Magbubukang-liwayway na. Inilatag na ng hanging maalinsangan ang alpombra ng alikabok sa buong lungsod. Tumitilaok ang mga tandang. Kasabay nito ang pag-alingawngaw ng hagikgik ng batang babaeng nakaupo sa ilalim ng punong mansanitas sa plasa.

“Wan, tu, tri,” bilang ng bata samantalang isa-isang dinadampot ang mga nahulog na bunga ng mansanitas. “Dito kayo sa bulsa ko! Kayo naman, mga bulok, dito kayo sa lupa.”

Bagong ligo lamang siya. May malaking basang marka sa kanyang likuran na pinagtuluan ng mahaba niyang buhok. Manipis ang kanyang dilaw na t-shirt. Marumi naman ang puwit ng suot niyang shorts.

Humagikgik muli ang bata at nagpatuloy sa pag-ani ng mga nahulog na mapulang bunga. Matapos na ipunin ang mga ito, maliksi siyang umakyat sa puno at doon sa gitna, kung saan sumabog sa iba’t ibang landas ang mga sanga, doon siya umupo.

“Kumusta ka na? Na-miss kita. Ang init no? Gusto mong haplusin kita? Parang masahe lang. Ninenerbiyos kasi ako. Naisip ko kasi ‘yung panaginip ko kagabi. Napanaginipan ko na lumipad akong parang kite. Hawak nina Mama at Papa ang pisi. Tapos, bigla nila akong binitiwan. Lumipad ako nang lumipad hanggang sa malunod ako sa clouds. Kasi, ‘di ba, sabi ng teacher namin, tubig lang ang clouds. Isipin mo ‘yon! Nalunod sa clouds!”

Sinimulang kainin ng bata ang mga mansanitas. “Ikaw, may panaginip ka rin? Kasi sabi ni Papa, wala kang ispiritu. Patay daw ang puso ng mga puno. Totoo ‘yon?”

Tiyempong may umihip na hangin. Tila nagtanguan ang mga dahon bilang tugon. “Naririnig mo ba talaga ako? Sana oo, kasi, may gusto akong sabihin sa ‘yo. Sekreto ko.”

Tumigil nang panandalian ang bata at lumingun-lingon sa paligid. “Naglayas ako,” malakas niyang bulong sa puno. Umihip muli ang hangin at nangaligkig ang buong puno ng mansanitas.

‘Dito muna ako, ha? Ayoko kasi sa bahay. Sabi kasi ng dati naming katulong, may momo daw sa kusina. Buti na lang pinalayas na ni Mama ‘yung katulong na ‘yun. Maldita. Inagaw ‘yung binili kong mangga nung isang araw, Lagi pa akong pinapalo. Kahapon lang siya umalis. Buti nga.”

Pagkatapos niyang magkuwento, napatulala siya sa kalangitan. “Kaya wala akong kasama ngayon. Si Anileen naman, hindi pwedeng maglaro kasi nagbakasyon sila. Gusto ko sanang maglaro ng bahay-bahayan kaya lang ayaw nila Ryan. Gusto lang nilang magbaril-barilan. Pero, sa totoo lang, ayaw ko sa kanila. Mabait lang sila kung meron akong pagkain. Gusto nilang lagi akong kumuha ng pagkain sa kusina. Ano sila?! May momo kaya doon, ‘no!”

Naudlot ang daldal ng bata nang may marinig siyang sirena ng pulis. Mabilis siyang tumayo at lumingon sa direksiyong pinanggalingan ng ingay. Nang wala siyang makita, ipinagpatuloy niya ang kanyang pagkuwento.

“Si Mama, laging overtime. Si Papa, nasa Manila. Ikaw, nasaan ang mga magulang mo?” Tinitigan niya ang mga dahon at kumislot ang mapaglarong ngiti sa kanyang bibig.

“Alam ko na! Ikaw din ‘no? Ikaw din ‘no, naglayas! Ha! Sabi ko na nga ba, eh!” Niyakap niya nang buong higpit ang isang matabang sanga. “Kaya ka pala laging mag-isa. Kasi, ang ibang puno, may katabi na mga puno. Ikaw, wala. Bakit ka naglayas? Siguro, magkatulad tayo. Hulaan ko kung bakit…takot ka rin sa momo sa kusina niyo no?!” Humagikgik ang bata sa sobrang tuwa.

Mamaya, tumunog na naman ang sirena. Tumahimik ang bata at sumulyap sa direksyon ng tunog. Pagkuwa, umupo siyang muli at niyakap ang pinakamalapit na sanga.

“Siguro, ikaw din, gustong magpahanap. May sasabihin ulit ako na sekreto sa ‘yo. ‘Wag kang maingay ha? Tayong dalawa lang.”

Ipinikit niya ang kaniyang mga mata at ipinaliwanag sa isang hininga ang kanyang sekreto. “Kasi, gusto kong nerbiyusin sila. Mabait sila pero hindi sila tulad ng mga mama at papa ng mga kaklase kong laging nasa school. Alam mo ‘yon? Maglalakad papauwi sa bahay bitbit ang mabigat mong bag tapos makikita mo ang mga kaklase mong kumakain ng ice cream kasama ang mga mama at papa nila na bitbit ang kanilang mga bag! Tapos, basta! Marami. Siguro, nag-aalala na sila ngayon. Pinapahanap na nila ako sa pulis. Narinig mo ‘yung sirena? Ako ang hinahanap nun! Ikaw din ba? Sigurado ako, katulad tayo. Okey lang ‘yan. Magkasama naman tayo, eh. Dito lang muna tayo buong hapon. Hintayin natin sila. Sigurado ako, darating sila. Tahimik na lang muna tayo.”

Lumipas ang buong araw. Tulad ng mga nakaraang hapon, naging piping saksi muli ang bata sa tahimik na buhay ng plasa. Ritwal na niya ang maghintay sa itaas ng punong mansanitas. Memoryado na niya kung papaanong mahulog at magkirihan ang mga tuyong dahon sa hangin.

Nang lumatag na ang dilim, matamlay na inilaglag ng bata ang sarili sa puno. “Ayaw mong sumama sa akin? Sa bahay ko na lang sila hihintayin.” Taimtim siyang naghintay ng sagot mula sa puno. Tumingala siya at sa unang pagkakataon, hinarap niya ito mula sa lupa. Laking gulat na lamang niya nang ang sumalubong sa kaniyang paningin ay isang punong tila napakalaki at napakalatag. Hindi niya lubos maisip na ito ang punong kani-kanina lamang ay yakap-yakap niya.

“Ayaw mong kumain? Samahan mo ako sa bahay. Gutom na ako.” Umihip muli ang mainit na hangin. Narinig ng bata ang mapangutyang tawanan ng lahat ng mga halaman.

Dahan-dahan siyang naglakad papauwi. Madilim pa rin ang loob ng kanilang bahay. Walang tao. Pikit-matang tumungo ang bata sa kusina. Balot sa guniguning momo, mabilis niyang nilunok ang malamig niyang hapunan.

Pagkatapos kumain, nakayapak siyang tumungo sa kanilang hardin at doon, sa ilalim ng malamlam na ilaw ng bagong silang na buwan, nagsimula siyang maghukay. Inisip niya kung papaanong hindi nagugutom ang puno ng mansanitas sa piling ng lupa. Inisip niya kung gaano kapayapa ang punong iyon sa gitna ng plasa.

Humahagulgol, inilibing niya ang kanyang mga paa sa lupa.

 

 

 

*Isinulat ni Adjani Guerrero Arumpac, mula sa kaniyang librong Kung Bakit Ako Kaliwete (2001), inilathala ng Philippine High School for the Arts.

