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Friday, August 31, 2012

Tax plan promotes cigaret smuggling

By ANGELA CELIS

There will be an “explosion of black market cigarets “ in the Philippines should the government choose to implement the House-approved version of the sin tax proposal which seeks to raise excise taxes for cigarets by as much as 708 percent, the Philippine Tobacco Institute said.

During the Senate Committee of Ways and Means excise tax hearing last week, the PTI said that a sharp increase in excise taxes for cigaret products will increase the presence of smuggled or counterfeit cigarets in the country.

Lawyer Carmen Herce, manager of Philip Morris Fortune Tobacco Corp. (PMFTC), made a presentation during the Senate hearing to explain the position of the tobacco industry on the government’s plan to raise excise taxes.

Herce said that there are already two brands of black market cigarets in the country called Harvey and Chelsea, which are being sold in Mindanao at a price of P4.50 to P7.50 per pack, lower than the price of the cheapest legitimate cigarets, which are being sold at P10 to P12 per pack.

“While it is only concentrated in Mindanao, we fear that it will also be sold in other parts of the country should House Bill 5727 be implemented,” Herce said.

House Bill 5727 is the amended version of the original excise tax proposal authored by Cavite Rep. Joseph Emilio Abaya.

It is proposing a two-tiered system, as against the unitary tax system suggested under the original version of the bill. It also calls for an eight percent increase in the excise tax rates every two years, from January 1, 2015 until January 1, 2025.

Should the House-approved version become law, the tax rate for low-priced cigarets, which is currently pegged at P2.72 per pack but rises progressively, will increase to P12 in 2013 and P22 in 2014.

The mid-priced brands and high-priced brands which have tax rates of P7.56 and P12 respectively will be paying P28.30 in taxes in 2013 and P30 in 2014.

The premium brands already pay P28.30 per pack under the current system, and will have the same rate in 2013 and P30 in 2014 under the amended version of the Abaya bill.

By 2014, the increase in excise taxes for low-priced cigarets will be 708 percent, 297 percent for mid-priced cigarets, 150 percent for high-priced brands, and 6 percent from premium brands.

Herce said that the tobacco industry is questioning the House-approved version’s excise tax proposal which seeks to raise excise tax rates for cigarets close to the current tax level of premium brands.

“The market share of the premium segment is negligible at 0.10 percent, and its revenue share is also around 0.10 percent. If the government wants to optimize its desire to collect more revenues, it should take into consideration the segment which makes the most contribution to taxes which is the low-priced brands,” Herce said, adding that the low-priced segment accounts for 65 percent of the total market.

“If we look at the 708 percent increase and compare it with the excise tax increase in other countries, it will be the biggest in Asia. The highest increase so far was implemented in Brunei which hiked its excise tax rates by 360 percent in 2010,” Herce said.

Herce said that if the government pushes through with the House-approved bill, the volume of legitimate cigarets in the market is expected to drop to 49.1 billion sticks, from the current level of 100.5 billion sticks.

“If you adopt the elasticity of 0.87 which is based on a UP study, the drop in volume will be 51 percent or 51.4 billion sticks. That’s around half the current number,” she said.

Herce said that the drop in the volume of legitimate cigarets does not mean that people will stop smoking, since smokers could shift to smuggled or counterfeit cigarets sold at cheaper prices because they are not taxed.

“Our conservative estimates show that the illicit trade incidence will rise to 34 percent, which translates to around 25.7 billion sticks,” she said.

Herce said that this figure is based on the 51.4 billion sticks of legitimate cigarets that will be lost should there be a sudden increase in excise taxes. Of the said figure, 50 percent is expected to be replaced by illicit cigarets.

Herce cited the experience of Malaysia when it decided to raise excise taxes. She said that consumers merely shifted to cheaper alternative tobacco substitutes.

“In Malaysia, excise taxes increased by 365 percent from 2001 to 2009. This led to a 44 percent drop in the volume of legitimate cigarets, and 150 percent increase in illicit trade,” Herce said.

“In Brunei, the excise tax rate was raised by 360 percent. In less than one year, the drop in legitimate volume and the increase in illicit trade was 80.4 percent. The drop in legitimate volume was offset by the increase in illicit cigarets,” she said.

Citing the World Customs Organization, Herce said that cigaret smuggling remains a global problem which continues to increase despite the government’s enforcement strategies.

“The threat of illicit trade is recognized as a global problem. Even international government agencies would like to warn us of the adverse effects if we significantly increase taxes on cigarets,” she said.

Herce also explained her company’s research shows that the black market cigarets may be the work of terrorists who are trying to generate more revenues to fund their terrorist activities.

“It was discovered by enforcement agencies, and it is a worrying trend worldwide. Since black market cigarets is (a) very high profit (activity) and (is a) low risk method of raising revenues, it is also being used to fund terrorist activities,” she said.

Herce added that the health objective of the government to curb smoking might even be impaired since smokers will turn to cheaper and illegal alternatives.

“These black market cigarets have no health warnings, unlike legitimate cigarets which comply with the government’s regulations when it comes to issuing health warnings,” she said.

Meanwhile, Herce said that the volume of tobacco leaf used for domestic production will also drop with the Abaya bill in place to 17.7 million kilograms from the current level of 36.2 million kilograms.

“The affected farm area will be around 10,300 hectares, a 25 percent drop because the current land area used to plant tobacco is around 38,000 hectares. Almost 25 per cent of the land used for planting tobacco will be affected,” she said.

Herce said that around 40 percent of tobacco farmers and their dependents will lose their means of livelihood. There are nearly three million Filipinos who are currently employed by the tobacco industry.

“There will be adverse consequences if the government decides to implement HB 5727. There will be a massive contraction in the volume of legitimate cigarets, which are paying taxes. In turn, there will be a drop in the purchase of local tobacco leaf, there will a sharp increase in illicit trade, and there will also be an effect on unemployment,” Herce said.

Herce said that while the tobacco industry is against the tax increases proposed under the original and amended versions of the Abaya bill, they are still open to tax hikes as long as they are reasonable and moderate.

