A scholarly legal article that I came across a few years ago was the one written by American law professor W. Bradlet Wendel of the Washington and Lee University School of Law, entitled “Nonlegal Regulation of the Legal Profession: Social Norms in Professional Communities”.
Inter alia, the article discussed the concepts of social norms, honor and shame, civic republicanism, and community-based sanctions as “nonlegal modes of regulation of the legal profession”.
The article must be seriously read and studied by legal ethics experts and law educators, especially those engaged in the mandatory continuing legal education programs of the active members of the Bar, as part of the strategic efforts of the Bar, the Bench, the Government, and the Community to instill in the minds of legal practitioners the basic virtues of decency, honesty, hard work, diligence, and responsibility as selfless and dedicated legal advocates and officers of the court whose fundamental duty is to promote the rule of law and preserve the sanctity of the administration of justice.
The ideas expressed in the article might be relevant to other jurisdictions, for which reason I wish to digest hereinbelow the salient parts thereof, for legal research purposes of jurists and policymakers visiting this blog.
Prof. W. Bradley Wendel is an Assistant Professor at the Washington and Lee University School of Law. He finished his LL.M. in 1998 at the Columbia Law School, his J.D. in 1994 at the Duke Law School, and his B.A. in 1991 at the Rice University.
May I reproduce below the salient parts of his article:
1. What should be done about lawyers who persist in violating ethical norms that are not embodied in positive disciplinary rules? One response has been to propose, experiment, amend, tinker, draft, comment, and redraft, in an attempt to codify the standard of conduct observed to be flouted widely by the practicing bar. Bar associations and courts are seemingly engaged in a never-ending process of promulgating new codes of professional conduct or rules of procedure under which lawyers may be sanctioned for such conduct as bringing frivolous lawsuits, abusing the discovery process, sleeping with their clients, or engaging in discrimination based on race or sex. Critics fault the project of regulating lawyers through legalistic rules for being predominantly motivated by the organized bar’s protectionism or other self-interested reasons; for fostering a minimalist or “Holmesian bad man” interpretive stance toward moral questions; for slighting the importance of non-legal considerations, such as religious commitments, in professional morality; for overlooking the importance of dispositions, character, or other internalized aspects of ethical norms; or for failing to account for ethical pluralism, justified disagreement, or the complexity of moral life.
2. A fairly stable consensus now seems to exist in the legal ethics literature that rules of “ethics,” stated in the form of enforceable penal codes, have limited utility to remedy many of the observed problems with the professional conduct of lawyers.
3. One alternative approach, therefore, has been for lawyers or judges to produce an aspirational code of conduct—not the basis for judicially-enforced sanctions, but a statement of the highest ideals of the profession, toward which lawyers should aim. Unsurprisingly, commentators find fault in these proposals as well. Some ask whether virtue can be taught to lawyers or law students. Others pose a related question, namely, how exhortations to virtue can motivate lawyers in light of changing circumstances—for example, the much-observed (and frequently exaggerated) transformation of legal practice from a public-spirited profession to a business. These critics note the institutional forces that may militate against ethical behavior, such as intense competitive pressures created by decreasing client loyalty to a single law firm, inroads into the traditional domain of legal practice by accounting firms and other multidisciplinary practices, and the prevalent second-guessing by in-house legal personnel of decisions made by outside counsel; the willingness of clients to sue for malpractice, which causes lawyers to cover their proverbial behinds without regard to externalities; the bureaucratization of law practice, with teams of lawyers working under senior partners with a quasi-managerial role; the burgeoning docket of many state and federal courts, which reduces judicial oversight of lawyering behavior; and a “win-at-all-costs” mentality that causes supervising lawyers to look askance on subordinates’ ethical qualms. In the face of these powerful countervailing forces, an aspirational code of conduct, pitched in terms of virtue and the “highest ideals” of the legal profession, indeed seems to be a flimsy reed upon which to hang an argument for doing something against one’s self-interest. Finally, some commentators worry that judges might use professionalism or civility codes as a weapon against lawyers they dislike, on the pretext that the lawyers’ conduct is “unprofessional,” even though the codes are not intended to be a basis for sanctions.
4. One frequently encounters the claim that informal mechanisms of social control, exerted within the boundaries of a professional community, should be adequate to restrain obnoxious lawyers. One prominent legal ethicist has even urged that lawyers rediscover the nineteenth-century tradition of the gentleman as a polestar for understanding the obligations of their role. Others claim that reputational constraints ought to be sufficient, in many cases, to motivate lawyers not to violate important community norms. Once word gets out that Lawyer X is a jerk, the argument goes, opponents of Lawyer X will act to keep him in line, by refusing to extend routine courtesies and becoming uncooperative in scheduling and other administrative matters, and by practicing “by the book”—sending confirmation letters after every informal conversation, contesting minor procedural points, and otherwise being sticklers for detail where a lawyer with a better reputation might not be subjected to such pedantic quibbling. Eventually, this endless nit-picking will be costly to Lawyer X, either in terms of his professional self-esteem, or in purely economic terms. Clients may avoid Lawyer X, aware that the costs of a dispute or transaction involving that lawyer will be increased due to the lawyer’s obstreperousness in discovery, pretrial litigation, and negotiations. Judges, too, may look with suspicion upon Lawyer X’s arguments, and may be less willing to give credence to that lawyer’s interpretation of close questions of law or fact. Finally, the obnoxious lawyer may be denied access by his peers to referral networks and prestigious bar association positions which offer power, visibility, and professional development opportunities.
5. The concept of a community is pervasive in academic writing about the legal profession. A leading professional responsibility casebook observes that apart from the malpractice and professional discipline systems, preventing professional failures is largely the task of “internalized standards of professional conduct that are written in the hearts and minds of each lawyer and are reinforced by the monitoring and criticism of other lawyers.” Legal theorists, particularly those with an economic orientation, have endorsed the idea of controlling lawyers through informal community-based sanctions, which they refer to as reputational markets. Ronald Gilson and Robert Mnookin, for example, hypothesize that in some situations clients may prefer lawyers who are known to be cooperative, rather than unduly strategic or adversarial, in negotiation. Daniel Fischel, similarly, in the course of his controversial article proposing the abolition of the attorney-client privilege, observes that the economic function of lawyers is primarily to serve as reputational intermediaries for clients, thereby lowering transaction costs for honest parties. As a result, lawyers have an incentive to cultivate a reputation for honesty and trustworthiness, in order to maintain their value to clients as guarantors of good reputation. In a similar vein, legal ethicist William Simon argues that lawyers can attract clients by making their commitment to fair dealing credible to third parties; clients will come to value these “high commitment” lawyers as signals of their own trustworthiness, and a race to the bottom, where clients seek out the meanest, nastiest lawyer in town, can be avoided. Interestingly, the ABA’s Model Rules of Professional Conduct also contemplate some role for reputational markets in regulating lawyers, stating that in addition to taking guidance from the rules and interpretive commentary, “a lawyer is also guided by . . . the approbation of professional peers.” Finally, a few scholars of the legal profession have advanced an even stronger version of the reputational-markets argument, that informal sanctions are all that exist to restrain unethical behavior by lawyers, because of the difficulty that state disciplinary agencies have investigating and prosecuting claims.
6. The idea of using informal, community-based social control mechanisms to regulate the behavior of lawyers is related to another argument that has emerged in the legal ethics theory literature—namely, the claim that legal ethics is fundamentally a matter of professional judgment, not simply following the rules laid down. As David Luban and Michael Millemann argue, the essence of the lawyer’s work is exercising judgment on behalf of clients, and the essence of legal ethics is applying good moral judgment to one’s own professional activities. Anthony Kronman has, of course, also sought to restore the exercise of the Aristotelian virtue of practical wisdom to what he believes is its rightful place at the heart of legal education. Luban and Millemann recognize that the ideal of political fraternity and the commitment by lawyers to promoting the well-being of the public domain is an unlikely basis for a robust conception of professional ethics in the contemporary political climate. But they believe that it is nevertheless possible to teach a faculty of judgment, which consists of “identifying which [moral] principle is most important given the particularities of the situation.” This is not an anti-theoretical stance—it is always possible to critique one’s judgments with reference to higher-order principles—but a recognition that abstract principles are not self-applying.
7. Subsuming a particular case under universal principles, selecting one value among several competitors as the most important, and analogizing a present case to the past are all examples of exercising judgment. The paradigm of legal ethics as the exercise of judgment is related to the call for employing informal sanctions to regulate lawyers, because ethical judgments presuppose shared community standards. The community serves as a resource for making ethical decisions, by showing how ethical values are introduced in a process of explanation and justification for the actions of real people engaged in real life in all itscomplexity. Pure reason alone is insufficient to constrain judgment. Furthermore, without shared norms, ethical restraints on lawyers would be vulnerable to challenge as illegitimate, beingbased in something other than positive law or universal moral principles.
8. As a final illustration of the frequency with which concepts of community crop up in legal ethics discourse, consider the tendency of judges to appeal to the “lore” or unwritten normative standards of the legal profession, which are supposedly accessible to all lawyers. In the case of In re Snyder, the United States Supreme Court said that what would seem to be an undefined, practically meaningless phrase—“conduct unbecoming a member of the bar”—was not unconstitutionally vague if read in the context of the “lore of the profession.” Although at one point in the opinion the Court seemed to equate professional lore with the positive disciplinary codes promulgated by state bar associations, the Court also appeared to concede that the competing demands of zealously advocating one’s client’s cause and advancing the cause of justice must be resolved “in light of the traditional duties imposed on an attorney,” which are not neatly captured in the disciplinary codes. In another case, the Court conceded that tribunals are not constitutionally required to anchor a narrowing construction of standards for lawyer discipline to the state bar’s ethics rules:
9. Given the traditions of the legal profession and an attorney’s specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for conduct which all responsible attorneys would recognize as improper for a member of the profession. In other words, the Court argued that by belonging to a community and sharing in the practices of similarly situated professionals, lawyers become acquainted with professional norms that are not reducible to concise disciplinary codes.
10. For example, retailers are frequently willing to make accommodations for their customers even though not required by law, because they fear reputational injuries resulting from customer complaints. In industries in which the participants deal with one another on a repeat basis, a complex series of norms can be generated, making little or no reference to state-sponsored legal norms, as Lisa Bernstein’s investigation of the diamond and grain industries has revealed. It is the task of a model of social norms to explain how these community-based enforcement practices work, in the absence of coercive state authority.
11. The honor/shame model draws from the extensive scholarly literature on how certain small-scale, relatively homogeneous societies have, outside the domain of law, regulated their members. Although much of the study of rituals of social control through dishonor and shaming draws from the history, anthropology, or literary studies of communities remote in temporal and geographic space, such as the Classical or modern Mediterranean, medieval Iceland, or the antebellum South in the United States, advocates of the honor/shame model claim that many modern practices of social control would be familiar to students of these other cultures. Appropriating a Wittgensteinian metaphor, a proponent of the honor/shame model might argue that informal practices of norm elaboration and enforcement in contemporary professional communities are a language-game whose grammar overlaps to a considerable extent the grammar of language-games understood by members of traditional honor societies. By delving into the rich comparative historical and anthropological literature on honor and shame, we can better understand how various subcommunities in our modern society influence behavior among their members and preserve and transmit moral lessons throughout the community.
12. The second conceptual framework that has been brought to bear in understanding how communities control behavior in the absence of explicit legal sanctions is rational choice theory. Some law and economics scholars have begun to apply rational choice concepts to informal community norms that influence actors’ behavior, even in domains that are otherwise subject to extensive legal regulation. The insight of this scholarship is that informal customs and norms can be as important as legal sanctions when an actor is running through a cost/benefit analysis. People reckon community-based sanctions as costs that must be taken into account, or appeal to informal norms as signals of their reliability as contracting partners. These informal social norms either replace, supplement, or stand in tension with formal legal norms. Metaphorically speaking, this means that “law”—at least law-like constraints on behavior—can be made from the bottom up, as well as from the top down. Social norms are decentralized, in the sense of being created by all (or at least a significant subset of) community members, rather than being imposed on the community by a legislator or judge. Individual members of a business or professional community check one another’s behavior through a variety of sanctioning devices: “social norms, commercial custom, a concern for relationships, trust, honor and decency, or fear of nonlegal sanctions such as reputational damage or termination of a beneficial relationship.”
13. Legal theorists in several disciplines—most prominently in constitutional law—and scholars working in related fields have sought to revive the civic republican tradition in American law. For some legal ethicists, republicanism is a welcome counterweight to the pernicious individualism and selfishness they perceive at the heart of the dominant conception of lawyering. (And it is certainly opposed to the conception of rationality as self-interested utility maximization proposed by rational choice theorists.) Rather than directing lawyers merely to seek to advance their clients’ ends through any arguably legal means, civic republican ethics charges lawyers with the duty to ascertain the common good and attempt to harmonize their clients’ projects with social justice. Lawyers in this vision of the professional role are not amoral instruments, mouthpieces, or hired guns—instead, they are quasi-public officials who justifiably may assert limited moral authority over clients. This authority is legitimate because it is exercised with reference to a knowable conception of public good and civic virtue, one which clients would rationally endorse. Lawyers, on this account, are independent both of the state and of their clients’ partisan interests; they serve as a repository of secular moral values, much as Durkheim had imagined.
14. Many communitarians tend to idealize small-scale, homogeneous associations, without mentioning some of the injustices that can be created by this form of regulation. It is true that some communities foster salutary values, and manage to control harmful behavior efficiently, but it is equally true that other communities have fostered the worst kind of injustices, such as exclusion, discrimination, and marginalization of disfavored subcommunities. To put it simply, there is no guarantee in the concept of a community that the community’s norms will be those that ethically ought to be endorsed. Unless informal social norms are kept in check by extra-community criticism, nothing prevents the community’s values from moving toward vice instead of virtue. In addition to the tendency of communities to relativize truth to power, to disable moral criticism of the community’s values, and to be applied in a discriminatory manner, informal social norms may also be criticized for their tendency to spawn multiple iterations of revenge-taking, which can spiral out of control into full-blown feuds. (In the domain of lawyering, this danger is familiar as the phenomenon of satellite litigation over sanctions motions.) Finally, there is the problem of applying social control schemes best fitted for employment in small, homogeneous groups to large-scale pluralistic groups like the community of practicing lawyers in a sizable city.
15. Because in the honor/shame model, social standing is established with reference to the norms and ideals of a community, one’s feeling of entitlement to respect and worth must be validated externally, by that community. Community approbation begins as a sentiment peculiar to an individual—a claim to honor—but this claim must be critically evaluated by others before honor can properly be said to belong to an individual. Honor in this model is an ascription, not a subjective personal quality, so it may be taken away by the actions of others, even though no actual change in the character of the dishonored person has occurred.
16. Each move and countermove in the language-game understood and spoken by members of an honor-governed society is directed not only at the challenger but at spectators—members of the community who will ultimately decide the issue of the relative status of the disputants. The community’s reaction to an event is the dispositive factor in determining whether the event is a wrong, justifying retaliation, or an occurrence of no account; accordingly, individuals in an honor-governed society are constantly attempting to divine public sentiment and influence the interpretation placed by the community on past events.
17. Although claims to honor must be confirmed by individuals other than the claimant, and shaming is a necessarily public act, it is important to recognize that the standards constructed by an honor society are not imposed coercively on properly socialized members of the community—these principles are internalized and become part of the set of value commitments of the individual. “In shame we fail against a standard or norms whose validity we accept.” Honorableness becomes part of the character of the agent, so that in acting, the agent acts because she is the kind of person who performs that kind of action, not because she is consciously worried about what other people will think.
18. In the internal self-regulatory practices of the legal profession, shaming rituals often take the form of “war stories,” gossip about lawyers who exhibit antisocial behavior and the subsequent retaliation by the lawyers who have been wronged. During my judicial clerkship, I spent each Friday at the Tanana Valley Bar Association lunch, an extraordinary gathering of characters from the Fairbanks, Alaska bar. The judge for whom I clerked had risen through the local bar to become a prominent Fairbanks lawyer, and eventually a federal appellate judge, and he wished to expose his protégées to what for him had been a valuable process of informal norm elaboration in a small-town bar. Perhaps none of us at the time thought of the bar lunch as a ritualized practice for transmitting ethical lessons (it was in some ways for us a chore, since the clerks were the inevitable butt of ribbing by the local lawyers), but that was exactly its function.
19. Sanctions recounted in these war stories included a refusal by an aggrieved lawyer to agree to a request for a continuance; in a later case against the same opponent, a motion with a quick turnaround time conveniently filed as the offending lawyer was about to take a vacation; exclusion from the referral network that tends to keep even relatively inexperienced lawyers busy with the cases rejected by others; withdrawal of customary courtesies not required by procedural rules, such as scheduling depositions by agreement rather than by serving subpoenas; and a rapidly disseminated reputation that the offending lawyer could not be trusted, leading other lawyers in town to be much more “by the book” in their relations with the offender, and therefore more expensive to deal with. Significantly, the conduct that would bring down such a penalty was exactly the sort of thing that proponents of ethical reform of the bar are constantly citing as examples of unethical practice: discovery abuse, such as obstreperousness in responding to interrogatories, refusal to cooperate in deposition scheduling, and abusive behavior toward witnesses and opposing counsel in depositions; refusal to agree to even reasonable requests for continuances; sandbagging by disclosing surprise witnesses or exhibits on the eve of trial; and most of all, going back on one’s promises. (These behaviors are often known by the moniker of “Rambo” tactics.) The informal penalties imposed by the community of lawyers, and recounted in endless stories told for the benefit of newcomers, were far more effective than any change in the rules of professional conduct, which depend for enforcement on overworked courts and disciplinary committees, and which may be skirted by careful lawyers.
20. An individual’s claim to honor must be validated by the community, and the sense of shame or dishonor felt by an individual must be confirmed by the reaction of others. Furthermore, there may be dissenters in any society, who refuse to adopt the prevailing social norms as their own. These dissenters cannot be said to have internalized the existing set of social norms, or if they have, they are able to violate the norms without creating undue cognitive dissonance. Dissenters can be shamed by the actions of their fellows, but they may not feel any psychological discomfort (which is frequently referred to as “guilt” to distinguish it from shame) as a result of their transgressions. Because internalization cannot account for external pressure applied by the community in the form of shaming practices, McAdams proposes unifying internalization accounts with those models that emphasize external sanctions. On his synthesized theory, norm internalization is only one of several norm-enforcement mechanisms that depend on the individual’s preference for esteem. A properly socialized individual (by the standards of the community) will be deterred from violating social norms by the prospect of feeling discomfort or guilt, while the community may be required to take more decisive action to impose shame sanctions on a dissenting member. These external sanctions still appeal to the individual’s desire for esteem. (Consider the sanction of gossip, or William Ian Miller’s example of pointed teasing that convinces a cheapskate to pay for his round of beers.149) They do not, however, depend on the individual’s internalized disposition to comply with the specific norm. Internalization still operates as a norm-reinforcing mechanism, but it does not carry all the weight of social control.
21. Signaling and signal-manipulation practices certainly exist in the domain of lawyering. One interesting example is found in a provision of the ABA’s Model Rules: “A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” This rule seems out of place in a disciplinary code—is there a case in which one could imagine a lawyer being punished for violating it?—but it does make sense in terms of Posner’s theory of signaling behavior. The rule clarifies the signals, so that a lawyer representing a loathsome client, such as John Demjanjuk (the allegedconcentration camp torturer “Ivan the Terrible”) or the Oklahoma City bombing suspects, is not taken to be adopting the client’s moral position. In an additional example, the famous “buried bodies” case, a criminal defense lawyer learned from his client that he had killed several young women and hidden their bodies in the wilderness. After the lawyer was criticized publicly for failing to inform the parents of the additional victims of the location of their daughters’ bodies, the lawyer acknowledged publicly that his client was “a bastard” and that he was acting under a professional obligation: “ ‘I caused them pain . . . What do you say? Nothing I could say would justify it in their minds. You couldn’t justify it to me.’ ” The ideology of professional detachment therefore enabled this lawyer to show human sympathy for the parents, while insisting that his actions were justified. This manipulation of signaling practices is useful in these cases, because it permits talented lawyers, whose reputations are valuable, to work on behalf of clients who could benefit from quality representation. At the same time, however, it makes opportunistic behavior or sophistry in ethical reasoning possible; talented lawyers may work for clients
22. One problem with this signaling mechanism, in which the parties to a social arrangement have relatively little control over the terms of their own relationships as compared with the community, is that communities have historically retaliated against relationships that they perceived as undesirable, even if their judgments were founded only on superstition or prejudice. The most obvious example is the stigma attached to interracial marriages in the South in the United States, which was even enshrined in antimiscegenation statutes in many states, but Posner suggests that the opposition to same-sex marriages is also grounded in community understandings of the limits of “proper” relationships. The importance of clear signals means that unorthodox members of the community are likely to get their signals crossed, as it were. Being married no longer signals that one is a conventional (i.e., heterosexual), trustworthy, self-disciplined person if marriage is opened up to same-sex couples, Posner hypothesizes. The necessity of agreeing on the social meaning of particular activities makes it difficult to engage in unorthodox activities without calling down the associated social stigma upon oneself, or without diminishing the social approbation that would otherwise be owed to people who participate in the activity. Signaling also tends to reinforce pathologies, such as racial discrimination, if members of in-power groups find it necessary tosignal their loyalty by antagonizing members of out-of-power subcommunities. As long as people have a preference for fitting in, they will tend not to send signals that would make them acceptable to outsiders, but not to insiders.
