Gratuitous punishments

Courtesy of the BBC, a portrait of Convicted Estrada’s tranquil jail (hat tip to how now, brownpau? who also deserves a prize for most startling Estrada-related image).

Fr. Joaquin Bernas, SJ in his column, explains what the crime of plunder is, and points out that unless accompanied by conditions, a convict can’t refuse a pardon:

Incidentally, Estrada has already said that he will not accept pardon. It is worth noting, however, that only conditional pardon requires acceptance.

An absolute pardon becomes effective even if not accepted.

Amando Doronila says the Estrada conviction sets the stage for an uneasy Arroyo post-presidency, to put it mildly (bloggers such as Careless Thoughts express similar sentiments). In my column today, Estrada’s ghost army, I do point out that things have reached the point where Estrada’s wrongdoings look like small potatoes compared to the goings-on in the present government (and you only have to look at the ZTE deal, a huge can of worms).

It was also significant, I thought, that even as Estrada faced conviction in court, political leaders were practically falling over themselves to be seen with him, or at least to let everyone (including, most of all, Estrada himself) know they sympathized with the man. In contrast, the President had hunkered down in the Palace with her cabinet, and no one was making a beeline to see and be seen at Fortress Malacanang. This is a pretty galling indication of just who, exactly, the political class thinks will be more relevant come 2010. With relevance comes influence.

Going back to Estrada’s crimes and punishment. In Inquirer Current, I tackled two points of view. To understand the rise and fall of Estrada, and his subsequent (partial) political rehabilitation since then, can be explained by means of a simple axiom: you do not kick a man when he is down. I also discussed something a UP Prof., Prospero de Vera, said on TV yesterday: the Filipino concept of justice is one of restitution and not retribution.

The former presidents of South Korea imprisoned for crimes much more serious than those for which Joseph Estrada was convicted, were imprisoned for only a year before being pardoned. The justification for the pardons goes to the heart of the position I personally held, vis-a-vis the decision to detain Estrada in the first place.

In conversations I had during that time, I remember saying I opposed his being thrown in jail upon the filing of charges. My reasons were simple. I felt that he deserved consideration both as a former president, and because he’d relinquished power without bloodshed. Of course a lot of counter-arguments were made, the rule of law, etc., etc., but I felt that it would be perceived as kicking a man when he’s down, and that a newly-installed government whose legitimacy rested on a pretty unsatisfactory Supreme Court decision, was in a poor position to insist on an inflexible application of legal procedure. It was reckless and imprudent to ferociously apply the law when your legality hasn’t had time to be fully settled.

Had Estrada been left in the comfort of his North Greenhills home, placed, perhaps, under house arrest, then carted to and from the venue of his trial, you wouldn’t have had Edsa Tres. I wish I could locate Fr. Bernas’s column where he pointed out that Estrada’s status as a prisoner was sui generis, and thus couldn’t properly be compared to that of an ordinary felon. His legal argument was made long after the Estrada arrest, if I recall correctly.

In light of what Prof. de Vera said, which I think is very true, and in view of the South Korean experience, it might also be more productive to revisit the law penalizing plunder, and refocus it on enabling the authorities to recover ill-gotten wealth from officials. That satisfies the requirements of justice; it avoids turning erring officials into martyrs; and it addresses a reality we all know: money is power. Conviction, in and of itself, carries great symbolic weight; beyond confiscation of ill-gotten wealth or property, any further punishment for an elected official is gratuitous.

Of course, there are those who’d strongly disagree (the conviction is “one point for the thinking Filipino,” says Blowing My Mind Off). See Erap verdict and our affair with the law by Miriam Coronel Ferrer (who is more inclined for a “rule orientation”) and Guilty! But Special Concessions for Accused Show Flawed System, by Karen Tiongson-Mayrina.

