THE PRESIDENTIAL SYSTEM AND KARL POPPER'S OPEN SOCIETY

photo from bandera.inquirer.net

IF YOU'RE anti-Marcos, you should thank the campaign culture of Bongbong Marcos' camp in the last vice-presidential contest for instigating anger in the people (towards those who ousted Bongbong's father's regime) through the spreading of shady "facts". Anger births insults, hostility, the birthing of which left the new Marcos' camp with nothing more to work with outside of same anger, rendering it unable to convince people with sympathies for the other camps to consider the logic of the new Marcos' camp and thus join what might have been shaped as an open force.
    But it was not surprising, of course, since a presidential system based on cult personalities for its maintenance, as against a parliamentary system based on a culture of constant debate, is a ready landscape for anger and hostility, anger and hostility deriving from all the personality-based camps towards their enemy camps. Besides, a Marcos position can really do nothing much else, unless it distanced itself from the policies of the father and promised to open its offshore accounts to public access.
    But, just for the sake of argument, imagine a Marcos campaign that did expand its culture of hostility to the area of amiable persuasion, even aggressive persuasion sans the option to lie. It just might have surprised the Leni Robredo camp with a convincing win.
    But, as I said, it's not surprising that followers of camps in our nation, any camp at all, would carry this culture of cult personality-based hostility towards the other. Like we said, the presidential system insists on this culture for the maintenance of its star system. It would even, as is often the case, insist on every individual's being either of one camp or another. It might even insist on loyalism.
    So it was not surprising that every opposition to a Noynoy Aquino decision was met by the Aquino regime with the notion that it was Gloria Macapagal-Arroyo camp-deriving, just as it is not surprising now that Rodrigo Duterte's regime and loyalists paint every opposition to the government's many decisions as an opinion of the "dilawans".
    Is it possible to remain a citizen within a presidential system while absorbing parliamentary systems' culture of constant amiable debate (or hostile debate, but real debate, as against the non-debate of mere exchanges of expressions of hostility between the colored camps)? I don't know.
    But if an opposition to the current Duterte government is to grow, it must first learn the Bongbong Marcos campaign shortcoming. Shielding itself from the other's anger through its own anger at those who voted for Duterte would make the presidential system mistake all over again, a mistake of taking another cult-persona's position of distrust towards the other.
    For instance, if millions of Duterte supporters are to withdraw their support for the president they voted for today, an occurrence that often is not surprising in countries with recall elections for presidents, you can only credit it to people's having gone beyond the mere culture of hostility between cult personality camps and having learned to imbibe the more democratic, perhaps wiser, or smarter, virtues of openness to facts and the other's power of persuasion. [S / -I]

WAS THE AQUINO GOVERNMENT ALSO TO BLAME FOR THE MARCOSES' COMEBACK?

WAS the Aquino government to blame for the Marcos family's comeback, as hinted by former Vice-President Jejomar Binay and as per the legalist defense of President Duterte himself re his funeral honors for Ferdinand Marcos?
    Well, partly, yes. A big part? Yes. Binay's and Duterte's technicalities aside and the people's pulse as the primary measure, when the Aquino government used the Marcos era as the very opposite to its own, and then the intelligentsia itself failed or refused to call the Aquino government's own little Marcosian atrocities and tag as Marcosian its sporadic dictatorships by liberal legalism, and then also call that government's members' own business with---or alleged tax accommodations for---Marcos- and Romualdez-affiliated business interests, e.g. Benguet Corporation, among others. . . . the Marcos comeback road was definitely paved by that government, ripe for loyalists' long-awaited historical revision and historical negation programs.
    So, was the Aquino government also to blame for the Marcos comeback? Again, definitely yes. But so is the Duterte government's loving embrace of the late dictator's family, as was Binay's own transformation from being a human rights lawyer during the Marcos years to being a symbol of Marcosian kleptocracy in later years. As were all those post-Marcos acts of governance (or absence of governance) that failed to demonstrate Good opposite to the historical metanarrative concerning Marcos' Evil. So was the intelligentsia's failure to see that the history it was academically writing was not the history that the people were reading. [S / -I]

WHAT BROUGHT ABOUT THE SCHEDULED STATE BURIAL (WITH HONORS, AS A MATTER OF COURSE) OF FORMER DICTATOR FERDINAND MARCOS AT THE LIBINGAN NG MGA BAYANI?

cartoon borrowed from paxonbothhouses.blogspot.com

1.) The Filipino oligarchy's leadership under various faces, with its filial penchant for forgiving, even if only a bit, and permitting people in exile to return to their regions of wide support in exchange for the surrender of a few centavos of their stolen wealth. Along with this, the dismal performance of the Presidential Commission on Good Government in running after the Marcoses' stolen wealth in offshore accounts, not to mention the reported corruption of some appointed officials of the commission. Along with this, the oligarchies' lack of transparency with regards to the amount and whereabouts of all the recovered ill-gotten wealth from the Marcoses' haul.

