Thursday, April 28, 2011

A nanny caught in the middle

The life of Filipino overseas workers is not exactly a bed of roses as many aspiring migrant workers from the Philippines would like to think. They have been called “new heroes” by then-Philippine President Gloria Macapagal-Arroyo because of the remittances they send home which help the government pay its foreign debt and keep the national economy afloat.

But the most unfortunate among these workers would come home in boxes, repatriated from the countries where they worked by the Philippine Consulate or the Philippine Overseas Labour Office, which is more popularly known to overseas Filipino workers as POLO. Others would end up in foreign jails on cooked-up charges by their employers. Many would become victims of abuses and exploitation because the labour or employment laws of their host countries do not cover them for protection from abusive working conditions.

Nanny abuse, for example, became front page news in 2009 when three Filipino nannies accused their employer, a Member of Parliament (MP Ruby Dhalla) from the riding of Brampton-Springdale in Ontario, for overworking and exploiting them. Their stories of abuse were featured in a series of articles in The Toronto Star on the exploitation of foreign workers, prompting the Ontario provincial parliament to consider legislation that would protect nannies from unscrupulous employment agencies and abusive employers.

One of these three nannies, Richelyn Tongson, would stick with her allegations that she was exploited and abused by filing a claim in court against the MP and her family for unpaid overtime wages. The other two, who were equally vocal in their accusations, would content themselves in supporting a Filipino-led coalition to campaign against the re-election of the aforementioned MP.

Tongson versus the Dhallas

This was a high-profile case by all means. Ms. Tongson, the abused nanny was represented pro bono until the settlement negotiations by Charles Sinclair of Sack Goldblatt Mitchell LLP, one of Canada's leading labour law, civil litigation and criminal law firms. On the other side of the fence representing the embattled MP, her brother Neil Dhalla and their mother Tavinder Dhalla, is Howard Levitt, a leading authority on employment law and member of Lang Michener Labour and Employment Law Group, another prominent Canadian business law firm.

At stake in the case is not just the monetary claim which was a very miniscule amount by the standards of the prominent law firms representing their clients. It was, in fact, a small claims court matter where claimants and defendants are normally unrepresented by lawyers, not to mention by powerhouse law firms. In Quebec, for example, litigants in small claims court are not allowed to be represented by lawyers. But this is not an ordinary small claims court dispute. A much bigger issue is at stake here: whether MP Dhalla and her family abused her nanny.

By May 20, 2010, Ms. Tongson’s claim was scheduled for a mandatory settlement conference. At this stage, a referee or a judge of the Small Claims Court would meet with the litigants and their lawyers to canvass the possibility of a settlement. It makes sense, for most civil cases usually do not end up in trial and are settled amicably by the parties. For the Dhallas, it gives them every motivation to settle now and put the matter to rest instead of it haunting the Dhalla campaign for re-election.

What happened during the settlement hearing and afterwards would make quite an interesting script for a sequel of TV’s Law and Order.

Attempts toward settlement

Based on a sworn affidavit made by Charles Sinclair, Ms. Tongson’s original lawyer, the settlement hearing proceeded without Ms. Tongson who could not attend because her employer would not give her leave for that day. However, Ms. Tongson made herself available by telephone in case she needed to answer some questions from the settlement judge or any of the parties.

Lest we forget, the POLO in Toronto requested to attend the hearing as an observer. In the words of the Philippine Labour Attaché, Frank Luna, in his email to Mr. Sinclair: “Manila is interested in the outcome of the case, which affects our national. We will not participate in the legal discussion.”

Of course, the POLO also has a stake in this case, in making sure the interests of Ms. Tongson, a Filipino overseas worker, is heard in court. Every Labour Attaché has the task of assisting Filipino migrant workers on all problems arising out of employee-employer relationships and ensuring that labour and social welfare laws of the host country are fairly applied to Filipino migrant workers, although in the past, Mr. Luna has been criticized for being insensitive to the plight of Filipino nannies in Toronto.

Mr. Luna showed up that day but was not allowed in the hearing room because he was not Ms. Tongson’s counsel. He waited outside the room for the duration of the hearing.

During the settlement hearing, the pre-trial judge put Ms. Tongson on the speaker phone and asked a number of questions. Neither the defendants nor their lawyer asked her any question. Thereafter, the pre-trial judge made a settlement proposal which Mr. Levitt, counsel for the Dhallas, and Mr. Sinclair discussed between them in view of arriving at a settlement.

