Sunday, April 28, 2013

Abusing terrorism

Today’s concept of terrorism seems to be largely influenced by the identity of the perpetrators or the nature of the cause, rather than the nature of the act. Take for example the recent bombing at the Boston Marathon last April 15.
Bombs explode during the Boston Marathon, April 15, 2013. Photo by the New
Yorker. Click link to view Explosions at the Boston Marathon by the Boston

The suspects, the brothers Tsarnaev, are of Chechen descent and followers of Islam, but their Islamic or Chechen heritage alone is hardly proof of jihadist intent. No evidence has emerged to link Tamerlan Tsarnaev, the older brother, who travelled to Dagestan for six months, to militant groups in Russia’s Caucasus. In fact, the Caucasus Emirate, which both Russia and the US consider a terrorist organization, denied involvement in the Boston attack.
US Senator Lindsey Graham of South Carolina and three other Republican lawmakers wanted the surviving Boston bombing suspect, Dzhokhar Tsarnaev, be declared an enemy combatant, not a criminal, which would deprive the 19-year-old American citizen the fundamental rights that distinguish this country from authoritarian regimes.
Right after the photographs of the Boston suspects were revealed to the public, Boston Police Commissioner Ed Davis quickly prejudged the Muslim brothers and considered them “terrorists with a mission to kill.”
But whose enemy is Dzhokhar Tsarnaev?
Certainly, not the United States. Probably Russia. But why on earth did the Tsarnaev brothers choose to bomb the Boston marathon instead of the Bolshoi Theatre or the Moscow Metro, which is closer to home and symbolic of their dislike of Russia? Recall that in 2010, two women suicide bombers carried out an attack on the Moscow Metro. At least 40 people were killed, and over 100 injured.
Russian officials called the Moscow Metro bombing the deadliest in recent years. At the time of the attacks, an estimated 500,000 people were commuting through Moscow’s metro system. The Caucasus Emirate claimed responsibility for the Moscow Metro bombings, stating that attacks in Russia will continue unless Russia grants independence to Muslim states in the North Caucasus region.
The true motivation for the Tsarnaev brothers for bombing the Boston marathon with pressure-cooker bombs, if they were really the culprits beyond nagging suspicions of conspiracy or being framed up, would never be exactly known. One thing sure is their religion is going to be blamed for radicalizing them. That, “like all militant Muslims,” the Tsarnaev brothers are guilty of committing terrorism in order to create an atmosphere of fear and alarm. With no history of violence or prior criminal record (except for the older Tamerlan for domestic assault), both brothers will be forever linked to terrorism, simply because they are fervent Muslims from a volatile Muslim-dominated republic in the Caucasus where “violence, abductions, widows, orphans and rape” are ordinary.
Never mind that the younger Tsarnaev told FBI interrogators that they were self-radicalized, that they were driven to terrorism by the US invasion of Iraq and Afghanistan and its policy against Islamic jihadists overall. Rebellious words from a young kid who regularly “stoned” with his friends. This is too convenient a motive to believe.
One wonders why this “self-radicalizing” effect has not similarly aroused other militant Americans to engage in terrorism to send a political message that they too don’t approve of American military intervention in the wars against Muslim extremists. Is it the Muslim connection that is missing as a trigger to commit terrorism?
It makes more sense to listen to the Caucasus Emirate when it said that its mujahedin are not fighting with the US. Their website declares: “We are at war with Russia, which is not only responsible for the occupation of the Caucasus, but also for heinous crimes against Muslims.” The group suggested that Russia’s secret services would have had a greater interest in carrying out the attack in Boston.
Ethnicity has often been used today to justify the violent behaviour of terrorists. But there is no ethnicity that is inherently violent. Even if the brother Tsarnaevs have aligned themselves with Chechen resistance against Russia or with Islamic jihad in general, which has not been established, treating Chechen ethnicity and the brothers’ Islamic faith as the cause of the Boston violence is highly irresponsible.
Muslim immigrants in the United States are being treated as walking symbols of violent behaviour. As if terrorism can only be explained by linking acts of terror to Muslims who are presumed to have a mission of committing violence against America and its allies.
In an article in Harper’s Magazine in September 1986, “Terrorism: A cliché in search of a meaning,” Christopher Hitchens writes: “The word “terrorist” is not-like “communist” and “fascist”— being abused; it is itself an abuse. It disguises reality and impoverishes language and makes a banality out of the discussion of war and revolution and politics. It’s the perfect instrument for the cheapening of public opinion and for the intimidation of dissent.”
Hitchens goes on: “What is frightening and depressing is that a pseudoscientific propaganda word like “terrorism” has come to have such a hypnotic effect on public debate in the United States. A word which originated with the most benighted opponents of the French Revolution; a word featured constantly in the anti-partisan communiqués of the Third Reich; a word which is a commonplace in the handouts of the Red Army in Afghanistan and the South African army in Namibia; a word which was in everyday use during the decline of the British, French, Portuguese, and Belgian empires. Should we not be wary of a term with which rulers fool themselves and by which history is abolished and language debased? Don’t we fool and console ourselves enough as it is?”
Timothy McVeigh committed a terroristic act in the Oklahoma City bombing, but at least we knew exactly why he did it. The “Unabomber” Ted Kaczynski was an American terrorist who single-handedly waged a bombing campaign against modern technology that killed three people and injuring 23 others. We all knew why he did it.
When the trial is over, the Tsarnaev brothers will be found guilty for the Boston bombing. But for whatever rhyme or reason, meaning the real one, we simply will never know. All that matters is “it was for the cause of terrorism,” however vague or nebulous these words may mean.