“We are not saying that the tax rates of cigarets should not be increased. We recognize that there is a need for the government to raise revenues to fund its various projects and we also recognize that there is an underlying health objective behind the revenue measure,” Herce said.

“What the industry is proposing is that any increase should be reasonable so that it will not result in any unintended consequences, such as the rise of illicit trade in cigarets,” she said.

During the Senate hearing, Herce presented an excise tax proposal agreed upon by PMFTC, Associated Anglo-American Tobacco Corp, and Japan Tobacco International.

“We are proposing a three-tiered system, down from the current four-tier structure. Maybe the cigarets in the premium level can be brought down to the same level of the high-priced brands since there is no volume in the premium segment,” Herce said.

“As to how the government will do that, we leave it up to the wisdom of the legislators. There should be moderate tax increases, and we favor this,” she said.

The tobacco industry proposes that the tax rate for the high-priced brands be raised to P12.50 next year from P12 this year; to P8.50 from P7.56 for mid-priced brands; and to P3.30 from P2.72 for the low-priced segment.

“We also propose that for every two years, there will be specific increases instead of percentage increases,” she said.

Herce said that under their proposal, the cigaret industry will generate incremental revenues of P7 billion on the first year of its implementation.

“We believe that by providing reasonable and moderate tax increases, the government can optimize its revenue collection without bringing about unintended consequences,” Herce said.

Senate President Juan Ponce Enrile countered Bureau of Internal Revenue Commissioner Kim Henares’ position on cigaret smuggling.

“I’m talking from experience. Read your tax history in this country. If you’re going to push everything up, I assure you, this whole country, you cannot police it, (even) if you employ the entire Armed Forces of the Philippines and Philippine Navy to prevent smuggling. You’ll have the entire southern border of the Philippines as a veritable, busy corridor for smuggled cigarets,” Enrile said.

“You will not collect what you are trying to collect. Yes, we are going to help the government. These industries have an obligation to contribute to the revenue of the government. But let us do it in a manner that will not create side effects or problems in the country,” Enrile said.

“If you’re going to (have) a very harsh system, you might end up having nothing. The power to tax is the power to destroy, but it is also the power to keep alive the government. Don’t destroy the goose that lays your golden egg. Find a happy medium, acceptable to the taxpayers and your consuming public, because if nobody will consume the product, what kind of revenue do you get?”

Senator Ralph Recto, the chairman of the Senate Committee on Ways and Means, also asked the Department of Finance to provide the computation as to how it was able to derive the P60 billion incremental revenues that is expected to be generated under the original Abaya bill.

The original estimate of P60 billion, was cut to P33 billion with tobacco required to shoulder the biggest burden of P27.

“Not only are we questioning the incremental revenues, but including putting in jeopardy what we are already collecting. So if you do have the computations, please submit it to the committee,” Recto said.

“Revenues are important, you don’t want to destroy it, or else there’s nothing to spend for health, for the displaced workers or displaced farmers,” he said.

Meanwhile, the Department of Finance said that the proposed hike in cigaret taxes does not mean that that there will be smuggling of counterfeit cigarets.

“Cigaret and alcohol prices in the Philippines are so low that even with increase in taxes, we will still not exceed those of our neighbors and thus will not significantly cause a surge in illicit trade,” Finance Assistant Secretary Ma. Teresa Habitan earlier said.

Habitan said, citing the World Health Organization, that the root cause of smuggling is not the price of the products, but “the lack of government commitment, corruption, and poor law enforcement.”

She also cited a study made by the World Bank and said that except for a few rare cases, countries which have significantly increased tobacco taxes and prices have experienced a reduction in tobacco consumption and higher tax revenues, “with little or no perceived change in smuggling.”

“Countries that are more transparent curbed smuggling regardless of the price and tax increases,” Habitan said, citing the World Bank as source.

Henares also cited the World Bank study during the Senate hearing.

“There’s a World Bank study that shows that smuggling is not directly related to the price. It is directly related to corruption and to governance,” she said.

Aquino has new special envoy to China

By REY O. ARCILLA

‘The DFA has officers with sufficient training in other languages. The problem is the Department seldom takes that into consideration when assigning them abroad.’

When President Aquino decided to appoint Sonia Brady as envoy to Beijing in the midst of our territorial dispute with China over the West Philippine Sea, everybody, including me, felt it was a very good choice.

However, when I heard that Sonia had a stroke early this year, I feared that the heavy responsibility she would be taking on would not be good for her health. I am not a doctor but I happen to know that stroke victims do not fully recover in a short period. I have seen it in both my father and mother and two brothers.

Given the stroke she suffered again last week, it is unlikely she will be able to devote full time to her duties for a while. I guess she will have to decide for herself whether to carry on or not. Whichever decision she takes, I wish her the best as always.

***

Incidentally, Noynoy quietly swore into office last week Carlos Chan aka Kiong Ki See as special envoy of the president to China. He is based in Manila and China.

Why? What for? Political accommodation or as a personal favor? This practice of appointing special envoys only undermines the work of our envoys and consuls general in a foreign country, especially if they do not coordinate their activities with the latter.

According to WikiPilipinas, Chan, 68, is a Filipino-Chinese business tycoon who founded Liwayway Marketing Corporation, manufacturer of Oishi brand food products. The company now has more than 12 factories all over China. It also has factories in Myanmar, Vietnam, Indonesia and Thailand.

***

DFA’s future ex-undersecretary for administration Rafael Seguis said “some heads will have to roll” over the reported issuance of a “fake” passport to fugitive Joel Reyes, former governor of Palawan. Reyes is suspected of having masterminded the murder of environmentalist and broadcast journalists Gerry Ortega.

Don’t hold your breath. Seguis and his boss, Secretary Albert “Amboy” del Rosario, are not exactly known for their strict adherence to Noynoy’s “daang matuwid” principle. They have consistently ignored and failed to conduct an investigation of certain irregularities in the DFA brought to their attention through this space.

