Is Copyright a Human Right?

Some writers are convinced that copyright is merely a statutory benefit -- that is, it cannot exist without the law.


Like many writers from Europe, however, I subscribe to the old world philosophy that copyright is a human right -- that it transcends business interests and embraces the sacred relationship between the creator and the creation -- the author and the work.


Although domestic laws and treaties do contain provisions on protecting intellectual property, they cannot be considered the ultimate source of these rights. They do not arise from agreements or legislation, but from human nature as creator.

Two important pieces of international law articulate this philosophy:


1. Article 27 (2) of The Universal Declaration of Human Rights (UDHR), known to be the document of authority for human rights, reads: 

Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author;

2. Article 15 (1) of The United Nations Covenant on Economic, Social and Cultural Rights (UNCESCR) also reads: 

The State Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Like any other person of any other profession, artists, authors and scientists deserve to make a living from their talents. More importantly, they must be acknowledged as the creators of their work. 


So is copyright a human right? To give a yes or no answer to the issue would be a serious oversimplification that ignores the history and philosophy behind copyright.


The right answer would have to be "partially" -- copyright is partially a human right. At least in the Philippine legal system, it has to be understood this way. Why? Because our law fuses (or confuses) the concept of copyright in the civil law and the common law sense.


Civil law traditions treat copyright or author's rights (droit d'auteur to the French; Urheberrecht to the Germans) as a sacred bond between the author and the work. These rights form what we call in the Philippine IP Code as moral rights. Moral rights, particularly the right of paternity, ought to last forever (e.g. William Shakespeare's authorship to Hamlet will never expire by mere passage of time). 


This is the part of copyright which I am inclined to declare as a human right -- the right of paternity. Like any other human right, it is imprescriptible, inherent, inalienable and universal. Authorship, therefore, must be likened to a status rather than a right. For a right often disappears after the death of the owner while a status of paternity lasts forever.


So what is the right of Paternity? Section 193.1 of the Philippine IP Code describes it as 

the right to require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work 

The old intellectual property law (PD 49) correctly declared that the right of paternity lasts forever. The new law downgraded the right to last only for as long as the economic rights (generally the author's lifetime plus 50 years). This is unacceptable because it limits that part of copyright that is a human right. Today, a bill is being discussed in the Philippine House of Representatives to revert back to the old rule. I hope that the fruit of these discussions finds its way into law very soon.


Common law traditions, on the other hand, tend to focus on the economic benefits of copyright and how it can be used to generate wealth. In Philippine law, these are called economic rights. Economic rights necessarily last only for a certain period of time because they are only statutory grants used to secure a return on investment plus profits for the creator of a work and his or her heirs. 


This is the part of copyright that I consider merely a temporary grant by law, which may be removed or suspended for a greater public purpose. They are not imprescriptible, inherent, inalienable or universal. They, therefore, do not possess the essential characteristics of human rights. 


So here we have the Philippine copyright system. By way of Spain, we carry the long-standing traditions of civil law going back to the Roman Empire -- a philosophy which treats authorship with unique but well-deserved reverence. By way of America, we carry enterprising prowess of the common law tradition -- a philosophy grounded more on giving each creator a livelihood and a chance at survival. And somewhere in the middle of all this, we find ourselves still trying to figure out what to do with our inexhaustible creativity and how it can lift us up to better places. 


For now, we can rest better knowing that we do possess human rights as creators... Partially.

_____

For further reading:

See Mark Robert A. Dy, Teach the World to Sing: Restructuring Philippine Copyright Law under a Regime of Free Expression and Culture (2009) (unpublished J.D. Thesis, Ateneo de Manila University School of Law) (on file with the Ateneo Professional Schools Library). 

Royal Blues

Published in Cebu Gold Star Daily

No law granting a title of royalty or nobility shall be enacted.

-     THE PHILIPPINE CONSTITUTION

One of the most unsightly words in the English language is entitlement. It suggests baseless superiority of a group of persons because of accident or the work of their forebears. It suggests that genetics and succession absolutely decide one’s rights and options in life. 


What I hate even more is that we allow this to be true by our actions and inaction.


The people who run this country and the world mostly consist of these presumptuous heirs of the wealthy and powerful. They are the landowners who resist the changing social needs and choose to keep their huge tracts of unproductive land for their own pleasure. They are the sons and daughters of privilege, luck, and influence who breeze through life with fancy clothes, nightclubs and designer drugs. They carry their names proudly like banners of moral terrorism against all who live quiet normal lives.


We may not have a nominal house of nobles, but our government seems to act like one. During the past weeks, many of these persons who claim to be our representatives have proved to act only for themselves and those they owe allegiance to. They use culture, breeding, and pretty words to justify keeping what they already have, without moving an inch to improve the lives of those who look up to them for succor. 


Feudalism in Europe and Japan has ended long, long ago. But the Philippines still carries the system with pride. People still lord over the poor just as they did during the middle ages. Too bad our nobles do not fight it out as the knights of olden times did. Too bad our system of choosing leaders no longer involves strength, intelligence, and compassion, otherwise we would have a President who is a combination of Manny Pacquiao, Epifanio de Los Santos, and Cardinal Sin. A very tall order, but a striking ideal, nonetheless.