23. At first glance, the reinvigoration of the civic republican tradition seems to offer new hope to the project of regulating professional communities in the face of the failure of legalistic disciplinary codes. The republican ideal envisions citizens connected to one another in a network of interlocking relationships, pursuing government in a spirit of search for the common good. Civic republicanism is a reaction to the liberal political tradition, which insists that the state must be neutral among competing conceptions of the good. Liberalism imagines politics as an arena for competition for individual advantage; one variety of liberalism, interest-group pluralism, describes rent-seeking behavior by organized groups or factions who compete for access to goods or power. Significantly, liberalism and pluralism regard preferences as exogenously given—in other words, government is directed not to interfere with the formation of preferences, but merely to distribute public goods on a market model, with legislation reflecting the influence exerted on the political process by individuals and groups. Preferences, liberals argue, arise independently of community attachments, chosen autonomously by the a social, unattached “liberal self.” This assumption, although it has been criticized as a caricature of liberalism, translates neatly into the theory of lawyering, where the conventional model of legal ethics assumes that the ends of the representation are determined by the client, and the lawyer is simply an instrument to enable the client to realize those ends within the constraints given by legal norms.172 Republicanism, by contrast, imagines preferences as developingonly dialogically, through a process of engagement and discussion among citizens.
24. A necessary precondition of republican political theory is the opportunity for free, uncoerced public debate about justice. Deliberation is not merely an avenue for representing existing preferences—instead, the participants in a deliberative political order must be prepared to revise existing preferences to bring them into line with a conception of the public good. Deliberation has both instrumental and intrinsic functions: it is required to secure a just distribution of entitlements, free from coercive imposition of desired outcomes by powerful factions, but “participatory citizenship is also a good in itself.” Republicanism challenges the liberal conception of preferences as exogenously given, because it imagines some of the goods of political action as reflexive—that is, as available only through active participation in self-government. Thus, a vibrant community is a good in itself. The ideal of the intrinsic goodness of deliberative political engagement is, of course, fundamentally Aristotelian. Aristotle held that humans were political animals at their core, and could realize their own potential only through public participation in the polis. Civic republicanism, in its revived form, is also indebted heavily to modern discourse ethics, particularly the writings of Jürgen Habermas. According to Habermas, the validity of ethical norms depends on a rationally motivated consensus among deliberating agents. By “rational” Habermas means not only“ uncoerced,” but also the stronger condition of “unmotivated by strategic considerations.” In other words, participants in communicative action must be aimed at reaching understanding, not merely acquiring power or realizing some other of theirsubjective ends, and they must not engage in deception, threats, or enticements of other participants. This condition is a presupposition of ethical reasoning; competition for selfish advantage in a literal or metaphorical marketplace cannot claim to be an activity having anything to do with ethics, as that term is properly understood. Habermas also adds the stringent condition that norms advanced in discourse must be defended without recourse to tradition, a principle he sees as central to modernity.180 This is an interesting counterpoint with the honor/shame model of community norms, an overlap with the rational choice model, and a critical argumentative move for civic republicans. For the neo-republican project tosucceed, it must appropriate the attractive features of the civic republican tradition without acquiring its unsavory historical baggage.181 In the critical section that follows, I will question whether modern civic republicans can avoid reinscribingexclusionary practices within their “revived” republicanism.
25. Republicanism in political theory demands the eradication of barriers to full and equal participation in the political process. Economic inequality, for example, skews the quality of public deliberation by permitting disparities in access to media of communication.182 The Supreme Court’s notorious Buckley v. Valeo183 decision, which equated the freedom of speech with the ability to donate money to political candidates, represents adramatically unrepublican position. Republicanism can be a radical political philosophy if it demands substantive egalitarianism, but in fact, most proponents of some form of republicanism stop short of calling for full economic equality.184 Instead, they seek only to establish formal conditions for public participation, such as the absence of coercion. These conditions echo Habermas’s “ideal speechsituation,” where the participants in normative discourse areunencumbered by morally arbitrary constraints, such as the inability to make their voices heard. Obviously the qualifier“morally arbitrary” needs unpacking, and generally in a society which accepts a fairly high disparity of material wealth among its citizens, economic inequalities are not likely to be deemed morally significant. There is a further affinity here among republican ideals, Habermas’s discourse ethics, and the feminist and critical race theory position on freedom of speech. One purpose of the First Amendment is to ensure the free flow of ideas and information necessary for democratic self-governance, but this function is undermined by an interpretation of the constitutional free speech guarantee that would permit “silencing” speech such as pornography and expressions of racial hatred. A theory of democratic deliberation or of freedom of speech that emphasizes the inclusion of all voices in discourse must grapple with the possibility that seemingly neutral conditions may influence the access ofcertain citizens to the channels of debate.
26. One objection to relying upon community-based sanctioning mechanisms in professional ethics is that many informal social-control systems seem to give rise to the worst features of adversarial strife that have been so damaging to the ability of the legal system to handle disputes fairly and efficiently. In traditional honor societies, offenses to reputation were settled by duels, blood feuds, or fights with fists or knives, so it seems fair to surmise prevalent style of reasoning: responsibility for the morality or justice of a claim is ultimately that of the client. The lawyer’s job begins and ends with advising the client of the likely legal consequences of his decisions and helping him achieve his aims within the limits of the applicable legal rules. More specifically, the lawyer-informants’ responses included: “You’re not hired to give moral advice.” . . . “There is morality, but it is not the domain of lawyers.” “Our system of justice is not established for the purpose of moral judgments, but to determine facts and to apply law to facts. . . .” “The client doesn’t want to have a moral dialogue with me . . . . You have to frame it in other ways, explain the trouble you can get into . . . .” Moralizing lawyers are not to be trusted: “Sanctimonious lawyers are the first to file Rule 11 motions, accuse you of being unethical.”
27. One problem with using informal community norms as a means of social control is that the imperative of retaliation inevitably produces lawlessness and extrajudicial score settling, which is precisely the sort of thing that the law seeks to keep in check. Scholars who have criticized the trend toward using shaming as an adjunct to existing criminal penalties, such asimprisonment and fines, argue that by imposing shame sanctions, the judicial system creates a dangerous condition of complicity between the state and the crowd, harnessing mob psychology in pursuit of peace and order. As Jeremy Waldron observes in his review of William Ian Miller’s work on the vestiges of honor in contemporary society, “[m]odern institutions—law, state, and economy—claim to have created a pacified society in which people are supposed to feel sufficiently secure not to have to take their honor into their own hands, so to speak.”215 Waldron agrees with Miller that an encounter with legal forms of action and remedies is an exceptional event in the daily life of the average person. As he has argued in other places, however, the existence of legal rights and norms structures social relationships by giving private actors the assurance that their expectations will be honored by the state.216 This picture would be complicated considerably by an independent set of norms that sought to structure relationships differently, as was the case in the antebellum South in the United States. The historian Bertram Wyatt-Brown shows how legal authorities understood their sphere of influence as being circumscribed by the obligations of individuals to look after their own social standing. “The courts and lawmakers never put honor into statutory or judicial form because it was commonly understood that there should be a division between the workings of the law and the stalwart defense of a man’s sense of self.” Similarly, traditional Mediterranean notions of honor removed responsibility for protecting certain interests from the domain of the state: “When challenged to fight, it is not honorable to demand police protection.”
28. Community norms, therefore, are hostile to the state’s claim of authority, and can work at cross-purposes with officially sanctioned means of social control. As I argued previously, informal mechanisms of retaliation are quite effective in reining in improper behavior in a small, relatively homogeneous community. A reputation for being untrustworthy spreads quickly, as information costs are relatively low (and can be reduced even further by instituting an information-sharing practice like the weekly Tanana Valley Bar Association lunch). Moreover, there is relatively broad agreement on what constitutes improper behavior, and again this agreement can be reinforced by the constant process of dialogue and norm elaboration that is inherent in the lawyer’s penchant for telling war stories. Where these conditions do not obtain, however, the practices of retaliation can spin out of control, as each act of retribution spawns an act of counter-retribution, and soon the relationship has degenerated into total war. This process can be checked in a small community, where retaliation is understood as a sanction applied to improper behavior, and where it is possible to identify the party who is to blame for an escalation in nastiness. In larger associations, however, state authority is necessary to respond to some of the incentives for strategic behavior that are endemic in impersonal, market-oriented communities. For example, in a large urban bar, one lawyer may not have two cases against the same opponent or in front of the same judge in her entire career. There is little cause to worry about retaliation in a subsequent case when in all likelihood the offended lawyer will never again be one’s adversary. In a large community, information costs are much higher—it is difficult for one of fifty or sixty judges on a county trial court bench to learn of sleazy behavior in one ofher colleagues’ courtrooms, to say nothing of the impossibility of keeping tabs on each member of a large subcommunity like the personal injury or corporate transactional bar.
29. In the context of legal ethics, the obvious parallel with the Brady story is the reliance by the bar upon informal norms that serve as smokescreens for lawyer self-interest, to the detriment of outsiders. Critics have long decried the transparently self-serving nature of many of the organized bar’s disciplinary rules, and the same criticism can be leveled against unwritten norms, such as the profession’s “conspiracy of silence”—the unwillingness of many lawyers to testify against one another in malpractice suits. A few courts have also begun to condemn explicitly some informal standards of practice, such as the unarticulated expectations and understandings associated with the civil litigation process, as inconsistent with lawyers’ obligations as officers of the court. In a now-famous case, the Washington Supreme Court excoriated a large, prestigious law firm for its handling of discovery in a civil dispute, despite the fact that numerous bar leaders and academic ethics experts had testified that the firm’s actions did not deviate from the customs of the litigation community in Seattle (at least the subcommunity of large-firm litigators). “Conduct is to be measured against the spirit and purpose of the rules, not against the standard of practice of the local bar,” the court said. The Fisons case plainly shows—and it has come to stand for thisproposition in the legal ethics world—that the bar’s norm-elaboration process is subject to checking from the outside, and that courts retain authority to challenge the profession’s own understanding of its ethical obligations. It was a response to apractice that benefited lawyers alone, through the tremendousincrease in legal fees generated by “hardball” discovery practice, to the detriment of outsiders such as clients, courts, and consumers who bore litigation costs in the form of increased prices for goods and services.
30. The honor/shame model of community norm enforcement shows clearly how reliance on informal social norms can be fundamentally inegalitarian. The most common criticism leveled against the ethics of honor is derived, quite naturally, from the very term “gentleman.” Although honor is not necessarily a gendered concept, virtually every conception of honor that has been elaborated throughout history seems fundamentally to exclude women as people worthy of social prestige. In traditional honor societies, it is true that both men and women are subject to the claims of honor, and are potentially liable to lose honor and to be shamed. The ascription of honor differs between the sexes in what actions are expected of a man and a woman, and what is necessary to gain and lose honor. Generally honor for women is associated with chastity. Anthropologist Julian Pitt-Rivers shows how in Andalusian society losing sexual purity causes a woman, but not a man, to lose honor, while maintaining sexual purity causes men to risk having their masculinity, and therefore their honor, questioned.
31. When the concept of the exemplar of community virtues is loosened from its moorings in a society which structures all relationships around widely shared values, the risk of incoherence immediately arises. “It has often been remarked that to be a gentleman is to know how to behave without ever being told the rules.”314 If the ethical maxim, “be a gentleman,” is to provide guidance to people, however, there must be broad agreement on what constitutes gentlemanly behavior.315 In a pluralistic society, with multiple subcommunities structuring human lives (sometimes in ways that cut across one another), constructing an idealized figure who embodies the norms of the whole community is virtually impossible. The problem, of course, is made exponentially more complex when different communities seek to identify excellence with diverse, even contradictory ideals.316 Relying on communitynorms in a pluralistic society with diverse subcommunities involves several dangers. First, the ascription of “honor” or esteem in public discourse may become merely a makeweight—a post hoc explanation offered for a decision that was reached on the basis of independent reasons. Second, the threat of accusation of dishonorable conduct may become a sword of Damocles, hanging over the heads of marginal community members who must guess at their extreme peril whether the increasingly pluralistic,disputatious group of citizens from many different races, ethnic groups, and social classes will judge an act as a breach of thefoundational norms of the community.
32. As one might expect, practitioners from these diverse subcommunities disagree on what constitutes “sharp practice” or unethical behavior. For example, lower-status lawyers, such as the plaintiffs’ personal injury bar, express concern that corporate lawyers at large firms are able to “turn the process into a hypercivilized game of manners, at the expense of more substantive ideals such as truth, justice, and efficiency.” Comments like this one suggest that the “sharp practice” epithet is assigned to lower-status lawyers because the work done by these lawyers—representing individuals against powerful institutions like the government and large manufacturing enterprises—is threatening to the clients of the higher-status lawyers. Legal ethicist Monroe Freedman argues that the first codified rules of professional conduct were “motivated in major part by the large numbers of Catholic immigrants from Italy and Ireland and Jews from Eastern Europe . . . . [T]he established bar adopted educational requirements, standards of admission, and ‘canons of ethics’ designed to maintain a predominantly native-born, white, Anglo-Saxon, Protestant monopoly of the legal profession.” Thus, by manipulating the terms of discourse, the powerful subcommunity uses the term “gentleman” to legitimate its own practices, and to block recourse to substantive moral arguments that would reveal these tactics to be subversive of justice.
33. Community norms are most strongly felt in small-scale societies or subcommunities, where individuals interact personally and face-to-face, as opposed to anonymously, through bureaucracies or markets, and where interpersonal relationships are of paramount importance. “All else being equal . . . shaming penalties are likely to be more effective in Kenosha than they are in Manhattan.” The association of lawyers in a town the size of Fairbanks, the reading group described by William Ian Miller, and the circles of corporate managers studied by Robert Jackall are all small enough subcommunities to be aware of the claims to respect of their various members and the reactions of others to those claims. Corporate managers might care deeply about what members of their clubs and residents of their neighborhood think of them, even though they do not care about the reaction of others outside their social and professional circles.343 (Similarly, English barristers traditionally were regulated only by the Inns of Court, and by the unwritten codes of English gentlemen, while the significantly larger and culturally heterogeneous group of solicitors was subject to more extensive legal regulation.344) In economic terms, the marginal cost of acquiring information about other community members is low, because individuals interact with each other on a frequent basis. We would, by contrast, expect community-based norm enforcement to be a less efficacious means of social control in large, fragmented, pluralistic societies. For one thing, unless individuals are repeat players with respect to other individuals, they will have very little incentive to take into account the perceptions of others, which are necessary to maintain the scheme of honor and shame in the community.346 Moreover, if the domain of social norms does not extend beyond a subset of individuals in a society, if there are people even within that subcommunity who do not consider themselves bound by that group’s esteem, in effect a free rider problem results. “The person who does not subscribe to the norms of honor will not feel shame for having violated them even if real third parties try to make him or her feel so.”347 Short of hectoring such a person to join the community that is trying to shame him, what is to be done?
34. Furthermore, as the practice of law becomes increasingly national in scope, with the rise of multi-office mega-firms, not to mention technology like jet travel, fax machines, and the Internet, it is more important for lawyers in different jurisdictions to have similar professional skills, attributes, and duties. For the first time in the profession’s history, the 1969 Code of Professional Responsibility imposed unitary disciplinary standards for lawyers. The effect of the Code, and the subsequent Model Rules, has been to provide lawyers a measure of predictability in multijurisdictional transactions and litigation, with respect to issues such as conflicts of interest and confidentiality obligations. (Similar reasoning explains why accountants have generally adopted uniform standards for audits and financial reporting. It would do little good to require inspection of a company’s books by a certified public accountant if accountants in other states did not share the same criteria for pronouncing the company financially sound.) Reliance on informal social discipline, however, will undermine the move toward uniformity on a national scale.
35. No one proposes abolishing state-sponsored, legalistic oversight of the professions, but it is also futile to ignore the process of norm elaboration and enforcement that occurs within professional communities outside of state control. The salient question, therefore, is the optimal mix of formal and informal authority in a scheme of professional regulation. There are a number of practical lessons to be drawn from the study of social norms, which can usefully be applied to this normative issue.
36. First, state actors ought to be aware of the advantages and pathologies of professional communities and calibrate their intervention accordingly. In some cases, informal sanctioning regimes are less costly, better targeted, and more flexible than the formal alternatives. For example, open-file discovery systems, although not constitutionally required, can considerably reduce the expense of criminal trials; judges can put pressure on prosecutors to adopt open-file practices, even though they do not have the legal authority to compel this regime.365 Drafters of disciplinary rules struggle to demarcate boundaries between meritorious motions and those filed merely for purposes of harassment or delay,366 but experienced lawyers quickly perceive the difference, and may be able to control an aberrant lawyer more readily through informal means such as ostracism or retaliation. Indeed, as Tanina Rostain notes, informal social norms are sometimes so well entrenched that they will exert pressure against a legal rule that is significantly at odds with prevailing community practices.367 One might observe the relative infrequency of disciplinary complaints brought by lawyers, despite a legal duty to do so in some states,368 possibly due to asocial norm against ratting out a fellow professional. Alternatively, a community (e.g., personal injury litigators) may value a reputation as a “junkyard dog” advocate, and thus fail to take any action against a lawyer whose behavior is inefficient, in the sense of driving up dispute resolution costs, or otherwise ethicallytroubling.
37. Information costs are also likely to be lower when norm enforcers are “in the trenches,” so to speak, rather than dependent on reports of violations prepared after the fact and transmitted through multiple layers of government bureaucracy.370 Lawyers who are sensitive to community norms may effectively serve as peacemakers, by virtue of their ability to recognize the interests of all parties and broker some kind of mutually acceptablecompromise; sociologist Don Landon reports that small-town lawyers frequently play exactly such a role.371 The modern alternative dispute resolution movement emphasizes equitable values like discretion, flexibility, and contextual decision making, in contrast to rigid formalistic models of adjudication. The practices of community-based norm enforcement therefore support these goals. Furthermore, the peacemaking function of lawyers suggests that it may be well to decentralize power from remote, bureaucratized government agencies in favor of the people who are actuallyaffected, in order to maintain a sense of connection between citizens and public order.372 Finally, informal sanctions may be able to reach conduct that is beyond the reach of state-imposed regulation for constitutional or other reasons. The organized bar, for example, isprobably prohibited by the First Amendment from imposingviewpoint-based “character and fitness” requirements for admission; thus, an avowed racist or someone with similarly antisocial values must be let into the bar if he applies.373 Once in, however, there is no constitutional impediment to community-based sanctions, like ostracism and refusal to cooperate with the antisocial lawyer.
38. Informal sanctions also do not raise the same administrability concerns as formal legal rules; for instance, we need not fear clogging the dockets of already overworked disciplinary agencies with complaints about trivialities if community-based sanctions mechanisms do the job.
39. Conversely, formal regulatory mechanisms possess what might be termed rule-of-law virtues: they are relatively predictable, stable, and ostensibly free of invidious discrimination in the application of rules. (In some ways, the tradeoffs between formal and informal regulatory schemes are similar to those required in a legal system that seeks to accommodate both legal and equitable principles.) The content of legal rules may be ascertained in advance, and actors may plan their conduct to avoid legal sanctions. Legal rules administered by an impartial tribunal are also less likely to become the basis of escalating feuds as tit-for-tat retaliation spins out of control. Furthermore, changing social circumstances, technological innovations, or evolving standards of public morality often necessitate changes in professional regulatory practices. If the legal profession were governed only by informal social norms, not explicit rules, then the only possible mode of change in these regulations would be the gradual evolution of social norms, through the slow processes of growth and decay. Anyone who was concerned with the present state of the profession’s norms could do little to modify them, except perhaps launch a campaign of persuasion, aimed at the hearts and minds of her fellow professionals. Finally, formal rules promote uniformity of regulation of the legal profession.
40. Second, a frequently articulated objection to using informal mechanisms of social control to regulate the legal profession is that power ought not to be devolved to institutions that do not accomplish useful ends. Scholars who favor reliance on informal norms as a method for social control generally have in mind communities in which virtues are celebrated and vices suppressed—for example, Robert Ellickson’s cattle ranchers who are respected for their trustworthiness and neighborliness, or the lawyers in Fairbanks who warn pointedly against engaging in “Rambo”litigation tactics. Examples can be multiplied, however, of communities that exalt qualities contrary to moral norms. Theantebellum South is the most striking example, but the countrylawyers surveyed by Don Landon who valued neighborliness over their clients’ potential civil rights claims also reveal the capacity of honor to undercut reform efforts. It is little more than a fortunate coincidence that the Shasta County ranching society has cultivated virtues of honesty and cooperation—there is nothing internal to the concept of honor that guarantees this result. The corporations studied by Robert Jackall show that, if anything, communities tend to develop informal norms that are justified by little more than economic self-interest. The smaller and more exclusive the community, the more likely it appears to promulgate socially harmful norms. (The rancher society in Shasta County is small and geographically isolated, but it does include a sizable proportion of the local population.382) Unfortunately, the efficacy of community-based social control mechanisms decreases with the size of the relevant group, so as it becomes larger and more pluralistic, the community becomes less capable of supporting informal norm-enforcement practices.
