Mediating Luisita: An exercise in futility

Recent events have unravelled a clear pattern that the Philippine Supreme Court is caving in to the hidden but powerful hand of the current occupant in Malacanang.

Recall that last August 18, the Supreme Court convened to decide on the land reform issue at Hacienda Luisita. It was the first agrarian dispute to be heard by justices in open court and involved President Benigno Aquino III’s landlord clan. At issue before the court was the legality of the decision of the Department of Agrarian Reform and the Presidential Agrarian Reform Council (PARC) to revoke Hacienda Luisita’s Stock Distribution Option (SDO). To evade land distribution in 1989, Hacienda Luisita implemented the SDO as one of the non-land transfer schemes allowed in the Comprehensive Agrarian Reform Law. The management of Hacienda Luisita Incorporated (HLI) has filed for a temporary restraining order with the Supreme Court, which has been in effect for over four years now.

Since becoming President, Noynoy Aquino has maintained he would keep his “hands off” the Hacienda Luisita issue, despite being the current PARC chair and scion of the majority shareholders of Luisita. But this seems to be changing now as Supreme Court Chief Justice Renato Corona and the other associate justices formed a special committee to mediate between HLI and the Hacienda farmers regarding a recent compromise agreement based on the SDO. Corona was appointed Chief Justice by then President Gloria Arroyo just days before the end of her term, and was snubbed by the new President when he chose to swear his oath of office before another justice. The President and the Supreme Court Chief Justice look like they have buried the hatchet and are now moving towards rapprochement. And Hacienda Luisita appears to be at the core of this new friendly and cordial relationship.

One may ask however if the Supreme Court’s decision to order mediation was appropriate given that the conflict between HLI and the farmers had long been the subject of negotiations between the parties, referendums, and even a bloody and deadly farmers’ strike. Mediation usually works in conflict resolution only when the parties are willing to settle their disputes. The Hacienda Luisita land issue has reached an irreconcilable impasse in the conflict between HLI and the farmers. Its acrimonious history has been well defined by intransigence on both sides.

It is also very doubtful if R.A. 9285, the law that institutionalizes alternative dispute resolution in the Philippines, applies in this case, especially when the matter is now in the highest judicial court as a serious question of law. This is the first time that the Supreme Court has formed a mediation panel before issuing its decision.

Mediation or any other effective form of alternative dispute resolution often works wonders when the conflict is fresh and the parties are still willing to sit down and strike a happy compromise. The Supreme Court cannot be an effective gatekeeper for every dispute that enters its door by asking parties in a conflict to sit down again and try to resolve their dispute by themselves. This is better accomplished in the lower courts or even before a dispute becomes a legal proceeding. That is why it is called alternative dispute resolution: solving conflicts out of court and by the parties to a dispute themselves.

By all appearances, the Supreme Court decision to order another mediation of the Hacienda Luisita dispute is a cop-out. First, there is no legal foundation to accept the controversial compromise agreement between HLI and an alleged group of farmers because doing so will pre-empt or render moot any decision upholding the PARC’s earlier invalidation of the SDO. Second, the parties in the dispute before the high court are government lawyers arguing on behalf of PARC and the lawyers of HLI. The farmers who believed they have been defrauded of their rightful share of the Hacienda’s land are not represented, which is clearly a violation of equal protection under the law. Last, the Supreme Court’s recent pronouncement has only made it obvious that it was wilting under the pressure of the President, who still is one of the Hacienda’s major owners contrary to his pronouncement of non-interference.

At this stage of the dispute, the farmers have always maintained that the validity of the stock distribution option cannot be resolved by mediation or by any agreement of the parties. In asking the parties to go back to the negotiation table, the Supreme Court in effect is trying to evade the real issues and ignoring the decision of the PARC regarding the validity of the SDO.

What makes this mediation process suspect or if not an outright joke is the most recent recommendation of the mediation panel to hold another referendum among the farmer beneficiaries. The farm workers would be asked to choose between physical land distribution either to individuals or to a cooperative, on one hand, or remain under the stock distribution option, on the other.

