suffering injuries from being dipped in boiling water or being pronounced guilty if the accused loses in a duel – we have to settle to the fact that we now have a judicial system that allocates responsibilities to different participants for the purpose of painstakingly ascertaining the facts and circumstances of a case to determine who is innocent or guilty.

A criminal defense lawyer, like Fortun, performs the essential function of ensuring that a person is not unjustly accused and that only after proof beyond reasonable doubt is established may an accused person be adjudged guilty and penalized.  In essence he represents the criminal justice system, as much as the public prosecutor does.

If justice were to be dispensed, Andal Ampatuan, Jr. – like any other suspect and without regard to his guilt or innocence – deserves to be represented by a competent counsel of his own choice.  To borrow the words of US President Obama, there is no incompatibility between our safety and ideals.  We must not throw away the legal protections provided by the Constitution in our quest for justice, however reprehensible the charges against an accused person are.

Having said the foregoing, it is hoped that Atty. Fortun will stand only by what is just, ethical and proper in proceeding with the defense of his client.  While he is expected to exercise utmost zeal and dedication in the defense of his client, his oath also dictates that he should not delay the cause of justice and defend his client using only fair, honest and legally permissible means.

(For comments and other articles by Jun Bautista, e-mail him at rybautistajr@gmail.com or visit his “The Right to Speak” blog at www.articleiii-4.blogspot.com )

It is also not a new phenomenon for a former president to run for or be appointed to a public office after completing his term. John Quincy Adams, after serving as the 6th president of the US, was elected as a member of the US House of Representatives. Now contrary to what the critics say, this would not necessarily cheapen or demean the presidency. John Quincy Adams’s incumbency as congressman for 17 years was served well in championing civil and political rights that eventually led to the removal of the prohibition on introducing legislations against slavery.

Of course GMA’s candidacy for Congress is unprecedented in the Philippines. What leaves a bad taste in the mouth about it, as described by Sen. Chiz Escudero, has something to do less with demeaning the presidency than with GMA’s nine years of presidency being characterized by corruption and abuse of power, and a nagging question about the legitimacy of her ascendancy to power. During her incumbency, GMA’s administration has been beset by scandal after scandal, such as the $329-million NBN-ZTE broadband network deal, $14-million IMPSA power plant project, P728-million fertilizer fund scam, P321-million Jose Pidal accounts, and, not least of all, the “Hello Garci” scandal – our very own version of Watergate which should have brought down GMA’s presidency as it did Nixon’s. To this day, however, not one has been put behind bars despite these egregious scandals of brobdingnagian proportion.

The opposition have raised fears of GMA maneuvering her way into power again in running for a congressional seat. The theories range from her gaining the House Speakership, directing a charter change toward a parliamentary government that would make her prime minister, to acquiring immunity from prosecution. But the message that should be stressed is the evil of electing someone whose governance has been tainted with corruption, official wrongdoing, scandals, abuses of power and electoral fraud.

To be sure, GMA being back at the helm is a distasteful proposition. Reprehensible even. But for now this is conjectural and may not happen at all. The opposition should come out strong and emphasize the evils that lurked under GMA’s tenure in decrying her return to politics, instead of harping on conjectures about her return odyssey to power. While it is true that none of the charges against GMA have yet been proven – at least in a court of law – there is no denying, however, that these scandals and official malfeasances did take place. And they took place under her watch, which speaks volumes about her competence and effectiveness as a leader. Even worse, the public have yet to see the hand of the law reaching the guilty, while GMA thwarted, under the guise of executive privilege, every effort to bring to light the facts and circumstances surrounding these scandals.

The candidacy of GMA will ultimately be a referendum on her presidency. Her election as a Pampanga representative come May 2010 will put a stamp of approval on all that she represented under her nine years of incumbency as president – something every Pampangueño should seriously ponder before doing.

(For comments and other articles by Jun Bautista, e-mail him at rybautistajr@gmail.com or visit his “The Right to Speak” blog at www.articleiii-4.blogspot.com )

While the Earth’s temperature passes through a natural cycle of heating and cooling, or what skeptics of climate change call natural climactic swings, scientists have found that human activity has contributed to much of the heating of the Earth for the past century. And studies point to so-called greenhouse gases (GHGs) as the major culprits.

