No one is above the law

Nothing is more mind-boggling than the rationale of outgoing Philippine president Gloria Macapagal-Arroyo in running for Congress to represent her district in Pampanga. Everyone should be thankful that she has listened to the wishes of her constituents. According to her, she filed her candidacy “in order to serve the hardworking people of my province.”

“I am not ready to step down completely from public service,” Arroyo said.

Take notice. If only all our politicians could just be like her, with her endless and untiring dedication to serve the country and her people (she’s the longest serving president of the Philippine Republic after Ferdinand Marcos), our country could never have been served well, or even better. We might as well reconstruct the Marcos bust on the highway going up to Baguio, which had been destroyed by the people’s uprising, and replace it with the ever-engaging Mrs. Arroyo, heroine of the Philippine Republic and loyal servant of her people.

We have a word in Pilipino that aptly describes Arroyo’s decision to run for office: “Walanghiya” (Shameless).

Arroyo will be the first Philippine president to run for a lower position after serving her term. She joins the company of two American presidents who ran for lower office after their terms were over. U.S. president John Quincy Adams served in Congress after his term. Andrew Johnson served in the Senate in 1875 after becoming president from 1865 t0 1869. The Johnson presidency, like Arroyo’s, was among the worst U.S. presidencies. Johnson was also the first U.S. president to be impeached.

Gloria Arroyo survived more than four attempts by Congress to impeach her from the presidency. It was only through impeachment that she could be removed, since the Philippine president still operates under the old and much-disparaged doctrine that “the king can do no wrong.” She was immune from criminal and civil suits while in office, unless of course, if removed by impeachment, whereby she would also lose her immunity.

Gloria Arroyo knows that once removed, she can now be sued.

Look at what happened to Joseph Estrada. Erap had argued that he was still the legitimate president, albeit on leave. He was not actually interested in regaining the powers and perks of the presidency, but Erap’s argument was a subtle ruse to avail himself of immunity from suits that presidents of the Philippines enjoy during their tenure. Well, the Supreme Court of the Philippines in the twin cases of Estrada v. Disierto and Estrada v. Arroyo disposed of Erap’s conundrum by ruling that the former president did not enjoy immunity from the suits. The high court said that unlawful acts of public officials are not acts of the State, and the officer who acts illegally stands on the same footing as any other trespasser. Of course, President Arroyo eventually pardoned Joseph Estrada, thus erasing whatever criminal or civil culpability he had while he was president.

There are two popular reasons why Arroyo is running for Congress, despite her personal and almost audacious declaration that she still wants to serve the public.

First, she gets legislative immunity. If she wins her congressional seat and becomes a member of the Philippine Congress, she will have the privilege from arrest while Congress is in session. Note, however, that this privilege only covers offences punishable by not more than six years. She will also have immunity for whatever statements or speeches she makes in Congress, whether libellous or defamatory, in any of its debates or in any congressional committee.

Any legislative immunity that Mrs. Arroyo derives from being a member of Congress will not be enough to fully protect her from being sued in a civil court or be charged with criminal offences arising from her actions during her term as president. Mrs. Arroyo and her team of brilliant legal advisers must know by now that the moment she steps down from the presidency, her immunity from being sued evaporates and her stature in Congress is insufficient to protect her. Unless she wants to be a fugitive from the law like incumbent Senator Panfilo Lacson who has been issued a warrant of arrest in connection with a murder case.

The second reason, which is the most likely argument why Mrs. Arroyo is running for office, is to carry on with her mantra of constitutional change. She still enjoys the support and loyalty of more than a majority of members of the House of Representatives. With all her powers and resources, she can still control her political party. Once elected, the lower house could elect her as Speaker of the House and from there she could initiate convening a constituent assembly with the task of amending the present Constitution and installing a new system of parliamentary government where she could eventually be elected as prime minister. This is what Mrs. Arroyo really wants, to stay in power beyond her presidency.

Despite the body of jurisprudence that supports the immunity of a sitting president from suits, it is a concept that is both self-defeating and perhaps, an anachronism in today’s politics. It is a judge-made law that the Americans imported to the Philippines and has become a part of the country’s jurisprudence. Under the rubric of the separation of powers between the main branches of government, the executive over time has become insulated from suits while in tenure. Thus, the idea that “the king can do no wrong,” certainly an archaic doctrine that belongs to the monarchy of yore, has been deeply rooted in our system of government.