We hate being called a nation of servants to our face, only because we cannot and will not face the unsweetened truth. We are servants under very few but very powerful masters. Most of us live under the poverty line, even after a full degree of college. The poor stay landless and dreamless as they eat scraps from the tables of the greediest members of Filipino society. 


And here we are, the educated middle class, caught in the center of a raging storm ready to erupt into cleansing bloodshed. We can either choose to imitate those above us and accumulate everything we can for ourselves, or we can look below us and pull up as many people as we can from their hellish lives. 


The good news is that we are not a defeated nation. Everywhere you look today you see collective movements and powerful dissent – clusters of resistance that act as breakwaters that stand against the crashing waves of the tainted and the corrupt. People from all walks of life, young and old, wealthy and poor are coming together to defend human solidarity against those who act only for themselves.


Let us bring down our masters by exposing them for what they truly are -- greedy animals, undeserving of the powers and duties entrusted to them. Let us be merciless in our search for truth so that we might all be able to act with our very best judgment.


To save our country and our people, we must be a nation of servants… and be damn proud of it.

Steering A Nation

Published in Cebu Gold Star Daily

If a man does not know what port he is steering for, no wind is favorable to him.  

-- SENECA

Individual behavior is a result of the series and combinations of rewards and punishments a person receives throughout his or her life. In the most extreme, those who commit criminal acts are placed behind bars or fined while those who accomplish great things are rewarded by fame and fortune. In the center is a wide expanse of gray area of where minor behavioral nuances can no longer be micromanaged. Nonetheless, they can be generally steered by policy and law.


Taxation is the system of reward and punishment that leads the general populace to move towards certain behaviors while avoiding others. It is a process of soft obliteration, where undesired actions less than criminal are quelled. Imposing high taxes on certain industries like mining or logging can protect the ecology by some measure. Lowering taxes on green industries can encourage investment in these protective ventures.


Unfortunately, this behavioral control mechanism is not fully utilized in our islands. European countries, for example, charge very hefty luxury taxes on vices while keeping collections minimum for education. It sends a message to people that if you want to use your money for unproductive activities, you have to pay a high price for it. If you use it for something desirable, you will get some reprieve from the tax collector.


In our case, the government has already tried to impose greater taxes on book importations. It failed mainly due to political pressure, not sound judgment. Many legislators have proposed large ‘sin taxes’ but they keep getting stopped in their tracks by industry lobbyists, resulting in the cheapest liquor and tobacco to be found in the region.


Governance is one great social experiment, and although there is some leeway for creativity, there are general policies that ought to be maintained. Education must be supported while violence is to be eliminated. Productivity and hard work must be encouraged while destructive behavior must be penalized. Health is to be protected while environmental damage must be kept at a negligible minimum. 


For now, it is comforting to know that our Constitution has tax measures that protect educational, religious and civic interests. But even the solid foundations of our organic law are being grinded by our so-called ‘representatives’, who have very fat business interests. There are those intent in practically selling the country to foreign powers who have no interest other than profit, while local farmers walk on, landless. 


How do we steer national behavior when those who vote on these issues in our behalf have interests that conflict with ours – when those who command our tax collectors and cops give in to the temptations that such awesome powers provide? 


It all comes down to the populace and their ability to come together and express their frustrations and aspirations through their votes and their collective actions.


Democracy is not dead. It only remains misunderstood, misguided and unclaimed. In less than a year’s time, we will once again be collectively challenged to act with our best judgment. 


Let us steer the nation harder to a better place this time. 


No more excuses.

Over Power

Published in Cebu Gold Star Daily




The nature of power is to bend or break the will of the weak. Through the promise of reward or the threat of harm, power is exercised in our daily lives. Today we see two convicted rapists set free because of the power they wield over the weak. One is backed up by the wealthiest nation on earth, and the other by his own personal, less grand but equally effective, wealth, status and influence.


How did it ever come to this? 


Since when did we become a people who set criminals free just because they have more money than others who are equally or less guilty?


I remember working with an NGO that serves persons who languish in jail. Our clients were people who have not yet been found guilty but are serving time just because they could not afford to fork out bail money. They are treated as second-class citizens who are herded into our congested, filthy and putrid city jails while they wait for a trial date that may never come. This is my most salient experience of the Philippine justice system. It makes me loathe my choice of profession and want to fly away to a country that values its people.


The nature of power is to bend or break the will of the weak. This is why I do not dare blame Nicole. I do not blame the weak for their weariness and their exhausted patience. I do not blame the fearful woman for running away when faced by the might of the most powerful government in the globe. 


Many people spit venomous words at this girl while they watch the news on their plasma TV screens well within their comfort zones. This girl has no comfort zone. As a victim of a violent crime, that’s one of the things taken from you forever. Your reality is altered, and to escape from it by any means possible is a very welcome option.


This is not about her. It’s about us and the system that we allow to sink its roots deep into our consciousness and culture because of our resignation – because of our refusal to speak out and act in unison against the few bad people who have all the power. It is everything wrong about human nature and our unwillingness to rebel against it.


Election after election we grant power to those who don’t deserve it. Year after year we shortchange ourselves by believing that this is our lot in life and this is all that we will ever be. 