The Earth’s atmosphere contains concentration of gases (such as methane and CO2) which trap some of the heat coming from the sun. These trapped heat keeps the planet warm and makes it possible for life on Earth to thrive and be sustained. This process is called the greenhouse effect. But years of massive GHG emissions and buring of fossil fuels, brought about by industrial processes, vehicle use, and every other human activity involving the use of energy, has abnormally increased the level of GHG gases in the atmosphere (now much higher compared to 650,000 years ago), thus making the planet hotter. Per the latest estimate, the world’s temperature has gone up by more than one degree Farenheit and even higher in the polar regions.

The atmosphere’s natural alternating cycle of warmth and cold usually takes hundreds of thousands of years. In contrast, we are now seeing an abnormal increase in global temperatures. Eleven of the 12 hottest recorded years occured between 1995 and 2005 ever since the thermometer can gauge the temperature. As a result of this, we are now seeing the effects of global warming taking its toll on Earth: glaciers and sea ice are melting (sea levels have risen faster over the last century), precipitation patterns are shifting wherein snow and rainfall has been observed to be increasing in certain areas of the planet, and some animals have changed their migration patterns by moving farther north in search of cooler climate.

There is now a general consensus that the question is no longer whether there is global warming being caused by human activity, but the question is more on what can be done to prevent or stop global warming. The Intergovernmental Panel on Climate Change (IPCC), consisting of hundreds of leading scientists the world over, which was formed by the UN Environment and Development Program in 1988 in collboration with the World Meteorological Organization, has released a report in 2001 declaring unequivocally that humans have caused the rise in the Earth’s temperature.

Unless action is taken by the world’s leading industrialized nations, such as China (now the biggest emitter of GHGs) and the United States, the Earth’s temperature will continue to heat up to abnormal levels, increasing to as much as 10 degrees Farenheit. This will be catastrophic because it will melt the polar ice caps and increase worldwide sea levels that will flood coastal regions; extreme weathers will beset us, such as stronger typhoons and hurricanes; crop yields will drop greatly as increased rainfall is followed by longer periods of droughts; many plants and animals will become extinct as their habitats are destroyed. These are but a few of the dangers of global warming if left unchecked.

Let us hope that the Coppenhagen Climate Conference on December 2009, which will be participated by 170 countries and several non-governmental organizations worldwide, will result in an effective and sustainable plan to combat global warming and climate change.

In the meantime, let us do our part in helping in our own small way in the overall effort to stop global warming, such as becoming more energy efficient and saving energy in our daily activities. We can, for example, replace our incandescent light bulbs with flourescent bulbs, lower the thermostat in our heating systems during winter, avoid using our cars whenever possible, unplug unused applicances, turn off lights when not in use, etc. We could also help by participating in information drive to educate the public about global warming or urge our political leaders to take action. These individual actions, when combined together, will have great impact on our environment.

(For comments and other articles by Jun Bautista, e-mail him at rybautistajr@gmail.com or visit his “The Right to Speak” blog at www.articleiii-4.blogspot.com )

Monsignor Santos is asserting CEAP member-schools’ right to academic and religious freedom and vows he will see to it that such exemption is inserted in the law’s implementing rules and regulations.

If and when a case involving this issue reaches the Supreme Court it will be the second of its nature. The first that landed on the Supreme Court is the 2003 case of Estrada v. Escritor (A.M. No. P-02-1651). For the first time in Philippine jurisprudence, Escritor laid down the rule on exemption of religious conduct from the application of a generally-applicable law. Briefly, the case involves a court employee, Escritor, who has been living with a man for years without the benefit of marriage. This man also happens to be married, although separated, with another woman. When an administrative complaint for immorality was filed against Escritor, she raised as a defense that her cohabitation with another man is sanctioned by the tenets of her religion and was with the knowledge and approval of her congregation’s religious leaders.

In a lengthy and exhaustive opinion that is more of a dissertation rather than a court decision, then Associate Justice Reynato Puno, writing for the majority, said that the free exercise of religion clause of the Constitution protects the rights of individuals to engage in certain religious conduct – even if contrary to the provisions of existing law (read as exemption) – as long as it is based on sincerely-held religious belief and the state has no compelling interest to burden the exercise of such religious conduct. Three years after remanding the case to the Office of the Court Administrator (Supreme Court office that investigates complaints against court employees) – to determine the sincerity of the belief and its centrality to the professed believer’s faith and allow the government adduce proof of a compelling state interest to penalize the non-marital relationship – the Supreme Court found for Escritor by ruling that the freedom of religion or free exercise clause of the Constitution exempts her from the provisions of the Revised Administrative Code penalizing immoral conduct.