Is there a conspiracy behind the Boston bombing? Click link to view video,
Because we have allowed ourselves to abuse the concept of terrorism in its modern usage. For it is enough that the perpetrators are believers of a perverted form of Islam and that they come from a terrorism-infested place where violence is a way of life. Many Americans have been led to believe that Islam is capable of nurturing terrorists and suicide-bombers and that committing terrorism among its adherents has an evangelizing charm.
The perverted idea of Islam being able to generate a “self-radicalizing” effect that could trigger domestic terrorism has gone too far. Muslim immigrants to the US, many of whom are peace-loving people, should have reason to worry that they could be deprived of their First Amendment right if their religion is seen as so powerful to convert them to embrace terrorism against their host country. Immigration of Muslims might even be shut down if this anti-Muslim hysteria is allowed to dominate the debate on current initiatives to reform immigration in the US.
In addition to the twisted American definition of terrorism, there is also the distorted basis for laying charges of terrorism, at least in the case of Dzhokhar Tsarnaev. The federal criminal complaint charges the young Chechen-American with “unlawfully using and conspiring to use a weapon of mass destruction ... against persons and property.” The WMD in question was, the document explains, “an improvised explosive device (IED).”
Now, isn’t this notion of WMD a ridiculous charge?
If pressure cookers retrofitted with explosives were to be considered WMD, then George W. Bush was right that Saddam Hussein had weapons of mass destruction after all. Furthermore, if an IED is a WMD, then Iraq actually ended up with more WMDs after the U.S. invasion than before. It does not fit any logical definition of WMDs.
Obviously, the federal statute could no longer distinguish “dangerous weapons from apocalyptic ones.” Under the statute, 18 USC §2332a, a weapon of mass destruction might be what it’s always been understood to be – a nuclear, biological, or chemical weapon. It can now include any bomb, grenade, mine, or any rocket with a propellant charge exceeding four ounces, or any missile with an explosive charge exceeding one-quarter ounce. Someone suggested that a cherry bomb, exploded on the Fourth of July, if deployed with sufficient malice, would be deemed a WMD.
The United Nations adopted the phrase “weapons of mass destruction” in 1947 to describe not only nuclear weapons, but also chemical and biological weapons that are capable of extinguishing human civilization. With new technologies being made available on the Internet, we should be thankful that no category of weapon has been invented to date that could match the destructive power of nuclear weapons.
In characterizing the Boston Marathon bombers as wielding WMDs, we probably miss the point as to what was truly frightening about that event.
Timothy Noah writes in Foreign Policy: “It isn’t only terrorist masterminds who can harm us with weapons of unimaginable power. It’s also ordinary people moved by inexplicable hatreds using the simplest of tools. Weapons of minor destruction, in the wrong hands, are perhaps even more terrifying, because they’re so much easier to acquire, and so much easier to set off.”
Whether the Boston bombing is really an act of terrorism or not has significant political implications and legal consequences as well. Terrorism could raise our levels of fear and even justify any government response.
But the current use of the word “terrorism” has been manipulated to suit what the state officially wants.
As Glenn Greenwald of the Guardian writes: “It’s hard not to suspect that the only thing distinguishing the Boston attack from Tucson, Aurora, Sandy Hook and Columbine (to say nothing of the US “shock and awe” attack on Baghdad and the mass killings in Fallujah) is that the accused Boston attackers are Muslim and the other perpetrators are not. As usual, what terrorism really means in American discourse – its operational meaning – is: violence by Muslims against Americans and their allies.”

Saturday, April 20, 2013

Home-grown terrorism

While the smoke hasn’t cleared yet, many Americans were quick to blame Muslim terrorists for the bombing of the Boston Marathon last April 15. Arab extremists were also the first among the usual suspects in the bombing of the Alfred P. Murrah Building in Oklahoma City on April 19, 1995, until an Oklahoma Highway Patrol trooper caught Timothy McVeigh, a local extremist and militia movement sympathizer and Gulf War veteran. 

Runner lies on the street as bombs exploded during the Boston Marathon
 on April 15, 2013.
It is almost reflexive to pin responsibility on Muslim jihadists for any act of terrorism, especially if it happens on American soil. Media commentators, including former FBI and CIA operatives, have pointed to the signature of a Muslim act of terror, possibly in revenge for the killing of Osama bin Laden. A twenty-year-old Saudi man watching the marathon and himself a victim of the bombing, his body torn by the force of the bomb, became a casualty of “racial profiling” as he was questioned for hours while in hospital being treated for his wounds. His apartment was searched by a phalanx of officers and agents with two K9 units. 

His name was tweeted out with the description as a “suspect.” Eventually, he was ruled out, for being in the wrong place at the wrong time. 

America has already called the Boston bombing an act of terror. Whether it is foreign or domestic terrorism, the FBI and police authorities are still combing through the evidence for definitive proof of culpability. 