Blogger chizjarkace thinks Estrada’s still exactly in the same position he was before the verdict. Rasheed’s World thinks the conviction has less impact because not only does Chavit Singson remain scott free, but it remains to be seen whether similar high-profile cases can even get off the ground (ricelander expresses similar thoughts; Philippine Experience wonders if those who went after Estrada would go after the President with equal vigor). A good way of seeing how one case can point to a larger injustice is in Exposing a Corrupt Prosecution and Trial in Alabama, in Harper’s Magazine’s blog:

Like tin-horned Central American dictators of old, the Bush crew believes that it can and should use the criminal justice system to take out its political enemies. It does this in a brazen way. And it has no shortage of ostensibly independent helpers to see its schemes along on their merry way. When the story is fully told, the “independent” players will be exposed as not remotely independent. This was an across-the-board systems failure.

This cautionary note (no legal system is immune from the risks of being used for partisan ends) brings up another. Charles Cunningham’s The Residencia in Spanish Colonies explores (with a particular focus on the Philippines) the Spanish colonial institution of the audit of officials as soon as they left office, or embarked to take on a new one. Praiseworthy in its intentions, in practical terms it proved a disaster. As Cunnigham wote, in the conclusion of his paper:

The residencia was essentially a Spanish institution. Its principles were inherited from the Romans. It was adapted through three hundred years to the needs of a vast colonial empire. It cannot be said that it was a success. Its purpose was to deter government officials from abuses rather than to inculcate a sincere desire on their part to fulfill the duties of their offices conscientiously and justly. The necessity for the residencia would have been eliminated by a more careful selection of men for offices. The residencia was the culmination of a period of service in an office which had been purchased, usually, and which was not regarded as an opportunity for service but as a means of yielding the greatest possible profit to its holder. Aside from the obvious defects of such a system, the residencia came too late in the period of service, held as it was at the end of the term. It sought to punish offenders and correct evils rather than to prevent them. This was the most serious fault of the residencia.

Still, going back to my proposal to revisit the plunder law, a system for the public audit and determination of accountability of all public officials, upon the expiration of their terms of office, might be a good option to explore as well.

Interesting observation by james_cartmire, on the Escuderos:

on a different note, i’m sensing the escuderos are positioning themselves to become part of the coalition majority soon. whether it’s in preparation for 2010 or just to gain power favors from malacañang, i don’t know, but they are recently sounding off something intriguingly ‘pro-administration’.

representative salvador escudero (chiz’s father) for one has been vocal on giving pointers to gma that borders political objectivity and classic butt-kissing-in-denial. in one news stroy i read last week (i just can’t recall what story it was exactly), the older escudero was advising gma on what he thinks she ought to do with a rather non-oppositionist tone. and on another occassion, he repeatedly praised health secretary francisco duque during a budget hearing; he commended duque and said that he should really should consider replacing presidential spokesperson ignacio bunye, since he was successfully able to explain the rationale of their budget request, unlike gma’s ‘spokespersons’ who often only make a situation worse for her by not being able to clearly explain and/or coming off as arrogant.

the younger escudero, chiz, on the other hand, has been reportedly working very close with gma’s economic team on pursuing malacañang’s legislative agenda on macroeconomic affairs in the senate (finance secretary margarito teves said so). hmm.. i guess we’ll hear more of the escuderos soon enough.

Latest news is that Jose Ma. Sison is due to be released from detention, but the dissatisfaction of his admirers with those who approved of the arrest will long endure. As we have no names puts it,

I can only look at the context of those blog writers. It did not surprise me one bit when I discover that these writers are also those who support Tuition and Other Fee Increases, the intensified exploitation of foreign corporations of our natural resources, and show a double standard when it comes to the violation of the rights’ of UP students (yes, they get all sanctimonious with the death of Cris Mendez, but show indifference to Karen Empeno and Sherlyn Cadapan, showing that if you’re a Leftist, its ok for them if you get killed). In short, I can only express regret how certain people, under the cloak of “freedom of speech” propagate the most malicious of the Arroyo Regime’s propaganda.

UPDATE: Joma Sison Release from prison an hour ago in Scheveningen. Live photos!

Bankok Pundit wonders how a Thai general can express admiration for Mao Zedong.

Czechews reports residency permits are going to be easier to obtain, because of a shortage of skilled labor. OFWs will most likely explore this option soon enough.

Lighter reading: reason is the reason on funerals. In Fraternam Meam on the debate (reaching the courts) on who invented (ugh!) Karaoke.

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