See the drama of it all. Two freed rapists, two broken women and thousands of confused people behind bars. Welcome to the third world. 


Is this the Philippines that was fertilized by the blood of our martyrs? Is this the nation envisioned by the free thinkers of our past?


Many of us feel that we do not belong here. Many of us feel that our one life is too short to waste in a place that does not offer us any real chance for growth. If you have these sentiments, then you are one of the many who have no power – then you are one who truly knows Nicole.


The nature of power is to bend or break the will of the weak. Today, the Philippine dream is to leave the Philippines.


How did it ever come to this? 

What's Your Reply?

To be published in Cebu Gold Star Daily

No law shall be passed abridging the freedom of the press.

- THE 1987 PHILIPPINE CONSTITUTION

The Philippine Senate is in the process of reducing our rights as members of the press. It recently approved Senate Bill No. 2150, which gives any person the so-called ‘Right of Reply’. The proposed law criminalizes media practitioners and shuts down their operations if they fail to publish the reply of their subjects. It commands that the reply should have the same space, time and prominence as the original article or news segment. The reply must also be published within a number of days after the original article is published. All this must be made free of charge.


This law is so wrong on several levels. 


First, it reduces the freedom of the press to navigate through the truths they wish to expose to the public. The obligations imposed by this bill are an artificial deterrent against truth-telling. It sends a message to media that revealing bad news about a person or group of persons will probably cost them double compared to talking about other mundane things. 


Second, it corrupts the judgment of media by forcing them to base their actions on avoidance rather than fearless pursuit. It is the worst form of censorship pretending to be some form of reputation protection mechanism. 


Third, it is just bad for business. Imagine if this law were put into action. Our front pages and new clips will contain one reply after another. Our newspapers will become public forums, setting aside today’s most important items for a person’s reply to yesterday’s news. This form of compulsion will degrade the news into a mere chatroom of endless debates. What publisher in his right mind would want to do business under these conditions?


Fourth, it ignores the ideal that the press must be the ultimate check and balance over government and other powerful persons. It is the mechanism that is capable of keeping people in line by scrutinizing their words and actions. Such an institution is the people’s best defense and weapon against corrupt practices. Such an institution provides the transparency that the rich and the powerful are unwilling to supply freely. 


Both the Supreme Courts of the United States and the Philippines have long been clear that any law, which seeks to limit civil liberties has to pass a three-point test of strict scrutiny to be valid: 

1. It must be justified by a compelling governmental interest. 
2. It must be narrowly tailored to achieve that goal or interest. 
3. It must be the least restrictive means for achieving that interest. 

On its face, the proposed Right of Reply Bill does not present any compelling government interest but only protects the reputation of individual public figures -- people whose words and actions should be open to full public scrutiny in the first place. 

It is not narrowly tailored because it does more harm than good. It attempts to protect a single person’s reputation while depriving the rest of the people of a free, independent and fearless provider of information.


Finally, it is not the least restrictive means available because it commands media to provide free reply space and time with very specific parameters, thereby compelling them to forego more important matters. It is confiscatory and oppressive at the mere whim of any person who gets too sensitive about his or her feelings. Such conditions are too unreasonable and burdensome for media to function in a normal manner.


Our laws against libel and slander already hold media responsible for any lies or malicious information that it might spread to the public. The Right of Reply Bill is an unnecessary chokehold on the free press and must be rejected if the truth is to continue flowing through our papers, our airwaves and in the minds of our people.

A Bill of Rights for Songwriters & Composers

Created by ASCAP, the American Society of Composers, Authors and Publishers 

Original post at:

http://www.ascap.com/press/2008/0417_billofrights.aspx

Just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so – an outcome that would diminish artistic expression today and for future generations. 


At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys. 

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.
2. We have the right to license our works and control the ways in which they are used.
3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.
4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.
5. We have the right to choose when and where our creative works may be used for free.
6. We have the right to develop, document and distribute our works through new media channels - while retaining the right to a share in all associated profits.
7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.
8. We have the right to earn compensation from all types of "performances," including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.
9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.
10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

_____


This is pretty straightforward, though some of the rights like #9 are against my stand. Nevertheless, it's a good start for ASCAP in clarifying the purpose of copyright law. 

Greed is the enemy of creativity.

- M.R. DY

Violence Can Solve the World's Problems

 Violence is the exertion of force so as to injure or abuse.

- MERRIAM-WEBSTER DICTIONARY

Last week, the palace released the order to roll back the conversion of the 144-hectare Sumilao land and return it to the embrace of agriculture. Through the order was in no way conclusive as to the fate the Sumilao farmers' claim, it was, at least, small victory for the them, who took painful discouraging steps for more than ten years in a struggle to achieve a life of dignity and respect. And with this small victory, they were able to return home in time for Christmas for free, carrying with them gifts twice their combined body weights. A Merry Christmas, indeed.


I was fortunate enough to take part in what we considered their "last march to victory" from the DAR office in Quezon City to the Malacañang Palace in Manila. Church leaders from different orders and denominations fortified their ranks as well as students and members of civil society groups. This was the most silent and peaceful march I have ever experienced. Under the heat and smog of Metro Manila, we made it to the seat of power and home of the Filipino people.