After some discussions, both lawyers arrived at a settlement. The defendants would pay Ms. Tongson $5,000 and the latter would execute a mutual release that included a confidentiality clause and dismissal of the claim against the Dhallas.

Mr. Sinclair called Ms. Tongson to explain to her the settlement proposal. He believed Ms. Tongson was pleased with the proposal and he was instructed to accept the settlement on her behalf. Mr. Luna was present all the time when Mr. Sinclair was talking to Ms. Tongson on the telephone. Mr. Sinclair asked Mr. Luna to speak to Ms. Tongson in Tagalog to ensure that she understood the terms of the settlement. After talking to Ms. Tongson, Mr. Luna told Mr. Sinclair that she understood and she was in agreement with the proposed settlement. Well, Mr. Sinclair did not really know what Mr. Luna actually said to Ms. Tongson at that time. It was only later that he came to know what happened when the proposed settlement did not push through after Mr. Sinclair made several attempts to negotiate with the defendants’ lawyer to rewrite the final draft of the settlement agreement. He could not get hold of Ms. Tongson to come to his office until he realized that she had refused to see him to finalize and sign the agreement. It was at this point that Mr. Sinclair sensed something was wrong, either Ms. Tongson was getting legal advice from someone other than him or someone other than Ms. Tongson was emailing him using her email account. Unable to speak with his client, he decided to withdraw his retainer and terminate his legal services to Ms. Tongson.

Sometime in November 2010, Mr. Sinclair received an email from Pura Velasco, a community activist who had referred Ms. Tongson to his firm at the outset. Ms. Velasco’s email confirmed his suspicions that someone was advising Ms. Tongson and writing the emails to him. According to Ms. Velasco’s email attached to Mr. Sinclair’s affidavit, it was Frank Luna and Magdalena Gordo, the other nanny who earlier accused the Dhallas of abuse, who had opened the email account for Ms. Tongson. Ms. Velasco said Ms. Tongson has no access to a computer and doesn`t even know how to operate one.

Why would Frank Luna and Magdalena Gordo even make up this scheme, and pretend they were sending emails from Ms. Tongson? Did Mr. Luna overstep the boundaries of his task as Labour Attaché in protecting Ms. Tongson’s interest that he wanted to know everything that was going on between her and Mr. Sinclair? Was Ms. Gordo’s involvement motivated by a group’s campaign to unseat MP Ruby Dhalla from her riding?

Settlement negotiations broke down

What could be the main reason for the breakdown of the settlement negotiations between Ms. Tongson and the Dhallas? The new lawyer for Ms. Tongson, Raffy Fabregas or his successor since his transfer to another firm, made a motion to quash the settlement because of the inclusion of a gag order that would prohibit Ms. Tongson from discussing the abuses she suffered as a nanny for the Dhalla family.

Was it Ms. Tongson’s original idea to preserve her right to speak against the Dhallas assuming that she signed the proposed settlement? Or was this a mere ruse concocted by Frank Luna and others in order to continue the campaign against Ms. Dhalla so she would not get re-elected in the May 2nd federal election?

On February 9, 2011, Mr. Sinclair received a telephone call from Ms. Tongson, the first time they spoke after the termination of their retainer. According to the affidavit of Mr. Sinclair, Ms. Tongson was profusely apologetic, telling him that she was not the one who had written the emails to him.

Ms. Tongson is now represented by a lawyer from Mamman Frankel Sandaluk and there is no sign of a possible settlement before the May 2nd federal elections. Should Ms. Dhalla lose her bid for re-election, one could certainly expect her to proceed with the defamation suit against Ms. Tongson, which has already been issued by the court but has not been served yet.

Mr. Frank Luna’s term as Philippine Labour Attaché continues to be beset by one controversy after another: the lingering complaint against him as being insensitive to Filipino nannies, his run-in with Filipino journalists in the community whom he called “morons,” and now this suspicion that he might have been overzealous in his job by interfering with the work of a lawyer on the record.

Meantime, Ms. Tongson’s redress for damages she suffered from the Dhalla family remains in a tight spot. The amount of settlement originally reached by the parties would further be diminished by legal fees she must pay to her new lawyer, who may not be acting pro bono like Mr. Sinclair. When all this is over, Ms. Tongson becomes a willing victim of competing interests between her compatriots – caregivers pitted against caregivers in the Filipino community, obviously the handiwork of those so-called leaders benefiting from largesse parlayed by Canada Immigration, and the ineptitude of a Labour Attaché to protect her rights as an overseas worker.