2.) The Filipino oligarchy's leadership (through one of its own or otherwise a puppet), with its treatment of Philippine politics as a game wherein its leaders can nurture an anti-Marcos image, complete with TV documentaries about the Marcos era and annual anniversaries reflecting on the Marcos oppressive years of horrors, while entering into business jointures and secret political alliances with elements of the Marcos family; in the case of Noynoy Aquino, fanning anti-Marcos rhetoric on PTV4 and ABS-CBN care of the Lopezes even as he patches up differences with the Danding Cojuangcos and the Floirendos and other former Marcos allies to build both business and political alliances for his Liberal Party machine, one of which products may have been getting back a larger influence on Hacienda Luisita stocks that would result in Kris Aquino's sitting on the board of the corporation, to mention a few such arrangements beyond our masses' full comprehension.

3.) The Filipino oligarchy's leadership and its failure to govern beyond the (legalist) ways and habits of the crony-serving Marcos era, which led to people's disillusionment with these post-Marcos governments that led in turn to a popular belief that perhaps Marcos was just a victim of black propaganda and that maybe what those Marcos-supporting white and grey propaganda releases have been saying were probably more right than not.

4.) The Filipino oligarchy's leadership with its secret arrangements that may have given the Marcoses leeway to enter the various propaganda media, which entry would lead the Marcos machine to convince millions of disillusioned Filipinos of old and new generations to consider the possibility that maybe Marcos was not that bad, culminating in an almost-win for the vice-presidential candidacy of Bongbong Marcos.

5.) The Filipino oligarchy's leadership, with its failure to strengthen a continuing knowledge of all the recent Philippine history of abuses and inculcating all this into the memories of both old and new students and teachers.

6.) Finally, the irony of a newly-elected President who unabashedly proclaims that he is a socialist (partly true, perhaps, while also partly false) while confessing to a close friendship with the rightist Marcos family, and---after the elections---confessing to having been primarily funded by a Floirendo (a former Marcos ally in Mindanao) during his presidential campaign. (Incidentally, it was purportedly thanks to this Floirendo that a Duterte-Marcos 2016 tandem became the most common tandem on the presidential election posters on the walls and fences of Davao).

7.) And. oh, we almost forgot: the Filipino people being too divided on their impression about the Marcoses, thanks to all of the above, that would now render it impossible for them to launch a revolution against all of Marcos' friends in government (if there is even such an animal as a true enemy of the Marcoses in the highest roster of government since the presidency of Ferdinand's cousin, Fidel Ramos). [S / -I]

THE LONG ROAD TO LIBERATION

photo from http://www.philstar.com/metro/2016/07/31/1608339/ltfrb-bans-uv-express-vehicles-edsa

IN 2010, Noynoy Aquino's party intimated, that is to say by implication, the rise of a wangwang-less social liberal society. This social liberal society, so the message went, should constitute the President's bosses, not his subjects. However, as the years progressed, people saw more neoliberal and corporate liberal interests in the "liberal" of the Liberal Party than social liberal ones. Sure there were social liberal directions that remained, the CCT (qua CCT), for instance, as well as the expanded TESDA skills program (very social liberal, being in the service of both the working class and the employers' class at the same time). In the long run, though, what remained embedded in people's minds were these: hardly could someone see a social liberal direction in the elitist DAP arrangements with politicians, as against what they might see had it been a participatory DAP arrangement with the people (the former produced such crap as a convention center, while the latter might have produced such useful efforts as a market bazaar space for vendors, more mangrove projects, or solar power for villages). . . .

    But that's the past, and now we're in the present. So now let's talk about the election campaign of 2016, wherein Digong Duterte did not just imply, but explicitly described himself as, being a Socialist. He boasted of his projects in Davao City as manifestations of a Socialist mayor's sensibility in relation to choosing which provisions are priority to his community (sophisticated healthcare, women's centers, heavily-protected LGBT rights, etc.).

    So when Duterte won the Presidency and we saw such appointments as Lisa Maza's for the Anti-Poverty Commission, no one was shocked. Nor that another leftist was given the post of Agrarian Reform secretary to hasten decades-old go-aheads for land redistribution. Nor were the leftists among his supporters shocked to witness the appointment of a scion of a wealthy family who now mans the Department of Natural Resources, because her profile as a pro-people anti-mining activist seems to go beyond mere show for "corporate social responsibility" and is familiar to all as being so (moderate though it may be to the radicals).