Where is the rule of law when a sitting president can be above the law?

In Clinton v. Jones, the U.S. Supreme Court finally reinforced the basic constitutional principle that no American, not even an incumbent president, is beyond the law’s reach. Ms. Paula Jones, employee of then Arkansas governor Bill Clinton, filed a civil suit to recover $700,000 in damages from President Clinton, alleging he had made abhorrent sexual advances to her while in his employ in 1991. Clinton claimed presidential immunity from civil damages litigation but the U.S. Supreme Court in a unanimous decision rejected the president’s claim. The Court held that the claim of immunity for unofficial acts was without foundation in precedent or the doctrine of the separation of powers. Ultimately, the case was settled and the suit was withdrawn.

The U.S. high court also rejected the claim that exposure to lawsuits would place an unacceptable burden upon the ability of the president to perform his official duties. This is the most common argument raised in favour of presidential immunity, that the president will be swamped with suits right and left that could hamper the performance of his office. It also raises concerns for potential intrusions upon the autonomy of the executive branch if it is open to suits, especially when you have a very unpopular president or where the majority of Congress is in the opposition. Attempts to prosecute the president become cheap political stunts to destabilize the government.

Immunity from prosecution engenders a cowardly type of politics, which is lazy and not conducive to statesman-like government. It also encourages a politician to try to hang on to office when it might be better for him or her to leave in order to avoid prosecution. This is damaging to the democratic process as well as to the office of the president.

Worse, as it is highly predicted Mrs. Arroyo will do if elected member of Congress, the cover of immunity can lead to attempts to change the Constitution to allow further terms in office, or to rig elections, and harass and undermine political opponents. All these scenarios have already taken place during Mrs. Arroyo’s term. This kind of problem would not arise if there were no differences in the ability to be prosecuted whether a president was still in office or had already left.

It is about time to discard or circumscribe this archaic doctrine of absolute immunity of the President from suit.

Politicians are not above the law. In a democracy, no one is above the law. Immunity gives this impression that politicians belong to a higher order and can do no wrong, in short, gives them absolute power at the expense of good governance, even if it is only for their term in office.

In our winter of discontent, hope (still) springs eternal

Hot exchanges in two chat groups where I am a member threw me off-kilter recently. I thought of their significance in light of the current historic moment that transplanted Filipinos face in their lives, or in the onset of their lives as émigrés in a foreign country. I am referring to the two worlds we live in now: the homeland we left where the locals are now preparing to elect a new leader of the country, and the other, which we have embraced as our new community, including the problems of integration, whether economic or otherwise.

Here in Toronto, a group of young Filipino professionals have initiated a program to help fresh immigrants in finding the right jobs that matched their skills and desiderata. A laudable effort, but the group hobbled from the starting gate in belittling those who have succumbed to the economic pressure of finding ways to support their families by accepting low-end jobs, such as working at a Tim Horton’s coffee shop. One of their young promoters even wrote: “Your Canadian career does not begin at Tim Horton’s.”

Tim Horton’s, McDonald’s and other similar establishments have become of late the job sanctuary for many new Filipino immigrants and women workers who are moving on from their jobs as nannies and caregivers. Women immigrants from South Asia and Latin America have also found the coffee and doughnut shops more welcoming than other employers.

Naturally, some were piqued by the suggestion that working at Tim Horton’s is somewhat degrading. Tim Horton’s is certainly not the ideal place to start one’s career, especially if one had good academic credentials and quite an enviable record of work experience. The young members were simply telling that one should know how to get the right job if they have the skills to write their resumes, select potential employers and undergo successful job interviews. Not to jump instantly on a Tim Horton’s job offer and be trapped there for the rest of your career.

While this group of concerned and adrenalin-pumped young people may be right in identifying the practical set of skills needed to break the glass ceiling, somehow they appear naive, if not out of touch with reality with the immigrant experience.

New immigrants have to struggle against institutional and systemic barriers to employment, such as racism and discrimination, lack of fluency in the English language, non-recognition of foreign academic credentials and work experience, and issues like deprofessionalization or de-skilling.