Nanay Mameng | a film by Adjani Arumpac

Nanay Mameng | a film by Adjani Arumpac | Showing on Oct 11 (Thursday), 2PM at the Bulwagang Tandang Sora, College of Social Work and Community Development, University of the Philippines Diliman

Atty. Jeremy Gatdula’s opinions are pure legalese and plain lawyering, without a grasp of the realities in litigation matters involving rights and freedoms.

First, RA 10175 covers not only the internet; it includes mobile phones, computers or similar devices and computer data storage devices, with or without internet access/connection, and computer data, electronic documents and electronic data messages whether stored in computer systems or online [Sec. 3(e)(g)].

Second, we all know the defenses than one may avail of when confronted with a complaint or information for cybercrime of libel. But that is not the point. When one is slapped with a complaint or information for cybercrime of libel, or even libel under the Revised Penal Code, as amended — though defenses are available to the respondent or the accused, and the complaint or criminal case may be dismissed later on by the investigating prosecutor (for lack of probable cause) or the court (for lack of probable cause or simply for the fact that the alleged defamatory material is not libelous) — the one slapped thereof has already sustained damage and been subjected to undue burden, as he or she has to go through the onerous and burdensome process of preliminary investigation and/or court trial.

Third, we all know also that a libel action is, whether under the RPC or RA 10175, a tool for harassment and persecution, most abused especially by politicians and the powers-that-be. Imagine, by expanding the coverage of the notorious libel through the means of “computer system or any other similar means which may be devised in the future” and through “information and communications technology,” it likewise expands the arena for the invocation of the immense powers of the State for prosecution, nay, persecution.

Fourth, the oppressive nature of defamation actions in relation to freedom of expression and the burdensome effects thereof in terms of going through the tedious process of court litigation — with journalists, advocates and activists as the usual victims — have led other jurisdictions to enact statutes or promulgate rules against Strategic Lawsuits Against Public Participation (SLAPP), which include defamation actions. Our jurisdiction has adopted, in varying degrees, some anti-SLAPP provisions or rules — Sec. 43, RA 8749 (Clean Air Act of 1999); Sec. 53, RA 9003 (Ecological Solid Waste Management Act of 2000); and Rule 1, Sec. 4(g), Rule 6, Secs. 1-4, Rule 19, Secs. 1-3 (Rules of Procedure for Environmental Cases) — precisely to lessen the onerous and burdensome effects of harassments suits (e.g. defamation actions) that are filed through the abuse of penal statutes and judicial processes. But again, these anti-SLAPP provisions or rules are mere defenses, and cannot remove the fact that the one facing a SLAPP action has already been vexed or harassed by virtue of the mere filing of a complaint or case against him or her.

Fifth, in order to reiterate: the availability of defenses is one thing; being slapped with a complaint or information for cybercrime of libel, and going through the tedious and burdensome process of court litigation, is another matter.

Sixth, a cybercrime of libel is a throwback to the antiquated ‘wisdom’ of libel under the RPC, and a disregard at the very least of international human rights law, particularly on the State Parties’ obligation pertaining to Article 19 of the International Covenant on Civil and Political Rights, to which the Human Rights Committee, in its General Comment No. 34, stated: “State parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”[1] Of course, one would argue that it only says “State parties should consider.” But by enacting a cybercrime of libel, such act speaks well of the dubious character of the Philippine government in terms of the matter of compliance with its obligations under international human rights law.

Seventh, did Atty. Gatdula even bother to read Sections 12 and 19 of RA 10175? The former grants law enforcement authorities the power to collect or record, in real-time, traffic data (e.g. from mobile phones, emails) without the need of a court warrant — as RA 10175 does not require the same — and the only requirement is that it must be done with “due cause” which is determined by the law enforcement authorities themselves. And in the course of collecting or recording traffic data without a court warrant, what would prevent law enforcement authorities from obtaining or viewing content and identity data if the same are already available to them? Tell me that this provision is not one akin to ‘Marcosian’ martial law.

In the latter, the Department of Justice is granted the power to restrict or block access to computer data (e.g. text messages or other data in mobile phones; messages in email accounts; writings, articles, or photos in social networking sites, blogs, websites) if the DOJ — now a superbody — finds the same to be prima facie in violation of any of the provisions of RA 10175. Again, this does not need a court order, or without even affording the concerned person the opportunity to be heard. Such person might wake up one day and find out that he or she could no longer access his or her mobile phone, email account, Facebook or Twitter accounts, blog, or website. Tell me, isn’t this an arbitrary flexing of the government muscle, one that is akin to the ‘Marcosian’ martial law’s power to close down media facilities in order to stop or block criticisms of the New Society?

Lastly, I am not surprised by his observation that, as stated in the article below, “According to Gatdula, the wave of reactions over the Cybercrime Prevention Act of 2012 is nothing but “mass hysteria”, (sic) stemming from not studying what the law actually means.” This kind of comment proceeds with an ‘air of elitism’ — an argument that is usually invoked by one who thinks that he or she is the only one capable of reading the law in the right manner. But no, brother[2] Atty. Gatdula, whose specialization is international trade law, you are mistaken.

*This is a response to the statements of Atty. Jeremy Gatdula about RA 10175 (Cybercrime Prevention Act of 2012) that appeared on http://www.cbcpnews.com/cbcpnews/?p=4961, the full text thereof is reproduced below.

1] Adopted by the Human Rights Committee during its 102nd Session on July 11-29, 2011 in relation to Article 19 under the International Covenant on Civil and Political Rights (ICCPR), to which the Philippines is a State Party. Article 2(2) of ICCPR states: “Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”

[2] Atty. Jeremy Gatdula and I are Bedans, as we obtained our respective undergraduate degrees from San Beda College.

http://www.cbcpnews.com/cbcpnews/?p=4961

Only malicious people should fear Cybercrime law―lawyer

MAKATI City, Oct. 4, 2012―The Cybercrime law is really meant to inspire fear and caution, but only on those who willfully attack people online with malice, says a lawyer.

“It’s only those people, I feel, who have gotten used to being quite abusive over the internet without a corresponding knowledge that there should be consequences…for whatever they say, I think should be concerned over this [law],” Atty. Jemy Gatdula of the Ateneo de Manila Law School said in an interview.

Gatdula, who specializes in international and economic law, said countless articles and essays critical of politicians and the government are published on a daily basis, but they are not considered libelous because points are raised to discuss issues worthy of public discourse and not simply below-the-belt attacks on people.

What libel means

With the Cybercrime law, the same standards that media practitioners follow will apply to regular users of social media and social networks.

He explained that the ‘online libel’ section in RA 10175 is similar to the one in the Revised Penal Code, except that it addresses materials published online.

This means a case of ‘online libel’, as specified in Section 4 of the law, should first qualify as libel in the traditional sense with the element of malice playing a substantive role, before it can be considered a “cybercrime.”

Public discourse vs. below-the-belt attacks

Gatdula said the impression that the Cybercrime law will coddle public officials because any criticism against them could be found ‘libelous’ is just that – an impression.

He said the inclusion of the libel section is precisely to protect private individuals’ interests, not necessarily to shield government officials from affronts.

According to Gatdula, comments and opinions about legitimate issues even if directly clashing with a public figure’s stance is not libelous, as long as discussions are “on topic” and do not veer into personal attacks.

He also explained, even if a healthy scrutiny of government officials is allowed, this does not mean they should be stripped off of their constitutional rights as individuals at the pleasure of vitriolic netizens.

Referring to the recent case of a barrage of online cheap shots at Sen. Vicente Sotto III, Gatdula explained that the freedom of speech has limits and does not cover abusive and insulting language, which aims to degrade a person and not enlighten an issue.

No digital martial law here 

Despite vehement expressions of outrage on social media over the law, Gatdula brushes off the idea that Republic Act 10175 signals the dawn of a “digital martial law.”

“What they’re saying on the internet, ‘this is martial law, we can’t criticize the government anymore…’ That’s not true, they can still do that. What is required of them is to do something responsible,” he explained.