    There are other sensible little diktats that display this Dutertean socialist sense, as when the President messaged NAIA people to avoid another case of laglag-bala victimizing ordinary passengers (or be ready for airport personnel cleansing). That diktat was a breath of fresh air from the era of Noynoy Aquino that kept on denying that such a racket existed at Aquino's cousin's turf, that kept providing everyone in the process the legalist argument that there are existing laws governing such cases and that all that needed to be done was merely to follow what the laws said.

    A breath of fresh air. Until yesterday, when this news came out.

NOW under the Duterte government, the Land Transportation Franchising and Regulatory Board (LTFRB), along with the traffic-planning and -enforcing Metropolitan Manila Development Authority (MMDA), announced that all UV Express vans would henceforth be banned from Epifanio de los Santos' avenue because, as legalism goes, the UV Express franchise does not include the vehicles' entry into Epifanio de los Santos' avenue of traffic ill-repute.
    Now, I remember the time when, despite the Aquino government's neoliberal lack of empathy towards the common commuter, we would still be shocked by a Mar Roxas blurting out such classic lines as "heavy traffic is a sign of industrial progress", or something to that effect. Discussions during that time, especially among socialists, touched on the ultimate solution: the nationalization of the EdlSA bus route and the provision of a ceiling for the number of private transportation using the main avenue during the rush hours.

    One would have expected such an ultimate nationalization solution to come from a socialist Duterte. Surprise, surprise. Instead, the UV Express of the lower-middle and upper-lower classes are taken out, so that the cars and Ubers of the middle and upper-middle and upper classes can continue to hog the traffic of EdlSA. Meanwhile, we can only conjecture on why the buses---also the mode for the lower-middle and upper-lower and lower classes---are being permitted to remain on EdlSA (and remember that buses use the entire length of EdlSA). We can only think of two reasons: there's the legalist rationale (the buses' franchise do specify where they are allowed to roll), and then what the rumors say (that the buses are mostly franchises owned by retired generals and reigning politicians friendly to the Duterte government). Totoo kaya 'tong rumor na 'to? Sana naman hindi.

    Pero the basic question for now is this: what comfort does this memorandum provide to the UV Express-using working class? Well, this niche of the working class would now have to ply the heavier rush hour traffic of other avenues, and then be dropped off corners or UVE stations 200 meters or more away from their connecting MRT stations. Thank you, LTFRB, for the Aquinoesque inconvenience.

    Isn't it funny? Aquino would start his administration with a lie using elements of public transport as overall metaphor: that his social liberalism would be displayed through a non-elitist wangwang-less and counterflow-less traffic. Duterte just started his public transport administration with a truth: that his lopsided socialism would be demonstrated through a traffic legalism one can't make heads or tails of---if it is, on the one hand, indeed socialist and pro-working class commuter, or, on the other hand, pro-bus owners and car-owners or what. Have the buses and some colonels' taxi lines become the newly-reborn wangwangs?

    On this uncategorizable memorandum, at least, I suspend my labeling pen till the next shocking (mostly to the socialists) public transport diktat. [S / -I]

Thank You, All

photo from http://globalnation.inquirer.net/140358/philippines-arbitration-decision-maritime-dispute-south-china-sea-arbitral-tribunal-unclos-itlos

YES, let us thank Noynoy Aquino's correct stance towards China re the West Philippine Sea disputes (despite his falling for lousy arrangements that came with the purchase of an old warship in 2013 and allowing too many Chinese mining operations in our soils).
     But let us not forget Justice Antonio Carpio, who played a large role in leading the legal team that presented its arguments at The Hague, and the authors and sponsors of Republic Act 9522, the act which amended an old baselines law not compliant with the UNCLOS.
     But the arguments were already there, weren't they, collectively shaped by various discussants (historians, legal experts, etc.) from a long way back to the recent. Thank you, All. [S / -I]

ANOTHER RANT AGAINST LEGALISM IS NOT A VOICE FOR LAWLESSNESS; IT'S LEGALISM THAT UNWITTINGLY IS

photo from http://www.elitereaders.com/naia-source-disclosed-how-scammers-pick-their-targets-at-the-airport/

PRESIDENT Duterte's order to stop all "tanim-bala" arrests comes from the presumption that all past instances of finding single bullets in passengers' luggage came from an extortion scam practiced by airport personnel (with likely consent from their officials). Will the order stop the scam? No. The extortionists at the NAIA will move on to harder methods: planted drugs, for one.

