Thursday, May 28, 2009

Writ of Amparo

It was reportedly “imported” from South America as a response to the widespread extra-judicial killings of journalists and activists which have proliferated in the last decade. The Writ of Amparo (Spanish for “protection”) was promulgated by Philippine Supreme Court Chief Justice Reynato Puno and his associate justices on October 24, 2007 to provide an opportunity for aggrieved parties to seek a Court order directing the military and police authorities to spare a particular individual from harm.

On May 20, 2009, the Philippine Supreme Court issued a Writ of Amparo to protect Philippine Navy Lt. First Grade Nancy Gadian from the military authorities who had issued an all points bulletin for her arrest allegedly for being a “deserter” after she failed to return to duty when her leave of absence expired on April 21, 2009. Five days before her leave expired, Lt. Gadian filed for resignation after learning of a clandestine military effort to silence her. She has gone into hiding.

Lt. Gadian became a military target after she accused her commanding officers of embezzling the P46 million pesos ($963,240.00) allocated by the US military to the Armed Forces of the Philippines (AFP) for use in its 2007 Balikatan (shoulder-to-shoulder) exercises in Mindanao. Specifically, she accused now retired Lt. General Eugenio Cedo, then chief of the Western Mindanao Command, of making the Balikatan funds a “milking cow” for his own personal use. Cedo denied the charge.

As the deputy chief for civil-military operations during Balikatan 2007, Lt. Gadian was in a position to know exactly how the funds were allocated and how they were actually spent or misspent and who were responsible for any misappropriation of these funds.

In response to the accusations, AFP officials charged that Lt. Gadian was a “lavish spender” who couldn’t account for an expenditure of P14,000 pesos ($300) and for “insubordination” for publicly airing her charges rather than reporting them to the superiors she had accused of corruption.

On May 11, 2009, Lt. Gadian wrote Jaro Archbishop Angel Lagdameo, president of the Catholic Bishops Conference of the Philippines, to refute the charges against her . “Over the years, Balikatan exercises have been conducted in the Philippines and over the years millions of money have been spent for nothing. And who benefitted the most? The high-ranking officials of the AFP. Only a centavo went to the operating troops on the ground, but worst scenario is that nothing went to them and only a meager amount went to support the projects.”

“For 2007 alone, the Civil Military Operations (CMO) Events have only a total of P2.3 M released to support the entire CMO activities in Mindanao. These funds went as far as the foot soldiers on the ground because I have personally seen their sufferings and it is but proper that they will receive what is supposed to be entitled to them. During my term as the Officer-in-Charge of the CMO Fusion Cell, I made sure that everything will be placed in order. But it really so hurting that after what I have done,” she wrote, “I find myself as the one being charged….”

Lt. Gadian fears that if she is apprehended by military authorities, she will suffer the same fate as that of another whistleblower, Navy Ensign Phillip Andrew Pestaño, who was found dead in his room on the ship BRP Bacolod City in 1995, a victim of a murder conspiracy according to his parents and a Senate investigation, but a “suicide” according to the AFP.

Lt. Gadian’s parents, Jose and Virgilita Gadian, are poor farmers from South Cotabato who are proud of their daughter for being the first in her family to graduate from college receiving a bachelor’s degree in customs administration from the Mindanao Polytechnic University and then graduating from the Naval Reserve Officers Training Corps in 1989 when she was awarded the “AFP Cadet of the Year” by then Pres. Corazon Aquino. They fear not only for their daughter but also for their daughter’s children who are under heavy surveillance in case Lt. Gadian contacts them.

But the stink of corruption being raised by Lt. Gadian may cause larger problems for the AFP than just being a public relations nightmare. The Philippine Department of Foreign Affairs recently confirmed that the Obama Administration has allocated an estimated total of $667 million for the Philippines for 2010, more than had been allocated for 2009. If Lt. Gadian’s charges of corruption in the AFP were to find their way to the US Congress, this allocation may be jeopardized.

Fearing this threat, the AFP recently cleared Lt. Gadian of any charges of malversation of funds. Lt. Col. Romeo Brawner, AFP public affairs office chief and spokesman, announced that an AFP internal audit had determined that all funds assigned to Lt. Gadian were accounted for and “spent according to program”.
Lt. Gadian has been asked to come back to the fold but she remains defiant. “We are in a democratic country,” she said, “the mere fact that I voluntarily submitted my personnel action form, that means I don’t want to work in the AFP anymore…my reason is very clear, serving in the AFP is no longer dignified.”