The word “terrorism” is utterly meaningless, especially right after an attack or bombing has been perpetrated. But to many Americans, acts of terror can only be the handiwork of Muslim extremists. When the terroristic act happens on American soil, the more it is presumed in the minds of many that such is jihadist-inspired. 

Most Americans easily forget that they could also be equally guilty for acts of terror in many parts of the world today, particularly in the Middle East and Central Asia. When hundreds die from a US air force strike in Iraq or Afghanistan, including children and women, this is not condemned as an act of terror. Yet it has the same tragic consequence: death and injuries in even greater numbers, and the blanketing of fear among those targeted that life to them would never be normal again. 

Images of terroristic violence by Muslim extremists are hard to erase in the minds of most Americans. The attacks on September 11 have become so indelible that Americans expect and fear there would be more of this kind. To many Americans, Muslim jihadists are already culpable and responsible even if the act of terror has not been committed yet, and it is only a matter of time that they would commit again another 9/11 horrific act. 

The flipside of terrorism is it can be an event for celebration, just the way Americans rejoiced after Osama bin Laden had been summarily assassinated in Abbottabad, Pakistan, by US special forces. Or when the Taliban was routed in Afghanistan after they had been relentlessly shelled with American bombs. Or when the government of Saddam Hussein fell after the US invaded Iraq. These acts are vivid examples of terrorism, yet to the victors, this is terrorism of the noble and righteous kind. 

But the idea of relativity doesn’t apply to acts of terrorism. By the nature of it, terrorism can never be condoned. When people are killed or maimed, there is no such term as good or noble terrorism even for the victors of the war against terror. Terrorism is an evil that humankind should reject. The Boston bombing is an act of terrorism that we must all abhor and condemn, whether foreign-inspired or the handiwork of grassroots terrorism in America.

Photographs recently released to the public by the FBI of two suspects for the Boston bombing led to a manhunt, with one of the suspects getting killed during a shoot-out and the other one being able to escape but subsequently captured after a wild chase, inside a boat drydocked in a backyard in Watertown, a suburb of Boston. 

Identified originally from Chechnya, a breakaway southern peg of the Russian federation, the suspects—brothers, Tamarlan, 26, and Dzhokhar Tsarnaev, 19—reportedly spent some years in the Central Asian nation of Kyrgyzstan, another volatile Muslim-dominated Russian republic. They have been living for a decade now in the US where they came with their family as refugees after fleeing the war in Chechnya. Chechnya is a predominantly Muslim territory in southern Russia that sought independence after the collapse of the Soviet Union. For much of the two brothers’ generation, according to a Chechen expert, Chechnya has always been “a place of violence, abductions, widows, orphans and rape.” 

It has not been established whether the brothers had connections with Muslim jihadists or even to the civil strife in Chechnya. But Americans are quick in prejudging the brothers, as was the immediate reaction of Boston Police Commissioner Ed Davis who considered them “terrorists with a mission to kill.” This kind of irresponsible prejudgment is fuelled by an American double-standard that declares Muslim suspects guilty because of their Islamic persuasion, without any kind of investigation or court finding of criminal culpability. 

What could be the motive of the young suspect Dzhokhar in joining his older brother to bomb the Boston Marathon? Only eight when he came to the US, he practically grew up in America. “It is necessary to seek the roots of evil in America,” says Ramzan Kadyrov, Chechnya's pro-Russian president. The boys were raised in the United States, and therefore their beliefs were formed there and not in Chechnya, he said. 

Images of Boston bombing suspects, Chechen-American brothers Tamarlan
 and Dzhokhar Tsarnaev from an FBI photograph released to the public. Click
link , to view Social Media Profile of Boston Suspects

Dzhokhar Tsarnaev was a student at the University of Massachusetts, an all-star wrestler who won a scholarship in high school so he could pursue higher education. His father, who is back in Russia, told reporters Dzhokhar was a bright student and planning to enter medical school. We could only speculate, but young Dzhokhar and his older brother Tamarlan could both be right for the picking by a militant protest movement that’s looking for a more aggressively violent expression of their cause. 

Transforming from a peaceful protest movement into a violent and more radical demonstration of disagreement with the government or any of its instrumentalities is nothing new or even unheard of. During the 1960s, many antiwar activists in the US believed that peaceful protests alone were not enough to influence war policy. They became more militant using civil disobedience, strikes, public, disruption, guerilla theatre, and bombings. The same could be true with other American protest initiatives such as the militant Occupy Wall Street (OWS) movement which was reported in The Guardian in December 2012 as being monitored by the FBI and the Department of Homeland Security through its joint terrorism task force. 

In 1969, the Weathermen Underground, a faction of the Revolutionary Youth Movement and SDS (Students for a Democratic Society), embarked on a romantic, nihilistic orgy of violence. The Weathermen terrorized the nation with their bombings which set off a national bombing epidemic in the name of antiwar protest: the U.S. Treasury estimated 5000 bombings across the nation between 1967 and 1970. 

It would not be a farfetched scenario that the OWS movement or any similar militant group, just like the antiwar protest in the ’60s, could get fed up with their peaceful demonstration of grievances against social inequality, greed, corruption, and the perceived undue influence of corporations on government, particularly by the financial services sector. Who really knows if Dzhokhar Tsarnaev and his older brother could be simply waiting to be sucked into a militant protest organization, not necessarily pro-jihadist, where they could resuscitate their rebellious passion that was nurtured during Chechnya’s war of independence? 