I trust that I don't have to retell the story of Sumilao Farmers. This ridiculous tale has been all over the papers since October, betraying the laggard mechanisms of Filipino governance. Back in '97 the farmers staged a 28-day hunger strike, which resulted to an acceptable compromise, only to be taken away by the Supreme Court. This year, they walked for sixty days from Bukidnon to Manila and continued to walk around the Capital Region for another fifteen days, moving from one heartache to another... one rejection after another by a government that had sworn to protect its people. 


Witnessing all these things, I realized that these farmers are some of the most violent people I have ever encountered. Beneath their smiles and cheerful dispositions, they have caused so much pain against themselves... against their own bodies, their own minds and their own emotions. They have willingly subjected themselves to suffering that compounded the burden they were already carrying. Hence, these people of the soil are masochists of the highest grade. 

Tired of injustice, yet?

Some high and mighty members of the business community have a criticized these farmers for acting out of emotion and seducing the public to fall in love with the dramatics and romanticism of the whole exercise. Indeed, Atty. Bag-ao admitted that these were "dramatics". These were emotion-wrenching moves to wake people up. But these were acts done only because people refused to listen to reason from the very beginning. Law is a difficult thing to understand (in spite of the palpable simplicity of this case). People will not take these things seriously until they are able to visualize the actual suffering. And this is what the farmers had provided for us: They painted a 75-day picture for the entire nation to comprehend just how unjust the system has become. Because reason was no longer viable, they had to resort to violence -- self-inflicted violence.


For 75 days, these farmers led the country to a place it's people had long forgotten. There is no such thing as a peaceful protest. Violence will always be present. The only difference is against whom this violence is directed. In this case, it was absorbed by the protesters themselves, never minding that they already had suffered much. For indeed, violence is nothing more than inconvenience multiplied a hundredfold. And for a few people to go through this, to completely abandon their comfort zones just to pursue something worth living for, is nothing short of heroic. 


These people were not beggars... far from it. They were legitimate suitors who were merely calling the government's attention to an oversight that was so clear that it was grave moral abberation that the case lasted for as long as it did. These people never asked for anything. They were claiming what was already theirs: the land and all the dreams they had attached to it.


A couple of days before the farmers packed up for home, we were able to join them at a thanksgiving mass at the Church of the Gesu, where Fr. Danny Huang gave a priceless homily in three languages (English, Tagalog & Bisaya), he spoke of hope as living in the future -- to act as if your goal was "already there" -- na ang Paglaum kay kanang pagtuo nga anaa na kanimo ang imong gipangita. 


Hope in our country is not difficult to find, regardless of the pain you see around you. Consider this: The farmers walked for 75 days, carrying with them only their clothes and beddings, with little or no money or food. They marched under the heat, the rain and they even weathered a storm along the Bicol territories, but never did a day pass by where they were left hungry. No sun ever set leaving the farmers without a roof over their heads. Wherever they went, there were kind souls who understood and empathized. This was a miracle to match the multiplication of bread and fish thousands of years ago. Heroes create heroes. Their power does not come from intelligence or skill, but the will to move others to take action for something greater than themselves... this is sacrifice... this is violence.


May the star of Christmas shine brightest on Sumilao this year.

The Human Security Act: A Dangerous Euphemism for State Terrorism

by Kazimir K. Ang and Mark Robert A. Dy

Originally published in ThePalladium December 2007 (Vol. 4, Issue 3), released on December 17, 2007.


Both terrorism and anti-terrorism are nothing new. As early as the 1200’s, the common law of England allowed the King and his lords and sheriffs to declare any person or group of persons as outlaws (think Robin Hood and the Merry Men). These outlaws would be stripped of the right to use the law in their favor, thereby exposing themselves to mob violence, swift justice or conviction without trial. They were summarily sentenced with civil death, stripping them of their properties, titles and rights. Outlaws were entitled to none of the basic needs and any person who would give them support in any form (food, shelter, clothing) was considered aiding and abetting outlawry or banditry and would be flogged, tortured or hanged. Much later, this practice would be brought to the New World, influencing much of the Western movies people love so much.


Sans the romanticism of it all, there is nothing exciting about losing your rights by a declaration of a monarch or a president or any of his/her minions. The legislative history of the U.S. has shown many grants of government power that border on the tyrannical. The most prominent among them are the RICO (Racketeer Influenced and Corrupt Organizations Act) of 1970, which was used to quickly hunt down and scatter the Mafia and more recently, the USA PATRIOT Act of 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), which was an immediate legislative response to coordinated 9/11 attacks on American soil. All these laws are characterized by the weakening of civil liberties, harsh punishments and an overhaul of existing procedural rules on custody and evidence. 


Now, here comes their distant Filipino cousin, RA 9372 or the Human Security Act (HSA) of 2007, which has brought about hostile criticisms and verbal missiles in full spates. The protagonists of this piece of legislation, now commonly referred to as the anti-terrorism law, should not be surprised that they’re drawing blood instead of plaudits from concerned citizens and legal practitioners. While this act’s policy states that the thrust of RA 9372 is to protect life, liberty, and property of persons from terrorism and protect humanity as a whole, this valiant policy is but a flimsy stab at covering up many of the insidious manners by which this law may be subject to abuse and to undermine several constitutionally protected human rights. 