Thursday, April 14, 2011

Nannies’ new conundrum

They thought the program offers them a pathway to permanent residence after completing their work contract. But the new rules for temporary foreign workers which took effect last April 1, 2011 say otherwise. It’s not with certainty. The devil is in the details, as the idiom goes.

Effective April 1, Canada will now subject temporary foreign workers to a four-year cumulative duration limit. This means that temporary foreign workers in Canada, including live-in caregivers, may only work for a maximum of four years. After reaching this limit, temporary foreign workers must go back to their home countries, wait for another four years to lapse before re-entering Canada again as temporary workers.

Orwellian doublespeak

Canada's Minister for Citizenship, Immigration and Multiculturalism Jason Kenney.
Photo courtesy of dmix06.
This must be a big blow to Filipino live-in caregivers and their advocates who have embraced Canada’s Citizenship, Immigration and Multiculturalism Minister Jason Kenney as their hero. Mr. Kenney, who has been riding high on his status as a folk hero to many Filipino women workers in Canada, is guilty of Orwellian doublespeak. He has promised before that nannies will not be covered by the new regulations, but the details clearly say that that would be subject to certain preconditions. Just like the time when Mr. Kenney said there would be no more need for caregivers to undergo a second medical examination when applying for permanent residence, yet the rules still state that medical officers overseas retain the right to examine for excessive demand. This includes, for example, those who may have illnesses or other inadmissibility issues which may impact on the ability of the government to provide health and social services.

Of course, there are exceptions to the new rules but not enough to guarantee that live-caregivers will not be subjected to the Conservative government’s policy of treating immigrants as mere economic units that they can dispose at will. This government seems bent on simply exploiting temporary foreign workers every four years based on supply and demand instead of opening up opportunities for skilled workers to migrate permanently to Canada which the country really needs to replenish its greying population.

Migrant workers in Picton, Ontario. Photo courtesy of mariza.gaspar.
In the words of Minister Kenney: “We saw a need for clear regulations to better protect workers from poor treatment and to ensure that the Temporary Foreign Worker Program continued to address short-term labour and skills shortages.”

Seasonal agricultural workers who come to Canada to work during harvest time are exempt from the four-year limit. Live-in caregivers who have applied for permanent residence after completing their contract are not covered by the rules if they have received an approval in principle letter. And so with other temporary foreign workers such as those in managerial or professional occupations, those employed under an international agreement, and those exempt from the Labour Market Opinion (LMO) process.

How will the new rules negatively affect Filipino caregivers in Canada?

Under the new rules, visa officers will issue initial work permits to live-in caregivers that will be valid for four years plus three months. A live-in caregiver must complete the employment requirement in her contract within four years in Canada, while the additional three months allow for a transition period to apply for permanent residence.

Most live-in caregivers can easily complete their contract of employment in less than three years, allowing them enough time to apply for permanent residence and continue working as caregivers while waiting for the approval of their applications for permanent residence (PR). But herein lies the problem: when is that approval-in- principle letter going to be in the mail?

No reprieve for varying situations

Not all caregivers are in similar situations and would expect smooth processing of their PR applications. Some would have problems with family members such as their spouses or children who are supposed to be examined before a live-in caregiver’s PR application is approved. A live-in caregiver’s spouse in the Philippines, for example, could be stubbornly uncooperative and would not bring him and the children to a medical examination. Or he would not simply fill out the required documentation. He would rather simply receive money remittances every end of the month from his wife who works like a slave in Canada to support the family. There are hundreds of husbands who prefer this type of arrangement so they could carry on with their new-found lifestyle of freedom and the luxury that Canadian dollars bring. An obstinate and uncooperative husband could delay the PR application process for an inordinate time, while the hapless nanny continues to wait for the approval in principle letter of her application.

Or, the marriage between the nanny and her husband has broken down due to the strains of a difficult and long separation or perhaps, either one of them is now in a relationship with another person. The wife then decides to apply for divorce which she needs to show to Canada Immigration as proof of the marriage breakdown. This again will delay the processing of the PR application. Let’s also mention that if there are minor children involved, the longer the process will take especially if the husband refuses to allow the children to travel to Canada in order to join their mother.