41. On the other hand, there is no guarantee that self-interest will not also influence the development of formal regulatory regimes. From a sociological standpoint, ethics rules perform the function of bolstering the public image of the profession, which in turn permits the profession to continue to exercise self-regulation, relatively free of intrusion from legislatures and administrative agencies.383 Nonprofessionals are less likely to demand stringent regulation of an occupation if they feel that the members of that occupational group are doing a satisfactory job policing themselves. To some extent, the project as it relates to lawyers has been successful. The relative paucity of statutes and regulations applicable to the legal profession is striking in comparison with the comprehensive regulatory regimes under which other industries, like pharmaceutical manufacturers and public utilities, must operate. The suspicion that disciplinary codes are merely window-dressing is reinforced by the inadequate mechanisms in place for their enforcement, and the consistent underreporting of violations.385 Moreover, formal mechanisms of exercising state power are susceptible to capture by powerful, well-organized interest groups. In the case of lawyers’ communities, it has long been observed that the organized bar tends to be taken over by lawyers working for large, prestigious law firms, representing corporate clients. Enforcement practices accordingly tend to favor these interests. (Consider the energy that bar associations expend in regulating advertising by plaintiffs’ personal injury lawyers, and compare this with the acceptance by the bar of large-firm business development practices, like “schmoozing” potential clients at country clubs.) Thus, it is not possible to make an unqualified claim that formal legal regulatory mechanisms are more likely to serve socially beneficial ends, as compared with informal methods of social control.
Saturday, January 9, 2010
Power is addictive
The composition of the 15-man Philippine Supreme Court is complete, once again.
Pres. Gloria Arroyo recently appointed Court of Appeals Associate Justice Jose C. Mendoza as the 168th magistrate of the High Court. A 1971 graduate of the San Beda College of Law, the 62-year-old magistrate’s appointment to the SC completes the roster of 15-member tribunal and caps more than two decades of public service as a member of the Bench.
Pres. Arroyo, whose term ends on June 30 this year, is now well protected from future criminal and civil actions grounded on massive and earth-shaking graft and corruption, human rights violations, extrajudicial killings and disappearances, and other grave and scandalous violations of existing laws that have hounded her nightmarish regime since her revolutionary assumption to presidential power as a result of EDSA II in 2001.
Fourteen (14) out the 15 justices of the Supreme Court are Arroyo appointees.
The incumbent (and independent-minded) Chief Justice, Hon. Reynato Puno, who is an appointee of former Pres. Fidel Ramos, will retire in May this year.
It might be possible that the next chief justice would still be appointed by Pres. Arroyo before she ends her term on June 30 this year, depending on how fact the Judicial and Bar Council would move. (If that is so, it would give real sense to the devastating description of the current Supreme Court as the “Arroyo Court”).
The incumbent Ombudsman, Merceditas Gutierrez, whose term of office is questionable, is a former presidential legal counsel of Pres. Arroyo and a law classmate of Arroyo’s controversial husband, Atty. Mike Arroyo.
The Filipinos clearly read Pres. Arroyo’s plans.
She will run as a congresswoman in the province of Pampanga in the general elections this coming May. She has announced it.
Once in Congress in July this year, she will move heaven and earth to become the next Speaker of the House of Representatives.
Using her well-entrenched power network and multi-billion campaign funds, she will use both persuasion and threat to revise the 1987 Philippine Constitution to effect a radical change of the governmental system of the Philippines from presidential system to parliamentary system (unitary congress).
By hook or by crook, she must be the next Prime Minister under the new parliamentary system to insure her return to Malacanang Palace between 2011 to 2013.
For the rest of her physical and political lifespan, her goal is to continue to preserve and protect her “immunity from suit” as head of state and/or as head of government and to maintain herself in power for as long as her health can absorb and allow, while insuring the total growth of the Macapagal-Arroyo family dynasty and the stability of the local family dynasties of the feudal warlords in the rural areas whose violent and corrupt power structures are indispensable to her perpetual stay in the Palace.
Power is addictive.
Unfortunately, Pres. Arroyo misses one gem of wisdom: Impermanence is a basic law of nature.
In Pali Buddhism, it is called “anicca” (the law of impermanence).
A sentient being who craves for, clings to, and attaches to anything impermanent (all phenomena and all reality are impermanent), will surely suffer, for she would be incapable of attaining wisdom and enlightenment and realizing the ultimate truth.
Like all phenomena, power is temporary and impermanent. It arises and passes away.
More details on Justice Mendoza (from the Supreme Court website news):
CA Justice Mendoza Completes 15-Member SC Tribunal
Posted: January 5, 2009
By Anna Katrina M. Martinez
The 15-member roster of the highest court of the land is once again complete following the appointment by President Gloria Macapagal Arroyo of Court of Appeals Associate Justice Jose C. Mendoza as the 168th magistrate of the Supreme Court yesterday, January 4. Justice Mendoza replaced former Associate Justice Minita V. Chico-Nazario who retired on December 5, 2009.
A native of Lipa City, Justice Mendoza, 62, earned his law degree from the San Beda College of Law. After passing the 1971 Bar Examinations, he engaged in private practice and served as Legal Officer of groups such as the Philippine Banking Corporation, the Manila Electric Co., and the Gokongwei Group of Companies before joining the Judiciary as Research Attorney in the CA in 1977. From 1980 to 1985, he worked as an Associate of the Alampay Alvero Alampay Law Office before rejoining the Judiciary in 1985 as Confidential Attorney in the Supreme Court, first in the Office of Justice Nestor B. Alampay and then, in that of Justice Abdulwahid A. Bidin.
Justice Mendoza became a member of the Bench when he was appointed Presiding Judge of the Regional Trial Court (RTC) of Sta. Cruz, Laguna, Br. 26 in 1989. In 1992, he was named Executive Judge of the RTC of Sta. Cruz, Laguna. From 1994 to 2003, he served as Presiding Judge and, later, as Executive Judge of the RTC of Quezon City. In July 4, 2003, he was appointed as Associate Justice of the CA.
A 1971 graduate of the San Beda College of Law, Justice Mendoza is married to the former Livia Rojas, with whom he has a son, Barleon Rojas Mendoza.
See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/01/01051001.php
With Due Respect
How Arroyo can prolong her stay
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:25:00 01/30/2010
How “no proc” can happen.
Let me grant, for the sake of argument, Comelec’s bravado that no “nationwide” automation failure would happen. Nonetheless, Comelec admitted during the congressional hearing last Jan. 27 that there may be automation problems in about 30 percent of the country. This is what worries me: problems and missteps—whether intended or not—in several towns and cities which, when put together, can legally trigger a failure of proclamation (no proc) for president, vice president and senators.
Consider this. The latest poll surveys indicate that the presidential race is getting tighter. Manny Villar appears to be closing the wide gap jump-started by Noynoy Aquino. Without predicting who will win, let us assume that the margin of the winning candidate would not exceed 10 percent of the votes cast. Since Comelec estimates that 40 million (out of the 47 million registered voters) would actually cast their ballots, the winning margin would not exceed four million (10 percent of 40 million), still a veritable “landslide.”
Glitches in 15 percent (not to say 30 percent) of the country would result in no-proc for the presidential race since 15 percent of the total votes cast (six million) would not be counted. Legally, when the unaccounted votes are determinative of victory, no one would be proclaimed winner, because these unaccounted votes could overhaul the lead of the front-runner. So, there would be no-proc for national offices, especially for the presidency.
How Arroyo can stay.
On the other hand, there being no similar problems in 85 percent of the country, the local winners in these areas (governors, mayors, congressmen, including putative Rep. Gloria M. Arroyo) would be proclaimed. Hence, the House of Representatives could thereafter convene and elect its speaker.
Without a duly-proclaimed president come June 30, 2010, who would run the country considering that President Gloria Macapagal-Arroyo, Vice President Noli de Castro, Senate President Juan Ponce Enrile and Speaker Prospero Nograles would all end their terms of office on that date? Answer: Arroyo can claim to be “holdover” president.
Once elected speaker, she could then continue her reign as “acting” president, per the succession prescribed by the Constitution.
Can the Senate elect a new president after Juan Ponce Enrile’s term ends on June 30, 2010? No, the 12 remaining senators whose terms would end in 2013 will not constitute a quorum to do business. On the other hand, the new replacements would also suffer the “no-proc” syndrome.
In sum, a failed election in 15 percent of the country would give Arroyo the opportunity to become a holdover president, and then an acting president. These events could be dovetailed by a Cha-cha (sans a functioning Senate) installing a parliamentary government that would elect her as prime minister. All these grim scenarios will surely be elevated to the Supreme Court. This explains why, sadly, political maneuverings abound in the selection of the new chief justice.
What are the alternatives to these scenarios? Martial law? Military takeover? People power? Civil strife? All these? Heaven help our country.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100130-250395/How-Arroyo-can-prolong-her-stay
Pres. Gloria Arroyo recently appointed Court of Appeals Associate Justice Jose C. Mendoza as the 168th magistrate of the High Court. A 1971 graduate of the San Beda College of Law, the 62-year-old magistrate’s appointment to the SC completes the roster of 15-member tribunal and caps more than two decades of public service as a member of the Bench.
Pres. Arroyo, whose term ends on June 30 this year, is now well protected from future criminal and civil actions grounded on massive and earth-shaking graft and corruption, human rights violations, extrajudicial killings and disappearances, and other grave and scandalous violations of existing laws that have hounded her nightmarish regime since her revolutionary assumption to presidential power as a result of EDSA II in 2001.
Fourteen (14) out the 15 justices of the Supreme Court are Arroyo appointees.
The incumbent (and independent-minded) Chief Justice, Hon. Reynato Puno, who is an appointee of former Pres. Fidel Ramos, will retire in May this year.
It might be possible that the next chief justice would still be appointed by Pres. Arroyo before she ends her term on June 30 this year, depending on how fact the Judicial and Bar Council would move. (If that is so, it would give real sense to the devastating description of the current Supreme Court as the “Arroyo Court”).
The incumbent Ombudsman, Merceditas Gutierrez, whose term of office is questionable, is a former presidential legal counsel of Pres. Arroyo and a law classmate of Arroyo’s controversial husband, Atty. Mike Arroyo.
The Filipinos clearly read Pres. Arroyo’s plans.
She will run as a congresswoman in the province of Pampanga in the general elections this coming May. She has announced it.
Once in Congress in July this year, she will move heaven and earth to become the next Speaker of the House of Representatives.
Using her well-entrenched power network and multi-billion campaign funds, she will use both persuasion and threat to revise the 1987 Philippine Constitution to effect a radical change of the governmental system of the Philippines from presidential system to parliamentary system (unitary congress).
By hook or by crook, she must be the next Prime Minister under the new parliamentary system to insure her return to Malacanang Palace between 2011 to 2013.
For the rest of her physical and political lifespan, her goal is to continue to preserve and protect her “immunity from suit” as head of state and/or as head of government and to maintain herself in power for as long as her health can absorb and allow, while insuring the total growth of the Macapagal-Arroyo family dynasty and the stability of the local family dynasties of the feudal warlords in the rural areas whose violent and corrupt power structures are indispensable to her perpetual stay in the Palace.
Power is addictive.
Unfortunately, Pres. Arroyo misses one gem of wisdom: Impermanence is a basic law of nature.
In Pali Buddhism, it is called “anicca” (the law of impermanence).
A sentient being who craves for, clings to, and attaches to anything impermanent (all phenomena and all reality are impermanent), will surely suffer, for she would be incapable of attaining wisdom and enlightenment and realizing the ultimate truth.
Like all phenomena, power is temporary and impermanent. It arises and passes away.
More details on Justice Mendoza (from the Supreme Court website news):
CA Justice Mendoza Completes 15-Member SC Tribunal
Posted: January 5, 2009
By Anna Katrina M. Martinez
The 15-member roster of the highest court of the land is once again complete following the appointment by President Gloria Macapagal Arroyo of Court of Appeals Associate Justice Jose C. Mendoza as the 168th magistrate of the Supreme Court yesterday, January 4. Justice Mendoza replaced former Associate Justice Minita V. Chico-Nazario who retired on December 5, 2009.
A native of Lipa City, Justice Mendoza, 62, earned his law degree from the San Beda College of Law. After passing the 1971 Bar Examinations, he engaged in private practice and served as Legal Officer of groups such as the Philippine Banking Corporation, the Manila Electric Co., and the Gokongwei Group of Companies before joining the Judiciary as Research Attorney in the CA in 1977. From 1980 to 1985, he worked as an Associate of the Alampay Alvero Alampay Law Office before rejoining the Judiciary in 1985 as Confidential Attorney in the Supreme Court, first in the Office of Justice Nestor B. Alampay and then, in that of Justice Abdulwahid A. Bidin.
Justice Mendoza became a member of the Bench when he was appointed Presiding Judge of the Regional Trial Court (RTC) of Sta. Cruz, Laguna, Br. 26 in 1989. In 1992, he was named Executive Judge of the RTC of Sta. Cruz, Laguna. From 1994 to 2003, he served as Presiding Judge and, later, as Executive Judge of the RTC of Quezon City. In July 4, 2003, he was appointed as Associate Justice of the CA.
A 1971 graduate of the San Beda College of Law, Justice Mendoza is married to the former Livia Rojas, with whom he has a son, Barleon Rojas Mendoza.
See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/01/01051001.php
With Due Respect
How Arroyo can prolong her stay
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:25:00 01/30/2010
How “no proc” can happen.
Let me grant, for the sake of argument, Comelec’s bravado that no “nationwide” automation failure would happen. Nonetheless, Comelec admitted during the congressional hearing last Jan. 27 that there may be automation problems in about 30 percent of the country. This is what worries me: problems and missteps—whether intended or not—in several towns and cities which, when put together, can legally trigger a failure of proclamation (no proc) for president, vice president and senators.
Consider this. The latest poll surveys indicate that the presidential race is getting tighter. Manny Villar appears to be closing the wide gap jump-started by Noynoy Aquino. Without predicting who will win, let us assume that the margin of the winning candidate would not exceed 10 percent of the votes cast. Since Comelec estimates that 40 million (out of the 47 million registered voters) would actually cast their ballots, the winning margin would not exceed four million (10 percent of 40 million), still a veritable “landslide.”
Glitches in 15 percent (not to say 30 percent) of the country would result in no-proc for the presidential race since 15 percent of the total votes cast (six million) would not be counted. Legally, when the unaccounted votes are determinative of victory, no one would be proclaimed winner, because these unaccounted votes could overhaul the lead of the front-runner. So, there would be no-proc for national offices, especially for the presidency.
How Arroyo can stay.
On the other hand, there being no similar problems in 85 percent of the country, the local winners in these areas (governors, mayors, congressmen, including putative Rep. Gloria M. Arroyo) would be proclaimed. Hence, the House of Representatives could thereafter convene and elect its speaker.
Without a duly-proclaimed president come June 30, 2010, who would run the country considering that President Gloria Macapagal-Arroyo, Vice President Noli de Castro, Senate President Juan Ponce Enrile and Speaker Prospero Nograles would all end their terms of office on that date? Answer: Arroyo can claim to be “holdover” president.
Once elected speaker, she could then continue her reign as “acting” president, per the succession prescribed by the Constitution.
Can the Senate elect a new president after Juan Ponce Enrile’s term ends on June 30, 2010? No, the 12 remaining senators whose terms would end in 2013 will not constitute a quorum to do business. On the other hand, the new replacements would also suffer the “no-proc” syndrome.
In sum, a failed election in 15 percent of the country would give Arroyo the opportunity to become a holdover president, and then an acting president. These events could be dovetailed by a Cha-cha (sans a functioning Senate) installing a parliamentary government that would elect her as prime minister. All these grim scenarios will surely be elevated to the Supreme Court. This explains why, sadly, political maneuverings abound in the selection of the new chief justice.
What are the alternatives to these scenarios? Martial law? Military takeover? People power? Civil strife? All these? Heaven help our country.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100130-250395/How-Arroyo-can-prolong-her-stay
Malice and damages
In the recent case of ALFONSO T. YUCHENGCO vs. THE MANILA CHRONICLE PUBLISHING CORPORATION, et. al., G.R. No. 184315, November 25, 2009, the basic doctrine pronounced by the Philippine Supreme Court was that “when malice in fact is proven, assertions and proofs that the libelous articles are qualifiedly privileged communications are futile, since being qualifiedly privileged communications merely prevents the presumption of malice from attaching in a defamatory imputation.”
In his complaint, multi-millionaire Filipino-Chinese businessman Alfonso T. Yuchengco alleged that in the last quarter of 1994, Chronicle Publishing Corporation published in the Manila Chronicle a series of defamatory articles against him. In two of the subject articles (November 10 and 12, 1993 issues), he was imputed to be a “Marcos crony” or a “Marcos-Romualdez crony,” which term according to him was commonly used and understood in Philippine media to describe an individual who was a recipient of special and underserving favors from former President Ferdinand E. Marcos and/or his brother-in-law Benjamin “Kokoy” Romualdez due to special and extra-ordinary closeness to either or both, and which favors allowed an individual to engage in illegal and dishonorable business activities.
The plaintiff claimed that the said articles further branded him as a mere front or dummy for the Marcos and Romualdez clans in Benguet Corporation, which company sought to take-over the management of Oriental Petroleum Mineral Corporation. He contended that such an imputation was untrue since his holdings in Benguet Corporation were legally acquired by him.
Also, he was likewise accused of unsound and immoral business practices by insinuating that he wanted to take control of Oriental in order to divert its resources to rescue the debt-ridden Benguet Corporation. He claimed that the accusation was untrue since he was merely interested in being represented in the board thereof so as to protect his and his companies’ interest therein as shareholders.
The subject articles insinuated that he personally and intentionally caused the failure of Benguet Corporation and that if even if he ever assumed control of Oriental, it would suffer the same fate as the former. According to him, at the time he assumed chairmanship of Benguet Corporation, it was already experiencing financial downturns caused by plummeting world prices of gold and unprofitable investments it ventured into.
Moreover, one of the articles portrayed him as being an unfair and uncaring employer when the employees of Grepalife Corporation, of which he is the Chairman, staged a strike, when the truth being that he had nothing to do with it. And that if his group took over Oriental, it would experience the same labor problems as in Grepalife.
Furthermore, the subject articles accused him of inducing Rizal Commercial Banking Corporation to violate the provisions of the General Banking Act on DOSRI loans. He denied the imputations believing that there was nothing irregular in the RCBC-Piedras transaction for the acquisition of shares of Oriental.
Also, the plaintiff claimed that the subject articles insinuated that he induced others to disobey lawful orders of the Securities and Exchange Commission when the truth was that the officials of RCBC and Alcorn never defied any SEC order, and that if ever they did, he never induced them to do so.
Finally, the plaintiff asserted that the subject articles imputed to him the derogatory tag of “corporate raider,” implying that he was seeking to profit for something he did not work for. He denies the imputation since he acquired his stake in Oriental for adequate and valuable consideration at the time when no one was willing to bailout the government from its difficult and losing position thereto.
In their Answer, the defendants denied liability claiming that the subject articles were not defamatory since they were composed and published in good faith and only after having ascertained their contents. In any event, they claimed that these articles were privileged and/or constituted reasonable and balance[d] comments on matters of legitimate public interest which cannot serve as basis for the finding of libel against them. They likewise alleged that they were acting within the bounds of constitutionally guaranteed freedom of speech and of the press.
Furthermore, they contended that since plaintiff was a public figure, and assuming that the articles were indeed defamatory, they could not be held liable for damages since they were not impelled by actual malice in the composition thereof. They did not compose and/or publish said articles with the knowledge that they contained falsehoods, or with reckless disregard on whether or not they contained falsehood.
On 8 November 2002, the Regional Trial Court rendered its decision in favor of petitioner Alfonso T. Yuchengco awarding the latter more than 100 Million Pesos in damages.
The respondents appealed to the Court of Appeals.
On 18 March 2008, the Court of Appeals promulgated its decision affirming in toto the RTC Decision. Respondents filed a Motion for Reconsideration. On 28 August 2008, the Court of Appeals reversed itself in an Amended Decision.
Hence, Yuchengco went up to the Supreme Court questioning the amended decision of the CA.
May I digest below the doctrinal pronouncements of the Supreme Court in the abovecited case. Thus:
1. Libel is defined in Article 353 of the Revised Penal Code, which provides:
Art. 353. Definition of Libel. – A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
2. Based on this definition, this Court has held that four elements constitute the crime of libel, namely (a) defamatory imputation tending to cause dishonor, discredit or contempt; (b) malice, either in law or in fact; (c) publication; and (d) identifiability of the person defamed.
3. Despite being defined in the Revised Penal Code, libel can also be instituted, like in the case at bar, as a purely civil action, the cause of action for which is provided by Article 33 of the Civil Code, which provides:
Article 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
4. Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish esteem, respect, goodwill or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything that is injurious to the good name or reputation of another or tends to bring him into disrepute. In determining whether certain utterances are defamatory, the words used are to be construed in their entirety and taken in their plain, natural and ordinary meaning, as they would naturally be understood by persons hearing (or reading, as in libel) them, unless it appears that they were used and understood in another sense.