Take for instance the case of the notorious Michael Macaraig whose suspension for one year due to conduct unbecoming of a staffer will expire next month. He was once president of the DFA Personnel Association but has so far refused, as of last month, to turn over the funds of the Association to the incumbent president. The Department should have filed a case against him before the Ombudsman long ago. Why has it not? Who is protecting him? Del Rosario? Seguis? Who?

***

Senator Edgardo Angara made a rather sweeping statement last week about the declining quality of our career foreign service officers. He specifically referred to the inability of our envoys to speak the language of their countries of assignment and their lack of educational qualifications compared to the envoys of other countries.
He is partly wrong on both counts.

We do have officers with sufficient training in other languages. The problem is the Department seldom takes that into consideration when assigning them abroad.

On the second point, DFA does have a number of officers with post-graduate degrees, but few of them on international relations. It is also true that other countries like some of our Asean partners have mostly envoys with doctoral and masteral degrees. What Angara does not know, however, is that these officers usually acquire their degrees courtesy of their respective governments. They are allowed to study in Ivy League-type schools as government scholars, with their salaries paid in full.

Contrary to what Angara said, we do have a Foreign Service Institute in the DFA. What needs to be done is for Congress to provide more funds to convert it into a full-fledged and world-class institute that will offer free of charge to DFA officers courses leading to masteral and doctoral degrees in international relations. Foreign funding may also be sought.

Otherwise, we can send our diplomats on full scholarships here or abroad.

***

Based on her qualifications, Maria Lourdes Sereno should make a good chief justice. By “good” I also mean hers will not turn out to be a “Noynoy court”.

The litmus test will be the Luisita case already decided upon with finality by the Supreme Court under impeached Renato Corona. The moment she touches that case and the verdict goes in favor of the Aquinos, her independence/impartiality will immediately be laid suspect. Noynoy’s detractors will also have a field day blasting his “daang matuwid” principle as a farce.

***

Ms. Gloria Arroyo reportedly wants to go abroad for medical reasons. If it is really needed, let her go for humanitarian reasons – provided she confesses first to all the charges lodged against her. She should also be accompanied by a number of officials and security pesonnel whose salaries, overtime pay, airfares, hotel accommodation and all other expenses shall be on her account. Otherwise, no deal.

Incidentally, has her husband Mike returned from his last trip abroad? He was granted permission to go a second time to Hong Kong and Japan. Surprisingly, he has not been seen since his wife started going in and out of the hospital. Where is he? If he is not back, isn’t the government worried that he may have already established residence abroad somewhere? If so, what happens to the cases filed against him? More importantly, what happens to lady justice? Trampled upon again?

***

Reminders (for Noynoy’s action):
1) Filing of charges against officials of the National Food Administration (NFA) during Arroyo’s illegitimate regime. Noynoy himself said on several occasions that there is documentary evidence to prove the venalities in the past in that agency; 2) Investigation of reported anomalies in the GSIS during the watch of Winston Garcia; 3) Facilitating the investigation of rampant corruption in the military and police establishments; and 4) Expeditious action by the AFP on the case of Jonas Burgos.

***

Today is the 114th day of the sixth year of Jonas Burgos’ disappearance

From an internet friend:
Comments made by NBC sports commentators during the Olympics that they would like to take back:
1. Dressage commentator: “This is really a lovely horse and I speak from personal experience since I once mounted her mother.”
2. Paul Hamm, gymnast: “I owe a lot to my parents, especially my mother and father.”
3. Boxing analyst: “Sure, there have been injuries and even some deaths in boxing, but none of them really that serious.”
4. Softball commentator: “If history repeats itself, I should think we can expect the same thing again.”
5. Tennis commentator: “One of the reasons Andy is playing so well is that, before the final round, his wife takes out his balls and kisses them… Oh my God, what have I just said?!”

**
Email: roacrosshairs @yahoo.com

Investor fatigue?

By ATTY. DODO DULAY

The news that Ford Philippines will be closing its car manufacturing plant in Santa Rosa, Laguna, at the end of the year has undoubtedly put a damper on the Aquino administration’s efforts to attract foreign investors to the country.

Ford says the lack of supply base and economies of scale convinced them to stop operations in the country. Stripped of technical gibberish, it simply means the American carmaker can no longer manufacture and export vehicles at competitive prices. It will be cheaper – and therefore, more profitable – for Ford to manufacture cars elsewhere. Whether that’s due to the increasing cost of doing business in the country caused by rising power rates and importation costs, or the competition from cheaper Japanese automakers relying on cheaper imported parts and components, Ford did not elaborate.

Not surprisingly, administration officials were quick to downplay Ford’s pull-out saying the carmaker’s business model was not viable in the first place because it chose to go big on exporting vehicles before fully developing the local market. DTI officials even chided the American automaker for supposedly failing to see the potential of the country’s automotive industry and fulfilling the “efficiencies and market share.”

What the Aquino administration seemingly ignores is that Ford is the only volume exporter of completely built units. And when Ford shuts downs its factory in December, there will no longer be any participant in the country’s car export program since Ford is currently the lone participant in the program. The country also stands to lose $1 billion a year in exports which Ford was able to generate from shipments to our Asian neighbors, Thailand, Malaysia and Indonesia over the past several years. Another big loser from Ford’s pull-out will be the 250 skilled Filipino workers, their workers, and other Filipino businesses and their workers who are dependent on the American carmaker.

Ford’s pull-out will definitely be a setback to President Aquino’s dream “to get manufacturing back in the country.” And instead of foreign investors “lining up” to set up or expand their businesses in the country, as the Palace boasted before, it seems they’re heading out the door.

That’s apparently what General Mills, Inc. – the American Fortune 500 corporation known as one of the world’s largest food companies – also did. Last month, the local distribution arm of General Mills decided to leave the country, halting the sale of its famous Häagen-Dazs, Gold Medal, Green Giant, Nature Valley, Pillsbury, and Betty Crocker food brands beginning September 1.

According to a statement made by its local subsidiary, “General Mills’ business in the Philippines has been consistently challenging in all the 12 years that we’ve operated here.”