Will the military authorities res pect the Writ of Amparo issued by the Philippine Supreme Court for the protection of Lt. Gadian?

Thursday, May 21, 2009

Love and Aging

Age does not protect you from love, but love, to a certain extent, protects you from age.” This quote from Anais Nin begins Mona Lisa Yuchengco’s extraordinary debut documentary “66 years, 2 months, 21 days… and still counting…” which had its premiere US showing on May 16, 2009 at Skyline College in San Mateo .

While the viewers are still digesting the meaning of the quote and trying to guess what the title may allude to, the movie unfolds, introducing a man who was born on June 15, 1914, the youngest of 14 boys. Delfin Gonzalez Sr., then appears with a smile to say that his parents wanted a girl so desperately that when he was born, they dressed him up as a girl, as shown in the early family photos.

Gonzalez is 95 years young. He is articulate and blessed with infectious humor and a photographic memory, an uncanny ability to remember seemingly every detail of his life. He was a “Tondo boy” who went to the University of the Philippines (UP), became the editor of the Philippinensian college paper, and graduated from the UP Law School in 1938. But all the honors in the=2 0world paled in comparison to meeting his soul mate, the beautiful, intelligent Aurea Carballo.

It was a four year courtship. He would regularly visit “Auring” at her home on weekends where her chaperone mother was always present with an alarm clock set at 9 p.m. to tell him it was time to go. When he finally had enough money, he proposed to her and bought two gold wedding bands from La Estrella del Norte for 40 pesos the actual receipt of which was shown in the film. The date on the receipt is December 7, 1941, just a day before Japanese planes bombed Pearl Harbor . Delfin and Aurea were married shortly before the Japanese invaded the Philippines .

The title of the documentary refers to the length of their marriage which ended when she passed away two years ago. But the last part of the title “and still counting” reveals the continuing love for his wife that he feels to the marrow of his bones every day, every moment of his life. The haunting music in the sound track of the film is their favorite piece, Anton Rubinstein’s Melody in F, played on the piano by Nonong Buencamino.

“I used to be afraid of death,” he says in the interview. “But now I look forward to it because I know I will be reunited with my wife.” The camera catches Gonzalez with tears swelling in his eyes, as he fondly recalls their moments together, infinitely preferring his worst day with her to his best day without her.

When I viewed the film at Skyline College with about 150 others on May 16, there was not a dry eye among us as we were transfixed on the scene when Gonzalez is unable to hold back his tears. Mona Lisa shared with us after the film screening that she was conflicted in that shoot. She had known her “Tito Delfin” since she was young and that part of her wanted to stop the filming and hug him and comfort him in his pain but the filmmaker part of her saw that here the true meaning of the Anais Nin quote emerges- “Age does not protect you from love, but love, to a certain extent, protects you from age.”

When he turned 89 about 6 years ago, Gonzalez learned of a Master of Laws program that was offered at the San Beda College. He was a few months short of completing his Master’s degree in Economics at the Far Eastern University in 1941 when the war broke. Now 62 years later, he would have another chance to obtain a master’s degree. The classes would start at 8 a.m. and end at 8 p.m. Did he have the physical and mental stamina to complete the program? After trying it out for a day, he determined that he could and would. And he did.

Mona Lisa Yuchengco is growing old, along with those of us fortunate enough to be able to do so. (The alternative of course is not “staying young” but moving on to another dimension.) She is at that age when she has compiled a Bucket List of things to do in her life. She has already published a national magazine, Filipinas, which she sold in 2005 and which thrives today. She has been a wife and mother and recently became a grandmother for the third time in January. Next on her list: her life-long wish to be a filmmaker.

Last December, Mona Lisa enrolled in the Marilou Diaz-Abaya Film Institute in Antipolo, Rizal. “At 58 years old, I was the oldest in the campus,” she wrote, “and I had to show them that age did not stop me from competing and from being creative.”

It was not just her example that would show them but also her thesis film. Mona Lisa wanted to make a documentary about aging to show that we could continue to live productive lives as we grow older. “Not every one of us has to end as a dementia case,” she said.

The selection of Delfin Gonzalez, Sr. was an inspired choice. The difficulty was in scheduling the filming of his interview around his busy law practice. Finally, with a film crew composed of many of her instructors at the film school, Mona Lisa arrived at Gon zalez’s home at 8:30 AM on a Saturday morning and began filming at 9:30 AM.