5. Even a cursory reading of the subject articles would show the intention of the writers to injure the reputation, credit and virtue of Yuchengco and expose him to public hatred, discredit, contempt and ridicule. The indirect manner in which the articles attributed the insults to Yuchengco (e.g., “the money involved came from depositors, and not from Yuchengco”) does not lessen the culpability of the writers and publishers thereof, but instead makes the defamatory imputations even more effective. Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander.
6. In sum, this Court upholds the ruling of the trial court and the Court of Appeals that the subject articles contain defamatory imputations. All of the following imputations: (1) the labeling of Yuchengco as a Marcos crony, who took advantage of his relationship with the former President to gain unwarranted benefits; (2) the insinuations that Yuchengco induced others to disobey the lawful orders of SEC; (3) the portrayal of Yuchengco as an unfair and uncaring employer due to the strike staged by the employees of Grepalife; (4) the accusation that he induced RCBC to violate the provisions of the General Banking Act on DOSRI loans; and (5) the tagging of Yuchengco as a “corporate raider” seeking to profit from something he did not work for, all exposed Yuchengco to public contempt and ridicule, for they imputed to him a condition that was dishonorable.
7. Defamatory words must refer to an ascertained or ascertainable person, and that person must be the plaintiff. Statements are not libelous unless they refer to an ascertained or ascertainable person. However, the obnoxious writing need not mention the libeled party by name. It is sufficient if it is shown that the offended party is the person meant or alluded to.
8. Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.
9. Malice, however, does not necessarily have to be proven. There are two types of malice – malice in law and malice in fact. Malice in law is a presumption of law. It dispenses with the proof of malice when words that raise the presumption are shown to have been uttered. It is also known as constructive malice, legal malice, or implied malice. On the other hand, malice in fact is a positive desire and intention to annoy and injure. It may denote that the defendant was actuated by ill will or personal spite. It is also called express malice, actual malice, real malice, true malice, or particular malice.
10. In this jurisdiction, malice in law is provided in Article 354 of the Revised Penal Code, which also enumerates exceptions thereto:
Art. 354. Requirement of publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
There is, thus, a presumption of malice in the case of every defamatory imputation, where there is no showing of a good intention or justifiable motive for making such imputation.
11. The exceptions provided in Article 354 are also known as qualifiedly privileged communications. The enumeration under said article is, however, not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. They are known as qualifiedly privileged communications, since they are merely exceptions to the general rule requiring proof of actual malice in order that a defamatory imputation may be held actionable. In other words, defamatory imputations written or uttered during any of the three classes of qualifiedly privileged communications enumerated above – (1) a private communication made by any person to another in the performance of any legal, moral or social duty; (2) a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions; and (3) fair commentaries on matters of public interest – may still be considered actionable if actual malice is proven. This is in contrast with absolutely privileged communications, wherein the imputations are not actionable, even if attended by actual malice:
12. A communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith. This class includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses. Upon the other hand, conditionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith.
13. In the case at bar, both the trial court and the Court of Appeals found that the publication of the subject articles was attended by actual malice. In the instant case, there is preponderance of evidence showing that there exists malice in fact in the writing and publication of the subject libelous articles. As correctly found by the trial court, [petitioner] was able to show that [respondents] were animated by a desire to inflict unjustifiable harm on his reputation as shown by the timing and frequency of the publication of the defamatory articles. Further, as previously stated, [respondents] failed to show that they had any good intention and justifiable motive for composing and publishing the vicious and malicious accusations against [petitioner].
Moreover, [respondents] published or caused the publication of the subject defamatory articles with reckless disregard as to the truth or falsity thereof. As previously stated, there is no proof that the contents of the subject articles are true or that the respondents exercised a reasonable degree of care before publishing the same. [Respondents] failed to present evidence showing that they verified the truth of any of the subject articles, especially in light of the categorical denial by [petitioner] of the accusations made against him.
[Respondents] did not exercise reasonable degree of care or good faith efforts to arrive at the truth before publishing the subject defamatory articles. [Respondents] did not present any competent evidence to establish the truth of their allegations against [petitioner]. There was no showing that [respondents] made any attempt to talk to [petitioner] to verify the statements contained in the defamatory articles, especially considering the gravity of the accusations made against [petitioner]. At the very least, [respondents] should have exercised efforts to talk to [petitioner] to clarify the issues and get his side. [Respondents’] failure to verify the truth of the information from [petitioner] himself is in itself an evidence of their lack of bona fide efforts to verify the accuracy of her information.
The incessant publication of the defamatory articles attacking the honor and reputation of [petitioner] is also proof of [respondents’] malicious scheme to malign and defame the name, honor and reputation of [petitioner]. As earlier pointed out, in a span of one (1) month, [respondents] wrote and published and/or caused the publication of seven (7) libelous articles against [petitioner] attacking his honor and reputation as a distinguished businessman, philanthropist, his political inclination, and as an employer in his insurance company. In fact, the presence of malice is made more evident by [respondents’] baseless and uncalled for attack on the person of [petitioner] as an employer.
Such baseless and malicious accusation of [respondents] on [petitioner] only proves the intention of the [respondents] in publishing the defamatory articles was not to present an unbiased report on current issues but to launch a personal attack on the very person of [petitioner].
14. As earlier explained, as correctly found by the trial court, even the timing of the publication of these subject articles is highly suspicious inasmuch as the subject libelous articles came out in the Manila Chronicle, a newspaper owned and under the control of [respondent] Coyiuto, around November to December of 1993, a couple of months prior to the January stockholders meeting of Oriental Corporation. From this, it is logical to conclude that the publication of the subject defamatory articles defaming the good name and reputation of [petitioner] is but a part of [a] grand scheme to create a negative image of [petitioner] so as to negatively affect [petitioner’s] credibility to the public, more particularly, to the then stockholders of Oriental Corporation. Worth noting also is the fact that the subject articles did not only portray [petitioner] in a bad light. Curiously, in these articles, [respondent] Coyiuto, a known rival of [petitioner], was portrayed as the underdog, the “David” and [petitioner] as the “Goliath” in their battle for control over Oriental Corporation. This does not escape the Court’s attention. These circumstances clearly indicate the presence of actual malice on the part of [respondents] in the publication of the subject libelous articles.
15. When malice in fact is proven, assertions and proofs that the libelous articles are qualifiedly privileged communications are futile, since being qualifiedly privileged communications merely prevents the presumption of malice from attaching to a defamatory imputation.
16. Finally, even if we assume for the sake of argument that actual malice was not proven in the case at bar, we nevertheless cannot adhere to the finding of the Court of Appeals in the Amended Decision that the subject articles were fair commentaries on matters of public interest, and thus fell within the scope of the third type of qualifiedly privileged communications.
17. In order to be considered as fair commentaries on matters of public interest, the individual to whom the defamatory articles were imputed should either be a public officer or a public figure.
18. In Borjal v. Court of Appeals, we stated that “the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. We stated that the doctrine of fair commentaries means “that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.”
19. Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc., [418 U. S. 323 (1974)] that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest.
20. In trying to prove that the subject articles delved on matters concerning public interest, the Court of Appeals insisted that Yuchengco was a public official or public figure, who “must not be too thin-skinned with reference to comment upon his official acts.” The Court of Appeals then noted that Yuchengco was, at the time of the Amended Decision, appointed as a Presidential Adviser on Foreign Affairs with Cabinet rank, and proceeded to enumerate the public positions held by Yuchengco through the years.
However, an examination of the subject articles reveals that the allegations therein pertain to Yuchengco’s private business endeavors and do not refer to his duties, functions and responsibilities as a Philippine Ambassador to China and Japan, or to any of the other public positions he occupied. A topic or story should not be considered a matter of public interest by the mere fact that the person involved is a public officer, unless the said topic or story relates to his functions as such. Assuming a public office is not tantamount to completely abdicating one’s right to privacy. Therefore, for the purpose of determining whether or not a topic is a matter of public interest, Yuchengco cannot be considered a public officer.
21. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Third, this would impose an additional difficulty on trial court judges to decide which publications address issues of “general interest” and which do not. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” (Curtis Publishing Co. v. Butts, 388 U.S., at 164) He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. (Emphasis supplied.)
22. The records in the case at bar do not disclose any instance wherein Yuchengco had voluntarily thrust himself to the forefront of particular public controversies in order to influence the resolution of the issues involved. He cannot, therefore, be considered a public figure. Since Yuchengco, the person defamed in the subject articles, is neither as public officer nor a public figure, said articles cannot be considered as qualifiedly privileged communications even if they deal with matters of public concern.
In view of the foregoing, the Court was constrained to grant the Petition and reinstated the Decision of the trial court, as previously affirmed by the Court of Appeals in its original Decision. The Court, however, found the award of damages in the total amount of One Hundred Million Pesos by the trial court to be rather excessive given the circumstances. The Court, thus, further resolved to reduce the award of damages, as follows:
1. The damages for which Chronicle Publishing, Neil H. Cruz, Ernesto Tolentino, Noel Cabrera, Thelma San Juan, Gerry Zaragoza, Donna Gatdula, Raul Valino and Rodney Diola shall be jointly and severally liable under the first cause of action shall be reduced as follows:
a. The amount of moral damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Two Million Pesos (P2,000,000.00); and
b. The amount of exemplary damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Five Hundred Thousand Pesos (P500,000.00);
2. The damages for which Roberto Coyuito, Jr. and Chronicle Publishing shall be jointly and severally liable under the second cause of action shall be reduced as follows:
a. The amount of moral damages shall be reduced from Fifty Million Pesos (P50,000,000.00) to Twenty-Five Million Pesos (P25,000,000.00); and
b. The amount of exemplary damages shall be reduced from Thirty Million Pesos (P30,000,000.00) Ten Million Pesos (P10,000,000.00).
In his complaint, multi-millionaire Filipino-Chinese businessman Alfonso T. Yuchengco alleged that in the last quarter of 1994, Chronicle Publishing Corporation published in the Manila Chronicle a series of defamatory articles against him. In two of the subject articles (November 10 and 12, 1993 issues), he was imputed to be a “Marcos crony” or a “Marcos-Romualdez crony,” which term according to him was commonly used and understood in Philippine media to describe an individual who was a recipient of special and underserving favors from former President Ferdinand E. Marcos and/or his brother-in-law Benjamin “Kokoy” Romualdez due to special and extra-ordinary closeness to either or both, and which favors allowed an individual to engage in illegal and dishonorable business activities.
The plaintiff claimed that the said articles further branded him as a mere front or dummy for the Marcos and Romualdez clans in Benguet Corporation, which company sought to take-over the management of Oriental Petroleum Mineral Corporation. He contended that such an imputation was untrue since his holdings in Benguet Corporation were legally acquired by him.
Also, he was likewise accused of unsound and immoral business practices by insinuating that he wanted to take control of Oriental in order to divert its resources to rescue the debt-ridden Benguet Corporation. He claimed that the accusation was untrue since he was merely interested in being represented in the board thereof so as to protect his and his companies’ interest therein as shareholders.
The subject articles insinuated that he personally and intentionally caused the failure of Benguet Corporation and that if even if he ever assumed control of Oriental, it would suffer the same fate as the former. According to him, at the time he assumed chairmanship of Benguet Corporation, it was already experiencing financial downturns caused by plummeting world prices of gold and unprofitable investments it ventured into.
Moreover, one of the articles portrayed him as being an unfair and uncaring employer when the employees of Grepalife Corporation, of which he is the Chairman, staged a strike, when the truth being that he had nothing to do with it. And that if his group took over Oriental, it would experience the same labor problems as in Grepalife.
Furthermore, the subject articles accused him of inducing Rizal Commercial Banking Corporation to violate the provisions of the General Banking Act on DOSRI loans. He denied the imputations believing that there was nothing irregular in the RCBC-Piedras transaction for the acquisition of shares of Oriental.
Also, the plaintiff claimed that the subject articles insinuated that he induced others to disobey lawful orders of the Securities and Exchange Commission when the truth was that the officials of RCBC and Alcorn never defied any SEC order, and that if ever they did, he never induced them to do so.
Finally, the plaintiff asserted that the subject articles imputed to him the derogatory tag of “corporate raider,” implying that he was seeking to profit for something he did not work for. He denies the imputation since he acquired his stake in Oriental for adequate and valuable consideration at the time when no one was willing to bailout the government from its difficult and losing position thereto.
In their Answer, the defendants denied liability claiming that the subject articles were not defamatory since they were composed and published in good faith and only after having ascertained their contents. In any event, they claimed that these articles were privileged and/or constituted reasonable and balance[d] comments on matters of legitimate public interest which cannot serve as basis for the finding of libel against them. They likewise alleged that they were acting within the bounds of constitutionally guaranteed freedom of speech and of the press.
Furthermore, they contended that since plaintiff was a public figure, and assuming that the articles were indeed defamatory, they could not be held liable for damages since they were not impelled by actual malice in the composition thereof. They did not compose and/or publish said articles with the knowledge that they contained falsehoods, or with reckless disregard on whether or not they contained falsehood.
On 8 November 2002, the Regional Trial Court rendered its decision in favor of petitioner Alfonso T. Yuchengco awarding the latter more than 100 Million Pesos in damages.
The respondents appealed to the Court of Appeals.
On 18 March 2008, the Court of Appeals promulgated its decision affirming in toto the RTC Decision. Respondents filed a Motion for Reconsideration. On 28 August 2008, the Court of Appeals reversed itself in an Amended Decision.
Hence, Yuchengco went up to the Supreme Court questioning the amended decision of the CA.
May I digest below the doctrinal pronouncements of the Supreme Court in the abovecited case. Thus:
1. Libel is defined in Article 353 of the Revised Penal Code, which provides:
Art. 353. Definition of Libel. – A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
2. Based on this definition, this Court has held that four elements constitute the crime of libel, namely (a) defamatory imputation tending to cause dishonor, discredit or contempt; (b) malice, either in law or in fact; (c) publication; and (d) identifiability of the person defamed.
3. Despite being defined in the Revised Penal Code, libel can also be instituted, like in the case at bar, as a purely civil action, the cause of action for which is provided by Article 33 of the Civil Code, which provides:
Article 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
4. Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish esteem, respect, goodwill or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything that is injurious to the good name or reputation of another or tends to bring him into disrepute. In determining whether certain utterances are defamatory, the words used are to be construed in their entirety and taken in their plain, natural and ordinary meaning, as they would naturally be understood by persons hearing (or reading, as in libel) them, unless it appears that they were used and understood in another sense.
5. Even a cursory reading of the subject articles would show the intention of the writers to injure the reputation, credit and virtue of Yuchengco and expose him to public hatred, discredit, contempt and ridicule. The indirect manner in which the articles attributed the insults to Yuchengco (e.g., “the money involved came from depositors, and not from Yuchengco”) does not lessen the culpability of the writers and publishers thereof, but instead makes the defamatory imputations even more effective. Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander.
6. In sum, this Court upholds the ruling of the trial court and the Court of Appeals that the subject articles contain defamatory imputations. All of the following imputations: (1) the labeling of Yuchengco as a Marcos crony, who took advantage of his relationship with the former President to gain unwarranted benefits; (2) the insinuations that Yuchengco induced others to disobey the lawful orders of SEC; (3) the portrayal of Yuchengco as an unfair and uncaring employer due to the strike staged by the employees of Grepalife; (4) the accusation that he induced RCBC to violate the provisions of the General Banking Act on DOSRI loans; and (5) the tagging of Yuchengco as a “corporate raider” seeking to profit from something he did not work for, all exposed Yuchengco to public contempt and ridicule, for they imputed to him a condition that was dishonorable.
7. Defamatory words must refer to an ascertained or ascertainable person, and that person must be the plaintiff. Statements are not libelous unless they refer to an ascertained or ascertainable person. However, the obnoxious writing need not mention the libeled party by name. It is sufficient if it is shown that the offended party is the person meant or alluded to.
8. Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.
9. Malice, however, does not necessarily have to be proven. There are two types of malice – malice in law and malice in fact. Malice in law is a presumption of law. It dispenses with the proof of malice when words that raise the presumption are shown to have been uttered. It is also known as constructive malice, legal malice, or implied malice. On the other hand, malice in fact is a positive desire and intention to annoy and injure. It may denote that the defendant was actuated by ill will or personal spite. It is also called express malice, actual malice, real malice, true malice, or particular malice.
10. In this jurisdiction, malice in law is provided in Article 354 of the Revised Penal Code, which also enumerates exceptions thereto:
Art. 354. Requirement of publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
There is, thus, a presumption of malice in the case of every defamatory imputation, where there is no showing of a good intention or justifiable motive for making such imputation.
11. The exceptions provided in Article 354 are also known as qualifiedly privileged communications. The enumeration under said article is, however, not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. They are known as qualifiedly privileged communications, since they are merely exceptions to the general rule requiring proof of actual malice in order that a defamatory imputation may be held actionable. In other words, defamatory imputations written or uttered during any of the three classes of qualifiedly privileged communications enumerated above – (1) a private communication made by any person to another in the performance of any legal, moral or social duty; (2) a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions; and (3) fair commentaries on matters of public interest – may still be considered actionable if actual malice is proven. This is in contrast with absolutely privileged communications, wherein the imputations are not actionable, even if attended by actual malice:
12. A communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith. This class includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses. Upon the other hand, conditionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith.
13. In the case at bar, both the trial court and the Court of Appeals found that the publication of the subject articles was attended by actual malice. In the instant case, there is preponderance of evidence showing that there exists malice in fact in the writing and publication of the subject libelous articles. As correctly found by the trial court, [petitioner] was able to show that [respondents] were animated by a desire to inflict unjustifiable harm on his reputation as shown by the timing and frequency of the publication of the defamatory articles. Further, as previously stated, [respondents] failed to show that they had any good intention and justifiable motive for composing and publishing the vicious and malicious accusations against [petitioner].
Moreover, [respondents] published or caused the publication of the subject defamatory articles with reckless disregard as to the truth or falsity thereof. As previously stated, there is no proof that the contents of the subject articles are true or that the respondents exercised a reasonable degree of care before publishing the same. [Respondents] failed to present evidence showing that they verified the truth of any of the subject articles, especially in light of the categorical denial by [petitioner] of the accusations made against him.
[Respondents] did not exercise reasonable degree of care or good faith efforts to arrive at the truth before publishing the subject defamatory articles. [Respondents] did not present any competent evidence to establish the truth of their allegations against [petitioner]. There was no showing that [respondents] made any attempt to talk to [petitioner] to verify the statements contained in the defamatory articles, especially considering the gravity of the accusations made against [petitioner]. At the very least, [respondents] should have exercised efforts to talk to [petitioner] to clarify the issues and get his side. [Respondents’] failure to verify the truth of the information from [petitioner] himself is in itself an evidence of their lack of bona fide efforts to verify the accuracy of her information.
The incessant publication of the defamatory articles attacking the honor and reputation of [petitioner] is also proof of [respondents’] malicious scheme to malign and defame the name, honor and reputation of [petitioner]. As earlier pointed out, in a span of one (1) month, [respondents] wrote and published and/or caused the publication of seven (7) libelous articles against [petitioner] attacking his honor and reputation as a distinguished businessman, philanthropist, his political inclination, and as an employer in his insurance company. In fact, the presence of malice is made more evident by [respondents’] baseless and uncalled for attack on the person of [petitioner] as an employer.
Such baseless and malicious accusation of [respondents] on [petitioner] only proves the intention of the [respondents] in publishing the defamatory articles was not to present an unbiased report on current issues but to launch a personal attack on the very person of [petitioner].
14. As earlier explained, as correctly found by the trial court, even the timing of the publication of these subject articles is highly suspicious inasmuch as the subject libelous articles came out in the Manila Chronicle, a newspaper owned and under the control of [respondent] Coyiuto, around November to December of 1993, a couple of months prior to the January stockholders meeting of Oriental Corporation. From this, it is logical to conclude that the publication of the subject defamatory articles defaming the good name and reputation of [petitioner] is but a part of [a] grand scheme to create a negative image of [petitioner] so as to negatively affect [petitioner’s] credibility to the public, more particularly, to the then stockholders of Oriental Corporation. Worth noting also is the fact that the subject articles did not only portray [petitioner] in a bad light. Curiously, in these articles, [respondent] Coyiuto, a known rival of [petitioner], was portrayed as the underdog, the “David” and [petitioner] as the “Goliath” in their battle for control over Oriental Corporation. This does not escape the Court’s attention. These circumstances clearly indicate the presence of actual malice on the part of [respondents] in the publication of the subject libelous articles.
15. When malice in fact is proven, assertions and proofs that the libelous articles are qualifiedly privileged communications are futile, since being qualifiedly privileged communications merely prevents the presumption of malice from attaching to a defamatory imputation.
16. Finally, even if we assume for the sake of argument that actual malice was not proven in the case at bar, we nevertheless cannot adhere to the finding of the Court of Appeals in the Amended Decision that the subject articles were fair commentaries on matters of public interest, and thus fell within the scope of the third type of qualifiedly privileged communications.
17. In order to be considered as fair commentaries on matters of public interest, the individual to whom the defamatory articles were imputed should either be a public officer or a public figure.