According to Gatdula, the wave of reactions over the Cybercrime Prevention Act of 2012 is nothing but “mass hysteria”, stemming from not studying what the law actually means.

To date, several petitions have been filed calling for a TRO against Republic Act 10175, which took effect yesterday. [Nirva’ana Ella Delacruz]

By Julius Garcia Matibag

In a country full of venerated heroes, from the brave Lapu-Lapu to the revolutionary Bonifacio and the patriotic writer Rizal, it is no surprise that Filipinos regard any acts of living Pinoys,[1] individually or collectively, that are deemed to create positive impacts on the Philippines as a nation as one of heroism. As such, with the huge amounts of annual remittances of overseas Filipino workers (OFWs)—more than US$20.1 billion[2] in 2011 comprising almost 10% of the country’s Gross Domestic Product[3]—OFWs have been highly regarded as the Bagong Bayani (New Heroes) in the Philippines. Their contribution to the country’s economy cannot be overemphasized, as OFW remittances have perennially saved the nation from recurring global and regional financial crisis, starting from the Asia financial collapse in the mid-1990s.

And like their hero counterparts of the olden times, however, these present-day heroes—who are in almost any part of the world in a staggering number of 9.45 million OFWs in 2010[4]—despite their major drive inputs to the economy, have become vulnerable targets of oppression and exploitation, from the Philippine government’s neglect of its obligations to protect their rights and promote their welfare to most of the destination countries’ apparent unequal and discriminatory treatment against OFWs.

OFWs are not alone in this predicament, as the entire Asia-Pacific region shows a pattern of conferring legitimacy to labour-export policy of States that deny and deprive migrant workers, along with other marginalized sectors of society, of their right to be accorded by their own government of their economic and social rights.

Profile of Labour Migration in Asia Pacific

Labour migration has become a global phenomenon spurred by the advent of globalization (of products and services) in the late 1970s.[5] Though the major inputs into the economy of overseas workers are admirable, labour migration is a prominent feature of a crisis within the economic order not only of the respective origin countries but more importantly of the current global economic paradigm. “The global labour market becomes one big pool of “flexible labour” that can be shifted within and across national borders based on the needs of monopoly capital.”[6]

In Asia-Pacific (excluding Oceania countries), the numbers are staggering: there are 27.5 million migrant workers in 2010, from 25 million in 2005, and which accounts for almost 13% of all world labour migrants. Almost half (48%) of the migrant stock is composed of women workers.[7] The top origin countries of migrants are China, Bangladesh, India, Sri Lanka, Myanmar, the Philippines, and Pakistan.[8] It has been noted that while the United States and the Middle East are the main destination countries of most migrant workers, intra-regional labour migration is becoming a pattern, as the top destination countries in the region in 2010 are India (6.1 million), Hong Kong SAR (2.5 million), Iran (1.9 million), and Malaysia (1.7 million).[9]

The Oceania region[10] is no different. It has 6.8 million migrant workers and that is 16.8% of the total population in the region and 3.2% of all world labour migrants. Labour migrants account for a quarter of the population in cities like Sydney, Melbourne and Perth in Australia, and Auckland in New Zealand, which are the two primary destination countries in the region. The most number of migrant workers are in Sydney (1.2 million) and Melbourne (940,000).[11]

As such, in Asia-Pacific, including the Oceania region, there are a staggering 34.3 million migrant workers or 16.2% of all world labour migrants. Another regional trend that should be a cause of concern is the rising number of irregular or undocumented migration, estimated by the International Organization for Migration as one of the largest in the world according to overall contemporary flows. The Bangladesh-India corridor alone contributes to around 17 million irregular migrant workers in 2010.[12]

All these figures are striking that the numbers portray the fundamental protracted economic crisis that the origin countries are facing in their respective territories. It is because the push and the need to work in another country—compelled primarily by the scarcity in labour opportunities and insufficiency of domestic wage levels—that is at the core of the labour migration phenomenon. This is the crux of the problem, and the exploitation and oppression of migrant workers in their destination countries are merely the consequences of the same.

It must be emphasized that most of the origin countries’ economies in Asia-Pacific can be aptly characterised as primarily pre-industrial and agrarian, and have always been bombarded by the harsh effects of the adopted/imposed neo-liberal, free-market system. These underdeveloped and developing origin countries have been placed at the mercy of the predatory structural adjustment packages of deregulation in the economy and privatisation of social services by industrialized nations and lending institutions—the immediate effect thereof is the perennial increase in the price of basic commodities and essential social services—at the expense of the collective interests of the majority of their people. Also, even the giant countries like China and India, with their rising capitalist economies, could not contain the labour migration of their own people as there is a great disparity (and inequality) in the distribution of wealth therein between the very few that own the large majority of resources and the very majority of people who are put in a bleak situation to share among them the scant resources that are made available to them.

As such, these increasing labour migration figures, not only in the Asia-Pacific region but also in other parts of the world, constitute a preponderance of evidence that the origin countries have continued to fail in their obligation to even progressively realize to their own people the economic and social rights that must be accorded to them. Labour migration, particularly from underdeveloped and developing origin countries in Asia-Pacific, has become in essence an institutionalized framework of ‘passing the buck’ of the realization of this obligation to the destination countries through the transformation of the human capital into a pool of flexible labour, or a metamorphosis from subjects into usable products-services that may be utilised/exploited.

Therefore, the sad state of migrant workers is even more exemplified by the act of conferring legitimacy to labour migration by these underdeveloped and developing origin countries in Asia-Pacific through their usually unadmitted labour-export policy, since these governments heavily rely on overseas workers’ remittances to keep their respective economies afloat. Thus, efforts to address labour migration, by governments and even by some NGOs, are merely focused on mitigation of the ill-effects of labour migration on migrant workers (e.g. reforming labour-export practices in origin countries and demanding for proper employment terms and working conditions in destination countries), and not towards the realization of the economic and social rights of the people and the overarching and long-term objective of the elimination of labour migration, in order to “ensure that migrant advocacy will not go around perpetually in circles, like circular migration.”[13]

Philippines’ Situation vis-à-vis International Standards for Migrant Workers

The first generation of Filipino labour migrants started in 1565 when Filipinos, or Indios as the Spaniards had labelled them, worked in dockyards and aboard ships that brought them to Mexico. After that, there were already three waves of Philippine labour migration as an origin country: 1900-1940s, 1940s-1970s, and 1970s-1990s,[14] which all made it as one of the world’s largest labour exporting countries. In the 1970s, the late strongman, Ferdinand Marcos, created the policy of Development Diplomacy which was focused on utilizing surplus labour capital to export the same to oil-exporting countries. This led to an increase of OFWs by 75% in 1980 from the previous year.[15]

From the mid-1990s until the present day, it may be categorized as the fourth wave of Philippine labour migration, as for the first time after centuries since the first generation of Filipino labour migrants, a statute on the matter was finally enacted by Philippine Congress in 1995: Republic Act No. 8042 or The Migrant Workers and Overseas Filipino Act of 1995.[16] But this statute, however, was a result of the intensified pressures from migrant advocates for the Philippine government to promote and protect the rights and welfare of OFWs in view of the controversial case of Flor Contemplacion, a Filipina domestic helper in Singapore who was executed on March 17, 1995 by authorities therein for allegedly murdering a fellow Filipina domestic helper, Delia Maga, and a four-year old Singaporean child that Maga was taking care of.[17] The execution of Contemplacion aptly symbolized the long history of abuse, exploitation and oppression that OFWs around the world have been experiencing in their respective destination countries.