At the conclusion of the interview in the early afternoon, the film crew stood up and gave Gonzalez a heartfelt standing ovation to express their personal appreciation of him. In the film institute’s website (www.mdafi,com), Mona Lisa wrote: “It took me and the editor two days (Monday and Tuesday) to edit the four hours of footage we had. By Wednesday, the musical score was included and by Thursday, the sound mixing was perfected. So by Friday evening, I had the director’s cut with me and on Saturday morning, I returned to my subject’s home to show him the film. I returned to San Francisco early Sunday morning happy and fully satisfied that one of my lifelong dreams had been accomplished. Another item crossed out from my Bucket List.”

Mona Lisa will be showing her film in Manila on Saturday, June 13 at the Marilou Diaz-Abaya Film Institute in Antipolo at 2 pm. A panel will speak on aging after the screening.

Friday, May 15, 2009

Community Cheerleader

Filipino American community leaders regularly receive recognition for their initiatives but the many who serve quietly behind the scenes, the ones who really make the community engines run, are barely known and rarely receive any credit. And that’s fine with them because the community’s success is their goal.

No one I know personifies this behind-the-scenes Community Cheerleader role more than Lina Susbilla who has been active in the Filipino community for more than 50 years.

Lina was a member of the Fil-Am Council of San Francisco in the 70s when the Council set up employment training programs for newly-arrived immigrants. She was the force behind the Pearl of the Orient and the Soroptimist clubs when they were actively involved in Filipino community events.

Any effort, locally or nationally, to organize and unify the Filipino American community always received her enthusiastic support. She was in Anaheim when the National Filipino American Council (1987) was organized in 1987 and was a charter member of the National Federation of Filipino American Associations (NaFFAA) when it was formed in 1997 in Washington DC.

Lina is also a member of the San Mateo County Commission on the Status of Women and has been an active member of the Filipino Task Force in CORA (Community Opposed to Relationship Abuse). As a member of the Filipino Women’s Network (FWN), Lina performed in the FWN 2007 production of “The Vagina Monologues” when it was performed at the Herbst Theatre.

In her private life, Lina has been happily married to Len Susbilla for more than 45 years. Together, they have two kids, Len Jr. and Lynette, and nine grandchildren. Lina had been working at the Presidio Officers Club until the Presidio closed down 16 years ago, an event which provided Lena with the opportunity to open her own flower shop (Lina’s Flowers and Gifts) in Daly City.

In September of last year, Lina relayed the sad news to me that she had been diagnosed with breast cancer. Where normally there would be a bright cheerful smile, this time there was worry and fear in her eyes. “I’m frightened,” she said. “You’ll lick it, I know it,” I assured her.

As the months passed, we would hear sporadic news of her chemotherapy and radiation treatments. And then in March, Lina appeared at numerous community events with her omnipresent camcorder, announcing with her buoyant smile, that she had indeed licked the cancer.

On April 9, Bataan Day, last month, Lina and her sisters accompanied their father, 89-year old Pablo Lising Mesina, to the rotunda of the San Francisco City Hall where he and other Filipino WW II veterans were honored by SF Mayor Gavin Newsom for their service to the country. Lina was so proud of her father who had served with the Philippine Scouts and who, because of that service, was able to immigrate to the US with his family when Lina was just a child.

With news that Lina had successfully licked her cancer, all was now well with the world. All was well until last week when Lina suddenly suffered two brain aneurism attacks which required her to undergo an emergency craniotomy surgical procedure on May 8 at the Redwood City Kaiser Hospital.

For the last four days, Lina has been heavily sedated in the Intensive Care unit of the hospital as her doctors monitor her condition. She was still unconscious or asleep when I visited her at the hospital on May 12. Lynette wasn’t there when I came but later left a message for me in my voice mail which I would like to share with everyone:

“Thank you for coming to see Mom. Right now, I just saw Mom open her eyes for the first time in a long time and she wouldn’t let go off my hand. I wasn’t supposed to touch her last night but I couldn’t resist so I held her hand and I told her how much I loved her. And she started crying. I didn’t know what that was so I asked her “Mom, do you hear me?” She grabbed my hand, she squeezed my hand.”

Lina will not go quietly into the night. Her will is indomitable. Let us all pray for Lina.

Friday, May 8, 2009

License to Rape

The historic symbol of justice, Justitia, is depicted as a blindfolded woman carrying a sword in one hand and, on the other, weighing scales to measure the strength and weakness of a case.

Over the years, quite a few have asked how a blindfolded person could possibly read the scales of justice. And many have questioned the wisdom of handing a sword over to someone who is blindfolded and who can indiscriminately injure anyone with that sword, including the victim.