As in some cases, one of the children would have medical inadmissibility issues such as a child having Down syndrome or has a heart problem which the visa officer deems as imposing a heavy burden on Canada’s health and social services. So, the PR application will be denied. Under the rules, all family members of the live-in caregiver, whether accompanying the principal applicant or not, are required to be examined. Live-in caregivers cannot become permanent residents if any of their eligible family members are inadmissible.

I have encountered a number of cases where the PR applications of live-in caregivers have been unnecessarily delayed. Some of them have been here in Canada as temporary workers for over five years because their PR applications were either delayed due to bureaucratic red tape or disallowed because of medical inadmissibility issues. The new rules will not protect them as Mr. Kenney has promised. Many of these caregivers have already received removal orders.

It is not important for immigration officers to know whether live-in caregivers will seek permanent residence after completing their work contract. The question is whether an immigration officer is satisfied that the person would not stay in Canada illegally. This is what their Operations Manual directs them to find out. Advocates of Filipino caregivers in Canada should wake up and face this grim reality, and stop cuddling Mr. Kenney and the Conservative Party.

The present Conservative government under Stephen Harper has not done much for the benefit of immigrants. Mr. Harper tried to overhaul Canada’s system of accepting refugees and skilled workers. He cut the right of landing fee to half of the old fee of $975, and many ethnic minorities shifted their support to the Conservative Party. The Conservative government has imposed stricter conditions for refugees to enter Canada and cut funding for group sponsorships for refugees from countries ravaged by civil strife. Temporary foreign workers will now have a four-year limit on the length of time they may work in Canada.

What’s next?

Filipino caregivers hold rally in Toronto.
This year, there are over 150,000 people waiting for 11,200 visas. That would take about 14 years to process. Sponsorship of parents would be next if the Conservative Party wins a majority of Parliament’s seats this coming May 2nd federal election. They have already made known that they prefer to bring in younger family members who can work and therefore pay taxes, rather than older parents who would only sap the country’s pension or social assistance programs.

Canadians, especially the blocks of new Canadian voters who may likely make or break a government, need to hear solutions to our immigration dilemma. We’re tired of hearing the same pledges every time there is an election from both the Liberals and Conservatives. There are gaping holes in their credibility fences. We will need a giant grain of salt if we would only listen to their promises. 

Tuesday, April 12, 2011

Inequalities rising

In Chapter 1o of Animal Farm, George Orwell wrote that “all animals are equal, but some animals are more equal than others.” Orwell, of course, was satirizing society as he saw it during his time. His perception has not changed much, the harsh truth remains: some people are really more equal than others.

Animal Farm by George Orwell. Courtesy of  Ben Templesmith.
Social polarization has never been more acute than today. There is truism in the popular observation that the rich are getting richer and the poor poorer.

Nothing could be more persuasive than the trend over the last three decades showing a massive transfer of income and wealth from the middle class and lower class to the rich. Contrary to claims of advocates of trickle-down economics, the trickling is actually toward the other direction: up instead of down. And the bad news is that more and more evidence indicates that this resultant inequality has a wide range of negative effects on economic and social issues, as well as it undermines the foundation of our democracy.

In the United States, for example, the wealthy and large corporations have not been content with the Bush tax cuts. With the Republicans taking control of Congress, President Barack Obama was forced to cave in and agree to roll-over the Bush tax cuts through the end of 2012. This only exacerbates inequalities because the only way to pay for the tax cuts is by cutting essential programs that benefit the poor, the sick, the elderly, women, and those at risk.

Increasing Inequality Chart. Courtesy of the New York Times.
Tax cuts to the wealthy and big business corporations are not uniquely American. Canada, under the Conservative government led by Stephen Harper, is replicating exactly the American experience and the rich are using their power to get their governments change the rules by redirecting economic benefits to themselves – thus resulting in greater social inequalities. And this is also the general rule in countries where the state and the economy are in the hands of the elite who determine public policies and decision-making.

Recent studies show that less equal societies almost always have more violence, more disease, more mental health problems, higher infant mortality rates, reduced life expectancies, as well as less social cohesion. The effects are more pronounced at the lower levels, but they are evident throughout society.