Duterte's order, which some legalist media elements and anti-Duterte citizens would point out as ignoring a law (never mind that they didn't holler a bit about Aquino's having ignored a thousand laws, the anti-DAP ruling chief among them), is---I believe---just a temporary fix and a probe. I believe that Duterte knows that the ultimate solution to the complex set of NAIA's problems is to replace the very elements that man this airport's security department and its systems, or replace the system that doesn't allow this police to be policed. Sure, erring personnel (and their defenders sympathetic to the previous government) can cite once again certain laws that may legalistically protect their positions. But we should remember that toying around with legalism is playing with fire, with the possibility that some people's frustration with laws that seem to only protect the erring will birth the death of Law itself.

Simply because the intelligent powerful have been more concerned with the letter of the law (the intent of which concern had been to protect certain interests) more than with the spirit that birthed good laws (the intent of which had been to protect the people) does not mean that that is the only way to treat laws and keep ourselves from getting into utter trouble. In fact, we ought to be careful with what we're sowing by that very legalist culture. For when people get frustrated with laws, because our legalist thinking have been turning a blind eye to the legalist effects of these laws' usage (waiting for Supreme Court rulings to reprove those legalisms), God knows if it might be too late to realize that it had been our very legalism that farmed that crop that cropped a lawless monster. [S / -I]

My amendment proposals to the Initiative and Referendum Act (RA 6735)

DESPITE my being a part of the convenors' team of ePIRMA (the Empowered People's Initiative and Reform Movement Alliance instigated by Manny SD Lopez with my help) that later joined forces with the Cebu Catholic hierarchy-backed Cebu Coalition and the Makabayan Coalition in a largely evolutionary effort to draft the 2014 People's Initiative Against Pork Barrel, it’s true that I had reservations about the viability of the Philippines’ initiative process as avowed by the existing initiative-enabling law (RA 6735). Assuming that my reservations were loudly expressed and not merely kept to myself, you could say now that my hangup was proven correct. In this video clip from a GMA News coverage of an October 2013 forum at Hotel Rembrandt on Tomas Morato Avenue, watch from 1:46:

     I am not, of course, Joey de Veyra (I'm Jojo de Veyra), and I was not trying to "batikos" (criticize) the proposition campaign during the time of this news clip. In fact, despite my being identified as the convenor of a different group (the Facebook group called Forum for Direct Democracy Philippines), I (armed with the FDDP's cause) was among those very individuals trying to convene more people to join in ePIRMA's effort, efforts that culminated in a "people's congress" held at the Asian Institute of Management convention center in December 2013. If you are to get access to a coverage video of my entire speech at that forum---and my answer to a journalist's question on how ePIRMA proposed to do the signature-gathering realistically---you'd see where I stood in that whole affair, despite a supposed ambiguous position I carried according to that very brief portrayal of my voice in that news clip by 24 Oras. But that's immaterial now. The point is that I did, somehow, express reservations about the potential of the effort to succeed, which was a reservation shared by many in the group that also pushed the group to join forces with the Cebu Coalition (which was then loudly doing a parallel campaign in the Visayas) for a more united front.

     In August 2014, the initiative was formally launched in Cebu City. I was there as part of ePIRMA. But as regards to what happened soon after the launch, I'd here confess that the signature gathering was mostly left to certain parishes of the more organized Catholic Church, the primary backing of the Cebu Coalition. Sporadic rallies of support were organized by the Makabayan group and provincial groups. In contrast, other members of ePIRMA were seen to have moved on to various other national concerns. Manny SD Lopez---ePIRMA's leading convenor and most active campaigner on the road---would also busy himself with organizing the Christian Peace Alliance, one of the groups advocating for a drastic review of some provisions of the then-in-its-final-thrust Bangsamoro Basic Law. Lopez would also form the EdlSA 2.22.15 Coalition, a group that called for President Benigno Aquino III's resignation after the Mamasapano mishap. I myself soon became part of an online art magazine. So, I submit that in this latter period I was not privy anymore to how the signature-gathering for the initiative on the pork barrel was progressing. I did hear of some pockets of resistance to the initiative, as well as the Comelec's seeming lack of enthusiasm towards verifying the signatures, but that's about it. . . .

     Then came the various noises leading to the 2016 general election, within which any news concerning the initiative's progress was nowhere to be found on Google. Not anymore.

     Then came the elections. And, guess what: Rody Duterte became our new President, and Leni Robredo our new Vice President. What do these names mean? Or, rather, what---ideally---should these names mean to us?