Those questions about the symbol of justice came to the fore on April 23, 2009, when a three-woman Philippine Court of Appeals panel acquitted US Marine Lance Corporal Daniel Smith of raping the Filipina known as Nicole. It was not rape, the blindfolded judges decided, but merely the “unfolding of a spontaneous, unplanned romantic episode.”

“This court finds deceptively posturing Nicole’s portrayal of herself as a demure provinciana lass,” the Judges ruled. “On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior.” How could they "see" this with blindfolds on?

As the Philippine Daily Inquirer noted in its April 27, 2009 editorial ("The Romance of Rape"), “only decorously behaved women can be raped, right?” With this horrendous decision, the judges have given men in the Philippines the license to rape any woman who has not behaved “decorously” or who cannot rightly claim a “protestation of decency.” This is a precedent-setting decision that will cause significant harm to all women.

Rape is an extremely difficult case to prosecute because, as British Chief Justice Lord Matthew Hale declared in the 17th century, "in a rape case, it is the victim, not the defendant, who is on trial." The judges eagerly pronounced Nicole guilty because, in their eyes, she was only deceptively posturing herself as a demure provincial lass.

As the Inquirer editorial concluded, “the ruling pushes the jurisprudence on rape back to the 20th century; after all this time, the special division still understands rape as essentially a private crime, as a crime against chastity.”

But perhaps the judges were not going just a century back but thousands of years back in time to the days of the Old Testament of the Bible, when Deuteronomy (22:22-23) wrote that “if within the city a man comes upon a maiden who is betrothed, and has relations with her, you shall bring them both out of the gate of the city and there stone them to death: the girl because she did not cry out for help though she was in the city, and the man because he violated his neighbor’s wife.” The difference of course is that the judges here only ordered the rape victim to be stoned while freeing the rapist.

In modern times, the crime of rape (or "first-degree sexual assault" in some states) has been defined as non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol as the trial court found in Nicole’s case.

The judges disputed the trial court’s assertion that Nicole was too drunk to give her consent by finding that “when a woman is drunk, she can hardly rise, much more stand up and dance, or she would just drop. This is a common experience among Filipino girls.” The judges were likely using their own personal experience to make this determination and using the eyewitnesses who saw Nicole dancing even after imbibing alcohol to conclude that she wasn’t that drunk.

But the judges ignored the testimonies of those witnesses who testified at the trial that they saw Lance Corporal Daniel Smith carry Nicole on his back as he took her out of the bar to a waiting van. The judges also ignored the testimonies of witnesses also testified that Nicole was semi-conscious when she was dumped from the van after she was raped.

Nicole didn’t say no to having sex with Smith because she was too drunk to say anything. But even if she was sober enough to say no, the judges also ruled that “Resistance by words of mouth [sic] does not suffice to establish that she indeed did not give her consent to the sexual intercourse.” As far as the judges were concerned, Nicole gave consent to sex, whether she was drunk or sober.

In Muslim countries which practice Sharia law, wives are barred from saying “no” to their husbands’ demand for sex so husbands can never be charged with raping their wives. In most countries, however, consent to sex is required whether in a marital relationship or not. Consent need not be expressly made as it may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent.

The International Criminal Tribunal for Rwanda in its landmark 1998 judgment used a definition of rape which did not use the word consent. It defined rape as: "a physical invasion of a sexual nature committed on a person under circumstances which are coercive.”

Nicole, as Conrado de Quiros wrote, “was plied with drink and God knows what else in a bar, shoved into a van, and raped inside by an American serviceman while his four buddies egged him on with cries of "F__k! F__k! F__k!" Later, she was lifted out of the van by her hands and feet by two men like a pig ("parang baboy") and deposited on the pavement. She had on only a shirt and a panty, a condom still sticking to her panty. Someone from the van threw a pair of pants in her direction, and the van drove off.”

In Rwanda, this would be considered rape.

Friday, May 1, 2009

Nicole's Rape

Nicole (not her real name) is now somewhere in the US on a visa generously provided by the US Embassy, reportedly awaiting the arrival of her US serviceman fiancé to marry her and petition her for a green card. Before she received her US visa, Nicole signed a sworn affidavit on March 12, 2009 prepared by Jose Justiniano, the lawyer of Lance Corporal Daniel Smith, exonerating Smith of having raped her on November 1, 2005 in Olongapo City. After signing the affidavit, Nicole received a check for $2000 from Justiniano as damages awarded by the Philippine trial court that convicted Smith of rape in December of 2006.