While the Supreme Court recognized the state’s legitimate interest in protecting the institution of marriage and the family, it refused to accept the government’s claim of compelling state interest on such broad and general principles; it wanted more narrow or specific interests of the government that will be subverted if the non-marital union of Escritor with another man is not penalized.

The Supreme Court laid down the following important criteria when courts can carve out an exemption from a law of general applicability based on religious conduct, namely: (1) the law burdens religious freedom; (2) claimant’s sincerity in his/her religious belief; (3) there is no compelling state interest involved; and (4) the burden on religious freedom is the least intrusive means of achieving the government’s objective.

It is clear from the foregoing criteria that the fact that a law burdens a religious belief and its exercise, and such belief is sincerely-held by a person, if there is a compelling state interest involved and there are no alternative means of pursuing that interest, the claim of religious exemption will fail. Thus, in the American case of US v. Lee the Supreme Court of the United States found a compelling state interest in sustaining the fiscal viability of the social security system through mandatory contributions when it denied the Amish religious group’s claim of religious freedom in refusing to pay social security taxes. On the other hand, the need to maintain peace and order and punish violent crimes would be a compelling state interest that would defeat a claim of religious freedom in, for example, religious practices involving human sacrifices.

The compelling state interest test is, therefore, a check on pleas for religious exemption, while at the same time it guarantees religious freedom under the free exercise clause by requiring only the strictest scrutiny of regulations, although secular in nature and are of general applicability, that incidentally burden religious freedom.

CEAP will undoubtedly rely on the criteria enunciated in Escritor in seeking the exemption from the Magna Carta of Women. Whether or not there is a compelling state interest in burdening the Catholic Church’s moral doctrine as applied to unwed mothers will be a question the courts will have to address. But what is clear is that Escritor has paved the way for religious groups in seeking exemption from a law which, although is religion-neutral on its face, has the incidental effect of burdening the exercise of religious freedom.

(For comments and other articles by Jun Bautista, e-mail him at rybautistajr@gmail.com or visit his “The Right to Speak” blog at www.articleiii-4.blogspot.com )

Ninoy apologized to Noynoy for not bequeathing him any material wealth. He was, however, proud to tell Noynoy that he will leave him an untarnished name that he will carry for the rest of his life – that is, if he himself does not tarnish it. Now that Noynoy Aquino has publicly declared his intention to run for the presidency, the Aquino legacy, which has been rekindled with the demise of Cory Aquino and anniversary of Ninoy’s death, will prove most helpful. In fact, it was these momentous occasions that propelled Noynoy into the national spotlight.

But as Ninoy said, the ball is now in Noynoy’s hands. The shadows of his parents will not stay for long; as the race deepens, Noynoy will have to prove his own mettle. It will become more and more his own fight where his own strength of character, resolve, charisma, and abilities would matter. To be sure, Noynoy will be compared with the fiery eloquence and brilliance of his father, and the disarming demeanor and charisma of his mother. And there can be no pretense that Noynoy is possessed of these outstanding qualities. But since Noynoy’s supporters have found in him the symbol of unity and integrity in governance, they are willing to overlook these absent qualities for as long as Noynoy remains above reproach and humble in his abilities.

Noynoy may not have the fat resume of an accomplished legislator who have written volumes of beneficial legislations, but he brings to the table the integrity of his name and the guarantee that he will run a clean and honest government. There is the conventional wisdom in politics that a bad economy is bad for the current administration in the coming elections. That wisdom applies equally well when the current administration is wracked by corruption and abuses. The contender that promises a clean and honest government presents the most appealing alternative, as it did in 1986. This is the promise of Noynoy that is not seen on other presidential hopefuls – at least after Mar Roxas dropped his ambition.

For those who would question Noynoy’s intellectual abilities and experience to run the country, suffice it to say that we have elected before an Erap Estrada and possibly a Fernando Poe, Jr. Noynoy will not exactly be clueless and wanting in academic credentials. He graduated from Ateneo with an economics degree and has served his district in Tarlac as congressman for three consecutive terms, aside from the fact that he is now an incumbent senator. He is, therefore, no stranger to politics and the operations of the government.

The call of the times, however, is not another bar topnotcher, seasoned politician or accomplished economist. The people are clamoring for someone who can bring back confidence to government and make it work for the people. The first one appears within reach by a Noynoy presidency, but the latter still remains to be seen. For now, however, given the current dispensation, the people appear poised to put their stake on someone who could bring the first objective.

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