DUTERTE belongs to the PDP-Laban, a political party that claims to be for popular democracy (populism) and participatory democracy. Robredo, in turn, is the wife of the late Jesse Robredo; Jesse made a name for himself as a stalwart of participatory governance in his capacity as mayor of Naga City before he became the Interior Secretary of Noynoy Aquino. Leni, as Jesse's widow, was soon drafted by the Liberal Party to run for Congress; she won and became a vocal campaigner for participatory democracy and, as a priority, participatory budgeting (you can read my worldview on Leni Robredo's decorative role within the Liberal Party government by clicking here).

     What, to me, the whole situation means to signal is this: that perhaps the time is ripe for a more realistic RA 6735, one that would provide the people a usable initiative instrument in lieu of the existing one that simply provides a semblance of direct democracy that ultimately ends up as short (because near impossible to fulfill the requirements of).

     Thus, for us to truly provide a usable instrument for a participatory government of the people, by the people and for the people (as against the continuance of our present purely-representative democratic governance by the prescriptive representatives of the people, of the prescriptive representatives of the people and ultimately for the interests of these supposed representatives of the people), let me now propose the following amendments to RA 6735 (even before that new federal-parliamentary Constitution being proposed by the Duterte government arrives). My proposed amendments are here below, in red, which a lawyer out there could perhaps to more properly articulate:

Section 5. Requirements. — (a) To exercise the power of initiative or referendum, at least ten per centum (10%) of the total number of the registered voters, of which every legislative district is represented by at least three per centum (3%) of the registered voters thereof in the case of Constitutional amendment, and of which every region is represented by at least three per centum (3%) of the registered voters in the case of national statute initiatives, shall sign a petition for the purpose and register the same with the Commission.

(b2) A petition for an initiative on a new national statute, or one on an initiative seeking to amend an existing statute, must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every region must be represented by at least three per centum (3%) of the registered voters therein. Initiative seeking to amend an existing national statute may be exercised only after three (3) years from the ratification of the same and only once every three (3) years thereafter.

Section 7. Verification of Signatures. — The Election Registrar is obligated to verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election within twenty (20) days from receipt of the petition.

SECTION 8. Conduct and Date of Initiative or Referendum. — The Commission shall call and supervise the conduct of initiative or referendum.
     Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition within fifteen (15) days from receipt of the same, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the sufficiency of the petition.

     My arguments-cum-reasons for these amendments, should they appear to be not so obvious, I shall provide later in other essays. For now let me say that the signature requirement of 3% of the registered voting population per legislative district is, while required by the Constitution for Constitutional amendments, is just too steep for the creation of new statutes and initiatives seeking to amend existing statutes. Furthermore, with that requirement, it is possible for one legislative district to hostage the national interest, which definitely runs counter to the tenets of democracy and plurality. Furthermore, the period required for the Comelec to do its job in the management of this process must be accompanied with administrative penalties to avoid any inside filibustering of this democratic process. . . . [S / -I]

Starbucks Politics

PARA sa akin, less na nakakatakot sa panahon natin ngayon ang diktaduryang hayagan, dahil madali na itong makontra ng isang resistanteng kilusan. Sa katunayan, mas lalago ang resistensiya sa namamahala kapag ito ay mamamahala sa ilalim ng hayagang diktadurya; mawawala halos ang apatiya (kawalang-pakialam) ng madla, madla na matututong lumaban nang hayagan man o mapagkubli.
     Mas nakakatakot ang diktaduryang suwabe, kung saan ang lahat ng dikta niya ay dinadaan sa legalismo (kung ano ang nakasulat sa batas) at negative legalismo (kung ano ang di pinagbabawal ng anumang batas o ng absent na batas).
     Ang mga pagpatay na nangyayari sa unang uri ng diktadurya ay kinokondena. Ang mga pagpatay na nangyayari sa huling uri ng diktadurya ay bagamat nasa harap ng dyaryo ay dinadaan-daanan lamang ng mga may-dalang baso ng Starbucks na employed-but-underpaid-ngunit-kuntentong burgesya. [S / -I]

My Own "Putang Ama" and "Fuck All" Working-Class Moment On a Train

photo borrowed from http://www.rappler.com/nation/politics/elections/2016/115954-mar-roxas-wharton-degree