RA 8042 supposedly aims “to institute the policies of overseas employment and establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress.”[18] It affirms the State policies to uphold the dignity of its citizens in country or overseas, particularly the Filipino migrant workers,[19] afford full protection to labour, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities to all,[20] that overseas employment program rests solely on the assurance that fundamental rights and freedoms of Filipinos shall not, at any time, be compromised or violated, and that the State shall continuously create local employment opportunities and promote the equitable distribution of wealth and benefits of development,[21] the equality before the law of women and men,[22] free access to courts and quasi-judicial bodies and adequate legal assistance and institution of an effective mechanism to protect the rights and interests of documented and irregular or undocumented OFWs,[23] the right of OFWs to participate in democratic decision-making processes,[24] that NGOs are State partners in the protection and promotion of OFWs’ welfare,[25] and that government fees and administrative costs of recruitment, introduction, placement and assistance to OFWs shall be rendered free.[26]

The Philippine government, however, denies that exportation of its labour capital is an established, albeit unofficial, policy of the State. As such, it has stated in RA 8042 that while the State recognises the OFWs’ significant contribution to the national economy through their remittances, “the State does not[27] promote overseas employment as a means to sustain economic growth and achieve national development.”[28] But the increasing annual rate[29] of OFWs in exodus tells a narrative of doublespeak on the part of its government: there are 7.38 million OFWs in 2000 constituting a significant 9.65% of the country’s population in that year, 9.85% in 2007 and 10.23% in 2010.[30]

RA 8042 establishes seemingly comprehensive mechanisms for the promotion and protection of the OFWs’ rights and welfare: detailed and all-encompassing provisions on illegal recruitment, and punishing syndicated[31] and large scale[32] illegal recruitment as an offense involving economic sabotage;[33] deployment of OFWs only in destination countries where the rights of OFWs are protected,[34] mechanisms for money and damages claims of OFWs arising from contract for overseas deployment where the domestic recruitment/placement agency is solidarily liable with the foreign principal/employer; free legal assistance for victims of illegal recruitment; travel advisory and information dissemination on migrant issues;[35] free repatriation of OFWs and creation of an emergency repatriation fund at an initial cost of P100 million;[36] mandatory repatriation of underage OFWs; creation of a re-placement and monitoring centre for returning OFWs’ reintegration into the society; establishment of OFWs resource centres in destination countries with large concentration of OFWs to assist them in all migrant matters; creation of a shared inter-agency government information system for migration; a migrant workers loan guarantee fund of P100 million for pre-departure and family assistance loan; and mechanisms for rights and enforcement mechanism under international and regional human rights systems.[37]

It designates the proper role of relevant Philippine government agencies to promote the welfare and protect the rights of OFWs[38] in the entire migration process which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the destination country as well as the return to the origin State;[39] the creation of the position of legal assistant for migrant workers affairs; and a legal assistance fund of P100 million for OFWs in distress.

All these guarantees, processes and mechanisms under RA 8042, on paper, appear to somehow address, albeit more in a general sense, “the situation of vulnerability in which migrant workers frequently find themselves,” and other similar considerations under the International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, which was ratified by the Philippines on July 5, 1995 or just almost a month after the enactment of RA 8042. The statute, however, is significantly lacking in terms of the promotion and protection of the rights and welfare of the members of OFWs’ families, who are similarly protected in the same degree as migrant workers under all the standards laid down in the said international convention, as well as in the Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143), Migrant Workers Recommendation No. 151 (1975), and Migration for Employment Recommendation No. 86 (Revised), 1949.

Said statute relatively complies with the Migration for Employment Convention (Revised), 1949 (C. 97) on matters involving the OFWs’ departure, journey and reception and transfer of earnings, in general and particular terms, as well as with said convention’s two annexes on matters involving conditions of labour, and recruitment and placement that are also contained in the Migration for Employment Recommendation No. 86 (Revised), 1949. The same may also be said in relation to the Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143) on labour migration’s standards that address abusive conditions, the need to suppress clandestine movements of migrants and their employment in irregular status by taking action against their organizers and employers, and protecting the rights of migrant workers in irregular status arising out of their employment.

But RA 8042 violates the international standard concerning recruitment and placement activities as it has a comprehensive deregulation plan[40] on such crucial matters. Moreover, it is silent as to the categorical assertion of the paramount principle of equal and no less favourable treatment[41] that is accorded to migrant workers and members of their families[42] as a vital international standard under the foregoing international instruments. Also, said statute apparently lacks the particular and detailed principles and guidelines for a rights-based approach to labour migration under the International  Labour Organization’s Multilateral Framework on Labour Migration (Principle 15).

Conclusion

Philippine labour migration policy, in sum, is far from being a comprehensive and detailed one that fully accords the standards established under international instruments on labour migration. Even the RA 10022, which was enacted on March 8, 2010 to amend several provisions of RA 8042, fails to sufficiently provide for the insufficiencies of the latter statute, especially on the detailed particularities of the rights of OFWs and members of their families pursuant to international standards.

In 2002, the country has already removed its cloak that disguises its labour-export policy when then President Gloria Arroyo announced employment abroad as a legitimate choice for the country’s workers, and that the government would fully respect the mobility of labour and the preference for working overseas. This started the shift of the government’s traditional role from merely managing the migration of OFWs into an active promoter of “international labour migration as a growth strategy, especially of the higher-skilled, knowledge-based workers.”[43] This has resulted to the onset of the exodus from the country of a very substantial number of professionals, particularly nurses and doctors. As such, the country has long been suffering from the so-called brain drain phenomenon in the medical field.

But this should not come as a surprise because even the Migration for Employment Recommendation No. 86 (Revised), 1949[44] advocates for a flexible labour-export policy, a consequence of the current global economic order.

The wide gap between the present Philippine labour migration policy, even at least on the promotion and protection of the rights and welfare of OFWs, and the enforcement/implementation thereof is still evident up to this day. The country may have already gone beyond the paradigm exemplified by the reprehensible remark of Corazon Aquino’s foreign affairs secretary, Raul Manglapus, in the early 1990s on the many cases of rape against Filipina domestic helpers in the Middle East—“If rape were inevitable, one should relax and enjoy it.” But the Philippine government has consistently shown its failure to accord sufficient and necessary protection to OFWs contrary to its rights and welfare policies—from illegal recruitment to unjust exaction of government fees, from inhumane conditions of work to exploitative terms of employment, from arbitrary prosecution/persecution of OFWs in destination countries to delayed and prolonged repatriation in needed instances.

They[45] are heroes. They should be oppressed and exploited. This historical dictum is now applied in the Philippine labour migration policy.

References

Battistella, Graziano, Philippine Labor Migration: Impact and Policy, Quezon City, 1992.

Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM), Hong Kong SAR, China, 2010, pp. 5, 7, 9, 23, 95.

Go, Stella, Remittances and International Labour Migration: Impact on the Philippines, Philippine Migration Network, De La Salle University, Manila, 2002.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: Articles 1(2), 25(1)(a)(b).

Migration for Employment Convention (Revised), 1949 (C. 97).

Migration for Employment Recommendation No. 86 (Revised), 1949: 4(1).

Migrant Workers Recommendation No. 151 (1975): I(2)(a)(b)(c)(d)(e)(f)(g)(h)(i).

Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143)

Multilateral Framework on Labour Migration (Principle 15).

Overseas Filipinos’ Remittances, Bangko Sentral ng Pilipinas (Central Bank of the Philippines), http://www.bsp.gov.ph/statistics/keystat/ofw.htm, accessed on April 12, 2012.

Remo, Michelle V., OFW remittances grew by 7.2% to $20.1-B in 2011 – BSP, February 15, 2012, http://business.inquirer.net/44695/ofw-remittances-grew-by-7-2-to-20-1-b-in-2011-bsp, accessed on April 12, 2012.

Republic Act No. 8042, Migrant Workers and Overseas Filipinos Act of 1995.

Republic Act No. 10022, An Act Amending Republic Act No. 8042 Otherwise Known As The Migrant Workers and Overseas Filipinos Act of 1995, As Amended, Further Improving the Standard of Protection and Promotion of the Welfare of Migrant Workers, Their families and Overseas Filipinos in Distress, and for other purposes.

