Prosecuting corrupt former presidents

Former Philippine President Gloria Macapagal-Arroyo behind bars
on charges of electoral fraud filed by the Department of Justice and
the Commission on Elections.

Prosecuting sitting presidents or former ones could be the biggest challenge that faces democracy. 

It is much easier for an illegitimate government, one that has been installed by a military coup for example, because of the risk posed by a former head of state. Illegitimate governments often consider their predecessors as threats. This is also true in cases where governments had been toppled by a rebellion. A recent example is Egypt where its president, Hosni Mubarak, was arrested and brought to trial after thousands of protesters brought down the government. The death of Muammar Gadaffi in the hands of rebels and protesters pre-empted his prosecution and public trial for crimes against the Libyan people.

With the fall of Hosni Mubarak, center, a military council led by Field Marshal
 Mohamed Hussein Tantawi, left, has run Egypt. Photo courtesy of NYTimes and
 Aladin Abdel Naby/Reuters.Click link to view "Opening moments from Mubarak's
 trial," http://www.youtube.com/watch?v=ih-NHecFy94

But it’s never easy in a democracy, as oftentimes it’s messy, to bring a sitting or former president to public trial for crimes or offences against the state. Ordinarily, a sitting president is constitutionally immune from ordinary prosecution but is not the moment he or she leaves office, an outcome that can be obviously hastened by impeachment.

The issue is not the president personally but the institution of the presidency. Former U.S. President Bill Clinton was impeached by Congress but he survived and finished his term of office. Philippine former president Joseph Estrada was not as lucky. Although not impeached, Estrada was found guilty by the Sandiganbayan for committing economic plunder and eventually pardoned by his successor, Gloria Macapagal-Arroyo. Arroyo, who stepped down from the presidency in 2010, is now the defendant in a suit filed against her by the Philippines’ tandem of Department of Justice and Commission on Elections for alleged electoral fraud in 2007.

Other past presidents have been sued in court but these actions have never been successful. Augusto Pinochet is an example of how the prosecution of a former president might unfold. In 1998, the one-time dictator of Chile, then eighty-two years old, was seized in Britain on a Spanish warrant of arrest. Pinochet was charged with several crimes alleged to have been committed during his seventeen years in power—including torture, illegal detention, and forced disappearances. He was placed under house arrest in an English mansion while waiting for the outcome of several months of complex proceedings. The British determined that Pinochet was medically unfit to stand trial and returned him to Chile where he eventually died before he could get tried for his crimes.

But this peaceful process would be difficult to replicate with an American political figure. Unsuccessful attempts were made to sue former President George Bush and his vice-president, Dick Cheney, for waging an illegal war in Iraq and the illegal use of torture, including waterboarding. It would be likewise equally difficult to expect the United States to extradite former leaders who were granted political asylum in the country and regarded as friends of the American government. This probably explains why the Philippine government at that time did not exert serious efforts to have Ferdinand Marcos extradited so he could be tried for his crimes However, a civil suit against Marcos was filed in Honolulu for damages by victims of his martial law regime but the judgment against him has not been enforced to date.

There are other recent examples of suits brought against former heads of states. Former Brazilian President Luiz Inacio Lula da Silva has been sued by federal prosecutors in Brazil, charging him of misusing public funds in sending more than 10 million letters to retirees telling them about low-interest payroll loans from Banco AMG.

Family members and survivors of the 1997 attack in the Mexican state of Chiapas that killed 45 indigenous people sued former President Ernesto Zedillo for his alleged complicity in the massacre.

The United Church of Christ in the Philippines has sued former Philippine President Gloria Arroyo on charges that security forces under her control killed and tortured at least six members of the church.

Former Philippine President Joseph Estrada, together with Senator Panfilo Lacson and others were sued before a California Court for compensatory and punitive damages for the killing of Salvador “Bubby” Dacer and his driver Emmanuel Corbito in November 2000, under the Alien Tort Claims Act and Torture Victim Protection Act, both American statutes.

A Chilean court has allowed a lawsuit to proceed against the former president, Michelle Bachelet, over failings in Chile's tsunami warning system during the 2010 earthquake. Victims of the tsunami have accused Ms. Bachelet and other senior officials of “denial of assistance” over the tsunami which struck after the 8.8 magnitude earthquake.