Justiniano had appealed the guilty verdict against Smith and the Court of Appeals was set to render its decision in April. A recantation by the rape victim would ensure his client's victory. The US Embassy was willing to offer anything to Nicole to sign the recantation as the fate of the Visiting Forces Agreement between the US and the Philippines depended on the outcome of the case. Offering a visa to Nicole and her sister was no problem if it would seal the deal.

The 3-page affidavit prepared by Justiniano followed the logic of Justiniano's own closing argument at the conclusion of the trial of Smith: “Looking back, I would not have agreed to talk with Daniel Smith and dance with him no less than three times if I did not enjoy his company or was at least attracted to him since I met him for the very first time on the dance floor of Neptune Club."

"With the events at the Neptune club in mind, I keep asking myself, if Daniel Smith wanted to rape me, why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other customers? Why would the van park right in front of Neptune Club? Why would Daniel Smith and his companions bring me to the sea wall of Alaba Pier and casually leave this area that was well lighted and with many people roaming around? If they believed that I was raped, would they have not dumped me instead in a dimly lit area along the highway going to Alaba Pier to avoid detection?”

After securing Nicole's signature on the affidavit, Justiniano then included it in the supplementary “manifestation” which he submitted to the Philippine Court of Appeals panel that was reviewing Smith’s 2006 conviction by the Makati Regional Court.

As expected, on April 23, 2009, a 3-judge panel of the Court of Appeals reversed Smith’s conviction, finding that no evidence was presented in court to show that Smith had employed force, threat and intimidation on Nicole. The panel of three women judges found the sexual tryst to be nothing but "a spontaneous, unplanned romantic episode…(with Smith and Nicole) carried away by their passions."

"Suddenly the moment of parting came and the marines had to rush to the ship,” they wrote. “In that situation, reality dawned on Nicole – what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her”.

The regional trial court had earlier found that Nicole was too drunk to give consent to sex. But the appellate panel rejected that claim. “From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit,” they wrote. They also rejected the trial court’s finding of “forcible entry” to explain the contusions in Nicole’s genitals. “Even in consensual sex,” they explained, “contusions could be inflicted by finger grabs, as in Nicole’s case.”

Philippine Daily Inquirer columnist Rina Jimenez-David criticized the decision of the women judges which “seemed more like the admonitions of scandalized maiden aunts to a wayward niece than a reasoned, objective and compassionate appreciation of evidence. They needed only to settle one question: Was Nicole raped? Was she in possession of her faculties such that she could decide freely whether she wanted to have sex with Smith or not? Or was she so drunk that the Marine, taking advantage of her condition, had his way with her? But instead of answering these queries, what the justices wrote instead was a complicated scenario justifying the rape and gross abandonment of Nicole at the pier of Subic.”

In his 2006 column “Cry Rape”, Inquirer columnist Conrado De Quiros described the viciousness of the rape. “The girl was plied with drink and God knows what else in a bar, shoved into a van, and raped inside by an American serviceman while his four buddies egged him on with cries of "F__k! F__k! F__k!" Later, she was lifted out of the van by her hands and feet by two men like a pig ("parang baboy") and deposited on the pavement. She had on only a shirt and a panty, a condom still sticking to her panty. Someone from the van threw a pair of pants in her direction, and the van drove off.”

Nicole’s case might have been just another of the thousands of other cases of rape that involved US military personnel in or around US military bases in the Philippines since 1946. But no American soldier had ever been convicted of raping a Filipino woman until December of 2006 when Makati Trial Judge Benjamin Pozon pronounced Smith guilty of raping Nicole.

Judge Pozon ordered Smith remanded into the custody in a Philippine jail. But a provision of the VFA required US military personnel convicted of a crime in the Philippines to remain in US custody pending the outcome of the appeal. While this provision was disputed (and ultimately found unconstitutional), Philippine government authorities removed Smith from a Makati jail cell and transferred him to the US Embassy where he was billeted while awaiting the eventual reversal of his conviction which occurred last week.

As Daniel Smith hurriedly departed the Philippines a few days ago, columnist Rina Jimenez-David wrote “Goodbye Danny Boy”: “Filipino women, fighting gender bias and social dictates in court, and finding themselves judged against hoary social standards, will have reason to remember you, Danny Boy. They will remember you and how you, abetted by your and our governments, manipulated the justice system and the unequal relationship between our nations, and managed to get away with a most heinous crime.”