18. In Borjal v. Court of Appeals, we stated that “the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. We stated that the doctrine of fair commentaries means “that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.”
19. Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc., [418 U. S. 323 (1974)] that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest.
20. In trying to prove that the subject articles delved on matters concerning public interest, the Court of Appeals insisted that Yuchengco was a public official or public figure, who “must not be too thin-skinned with reference to comment upon his official acts.” The Court of Appeals then noted that Yuchengco was, at the time of the Amended Decision, appointed as a Presidential Adviser on Foreign Affairs with Cabinet rank, and proceeded to enumerate the public positions held by Yuchengco through the years.
However, an examination of the subject articles reveals that the allegations therein pertain to Yuchengco’s private business endeavors and do not refer to his duties, functions and responsibilities as a Philippine Ambassador to China and Japan, or to any of the other public positions he occupied. A topic or story should not be considered a matter of public interest by the mere fact that the person involved is a public officer, unless the said topic or story relates to his functions as such. Assuming a public office is not tantamount to completely abdicating one’s right to privacy. Therefore, for the purpose of determining whether or not a topic is a matter of public interest, Yuchengco cannot be considered a public officer.
21. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Third, this would impose an additional difficulty on trial court judges to decide which publications address issues of “general interest” and which do not. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” (Curtis Publishing Co. v. Butts, 388 U.S., at 164) He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. (Emphasis supplied.)
22. The records in the case at bar do not disclose any instance wherein Yuchengco had voluntarily thrust himself to the forefront of particular public controversies in order to influence the resolution of the issues involved. He cannot, therefore, be considered a public figure. Since Yuchengco, the person defamed in the subject articles, is neither as public officer nor a public figure, said articles cannot be considered as qualifiedly privileged communications even if they deal with matters of public concern.
In view of the foregoing, the Court was constrained to grant the Petition and reinstated the Decision of the trial court, as previously affirmed by the Court of Appeals in its original Decision. The Court, however, found the award of damages in the total amount of One Hundred Million Pesos by the trial court to be rather excessive given the circumstances. The Court, thus, further resolved to reduce the award of damages, as follows:
1. The damages for which Chronicle Publishing, Neil H. Cruz, Ernesto Tolentino, Noel Cabrera, Thelma San Juan, Gerry Zaragoza, Donna Gatdula, Raul Valino and Rodney Diola shall be jointly and severally liable under the first cause of action shall be reduced as follows:
a. The amount of moral damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Two Million Pesos (P2,000,000.00); and
b. The amount of exemplary damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Five Hundred Thousand Pesos (P500,000.00);
2. The damages for which Roberto Coyuito, Jr. and Chronicle Publishing shall be jointly and severally liable under the second cause of action shall be reduced as follows:
a. The amount of moral damages shall be reduced from Fifty Million Pesos (P50,000,000.00) to Twenty-Five Million Pesos (P25,000,000.00); and
b. The amount of exemplary damages shall be reduced from Thirty Million Pesos (P30,000,000.00) Ten Million Pesos (P10,000,000.00).
Access to judicial records
The Supreme Court of the state of Minnesota, USA, in its issuance docketed as In re: Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch, No. C4-85-1848, January 21, 2004, adopted certain statements and rules on public access to judicial records within the said state.
I wish to digest hereinbelow the salient parts thereof for legal research purposes of jurists and lawyers regularly visiting this blog. Other jurisdictions might wish to explore the ideas contained in the Minnesota rules. Thus:
1. There was a growing national debate over whether and to what extent court records should be accessible electronically. Among the many issues were: which records should be published on the Internet and what privacy protections are necessary; what databases should be accessible in whole or in part to the public; and what fees, if any, should be charged.
2. Historically, court records in paper format have been broadly accessible to any member of the public willing to travel to the courthouse. The policy reasons for such access include promoting public trust and confidence in the courts and providing public information and education about the results of cases and the evidence supporting them. Access to court records is becoming easier and much broader now that an electronic format replaces or augments paper. The Internet’s capacity to consolidate information into easily searchable databases means that the trip to the courthouse is a virtual journey accomplished with the click of a computer mouse. These changes have eroded the practical obscurity that individuals identified in court records once enjoyed, and requires a review of access policies to ensure that a proper balance is maintained between many competing and often conflicting interests including, but not limited to, protection against unsubstantiated allegations, identity theft protection, accuracy, public safety,
accountability of courts and government agencies, victim protection and efficiency.
3. Most crime victims prefer to minimize Internet access to victim identifiers and locators (e.g., name, address, etc.), because such access will lead to more victimization and revictimization through intimidation and embarrassment, and there is nothing positive gained from publishing victim identifiers and locators on the Internet. Victims may also benefit from some public access to location information, however, such as being able to document that a particular neighborhood has a high incidence of crimes. Similarly, solutions supporting the prevention of identity theft conflict with the goal of accuracy. One approach to counter identity theft is to minimize the amount of personal identifying information about individuals, such as social security numbers, dates of birth, addresses, telephone numbers, etc., that is conveniently accessible to the public from electronic court records. The less identifying information that is available, however, the greater the likelihood that individuals will be misidentified as having been the subject of certain court records such as money judgments or criminal convictions. Such inaccuracies can have far reaching consequences.
4. Some uses of court records may cause harm. It is impossible to distinguish between valid requests for information and those requests that may cause harm. Some potential harm can be minimized by legislative activity, such as fair credit reporting laws that require recipients of court information to verify and correct information. In addition, potential harms must be balanced with the potential benefits, such as the ability to screen potential employees/workers and keep government accountable.
5. Many times in emotional proceedings such as family court matters, domestic matters and other civil suits very personal and private information is disclosed. Allegations are made in these proceedings through affidavits which many times relay abusive, inappropriate or dysfunctional behavior between the parties and their children. For example, it is necessary for a domestic abuse victim to give specific facts regarding the abusive actions of his or her partner. A parent must also be specific regarding abuse and neglect when making a motion for change in custody. Access to this information by anyone at any time can create further embarrassment, harassment and victimization of the parties. Unsubstantiated allegations of abusive or inappropriate behavior also raise significant concerns. The overwhelming majority of petitioners in domestic abuse Order For Protection and other Harassment restraining order proceedings are representing themselves. A growing number of family court motions are also being handled without an attorney. Unrepresented litigants do not have the same ethical duties as a lawyer in such situations. Internet publication of non-meritorious allegations can harm a person’s reputation even if a final court order finds that the allegations are without merit. Those that really need access for a legitimate purpose (such as the media reporting on the development of a case) can obtain the information from the courthouse. Internet publication of allegations made in these types of actions can harm a person's reputation even if a final court order finds that the allegations are without merit.
6. The advisory committee looked at several approaches to attempt to resolve these policy issues: One approach is to simply allow Internet access to all court records that are accessible to the public in paper format, and make any necessary adjustments to both paper and Internet records. The second approach is to try and retain the same level of public access to paper records and publish only a limited amount of those records on the Internet.
7. Proponents of the first approach believe that: (1) requiring a person to come to the courthouse to get information that is available to the public is a restriction of the public’s legitimate use of information that is otherwise easily available in electronic format, thus the second approach is on shaky legal ground; (2) if there is a valid public use for a certain record in paper format it should be available on the Internet as well; (3) it is unrealistic to conclude that in the future the courts can have all their files in electronic format but only provide paper-based access at the courthouse; (4) where access is limited to the courthouse, commercial data brokers will harvest the information anyway and will make it available, and it will only be available to those who can afford to pay a broker’s fee; and (5) accuracy will only be improved by putting the records on the Internet and exposing problems.
8. Proponents of the second approach believe that: (1) there is a difference between “public” records and “publishing” records on the Internet; (2) publication of only certain records on the Internet is an expansion of existing public access at the courthouse and not a limitation on public access at all; and (3) limited information should be placed on the Internet only after procedures and rules are in place to protect privacy interests; (4) just because technology enabling Internet access is available does not mean that it should be used for all matters; and (5) if the first approach is taken (i.e., allowing all public, paper records to be published on the Internet), there will be a backlash of public opinion that will likely sweep broad categories of information completely out of public view.
9. There was nearly unanimous agreement by the advisory committee that some information deserves privacy protection, such as social security numbers, financial account numbers, telephone numbers, and street addresses of litigants, jurors, witnesses and victims of criminal and delinquent acts. To achieve that kind of protection, the judicial system needs a process for redacting private information before publishing the records on the Internet. The committee believes that this result is practical only if remote access is limited to documents that the courts themselves generate, such as the register of actions, calendars, judgment dockets, and judgments, orders, appellate opinions, and notices prepared by the court.
10. Judgments, orders, and notices prepared by the court have integrity in that they are the product of an adjudicatory process. The same may not be true of other documents. For example, while an affidavit filed by a party may truthfully reflect that a particular allegation has been made, the affidavit does not have the same integrity. In addition, the courts control the issuance of judgments, orders and notices. The burden of not including certain items for Internet publication should not unduly interfere with the preparation of these items. If a social security number or victim’s name needs to be included in a particular judgment or order, the court has the opportunity to prepare a publicly accessible paper version and an Internet accessible version without too much additional effort. The committee realizes that its proposal to allow Internet access to all case records that the courts themselves generate will require education of judges, attorneys and court staff in order to avoid exposing the judicial branch to significant liability or the type of criticism that undermines the public trust and confidence in the courts.
11. Several advisory committee members reminded the committee that it needs to consider all perspectives, including that of the poor, minorities, victims, jurors and witnesses. The committee learned that most victims of crime prefer that victim identifiers (name, address, telephone numbers, etc.) not be published on the Internet because such access will lead to more victimization and re-victimization. Some committee members believe that if the courts have to sacrifice protection of victims, jurors and witnesses in order to implement Internet access, then the courts simply should not implement Internet access. A majority of the committee agreed that victim, juror, and witness identifiers should not be accessible through the limited, court generated records that the committee believes should be accessible on the Internet.
12. A minority of the advisory committee believes that: (1) the details of marriage dissolution (except the fact that marriage dissolution occurred and the dissolution’s impact on real estate) are “nobody’s business” and that the mere requirement of court intervention to rescind the marriage contract should not change private business into a public matter; (2) traditional appellate remedies and freedom of speech are sufficient means to keep judges accountable so further accountability through public access is not necessary; and (3) access to Internet and paper records of marriage dissolution cases should be limited to a certificate of dissolution and a summary real estate title document. Other committee members, however, believe that limiting Internet access to court-controlled records, coupled with expanded closure of financial source documents discussed above), removes a significant amount of troublesome information from public access and that some public access is necessary to hold the court system accountable in these cases.
13. One advisory committee member believes that there is no need for the courts to “publish” criminal conviction information on the Internet in light of the publication of conviction information by the Minnesota Bureau of Criminal Apprehension (“BCA”),17 and in light of the fact that the court is bound to ensure that dissemination of conviction information does not obviate the rehabilitative goals of the criminal justice system. Other committee members noted, however, that the BCA makes publicly accessible only felony, gross misdemeanor, and targeted misdemeanor conviction information for a period of 15 years after discharge form sentence, and that records that the BCA cannot match with fingerprint files are not publicly accessible. These committee members also pointed out that conviction information is necessary for background checks on all potential employees (not just those for whom statutes mandate a background check) and tenants. Thus there is a need for court publication of conviction records.
14. A minority of the advisory committee believes that any unsubstantiated allegations in civil court records (e.g., marriage dissolution affidavits) and in criminal case records (e.g., unproven charges) should not be published on the Internet because:
(1) it will ruin innocent lives; (2) it is wrong to use an individual’s tax dollars to publish or abet others who publish, unsubstantiated allegations against that individual; (3) current law makes statewide compilations of arrest and detention data private; and (4) ripple effects from racial profiling, for example, can result in a disparate impact on communities of color.
15. The advisory committee’s preliminary recommendation on Internet access should be viewed as the first step in a go-slow approach to providing more remote access to information. As indicated above, courts that have simply begun posting all public records on the Internet have encountered numerous problems and have had to pull back and reconsider their policy in light of privacy concerns raised by persons identified in the records. The committee agreed that the potential for damage to individuals necessitates a careful approach.
16. The advisory committee has preliminarily recommended that the same limitations on Internet access to records be applied to bulk data, such as databases that contain the elements of online computer systems. The rationale here is that the absence of limitations on bulk data renders the online remote access limitations moot as commercial data brokers will simply take the bulk data and make it available online. A minority of the committee believes that bulk data access should be provided to all data that is accessible to the public in any format.
17. The advisory committee also discussed the fees to be charged for bulk data. It suggests that “reasonable fees” should be charged for bulk data. The State Court Administrator’s Office currently charges by the kilobyte for bulk data, and waives all but the copy costs for media and educational and noncommercial scientific institutions whose primary purpose is scholarly or scientific research, as long as the recipients agree to sign a fee waiver agreement that restricts the use of the data to non-commercial purposes. Some advisory committee members believe that the courts should sell bulk data at high fees and use the proceeds to balance budgets and cover costs such as public defenders and computer system development. Other members believe that bulk data will only be accessible to sophisticated, capital-backed groups and that the average person will not have any meaningful access to bulk data. The implementation of new data warehouse tools might eventually allow the public to obtain reports online. Additionally, commercial data brokers will continue to harvest case records on a case-by-case basis and market their own bulk and online systems. A majority of the advisory committee believes that bulk data should not be put on the Internet but should be sold for profitable fees. A minority of the committee believes that bulk data should be accessible on the Internet and that fees should be limited to actual costs of providing the data.
18. Another issue highlighted in the Report is the development of a policy on correction of inaccuracies in court records. Although inaccuracies have occurred from time to time in paper-based court records, the advent of Internet publication will significantly magnify the potential for harm that such errors can cause. Procedures have long existed for correcting paper case records, and the advisory committee has recommended practical approaches to properly correct clerical errors in case records. There are some clerical or data entry-type errors that a court administrator can correct without the need for a court order. These include changes to the calendars and indexes. Changes to orders and judgments and other parts of the record, however, require formal legal action to correct. The advisory committee is aware of errors such as the wrong address or even the wrong name recited in a criminal complaint. Such errors may surface during preliminary court hearings where corrections are conveniently made or authorized by the court. Such errors can also surface informally in a telephone call to court administrative staff who in turn may either point out the requirements for obtaining relief by motion or refer the matter to the source of the record (e.g., the prosecutor) who then takes appropriate steps to rectify the situation (e.g., a motion or corrected filing).
19. One recommendation of the advisory committee is that juror questionnaires used to supplement oral examination of jurors in civil cases be sealed. These supplemental questionnaires can contain highly personal information. Although the same issue exists in criminal cases, there are constitutional issues involved. The Minnesota Supreme Court has recently determined that individual answers to supplemental juror questionnaires in criminal cases may be sealed only after there has been a balancing of the juror’s privacy interests, the defendant’s right to a fair and public trial, and the public’s interest in access to the courts. There must also be a finding that there is a substantial likelihood that conducting the voir dire in public would interfere with an overriding interest, including the defendant’s interest in a fair trial and the juror’s legitimate privacy interests in not disclosing deeply personal matters to the public.
20. The advisory committee also recommended a change with respect to the treatment of social security numbers and financial information submitted in marriage dissolution cases. Current law and court rules direct parties to submit the social security number on a separate, confidential information sheet, and to submit tax returns in a confidential envelope. The ultimate responsibility for failure to redact the social security numbers currently lies with the court administrator. Such redaction is time consuming, and, in a file with numerous documents, the possibility of missing just one social security number is great. The committee believes that it is appropriate to place the redaction burden on the persons who submit the documents to the court. With the increasing number of unrepresented litigants in family law cases, however, the committee understands and recommends that this burden must be accompanied by clear education of litigants involved in these cases. The committee also agreed that financial account numbers and other financial source documents such as wage stubs, credit card statements and check registers should also be protected.
21. A minority of the advisory committee believes that some witness identifiers such as addresses and telephone numbers should be kept out of public view entirely. Public access to witness identities does promote accountability. The majority of the committee believes that existing procedures for closing individual records remains an appropriate solution to address certain individual situations. Historically, dating back to the English system, the identity of witnesses assisted the community in determining the honesty of a witness. This may be particularly important in the case of expert witnesses whose opinions can be important to the outcome of cases.
22. The advisory committee considered what remedies, if any, are available when a court record custodian fails to comply with the ACCESS RULES. Although court employees can be disciplined for such violations, disciplinary action may not compensate for any resulting damages. For example, what remedy is available to a business owner whose trade secret information is improperly disclosed by a court administrator contrary to a protective order? What remedy lies for a person who has had criminal charges dismissed and expunged, but who later loses a job opportunity because court staff improperly disclosed the expunged record? What would be the basis for a damages claim in such situations, and what, if any, immunity would apply?
23. The possibility of official liability exposure against the government entity (as opposed to an individual court employee) exists under the state tort claims act, which authorizes claims for “injury to or loss of property or personal injury or death caused by an act or omission of an employee of the state while acting within the scope of office or employment.” Statutory exceptions to this liability, also referred to as statutory immunity, exist where an employee is exercising due care in the execution of a valid or invalid statute or rule, or is performing a discretionary duty, whether or not the discretion is abused. Although judges certainly have authority to exercise discretion in making decisions about access to records, court administrators typically do not. Thus, in the absence of due care, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by statutory immunity.
24. Similarly, the common-law doctrine of official immunity insulates discretionary action of a public employee at the operational level (as opposed to the planning level), but the discretion exercised must be more than a ministerial act. To be ministerial, the duty must be absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts. As discussed above, judges have discretionary authority in regard to record access issues, but court administrators typically do not. Thus, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by common-law official immunity.
25. The possibility of individual liability exposure exists under the federal deprivation of rights statute. Although the state and its employees cannot be sued in their official capacity under this federal statute, state officials may be sued in their individual capacity under this federal statute, subject to available common law immunities. The United States Supreme Court has granted absolute immunity from personal liability to a very limited class of officials whose special functions or constitutional status requires complete protection from suit, including the President, legislators carrying out their legislative functions, and judges carrying out their judicial (i.e., adjudicatory) functions. These same officials receive at best only a reduced or qualified immunity from personal liability for administrative employment decisions. Lower courts have issued conflicting decisions on whether court administrative staff is clothed with this same immunity when performing a duty that is part of a judicial process. Given the ministerial nature of the duty of court administrative staff to protect certain records from public disclosure, it is unlikely that the federal courts would extend immunity to a wrongful disclosure situation.
26. Publication of private facts requires: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to a reasonable person; (4) which is not of legitimate public concern; and (5) which proximately caused damages to plaintiff. Although newsworthiness is a complete bar to the recovery of damages, the bar may apply only when the facts at issue were contained in a record that is accessible to the public. The tort may not be recognized when the private facts are communicated only to a single person or small group of people. Thus, if the recipients of wrongfully disclosed court records do not further disclose the records, there may be no liability. If the recipients redisclose or publish the records, the claim would appear to be viable.
27. The advisory committee is also aware of the liability for executive branch agencies for violations of the Data Practices Act; such liability includes: (1) civil action against the governmental unit for damages, including costs and attorneys fees, plus a exemplary damages of up to $10,000 if the violation is willful; (2) injunctive relief; and (3) action to compel compliance including attorney fees and a civil penalty of up to $300 if the court compels compliance. Willful violations also create personal exposure for individuals in the form of misdemeanor criminal charges and just cause for suspension or dismissal from employment.
28. Some advisory committee members believe that it is not fair to impose the executive branch Data Practices Act liability on a court because the scope of the court’s role is so much broader than the typical executive branch entity, a court cannot reasonably control every piece of information that makes its way into the court’s files, and the fear of such liability will stifle public access and result in denials of hundreds of daily access requests that are now routinely granted. For example, if a judge fails to keep all social security numbers or victim identifying information out of a judgment or order and then files it with the court administrator, who then provides public access to the judgment or order, it is the court administrator who will be sued for the violation, not the judge. The next time a request for similar documents arises, the court administrator will seek legal counsel who will advise the administrator to disclose it only if the recipient agrees to indemnify the administrator or the court issues an order authorizing the disclosure. The time and cost associated with obtaining such an agreement or order has the potential to bring effective public access to a halt. Such problems are not present if liability is limited to willful or malicious disclosures only.
29. Other advisory committee members favor liability for inadvertent disclosures, citing recent case law (invasion of privacy tort discussed above) that allows a damages claim for disclosure of social security numbers by a private entity, and the absence of a complete shutdown of access under the current exposure to liability. These members also question whether the court can in essence trump the state tort claims statute by declaring that there can be no liability for anything other than willful or malicious violations of the ACCESS RULES. Other members explain that establishing the limits of liability is a part of establishing the duty to protect certain court records. The court has established immunity by court rule in other contexts that include record access duties.
30. At the request of the Minnesota Supreme Court Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts, the state courts have recently begun to collect race data from litigants in criminal, traffic, and all juvenile court matters. The litigants in these cases are asked to fill out a race census form and the court staff then enters the race information into the trial courts’ online computer systems. The paper forms are not retained in the court files related to the case and are destroyed after the data is entered. Currently, race census data are not displayed on public access terminals attached to these online systems, but the race census data are available in copies of the databases that are provided to the public.