If those two Chechen brothers turned out to be part of a clandestine extremist-violence-prone faction of a restless protest movement, if there is such a thing, despite labelling itself as a peaceful movement, the Boston bombing will be treated just as an isolated incident without any relevance to larger policy debates on the war against terror. Because they are home-grown terrorists and Caucasian, these suspects will enjoy the privilege of being insulated from collective blame and condemnation. 

On the other hand, it would be different if the Boston bombers were truly brown-skinned Muslims, or from the developing world and have a deep-seated hatred against Americans. Since they broke US laws particularly upon iconic institutions such as the Boston Marathon and the celebration of Patriot’s Day, we can expect the government to target their entire demographic group and launch a more systematic response. Short of sending the US army to invade or bomb their countries of origin (remember Afghanistan and Iraq), the Boston incident is also enough reason for conservatives in Congress to block immigration reform and other legislation that would benefit ethnic minorities. Granting asylum to refugees from war-torn countries would never be easier from now on. 

In other words, the fallout from the Boston bombing could be nasty if those found guilty were Muslim extremists or foreigners from another country. As David Sirota, an American writer said: “There is a double standard: White terrorists are dealt with as lone wolves, Islamists are existential threats.” 

In spring of 1997, I was on a trip with my wife in Denver, Colorado. She was attending a conference and I had the free time to discover the city’s museums and art shops. I learned that the trial of Timothy McVeigh for the infamous Oklahoma City bombing was being held in the city court close to our hotel. McVeigh’s trial was moved to Denver because of fear that he would not get a fair hearing in Oklahoma. 

For three days I patiently lined up every morning to attend McVeigh’s trial and ended up sitting outside the courtroom because there were so many people who wanted to observe the trial but could not be accommodated. Through the public address system, we followed all the proceedings as if we were inside the court witnessing the trial of McVeigh in person.
McVeigh wanted to seek revenge against the federal government’s handling of the Waco Siege, as well as for the Ruby Ridge incident in 1992. McVeigh hoped to inspire a revolt against what he considered to be a tyrannical federal government. He was eventually convicted of eleven federal offenses and sentenced to death. 

The Oklahoma City bombing happened on April 19, the same day that the Battles of Lexington and Concord in Massachusetts marked the beginning of the first military engagements of the American Revolutionary War. This is now celebrated in Massachusetts as Patriot’s Day and is held every third Monday in April, coinciding with the Boston Marathon, the world’s oldest annual marathon. 

The Boston bombers must have brushed up on their American history and the vast significance of the Boston Marathon and Patriot’s Day celebration. Plus the fact that they used relatively low-tech pressure-cooker explosives suggests that the bombing smelled more like domestic terrorism. One can’t help but wonder if the Boston bombing sounds like déjà vu the 1960s? 

Knowing the real motives of the Boston bombers would be a tall order, and it would be a challenge for government prosecutors to link the bombing to Muslim jihadist-inspired terrorism. Motive certainly helps solving attacks easier. Should another terroristic attack happen, it would make matters better if the perpetrators, whoever they are, were deprived of the attention they most crave, instead of round-the-clock coverage by CNN and the other major television channels who indulged us 24/7 with gruesome details and premature speculations. 

The lesson from the recent Boston bombing is clear: America’s definition of terrorism has changed. Terrorism can also be cultivated and nurtured at home, not just foreign-inspired, which makes the job of defending Americans in their homeland even a lot harder.

Monday, April 15, 2013

Debasing our democracy

No matter all the previous misgivings about her appointment, Philippine Supreme Court Chief Justice Ma. Lourdes Sereno has got it right, at least this time.
Chief Justice Sereno dissented with the majority decision of the high court that the party-list system need not represent marginalized and underrepresented sectors.
Recall that under the 1987 Philippine Constitution, the party-list system was envisaged by the framers to be a “tool for social justice” that will allow the poor to have a voice in Congress by allotting 20 percent of the seats for the marginalized and underrepresented.
The underlying purpose of the party-list system is to promote proportional representation in the election of representatives to the House of Representatives. This was clearly the mandate echoed in RA 7941 or the Party-List System Act that was enacted in 1995 as the enabling legislation for the implementation of the constitutional provision for a system of proportional representation.  