Stock Estimates of Overseas Filipinos, as of December 2010, Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA), http://www.poea.gov.ph/stats/Stock%20Estmate%202010.pdf, accessed on April 12, 2012.

World Migration Report 2010, International Organization for Migration, Geneva, 2010, p. 167.


[1]  Pinoy is the short term of Pilipino, the Filipino language word for the English term Filipino, who is a national of the Philippines.

[2] Overseas Filipinos’ Remittances, Bangko Sentral ng Pilipinas (Central Bank of the Philippines), http://www.bsp.gov.ph/statistics/keystat/ofw.htm, accessed on April 12, 2012. The Philippines is the 4th top remittance-receiving country in 2010 in terms of actual amount of money remittances, after India, China and Mexico, according to the Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM).

[3] Remo, Michelle V., OFW remittances grew by 7.2% to $20.1-B in 2011 – BSP, February 15, 2012, http://business.inquirer.net/44695/ofw-remittances-grew-by-7-2-to-20-1-b-in-2011-bsp, accessed on April 12, 2012.

[4] Stock Estimates of Overseas Filipinos, as of December 2009, Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA), http://www.poea.gov.ph/stats/Stock%20Estmate%202010.pdf, accessed on April 12, 2012.

[5] Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM), Hong Kong SAR, China, 2010, p. 5.

[6] Ibid, p. 7.

[7] Id., p. 23.

[8] Id., p. 23.

[9] World Migration Report 2010, International Organization for Migration, Geneva, 2010, p. 167.

[10] This includes the following countries and subregions: Australia, New Zealand, Melanesia, (Fiji, New Caledonia, Papua New Guinea, Solomon Islands and Vanuatu), Micronesia (Guam, Kiribati, Marshall Islands, Nauru, Northern Mariana Islands, Palau), and Polynesia (American Samoa, Cook Islands, French Polynesia, Niue, Pitcairn, Samoa, Tokelau, Tonga, Tuvalu, and Wallis and Futuna Islands.)

[11] Global Migration, Facts and Figures 2010, p. 95.

[12] World Migration Report 2010, p. 167.

[13] Global Migration, Facts and Figures 2010, p. 9.

[14] Battistella, Graziano, Philippine Labor Migration: Impact and Policy, Quezon City, 1992.

[15] Ibid.

[16] RA 8042 was enacted by Philippine Congress on June 7, 1995.

[17] Just before Contemplacion’s execution, two Filipino witnesses claimed that the child’s father framed Contemplacion for the murders. They said that the father killed Maga in rage after finding his son to have accidentally drowned, as the son was an epileptic who allegedly had an epilepsy attack while in the bath tub and Maga was not aware thereof. The Singaporean court, however, rejected their testimony.

[18] RA 8042, preliminary clause.

[19] RA 8042, Section 2(a), Declaration of Policies.

[20] RA 8042, Section 2(b), Declaration of Policies.

[21] RA 8042, Section 2(c), Declaration of Policies.

[22] RA 8042, Section 2(d), Declaration of Policies.

[23] RA 8042, Section 2(e), Declaration of Policies.

[24] RA 8042, Section 2(f), Declaration of Policies.

[25] RA 8042, Section 2(h), Declaration of Policies.

[26] RA 8042, Section 2(i), Declaration of Policies.

[27] Italics supplied.

[28] RA 8042, Section 2(c), Declaration of Policies.

[29] Stock Estimates of Overseas Filipinos by the Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA): 1997 (6.97 million), 1998 (7.20 million), 1999 (7.29 million), 2000 (7.38 million), 2001 (7.41 million), 2002 (7.58 million), 2003 (7.76 million), 2004 (8.08 million), 2005 (7.92 million), 2006 (8.23 million), 2007 (8.72 million), 2008 (8.18 million), 2009 (8.57 million), 2010 (9.45 million).

[30] The percentages have been obtained by dividing the stock estimates of OFWs by the number of population of the Philippines in a particular year taken from the data gathered by the Philippine National Statistics Office (NSO): 2000 [(7,383,122 OFWs / 76,504,077 country population (CP)], 2007 (8,726,520 OFWs / 88,574,614 CP), and 2010 (9,452,984 OFWs / 92,337,852 CP).

[31] RA 8042, Section 6(m)(2): Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another.

[32] RA 8042, Section 6(m)(2): Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

[33] RA 8042, Section 7(b): The penalty of life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00 shall be imposed if illegal recruitment constitutes economic sabotage. As such, posting of a bail bond by the accused is not allowed as a general rule.

[34] RA 8042, Section 4: The Philippine government recognizes any of the following as guarantee on the part of the destination country for the protection of the rights of OFWs: (a) It has existing labour and social laws that protect migrant workers’ rights; (b) It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; (c) It has concluded a bilateral agreement or arrangement with the Philippines protecting the rights of OFWs; and (d) It is taking positive, concrete measures to protect the rights of migrant workers.

[35] RA 8042, Section 14: Information dissemination on labour and employment conditions, migration realities and other facts to prevent illegal recruitment, fraud, and exploitation or abuse of OFWs.

[36] RA 8042, Section 15: Free repatriation of OFWs in cases of termination of employment, death, war, epidemic, disasters or calamities, natural or man-made, and other similar events.

[37] RA 8042, Section 22: The Philippine Department of Foreign Affairs is mandated to undertake initiatives such as promotions, acceptance or adherence of destination countries to multilateral convention, declaration or resolutions pertaining to the protection of migrant workers’ rights. It is also mandated to make an assessment of rights and avenues of redress under international and regional human rights systems that are available to OFWs who are victims of abuse and violation and, as far as practicable, pursue the same on behalf of the victim it is legally impossible to file individual complaints.

[38] RA 8042, Section 23: Role of Government Agencies. – The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and, as far as applicable, all overseas Filipinos: (a) Department of Foreign Affairs – The Department, through its home office or foreign posts, shall take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos; (b) Department of Labor and Employment – The Department of Labor and Employment shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos including the grant of legal assistance and the referral to proper medical centers or hospitals: (b.1) Philippine Overseas Employment Administration – Subject to deregulation and phase-out as provided under Secs. 29 and 30 herein, the Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. (b.2) Overseas Workers Welfare Administration – The Welfare officer or in his absence, the coordinating officer shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or by their principals. In the performance of this function, he shall make representation and may call on the agencies or entities concerned to conferences or conciliation meetings for the purpose of settling the complaints or problems brought to his attention.

[39] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 1(2).

[40] RA 8042, VII. DEREGULATION AND PHASE-OUT,  Section 29. Comprehensive Deregulation Plan on Recruitment Activities. – Pursuant to a progressive policy of deregulation whereby the migration of workers becomes strictly a matter between the worker and his foreign employer, the DOLE, within one (1) year from the effectivity of this Act, is hereby mandated to formulate a five-year comprehensive deregulation plan on recruitment activities taking into account labor market trends, economic conditions of the country and emerging circumstances which may affect the welfare of migrant workers. Section 30. Gradual Phase-out of Regulatory Functions. – Within a period of five (5) years from the effectivity of this Act, the DOLE shall phase-out the regulatory functions of the POEA pursuant to the objectives of deregulation.

[41] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 25(1). Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and: (a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms; (b) Other terms of employment, that is to say, minimum age of employment, restriction on work and any other matters which, according to national law and practice, are considered a term of employment.