Note that the law’s policy statement is a near-exact replica of the due process clause in the Bill of Rights, making it sound as if it were constitution-friendly. What people sometimes forget is that Article III actually defines and limits the powers of the government vis-à-vis civil and human rights, while the new anti-terrorism law is a whole bundle of forced legislative creases on these same rights. In other words, this law, which purports to create a massive shield against terrorism, also fractures the shield we have against government action by creating new exceptions to long-established protections for human dignity.

ter-ror-ism (tr’Y-r-z’Ym) noun


The prime source of controversy is the HSA’s broad and vague definition of what constitutes an act of terrorism. Section 3 of the HSA defines terrorism as the commission of certain crimes punishable under the Revised Penal Code “thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand.” You would think that the additional elements of having to prove that the act is committed to sow and create fear and that the government is forced to do unlawful acts would make it harder to prosecute individuals for terrorism, until you realize that mere conspiracy to commit terrorism is punishable as well.  


This law is no toothless law or a mere declaration of a war against terrorism. The HSA contains provisions allowing the state to violate fundamental rights found in the Constitution as well as those embodied in international human rights and humanitarian law conventions, leaving one to wonder who’s terrorizing who, really. 


Section 17 bans any organization created for the purpose of espousing terrorism. It doesn’t sound too despotic until you get to the second half of the paragraph which states that an organization nevertheless may be proscribed as a terrorist organization, when the organization, though not organized for such purposes, “uses…acts to terrorize or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give into an unlawful demand.” Clearly we’re faced again with yet another vague definition, which violates our right to assemble and to organize, because with mere allegation and raw intelligence, any organization may be outlawed and any legitimate dissent or protest be proscribed as terroristic. This provision requires hardly a quantum of evidence for any assembly or association to be liable for proscription.

Section 19 provides for the indefinite detention of a suspect so long as there is an “imminent terrorist attack” and a “written approval” from an official of a human rights commission or member of the judiciary. Take cautious note that no probable cause is required to justify the suspect’s detention, only mere claim of “imminent terrorist attack.” This in effect legitimizes warrantless arrests and suspends the suspects’ privilege of the writ of habeas corpus. The Constitution requires that in suspending the privilege of the writ, no person can be detained for three days without the filing of charges against him. However, the HSA contains no such requirement – the suspect may be detained beyond three days so long as his connection to the imminent terrorist attack is alleged, without having to file the necessary charges. Also note that the written approval will come from either a judge or an official of a human rights commission under the executive branch, not the constitutionally-created and independent Commission on Human Rights.


Section 26 limits the right to travel of the accused “to within the municipality or city where he resides” and/or places the accused under house arrest, even if entitled to bail, so long as he or she is charged under the HSA but the evidence is not so strong. Not only that, he or she is also prohibited from using telephones, cellphones, e-mail, internet, and other various means of communication with people outside of his residence unless otherwise allowed by the court. 


It used to be a joke that it’s not so bad to be illegally detained, because the HSA requires the payment of P500,000.00 for each day of illegal detention. But a critical run-through of the law reveals that “The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused,” which actually meant that we’d be paying ourselves, because these appropriations are public funds – in short, taxpayer’s money. The joke is over.


So many things have been said against the HSA by civil society, international organizations and even dissenting members of government. The government might try to push these suspicions away and label them as baseless exaggerated paranoia. But the collective Filipino experience and that of humanity as a whole has taught us to always remain vigilant against any threat on human dignity, never to wait until it’s too late. 


On the other hand, times are changing and we face new threats other than government abuse. This calls for a serious balancing act and a recalibration of our idea of a good society, for the sake of common security. This time, we have to ask ourselves “How much personal liberty are we are willing to give up for the sake of quick justice?” Would you have given up some of your freedoms if you knew it could have prevented the Glorietta 2 incident? 


The HSA was designed to limit rights, make no mistake about that. Legislators decided that some rights have to be limited, in certain cases, in order to quickly dispense with a terrorist threat. They needed to find a way to cripple terrorists by freezing their accounts and properties. They want the courts and the police to be able to gather evidence more quickly by allowing exceptions to the Anti-wiretapping law. They want to prevent the destruction of evidence and the prevention of coordinated movements by limiting the right of communication. Whether we agree with these methods or not is a matter of sound personal judgment. 


As legal practitioners, we often tell ourselves to first wait and see because, ultimately, the matter will have to be dealt with by the Supreme Court, if and when an actual controversy arises. But the vigilance required of us has very little to do with mere intellectual discussions and abstract exaltations. This is as real as it can get. We are dealing with real lives and real victims. And when the time comes, we, as stewards  of  justice,  must  never stand  indolently by.

Farmer Joey

This week was full of prouder moments... of being a human rights advocate and a part of the legal profession... of having friends who sacrifice and inspire... of being part of something beyond words, beyond life.