Philippine society is a case in point of the impact of inequalities on its social fabric. The Maguindanao massacre of November 2009, otherwise known as the Ampatuan massacre, is a clear example of the culture of impunity that political power in the hands of a few, or a family dynasty, breeds. The Ampatuan clan has used violence to expand their control and eliminate threats to the family’s rule, and former President Gloria Macapagal-Arroyo tolerated their abuses. They have been linked to at least 56 other killings over the last 20 years, apart from the November 2009 massacre. After more than a year, the trial of those accused of the Ampatuan carnage moves at a snail’s pace, prompting one Philippine senator to remark that with nearly 200 defendants and 300 witnesses, the trial could take 200 years.

Some are truly more equal than others. The Marcos and Singson political dynasties of Ilocos are just two glaring examples of Filipino families that have used their political and economic clout to keep themselves within the circles of power in the Philippines.
 Maguindanao Massacre, November 2009. Photo courtesy of
After the death of Ferdinand Marcos who ruled the Philippines with an iron fist for almost 20 years while plundering the nation’s coffers, his wife Imelda and children Imee and Ferdinand Jr. are back in positions of power to return another Marcos to the presidency. There is even an indecent proposal in the Philippine Congress to allow the remains of the deposed dictator to be buried in Libingan ng mga Bayani (Cemetery of Heroes), a grave insult to all Filipinos who gave up their lives for their country. To deem Marcos as a hero seems a radical idea for all loyalists and remnants of his regime who have survived the EDSA Revolution. More than twenty years after the downfall of Ferdinand Marcos, no member of his family has ever been accused of any crime related to the family’s plunder of the nation’s economy.

The Singsons of Ilocos Sur who have survived violent internecine feuds with the Crisologos, their blood relatives, continue to hold their grip of political power in the province under the leadership of the family’s strongman, Luis Crisologo Singson, more popularly known as Chavit Singson. Chavit is the current governor of Ilocos Sur and at one time also served as a member of the House of Representatives. His son, Ronald Singson, used to hold a seat in Congress but later resigned after being convicted by the Hong Kong High Court of drug trafficking. Note that the young Singson was sentenced to a year and a half in jail for trafficking cocaine last February 2011. A month after, three Filipinos, ordinary and poor overseas workers, were executed by lethal injection by the Chinese government on similar charges. There were also many allegations of Chavit’s brushes with the law, including the jueteng scandal that brought down Joseph “Erap” Estrada from the presidency, but he was never brought to justice. Indeed, some are more equal than others.

Former Congressman Ronald Singson and girlfriend Lovi Poe.
 Photo courtesy of kathy_o885.
Plenty of instances abound where children or members of political families in the Philippines have been involved in crimes, business or government scandals and irregularities, but they have all been served well by their connections and social status. If ever convicted, presidential pardon is easy to get, as in the case of Joseph Estrada who was impeached and later convicted of economic plunder and corruption while holding the highest office in the land. So, if you are a poor Filipino without political connections, you could be detained as a political prisoner if you insist on fighting the government or you could languish in jail for a very long time. Or sometimes, you can just disappear or get extra-judicially killed.

Even in more affluent and advanced countries such as Canada, inequalities are not unheard of and have a debilitating effect on the lives of those at the bottom of the ladder. There is little upward mobility today in either Canada or the United States. Thus, if you want your children a chance to actually live the American dream, someone suggested moving to Sweden instead.

Democracy has never been more threatened by inequality than at present. There is no limit to campaign contributions by large U.S. corporations to political candidates friendly to their interests, and the U.S. Supreme Court says that is free speech protected under the First Amendment. In a less equal society, to limit campaign contributions and expenditures so that the wealthy don’t drown out the voices of those who are less well off is not easy. Former Canadian Prime Minister Jean Chretien tried to tighten campaign contributions but not enough to solve the problem.

Photo courtesy of RepublicanDirtyTricks.
The clout of the “haves or the haves-more,” as George W. Bush would call them, is clearly evident in the shaping of public policy decisions. It’s not the teachers, electricians or transit workers who can effectively influence political leaders. It’s the wealthy that can sway which way government will decide. The wealthy can threaten to leave the country if taxes are not lowered for them. Conrad Black, then at the top of his game as a media baron, promised to leave the province of Ontario if the New Democratic Party was elected and he did.

There is a torrent of change happening in America today. Democratic institutions are being challenged by the far right, which the wealthy supports and reinforces. Public service employees in the state of Wisconsin have been stripped of their right to form a union. The Ontario parliament recently declared the Toronto Transit Commission (TTC) as an essential service, effectively depriving the transit workers their right to strike.