[42] Migrant Workers Recommendation No. 151 (1975), I. Equality of Opportunity and Treatment. (2) Migrant workers and members of their families lawfully within the territory of a Member should enjoy effective equality of opportunity and treatment with nationals of the Member concerned in respect of –

(a) access to vocational guidance and placement services;

(b) access to vocational training and employment of their own choice on the basis of individual suitability for such training or employment, account being taken of qualifications acquired outside the territory of and in the country of employment;

(c) advancement in accordance with their individual character, experience, ability and diligence;

(d) security of employment, the provision of alternative employment, relief work and retraining;

(e) remuneration for work of equal value;

(f) conditions of work, including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment;

(g) membership of trade unions, exercise of trade union rights and eligibility for office in trade unions and in labour-management relations bodies, including bodies representing workers in undertakings;

(h) rights of full membership in any form of co-operative;

(i) conditions of life, including housing and the benefits of social services and educational and health facilities.

[43] Go, Stella, Remittances and International Labour Migration: Impact on the Philippines, Philippine Migration Network, De La Salle University, Manila, 2002.

[44] Migration for Employment Recommendation No. 86 (Revised), 1949, 4(1) It should be the general policy of Members to develop and utilise all possibilities of employment and for this purpose to facilitate the international distribution of manpower and in particular the movement of manpower from countries which have a surplus of manpower to those countries that have a deficiency.

[45] This refers to the overseas Filipino workers.

(Para kay Adjani Guerrero Arumpac)

If I go blind, I will follow you
by the sound of your voice alone,
in your throat there is a sound
more golden and unique among all things.

If I go deaf, my entire being
will converse with your eyes alone,
in your every look I will conjure
all the words you want to say.

If I go deaf and blind and there’s nothing more
in the world for me to see,
I will follow your scent if that’s all that’s left,
I will let my nose do all my loving.

Even if you hide, the wind will deliver to me
your every gesture that overflows with poetry.
In the dried grass I will trace your footprints
like perfume that someone has spilled.

Without perfume or radiance or voice
to whom I can pledge my love
your very presence is enough to make me feel
you will yet draw near.

I may go blind but only come close
to the chords of my heart full of longing,
I know you by your footfall, my love,
and I am filled with so much poetry.

(Translated into English by Eric Gamalinda)

Satirical writer Thomas Carlyle once wrote, “The present is the living sum-total of the whole past.” We need not examine Australia’s entire past to see how its government currently addresses, or to be politically correct, evades and ducks into containment, the issue of treatment and settlement of refugees arriving in its territory by boat.

A look at what happened ten years ago in its waters near Christmas Island is sufficient for us to comprehend the things that did not happen there, and how such contemptible omissions continue to mould the existing Australian policy on the ‘boat people.’

A five-day standoff ensued from August 26 to 30, 2001 between the Australian government and Captain Arne Rinnan of the MV Tampa, a Norwegian cargo ship which rescued 438 Afghan refugees from a 20-metre wooden Indonesian fishing boat stranded in the international waters about 140 km north of Christmas Island. Australian authorities themselves sounded the calls for assistance; MV Tampa simply responded. It was directed to disembark the refugees to the port of Merak in Java, Indonesia, about 12 hours away from the rescue site. Christmas Island was only two hours closer. The refugees rightly demanded from Rinnan that they be taken to Australia, not to Indonesia where they sailed from. Authorities, however, refused entry to its territorial waters, and threatened to prosecute Rinnan as a people smuggler if he dared to do so.

Rinnan patiently awaited Australia’s compassion for days on the boundary of its territorial waters near Christmas Island, as there was a ‘mass medical crisis and that medical attention was urgently required.’ The wait was in vain. On August 29, MV Tampa entered Australia’s territorial waters. The response was a deployment of its special forces—the Special Air Service Regiment—who boarded the vessel and ordered it to move back to international waters. Rinnan aptly refused and MV Tampa anchored four nautical miles off Christmas Island. After the Senate rejected Howard’s oppressive Border Protection Bill the following day, Australia hurriedly excised Christmas Island and other coastal islands from its migration zone to prevent asylum seekers who failed to reach the mainland from applying for refugee status. The Pacific Solution was conceived, transporting asylum seekers to detention camps in Manus Island in Papua New Guinea and on the tiny island nation of Nauru, where the MV Tampa refugees were eventually shipped and their status processed.

Those facts were clear then, as they are now in the Malaysia Solution—Australia’s latest refugee policy to transport its first 800 asylum seekers, including unaccompanied children, arriving by boat to Malaysia, a non-signatory to the Convention on Refugees and has a dismal record in refugee protection. Australia in turn will provide permanent homes to 4,000 Burmese refugees from Malaysia over a period of four years. The arrival of another boat carrying 62 asylum seekers last August 12 brings the total to 269 arbitrarily detained ‘boat people’ in Australia.

The Tampa affair was characterised by a great crime of omission—an intentional evasion of its earnest duty as a civilised and enlightened nation to comply with its international obligation to assist refugees. The Malaysia Solution becomes an aggravating circumstance to Australia’s notoriety, for what on Poseidon’s name is the wisdom behind sending away 800 and getting 4,000 refugees in return? Acquiring such a huge number clearly shows Australia’s capacity to take more refugees than those that arrive here by boat.

It is claimed that the Tampa affair had occurred to frustrate, and the Pacific and Malaysia Solutions were devised against, people smuggling. But certainly, such a reprehensible act and inhumane policies work heavily against the proper treatment and settlement of asylum seekers arriving by boat. As a testament to its hypocrisy, Australia shirks from its obligation to its few ‘boat people’ by arranging to send them away to ‘dissuade’ people smugglers and then gather numerous refugees from Malaysia to proclaim that it is a nation that bears a torch for refugee protection.

The problem lies there. Australia’s policymakers have to recognise two things: that Australia is an acknowledged part of the regime of asylum nations and that the policy should be geared towards the humane treatment of refugees on its shores. Asylum seekers arriving by boat have to be accorded the heavy presumption of being refugees, who are as such as defined under the Convention on Refugees whether their journey has been caused by people smugglers or not. A myopic policy hooked callously against people smugglers is weighing down on the refugees, in serious violation of their right to liberty and security.

The problem is not the people smugglers. It is how Australia responds to its role as an asylum nation. Australia is not a paradise of fools where asylum seekers set sail to land. It should not act as one.

Samuel P. Huntington chose not to heed Chomsky’s bold verdict in the late 1970s that, “If a rational Fascist dictatorship were to exist, then it would choose the American system” (Chomsky 1979). Huntington published his influential study, The Third Wave: Democratization in the Late Twentieth Century, where he openly professes that, “The United States is the premier democratic country of the modern world” (Huntington 1991) and pursues in his article ‘Democracy’s Third Wave’ that, “During the 1970s and 1980s the United States was a major promoter of democratization,” and “Democratic movements around the world have been inspired by and have borrowed from the American example” (Huntington 1991).

Though often accused of ideological ethnocentric bias, his discourse that the diffusion of democracy in the world comes in waves has attracted significant attention from scholars. Huntington’s (1991) study shows that the first wave of democratization started in the 1820s and lasted until 1926 with 29 democratic countries. The first “reverse wave” begun in 1922 in Mussolini’s Italy until 1942 that only 12 democratic states were left. After World War II and by the process of decolonisation, the second wave took off that lasted in 1962 with 36 democratic regimes. The years 1960-1975 saw the second reverse wave reducing the number to 30. By 1974, transitions to democracy gained strength in the current third wave that brought another 30 states to the figure scale until 1990, the last year of his observation.

Huntington (1991) offers us the causes of the third wave of democratization from 1974-1990: the deepening legitimacy problems of authoritarian regimes; the global economic growth of the 1960s; the shift in the Catholic Church as opponent of authoritarianism; the external forces from policy changes in the West; and the “snowballing” effect providing models for democratization.

But what is the impetus for the third wave of democratisation after 1990? Are the driving forces submitted by Huntington the same foundations for democratization after that period? What kind of democracy has been created through democratization? What have been the strengths and weaknesses of the states that made transitions to democracy during the third wave?