A few hours ago, I had an instructive encouter with a Sumilao farmer named Joey. I offered him a light and we started talking:


Joey: Diba ikaw 'tong kauban namo adtong isa ka adlaw sa San Carlos? Joey [offering me a handshake] (Aren't you the one who was with us the other day at San Carlos? Joey)


Mark: O. Mark [shaking his hand] (Yup. Mark.)


Mark: O, unsay nahitabo ganina? (So, what happened today?)


Joey: Wala mi pasudla sa Malacanang. (They didn't let us in Malacanang)


Mark: Mao ba? Wala man lay ning sugat sa inyo? (Really? Wasn't there anyone there to greet you?)


Joey: Wala lagi. (Nobody did.)


Mark: Yawa. Unya, unsay inyong gi buhat? (The devil. What did you do?)


Joey: Wala lang. Gahulat lang tawn mi didto. (Nothing. We just waited.)


Mark: Grabe sad ning inyong kalisud no? Wala pa gyuy ning buhat ani sukad. (This is some sacrifice you're making. Nobody's ever done this before.)


Joey: Mao lagi. (Yup.)


Mark: Naa nakay asawa, Joey? (Are you married, Joey?)


Joey: O. Tulo na gani ako anak. Isa ka four-year old, isa ka two ug isa ka one-year old. (Yes. I have three children. A four-year old, a two-year old and a one-year old).


Mark: Wala ka gimingaw? (Do you miss them?)


Joey: Mingaw lagi. Sa buntag ok lang kay daghan man tao. Bibo pa. Pero sa gabii, mingawon gyud ta. (Yup. During the day, it's alright because we're surrounded with so many people and we have a nice time. But in the evening's, I really miss my family.)


Mark: First time ba ninyo sa Manila? (Is it your first time in Manila?)


Joey: Kami kadalasan, first time pa. (For most of us, it is.)


Mark: Kuyaw sad mo no? First time ninyo, daghan na kaayo mog nakit-an? (Wow. It's your first time and you've already visited all these places.)


Joey: Mao lagi. Pag agi nako sa EDSA mura gyud ko'g ga-damgo. Kining mga lugara, gaka-kit-an ra gyud ni namo sa TV. Pero karun, naa na mi diri. Kuyaw gihapon na experience. (Yup. As I was walking along EDSA, I felt like I was dreaming. These are places that we only see on television. But now, here we are. This is an amazing experience.)


Mark: Padayun lang gyud, bai. Bisang lisud na kaayo, siguro nakit-an man ninyo na bisan asa mo mu-adto, daghan gyud ga suporta sa inyo. Gikan sa Surigao abot sa Manila, naa man gyuy ning dawat sa inyo diba? (Just hold on, friend. It's been hard, I'm sure you've noticed that no matter where you go, you will always find many people who support you. From Surigao to Manila, there have always been people who have lent you aid, right?)


Joey: Mao lagi. Naa gyud mi pirmi matulugan. Wala gyud mi nagutom. (Right. We always had a place to sleep. We were never left hungry.)


Mark: Daghan pa gihapon buotan na Pilipino, diba? Mahuman nalang lagi unta ni para mu-uli na mo. Pasko na raba hapit. (There are still many good Filipinos, right? I just hope that all this will be over soon so you guys can go home. Christmas is coming very soon.)


Joey: Mao lagi. Sa kaluoy sa Dyos. Mahuman na unta. (Right. By God's grace, I hope it will be.)




We shared a few jokes just to lighten the mood and Joey excused himself. After listening to one of Marlon's enlightening lectures, Det and I had to leave because she had a 6am call time at work. And so we took a cab and I dropped Det off at her place... and then... for no clear reason... I walked... I walked from the San Carlos Seminary to my home. 


It took me forty minutes this time because of my unusually heavy backpack.


When I got home, I could not feel more grateful.


How petty our problems seem after talking to a tired landless farmer.


We continue to fight. Tomorrow's another day.

A Humanized World

This is a short reflection essay I wrote after the Human Rights and Liberalism Seminar I attended in Gummersbach, Germany from June 25 to July 7, 2006. Thank you to the Friedrich Naumann Stiftung for the wonderful opportunity. 


This was originally published in the FNS website, here:
http://www.fnf.org.ph/seminars/reports/a-humanized-world.htm


Coming home was not a difficult thing to do after having experienced a two-week seminar on human rights and liberalism in Gummersbach.


Not only was I able to amplify my knowledge on human rights, but I also formed meaningful bonds with human rights advocates from all over the globe. It felt good to know that, difficult as it is, this was not a struggle we were fighting alone.


Human rights are put into their proper context when all artificial differences are set aside. Race, religion, creed, nationality, gender, age, profession – all these social constructs are rendered meaningless when we talk about human rights. In theory, I understood this. But it took a 6,000-mile trip to Germany for me to appreciate it in its truest sense.


In the seminar, I learned that my country was not unique in its problems. The co-participants and the facilitators I met shared their experiences boundlessly. They continue to suffer as we suffer, be it in similar or totally different ways. With these shared accounts, I discovered that the Philippines does not boast of the worst conditions possible, but at the same time, it was disheartening to know that we still have a very long way to go.