The farmers want the Supreme Court to revoke the SDO and uphold the PARC’s earlier decision to invalidate it. For some twenty years, the SDO has been implemented at Hacienda Luisita but the Presidential Agrarian Reform Council has found that it has failed in its objective of improving the lives of farmers consistent with the government land’s reform program.

Under the 1989 HLI stock distribution option scheme, there is a policy of “no-work no-shares” – meaning, workers who co-own the hacienda do not earn shares if they do not work. According to PARC, this was contrary to law and public policy as the farm workers remain ordinary farmers while the land remains under the full ownership and control of HLI. It concluded that the farm workers’ economic conditions have become onerous, and their lives more miserable.

Another referendum would only be an opportunity for Hacienda Luisita to deceive the farm workers into accepting the SDO through bribes and threats. The management of the Hacienda had already done it recently through the so-called controversial compromise agreement as they have the money to buy out the hard-pressed farmers who have to suffer poverty and indignity for fighting for their rights to own the land they till.

If this were truly an attempt towards mediation, the farmers can refuse to go to another referendum. They can say enough is enough. What then would the Supreme Court do? It cannot force the farmers to accept the recommendation of the mediation panel, for that would violate the true purpose of mediation. Will it then revoke the SDO and uphold the PARC’s decision?

But the real and most important question the justices of the Supreme Court must face is whether they can afford to rebuff the new President. Hacienda Luisita should have been in the hands of the farmers since 1967. In 1985, a Manila trial court ordered the distribution of Hacienda Luisita to the farm workers, only to be reversed by the Court of Appeals when Cory Aquino became president.

The Supreme Court will surely find a way to moderate the conflict, but don’t bet on the highest court giving the farmers their rightful share of the land.

Between a landlord and a farmer

More than fifty days to his presidency, Philippine President Benigno Aquino III appears to have stumbled on his path towards defining his presidency. Even his “no more wang-wang” directive (no blazing sirens and motorized cops to escort public officials) whenever he takes the road is looking more and more like a mere sound bite.

After all, if he really wants to navigate Manila’s heavy traffic like the ordinary or average Filipino, then he should take the jeepney or public bus or the rail transit, which is the mode of transport for ordinary working citizens. Working Filipinos don’t travel in a chauffeured car, much more with the blasting din of sirens. His “no more wang-wang” policy is an empty and meaningless gesture for a president who wants to appear he’s one of the ordinary people.

It seems that President Aquino’s handlers are trying too much to cultivate a populist image for the new leader. More like Ramon Magsaysay, endeared in the hearts of the Filipino people as their champion or president of the masses. Regarded as the most popular president of the Philippines ever, Magsaysay was the first president to open the doors of Malacanang to everyone. Compared to his disliked predecessor, Elpidio Quirino, who was a better chief executive and more effective leader in managing the country’s economy. Or to his successor, Carlos P. Garcia, the nationalist president who left us with his legacy, the Filipino First policy.

Perhaps, Noynoy Aquino’s advisers want to cast the president in the mould of “Erap para sa mahirap” (Erap for the poor) before Joseph Estrada was convicted of plunder by the Sandigangbayan.

What has President Aquino III done so far?

The President’s adversarial team of lawyers backed up by the Commissioner of the Bureau of Internal Revenue, Kim Henares, appeared overeager to push their chief’s agenda by bringing up four highly contentious matters to the Supreme Court to decide. These four cases involve the first three executive orders issued by President Aquino and his plan to impose a tax on road toll.

The executive orders, all challenged or subject of a temporary restraining order, include: No. 1 – creating the Philippine Truth Commission to investigate corruption in the Arroyo administration; No. 2 – firing all “midnight” appointees of former President Gloria Arroyo; and No. 3 – voiding the previous administration’s order granting state lawyers with automatic Career Executive Service Officer (CESO) Rank III without taking CESO examinations.

A 12 per cent value-added tax (VAT) on road toll was scheduled for implementation by the Aquino government early last week, but was stopped by a temporary restraining order by the Supreme Court. Refusing the advice of VAT law authors and tax experts, BIR Commissioner Henares claims that the VAT on road tolls is allowed by the Comprehensive Tax Reform Act of 1997 and the Expanded VAT Law.