According to recent studies, Canada is no different from other advanced capitalist economies, where wealth has been continually redistributed from the working people to the rich over the past two decades. Consequently, increasing levels of homelessness, poverty and despair are being witnessed across the country. Linda McQuaig wrote in the Toronto Star “that Canada has become a highly unequal society.”

The concentration of economic power in the hands of the wealthy constricts our democratic rights, and the inequalities it creates are rising and becoming more insurmountable. U.S. Supreme Court Justice Louis Brandeis aptly put it: “We can have democracy…or we can have great wealth concentrated in the hands of the few. We cannot have both."


Tuesday, April 5, 2011

China Three execution: Hollow and purposeless

According to Amnesty International, China has executed thousands of people in 2010, more than all the executions in other countries combined. So it was not surprising that the Chinese government, without hesitation and ignoring the Philippine government’s appeal for clemency, executed three Filipinos convicted of drug trafficking last March 30, 2011.

Execution depicted in an 1879 Chinese engraving. Photo courtesy of califboy101.
The three Filipinos, otherwise known as the China Three, were Sally Villanueva, Ramon Credo and Elizabeth Batain. They were convicted separately in 2008 for carrying more than 4,000 grams (or about 9 pounds) of heroin each. Their execution was originally scheduled in February but was moved to March after last-ditch efforts by the Philippine government to plead for their lives. The postponement also came at the cost of the Philippines not attending the Nobel Peace Prize ceremony in Oslo last December for the Chinese dissident Liu Xiaobo, obviously to avoid offending Beijing, and acceding to China’s request for the Philippines to deport 14 wanted Taiwanese nationals to the mainland. But that did not appease Beijing, which the Philippine government apparently miscalculated.

Sally Villanueva, one of the three Filipinos executed in China. Photo courtesy of
the Ordinario Family/
The execution was met with mixed reaction: grief and condemnation of the brutality of the punishment, and blame on the part of the Aquino government for missteps in negotiating with the Chinese government and the inability of the Philippine government as a whole to protect the lives of its overseas workers. One columnist of a daily newspaper in Manila even wrote that showing so much grief for these criminals was unnecessary as they were also condemned by the rest of the world. Mocking the calls by some Catholic bishops for prayers on behalf of the three Filipinos, he said it would be foolish to listen to such prayers.

Mirasol Ordinario-del Finado, Villanueva's sister. Photo courtesy of
Janess Ann J. Ellao/
But Philippine President Benigno Aquino III was more sympathetic saying that the three Filipinos were “victims of a society that could not provide them enough employment in their home country.” Although that made him critical of his own administration, Aquino, however, said this was a problem he was also trying to confront.

Let us set aside our collective grief for the moment and think more critically of the death penalty meted out by the Chinese government and its rationale.

Those three Filipinos were caught by Chinese authorities carrying heroin inside China. Obviously, they were smuggling drugs as mules or couriers, not as drug traffickers. They did not intend to sell those drugs but merely transport and give them to their designated recipients who would actually sell the merchandise. One of the Filipinos even told the Chinese authorities that she was duped into unknowingly carrying the heroin in her luggage.

But the Chinese court convicted all three of them with drug trafficking, an offence punishable by death, a form of generalized punishment that fits all components of the crime no matter what the circumstances are, or the quantity or quality of the crime. The punishment does not differentiate if one is carrying 10 kilos or a mere pound of heroin. Worse, mere possession or the act of carrying the banned substance is considered drug trafficking.

In Canada, as well as in the United States and other countries with more liberal criminal justice systems, this kind of offence is punishable by imprisonment, 10 years maximum. Possession of heroin or cocaine for the purpose of trafficking, of course, is entirely different and usually calls for life imprisonment. But it would not merit the spectacle of the scaffold, as Michel Foucault would describe the death penalty during the olden days in France up to the Revolution. The penalty for possession of cocaine or heroin in Canada depends on its quantity and the regularity of the offence, whether it is the first or subsequent offence.

By any measure, the Chinese death penalty does not fit the crime. The level of punishment is not proportionate to the severity of the offending behaviour. What does this make of Bernard Madoff and his vast Ponzi scheme that robbed thousands of investors of their life savings? Madoff was sentenced to 150 years in prison for his crimes, a slap on the wrist compared to what the three Filipinos got for carrying 9 pounds of heroin. Country singer Willie Nelson was luckier, for merely paying with a song before the courtroom for the misdemeanour of possession of marijuana.