We have always been one of the first and most eager to enter into international agreements protecting human rights. But disgracefully, we are one of the last ones to properly implement them and make them real. Our domestic laws are second to none, but the proper enforcement of these laws is dismally missing. These are problems that have been present ever since the creation of our republic but we have little to show as evidence of our commitment to change. One thing is undeniable: we have failed. And in accepting failure, we have to recognize that we might have to find solutions elsewhere. This is the purpose of international dialogue.


In the International Academy of Leadership, we were asked to return to the basics of human rights theory and transform these theories into solutions. In the past, reading about the problems of other countries like Bosnia, Afghanistan or Israel always seemed too academic for me. They were abstractions that offered no empirical help in understanding the problems and coming up with an effective solution. Gummersbach changed all that. By giving me a chance take part in this dialogue, I was able to give human faces to all these different countries and remove them from the abstract realm forever. Their problems became real to me and the solutions they offered became more feasible. By understanding the different histories of European, Asian and Latin American countries, the underlying interconnections became apparent, and it made me understand how the Philippines fit in the vast fabric of the world. I was part of the human community, and the world became my home.


One important thing I remembered about the seminar room where we had our sessions is that it had this large map of the world displayed on the far wall. Before the seminar, I looked at the map. It was the same as any other map I had seen before. It was just a geographic representation of the different territories of the world. But after all the stories shared, jokes exchanged and friendships formed, I never looked at the world the same way again. Costa Rica was no longer some obscure country in Latin America but it was home to a friend who I sang with in a Karaoke bar in Magdeburg. Malaysia was no longer just a wealthy neighboring Southeast Asian country, but it is where a very funny and poetic Chinese lawyer lives with his wife and child. Jordan ceased to be just another Middle Eastern country and, in my consciousness, has become the birthplace of a brilliant political scientist who has lived in London, New York and France, and hates football. These once abstract places, that I might never even have a chance to visit in this lifetime, are homes to people who I have come to know as friends. All these countries have become real because they have been given human faces.


Today when I read the newspaper, I see, understand and empathize more because it has become clear that in all these talks of war, disaster and human rights abuses, every victim is somebody’s parent, child or friend. Understanding this makes me more aware that I am part of a larger human family. Each time a single member of that family suffers, the entire family is harmed. This is how I understand human rights.


Like I said in the beginning, coming home was not difficult to do. Because of this new connectedness I felt with the whole of humanity, the world had become home. The 6000 miles no longer mattered.

The Rights of the Soul

Originally published in the February 2006 edition of ThePalladium for my column Legal Personality.


Being a fervent advocate of human rights, I am morally bound to speak about how much the marginalized need us and how little they have in both in life and in the application of the law. On a different note, twenty years of Jesuit education has taught me that one cannot truly give what s/he does not have. Jesus Christ, himself, said “If a blind man leads a blind man, both will fall into a pit.” And thus, I am equally bound to say that we, ourselves, have a solemn duty to protect our own rights – some of which we do not even recognize.


American psychologist, Abraham Maslow, taught us that the human person has a hierarchy of needs. From bottom to top, he listed them down as Physiological, Safety, Love/Belonging, Esteem, and at the apex, Actualization. One has to satisfy the lower-level needs in order to go up the next rung and satisfy the higher ones. The problem with human rights theory is that it is often restricted to the bottom two levels (food, shelter, clothing, education, safety, etc.) – ensuring people’s survival. But is it fair to end there? A full stomach with an empty heart?


This is where these higher-level rights come in, which I conveniently call “The Rights of the Soul”. Like human rights, these rights are inalienable, inherent and imprescriptible. They cannot be given away or sold, they are not granted by law but are part and parcel of one’s humanity, and they cannot be extinguished through time. One cannot separate them completely from human rights because they are, in fact, human rights and emanate from the same continuum of liberties and freedoms. For instance, the freedom of expression is expanded to form the freedoms of art and music – of beauty… not only to express but to also appreciate and judge the same. The freedoms of religious and political belief also go higher than mere organized beliefs but to personal ones – the right to hope, to dream, to have access to the ideal and the divine. The freedom to feel – to love, to laugh, to cry, to hate, to experience the broad spectrum of human emotions and to go through them again and again. The right to privacy also goes deeper and creates a right to keep one’s life compartmentalized without the fear of being accused of duplicity against the other aspects of his/her life… to be separate his/her career, family and passions from one another.


These are only instances and, no different from human rights, there can be no real possibility of enumerating them all because these are the things that make us human (a concept which might never be fully comprehended). Not only humans of flesh and blood but humans of soul and spirit – things that allow us to reach out into the unknown, the impossible, and the divine and, somehow, make them real.


So, when will we begin to assert these rights? Many people impliedly relinquish these rights by living their lives mechanically… they work, study, eat, sleep and do it all over again the next day and the next until on end. By doing this, no matter how wealthy or intelligent, are they not oppressed as well? One who does not live his/her life all the way to actualization cannot teach another about beauty or meaning or hope. The best that s/he could do is offer material things that inevitably perish in time.


The rights of the soul that we protect turn us into beings of power and by only protecting them, will we be able to empower others.


And here I am, just finished writing a new song while I swallow the last drops of my Starbucks peppermint mocha frapuccino as an unwashed little girl approaches me and begs for a few coins. I hand her a twenty and send her off with a smile and a prayer. I then put on my black jacket and walk home.