31. The advisory committee is aware of the sensitive nature of this race census data. Before finalizing its report to the Supreme Court, the committee will solicit the input of the Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts as to whether public access to race census data should be: completely prohibited expect by court order (which presumably would mean that some researchers might be permitted access by court order); (2) prohibited only when access is sought via the Internet; (3) wide open.
I wish to digest hereinbelow the salient parts thereof for legal research purposes of jurists and lawyers regularly visiting this blog. Other jurisdictions might wish to explore the ideas contained in the Minnesota rules. Thus:
1. There was a growing national debate over whether and to what extent court records should be accessible electronically. Among the many issues were: which records should be published on the Internet and what privacy protections are necessary; what databases should be accessible in whole or in part to the public; and what fees, if any, should be charged.
2. Historically, court records in paper format have been broadly accessible to any member of the public willing to travel to the courthouse. The policy reasons for such access include promoting public trust and confidence in the courts and providing public information and education about the results of cases and the evidence supporting them. Access to court records is becoming easier and much broader now that an electronic format replaces or augments paper. The Internet’s capacity to consolidate information into easily searchable databases means that the trip to the courthouse is a virtual journey accomplished with the click of a computer mouse. These changes have eroded the practical obscurity that individuals identified in court records once enjoyed, and requires a review of access policies to ensure that a proper balance is maintained between many competing and often conflicting interests including, but not limited to, protection against unsubstantiated allegations, identity theft protection, accuracy, public safety,
accountability of courts and government agencies, victim protection and efficiency.
3. Most crime victims prefer to minimize Internet access to victim identifiers and locators (e.g., name, address, etc.), because such access will lead to more victimization and revictimization through intimidation and embarrassment, and there is nothing positive gained from publishing victim identifiers and locators on the Internet. Victims may also benefit from some public access to location information, however, such as being able to document that a particular neighborhood has a high incidence of crimes. Similarly, solutions supporting the prevention of identity theft conflict with the goal of accuracy. One approach to counter identity theft is to minimize the amount of personal identifying information about individuals, such as social security numbers, dates of birth, addresses, telephone numbers, etc., that is conveniently accessible to the public from electronic court records. The less identifying information that is available, however, the greater the likelihood that individuals will be misidentified as having been the subject of certain court records such as money judgments or criminal convictions. Such inaccuracies can have far reaching consequences.
4. Some uses of court records may cause harm. It is impossible to distinguish between valid requests for information and those requests that may cause harm. Some potential harm can be minimized by legislative activity, such as fair credit reporting laws that require recipients of court information to verify and correct information. In addition, potential harms must be balanced with the potential benefits, such as the ability to screen potential employees/workers and keep government accountable.
5. Many times in emotional proceedings such as family court matters, domestic matters and other civil suits very personal and private information is disclosed. Allegations are made in these proceedings through affidavits which many times relay abusive, inappropriate or dysfunctional behavior between the parties and their children. For example, it is necessary for a domestic abuse victim to give specific facts regarding the abusive actions of his or her partner. A parent must also be specific regarding abuse and neglect when making a motion for change in custody. Access to this information by anyone at any time can create further embarrassment, harassment and victimization of the parties. Unsubstantiated allegations of abusive or inappropriate behavior also raise significant concerns. The overwhelming majority of petitioners in domestic abuse Order For Protection and other Harassment restraining order proceedings are representing themselves. A growing number of family court motions are also being handled without an attorney. Unrepresented litigants do not have the same ethical duties as a lawyer in such situations. Internet publication of non-meritorious allegations can harm a person’s reputation even if a final court order finds that the allegations are without merit. Those that really need access for a legitimate purpose (such as the media reporting on the development of a case) can obtain the information from the courthouse. Internet publication of allegations made in these types of actions can harm a person's reputation even if a final court order finds that the allegations are without merit.
6. The advisory committee looked at several approaches to attempt to resolve these policy issues: One approach is to simply allow Internet access to all court records that are accessible to the public in paper format, and make any necessary adjustments to both paper and Internet records. The second approach is to try and retain the same level of public access to paper records and publish only a limited amount of those records on the Internet.
7. Proponents of the first approach believe that: (1) requiring a person to come to the courthouse to get information that is available to the public is a restriction of the public’s legitimate use of information that is otherwise easily available in electronic format, thus the second approach is on shaky legal ground; (2) if there is a valid public use for a certain record in paper format it should be available on the Internet as well; (3) it is unrealistic to conclude that in the future the courts can have all their files in electronic format but only provide paper-based access at the courthouse; (4) where access is limited to the courthouse, commercial data brokers will harvest the information anyway and will make it available, and it will only be available to those who can afford to pay a broker’s fee; and (5) accuracy will only be improved by putting the records on the Internet and exposing problems.
8. Proponents of the second approach believe that: (1) there is a difference between “public” records and “publishing” records on the Internet; (2) publication of only certain records on the Internet is an expansion of existing public access at the courthouse and not a limitation on public access at all; and (3) limited information should be placed on the Internet only after procedures and rules are in place to protect privacy interests; (4) just because technology enabling Internet access is available does not mean that it should be used for all matters; and (5) if the first approach is taken (i.e., allowing all public, paper records to be published on the Internet), there will be a backlash of public opinion that will likely sweep broad categories of information completely out of public view.
9. There was nearly unanimous agreement by the advisory committee that some information deserves privacy protection, such as social security numbers, financial account numbers, telephone numbers, and street addresses of litigants, jurors, witnesses and victims of criminal and delinquent acts. To achieve that kind of protection, the judicial system needs a process for redacting private information before publishing the records on the Internet. The committee believes that this result is practical only if remote access is limited to documents that the courts themselves generate, such as the register of actions, calendars, judgment dockets, and judgments, orders, appellate opinions, and notices prepared by the court.
10. Judgments, orders, and notices prepared by the court have integrity in that they are the product of an adjudicatory process. The same may not be true of other documents. For example, while an affidavit filed by a party may truthfully reflect that a particular allegation has been made, the affidavit does not have the same integrity. In addition, the courts control the issuance of judgments, orders and notices. The burden of not including certain items for Internet publication should not unduly interfere with the preparation of these items. If a social security number or victim’s name needs to be included in a particular judgment or order, the court has the opportunity to prepare a publicly accessible paper version and an Internet accessible version without too much additional effort. The committee realizes that its proposal to allow Internet access to all case records that the courts themselves generate will require education of judges, attorneys and court staff in order to avoid exposing the judicial branch to significant liability or the type of criticism that undermines the public trust and confidence in the courts.
11. Several advisory committee members reminded the committee that it needs to consider all perspectives, including that of the poor, minorities, victims, jurors and witnesses. The committee learned that most victims of crime prefer that victim identifiers (name, address, telephone numbers, etc.) not be published on the Internet because such access will lead to more victimization and re-victimization. Some committee members believe that if the courts have to sacrifice protection of victims, jurors and witnesses in order to implement Internet access, then the courts simply should not implement Internet access. A majority of the committee agreed that victim, juror, and witness identifiers should not be accessible through the limited, court generated records that the committee believes should be accessible on the Internet.
12. A minority of the advisory committee believes that: (1) the details of marriage dissolution (except the fact that marriage dissolution occurred and the dissolution’s impact on real estate) are “nobody’s business” and that the mere requirement of court intervention to rescind the marriage contract should not change private business into a public matter; (2) traditional appellate remedies and freedom of speech are sufficient means to keep judges accountable so further accountability through public access is not necessary; and (3) access to Internet and paper records of marriage dissolution cases should be limited to a certificate of dissolution and a summary real estate title document. Other committee members, however, believe that limiting Internet access to court-controlled records, coupled with expanded closure of financial source documents discussed above), removes a significant amount of troublesome information from public access and that some public access is necessary to hold the court system accountable in these cases.
13. One advisory committee member believes that there is no need for the courts to “publish” criminal conviction information on the Internet in light of the publication of conviction information by the Minnesota Bureau of Criminal Apprehension (“BCA”),17 and in light of the fact that the court is bound to ensure that dissemination of conviction information does not obviate the rehabilitative goals of the criminal justice system. Other committee members noted, however, that the BCA makes publicly accessible only felony, gross misdemeanor, and targeted misdemeanor conviction information for a period of 15 years after discharge form sentence, and that records that the BCA cannot match with fingerprint files are not publicly accessible. These committee members also pointed out that conviction information is necessary for background checks on all potential employees (not just those for whom statutes mandate a background check) and tenants. Thus there is a need for court publication of conviction records.
14. A minority of the advisory committee believes that any unsubstantiated allegations in civil court records (e.g., marriage dissolution affidavits) and in criminal case records (e.g., unproven charges) should not be published on the Internet because:
(1) it will ruin innocent lives; (2) it is wrong to use an individual’s tax dollars to publish or abet others who publish, unsubstantiated allegations against that individual; (3) current law makes statewide compilations of arrest and detention data private; and (4) ripple effects from racial profiling, for example, can result in a disparate impact on communities of color.
15. The advisory committee’s preliminary recommendation on Internet access should be viewed as the first step in a go-slow approach to providing more remote access to information. As indicated above, courts that have simply begun posting all public records on the Internet have encountered numerous problems and have had to pull back and reconsider their policy in light of privacy concerns raised by persons identified in the records. The committee agreed that the potential for damage to individuals necessitates a careful approach.
16. The advisory committee has preliminarily recommended that the same limitations on Internet access to records be applied to bulk data, such as databases that contain the elements of online computer systems. The rationale here is that the absence of limitations on bulk data renders the online remote access limitations moot as commercial data brokers will simply take the bulk data and make it available online. A minority of the committee believes that bulk data access should be provided to all data that is accessible to the public in any format.
17. The advisory committee also discussed the fees to be charged for bulk data. It suggests that “reasonable fees” should be charged for bulk data. The State Court Administrator’s Office currently charges by the kilobyte for bulk data, and waives all but the copy costs for media and educational and noncommercial scientific institutions whose primary purpose is scholarly or scientific research, as long as the recipients agree to sign a fee waiver agreement that restricts the use of the data to non-commercial purposes. Some advisory committee members believe that the courts should sell bulk data at high fees and use the proceeds to balance budgets and cover costs such as public defenders and computer system development. Other members believe that bulk data will only be accessible to sophisticated, capital-backed groups and that the average person will not have any meaningful access to bulk data. The implementation of new data warehouse tools might eventually allow the public to obtain reports online. Additionally, commercial data brokers will continue to harvest case records on a case-by-case basis and market their own bulk and online systems. A majority of the advisory committee believes that bulk data should not be put on the Internet but should be sold for profitable fees. A minority of the committee believes that bulk data should be accessible on the Internet and that fees should be limited to actual costs of providing the data.
18. Another issue highlighted in the Report is the development of a policy on correction of inaccuracies in court records. Although inaccuracies have occurred from time to time in paper-based court records, the advent of Internet publication will significantly magnify the potential for harm that such errors can cause. Procedures have long existed for correcting paper case records, and the advisory committee has recommended practical approaches to properly correct clerical errors in case records. There are some clerical or data entry-type errors that a court administrator can correct without the need for a court order. These include changes to the calendars and indexes. Changes to orders and judgments and other parts of the record, however, require formal legal action to correct. The advisory committee is aware of errors such as the wrong address or even the wrong name recited in a criminal complaint. Such errors may surface during preliminary court hearings where corrections are conveniently made or authorized by the court. Such errors can also surface informally in a telephone call to court administrative staff who in turn may either point out the requirements for obtaining relief by motion or refer the matter to the source of the record (e.g., the prosecutor) who then takes appropriate steps to rectify the situation (e.g., a motion or corrected filing).
19. One recommendation of the advisory committee is that juror questionnaires used to supplement oral examination of jurors in civil cases be sealed. These supplemental questionnaires can contain highly personal information. Although the same issue exists in criminal cases, there are constitutional issues involved. The Minnesota Supreme Court has recently determined that individual answers to supplemental juror questionnaires in criminal cases may be sealed only after there has been a balancing of the juror’s privacy interests, the defendant’s right to a fair and public trial, and the public’s interest in access to the courts. There must also be a finding that there is a substantial likelihood that conducting the voir dire in public would interfere with an overriding interest, including the defendant’s interest in a fair trial and the juror’s legitimate privacy interests in not disclosing deeply personal matters to the public.
20. The advisory committee also recommended a change with respect to the treatment of social security numbers and financial information submitted in marriage dissolution cases. Current law and court rules direct parties to submit the social security number on a separate, confidential information sheet, and to submit tax returns in a confidential envelope. The ultimate responsibility for failure to redact the social security numbers currently lies with the court administrator. Such redaction is time consuming, and, in a file with numerous documents, the possibility of missing just one social security number is great. The committee believes that it is appropriate to place the redaction burden on the persons who submit the documents to the court. With the increasing number of unrepresented litigants in family law cases, however, the committee understands and recommends that this burden must be accompanied by clear education of litigants involved in these cases. The committee also agreed that financial account numbers and other financial source documents such as wage stubs, credit card statements and check registers should also be protected.
21. A minority of the advisory committee believes that some witness identifiers such as addresses and telephone numbers should be kept out of public view entirely. Public access to witness identities does promote accountability. The majority of the committee believes that existing procedures for closing individual records remains an appropriate solution to address certain individual situations. Historically, dating back to the English system, the identity of witnesses assisted the community in determining the honesty of a witness. This may be particularly important in the case of expert witnesses whose opinions can be important to the outcome of cases.
22. The advisory committee considered what remedies, if any, are available when a court record custodian fails to comply with the ACCESS RULES. Although court employees can be disciplined for such violations, disciplinary action may not compensate for any resulting damages. For example, what remedy is available to a business owner whose trade secret information is improperly disclosed by a court administrator contrary to a protective order? What remedy lies for a person who has had criminal charges dismissed and expunged, but who later loses a job opportunity because court staff improperly disclosed the expunged record? What would be the basis for a damages claim in such situations, and what, if any, immunity would apply?
23. The possibility of official liability exposure against the government entity (as opposed to an individual court employee) exists under the state tort claims act, which authorizes claims for “injury to or loss of property or personal injury or death caused by an act or omission of an employee of the state while acting within the scope of office or employment.” Statutory exceptions to this liability, also referred to as statutory immunity, exist where an employee is exercising due care in the execution of a valid or invalid statute or rule, or is performing a discretionary duty, whether or not the discretion is abused. Although judges certainly have authority to exercise discretion in making decisions about access to records, court administrators typically do not. Thus, in the absence of due care, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by statutory immunity.
24. Similarly, the common-law doctrine of official immunity insulates discretionary action of a public employee at the operational level (as opposed to the planning level), but the discretion exercised must be more than a ministerial act. To be ministerial, the duty must be absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts. As discussed above, judges have discretionary authority in regard to record access issues, but court administrators typically do not. Thus, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by common-law official immunity.
25. The possibility of individual liability exposure exists under the federal deprivation of rights statute. Although the state and its employees cannot be sued in their official capacity under this federal statute, state officials may be sued in their individual capacity under this federal statute, subject to available common law immunities. The United States Supreme Court has granted absolute immunity from personal liability to a very limited class of officials whose special functions or constitutional status requires complete protection from suit, including the President, legislators carrying out their legislative functions, and judges carrying out their judicial (i.e., adjudicatory) functions. These same officials receive at best only a reduced or qualified immunity from personal liability for administrative employment decisions. Lower courts have issued conflicting decisions on whether court administrative staff is clothed with this same immunity when performing a duty that is part of a judicial process. Given the ministerial nature of the duty of court administrative staff to protect certain records from public disclosure, it is unlikely that the federal courts would extend immunity to a wrongful disclosure situation.
26. Publication of private facts requires: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to a reasonable person; (4) which is not of legitimate public concern; and (5) which proximately caused damages to plaintiff. Although newsworthiness is a complete bar to the recovery of damages, the bar may apply only when the facts at issue were contained in a record that is accessible to the public. The tort may not be recognized when the private facts are communicated only to a single person or small group of people. Thus, if the recipients of wrongfully disclosed court records do not further disclose the records, there may be no liability. If the recipients redisclose or publish the records, the claim would appear to be viable.
27. The advisory committee is also aware of the liability for executive branch agencies for violations of the Data Practices Act; such liability includes: (1) civil action against the governmental unit for damages, including costs and attorneys fees, plus a exemplary damages of up to $10,000 if the violation is willful; (2) injunctive relief; and (3) action to compel compliance including attorney fees and a civil penalty of up to $300 if the court compels compliance. Willful violations also create personal exposure for individuals in the form of misdemeanor criminal charges and just cause for suspension or dismissal from employment.
28. Some advisory committee members believe that it is not fair to impose the executive branch Data Practices Act liability on a court because the scope of the court’s role is so much broader than the typical executive branch entity, a court cannot reasonably control every piece of information that makes its way into the court’s files, and the fear of such liability will stifle public access and result in denials of hundreds of daily access requests that are now routinely granted. For example, if a judge fails to keep all social security numbers or victim identifying information out of a judgment or order and then files it with the court administrator, who then provides public access to the judgment or order, it is the court administrator who will be sued for the violation, not the judge. The next time a request for similar documents arises, the court administrator will seek legal counsel who will advise the administrator to disclose it only if the recipient agrees to indemnify the administrator or the court issues an order authorizing the disclosure. The time and cost associated with obtaining such an agreement or order has the potential to bring effective public access to a halt. Such problems are not present if liability is limited to willful or malicious disclosures only.
29. Other advisory committee members favor liability for inadvertent disclosures, citing recent case law (invasion of privacy tort discussed above) that allows a damages claim for disclosure of social security numbers by a private entity, and the absence of a complete shutdown of access under the current exposure to liability. These members also question whether the court can in essence trump the state tort claims statute by declaring that there can be no liability for anything other than willful or malicious violations of the ACCESS RULES. Other members explain that establishing the limits of liability is a part of establishing the duty to protect certain court records. The court has established immunity by court rule in other contexts that include record access duties.
30. At the request of the Minnesota Supreme Court Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts, the state courts have recently begun to collect race data from litigants in criminal, traffic, and all juvenile court matters. The litigants in these cases are asked to fill out a race census form and the court staff then enters the race information into the trial courts’ online computer systems. The paper forms are not retained in the court files related to the case and are destroyed after the data is entered. Currently, race census data are not displayed on public access terminals attached to these online systems, but the race census data are available in copies of the databases that are provided to the public.
31. The advisory committee is aware of the sensitive nature of this race census data. Before finalizing its report to the Supreme Court, the committee will solicit the input of the Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts as to whether public access to race census data should be: completely prohibited expect by court order (which presumably would mean that some researchers might be permitted access by court order); (2) prohibited only when access is sought via the Internet; (3) wide open.
Regulatory reform
A few years back I came across a law article entitled “Bargaining Theory and Regulatory Reform: The Political Logic of Inefficient Regulation” written by American lawyers David B. Spence and Lekha Gopalakrishnan.
I wish to share hereinbelow the salient parts of the said article for legal research purposes of the visitors of this blog, considering the significance thereof in relation to current issues and developments on regulatory reform (e.g., “negotiated rulemaking”, “collaborative regulation”, “collaborative bargaining”) as an adjunct of legal philosophy. Thus:
1. Why is regulation inefficient, and why do regulators forgo obvious opportunities to make it more efficient? This is a familiar lament, one that is heard beyond the confines of academic discourse.
2. Economists have long argued that statutes frequently require less-than-sensible approaches to policy problems. This economic critique of regulation has been particularly unrelenting in the field of environmental regulation, where economists have criticized the barriers to efficient pollution control posed by environmental statutes and regulations.
3. As an introduction, most regulatory law is the product of political processes. There are two varieties of inefficiency in regulation—substantive inefficiency and procedural inefficiency. Pareto optimality applies. The article argues that all available positive-sum changes from the status quo will be achieved through bargaining. It hypothesize that group with political veto power perceives an essentially positive-sum proposal in zero-sum terms. Stakeholders exercise their veto power rationally, not only because they suspect that proposed reforms would harm their interests, but also because this approach maximizes their ability to extract further concessions from their adversaries in the future.
4. “Regulatory reform” is not a new idea. There has been a groundswell of opposition to regulation as an impediment to economic growth, and a general trend toward increasingly centralized White House review of regulations.
5. The distinction between regulatory relief and regulatory reform is a distinction between ends and means—between simply reducing the regulatory burden on industry by lowering standards, and addressing the question of how best to achieve a given standard.
6. The substantive efficiency critique of regulation is long-standing and well-known, as is the economist’s solution for inefficiency: namely, the replacement of regulatory mandates with market incentives. It says that regulation should be minimally prescriptive, leaving to regulated firms the task of determining the means of compliance with regulatory limits and goals.
7. That preference for cost-efficiency has led to sustained criticism of so-called “command and control” environmental regulation, under which (i) all regulated firms must meet uniform, technology-based pollution control standards, and (ii) regulators often specify not only the firm’s pollution control goal, but the means of achieving it as well. That is, by specifying how individual firms must contribute to pollution control goals, we make pollution control unnecessarily costly. This is because command and control regulation ignores opportunities for two distinct benefits—gains from technological innovation and gains from trade.