Of the total party-list members of Congress, all but five are millionaires, raising the
question whether they represent the marginalized and underrepresented sectors of the
country. Click to
view Party-List System, Dapat na nga bang Amyendahan?
So much of the debate about the party-list system has been focused on the requirement that parties or groups registered under the system must represent the marginalized and underrepresented. But in doing away with this requirement, the Supreme Court has in effect undermined the original intent of the Constitution and further entrenched the free-for-all political process (first-past-the-post system) that has hitherto favoured the elite and the wealthy.
The Supreme Court has effectively bastardized the party-list system since it is now open to all national, regional and sectoral parties and organizations, making it easier for millionaires and traditional politicians to use the party-list system to get elected. As a result, the underrepresented, because they cannot compete with the resources of the rich and powerful political parties, becomes even more marginalized than ever.
The party-list system is now virtually exposed as a mere lip service to the goal of representative democracy. Consider too, that with 20 percent of congressional seats reserved for party-list members, this system of representation is hardly proportional to the total votes cast, rendering it unimaginable for a disunited and disorganized number of party-list representatives to possibly override the dominant interests of the major political parties to pass legislation for the benefit of the marginalized.
Section 2 of the Party-List System Act declares: “The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.”
From the very beginning, the Act is a defective piece of legislation. While it recognizes the obligation of the state to guarantee free and broad democratic representation, it also identifies marginalized and underrepresented sectors as the principal beneficiary of the party-list system. This is a contradiction in terms: free and democratic representation, yet excluding the marginalized and underrepresented. In effect, it is an affirmative action program, which Chief Justice Sereno called a “tool for social justice” and consistent with the original intent of the framers of the Constitution.
Both the Constitution and the Party-List System Act have chosen to reflect reality, for without the means to elect their own representatives in Congress, the marginalized would be forever voiceless. The law recognizes the inequity in Philippine politics where it is impossible for the marginalized to participate in legislation because the system is monopolized and controlled by the oligarchic elite from which the major political parties draw their members. The drafters of the Constitution envisioned that the party-list system would be “a countervailing means for the weaker segments of our society to overcome the preponderant advantages of the more entrenched and well-established political parties.”
Justice Arturo Brion, who voted with the majority, is totally wrong when he disagreed with Chief Justice Sereno that it is not the principal function of the Supreme Court to create policy. Brion argued that the party-list system is grounded on electoral reform but that is a vacuous line of reasoning. Electoral reform for what? In deciding on cases, the Supreme Court is in effect mediating conflicting arguments that could determine and define policy that is expressed in the law.
Brion explained that the party-list system aimed to benefit “those who were marginalized in the legislative district elections because they could not be elected in the past for lack of the required votes and specific constituency in the winner-take-all legislative district contest…” With due respect, Justice Brion is totally out of touch with reality. The main reason why the marginalized could not get elected is not because they lack the required votes, but the fact that they could not simply compete with the wealthy and entrenched candidates of the major political parties. Their marginalization is not the result of a failure to garner the plurality of votes but their lack of resources and political capacity to compete against the big and traditional politicians.

In disagreeing with the court’s majority decision, Chief Justice Sereno says that it “may have further marginalized the already marginalized and underrepresented in this country. In the guise of political plurality, it allows national and regional parties or organizations to invade what should be constitutional and statutorily protected space. [It] fails to appreciate that the party-list system is not about mere political plurality, but plurality with a heart for the poor and disadvantaged.”
Sereno further argues that Section 1, Article XIII of the Philippine Constitution mandates Congress to give highest priority to enacting measures that “reduce social, economic and political equalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.” This strikes directly at the heart of Justice Brion’s superficial argument that the Supreme Court is not tasked to create policy when in fact the court’s majority decision, particularly with its parameters on which parties, sectors or groups can register under the party-list system, practically amended the party-list law which is a function that belongs to Congress.

Ang Galing ng Pinoy Party-List Representative Mikey Arroyo who claims to
represent security guards, tricycle drivers and the unemployed. According to
the Comelec, Arroyo authored only one bill on the welfare of security guards
and the measure has languished in Congress due to  either "sheer laziness"
or a "glaring lack of empathy" for the plight of the truly marginalized. 
Before the Supreme Court decision, 54 party-list groups were disqualified by the Commission on Elections (Comelec) for failing to meet the requirements that they represent marginalized sectors in the House of Representatives. Included in this group was the son of former president Gloria Macapagal-Arroyo, Juan Miguel “Mikey” Arroyo of the party-list Ang Galing Pinoy, which claims to represent security guards, tricycle drivers, farmers and small businessmen. In addition to Mikey Arroyo, other groups that can now participate in the upcoming polls include Kakusa, or Kapatiran ng mga Nakakulong na Walang Sala, which was organized by convicted child-rapist and former Zamboanga Representative Romeo Jalosjos, and the Bantay party-list group of fugitive human rights violator Jovito Palparan.
According to the Comelec, majority of the 54 previously disqualified party-lists might be allowed to run again in the May 13 midterm elections under the new guidelines issued by the Supreme Court. The Supreme Court has allowed these groups to participate in the elections as long as their principal advocacy pertains to the special interest and concern of their sectors. What special interests and concerns of security guards and tricycle drivers does Mikey Arroyo represent that they ought to be heard in Congress? This wasn’t the intent of the law in providing for the party-list system. It’s not the advocacy of special interests that matters but the absence or lack of resources of marginalized groups to compete against the powerful traditional politicians.
The current party-list system is already abused as it is by the landed elite and dominant political families. With the new Supreme Court ruling, the dominant political parties will be further entrenched in power because they could easily register their members under the party-list system and grab the 20 percent seats allocated for marginalized groups. As a result, with the election of their dummies under the party-list system, politics will continue to be dominated by the oligarchic elite. In the words of Vencer Crisostomo, chairman of the progressive Anakbayan party-list, the elite will further “trapofy” the House of Representatives. (“Trapo” is short in Filipino for traditional politicians)
It will take more than the current party-list system to democratize political representation in Congress. The Party-List System Act was mandated to promote proportional representation as envisaged in the Philippine Constitution, but dominant political families have ambushed the party-list system from progressive-minded groups, and now the Supreme Court has distorted the system by opening party-list registration to national parties and other sectors.
We might as well kiss goodbye to the party-list system and embark on a process of genuine political reform that will revolutionize the existing political system.
To make the system more representative and democratic, it makes sense to return to the unicameral national assembly under the 1896 Malolos Constitution where representatives in Congress shall be elected directly by their constituents to whom they can closely identify with their problems and interests.
The Senate has to be abolished for there is no need for senators to be elected at large based on popularity and wealth.
Campaign financing must be reformed and there should be limits imposed on how much candidates can spend to level the playing field.
Prominent political families must be reined in from dominating the political process.
Then apply the system of proportional representation at the district level, i.e., voters will choose among parties rather than among candidates and votes are awarded to parties in proportion to the votes they receive. In this way, proportional representation will open up the political process beyond one or two dominant political parties.
The biggest problem, however, is whether our elected representatives have the political will to go on board this odyssey toward genuine political reform.