Impetus for Democracy’s Third Wave Post-1990

Leftwich (1993) advances four central influences to the transitions to democratization in the current third wave: “the experience of structural adjustment lending,” “the resurgence of neo-liberalism in the West,” the collapse of communist regimes,” and “the rise of pro-democracy movements in the developing world and elsewhere.” Diamond (1996) forwards the “collapse of Soviet and East European communism and the diffusion of the third wave to sub-Saharan Africa” as the reasons; the latter is elucidated by Katulondi (2005) as due to the general economic misery perpetuated by corrupt dictatorships across sub-Saharan Africa during the late 1980s and the demands following the end of the cold war.

The harsh economic effects of the measures imposed by lending institutions—IMF, World Bank and Western industrialized states—in exchange for the loans during the 1980s have resulted to struggles and massive protests by the poor in the recipient countries. As privatisation of social services and deregulation of the market became the only model for lending institutions, the political nature of structural adjustment emerged, creating conditions that posed danger to the liberalisation of the economy.

Thus, the emergence of the conflicting/paradoxical concept of “good governance” in 1989 (Leftwich 1993)—the exercise of political power to manage a country’s resources and affairs—combining the political principles of democratization (rule of law, participatory and representative form of government, separation of powers of state institutions, accountability of public officials, independent judicial system, strong and pluralistic civil society, respect for human rights, transparency in state affairs) together with the previous model pursuing economic liberalisation: an open, market-based economy (AusAID 2000), thinking that “the ability to design and implement adjustment programmes was largely a consequence of political commitment, capacity and skill, as well as bureaucratic competence, independence and probity” (Leftwich 1993). It asserts the normative and functional approaches of the political dimensions of neoliberalism: the importance of individual rights that are claimed to propel market forces and growth and the alleged necessity of a non-interventionist position—in contrast to excessive concentration of political power—of states in the economy (Leftwich 1993). But as prudently observed by Armory & Schamis (2005), “The literature on democratization has been prompt to identify the unfolding of new democracies’ tendencies toward concentrations of executive power, yet has been less keen to acknowledge similar phenomena in benchmark democracies.”

As Eastern European communist states collapsed (though the politically correct term is the demise of Marxist-revisionist regimes), it provided renewed vitality and pomposity to the West to propagate the claimed ‘virtues’ of political liberalisation through democratization as a condition sine qua non for economic growth, or in simple terms, that “good governance is an essential precondition for the claimed sustainable development caused by a market-based economy” (AusAID 2000). The alleged stimulating effects of pro-democracy movements in the 1980s have produced democratization in several countries in Africa, but can be seen as largely due to the miserable internal political and economic conditions of the said states (Katulondi 2005).

As expected, due to “spreading disillusion with the superficial, electoralist democratization of the post-1990 period” (Katulondi 2005)—a product of the foregoing impetus—such itself has become the crucial factor for the demand by the African people for a democratic system that captures their interests and not of the political elites.

Though a peek in the preceding paragraph may have already been provided, an inquiry is still of principal significance: are the countries affected by the impetus for the third wave of democratization embodying the principles of liberal democracy (Doorenspleet 2000) or at least what Dahl (1971) calls “polyarchy”—a concept of modern democracy (Dahl 1992) whereby the three conditions of competition, inclusiveness and civil liberties are sufficiently met—which the model of ‘good governance’ promises or at least undertakes to achieve?

Kinds of Democracy, Characteristics and Features

“Democracy, as we know it, is liberal democracy, a system based on a series of institutional arrangements conducive to the creation and preservation of representative government” (Armory & Schamis 2005). These arrangements take the form of separation of powers, forwarding the doctrine that “the rights of citizens are best protected by a constitutional state whose power is limited—that is, legally circumscribed and divided” (Armory & Schamis 2005).

Doorenspleet (2000) observes that Huntington’s classification of democracy is problematic, as it focuses primarily on Dahl’s element of competition, or the establishment of institutional opportunity mechanisms for contestation in leadership, and ignores the factor of the inclusiveness disparity in the allowed participation of the people in the elections. As such, Doorenspleet (2000) sees the need for reclassification of democratic systems into two kinds: a liberal democracy possessing “meaningful and extensive competition, sufficiently inclusive suffrage in national elections, and a high level of civil and political liberties,” and a minimal democracy which has both the conditions of competition and inclusiveness but absent of a high degree of respect for civil and political liberties. States lacking in any or both of the first two foundations are authoritarian regimes.

Diamond (1996) terms the minimalist conceptions of democracy as electoral democracy—in contrast to liberal democracy—that recognizes the requisite of basic degree of civil freedom as the virtue of participation. But again, despite such recognition, the same has not been ordinarily considered in the measurement of democracy. In the same extent that Dahl (1971) categorizes inclusive states lacking in meaningful competition as inclusive hegemonies, Diamond (1996) forwards the concept of psedodemocracies which fail to provide a fair avenue of contestation.

O’Donnell (1994) makes a distinction between his delegative democracy and a representative one, asserting that “it is more democratic but less liberal” than the latter. According to him, the former rests on the principle that whoever wins the presidential election is entitled to govern as the elected leader deems fit, limited only by the prevailing power relations and the term of office; it is a strong majoritarian and individualistic regime, an almost complete delegation by the electorate of how the country shall be governed by their leader and his or her clique. Accountability to state institutions and the electorate is seen only as an obstruction to the exercise of the president’s duties. Though its strength comes from the full trust given by the majority of the people, who see in their elected president a personification of a total leader tasked to readily remedy the ills of their nation beyond parties and interests, this almost messianic delegation possesses the great danger of the leader concentrating all state powers in his or her office for an authoritarian rule. A representative democracy, on the other hand, “entails accountability” (O’Donnel 1994), where the representative leaders are made accountable for their actions, either vertically through the power of the ballot or horizontally by other state branches and institutions. Though power struggles and compromises beset this kind, such a system provides checks and balance that may limit, if not avoid, the possibility of mistakes and abuse in laying down policies and may ensue mantles of protection against executive abuses.

“As in O’Donnell’s brown areas, Larry Diamond’s multiple types of ambiguous regimes, and Zakaria’s illiberal democracy, these polities both fail to protect individuals’ basic rights and they encourage a rampant centralization of power, a lack of executive accountability, and other forms of unfettered majoritarianism” (Armory & Schamis 2005). Democracy as a political form is asserted to distinguish from such political forms as monarchy and dictatorship. “Within that rubric there exist different systems of democracy: advanced liberal democracy, parliamentary democracy, electoral democracy, socialist democracy” (Ong 2001; see Pailey 2002). Such an approach has the virtue of “disentangl[ing] democratic systems from the actual distribution of democratic values—equality in fundamental rights—that not all people even in advanced liberal democracy enjoy” (Pailey 2002), much less in the so-called bourgeois democracies. As a set of process unevenly realized over time, the concept of the “civil component of citizenship,” as in the justice system, is seen as ineffectual (Holston & Calderia 1998; see Pailey 2002) to rely on for the respect of fundamental freedoms, resulting to a “disjunctive democracy” (Holston & Calderia 1998; see Pailey 2002) which reveals that notions of actual realization of the significance of citizenship is hardly homogeneous in character. The concept of “dialogic democracy” is proposed to provide space to diverse groups “to express identity, community, and social aspiration in the service of imagining and constructing alternative social universes” (Coombe 1998; see see Pailey 2002).

It is interesting to see the results in the Freedom House’s Freedom in the World 2011 Survey which rates 194 countries during 2010 into three categories: free (87 countries or 45%), partly free (60 states or 31%), and not free (47 regimes or 24%). A free country has a “broad scope for open political competition, a climate for respect for civil liberties, significant independent civic life, and independent media.

Conclusion

But what really is the rationale—manifest and underpinning—behind the painstaking and systematic push for democratization by Western industrialized states and lending institutions? Is it out of sympathy so that others may breathe the air of freedom and realize their fundamental rights?