8. Scholars from a variety of disciplines have identified some of the drawbacks and unintended consequences of rulemaking as a policymaking device. One group of critics argues that overuse of rulemaking has slowed agency decision-making and has multiplied interest group opportunities to challenge agency decisions in court, causing an explosion of administrative litigation and a consequent reordering of administrative priorities. This, in turn, has made agencies gun-shy and has produced an “ossified” agency decision making process that is less flexible, less rational, and less effective.
9. Another group of critics argues that rulemaking necessarily begets certain varieties of substantive inefficiencies because the task of writing an “optimally specific” rule is difficult, if not impossible. Most of the time, one size does not fit all. For that reason, crafting a rule that simultaneously provides meaningful guidance to private sector actors and accommodates the myriad circumstances it will encounter over the course of its lifetime is a Herculean task, one that most rule writers fail. The attempt to accommodate specific situations (either at the drafting stage or in subsequent revisions) can make rules complicated and unwieldy. It is this kind of problem that has led some scholars to propose that agencies rely minimally on rules and instead make rules on a case-by-case basis, the way common law “rules” emerge from a body of case law. Others recommend ways to make rules more adaptable and accommodating, such as writing less specific rules, authorizing waivers, and the like.
10. It is a fundamental axiom of neoclassical microeconomics that, under certain conditions, a Pareto optimal distribution should be achieved through bargaining.
11. In theory, negotiated rulemaking is designed to bring stakeholders into the regulation development process earlier, to promote the sharing of information and perspectives among stakeholders and the Agency, and thereby to produce better and less controversial rules.
12. Some regulatory reforms do run up against statutory and other legal constraints and those constraints certainly do reflect policy values other than cost-effectiveness and flexibility.
13. There is a general suspicion that reform in the name of efficiency may bring laxity. Thus, critics of reform argue, statutory admonitions compelling inefficient regulation reflect, at least in part, a social choice in favor of giving priority to these other goals, even at the cost of substantive inefficiency.
14. Critics of reform also challenge reformers’ concern with, and prescription for, procedural inefficiencies. The critics’ argument tracks closely the original justification for using rules, and reflects a continuing concern with the problem of regulatory capture. That concern, in turn, stems from a deep suspicion of the motives and trustworthiness of business participants in collaborative policy processes.
15. The specter of regulatory capture also hangs over the second general argument raised against reform: namely, the argument that collaborative policy processes represent a de facto cession of EPA decision making authority to private parties. First, reform initiatives that are designed to promote collaboration and cooperation between private stakeholders assume an interest group bargaining model of the policy process. In so doing, the initiatives ignore the notion of a “public interest” apart from the collision of private interests. Perhaps the most vigorous proponent of this view is William Funk, who sees some collaboration-based reforms as “perversions” of the public interest. He argues that the primary purpose of administrative law is to promote the rule of law, and that agencies’ actions are justified and legitimized by their faithfulness to statutory directives. This view contends that group consensus is a poor substitute for statutory authority as the basis for legitimacy.
16. In the context of regulatory reform, environmental interests may veto proposed positive-sum changes in the status quo (such as reductions in the cost of compliance coupled with modest pollution reductions) based on the belief that industry has not done enough to control pollution, or that polluting behavior is morally wrong. That is, environmentalists may view the status quo as both inadequate and, in a sense, illegitimate. They may view the status quo as a steppingstone to a more stringent future policy. This view is evident in the rich history of citizen suit litigation brought by environmental groups to force the EPA to tighten environmental standards. It is also why environmental laws are sometimes called “aspirational.” Not only do they set extraordinarily ambitious goals, but the major pollution control statutes also are designed to move policy toward those goals by producing ever more stringent pollution control limits in self-executing ways. Similarly, the long history of struggle to establish the status quo policy may contribute to the sense that the policy lacks democratic legitimacy. Environmental groups’ may suspect that industry can manipulate the policy process in unseen ways, and that they may be forced in the end to accept grudgingly a policy they deem inadequate.
17. Commentators seem to be split over the two-pronged question of whether collaborative regulation can or should succeed, between those who favor collaborative regulatory reform but fear that it is unworkable under the current legal regime and those who oppose collaborative regulatory reform. As we have noted, many in the latter group disapprove of the use of stakeholder bargaining as a policy-making technique on principle, arguing that it is an abdication of authority by agencies and therefore contrary to the fundamental underpinnings of our system of administrative law.
18. One need not subscribe to a pure interest group bargaining model of the policy process in order to favor collaborative regulation of the kind discussed here. Conversely, these experiments in collaboration involve no cession of authority by agencies to private actors. In each case, the EPA retains ultimate policymaking authority and has not been hesitant to use that authority irrespective of the wishes of industry and environmental stakeholders alike.
19. To the contrary, there is a strong argument that collaborative regulation improves agencies’ pursuit of the public interest, and not simply by identifying positive-sum policy changes. Collaborative bargaining can be seen as one embodiment of a more deliberative and less adversarial policy process, one that comports with the constitutional model of deliberative democracy. Indeed, some scholars have argued that elected officials can no longer deliberate in the way the founders intended, and that agencies do a better job of deliberating over policy change in the modern world.
20. Despite its merits, however, collaborative regulation faces some remaining obstacles. While collaborative regulation may sell itself to some of its current opponents over time, the incentive to bargain strategically remains. As this Article has shown, that incentive, combined with the statutory obstacles to widespread use of collaborative regulation, imposes formidable transaction costs on bargaining. As transaction costs go up, the number of positive-sum changes worth pursuing goes down. The problem is exacerbated by the EPA’s efforts to structure the bargaining process in ways that increase those costs. Indeed, other studies of the XL program have pointed toward EPA resistance as a key component of transaction costs.
I wish to share hereinbelow the salient parts of the said article for legal research purposes of the visitors of this blog, considering the significance thereof in relation to current issues and developments on regulatory reform (e.g., “negotiated rulemaking”, “collaborative regulation”, “collaborative bargaining”) as an adjunct of legal philosophy. Thus:
1. Why is regulation inefficient, and why do regulators forgo obvious opportunities to make it more efficient? This is a familiar lament, one that is heard beyond the confines of academic discourse.
2. Economists have long argued that statutes frequently require less-than-sensible approaches to policy problems. This economic critique of regulation has been particularly unrelenting in the field of environmental regulation, where economists have criticized the barriers to efficient pollution control posed by environmental statutes and regulations.
3. As an introduction, most regulatory law is the product of political processes. There are two varieties of inefficiency in regulation—substantive inefficiency and procedural inefficiency. Pareto optimality applies. The article argues that all available positive-sum changes from the status quo will be achieved through bargaining. It hypothesize that group with political veto power perceives an essentially positive-sum proposal in zero-sum terms. Stakeholders exercise their veto power rationally, not only because they suspect that proposed reforms would harm their interests, but also because this approach maximizes their ability to extract further concessions from their adversaries in the future.
4. “Regulatory reform” is not a new idea. There has been a groundswell of opposition to regulation as an impediment to economic growth, and a general trend toward increasingly centralized White House review of regulations.
5. The distinction between regulatory relief and regulatory reform is a distinction between ends and means—between simply reducing the regulatory burden on industry by lowering standards, and addressing the question of how best to achieve a given standard.
6. The substantive efficiency critique of regulation is long-standing and well-known, as is the economist’s solution for inefficiency: namely, the replacement of regulatory mandates with market incentives. It says that regulation should be minimally prescriptive, leaving to regulated firms the task of determining the means of compliance with regulatory limits and goals.
7. That preference for cost-efficiency has led to sustained criticism of so-called “command and control” environmental regulation, under which (i) all regulated firms must meet uniform, technology-based pollution control standards, and (ii) regulators often specify not only the firm’s pollution control goal, but the means of achieving it as well. That is, by specifying how individual firms must contribute to pollution control goals, we make pollution control unnecessarily costly. This is because command and control regulation ignores opportunities for two distinct benefits—gains from technological innovation and gains from trade.
8. Scholars from a variety of disciplines have identified some of the drawbacks and unintended consequences of rulemaking as a policymaking device. One group of critics argues that overuse of rulemaking has slowed agency decision-making and has multiplied interest group opportunities to challenge agency decisions in court, causing an explosion of administrative litigation and a consequent reordering of administrative priorities. This, in turn, has made agencies gun-shy and has produced an “ossified” agency decision making process that is less flexible, less rational, and less effective.
9. Another group of critics argues that rulemaking necessarily begets certain varieties of substantive inefficiencies because the task of writing an “optimally specific” rule is difficult, if not impossible. Most of the time, one size does not fit all. For that reason, crafting a rule that simultaneously provides meaningful guidance to private sector actors and accommodates the myriad circumstances it will encounter over the course of its lifetime is a Herculean task, one that most rule writers fail. The attempt to accommodate specific situations (either at the drafting stage or in subsequent revisions) can make rules complicated and unwieldy. It is this kind of problem that has led some scholars to propose that agencies rely minimally on rules and instead make rules on a case-by-case basis, the way common law “rules” emerge from a body of case law. Others recommend ways to make rules more adaptable and accommodating, such as writing less specific rules, authorizing waivers, and the like.
10. It is a fundamental axiom of neoclassical microeconomics that, under certain conditions, a Pareto optimal distribution should be achieved through bargaining.
11. In theory, negotiated rulemaking is designed to bring stakeholders into the regulation development process earlier, to promote the sharing of information and perspectives among stakeholders and the Agency, and thereby to produce better and less controversial rules.
12. Some regulatory reforms do run up against statutory and other legal constraints and those constraints certainly do reflect policy values other than cost-effectiveness and flexibility.
13. There is a general suspicion that reform in the name of efficiency may bring laxity. Thus, critics of reform argue, statutory admonitions compelling inefficient regulation reflect, at least in part, a social choice in favor of giving priority to these other goals, even at the cost of substantive inefficiency.
14. Critics of reform also challenge reformers’ concern with, and prescription for, procedural inefficiencies. The critics’ argument tracks closely the original justification for using rules, and reflects a continuing concern with the problem of regulatory capture. That concern, in turn, stems from a deep suspicion of the motives and trustworthiness of business participants in collaborative policy processes.
15. The specter of regulatory capture also hangs over the second general argument raised against reform: namely, the argument that collaborative policy processes represent a de facto cession of EPA decision making authority to private parties. First, reform initiatives that are designed to promote collaboration and cooperation between private stakeholders assume an interest group bargaining model of the policy process. In so doing, the initiatives ignore the notion of a “public interest” apart from the collision of private interests. Perhaps the most vigorous proponent of this view is William Funk, who sees some collaboration-based reforms as “perversions” of the public interest. He argues that the primary purpose of administrative law is to promote the rule of law, and that agencies’ actions are justified and legitimized by their faithfulness to statutory directives. This view contends that group consensus is a poor substitute for statutory authority as the basis for legitimacy.
16. In the context of regulatory reform, environmental interests may veto proposed positive-sum changes in the status quo (such as reductions in the cost of compliance coupled with modest pollution reductions) based on the belief that industry has not done enough to control pollution, or that polluting behavior is morally wrong. That is, environmentalists may view the status quo as both inadequate and, in a sense, illegitimate. They may view the status quo as a steppingstone to a more stringent future policy. This view is evident in the rich history of citizen suit litigation brought by environmental groups to force the EPA to tighten environmental standards. It is also why environmental laws are sometimes called “aspirational.” Not only do they set extraordinarily ambitious goals, but the major pollution control statutes also are designed to move policy toward those goals by producing ever more stringent pollution control limits in self-executing ways. Similarly, the long history of struggle to establish the status quo policy may contribute to the sense that the policy lacks democratic legitimacy. Environmental groups’ may suspect that industry can manipulate the policy process in unseen ways, and that they may be forced in the end to accept grudgingly a policy they deem inadequate.
17. Commentators seem to be split over the two-pronged question of whether collaborative regulation can or should succeed, between those who favor collaborative regulatory reform but fear that it is unworkable under the current legal regime and those who oppose collaborative regulatory reform. As we have noted, many in the latter group disapprove of the use of stakeholder bargaining as a policy-making technique on principle, arguing that it is an abdication of authority by agencies and therefore contrary to the fundamental underpinnings of our system of administrative law.
18. One need not subscribe to a pure interest group bargaining model of the policy process in order to favor collaborative regulation of the kind discussed here. Conversely, these experiments in collaboration involve no cession of authority by agencies to private actors. In each case, the EPA retains ultimate policymaking authority and has not been hesitant to use that authority irrespective of the wishes of industry and environmental stakeholders alike.
19. To the contrary, there is a strong argument that collaborative regulation improves agencies’ pursuit of the public interest, and not simply by identifying positive-sum policy changes. Collaborative bargaining can be seen as one embodiment of a more deliberative and less adversarial policy process, one that comports with the constitutional model of deliberative democracy. Indeed, some scholars have argued that elected officials can no longer deliberate in the way the founders intended, and that agencies do a better job of deliberating over policy change in the modern world.
20. Despite its merits, however, collaborative regulation faces some remaining obstacles. While collaborative regulation may sell itself to some of its current opponents over time, the incentive to bargain strategically remains. As this Article has shown, that incentive, combined with the statutory obstacles to widespread use of collaborative regulation, imposes formidable transaction costs on bargaining. As transaction costs go up, the number of positive-sum changes worth pursuing goes down. The problem is exacerbated by the EPA’s efforts to structure the bargaining process in ways that increase those costs. Indeed, other studies of the XL program have pointed toward EPA resistance as a key component of transaction costs.
Tuesday, January 5, 2010
Force multipliers
In my previous blogs, I mentioned that by issuing EXECUTIVE ORDER No. 546, dated July 14, 2006, Pres. Gloria Arroyo had exacerbated the proliferation and gravity of warlordism and political dynasties in the Philippines which in the long run would lead to the early death of democracy and the rule of law in the country.
I wish to comment on the provisions of the executive order.
The executive order is beautifully and misleadingly entitled “DIRECTING THE PHILIPPINE NATIONAL POLICE TO UNDERTAKE ACTIVE SUPPORT TO THE ARMED FORCES OF THE PHILIPPINES IN INTERNAL SECURITY OPERATIONS FOR THE SUPPRESSION OF INSURGENCY AND OTHER SERIOUS THREATS TO NATIONAL SECURITY, AMENDING CERTAIN PROVISIONS OF EXECUTIVE ORDER NO. 110 SERIES OF 1999 AND FOR OTHER PURPOSES”.
The pretexts of the order are “national security” and “peace and order’, which are the very same propaganda covers that totalitarian and George W. Bush-inspired regimes normally invoke to curtail the human rights of their citizens and to maintain their power structures in perpetuity.
The order cites Section 12 of Republic Act No. 6975, as amended by Republic Act No. 8551, which provides that the primary responsibility involving the suppression of insurgency and other serious threats to national security rests with the Armed Forces of the Philippines (AFP) and that the Philippine National Police (PNP) shall, through information gathering and performance of its ordinary police functions, support the AFP on the matter. The President may call on the PNP to support the AFP in combat operations.
By way of establishing the premises for the order, it states that the 30-year rebellion of the “National Democratic Front, the Communist Party of the Philippines and its military arm, the New People's Army” has a negative impact on the economy and that resolving the insurgency will foster a climate conducive to economic growth and national development.
Note that the order does not mention the Islamic rebellion led by the Moro National Liberation Front and the Moro Islamic Liberation Front and the organized criminal activities of the al Qaida-assisted Abbu Sayaff Group, all of which are based in Mindanao Island.
The order states that there is a need for a "whole of government approach" to ensure sustained, consistent, integrated and coordinated international security measures against the “Communist Terrorist Movement” and “other organized elements/groups engaged in armed offensives against the Government”.
Note that the two-fold theoretical targets of the order the “communists” and “other organized groups in armed offensives against the government”. The latter should, in theory, include the Islamic rebels, local warlords, gambling lords, drug lords, and organized criminal syndicates, but it seems that the priority of the order is to suppress only the ideology-based armed offensives of the Left.
Section 1 of the order provides that “the PNP shall support the AFP in combat operations involving the suppression of insurgency and other serious threats to national security.”
Section 2 provides that in the exercise of its responsibility, subject to the concurrence of the appropriate Local Chief Executive through the Local Peace and Order Council, the PNP is hereby authorized “to deputize the barangay tanods as force multipliers” in the implementation of the peace and order plan in the area. This provision gives the PNP substantial control over the Barangay Tanods.
More often than not, illiterate and corrupt Barangay Chairmen in far-flung barrios are beholden to local police officers (not to mention their mayors, governors and congressmen). Being the lowest in the echelons of power, they think and act as if they are loyal and unthinking messengers and domestic helpers of local military and police officers (and the local feudal warlords and dynasties that the latter serve and protect). The abovecited provision giving Barangay chairmen the theoretical power to allow or to deny a military or police request to deputize their Tanods for combat operations is an insulting illusion. The euphemistic term “force multipliers” used in the provision is nothing else but a dishonest cover to “militarize” the Tanods who by the very spirit of existing local government laws and regulations are purely civilian in nature, scope and intent. All of these to the detriment of the legal concept of the nonpartisan and autonomous nature of the Barangays as provided by existing laws.
Section 3 provides that the Department of the Interior and Local Government (DILG) shall exert efforts in “securing and institutionalizing funding support from Local Government Units”. For this purpose, governors and mayors, as deputized representatives of the National Police Commission in their respective territorial jurisdiction, and in relation to their sworn duty to implement Section 16 of the Local Government Code, shall ensure that sufficient funds shall be appropriated in their annual budget for “the operational and logistical support of the concerned PNP units for the implementation of this Executive Order”.
Here we see that the “mutuality of interest” between the local political dynasties and warlords, on one hand, and their local police protectors exists, on the other. The local police officers are paid, bribed and corrupted by the local government officials out of the official funds of the local government units generated from the taxes and regulatory fees imposed on the hapless Filipinos in the rural areas. In turn, the local police officers in the pretext of maintaining security provide the local dynasties and warlords with the necessary armed protection. This mutuality of interest is exploited by the national ruling party, led by Pres. Arroyo and her corrupt cohorts in the AFP, the PNP, and the Executive Branch, to perpetuate themselves in power by sham elections in God-forsaken areas where the uneducated and poor voters are easily intimated and corrupted and which are not exposed to the critical and investigative eyes of media reporters and editors.
To stress the official character of the mutuality of interest, Section 4 of the order provides that the Local Chief Executives, in coordination with the Local Peace and Order Councils, shall include in the integrated area/Community Public Safety Plan of their respective city/municipality, the priority program of action/thrust in resolving the insurgency and other serious threats to national security and ensure appropriation thereof for effective implementation of the order.
What is the reality on the ground? The truth is that the local politicians are in control of the armed Tanods and other civilian volunteer groups which they utilize as their private armies. The AFP and the PNP arm and train the Tanods and the CVOs and then abandon them to the full abusive control of the local politicians. The local police and military officers are maintained in the confidential payroll of the local politicians to make them beholden and loyal to the latter’s beck and call. The local politicians in turn benefit from the protection of the armed Tanods, CVOs, and local military and police officers during sham elections to perpetuate themselves in power at the expense of democracy and social justice.
How can you expect democracy and justice to survive under such debilitating and awful conditions? How can republicanism survive in an evil power structure that is dominated by warlords, dynasties and corrupt law enforcers?
See also:
Public Lives
Warlords in a weak state (Part 2)
By Randy David
Philippine Daily Inquirer
First Posted 22:38:00 01/08/2010
THE CREATION OF A SPECIAL COMMISSION to investigate the existence of private armed groups, and to recommend ways of dismantling them, would be nothing short of revolutionary, if the commission were to seriously do its work. Basic information alone on these private armies—for example, who maintains them, how long they have been in existence, how big they are, what kind of firearms they have, the personal backgrounds of their members, where they operate, etc.—could be so revealing as to explode all our illusions about Philippine democracy.
For all its brutality and barbarism—and the personal tragedies it brought to many families, notably of the media people who were used as human shields—the Nov. 23 Maguindanao massacre gives us a rare opportunity to ask questions about the nature of our political order, and why it has remained incapable of protecting our people from lawless violence. If only because of this, the senseless deaths of 57 unarmed civilians would not be in vain.
At the outset, the commission’s work will be hampered not by lack of information, but by the enormous power and influence of those who keep private armed groups. The police and the military know who they are. They have a rough estimate of how many such groups exist—170, according to one report (102 in the Autonomous Region in Muslim Mindanao, and 68 in the rest of the country). The key sociological question is: why has the state tolerated and, at times, subsidized their existence?
I suspect that the figures cited cover a wide range of armed groups—communist rebels, Islamic rebels, “lost commands,” kidnap-for-ransom and other criminal syndicates, bodyguards of politicians and businessmen, “civilian volunteer organizations” and other paramilitary units set up to help fight terrorist groups, etc. The list could be so mixed as to be useless. I believe the investigation must focus on armed groups associated with politicians, especially those with large properties and businesses. Then it may see for itself how all the other groups fall into place under our feudal political order.
The definition of a “private armed group” will be the first contentious issue. Many of those groups that precisely need to be dismantled will seek exemption from the scope of the commission’s investigation. We may anticipate the lines of possible exemption by simply deconstructing the object of the hunt: “private armed group.” What is “private”? What is “armed”? And what constitutes a “group”?