“We simply can no longer sustain our business in the increasingly challenging environment we face,” the company added without elaborating.

Those definitely aren’t the words of a happy investor. Aside from being pregnant with meaning, the phrase “challenging environment” certainly doesn’t inspire investor confidence in the country’s business climate.

It therefore isn’t surprising that General Mills’ pull-out has been attributed to a corrupt bureaucracy. A news report said the real reason the American food giant left the country was because it could no longer tolerate a corrupt Bureau of Customs official it had to deal with when importing its goods. General Mills supposedly decided to simply forget the Philippine market rather than haggle over tariffs to pay in order to get their stocks past Customs.

Of course, that earned a quick riposte from Customs Commissioner Ruffy Biazon who even posted in his blog, the curt reply from General Mills’ brand manager that the news item was “inaccurate” after he asked them whether corruption in the Bureau was the “sole” reason for General Mills’ pullout. That’s well and good. But “inaccurate” doesn’t necessarily mean the news item was totally untrue or that it was the only reason for the food giant taking flight. Neither did General Mills flatly deny that bribery or corruption does happen at the customs bureau.

Whatever the real score is, it’s clear is that it will take more than picture-perfect roadmaps or growth potential statistics to attract and keep foreign investors in the country. The bottom line is the government should make it profitable for business to operate in the country – a view echoed by Ford when it admitted that its concern was to be “able to produce at a level which will bring in profits for our shareholders.” That can only happen if the government lowers the costs of doing business vis-à-vis our Asian neighbors by leveling the playing field, lowering electricity rates, building and improving infrastructure, cutting down red tape in government agencies and local governments, and educating and training our workforce to meet the demands of market.

Sereno’s appointment to stir more controversy

By Benjamin B. Pulta and Angie M. Rosales

New CJ shows yellow slip, says only Edsas 1, 2 are ‘democratic demos’

Chief Justice Lourdes Sereno’s appointment continues to be hounded by serious concerns with one senator sensing her assumption to the Chief Justice position may likely stir further controversy in the judicial branch, stemming from her nearly two decades of stay in her post, along with the apparent resentment being shown by her magistrate-colleagues in the Supreme Court.

A Tribune source said the senior justices have been ignoring her almost completely, despite her being their chief.

It is also to be noted that none of the more senior justices, especially the bypassed ones, attended her oath taking.

“They snubbed it. I would call it as a snub,” Sen. Miriam Santiago said yesterday, referring to the senior justices’ absence during Sereno’s oathtaking in Malacañang last Saturday as well as the reported non-attendance of the same senior group during their usual “lunch” after an en banc meeting last Tuesday, saying that these are already “subtle messages of at the very least disagreement, at most vehement opposition.”

Already, Santiago said, she has been hearing some “derogatory remarks about her official conduct which I’m sure has been sourced from her enemies within the SC.”

“So they’re preparing the minds of the public already....After the moment of victory, there’s always a moment of reality and the reality is that the SC, particularly the senior justices are extremely unhappy that she jumped the queue. There is no law that limits the power of appointment of the President. He has plenary appointive power under our tripartite system of government so he has not violated any law.

“However, the beneficiary of what he has done is going to be target of all kinds of forms of non-cooperation in the SC. Remember that the CJ has only one vote just like any other so there’s no possibility within reason that major decisions of the SC will be reversed simply because she has been appointed CJ,” she said.

“If the President appoints another justice to take over her old vacancy, that will only add one more vote.So actually, she cannot deliver on all these high expectations. “They are beyond her own functions as CJ plus she has all these animosity repressed or otherwise from the other SC justices,” she added.

Santiago said this does not augur well for the Judiciary. The message is that this is too deep a selection to be acceptable to the SC.”

Santiago explained that not only the SC justices involved but probably even the so-called insiders in the Judiciary who are considered veterans, “they look on the assumption of Sereno, who is an appointee of Aquino as a junior associate justice but who in a matter of months managed to snag the plum post (as an insult to the senior justices), saying this reaction is similar to any innovation as a serious disturbance of the present order.

“It’s not really giving opportunities to others as much as the fact that the person cannot possibly attune herself to all the judicial undercurrents within the space of 18 years. She will get set in her ways, just 10 years would be enough just like in the International (Criminal) Court (ICC) our terms of office are nine years.

“If you put that as against the 18 years of a domestic CJ, you can see that there is a disparity between what is expected from the productive years of a justice or as we call it in ICC, as a judge and what is actually taking place,” the senator pointed out.

Santiago was elected last year as one of the new judges of the ICC, an international tribunal that handles crimes against humanity and is just awaiting notice for her formal assumption to the post before tendering her resignation in the Senate.

“So I must admit that it is an anomaly because no person can be expected to be on her toes for all of 18 years. The ICC estimates it will only be nine years when a judge becomes productive. After that maybe it goes downhill,” she said.

Sereno has also shown her yellow color bias, amid her claim of independence, anewly appointed as she cited that only the first two Edsas were demonstrations of democracy.

In a speech before the Presidents of Law Associations (PoLA) in Pasay City, Sereno made a deliberate effort not to include Edsa lll, the aborted uprising by supporters of then President Joseph Estrada in her list of “democratic” outbursts.

“This pattern of our people bursting out in action when they had had enough not because they had already a developed understanding of principles of democracy was demonstrated according to scholars in 1986, Edsa people power 1, in Edsa people power 2, and according to scholars also in the various responses to the governance of former President Arroyo.” Sereno said yesterday.

Edsa ll was seen by the international media and community as a a coup d’etat against the constitutional government of Estrada, and could not possibly be democratic, as Edsa ll went against the Constitution and the Rule of Law.

But Sereno is also known for disregarding even the Supreme Court orders.

She also took a sideways reminder of the movement to end the Marcos administration.
“It has actually only been since the 70s n 80s where our people started to experience cooperation in collective action more fully.”she added.

Sereno also asked the people to help her in undertaking judicial reforms.

She added that the judiciary should take measures to protect its records from natural disasters which plague the country as well as move towards a paperless system.”