RODRIGO Duterte's bluff seems to have been that, a bluff, being wrong, as bluffs are. No, Mar Roxas' Wharton BS diploma looks to be for real.
     Not that that finding matters to me, for I really don't give a fuck about what a dude studied in college.
     I only care about what a dude knows now, especially what he doesn't seem to know. I do believe Mar Roxas knows a lot of stuff Wharton or fuck, but I also believe there are other things non-neoliberal he should know. If only he did, it'd be in his own and everybody's best interest.
     And that's my advice to my fellow man on the street. Vote for the person who knows what needs to be done and how to go around doing it, for that only means that that person really knows what's going on (as reported or unreported). Conversely, don't vote for the man who hasn't demonstrated knowledge of what's really going on and would therefore not know shit on how to go about resolving it. Don't look at his diploma; diplomas are dogshit when they're all about things that aren't here or can't be here on our streets.
     (Sorry for the socialist working class language and fuck, I'm in this sardine can called the MRT 3 mess and shitbin. Is this your fucking progress, you shitheads in fucking limos?) . . .
     So, again. I don't really care whether Mar Roxas has a Wharton BS economics degree or none. I only care about the fact that his economic sense is trickle-down neoliberal and his political sense corporatocratic. I care a lot about that. [S / -I]

photo borrowed from http://politics.com.ph/mar-thinks-traffic-jams-aint-a-bad-thing-heres-why/

On Presidents as Executioners (or, The Reason Why We Have Courts)

WHAT'S the difference between self-proclaimed champion of socialism and presidential aspirant Rodrigo Duterte and other political leaders, most of whom are members of Philippine oligarchies that created a Philippine plutocracy and corporatocracy?

photo of Rodrigo Duterte borrowed from http://www.mb.com.ph/duterte-shrugs-off-calls-to-run-for-president/

     Duterte, Davao City's mayor for seven terms, admits to having taken into his own hands, out of frustration with our national criminal laws, the execution of allegedly-criminal elements and syndicates that had purportedly hounded the peace and order of his city or, in later years, would try to ruin Davao's peace and order that he had supposedly taken pains to establish. After all, a local government that made it its policy to invite representations from the Lumad and Moro and communist camps---rampant in Mindanao---ought already to have peace as a given. Sure, it remains to be proven whether these executions really happened or are a mere part of his myth or scare tactics for peace and order's sake. It remains to be seen if someone will come out crying Duterte as mayor had executed an innocent man, in the way an article titled "You Can Die Any Time" did, or even harassed a political opponent. But here's what ought to be said: no other leader has admitted, seriously or in jest, to doing (in the past or in the planned future) such deeds as take into his own hands the salvaging of a gonner case. And the reason for it? Well, it might not be because other leaders never did (or would never do) anything like what Duterte claims to have done; it could be because what they have eliminated (or will soon choose to eliminate) in their own time as leaders were not (would not be) criminals or even perceived criminals but lawful members of society who just happened (would happen) to be in the way of their projects.
     You're all right. Duterte as future President of the Republic of the Philippines must submit to legislative bodies the job of debating on what ought to be the wisdom around certain laws he deems needful of amendments. For although it may be true that Duterte had executed criminals that the people of Davao are allegedly happy to be rid of, what if, as President of our republic, he has to delegate the implementation of this wisdom-cum-policy? The debate on capital punishment aside, would his army and police goons or executioner-governors and executioner-mayors always be right about their own final judgments as judges and jury over an archipelago of criminality---as Duterte probably was lucky to always be right as mayor-executioner, or so his supporters tend to believe?
     The subject of corrupt judges aside, the reason why we have courts---and precisely the reason why courts are public---is so that all judgments can be made transparent. For it certainly cannot be left to either a socialist president or a plutocracy president-puppet (and his apologists on TV) to judge whether, say, Lumad leaders, for instance, ought to be executed with impunity (as they seem to have been under the Aquino government) just because they seem to interfere with the national policy on making work for miners and keeping investment ratings high. . . . [S/-I]

photo of Lumad protesters borrowed from http://www.rappler.com/nation/104433-school-head-lumad-leaders-killed-surigao-del-sur

Diktats, Laws, and the People's Representative

AND why all this trembling around an imagined dictatorship under the presidency of one candidate with a perceived political will and a disgusted mouth against narcopolitics, criminal syndicates, and elitist governance? It seems we have lost our talent to verify meaning in our own use of words, so much so that even that candidate uses that word in the same light.

photo borrowed from http://www.philstar.com/headlines/2015/11/22/1524725/dutertes-presidential-bid-now-table

     Dictatorship. A condition where one cannot move freely or progress to other desired outcomes due to stifling diktats. As if that can only occur under martial law or a police state.
     Dictatorships are created not solely by a giver of diktats but by the reception of them as well. And diktats need not come in the form of commands under threat of a gun bullet wound.