“This is not a good beginning,” lamented Senator Joker Arroyo, the first executive secretary to Noynoy’s mother, the late President Corazon Aquino. Arroyo, no relation to the former president, deplored the new president’s inability to grasp the difference between the law and state policy.

By now, President Aquino would probably be best remembered for doing nothing in his young days in office, especially when opportunities presented upon him to reverse dramatically the course of Philippine history early in his term.

Two missed opportunities stand out.

First is Oplan Bantay Laya (OBL), a military counterinsurgency plan of President Gloria Arroyo which expired when her term ended last June 30, 2010. Assailed by many quarters for encouraging extrajudicial killings and the forced disappearances of hundreds of activists suspected to have links with the local insurgency movement, OBL was singled out by Philip Alston, a United Nations Special Rapporteur, as a major reason for human rights abuses by the Philippine military. OBL fails to distinguish between combatants and civilians and legal and underground organizations, thus, engendering human rights violations.

Instead of keeping his election campaign promise to respect human rights, President Aquino simply caved in to the decision of his generals to extend Oplan Bantay Laya up to January 2011, and who knows until when. The Philippine military has consistently denied responsibility for the summary killings and disappearances of suspected activists, which President Aquino has no problem accepting at face value instead of launching a serious investigation akin to the Truth Commission he established to probe into the corruption during the Arroyo administration.

President Noynoy Aquino had the chance to dismantle OBL, a relic from the martial law regime his mother helped to topple through the People Power Revolution. Ignoring all the documented extrajudicial killings and disappearances, Aquino chose to appease the military establishment and did nothing to protect human rights.

Fifty-one days in power, five activists and one journalist have already been killed, adding to the more than a thousand still unsolved cases of extrajudicially killed and forcibly disappeared. Last February 6, 2010, the military arrested and detained 43 health workers conducting a health training program in Morong, Rizal, including two pregnant women. Until now, all 43 are still in detention for suspicion of links with the communist insurgency. Doing nothing to protect human rights seems almost natural and good enough for this President.

Perhaps, it is the second opportunity that is the easiest for President Aquino to seize. The transfer of Hacienda Luisita to its rightful owners, the farmers who had been given land distribution rights under the Comprehensive Agrarian Reform Program (CARP). It would have enabled the newly-elected president to define a major thrust of his government and solidify his own mother’s legacy of comprehensive land reform, but for his family’s continuing saga of stubbornly holding on. President Aquino’s cousins have petitioned the Supreme Court to overturn the 2005 decision of the Presidential Agrarian Reform Council (PARC) to scratch the stock distribution option (SDO) reached under CARP in 1989.

With the Supreme Court yet to decide, a compromise agreement was struck by the management of Hacienda Luisita with the farm workers, retaining the SDO in lieu of a piece of the 1,400 hectares, or a third of the plantation that was up for distribution. The settlement was condemned by the more vocal farm workers in the plantation as dubious and suspicious, alleging that the farm workers were bribed and tricked to sign the agreement.

The Cojuangcos bought Hacienda Luisita in the late-fifties using a GSIS loan and a guarantee from the Central Bank with the stipulation that the land was to be redistributed to its tenants after the loan has matured ten years later (or in 1967), something that has yet to happen.

With a single stroke of the pen or some persuasive small talk to his family, President Aquino could have changed the course of land reform in the Philippines. Hacienda Luisita is a microcosm of the land reform problem in the country. Imagine its huge impact if Noynoy Aquino would be able to return the land that rightfully belongs to its small tillers.

As in the case of Oplan Bantay Laya, President Aquino has washed his hands of the ongoing Hacienda Luisita conundrum. Instead, the President insists he is no longer a party of interest in the dispute since he has divested his shares in the company owned by his Cojuangco relatives. That he would not interfere in the land dispute because he did not want to impose himself on the farmers and workers of the Hacienda.

President Aquino spoke of the straight and crooked paths during his first state of the nation address. Here was the opportunity for him to tell his relatives to take the straight path.

No president in this modern age could possibly achieve what Evo Morales, president of Bolivia, has accomplished in his early days in office. Morales, an Aymara Indian and coca farmer, became the first indigenous president in a country with an indigenous majority.