Every immigrant has a different story to tell: how many doors they tried knocking to get an interview; the thousand and one employers they had to send their resumes to; the many temp jobs they tried out just to get the needed work experience; how only a few lucky ones get employed in their profession and training; and how many unlucky ones are still waiting for their dream jobs while continuing to flip burgers and serve coffee and doughnuts. Those fortunate enough to find the jobs they want may have upgraded their education here, perhaps with an MBA, or as Philippine-educated lawyers, doctors or dentists, went back to school. Or perhaps, they just have better street smarts than the rest.

In Los Angeles, San Francisco and Manila, a few of my old friends from high school continue to debate the future of our country as our citizens ponder who to vote for president in the coming May election. Election or not (a holdover presidency is still a menacing possibility), almost everyone thinks politics stinks and our country is not going to change for the better any time now or even during this century. One wonders where Senator Francis Escudero is when the country needed him. Or how an intelligent, honest and humble attorney like Alex Lacson, who is running for senator, could perhaps be the best bet for this hoped-for dream.

While everybody seems to fault our rotten political system, someone from our high school group thought the system is too strong and that the real problem is fighting it. Although he liked Alex Lacson, he was afraid that Lacson could be gobbled up by the system and thus likewise fail. My classmate added in hindsight that to achieve real change, it must begin at the grassroots, that it is impossible for change to start from the top. Which brings us to the popular notion during the U.S. presidential election in 2008 that Obama represented change that will not come from the top-down. The idea was reinforced by the reality that institutional roadblocks such as partisan gridlock and self-interest of lobbies would not be affected by a mere change of leaders at the top. Obama symbolized a fraction of the leverage needed to make a fundamental change.

Howard Zinn, author of the famous book, A People’s History of the United States, published in 1980, also said, “If there’s going to be change, real change, it will have to work its way from the bottom up, from the people themselves. That’s how change happens.”

But after a year in office, Obama still has to overcome the heavy influence of powerful special interests. His critics now are saying that the insider disease (now that he has settled in Washington D.C.) has taken over him. Obama’s health care proposal, now a compromise, is at its deathbed gasping for breath. The Wall Street bailout has failed to jumpstart the economy and unemployment keeps on soaring. Unless Obama partners again with the American people as he did during his campaign, he is not going to be able to deal with the crisis of his presidency.

Central to all these seemingly unrelated thoughts is the idea that hope springs eternal in the human breast. As the German philosopher, Ernst Bloch, author of the massive work The Principle of Hope argued, hope is a basic condition of our existence to imagine a better future even in our darkest hours. Without that possibility, we cease to be – we cease to have any reason for being.

Our political system in the Philippines might be totally banged-up. But it does not mean hope is lost. There is always a new sense of possibility even in the abyss of hopelessness.

Even to a Filipino server at Tim Horton’s. It is not a shame that he or she could find work only at this place when once upon a time he or she was a corporate executive in the Philippines. This is just a short phase or a small step in a continuum of jobs, successes and even failures.

Each time, we are faced with this same question: What is the order of things at the moment?

Without an objective analysis of what needs to be improved, it would be hard to convince anyone that change is necessary. Yet, critique by itself rarely inspires people to act. We need something more to fight for as well as rile against. This is where hope comes in, as it becomes a necessary complement to criticise and seek ways to change the order of things.

It is not enough to understand how bad our political system is. We have been choosing our leaders through a democratic process called election since time immemorial, yet we often end up short. There must be something wrong in our electoral process, or perhaps the entire system, but change must start somewhere even if it takes forever.

Perhaps the answer lies in shifting from a presidential to a parliamentary form of government that will force political parties to radically alter themselves and take a stronger role. Accompanied by an electoral system based on proportional representation, changes in electoral behaviour may bring about bigger changes in political parties. I am not entirely in favour of a constitutional change, but at least this is an idea we can tinker with.

We must move towards an idea that can provide a better alternative vision and galvanize people to act towards its realization. As a Chinese proverb says, better to light a candle than to curse the darkness.

The same goes for our new immigrants in search of the right jobs that would help them realize their dream of a better life.

It is not enough for newcomers to equip themselves with the right set of practical skills to navigate the labour market. They must also join in solidarity with social justice groups in demanding the eradication of institutional and systemic barriers to equality. If they concentrate on the trappings instead of the core issues that keep immigrants from being hired and recognized for their knowledge and skills set, they will forever stay in the margins. They will forever nurse hurt egos and always get short-changed because they have failed to make their voices heard or put up a stand as a strong, determined, and united force.