The relatives of 11 French engineers killed in a 2002 bombing in Pakistan have brought charges against former President Jacques Chirac, claiming he ignored risks of reprisals against French personnel by stopping bribe payments to Pakistani officials.

Trivial and serious suits can be brought against former presidents but the likelihood of their success is very small. When Barack Obama was asked in August 2008 during the presidential campaign if he would seek to prosecute officials of the Bush administration for the illegal use of torture during the Iraqi war, he offered a very guarded response. He said, “I would not want my first term consumed by what was perceived on the part of the Republicans as partisan witch-hunt, because I think we’ve got too many problems we’ve got to solve.” His adviser similarly warned that pursuing prosecutions of Bush administration officials would generate a cycle of partisan recriminations. This is a plausible explanation why prosecuting former presidents has never been commonly resorted to.

But creating a precedent and thereby opening a floodgate of future suits against former presidents was not foremost in the mind of Philippine President Benigno Aquino III when he ordered the laying of charges against his predecessor. Upon succeeding Gloria Arroyo as president of the republic, Noynoy Aquino’s first major decision in office was to create a Truth Commission that would investigate and prosecute Gloria Arroyo for corruption during her years in power. That was his campaign promise and he wanted to keep his word.

However, Noynoy Aquino was tripped by the Supreme Court which declared his Truth Commission unconstitutional on the ground that it violated Ms. Arroyo’ s right to equal protection under the Constitution. It took Noynoy Aquino and his administration more than 500 days to regroup and devise another scheme to go after Arroyo, this time charging her of election fraud. The Supreme Court might as well rebuff Noynoy Aquino again for hastily pulling out an arrest warrant against Arroyo that contravened a previous order by the High Court to vacate a temporary order restraining Arroyo from leaving the country for medical consultation abroad.

Former Philippine President Gloria Macapagal Arroyo is seen with a neck brace
 as she  arrives on a wheelchair for a flight to Hong Kong at the Ninoy Aquino
 International  Airport where she was eventually  prevented from leaving. Click
link to view "Arrest warrant issued for former Philippine President Gloria Arroyo,"
http://www.youtube.com/watch?v=QbhAXu-o9z8

This is looking more and more like Noynoy Aquino’s personal mission to prosecute Gloria Arroyo than anything else. That he was willing to sidestep the legal niceties is proof of his rabid determination to accomplish his election promise, although not in pursuit of those guilty of corruption. But then, electoral fraud might as well be on the same plane as corruption, because this was equally an abuse of power in order to stay in power.

No one is above the law, and that applies to President Noynoy Aquino, his predecessor former President Gloria Arroyo, and to their legal minions. Arroyo’s day of reckoning could have been hastened if only Congress decided to impeach and remove her on the same charges of corruption and electoral fraud while she was still in office.

Once out of office, former President Arroyo is still accountable to law and to the country. The question though is how, when, and by whom.

After Richard Nixon resigned from the U.S. presidency following the Watergate scandal, President Gerald Ford pardoned Nixon for all actions committed during his presidency. Ford did not find it beneficial to the country that a former president be brought to trial. To President Ford, trying Nixon was less important than preserving the tranquility of the nation by avoiding a divisive prosecution.

Noynoy Aquino does not have this kind of dilemma. He has the popular support of the Filipino people. All he has to do—and this means his own legal advisers—is to ensure that Arroyo’s prosecution is within the bounds of the law. President Aquino’s actions, so far, appear capricious and merely vindictive, thus he could be wasting the enormous political capital the people have invested by electing him as president.

In a democracy, the decision to prosecute a former head of state is ultimately a balancing act between the retributive and utilitarian functions of the law. The retributive function assumes that the law should be applied equally, regardless of rank and privilege. When presidents engage in misconduct and violate the law, they betray public trust. They place their office in disrepute and invite disrespect of the law. Anyone who steals or abuses public funds deserves to be arrested and prosecuted. And there should be no impunity because no one is above the law.

On the other hand, there is nothing to be gained politically in prosecuting a former president. The prosecution of one head of state may lead to divisiveness, and may dilute the quality of politicians if succeeding leaders fear prosecution for actions taken while serving the country.