The election of Evo Morales as president of Bolivia represented a radical shift in the country’s history. A few months after taking office. Morales put Bolivia’s natural gas fields and other key resources under state control, against the wishes of foreign investors and multinational companies. He has pushed for constitutional and land reforms, and set out the rights of the indigenous population, which have worried much of his middle-class opponents.

The difference between Evo Morales and Benigno Aquino III is striking. From where they came from, one is dirt poor; the other, to the manor born. Morales is an indigenous Aymara Indian, a coca farmer — the exact opposite of the landowning, schooled, and bred-in-comfort Noynoy Aquino who represents the upper crust in Philippine society.

Who do you think will speak for the poor and champion genuine land reform for small farmers? The farmer or the big landowner?

Noynoy Aquino’s inaugural speech

A friend of mine from the Noynoy Aquino camp in Manila emailed me last week, right after the initial election returns came out, to request that I prepare a draft for the president-elect's inaugural address. He told me to write whatever I want, and he'll take care of bringing it up with the new president. Here's the draft I sent back.

*******
Mga kababayan, magandang araw po sa inyong lahat.

Today marks a new dawn for all of us and for our country.

When asked what one can do for his country during the darkest hours of martial law, my father, the late Senator Benigno Aquino Jr., said that each of us has been assigned a role to play. That we must keep lighting the beacon-light of unity for those who have lost their way. That we must articulate the fervent hopes of a people who have suddenly lost their voices. And that we must stand with courage in the face of seemingly hopeless odds so that hope, no matter how dim or distant, will never banish from sight.

On August 21, 1983, my father fulfilled that responsibility when he gave up his own life so all of us could be one again. So that our voices could be heard again. So that we could rise from the ashes of hopelessness and from the dark abyss of repression.

It would, however, take our country three more years before it could stand up again and assert its rights, through the sheer power of the people, when you installed Corazon Aquino, my beloved mother, as your president.

Now as I stand humbly before you and our entire nation, you have once again rekindled that hope which my parents always wanted to preserve, to fight for and to prevent from banishing from our sight.

Yes, we can hope once more. Yes, we will always keep our hopes alive.

At first, I refused to be drafted as your candidate for president. The problems our country is facing today are enormous. I was afraid I would take over a government that is ridden with so much graft and corruption that is beyond redemption. People distrust the government and its leaders. Our people have lost their hope.

I was grieving when key members of my party approached and asked me to run. My mother Cory had just passed away. I told them to give me time so I can reflect. As I ponder whether to accept the challenge, I thought of my parents. What would have they done?

My father came home on that historic day only to spill his blood on the airport tarmac. Full of courage, without fear, he faced his destiny. My mother, who had always been the calming presence in our family, without the savvy and experience of a seasoned politician, answered the people’s call for her to lead our nation in its darkest hour.

This is their legacy: a selfless love for our country and our people.

How could you not accept the challenge to lead your country? When the two closest people, your very own role models in life, left you with the right and moral choice when it is your time to decide? So, I accepted your challenge, and here I am on the threshold of this political journey. You and I, together, we shall march forward to greatness. Greatness not for our self-gratification, but for the empowerment of our people.

During the election campaign, I have said that I will not only steal, but I’ll have the corrupt arrested.

The first thing I will do as your president is to establish a Truth and Redemption Commission which will investigate all corrupt practices of the previous government. This Commission will identify those who were responsible and will recommend their prosecution in our court of law. No one will be spared. Every guilty person will be held accountable. That is what our people want our leaders to be — to be accountable for their actions. If they did anything wrong, then they must suffer the consequences of their illegal deeds.

But this Commission will not stop there. I will instruct this Commission to develop and implement the standards upon which our government will be measured. There will be a code of ethics for all those in government, whether you are elected or appointed. This code will supplement all existing laws and regulations governing the conduct of all government officials. Every elected or appointive official will be subject to this code of ethics. You violate it, you are gone. Strike one, and you are out. There is no second chance.

In my government, there will be no room for corrupt behaviour. It is about time for us to redeem ourselves from a nation of corrupt leaders, to a nation of honest and responsible leaders. This is our time to shine.