“We have to rethink our paper based system, and usher in a judicial system that is less paper dependent. We have to do our share in minimizing the amount of trees cut down with more paper demands. We have to think of about internal communication strategies and that also of our external relations,” she said.

Adding to Sereno’s dilemma is probably her own remarks made during the televised public interview where the newly-appointed CJ expressed her preference for the President to choose from among the so-called SC insiders in the Judicial and Bar Council (JBC) shortlist, the senator noted.

“I think she will have to be very careful and assuage the ruffled feathers of many in the SC. That’s a very bad beginning for a new CJ and her own words that appointing an outsider is like appointing a civilian to lead an army might apply to her as well because maybe appointing an associate justice who has served only for a few months might in effect be the same as appointing a civilian to head an army. It’s like appointing, let’s say a technical sergeant to lead an army into the battlefield where the natural expectation is it must be a general who has gone through the ranks.

“If (Sereno) encounters all these imagined horrors in her immediate future, she might be remembered as the one who met a tsunami of opposition.

“She now has to go on a campaign to garner more allies within the SC. She has virtually has no powers outside of her administrative powers as CJ for example approving certain appropriations for foreign travels of the justices and so on, mostly it has to do with their monetary compensation or their allowances.

“But since she is no less than the CJ, this power even if judiciously applied may not be enough to compensate for all these things that her appointment seems to have cost among the rest of the judiciary,” she said.

The issues against Sereno and other related concerns can only be solved by means of a constitutional amendment, the senator pointed out.

“I think that the best solution to this problem is constitutional. We have to have a separate constitutional court from a regular SC and I think we also have to examine whether it will be good for the Judiciary or for the country to appoint a person under a system under which she can serve for all of 18 years. That seems to be an open field of speculation like is she going to be stuck in her own judicial framework or she’ll be able to adjust to the changing circumstances as she serves out the 18.

“That what happens when the goal posts are not clear. I really think that there should be a constitutional provision on how the CJ should be appointed.

Santiago also proposed that there should probably a “constitutional court” as most of the cases elevated to the SC involve questions of constitutional law and “she’s not an expert there, she’s an expert in international trade law or civil law.”

“She has no expertise as far as I know in constitutional law so it will be very difficult because most of the cases that come up to the SC after all that weeding out in the Court of Appeals will involve constitutional questions and if the other justices do not adhere to her leadership, because they think they know better, then that is going to make for a divided court in most of these cases and a divided court is always just a little better than a non-existent court because it does not lay down any guidelines. A badly split decision is not considered precedent because it does not express the collective opinion of the court,” she said.

For the meantime, Santiago expressed belief that Sereno should address the issues now being thrown at her such as her compensation from the Piatco case where she stood as lawyer for the government which critics claimed have not been properly reported in her SALn.

“There’s another charge, the pschological exam test. I think all of these are very destructive of the judiciary as an institution so as much as possible I think she should make an effort to have the JBC, which she is now the chair, release the results of the psychiatric or psychological testing of the applicants plus I think, she also has to issue a statement on her compensation and, why if I am correct it is not included in her SALn so all of these can be cleared away.

“There’s already stone-throwing so early.” the senator said.

Santiago expressed pessimism on whether Sereno will be able to gain the confidence of her colleagues.

Senate plagiarism – a template to follow?

August 29, 2012

Since the news of Sotto’s plagiarism broke out, I knew someone in his office will get it, for it is rare for these politicians and even business leaders to be writing their own speeches.

I was waiting for the celebrity senator and his office to own up but Hey! They haven’t and looks like they are bent on setting a wrong as a right to be an accepted template in the senate!

I strongly feel that Filipino netizens shouldn’t let this issue die down until Sotto and his office owns up. The SC Associate Justice Mariano del Castillo may have gotten away with the excuse of “accidental removal of proper attributions”, but THINKING people know better. Sotto and his office cannot invoke the same when it is very obvious that the staff purposely and knowingly omitted attribution.

As “leaders” and “educated” men, they are setting a perfect example of arrogance and ignorance for the rest of the citizens of the Philipines to emulate.
Let me try to understand the argument of the chief of staff of the Senate Majority Leader that “Plagiarism is rampant in the Senate, but some staff members of senators consider it an acceptable practice.” (http://newsinfo.inquirer.net/255890/plagiarism-common-practice-ok-in-senate-says-sottos-aide)

According to Atty. Hector Villacorta, Sotto’s chief of staff: “We plagiarized the US Constitution. All the amendments became our Bill of Rights. But do they call us a plagiaristic country? No, because the law is based on precedent.”

Do excuse my pedestrian knowledge of the law but from my angle, what I only I see is that Villacorta talks about laws but has overlooked the fact that there IS ALWAYS a corresponding attribution to note. May I be advised as to how did he come to know that so and so bill is copied and that our Bill of Rights was copied from the US Constitution, if there was no mention of it anywhere?

Villacorta talks about laws but is obviously oblivious of the laws that govern INTELLECTUAL PROPERTY IN THE INTERNET. Is he even aware that a photo, a blog or anything online can be deleted or shut down based on INTELLECTUAL PROPERTY ABUSE? Case in point are those in this album who claimed “Minsan may Isang Puta” as their own and even dared to say they have made it an entry to a competition.

All of them had been taken down by Multiply or the server/site administrator.

With all due respect, Mr. Villacorta, the Digital Millenium Copyright Act (DMCA) dictates that everything is copyright protected once a material hits a server therefore making individuals who copy and paste, improperly quote, or intentionally plagiarize online material financially liable for their actions.

The rule on reposting content from other bloggers, is that you need to obtain permission unless the blogger allow reuse as specified in the Creative Commons Licenses.

THAT’S AN INTERNATIONAL LAW AND THE PHILIPPINES ISN’T EXEMPTED FROM THAT, MOREOVER THE ‘HONORABLE LEADERS’ IN THE SENATE!