Why then is the Chinese penalty so draconian?

Illegal drug trade is the most lucrative in the global black market today. Drug trafficking is widely regarded as the most serious of drug offences. Sentencing for this crime usually depends on the type of drug (or classification in the country where it is being trafficked) and where the drugs are sold and how they are distributed. For example, if sold to minors like school children, the penalties may be harsher than in other circumstances.

China and Singapore are two countries usually cited for their severe punishment for drug smuggling, which is the death penalty. The execution by the Chinese government of three Filipinos for drug trafficking on March 30, 2011, is the latest of executions in China, although there could be others because China is known for withholding such type of information to the public. In Malaysia, two people were sentenced in 2010 to death for trafficking 1 kilogram of cannabis into the country.

As in Singapore, the death penalty in China is mandatory against drug runners even of low rank, such as the China Three. Judges have little discretion in evaluating the gravity or degree of seriousness of the crime. To China and Singapore, this strict penal code obviously makes for an orderly society, or so they hope. However they look at it, nonetheless, the two countries’ way of dealing with crime is more of a punitive criminal justice system rather than retributive; the punishment usually is inappropriate or not proportionate to the crime. It reflects the stone-age mentality that people would be deterred and discouraged to commit crimes if they are punished harshly for their offences.

In 1994, a Singapore court sentenced an American teenager for vandalism with six strokes by caning. Only the intervention of then U.S. President Bill Clinton prompted the Singapore government to reduce the caning sentence to 4 lashes, which the Americans considered an excessive penalty for the crime.

But does the death penalty effectively deter drug trafficking crimes? Despite the death penalty, China and Singapore are only relatively drug-free. Singapore continues to be implicated in overseas drug operations. Statistics on the effectiveness of the death penalty do not seem to matter to the Chinese government; it is highly doubtful if they even track any meaningful correlation between their draconian measures and their supposed objectives.

Opium storage ship off the coast of Shanghai in Old China.
Photo courtesy of Okinawa Soba.
China perhaps still suffers from the deleterious effects of opium-smoking which was introduced by the British from the cotton-growing regions of India during the 19th century. Illegal trade in opium resulted in two million Chinese being addicted to the drug in 1842. By 1881, the Chinese population of drug addicts had gone up to 120 million. It was a dreadful legacy of the opium trade that weakened the Chinese state, which led to China’s defeat in the two Opium Wars with the British.

With a population of more than 1.3 billion, it would be extremely tough for the Chinese government to make its people behave without some sort of a strict penal handbook that highlights the death penalty as the optimum punishment for crimes. With its horrific experience from the illegal opium trade, China must resort to the ultimate punishment even for offences less serious than drug trafficking such as the crime actually committed by the China Three. Anyway you look at what law the China Three broke, it still makes no sense at all to execute them for merely carrying or possessing heroin.

China Three’s execution was a hollow and purposeless act by the state. If the Chinese government really wanted to deter others from committing the same crime in the future, they should have used the three Filipinos as their conduits in taking further investigations that could have led them to identifying the masterminds of the illegal drug trade. Snapping these Filipinos’ lives meant nothing, except to show to the world that the Chinese government is tough and willing to impose the death penalty even to traffickers or smugglers of low rank. But it doesn’t make any sense if the sentence is not a deterrent to future acts.

To the Philippine government, especially to President Noynoy Aquino, China Three’s execution should be more than a wake-up call.

A Chinese demonstrator. Photo courtesy of Amnesty International (Belgium).
Because of poverty and lack of job opportunities at home, Filipino women are becoming easy targets for drug traffickers. Not only are these women especially susceptible, there were reports that they have been specifically targeted by international drug syndicates to be used as drug mules. Filipino women have been lured to become drug mules as early as 2007 and there has been a dramatic increase in their numbers.

President Aquino and his administration must see to it that the execution of the China Three is not repeated, that no more Filipinos should be doomed to be executed by a foreign government just because they are poor and have no other practical choice to earn a living but to risk their lives as drug mules for syndicates that seem impervious to the strong arm of the law.

As a country as a whole, however, when one of us suffers a fate such as this, we cannot wash our hands off and say this problem does not affect us individually. Deep in our hearts we know a wrong has been done. That we did not do anything about it, even by a mere prayer as those throngs of women and men did to voice their sentiment for the China Three, make us condone the wrong that has been done.