Tuesday, April 9, 2013

Unequal justice – “too big to jail”

Crimes in this day and age are usually what ordinary people commit. But when the great and powerful commit them, they are often called business or statesmanship.
The United States today is considered the most aggressive country in imprisoning offenders. It puts more people in prison than any other nation on earth. American courts invariably sentence criminal offenders for longer periods of time, and for more trivial offences than any nation in the West.
The Rolling Stone magazine called HSBC the gangster bankers that was
"too big to jail."  Illustration by Victor Juhasz. Click link to view "After
Money Laundering $800 Million in Drug Money, How Did HSBC..."
But not everyone is subjected to this kind of penal harshness. It totally changes when the nation’s most powerful actors are caught breaking the law. With few exceptions, the justice system treats them not merely with leniency, but even grants them full-scale immunity from criminal punishment. The most egregious crimes of the last decade in America have been fully sheltered from prosecution when committed by those with the greatest political and economic power. We could point to examples such as the construction of a worldwide torture regime, spying on Americans’ communications without the warrants required by criminal law by government agencies and the telecom industry, an aggressive war launched on false pretenses, and massive, systemic financial fraud in the banking and credit industry that triggered the 2008 financial crisis.
Consider the recent full-scale immunity bestowed on HSBC, Europe’s largest bank headquartered in London. A US senate probe found that HSBC has lax controls that allowed money laundering for seven years. The bank’s lax controls allowed Mexican drug cartels to launder billions of dollars through its US operations, according to an investigation by the US senate. It also enabled HSBC bank affiliates to evade US government bans against financial transactions with Iran and other countries. The senate investigation also reported that the US division of HSBC provided money and banking services to some banks in Saudi Arabia and Bangladesh believed to have helped fund al-Qaeda and other terrorist groups.
What was the US response to HSBC’s transgressions?
The US Department of Justice under the Obama administration believed that big banks are “too big to jail” and decided to fine HSBC instead of criminally prosecuting its vast money laundering operation. Prosecution would upset markets, the White House feared. The US government’s excuse that HSBC is just too big to prosecute is the same lame argument used in refusing to break up the big American banks in the aftermath of the “too-big-to-fail” crisis of 2008.
It’s not just HSBC which was misbehaving badly. Before HSBC was investigated, the Barclays Bank scandal in the UK over manipulated interest rates has provoked international outrage over what many view as regulators’ failure to enforce financial regulation. Standard Chartered, another large British bank, also agreed to pay more than $660 million to settle charges for violating US sanctions on doing business in Iran, Burma, Libya and Sudan. The Royal Bank of Scotland is also reported to be facing investigations into possible violations of US sanctions on Iran. Money laundering by large international banks has reached epidemic proportions, and U.S. authorities are supposedly looking into Citigroup Inc. and JPMorgan Chase & Co.
Officials from the US Department of Justice flaunted the $1.9 billion fine HSBC would pay as the largest ever for such a case. However, the Guardian noted, “The sum represents about four weeks’ earnings given the HSBC’s pre-tax profits of $21.9bn last year.” There was no doubt that HSBC’s wrongdoing was serious and pervasive, but it is simply too big, too powerful, too important to prosecute, thus prompting the New York Times to declare in an editorial that “It is a dark day for the rule of law.”
Glenn Greenwald, writing for the Guardian, was outraged by the US tepid response to HSBC’s large-scale money laundering. He wrote: “The poor and racial minorities in particular are locked up at an astonishing rate, often for minor drug offenses. Yet HSBC gets off the hook. It is truly difficult to imagine corruption and lawlessness more extreme than having the government explicitly place the most powerful factions above the rule of law.”
Greenwald considers the HSBC case as a disgraceful illustration of a two-tiered justice system in America, the subject of his book, With Liberty and Justice for Some. He wrote that the principle where all stand equal before the blindness of Lady Justice is “now not only routinely violated, as was always true, but explicitly repudiated, right out in the open. It is commonplace to hear US elites unblinkingly insisting that those who become sufficiently important and influential are—and should be—immunized from the system of criminal punishment to which everyone else is subjected.”  
HSBC,  Europe's largest bank  was caught in  drug money laundering scandal.
Photo by Julius Kielaitis/The Shuttershock. Click link to view "Monkeys &
Cocaine: HSBC Money Laundering Case,"
Listen to what Greenwald would further say about the perverse premise that large and powerful financial institutions ought to be shielded from the long arm of the law: “Worse, we are constantly told that immunizing those with the greatest power is not for their good, but for our good, for our collective good: because it’s better for all of us if society is free of the disruptions that come from trying to punish the most powerful, if we’re free of the deprivations that we would collectively experience if we lose their extraordinary value and contributions by prosecuting them.”
This was the same reasoning for justifying immunity for state officials for torture of war prisoners and US telecom giants in illegally spying on Americans. We’re told that we need them to keep us safe and that we can’t disrupt them with prosecutions. That is, the government cannot prosecute Wall Street criminals for fraud because prosecuting them for financial crimes would disrupt our collective economic recovery.
If the justice system can be distorted to accommodate and protect the great and powerful, ordinary and powerless folks, on the other hand, who commit petty crimes are oftentimes prosecuted and imprisoned with the greatest aggression possible. Thus, when a Muslim is prosecuted for helping a terrorist group, even by accident, he would be going to prison for a long, long time. Powerless, obscure, low-level employees are in fact routinely sentenced to long prison terms for engaging in relatively petty money laundering schemes, unrelated to terrorism, and on a scale that is a tiny fraction of what HSBC and its senior officials are alleged to have done.
Take for instance the following two petty crimes compared to the misdemeanours of HSBC and other large banks.
Robert Docherty, a wild mushroom picker from Maple Ridge, British Columbia, found himself an unhappy victim of the mighty hands of the law when applied to common people like him. Canadian customs officers at the Toronto Pearson International Airport seized from Docherty cash amounting to $10,000 which he was carrying while boarding a flight bound for Costa Rica.
Under Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, Docherty was entitled to carry $10,000 and not a dollar more, out of the country without declaring it.
There was $9,880 in U.S. currency and another $335 Canadian in Docherty’s possession. Docherty explained he’d calculated the Canada-US exchange rate so the total amount to come in under the $10,000 limit. Unfortunately for Docherty, by the time he took his flight the US dollar had strengthened, making his package worth more than $10,000 Canadian.
Whether Docherty was telling the truth that the money he was carrying was destined for a real estate deal involving a seller who wanted cash, his experience shows what happens when ordinary people who live by the rules run afoul of the law.
Or consider the sad tale of Genet Shume, an Ottawa resident and single mother who came to Canada from Ethiopia. Last September 2012, Shume was about to travel to her home country with her two children. She was carrying a large amount of cash—$12,000—that she saved from working at a bank. Shume was unaware of the restrictions under Canada’s law on money laundering and terrorist financing which require those leaving the country with $10,000 or more in cash or foreign currency to report it to a border services officer.