As “leaders” and “educated” men, they are setting a perfect example of arrogance and ignorance for the rest of the citizens of the Philipines to emulate.
(Image Credit: Newsinfo.inquirer.net/255890/plagiarism-common-practice-ok-in-senate-says-sottos-aide

Villacorta further adds insult to injury by stating: ““We cannot draw up a speech that says ‘according to this blogger who quoted this author.’ It’s simply too awkward. Besides, what would the Senate President say,” Villacorta said.

“A whole gamut of ‘according to’ would also not make the speech credible. This is the Senate we are talking about,” he added.”

Is it too hard for the office of the “honorable” senator Vicente Sotto to just own up and join the trend set by the infamous motorist Robert Blair Carabuena? The office cannot be held as liable as that of the quick tempered Carabuena, due parliamentary immunity but they should show some decency by not abusing such privilege and at least, set a good example for the people who buy the popularity of the name that the office carries.

Does new Chief Justice Lourdes Sereno have enough emotional intelligence to run the Supreme Court?

August 29, 2012

Reports of the emotional health of newly-appointed Supreme Court Chief Justice Lourdes Sereno continue to make discussion fodder for the Philippines’ chattering classes. Sereno is noted for being rated a four on a 1-to-5 psychological stability scale (5 being the lowest) by a test administered by the Judicial Bar Council (JBC). According to “unverified” news reports, she was allegedly characterised as “dramatic and emotional”. Yet, despite Malacañang reportedly brushing off the results of that psych test, the administration of President Benigno Simeon “BS” Aquino III has been compelled to issue statements aimed at discrediting that information…

Deputy presidential spokesperson Abigail Valte said such a report is deemed unconfirmed, at least for now.

“Hindi naman verified ang sources niyan, unconfirmed reports. Sinama ng JBC sa shortlist ang ngayong Chief Justice, si Chief Justice Sereno. Hindi na kami magkukumento roon,” she said on government-run dzRB radio.

When asked if the Palace considers the psychological test moot, she said, “It’s not that. [The supposed information] is not an official release from the JBC….”

Much has been said about Sereno’s relative youth and gender — a lot of it the usual positive affirmations associated with being young: “fresh perspective”, “energetic”, yadda yadda, and being female: (I’ll do the sensible thing and not comment about that). But youth is a double-edged sword. The young also lack the benefit of seasoning that comes with experience. And in a society such as the Philippines where gray hairs and a penis are held at a premium in politics, administration and leadership, Sereno is inherently disadvantaged by her brain-wiring and physiology.

To be fair, her predecessor, former Chief Justice Renato Corona was also quite the emotional basketcase over the course of his impeachment trial. He was inclined to public prayerfulness and emotional breakdowns during his court battle against Uncle Peping’s legal forces. Sympathy for Corona coming from both the public and the Senator-Judges was put in jeopardy by his walk-out from proceedings during his first appearance before the Senate Impeachment Court. And much of his testimony then and in the second time he appeared was laced with appeals to emotion.

So much for the cold steely fortitude most of history’s truly great leaders served as exemplars of. Unfortunately, Filipinos being the drama junkies that they are reserve no amor for stoic silent types. You can see this in the way they mourn their dead — often wailing and flailing like they are trying to awake their loved ones even as their remains are lowered into a hole or shoved into a concrete niche. It is why necropolitics is so potent an opiate for the Filipino electorate. The most celebrated Filipino “heroes” die not in glory on the battlefield but as victims in sordid tales of woe — and Filipinos lap it all up: habitually launching entire political eras and catapulting whole dynasties into power on the remains of dead “victims”.

Yet, as the Deputy Speaker of the Philippines’ House of Representatives opined, one has to be emotionally switched on to see one’s self and the people one leads through challenging journeys…

[Deputy Speaker Jesus Crispin Remulla] party whip of the Nacionalista Party, said Sereno would need a lot of “emotional quotient” to withstand the pressure of being the chief justice.

“Sereno has got to have a lot of EQ. They may all have equal IQs but being the best of the best requires a lot of EQ to deal with and being among equals,” Remulla said.

Perhaps the concept of “emotional intelligence” should be clarified for an entire nation of people raised on a media diet of teleseryes, idiotic comedy, and necropolitics. Emotional intelligence involves (1) knowning when and when not to exhibit emotion, and (2) having the skills and constitution tomanage emotion to suit a situation. Obviously, one characterised as “dramatic and emotional” has a lot of skills upgrading to do in that department — assuming, of course, emotional intelligence can be learned.

But if we consider the latest findings coming from the emerging field of evolutionary psychology, the prospect of “learning” emotional intelligence may turn out to be another one of those consultants’ empty promises. Evolutionary psychologists hold that behaviors or traits that occur universally in all cultures are good candidates for evolutionary adaptations including the abilities to infer others’ emotions, discern kin from non-kin, identify and prefer healthier mates, and cooperate with others. In other words, one’s emotional make up is strongly determined by one’s genetic heritage — in short, there is only so much upbringing, education, and training can do as far as our core character is concerned.

In the 1998 paper Sex differences in the Big Five personality factors: Testing an evolutionary hypothesis strong evidence was found that “females showed, on average, significantly higher scores on the Agreeableness and low Emotional Stability factor than did males” and that “the differences between males and females were maximized along this factor and were not significant on all other factors”. This puts a bit of science behind what it means to be a female in power in a man’s world, and adds some perspective to the manner with which we might consider what Malacañang’s rah-rah boys celebrate about Sereno’s appointment: her being female, young, and “God-fearing”.

This is not about being sexist or ageist. This is about being scientific and grounded on the latest ideas. Indeed, when someone tells you that you have “the balls” to do the job, it is usually considered to be a compliment — even to a woman. That simply points to the reality of what it means to succeed in human society which, contrary to the insistence of some emos, is still one dominated by the male of the species. Having balls is all about not getting all girly when the pressure starts to bear down.

Who knows? Lourdes Sereno just might surprise us.

[NB: Parts of this article were lifted from the Wikipedia.org article “Evolutionary psychology” in a manner compliant to the terms stipulated in the Creative Commons Attribution-ShareAlike 3.0 Unported License that governs usage of content made available in this site.]