So much for higher level rights.

Wanted: Heroes

Originally published in the December 2005 edition of ThePalladium for my column Legal Personality.

You cannot embrace a man who is full of sores because the only thing he will feel is pain. 

- ANONYMOUS 

One of my law professors once told me that our job as lawyers is to prevent, avoid, or resolve conflicts. In my short stay in the ALS, I have found this increasingly difficult to accomplish. Many people these days have this tendency to be oversensitive. They hurt very easily. Nobody can make an honest mistake nowadays. Nobody can take a joke anymore. Today you have to be politically correct in whatever you do and say. People no longer want to hear the truth. They want you to feed them with feel-good lies and expertly-manufactured BS in the guise of positive affirmations that only make them stop trying to improve themselves. You can no longer call a spade a spade without being shrugged and given all kinds of strange looks.


We cannot afford to have feelings anymore… not when everything around us is falling to ruin. “I’m sorry, it was an oversight. Please forgive me”. We just don’t want to tell people that they are wrong. Now, I am not saying that we stop having compassion for those who deserve and need it. I’m saying that we should just stop being so oversensitive. It is just not proper in our calling. One cannot be impartial and oversensitive at the same time. Justice has no feelings. We need to be up and alert, sharp, and discriminating with surgical precision. We are ordinary human beings called to do extraordinary tasks.


People should learn to, once more, stand up on their own two feet. We need to be the Filipinos who once stood tall and proud against our oppressors. Dr. Rizal did not sit at home and cry about hurt feelings. When the Spanish friars offended him (although this might be too much of an understatement), he wrote two books and started a revolution. This is the kind of person that we are being shaped to become.


In the world today, truth is not as important as meaning. Knowing this, we should be watchful in allowing the truth to be drowned in a sea of faulty meanings. We have become a nation of blabbering crybabies while the wealthy reach the top because they don’t give a damn what people say about them. We die with our petty concerns and allow the real opportunities to pass us by unnoticed. People always want to see themselves as the victims. This country has no room for any more victims! With the massive privileges and responsibilities dropped on our laps, we have no choice but to become heroes.


How?


Stop feeling sorry for yourself and do your job.


That is all the hero ever has to do.

Wing and Talon

Originally published in the September 2005 edition of ThePalladium for my column Legal Personality.


The conversation started with a simple question:

Are you happy, Mark?

I could have chosen to answer this question with my ever-casual “yes” and dismiss the subject altogether. But this time, it led me to an unexpected stupor of intensive thought.


A Theology professor once told me that we human beings have an infinite capacity for happiness. Comforting words these are but, consequently, it also means that we will never get to where we truly want to be – our destination is ever-ambulant, always two steps ahead of us – always eluding us. When frustration sets in, we shake our heads, bow down and surrender to compromise. Dreams become encrusted with the rough material of reality. Do we allow ourselves to be repeatedly imprisoned this way? Or do we dare break through?

The Bar Examinations are a few days away. Everything is set.

We are the privileged few. Oftentimes, we hear critics say that we are too detached from the real world – from the masses.


Indeed, we are. We are those who desire to truly live rather than to just survive. It is basic that what is popular is infrequently what is right. To allow ourselves to be swept by the masses is to join those who have been divested of free choice – people who act because of the external pressures brought upon them – people who do what they do because they are left with no other option. They are constantly pushed around by painful externalities – they simply cannot act on their own volition lest they get trampled upon and might even die trying. In this situation – when you fight for pure survival, only self-interest governs.


We are too educated and too fortunate to allow ourselves to be fooled into the same trap. All our lives, we have been stormed with blessings that many others could only fantasize about. As a counterpart, we are necessarily yoked with tremendous responsibilities that we ought never to abandon. It is our paramount duty to elevate others to where we are – to champion them and obtain for them the very freedoms that we take for granted every single day.


We must never apologize for being where we are. However, we must never fail to condemn ourselves for not pulling others up during the climb.


Human beings are flawed by nature. But for the few of us who have been given the necessary facilities to better approximate perfection, that is, excellence, we must do so. Anything less is pure unmistakable injustice.


The conversation ended with a simple phrase:

People like us are never satisfied with the ordinary… and we should never be.

For the 2005 Bar-candidates and future leaders of our nation, I pray that you may never lose your idealism; that you may never allow yourselves to be obscured by the riptide of the masses under the deceptive guise of popular choice, no matter how loud. For the sake of the future of the Filipino people and for humanity, allow yourselves to shine forth for all to see your borrowed glory and take your lead. I implore you to remain steadfast and hold true to your commitment and calling as stewards of justice. Make proud those who have crafted you into incomparably superb tools for bringing legal order to an often chaotic world.


Do not allow yourselves to be just lawyers and pass the bar for its own sake – but be ever-vigilant and strive always to raise the bar to an unprecedented height and embrace your destiny… become the Atenean lawyer.


Come take your fill and reap the fruits of your arduous labor. Remember: infinite capacity. So flex your wings and sharpen your talons. Rest up. You are ready.


No “good lucks” for the prepared. Only three words remain: 

ONE BIG FIGHT!