Genet Shume, a single mother who came to Canada from Ethiopia, was headed to
 her home country with her two children to give family and friends money she had
 saved working at a bank. Photo by CBC News.
Before authorities seized the $12,000, they asked Shume whether she was involved in drugs or terrorism. When she answered no, they allowed Shume and her children to board the plane, but without the money. Shume was forced to beg for food when they arrived in Ethiopia.
The law is applied differently and much more leniently, however, for alleged perpetrators from the great and powerful, as in the case of the family of former Philippine strongman Ferdinand Marcos. Marcos had been accused of funnelling billions of dollars into Swiss and other foreign accounts abroad. Up until now, the Philippine government has not fully recovered money that was illegally pilfered from the country’s treasury. Meanwhile, the survivors of the dictator—his wife and children—are back in political power and have remained untouched by criminal prosecution.
Marcos wasn’t alone in this acknowledged custom of Philippine public officials of ransacking the government’s coffers. Former presidents Joseph Estrada and Gloria Macapagal-Arroyo and other major officials of the government and high-ranking officers of the military have remained unscathed despite accusations of plundering the country’s economy for personal gain.
It appears that the justice system and its courts, whether in advanced or less developed societies, are not where we can find the future’s best hopes for the idea of equal justice to prosper, and to apply it equally to everyone, no matter what their station in life is. When the great and powerful are shielded from criminal sanctions to which the rest of us are subject, it becomes only a matter of time when that tipping point is breached for the ordinary and powerless to take matters into their hands.