Wednesday, August 29, 2012

Bare mental records, Chief Justice dared

By Jomar Canlas, Jaime R. Pilapil and Ritchie A. Horario Reporters

NEWLY appointed Supreme Court Chief Justice Ma. Lourdes Sereno should disclose to the public not only her wealth but also her state of mental health in the interest of transparency and to prove that she has the moral ascendancy and psychological fitness to govern the Judiciary, according to the Integrated Bar of the Philippines (IBP).

IBP President Roan Libarios said that it is ideal for the public to know Sereno’s true wealth and state of mind considering the significance of the position that she will be holding for the next 18 years.

“Generally, the result of the psychiatric test must be disclosed like the issue of SALN [statement of assets liabilities and networth] for the sake of public interest, provided that a waiver must be signed by her allowing to disclose it,” Libarios told The Manila Times by phone.

Sereno and Libarios were classmates at the University of the Philippines College of Law.

Sereno’s predecessor, Renato Corona, was impeached over the non-disclosure of his real assets.

The incident prompted several sectors to suggest that candidates for the top judicial post be required to waive the secrecy of their local and foreign bank accounts, if any.

On Friday, the Times ran a story about an 11-page psychiatric test report indicating that Sereno and Solicitor General Francis Jardeleza got the lowest grade of four in the mental examinations conducted by two psychiatrists and two psychologists on candidates for chief justice last month.

Records show that Sereno was interviewed on July 18, 2012 by the doctors. Despite her “unsatisfactory” mark, members of the Judicial and Bar Council (JBC) still included her in their shortlist of nominees for the post.

It is a policy of the JBC that an applicant to any position in the judiciary who garnered a grade of four shall be considered “Not Recommended.” The rule was changed in Sereno’s case.

Sources said that Malacañang officials and President Benigno Aquino 3rd were furnished copies of the report but would not disclose its contents. This runs counter to Palace deputy spokesman Abigail Valte’s claim that the report was unverified and that it did not merit a comment from them.

The least that the Palace can do, they said, is to ask Undersecretary Michael Frederick Musngi of the Office of the President to show his copy of the report, he being a member of the JBC who sat for Justice Secretary Leila de Lima.

Evasive
On the day her appointment was announced by Malacañang and when the Times story was published, Sereno fended reporters’ queries about the psychiatric test results.

When Justice beat reporters cornered her on Friday evening to comment on her appointment, she particularly evaded a question by Cecille Villarosa of GMA Network-dzBB pertaining to the Times report about her low mental test grade.

“’Di na muna natin ‘yan i-aaddress [We will not address that yet]. Today is the day of thanksgiving. So thank you very much, thank you for your time,” the new chief justice said.

In the 11-page Psychiatric and Psychological Report signed by four doctors and noted by a lawyer, Sereno was said to be “dramatic, emotional, all smiles and depressive.”

Sereno is “dramatic and emotional she appears energetic and all smiles and agreeable, but with religious preoccupation in almost all significant aspects of her life. She projects a happy mood but has depressive markers too. There is a strong tendency to make decisions based on current mood thus, outcome is highly subjective and self-righteous,” the report said.

Confidential
Lawyer Jose Mejia, a JBC member representing the Academe, said that there are no waivers signed by any of the applicants for the top judicial post or other positions in the Judiciary.

Mejia said that there was no waiver required because the psychological report was covered by the doctor-patient confidentiality rule.

“There are no waivers being signed by any of the applicants because it is covered by the doctor-patient confidentiality rule, unlike in the case of SALN or bank accounts there are waivers because it is a mere mathematical computation,” Mejia said.

He pointed out that only the psychiatrists or the doctors who conducted the tests can interpret the report.

“The applicants [like Sereno] do not even know the result of their psychiatric test whether they passed or failed,” he said.

President Aquino on Monday threw his full support behind Sereno whom he urged to restore the people’s trust in the judiciary and ensure fair justice despite resistance from fellow senior justices due to her younger age and alleged incompetence.

Mr. Aquino pulled a surprise on Friday when he named Serero, 52, as the 24th chief magistrate and the first woman to head the SC, besting more senior colleagues in the tribunal including then acting CJ Antonio Carpio.

Woman on top
Today, Sereno will officially preside over the Court’s en banc session.

On Wednesday, she will make her first public appearance as chief magistrate before the Presidents of Law Associations in Asia (POLA) at the Marriott Hotel in Pasay City. The event is under the auspices of the IBP headed by Libarios.

The President mentioned Sereno in his speech at the Libingan ng mga Bayani yesterday.
“Umaasa akong titimbangin mo ang iyong hatol at pasya upang manumbalik ang kumpyansa ng taumbayan sa institusyong iyong pamumunuan [I trust that you will weigh your judgment and decisions to win back the people’s trust and confidence in the institution that you now lead], ” Mr. Aquino said.

“The people’s mandate to you is: let the fair system of justice prevail. It should be impartial to either the rich or poor, to ordinary Filipinos or the powerful,” the President said in Filipino before members of the diplomatic corps, Cabinet officials and veterans under a tent behind the Tomb of the Unknown Soldier.

Aware of the controversies hounding Sereno, the President said that his latest appointee has also the backing of the entire Filipino citizenry.

“To our new Chief Justice, don’t lose heart when a deluge of challenges comes your way. Be assured that the Filipino nation is your ally,” Mr. Aquino stressed.

Sereno’s oath-taking on Saturday was not attended by most of her colleagues. Out of the 13 other justices, only four were present—Associate Justices Martin Villarama Jr., Estela Perlas-Bernabe, Mariano del Castillo and Bienvenido Reyes.

Conspicuously absent were the five most senior justices—Senior Associate Justice Antonio Carpio and Associate Justices Presbitero Velasco Jr., Teresita Leonardo-de Castro, Arturo Brion and Diosdado Peralta. Associate Justices Lucas Bersamin, Jose Perez and Jose Mendoza were also absent.

Presidential prerogative
Also on Monday, several senators defended the President’s decision in appointing Sereno.