There appears to be a huge public outrage over Gloria Arroyo’s abuse of power in plundering the country’s economy and in keeping her in power by sabotaging the electoral process. It will serve the country well, and create an effective institutional deterrent for future politicians, to prosecute Gloria Arroyo for her egregious violations of the law. If only President Noynoy Aquino could stay within the parameters of the law and not let vindictiveness or vengefulness become the principal driving force for his actions.

Poverty as a moral dilemma

 

Poverty is a condition that a vast majority of people in the world suffers from. Today, poverty exists amidst a world of plenty.

Occupy Wall Street (OWS) and like movements around the world have focused on this condition as 99 per cent of society struggles to survive while its 1 per cent luxuriates in wealth accumulation. This is what makes the protesters angry, the fact that poverty co-exists with affluence. The OWS protests are also furious that the larger socio-economic system is greatly responsible for this general malaise and the rich are not doing their share in resolving this issue.

Occupy Wall Street, New York City. Photo courtesy of Paul Stein, Click link
http://www.youtube.com/watch?v=BaEeeLOB5IA to view  "Naomi Klein
 Interview  at Occupy Wall Street ."

The issue of extreme inequality has been recast as a moral problem. Morality in politics is no longer simply about sexual preferences, reproductive choices, or the sex scandals involving elected leaders. Now, the burning issue of the day seems to be the morality of contemporary financial capitalism.

Whether measured in terms of private consumption, income or wealth, the gap between the affluent and the global poor has continued to grow at an alarming pace in the last few decades. At least one billion people in the developing world lack minimally adequate nutrition, health care, housing, and educational opportunities.

Poverty creates massive human suffering and misery, especially for children. Every year, ten million children under the age of five in the Third World die from preventable diseases. Millions of these children grow cognitively or physically severely underdeveloped. On the other hand, people living in the wealthy industrial societies of the North have more than enough income to routinely discard many still serviceable goods.

That severe poverty in a world of abundance would be insufficient to create a moral challenge for the affluent is beguiling. It is a fact that seems hardly a serious ethical concern.

Almost half the world, over three billion people, live on less than $2.50 a day. From Poverty
 Facts and Stats by Anup Shah. Click link to view "Dr. Jeffrey Sachs - Giving What We Can" http://www.youtube.com/watch?v=eytMIFnOPJU&feature=relmfu

Why is it that there’s very little success in convincing affluent citizens that global poverty should be a high moral priority for them?

Dr. Rüdiger Bittner, a philosophy professor at Universität Bielefeld in Germany, has offered three explanations why affluent people have not accepted as their moral duty to help alleviate world hunger and poverty.

First, Bittner explains that people are immoral and do not care much about the suffering caused by global poverty. Second, he believes that people in affluent societies are simply slow in understanding that global poverty is a moral issue. And Bittner’s final explanation is that affluent citizens are not morally persuaded by global poverty because it is not a real problem setting or task or duty for them.

Christian believers, perhaps followers of others faiths too, would be quick to dismiss Bittner’s suggestion that people simply don’t care about the sufferings of others. There are those who would argue that poverty and morality are connected based on their understanding of the Bible. In Deuteronomy, for instance, the Bible speaks of a future time where there will be no poor because God will bless everyone in the land He has given them. However, to arrive at this kind of bountiful society, it would be through God’s blessings and not through policies aimed at confiscating wealth from its creators, which sounds like the core of Republican Party belief. Most Republicans believe that the war on poverty started by U.S. President Lyndon B. Johnson in 1964 was a dismal failure, that small government and economic freedom are the best answers to poverty. As Hadley Heath of the Independent Women’s forum explained, the various income redistribution schemes imposed by the federal government were bad for taxpayers—and bad for poor people.

People being immoral and impassive to the sufferings of others—this is the kind of argument that reduces our humanity. Call it idealism but it is still possible to appeal to the better angels of our nature.

Bittner’s second explanation that affluent people are quite slow in grasping the moral dimension of the problem of global poverty seems a more realistic argument. But this is so only insofar as Bittner maintains that world hunger is not a moral problem for the affluent because it is not “imputable,” i.e., it cannot be credited or charged, to one or more specific agents.

According to Bittner, moral discourse is only appropriate with regard to states or events that can be “imputed,” i.e., credited or charged, to one or more specific agents. Bittner writes: “World hunger is non-imputable because “we do not have a clear understanding of who brought it about, or who is bringing it about.”