Good and honest governance is the foundation of a strong government. This shall be the guiding principle for my administration, and hopefully for all succeeding administrations.

In the first two years of my presidency, I am committing my administration to use all resources available in the pursuit of the following goals:

We are committed to the achievement of effective and meaningful economic reforms that will benefit the people, through job creation and policies that encourage and promote investment in all sectors of our economy.

We will strengthen our educational system that will prepare our young for the technological demands of the future, not to export our new graduates and skilled workers abroad because there are no jobs for them in our country.

We will foster equal rights for men and women, embrace our cultural and religious differences, and respect human rights.

We will provide opportunities for our Muslim brothers in the south to exercise self-determination and political autonomy in their region.

We are committed to end all armed conflicts, between our military forces and rebel groups. We will continue our quest for genuine peace, for this is the only way we can achieve prosperity.

During one of the military coups staged against my mother’s administration, I was hit by bullets from the soldiers who participated in the unfortunate coup. I sustained injuries in the neck and hips, but that’s past now. I learned and picked up a principle from my father that we must respect the rights even of your enemies. Because this makes democracy shine. As for me, genuine reconciliation is democracy in action.

Lastly, we will continue the legacy of comprehensive land reform started by my mother during her presidency. As a testament of my good intention, I have instructed the members of the Cojuangco family to withdraw its opposition to the redistribution of the farmlands covered by Hacienda Luisita to its farmers and tenants. We will ask the Supreme Court to vacate the temporary restraining order which has stopped the Presidential Agrarian Reform Council from parcelling out Hacienda Luisita to its workers.

My opponents and critics during the election campaign said that Hacienda Luisita is the bane of my candidacy, the litmus test of my competence for the presidency. I want to prove all of them wrong.

I have invited to this momentous occasion Mr. Lito Bais, the head of the farm workers’ union at Hacienda Luisita along with some of their members.

Ka Lito once believed that as long as the Cojuangcos are in Hacienda Luisita, they’ll never give up the land. To which his answer was, “And as long as we’re here, we’ll never give up the struggle for this land.”

Well, we can now bury the past. The future is now. Hacienda Luisita is now the farmers’ land!

My fellow countrymen, today we start a new journey. I will not be able to be the kind of president you want me to be, unless we do this together.

********

You think this is really going to happen? This is just a made-up speech of president-elect Noynoy Aquino. Maybe, all these wishes will be fulfilled — in your dreams.

The accidental president –Part 2

After coming to Toronto sometime in 1987, I read a story published in one of the city’s major daily newspapers endorsing General Fidel Ramos as the most likely successor to President Cory Aquino, one who could continue the country’s arduous path toward a full-pledged democracy and stability. The story credited Cory Aquino for restoring democracy in the Philippines after almost 20 years of dictatorship.

Fresh from our experience with the sporadic coups against the Aquino government at that time, and struggling through the repressive Marcos regime, I wrote to the newspaper to demystify the belief that Cory Aquino saved the Philippines from the throes of a dictatorship and delivered a new era of democracy. My main argument was that Cory Aquino was a reluctant leader, who ascended to the presidency by accident, that it was the Filipino people’s sentiment and debt of gratitude to her husband Ninoy for his martyrdom that gave her their vote.

Now, history is repeating itself. Noynoy Aquino, the son, also rises on the strength of his parents’ legacy. An inconsequential and do-nothing member of Congress, both as a congressman and senator, Noynoy is at the cusp of becoming the country’s next president. Early results of last Monday’s election gave Noynoy an insurmountable lead over his opponents.

The present political reality in the Philippines is not a rarity. When Rajiv Gandhi, the prime minister of India, was assassinated, party members loyal to him wooed his wife Sonia to succeed him. Sonia refused, perhaps for fear for her life and family. Her mother-in-law, Indira Gandhi, suffered the same fate that befell her husband Rajiv. Sonia Gandhi later became the president of the Indian National Congress and currently serves as chair of India's ruling United Progressive Alliance.