IN all past regimes including the present, there has always been a dictatorship of legalism we hardly ever noticed. The stifling of the citizenry's freedom by laws that do not serve the people and serve the leaders or managers more or solely, the reason precisely why they would remain untouched by legislation, is already a diktat by itself against which we find ourselves helpless. All we could do face to face with them is rally for change, and when the judiciary area of government happens to side with the side of the people the managers would always find a way to go around the text of the new judicial law by the sheer genius of their legalism.
     The mother of this dictatorship is actually simple to see. Since the start of this century, we have actually been suffering from the dictatorship of the laws of representative democracy that have limited the people's voice to their right to vote for political stars alone, stars who will then decide for us and our lives every step of the way during their term according to the laws of the representative-democratic system. We have been disallowed from voting on laws and policies, by diktat of the law of the land, as against what other parts of the world with direct democracy instruments offer.
     Dictatorship is also coursed through enforced laws, not through appearances or tough talk. We have forgotten to look at the dictatorship of our present laws, the reason why we seem to believe there is no dictatorship in the present as you read this.
     Well, remember this. The next time a government official gives you the alibi that certain things could not have immediate solutions or cannot be changed or are slow to change because of certain laws and procedures that we have to follow, even while that official has legislators under his control for being with his ruling party, you can be sure that he is serving you nothing less than a platter of dictatorship.
     Never mind the pork barrel that can change names under the genius of legalism. Never mind all the public information that cannot be viewed through a law we've been clamoring for, since all we can really do in a purely representative democracy is clamor to our legislators. Never mind an "anti-epal" law that can go no farther than be a short-term soundbite from the attention-seeking proclivity of some politician's lip service. The management of the laglag-bala scam alone that we the people could only be helpless against, except perhaps with the aid of a new airport cellophane industry that wraps our luggage with the only possible medium of trust for now, is already quite a manifestation of the sort of dictatorship of inutile or uncaring governance that we've continued to suffer even under the present regime of Benigno Aquino III.
     We haven't even started to talk yet about the traffic problem on EdlSA that Mar Araneta Roxas has told us to accept as a byproduct of progress, or the dismissal and replacement of maintenance companies for deteriorating MRT 3 the selection of which has been deemed a prerogative of Department of Transportation secretary Jun Aguinaldo Abaya, or the failure to distribute sacks of relief for Typhoon Haiyan's victims that we could only gawk at in disbelief, all of which have been managed by the texts for legalist diktats that we could do nothing against except grumble on the spaces offered by cathartic social media. We haven't even started to talk yet about the Lumads' displacement from their lands that are now inhabited by Armed Forces of the Philippines-defended paramilitary groups servicing in turn multinational mining interests. All defended by the diktat of press secretaries' and apologist Winnie Monsod's words that we can only swallow without question or with silence.
 
THE Aquino sort of legalist dictatorship did not come to exist because of Aquino alone. It exists because we collectively chose and continue to choose to accept it and its words. Or could do nothing but accept it and its words, because of the enforcement of laws via the legalist use of them.
     And so it'll be the same henceforward. The dictatorship of any future president will happen when we accept its words the way we accepted Aquino's. And the only way that acceptance could be good is if that dictatorship serves diktats against our corporate enemies and oppressors alone and none against us, serving the will of the people thus, even if still only via one's socialist representation. [S/I]

Does it take Transparency and Vigilance, for them to tango?

YELPED and whispered all over town are these recent interesting news about some/many administration people’s growing enthusiasm for the sudden bright idea of trying to quickly change the charter, better known in the media under the appellative of Charter Change (or Cha-Cha).

     The goal, unabashedly intimated, is to give the President a chance to run for a second term, currently an unconstitutional undertaking.

Photo borrowed from rappler.com

     Incidentally, there are also these two interlinked announced upcoming events. One is the August 23 multi-sector “people’s congress” in Cebu City backed by the Catholic Church that hopes to launch on the same day the People’s Initiative Against the Pork Barrel (or PIAP), an initiative that would criminalize pork barrel fund creation and spending (and render as suspect certain items in the current budget plan for 2015). Then there’s the August 25-scheduled rally against the continuing pork barrel system (this will likewise commemorate the Million People March, one year to this day, as well as formally bring the PIAP signature campaign to Luzon).

     The initiative is a product of the awakened awareness in the Filipino psyche of the people’s right and privilege to be participants in government care of that long-hidden direct democracy instrument lurking behind Article XVII, Section 2, of the Constitution, which instrument was enabled by Republic Act 6735 (The Initiative and Referendum Act of 1987-1989) that had likewise hitherto been a sleeping/unused law.