We only need to take a look at the situation in Maguindanao to appreciate the complex issues that will confront the commission. As public officials, the Ampatuans were clever enough not to use their own money to pay for the upkeep of their armed groups. Most of these security personnel were “civilian volunteers” who drew their salaries from public funds. A number of them were, in fact, regular policemen on special assignment. They were government employees, even if their services were privately appropriated. The Ampatuans can always claim that these men were securing them in their roles as public officials, rather than as private persons. Not that it makes any difference, however. It is not uncommon for influential private individuals to enjoy police security on an almost permanent basis at government expense. This is how blurred the lines between public and private are in our society.
What does it mean to be “armed”? Surely the directive does not include all armed individuals. Nor does it cover the private security agencies that have sprouted nationwide in just the past 20 years. While it may be easy to distinguish the legitimate professional security agencies from those used as covers for private armies, it will not be as easy to tell the difference between an “army” and an armed staff. How will the commission treat drivers and personal assistants who double as bodyguards and, as part of their work, happen to be armed? But one can imagine how an army can be assembled from a pool of personal bodyguards. If there is one driver and one personal assistant for every member of an extended family or a political clan, the number can easily attain the critical mass of an armed group. This brings up the question: what is a “group”?
A group is not just any loose collection of individuals; a group would have an authority structure, some rules, and a set of regular activities that constitute the roles of members. The number of people involved is not the crucial element. The crucial factor is the objective purpose for maintaining the armed group. As I understand it, the commission’s mandate is to go after those groups that are routinely deployed not just for self-defense or protection of property, but, more significantly, as an integral instrument of their owners’ political power or economic strategy.
There is logic to this: no state worth its name can afford to share its power with warlords. “If within the state,” said the political theorist Carl Schmitt, “there are organized parties capable of according their members more protection than the state, then the latter becomes at best an annex of such parties, and the individual citizen knows whom he has to obey.” In Maguindanao and almost everywhere in our society, the ordinary citizen bows to the warlord, the boss, the patron, the datu—the one who takes care of his needs and protects him. Do we wonder why we have a weak state? We may learn from Schmitt’s conclusion: “The protego ergo obligo (I protect therefore I oblige) is the cogito ergo sum (I think therefore I am) of the state.”
* * *
public.lives@gmail.com
see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100108-246282/Warlords-in-a-weak-state-Part-2
I wish to comment on the provisions of the executive order.
The executive order is beautifully and misleadingly entitled “DIRECTING THE PHILIPPINE NATIONAL POLICE TO UNDERTAKE ACTIVE SUPPORT TO THE ARMED FORCES OF THE PHILIPPINES IN INTERNAL SECURITY OPERATIONS FOR THE SUPPRESSION OF INSURGENCY AND OTHER SERIOUS THREATS TO NATIONAL SECURITY, AMENDING CERTAIN PROVISIONS OF EXECUTIVE ORDER NO. 110 SERIES OF 1999 AND FOR OTHER PURPOSES”.
The pretexts of the order are “national security” and “peace and order’, which are the very same propaganda covers that totalitarian and George W. Bush-inspired regimes normally invoke to curtail the human rights of their citizens and to maintain their power structures in perpetuity.
The order cites Section 12 of Republic Act No. 6975, as amended by Republic Act No. 8551, which provides that the primary responsibility involving the suppression of insurgency and other serious threats to national security rests with the Armed Forces of the Philippines (AFP) and that the Philippine National Police (PNP) shall, through information gathering and performance of its ordinary police functions, support the AFP on the matter. The President may call on the PNP to support the AFP in combat operations.
By way of establishing the premises for the order, it states that the 30-year rebellion of the “National Democratic Front, the Communist Party of the Philippines and its military arm, the New People's Army” has a negative impact on the economy and that resolving the insurgency will foster a climate conducive to economic growth and national development.
Note that the order does not mention the Islamic rebellion led by the Moro National Liberation Front and the Moro Islamic Liberation Front and the organized criminal activities of the al Qaida-assisted Abbu Sayaff Group, all of which are based in Mindanao Island.
The order states that there is a need for a "whole of government approach" to ensure sustained, consistent, integrated and coordinated international security measures against the “Communist Terrorist Movement” and “other organized elements/groups engaged in armed offensives against the Government”.
Note that the two-fold theoretical targets of the order the “communists” and “other organized groups in armed offensives against the government”. The latter should, in theory, include the Islamic rebels, local warlords, gambling lords, drug lords, and organized criminal syndicates, but it seems that the priority of the order is to suppress only the ideology-based armed offensives of the Left.
Section 1 of the order provides that “the PNP shall support the AFP in combat operations involving the suppression of insurgency and other serious threats to national security.”
Section 2 provides that in the exercise of its responsibility, subject to the concurrence of the appropriate Local Chief Executive through the Local Peace and Order Council, the PNP is hereby authorized “to deputize the barangay tanods as force multipliers” in the implementation of the peace and order plan in the area. This provision gives the PNP substantial control over the Barangay Tanods.
More often than not, illiterate and corrupt Barangay Chairmen in far-flung barrios are beholden to local police officers (not to mention their mayors, governors and congressmen). Being the lowest in the echelons of power, they think and act as if they are loyal and unthinking messengers and domestic helpers of local military and police officers (and the local feudal warlords and dynasties that the latter serve and protect). The abovecited provision giving Barangay chairmen the theoretical power to allow or to deny a military or police request to deputize their Tanods for combat operations is an insulting illusion. The euphemistic term “force multipliers” used in the provision is nothing else but a dishonest cover to “militarize” the Tanods who by the very spirit of existing local government laws and regulations are purely civilian in nature, scope and intent. All of these to the detriment of the legal concept of the nonpartisan and autonomous nature of the Barangays as provided by existing laws.
Section 3 provides that the Department of the Interior and Local Government (DILG) shall exert efforts in “securing and institutionalizing funding support from Local Government Units”. For this purpose, governors and mayors, as deputized representatives of the National Police Commission in their respective territorial jurisdiction, and in relation to their sworn duty to implement Section 16 of the Local Government Code, shall ensure that sufficient funds shall be appropriated in their annual budget for “the operational and logistical support of the concerned PNP units for the implementation of this Executive Order”.
Here we see that the “mutuality of interest” between the local political dynasties and warlords, on one hand, and their local police protectors exists, on the other. The local police officers are paid, bribed and corrupted by the local government officials out of the official funds of the local government units generated from the taxes and regulatory fees imposed on the hapless Filipinos in the rural areas. In turn, the local police officers in the pretext of maintaining security provide the local dynasties and warlords with the necessary armed protection. This mutuality of interest is exploited by the national ruling party, led by Pres. Arroyo and her corrupt cohorts in the AFP, the PNP, and the Executive Branch, to perpetuate themselves in power by sham elections in God-forsaken areas where the uneducated and poor voters are easily intimated and corrupted and which are not exposed to the critical and investigative eyes of media reporters and editors.
To stress the official character of the mutuality of interest, Section 4 of the order provides that the Local Chief Executives, in coordination with the Local Peace and Order Councils, shall include in the integrated area/Community Public Safety Plan of their respective city/municipality, the priority program of action/thrust in resolving the insurgency and other serious threats to national security and ensure appropriation thereof for effective implementation of the order.
What is the reality on the ground? The truth is that the local politicians are in control of the armed Tanods and other civilian volunteer groups which they utilize as their private armies. The AFP and the PNP arm and train the Tanods and the CVOs and then abandon them to the full abusive control of the local politicians. The local police and military officers are maintained in the confidential payroll of the local politicians to make them beholden and loyal to the latter’s beck and call. The local politicians in turn benefit from the protection of the armed Tanods, CVOs, and local military and police officers during sham elections to perpetuate themselves in power at the expense of democracy and social justice.
How can you expect democracy and justice to survive under such debilitating and awful conditions? How can republicanism survive in an evil power structure that is dominated by warlords, dynasties and corrupt law enforcers?
See also:
Public Lives
Warlords in a weak state (Part 2)
By Randy David
Philippine Daily Inquirer
First Posted 22:38:00 01/08/2010
THE CREATION OF A SPECIAL COMMISSION to investigate the existence of private armed groups, and to recommend ways of dismantling them, would be nothing short of revolutionary, if the commission were to seriously do its work. Basic information alone on these private armies—for example, who maintains them, how long they have been in existence, how big they are, what kind of firearms they have, the personal backgrounds of their members, where they operate, etc.—could be so revealing as to explode all our illusions about Philippine democracy.
For all its brutality and barbarism—and the personal tragedies it brought to many families, notably of the media people who were used as human shields—the Nov. 23 Maguindanao massacre gives us a rare opportunity to ask questions about the nature of our political order, and why it has remained incapable of protecting our people from lawless violence. If only because of this, the senseless deaths of 57 unarmed civilians would not be in vain.
At the outset, the commission’s work will be hampered not by lack of information, but by the enormous power and influence of those who keep private armed groups. The police and the military know who they are. They have a rough estimate of how many such groups exist—170, according to one report (102 in the Autonomous Region in Muslim Mindanao, and 68 in the rest of the country). The key sociological question is: why has the state tolerated and, at times, subsidized their existence?
I suspect that the figures cited cover a wide range of armed groups—communist rebels, Islamic rebels, “lost commands,” kidnap-for-ransom and other criminal syndicates, bodyguards of politicians and businessmen, “civilian volunteer organizations” and other paramilitary units set up to help fight terrorist groups, etc. The list could be so mixed as to be useless. I believe the investigation must focus on armed groups associated with politicians, especially those with large properties and businesses. Then it may see for itself how all the other groups fall into place under our feudal political order.
The definition of a “private armed group” will be the first contentious issue. Many of those groups that precisely need to be dismantled will seek exemption from the scope of the commission’s investigation. We may anticipate the lines of possible exemption by simply deconstructing the object of the hunt: “private armed group.” What is “private”? What is “armed”? And what constitutes a “group”?
We only need to take a look at the situation in Maguindanao to appreciate the complex issues that will confront the commission. As public officials, the Ampatuans were clever enough not to use their own money to pay for the upkeep of their armed groups. Most of these security personnel were “civilian volunteers” who drew their salaries from public funds. A number of them were, in fact, regular policemen on special assignment. They were government employees, even if their services were privately appropriated. The Ampatuans can always claim that these men were securing them in their roles as public officials, rather than as private persons. Not that it makes any difference, however. It is not uncommon for influential private individuals to enjoy police security on an almost permanent basis at government expense. This is how blurred the lines between public and private are in our society.
What does it mean to be “armed”? Surely the directive does not include all armed individuals. Nor does it cover the private security agencies that have sprouted nationwide in just the past 20 years. While it may be easy to distinguish the legitimate professional security agencies from those used as covers for private armies, it will not be as easy to tell the difference between an “army” and an armed staff. How will the commission treat drivers and personal assistants who double as bodyguards and, as part of their work, happen to be armed? But one can imagine how an army can be assembled from a pool of personal bodyguards. If there is one driver and one personal assistant for every member of an extended family or a political clan, the number can easily attain the critical mass of an armed group. This brings up the question: what is a “group”?
A group is not just any loose collection of individuals; a group would have an authority structure, some rules, and a set of regular activities that constitute the roles of members. The number of people involved is not the crucial element. The crucial factor is the objective purpose for maintaining the armed group. As I understand it, the commission’s mandate is to go after those groups that are routinely deployed not just for self-defense or protection of property, but, more significantly, as an integral instrument of their owners’ political power or economic strategy.
There is logic to this: no state worth its name can afford to share its power with warlords. “If within the state,” said the political theorist Carl Schmitt, “there are organized parties capable of according their members more protection than the state, then the latter becomes at best an annex of such parties, and the individual citizen knows whom he has to obey.” In Maguindanao and almost everywhere in our society, the ordinary citizen bows to the warlord, the boss, the patron, the datu—the one who takes care of his needs and protects him. Do we wonder why we have a weak state? We may learn from Schmitt’s conclusion: “The protego ergo obligo (I protect therefore I oblige) is the cogito ergo sum (I think therefore I am) of the state.”
* * *
public.lives@gmail.com
see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100108-246282/Warlords-in-a-weak-state-Part-2
Terminal cancers
How does one know if the leaders of a country are manipulative and shrewd?
One good indication is when the leaders -- faced with crucial societal issues that determine the future and the life and death of their political system – routinely create bureaucratic committees, panels, task forces, and commissions and perfunctorily hold junket workshops, seminars and summits on the pretext of studying a national problem instead of directly and bravely attacking the national disease by courageously and fairly applying and enforcing the law, no matter who might get hurt.
This immobilizing syndrome called “self-inflicted paralysis by over-analysis” is best exemplified in Pres. Gloria Arroyo’s reaction to the age-old existence of private armies in feudal local government units in the Philippines. She has just created an inutile and expensive presidential commission to “study” the issue of private armies. In the first place, she exacerbated the problem by issuing a few years ago Executive Order No. 546 which created the military-backed civilian volunteer organizations (CVO) in rebellion-infested parts of the country.
The CVO units were armed and trained by the Armed Forces of the Philippines (AFP) and subsequently entrusted by the latter to Pres. Arroyo’s favorite local government executives, who are nothing else but rich and powerful feudal warlords tasked to maintain Pres. Arroyo and her ruling party in perpetual power.
Read below the recent editorial of the Philippine Daily Inquirer on the same issue and you will know what I mean.
I have been consistently writing in this blog about the grave issue of private armies, warlordism, and political dynasties in the Philippines because they are the terminal cancers that will directly and surely lead Philippine democracy to its early death in this generation.
The rule of law and the justice system will die with it.
Editorial
Superfluous
Philippine Daily Inquirer
First Posted 22:52:00 01/04/2010
THE CREATION of a six-man commission assigned to dismantle private armies before the May elections has met with mixed reactions. President Gloria Macapagal-Arroyo’s allies in Congress expectedly welcomed the naming of the members of the commission. Others, like former Commission on Elections Chairman Christian Monsod, were not impressed by the commission’s purported broad powers.
Monsod said he understood that the commission was only a recommendatory body, and if that was so, “it’s not going to be very useful.” Bukidnon Representative Teofisto Guingona III said the commission’s assignment to study the problem of private armies was “a redundancy” because their existence was already a matter of public knowledge. He urged government forces to go after the private armies, which he said were illegal, and start dismantling them.
Monsod and Guingona are right. If the main purpose of the commission is to study the problem of private armies and make recommendations, then it is wasting precious time that could be used instead to immediately bear down on the private armies and dismantle them before they can create havoc in the May elections. It is already established that private armies are illegal; the thing to do now is to go after these illegal groups, break them up and disarm them.
The President, as commander-in-chief, should order the Armed Forces of the Philippines and the Philippine National Police to immediately dismantle the private armies. The process of dismantling the private army of the Ampatuans in Maguindanao is under way, and this is being done even without the special commission. Why can’t a similar operation be undertaken in other areas where private armies are known to exist?
Defense Secretary Norberto Gonzales recently cited intelligence reports of heavy purchases of weapons by local politicians. He said at least 132 private armies existed in various parts of the country, armed with close to a million loose firearms.
One million loose firearms constitute a lot of firepower. They’re enough to start a nationwide war. What’s the government, and particularly the AFP and the PNP, doing about this? Are they waiting for a conflagration to break out before they act?
Ms Arroyo’s spokesperson Gary Olivar said the permanent dismantling of private armies was “a tall order.” Indeed, it is a very difficult task, considering that private armies have been in existence for nearly six decades and have become permanent fixtures during elections. Private armies have been used by politicians to intimidate and kill their political opponents and to terrorize voters into voting for them.
Instead of forming a commission, it would have been better if the President had acted directly, ordering the AFP and the PNP to wage a nationwide campaign to seek out the private armies, arrest, and prosecute those suspected of having killed or wounded people in the past, confiscate all their loose firearms, and seize other guns pending verification of how they came into the possession of these armed groups. This has been done in Maguindanao; there is no reason to believe that a similar operation cannot be done in other areas in the country, provided the President is determined to exercise political will and act decisively to stamp out this bane in Philippine politics.
Will she do it? Or is she merely grandstanding to show her concern over the evil influence of private armies on national politics? She owes a lot to private armies. She owes a lot particularly to the Ampatuan political dynasty and its private army, which made it possible for her to amass a huge lead over opposition candidate Fernando Poe Jr. in Maguindanao in 2004 and for the administration senatorial slate to lead also in Maguindanao in 2007.
But since it appears that the President’s order creating the six-man commission can no longer be revoked, let it then conduct studies, including a review of Executive Order 546 which authorized the creation of private armed groups like the Civilian Volunteer Organizations. But even before the commission buckles down to work, nothing but lack of resolve prevents the President from ordering the military and the police to get on with the task of dismantling the private armies before they create any more damage.
See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100104-245519/Superfluous
One good indication is when the leaders -- faced with crucial societal issues that determine the future and the life and death of their political system – routinely create bureaucratic committees, panels, task forces, and commissions and perfunctorily hold junket workshops, seminars and summits on the pretext of studying a national problem instead of directly and bravely attacking the national disease by courageously and fairly applying and enforcing the law, no matter who might get hurt.
This immobilizing syndrome called “self-inflicted paralysis by over-analysis” is best exemplified in Pres. Gloria Arroyo’s reaction to the age-old existence of private armies in feudal local government units in the Philippines. She has just created an inutile and expensive presidential commission to “study” the issue of private armies. In the first place, she exacerbated the problem by issuing a few years ago Executive Order No. 546 which created the military-backed civilian volunteer organizations (CVO) in rebellion-infested parts of the country.
The CVO units were armed and trained by the Armed Forces of the Philippines (AFP) and subsequently entrusted by the latter to Pres. Arroyo’s favorite local government executives, who are nothing else but rich and powerful feudal warlords tasked to maintain Pres. Arroyo and her ruling party in perpetual power.
Read below the recent editorial of the Philippine Daily Inquirer on the same issue and you will know what I mean.
I have been consistently writing in this blog about the grave issue of private armies, warlordism, and political dynasties in the Philippines because they are the terminal cancers that will directly and surely lead Philippine democracy to its early death in this generation.
The rule of law and the justice system will die with it.
Editorial
Superfluous
Philippine Daily Inquirer
First Posted 22:52:00 01/04/2010
THE CREATION of a six-man commission assigned to dismantle private armies before the May elections has met with mixed reactions. President Gloria Macapagal-Arroyo’s allies in Congress expectedly welcomed the naming of the members of the commission. Others, like former Commission on Elections Chairman Christian Monsod, were not impressed by the commission’s purported broad powers.
Monsod said he understood that the commission was only a recommendatory body, and if that was so, “it’s not going to be very useful.” Bukidnon Representative Teofisto Guingona III said the commission’s assignment to study the problem of private armies was “a redundancy” because their existence was already a matter of public knowledge. He urged government forces to go after the private armies, which he said were illegal, and start dismantling them.
Monsod and Guingona are right. If the main purpose of the commission is to study the problem of private armies and make recommendations, then it is wasting precious time that could be used instead to immediately bear down on the private armies and dismantle them before they can create havoc in the May elections. It is already established that private armies are illegal; the thing to do now is to go after these illegal groups, break them up and disarm them.
The President, as commander-in-chief, should order the Armed Forces of the Philippines and the Philippine National Police to immediately dismantle the private armies. The process of dismantling the private army of the Ampatuans in Maguindanao is under way, and this is being done even without the special commission. Why can’t a similar operation be undertaken in other areas where private armies are known to exist?
Defense Secretary Norberto Gonzales recently cited intelligence reports of heavy purchases of weapons by local politicians. He said at least 132 private armies existed in various parts of the country, armed with close to a million loose firearms.
One million loose firearms constitute a lot of firepower. They’re enough to start a nationwide war. What’s the government, and particularly the AFP and the PNP, doing about this? Are they waiting for a conflagration to break out before they act?
Ms Arroyo’s spokesperson Gary Olivar said the permanent dismantling of private armies was “a tall order.” Indeed, it is a very difficult task, considering that private armies have been in existence for nearly six decades and have become permanent fixtures during elections. Private armies have been used by politicians to intimidate and kill their political opponents and to terrorize voters into voting for them.
Instead of forming a commission, it would have been better if the President had acted directly, ordering the AFP and the PNP to wage a nationwide campaign to seek out the private armies, arrest, and prosecute those suspected of having killed or wounded people in the past, confiscate all their loose firearms, and seize other guns pending verification of how they came into the possession of these armed groups. This has been done in Maguindanao; there is no reason to believe that a similar operation cannot be done in other areas in the country, provided the President is determined to exercise political will and act decisively to stamp out this bane in Philippine politics.
Will she do it? Or is she merely grandstanding to show her concern over the evil influence of private armies on national politics? She owes a lot to private armies. She owes a lot particularly to the Ampatuan political dynasty and its private army, which made it possible for her to amass a huge lead over opposition candidate Fernando Poe Jr. in Maguindanao in 2004 and for the administration senatorial slate to lead also in Maguindanao in 2007.
But since it appears that the President’s order creating the six-man commission can no longer be revoked, let it then conduct studies, including a review of Executive Order 546 which authorized the creation of private armed groups like the Civilian Volunteer Organizations. But even before the commission buckles down to work, nothing but lack of resolve prevents the President from ordering the military and the police to get on with the task of dismantling the private armies before they create any more damage.
See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100104-245519/Superfluous
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