Tuesday, April 2, 2013

Work like any other, work like no other

In July 2005, the European Court of Human Rights in Siliadin v. France ruled that France violated Article 4 of the European Convention on Human Rights that prohibits slavery, servitude, forced and compulsory labour. This groundbreaking case raised worldwide awareness about the plight of domestic workers and gave impetus for change in countries such as the United Kingdom, which adopted new legislation criminalizing modern slavery.
Putting domestic workers on the level of modern slaves has inspired the popular view that although domestic work is “work like any other,” it should also be treated as “work like no other.”
Foreign domestic workers assail the decision of the Hong Kong Court of Final
Appeal last March 25, 2013 dismissing the appeal of two Filipino domestics to
declare unconstitutional HK's refusal to grant them permanent resident status.
Photo courtesy of Kin Cheung/Associated Press.
Yet, the Hong Kong Court of Final Appeal seems oblivious and insensitive to the importance of recognizing domestic work as work like no other. In its recent decision last March 25, 2013, the Hong Kong court ignored universal recognition of the rights of migrant workers, particularly foreign domestic workers, as enshrined in various United Nations conventions. I am referring to the court’s ruling that foreign domestic helpers are not allowed to settle permanently in Hong Kong even if they have been resident for seven years, which is the period that would ordinarily qualify foreigners to become permanent residents of Hong Kong under its Basic Law.
Paragraph 4, Article 24, of Hong Kong’s Basic Law states that permanent residents of the Hong Kong Special Administrative Region shall include “persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.” Two Filipino domestic workers sought permanent residency by arguing that banning them from becoming permanent residents is unconstitutional under Article 24 but Hong Kong’s high court ruled against them.
According to the Hong Kong court, the true definition of “ordinarily residing” for the purposes of Article 24 of its Basic Law does not apply to over 286,000 foreign domestic workers, largely from the Philippines and Indonesia. In other words, the court’s restrictive definition means that these workers are not entitled to residency on a par with other foreigners.
Foreign domestic workers in Hong Kong typically work in private homes, performing various household tasks, such as cleaning, cooking, laundry, gardening and caring for children or elderly people. These are workers similar to the live-in caregivers in Canada, and most of the time, this type of work is done by women. Many Hong Kong families and expatriates consider domestic workers as their servants who are essential in looking after their households so they can freely pursue their employment or businesses. As maids or servants, these workers are excluded from the legal minimum wage and other basic services.
“The foreign domestic helper is obliged to return to the country of origin at the end of the contract, and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong,” the top court said in a 49-page judgment.
In essence, what the Hong Kong court is saying is that domestic workers are on a different category and that their employment is very restrictive.  Domestic workers, in short,  are not good enough for the country. As a result, the Hong Kong court has set back the clock for human rights to the stone age. It is a retrograde decision that effectively allows institutional discrimination. Or worse, it allows slavery or servitude.
Under Article 39 of Hong Kong’s Basic Law, the provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other international labour conventions which Hong Kong have signed to shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. One of the most pertinent provisions of ICCPR in Part III, Article 8(1,2) refers to the prohibition of slavery and servitude, which are the very same provisions enshrined in the European Convention on Human Rights and other similar UN conventions. These are the pertinent provisions which the landmark case of Siliadin v. France identified as having been infringed and thus found France culpable for violating its positive obligation to prohibit servitude.
The Hong Kong court also ignores Article 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, another convention that took into account the principles embodied in the basic instruments of the United Nations concerning human rights, which provides that “no migrant worker or member of his or her family shall be held in slavery or servitude.” Similarly, the court also derogated from the human rights protections prescribed by the Domestic Workers Convention of 2011.
In excluding foreign domestic workers from permanent residency, the Hong Kong court did not simply restrict its definition of the state’s Basic Law but also offered a narrow-minded and discriminatory categorization of domestic workers. While most other countries allow foreigners under their laws to apply for permanent resident status, Hong Kong continues to treat domestic workers as slaves or servants and essentially beneath other foreigners. In other words, in a country that acknowledges the obligation to observe and implement human rights protections in its Basic Law, these protections are irrelevant to domestic workers.
Hong Kong domestic workers protest court decision to ban them from permanent
residency. Photo courtesy of Meaghan Fitzpatrick/CBC News. Click link to view, Hong Kong Maids Lose
 Residency Fight

The human rights approach to the rights of domestic workers is now considered universal, stringent entitlements. Disadvantages have been historically created for their sector because of the very nature of their work and their working conditions. They have been mostly excluded from labour legislation even as studies have shown widespread abuses of domestic workers such as withholding their passports, exploitative working relations and conditions like having no rooms of their own and being compelled to be available 24/7, inadequate meals, and physical abuse or assault. The location of domestic labour makes the workers even more vulnerable to abuse by the employers. Domestic labour also has a stigma attached to it, because it is the poorest and neediest who are occupied in it, and due to the tasks required from the workers, is mostly done by women and undervalued.
Notwithstanding the exploitative working conditions of domestic workers, the positive effect of paid domestic work for contemporary society cannot be underestimated. Having domestic workers is beneficial for family members, the employers and the market as a whole. In today’s economic setting, domestic work is vital for the sustainability and function of the economy outside the household.
This is why Hong Kong’s Basic Law has recognized the human rights protections provided in UN and other international conventions. What the Hong Kong court did in excluding domestic workers from the beneficial effect of Article 24 of its Basic Law is to contradict what it says it is obligated to uphold. The worst it has achieved is to divide its population into two distinct groups: 1) those who are citizens and permanent residents and are protected under the law, and 2) those who are to be treated as servants or slaves and outside the aegis of the law. This is pure and repulsive discrimination, reminiscent of apartheid and the segregation of blacks in the United States.
If the Philippine government has any decency and diplomatic clout left in dealing with other nations, this is one occasion for our leaders to stand up and fight for our poor and exploited workers in Hong Kong, mostly women who have sacrificed their dignity by working beneath their skills and talents to take care of their families back home. Never mind that these are some of our overseas foreign workers (OFWs) who keep the nation’s economy afloat because of the dollars they remit. No decent and proud nation or government can turn a blind eye and condone this hideous treatment of its citizens abroad.