Bittner goes on to explain that morally sensitive persons should not morally evaluate their actions because any decisions they make on world hunger are obscure and ridiculously small. Their decisions would not make a difference, and since nobody is clearly responsible, Bittner says that moral assessment won’t thrive on such ground.

But Bittner seems to exaggerate the extent to which we lack an understanding of the causes of world hunger and poverty. To hold that sharing responsibility means that there is no personal responsibility is empirically wrong. Take the case of apartheid in South Africa and the role of white citizens in sustaining this unjust system. Their contribution may be small but it does not mean that they lacked responsibility for apartheid. At the minimum, it is their responsibility to seek to change the system, as the affluent have a duty to change their system of economic privilege. This they can do by advocating political change and by supporting nongovernmental organizations that aim to assist the poor.

Bittner’s third explanation seems to suggest that global poverty is a political issue, not a moral one. It is related to and an extension of his second argument.

According to Bittner, global poverty is not a moral problem because it fails to satisfy two necessary conditions: that those be in some way close to the agent upon whom that agent is doing something that is to be morally assessed, and that the relevant good or bad states or events can be clearly credited to some particular agent or agents. Neither condition is fulfilled, so it lacks morality’s endorsement. Yet, the abolition of global poverty may still be a political goal.

Bittner argues that the aim of moral actions is to improve the lives of people who are close to us. The global poor are not close to the affluent people in the North, so they are outside the scope of their moral compass.

To Bittner, the duty to assist others in great need is limited to people who are part of their political community. American citizens, for instance, privately donate less than $15 per capita to foreign countries, but their total private charitable contributions are around $700 per capita. This suggests that people feel compassion for good causes, but primarily for those of their fellow citizens.

There is nothing obviously wrong with this type of prioritizing, but it doesn’t fully explain why global poverty is not a moral task for the affluent. The duty to aid may be a duty of justice since the affluent are at least partly responsible for the existence of global poverty. This is central to the recent work of Dr. Thomas W. Pogge, director of the Global Justice Program at Yale University, in a stark contrast with Bittner’s arguments on the lack of a moral duty of the affluent to alleviate global poverty.

In World of Poverty and Human Rights, one of the most prominent and controversial books in contemporary political philosophy, Pogge argues that wealthy Western liberal democracies are currently harming the world’s poor. This is very evident in the resource and borrowing privileges that international society extends to oppressive rulers of impoverished states, which play a crucial role in perpetuating absolute poverty.

Pogge maintains that these resource and borrowing privileges persist because they are in the interest of wealthy states. The resource privilege guarantees a reliable supply of raw materials for the goods enjoyed by the members of wealthy states, and the borrowing privilege allows the financial institutions of wealthy states to issue lucrative loans. It may seem that such loans are good for developing states too, but Pogge argues that, in practice, they typically work quite to the contrary. Consider the foreign loans granted to the Marcos government during the 1970s or the much more recent Arroyo administration, and take stock of whether they helped alleviate poverty in the Philippines. Pogge urges us to recognize the ways in which international institutions such as the World Bank and the IMF facilitate and exacerbate the corruption perpetuated by national institutions.

Without denying the culpability of local leaders, Pogge argues that the world’s poor are not merely suffering because we are doing too little to help. Moreover, they are being actively and wrongly harmed by a system of global political and economic arrangements that is disproportionately shaped by and for wealthy Western societies.

Pogge contends that the affluent have a duty of justice to aid the global poor because they are the beneficiaries of an unjust history of colonialism and because they use most of the world’s diminishing natural resources without compensating the global poor who use them hardly at all. Whether these links of responsibility are too weak or so diffuse to impose a moral duty on the affluent brings us back full circle to the protestations of the Occupy Wall Street movement.

Occupy Wall Street, New York City. Photo courtesy of The Whistling Monkey.
Click link  to view "Occupy Wall Street Through the Eyes of the World,"
 http://www.youtube.com/watch?v=JzUalvS8tJ8

Occupy Wall Street and like movements around the world may soon be dispersed and ultimately disbanded. But the issue of inequality, which is one issue the Occupiers are angry about, will continue to resonate no matter what happens to their movement in the short term.