We may be naive if that is the conception. Through democratization and democracy, the imposition of neo-liberal economic policies is empirically certain, which is generally unlikely in authoritarian regimes, as the former inherently in modern history advances unbridled liberalisation as ‘played’ by the market forces. The evidence is real and overwhelming, though often ignored by most scholars, that it is no longer needed to state that said scheme of things greatly benefits capitalist and industrialized countries while developing countries continue to remain stagnant as such.

Chomsky’s striking thoughts sum it up: “Personally, I’m in favour of democracy, which means that the central institutions of society have to be under popular control. Now, under capitalism, we can’t have democracy by definition. Capitalism is a system in which the central institutions of society are in principle under autocratic control. A corporation or an industry is, in political terms, fascist; it has tight control at the top and strict obedience has to be established at every level—there is little bargaining, a little give and take, but the line of authority is perfectly straightforward. Until the major institutions of society are under the popular control of participants and communities, it’s pointless to talk about democracy.”

References

Armory, Ariel C. &  Hector E. Schamis, 2005. ‘Babel in Democratization Studies’, Journal of Democracy 16(4): 116.

Chomsky, Noam, 1979. Language and Responsibility. New York: Pantheon Books.

Dahl, Robert A., 1971. Polyarchy, Participation and Opposition. New Haven: Yale University Press: 7.

Dahl, Robert A., 1992. ‘Why Free Markets Are Not Enough’, Journal of Democracy 3(3): 85.

Diamond, Larry J., 1996. ‘Is the Third Wave Over?’, Journal of Democracy 7(3): 21, 25-26.

Doorenspleet, Renske, 2000. ‘Reassessing the Three Waves of Democratization’, World Politics 52(3): 387, 389.

Huntington, Samuel P., 1991. ‘Democracy’s Third Wave’, Journal of Democracy 2(2): 15.

Huntington, Samuel P., 1991. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press.

Katulondi. Kabasubaba, June 14, 2005. ‘Africa’s garden of democracy’, http://www.opendemocracy.net.

Leftwich, Adrian, 1993. ‘Governance, democracy and development in the Third World’, Third World Quarterly 14(3): 606-610.

O’Donnel, Guillermo A., 1994. ‘Delegative Democracy’, Journal of Democracy 5(1): 59, 61-62.

Pailey, Julia, 2002. ‘Toward an Anthropology of Democracy’, Annual review of Anthropology 31: 471, 479, 487.

_______________, 2000. Good Governance, Guiding principles for implementation. Canberra: Australian Agency for International Development (AusAID): 3.

_______________, 2011. ‘Freedom in the World 2011 Survey’, http://www.freedomhouse.org.

On October 30, 2009, this counsel, together with clients KABATAAN Party-List Rep. Raymond Palatino and leaders of the College Editors Guild of the Philippines (CEGP), National Union of Students of the Philippines (NUSP), Student Christian Movement of the Philippines (SCMP), Anakbayan, Kabataang Artista Para Sa Tunay Na Kalayaan (Karatula) and first-time registrants and voters, sought redress from the Supreme Court to extend the voter’s registration until January 9, 2010, as mandated by the Voter’s Registration Act of 1996, through the filing of an Urgent Petition for Certiorari and Mandamus with application for preliminary mandatory injunction.

The said petition is brought to the Supreme Court because the Commission on Elections (COMELEC) miserably failed to accommodate around 4 to 5 million first-time registrants and voters in its October 31, 2009 deadline.

The prayer for the declaration of COMELEC’s Resolution No. 8585, which set the October 31, 2009 deadline, as null and void is anchored on two (2) crucial grounds, thus:

First, it is unconstitutional as it is a manifest usurpation of the legislative power of Congress.

I.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 IS UNCONSTITUTIONAL AS THE SAME AMENDED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 ON THE SYSTEM OF CONTINUING REGISTRATION OF VOTERS IN USURPATION OF THE LEGISLATIVE POWER OF CONGRESS.

Second, it is an indubitable violation of the system of continuing registration of voters under The Voter’s Registration Act of 1996 stating in clear and categorical terms that the personal filing of application of registration of voters shall be conducted daily but prohibited only during one hundred twenty (120) days before a regular election and ninety (90) days before a special election, and the assailed Resolution causes the disenfranchisement of millions of first-time youth registrants and voters who cannot be accommodated by COMELEC as of the October 31, 2009 deadline for purposes of the May 10, 2010 elections.

II.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 FIXING THE DEADLINE FOR THE FILING OF APPLICATION OF REGISTRATION OF VOTERS ON OCTOBER 31, 2009 VIOLATED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 PRESCRIBING THAT THE FILING OF APPLICATION OF REGISTRATION OF VOTERS SHALL BE CONDUCTED DAILY BUT PROHIBITED DURING ONE HUNDRED TWENTY (120) DAYS BEFORE A REGULAR ELECTION, AS OCTOBER 31, 2009 IS SEVENTY (70) DAYS SHORT OF THAT PRESCRIBED BY SAID STATUTE, THEREBY CAUSING THE DISENFRANCHISEMENT OF MILLIONS OF FIRST-TIME REGISTRANTS AND VOTERS THAT CANNOT BE ACCOMMODATED BY RESPONDENT COMELEC AS OF OCTOBER 31, 2009 FOR PURPOSES OF THE MAY 10, 2010 ELECTIONS.

The start of the 120-day prohibitive period before the May 10, 2010 elections is on January 10, 2010. Thus, the deadline of application of registration of voters should be on January 9, 2010, not on October 31, 2009 which is seventy (70) days earlier than is prescribed by the statute.

Click the link below to see the full text of our petition, thanks:

http://kabataanpartylist.com/blog/urgent-petition-for-certiorari-and-mandamus-with-application-for-pleminary-mandatory-injunction/

And then the whole of November 2009 went by. This counsel has been updated of the significant developments of our petition in the Supreme Court. Thanks to good friends.

And on December 15, 2009, ten days before Christmas, the Supreme Court en banc promulgated its decision on our petition. Lo and behold, the Supreme Court en banc unanimously voted to grant our petition.

The dispositive portion of the Supreme Court decision reads:

“WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

(sgd)
CONCHITA CARPIO MORALES
Associate Justice”

Click the link below to see the full text of the Supreme Court decision on our petition, KABATAAN Party-List v. COMELEC [G.R. No 189868, December 15, 2009], thanks:

http://www.scribd.com/doc/24123228/GR189868-Full-Text-of-Supreme-Court-decision-on-voter-registration

That’s it, we have won. The youth have won.

Below is the link of the full text of the National Union of Peoples’ Lawyers’ (NUPL) petition in the Supreme Court to declare Proclamation No. 1959 as unconstitutional and void.

On December 4, 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao, except in areas controlled by the Moro Islamic Liberation Front.

On December 7, 2009, NUPL Secretary General Neri Javier Colmenares, Bayan Muna Rep. Satur C. Ocampo, Gabriela Women’s Party Rep. Liza L. Maza, Atty. Julius Garcia Matibag, Atty. Jobert Ilarde Pahilga, Atty. Ephraim B. Cortez, Atty. Voltaire B. Africa, Bagong Alyansang Makabayan (Bayan) Secretary General Renato M. Reyes Jr., and Anthony Ian Cruz filed a

‘Very Urgent Petition for Certiorari and Prohibition with very urgent application for temporary restraining order and/or preliminary injunction’

in the Supreme Court against President Gloria Macapagal Arroyo, Executive Secretary Eduardo R. Ermita, AFP Chief of Staff Victor S. Ibrado, PNP Director General Jesus A. Verzosa, DOJ Secretary Agnes VST Devanadera, and AFP Eastern Mindanao Command Chief Lt. Gen. Raymundo B. Ferrer.

Click the link below, thanks.

http://tonyocruz.com/?p=2719

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