Sri Lanka’s Sirimavo Ratwatte Dias Bandaranaike was the world’s first female head of government, ahead of British PM Margaret Thatcher. Bandaranaike was the widow of a previous Sri Lankan prime minister, and the mother of Sri Lanka’s third president, Chandrika Kumaratunga.

When Kim Sung-il passed away, his son Kim Jong-il ascended to the leadership of the Democratic People’s Republic of Korea, Everyone in North Korea now considers Kim Jong-il as their “Supreme Leader.”

Even former Prime Minister Lee Kuan Yee of Singapore did not leave his post quietly. He ensured that his eldest son Lee Hsien Loong would become the country’s third prime minister when he stepped down from power.

This is the same narrative of politics in the Philippines. It runs in and around the family. Almost every congressman or senator is a member of a political dynasty. Noynoy Aquino happens to be the most recent of scions of a political family to assume the reins of government. He will be succeeding another president who came to power on the coat tails of her father’s name and tenure in Malacanang.

But what is so different in the case of Noynoy Aquino?

Prominent among Noynoy’s serious shortcomings is his continuous self-denial of the right of the thousands of farm workers to own their piece of land at Hacienda Luisita. Because of the Cojuangco family’s intransigence, Hacienda Luisita has earned an infamous place in the history of agrarian reform in the Philippines.

The Cojuangco family took ownership of Hacienda Luisita from Tabacalera y Compania in 1958 through a loan from the Government Service Insurance System and a private loan from the Manufacturers Trust Company of New York under a guarantee by the Central Bank of the Philippines. It was President Ramon Magsaysay who offered the sale of the hacienda to the Cojuangcos through his protégé, Ninoy Aquino, a Cojuangco son-in-law. The sale was consummated during the term of President Carlos P. Garcia.

One of the terms of the loan agreement between the Cojuangcos and their creditors was the transfer of the hacienda to the hands of the farmers by 1967. This never happened.

When Cory Aquino ran for president, she promised to redistribute the hacienda’s land to its farmers under a comprehensive land reform program. After assuming the presidency, Cory Aquino changed her heart and the Cojuangcos continued to hold ownership under a stock distribution option, which meant that the farmers would be considered co-owners through stock ownership and the hacienda would be exempt from land reform because it was now a corporation. Stock options were never distributed and the farmers were never considered co-owners.

Noynoy Aquino insists that there are no tenants or farmers in Hacienda Luisita based on the stock option plan, hence there is no need to redistribute the land. If there were any land, according to Noynoy, it would be too inefficiently small to distribute among more than 5,000 farmers. Thus, it was unrealistic to give every farmer one hectare of land to till. But Noynoy Aquino doesn’t understand that the farmers can still own the land as members of a farmer’s co-operative, which is in existence and operates in Hacienda Luisita.

To insist and to deny that there are no tenants or farmers in Hacienda Luisita reveal something is definitely awry in Noynoy’s frame of mind. Some of his opponents voiced their concerns about reports that Noynoy was seeing a psychiatrist and raised the issue of competence. There is nothing wrong about consulting a psychiatrist, and even if this were true, would not prove Noynoy’s incompetence for the highest position in the land.

What could be more damning evidence of incompetence than Noynoy’s continuing resolute defence of his family’s stake in Hacienda Luisita? The father of one of the victims of the massacre during the farm workers’ picket at Hacienda Luisita on November 16, 2006, aptly summed up Noynoy Aquino's incompetence when he said: “How can Noynoy lead the country when he cannot manage to solve our problem here at Hacienda Luisita? This is a small piece of land, a very small problem compared to running the country. Yet, he can’t do anything about it.”

For the farmers who have been tilling the hectares of land at Hacienda Luisita, the continuing ownership of the Cojuangco family mirrors the oligarchic control of the country by its powerful few. To them, the agrarian dispute at Hacienda Luisita stands out as an issue of competence for Noynoy Aquino.

But the presidential election would soon be over in a few days, and when all the votes have been counted, Noynoy Aquino will be proclaimed the country’s new president. Just as reluctant as his mother Cory to lead the country, expect Noynoy and his accidental presidency to yield nothing more than a mandate of false hopes and empty rhetoric to Filipinos.