Senators Gregorio “Gringo” Honasan, Edgardo Angara, Aquilino Pimentel 3rd and Francis Pangilinan said that it is too early to criticize and put political color on Sereno’s appointment.

Honasan stressed that nobody could question the decision of the President to choose Sereno over other senior members of the SC saying that this is his “prerogative.”

“Ang tawag diyan ay [That is what you call] Presidential prerogative bilang [as the] appointing authority ayon sa batas at tamang proseso at walang maaring mag-question dito [which is being dictated by law and nobody could question it],” said Honasan.

He said that Sereno’s independence should not be doubted as she had “declared publicly that she will be independent and that she will uphold the spirit of the Constitution.”

“We have to believe her and trust in the judgment of the President as the appointing authority for the sake of public interest,” he added.

Angara said that Sereno should be given the chance to prove her worth and independence adding that criticisms hurled against her should not affect her job as the new chief justice.

For his part, Pangilinan said that Sereno should face the challenges in instituting reforms in the SC and in the judiciary in general.

He said that Sereno’s age could be advantageous on her part because she has the energy and strength to implement judicial reforms.

Pimentel said that Sereno’s appointment is a “welcome development” that should be respected.

Vacancies
Meanwhile, a House leader said that Sereno should speed up the wheels of justice by inspiring young lawyers to fill the court vacancies.

Deputy Speaker Lorenzo Tañada 3rd of Quezon province made the call two days after Sereno took her oath.

“We all know that we can only ease and eliminate the backlog of cases by addressing the shortage of judges and other court personnel. I think she will inspire many qualified members of the Bar to transfer to the Bench. This is the kind of migration of talent we would like to see,” Tañada pointed out.

While the hiring of judges is a function of the JBC and the Executive, Tañada noted that the beefing up of the ranks of court personnel such as researchers, interpreters and other critical frontline workers, is a prerogative of the judiciary.

“On this matter, budgetary support has been assured by the DBM. The Chief Justice can tap into this huge reservoir of goodwill in boosting the number and quality of judiciary workforce,” Tañada added, referring to the Department of Budget and Management.

Rep. Luz Ilagan of Gabriela party-list agreed with Tañada, saying much injustice is being done because courts are clogged with numerous cases.

“Justice delayed is justice denied. The lengthy trial procedures and the delay of decisions in very important cases including the Maguindanao massacre is a case in point. This can be extremely frustrating for victims of violence,”

Likewise, Ilagan cited that Sereno should be able to institute reforms that will make justice efficient and accessible for the poor.

With a report from Llanesca T. Panti

Non-violent living is to be fully human

By FR. SHAY CULLEN

Those of us striving to make this a more peaceful world are dismayed and saddened by news of violent acts, cruel killings and atrocities against women and children; civil war in Syria, massacres and rape in the Congo, sectarian attacks in Nigeria, guerilla attacks in Sierra Leon, and most recently, the murder of 32 protesting miners demanding higher wages in South Africa.

Each has its roots in religious conflict, social injustice, poverty, cultural differences and the lust for power and dominance. There is violence over political, sexual, environmental issues. We are the most violent species on this planet earth, why is this, and how can we work for peace?

The death squads, denounced recently by the Philippine Commission on Human Rights, have killed hundreds of people in recent years; youth and children, journalists, human rights activists, priests and pastors. Does this dark side of society make the Philippines the murder capital of Asia? What’s the purpose of it, but to terrorize and control the poor in the absence of a working police and justice system?

The desire to retain political power led to the massacre of 57 persons in Maguindanao in November 2009, 32 of them journalists. The cruel beating and killing of Filipino students by fellow students may stem from a primitive desire to have power over others through a sadistic cultic hazing rite. It mimics a primitive tribal initiation and a fear-filled slavish mentality in the victims and misplaced loyalty to the tribe or fraternity.

Violence and sexual assault against children is perhaps the most difficult to understand, but lust and a problematic abusive childhood can start a cycle of abuse. What’s more disturbing is the emotional violence, hurt and pain of injustice suffered by child victims who are denied justice by corrupt prosecutors and judges who favour the violent rapist.

The horrific violence of massacres, mutilations and rape and sexual abuse is decried as beastly, animal and inhuman. Animals do not sexually abuse their off-spring or commit heinous acts; they act on instinct for survival. Humans are also animals, our DNA is 98 to 99 percent the same DNA as apes but we are still a very distinct species. We have large brains, intelligence, culture, reason, personality, speech and free will and a conscience to distinguish right from wrong. Humans have universal rights and an inner spirit and the capacity to love others without a selfish, self-serving motive. The human is capable of conceiving a power of goodness greater than itself and can have concepts of eternity which other species don’t have, as far as we know.

Yet despite these amazing developments which can, and should help humans to live and act in peaceful, non-violent dignified relationship, violent behavior persist above and beyond survival needs.

Aggression and conflict are an inherent part of human nature stemming from our primitive evolutionary origins. Many of us are striving to be “fully human” but it is too much to expect that our species will reach that mature exalted state where reason, moral conscience, non-violence and spiritual values predominate. There are only a few societies that are, with some incidents, generally non-aggressive and non-violent and practice high levels of social equality and respect for human rights and dignity. This evolutionary step to a peace-loving society has eluded most of humankind.

To integrate all the positive attributes in a holistic way may be the road to a non-violent and a peaceful society. Many people have not had the opportunity to be fully human and to absorb such attributes in a holistic manner due to lack of means, opportunity, education and the positive life experience of respect and love especially in childhood. Here are the roots of the violence we see around us daily. The domestic violence between parents and against children might be the stem of violence in society. That’s why the banning of corporal punishment of children is so important.

Violence in the home is a root of violence in society and violence in society feeds back to the home. The media accelerates the cycle by glorifying violence and likewise the gaming industry makes interactive killing on computer game into bloody entertainment.

Each of us striving for a spiritual experience of life in a peaceful community has to work to inculcate these higher values into the family, community and society as a whole. How else can there be peace and non-violence? We must be actively living the spiritual values of friendship and non-selfish service and sharing them with others.

shaycullen@preda.org