     By this awakened direct-democratic awareness, therefore, some quarters fear that the charter change being cooked by the Aquino government will also be used to totally overhaul the 1987 Constitution, which could possibly result in the removal of the direct-democracy clause that the political elite in Congress will presumably do anything to be rid of to consequently keep its grip on discretionary or confidential funds and keep the people and the Supreme Court (which recently rendered such funds as unconstitutional) out of the picture and the ball game.

     But, should that happen, … well, …  wouldn’t the Marxists triumph and feel vindicated in their belief that only armed struggle and subversion can truly wrest abuse away from the management of the political elite and place justice in the hands of the people? They’d say, “see? We told you so. Since the political elite will never ever allow the people to muster power for change, a change that the political elite in our fake democracy fears will tear their access to privileges upon the country’s coffers away from them, the only way to achieve change then is by subverting their respective existences. Direct democracy, or true democracy (demos people, kratos power), will never be allowed to happen by the sublime royal class that rules our, actually, plutocratic state.”

STILL and all, I remain armed (not with a gun, but) with the hope that there are still ruling-party elements today who, 1.) in their hearts, would want to be true to their Liberal tag as social liberals and, 2.) in spirit, would opt to be placed an ocean away from their neoliberal, corporate liberal, interest-group liberal and limousine liberal peers, and therefore might perhaps to remember that RA 6735 used to be not an anti-Noynoy Aquino administration vehicle but a Liberal Party cause (after all, it was co-authored by that late LP stalwart, Neptali Gonzales, wasn’t it?). In short, they just might rally for more social liberal influence in the process of governance at Malacañang as this governance develops in the ticking present. Leni Robredo, for one, is an advocate of participatory budgeting and participatory democracy, albeit her bill on this issue is absent the Porto Alegre model’s requirement of electing the municipal district delegates. (The Porto Alegre participatory budgeting model with elected, instead of merely appointed by someone or by some committee, delegates is crucial to avoiding participatory budgeting’s being used again as just another Janet Lim-Napoles-scam-like instrument for the corrupt among the political elite. A frown on the absence of that requirement was made manifest upon the curious program of DILG Secretary and presidential aspirant Mar Roxas, which was porkishly called Grassroots Participatory Budgeting Process, when the existence of that “process” of disbursing lump sums started to be known in the media). Robredo, however, is also an advocate of open government, and would thus be logically open to such amendments as we implied above to her participatory budgeting bill.

     Isn’t it ironic that one of the lawyers defending the impeached Chief Justice Renato Corona during his trial, Jose M. Roy III, is now one of the voices rallying—behind former Chief Justice Reynato Puno—for the necessity and timely triumph of the people’s empowerment through the People’s Initiative instrument? Ironic, in the sense that he was then defending a Justice believed by many to be a puppet of the former Macapagal-Arroyo royalist gang but now seems to have the people as his pro bono client, whilst the Liberal Party of President Aquino’s allegedly anti-corruption “Straight Path” governance is now being accused by the people of scattering an abundance of pork barrels (for his political elite base) as well as of rigging biddings and protecting tax evading companies that supported the party’s campaign.

     But let’s go back to the ruling-party social liberals (Neptali Gonzales’ ideological children) currently trying to maintain influence in the Liberal Party against the influence of their corporate-liberal mates. And I’d say, should charter change win the day anytime this year and any amount of Million People Marches gets frustrated and produces nothing, then perhaps all that the social liberal faction in that ruling party can do (with the people behind them) is offer the following title and articles for incorporation into the new charter to counter the corporate liberals’ likely wish to remove the people’s initiative clause in the presently-existing constitution. The title and articles below are adaptations of a title and articles from the Swiss Constitution, which some would protest against for being Swiss, but must everything in our Constitution be copied from the texts of American political elitism and plutocratic accommodation? The text are from admin.ch, with my adaptations for possible Philippine use:

Title 4: The People and the Regions

Chapter 1: General Provisions

Art. 136 Political rights

1 All Filipino citizens over the age of eighteen, unless they lack legal capacity due to mental illness or mental incapacity, have political rights in national matters. All citizens have the same political rights and duties.

2 They may participate in elections to the National Parliament and in national popular votes, and launch or sign popular initiatives and requests for referendums in national matters.

Art. 137 Political parties

The political parties shall contribute to forming the opinion and will of the People.

Chapter 2: Initiative and Referendum

Art. 138 Popular initiative requesting the complete revision of the Constitution

1 Any 1,250,000 persons eligible to vote may within 18 months of the official publication of their initiative propose a complete revision of the Constitution.

2 This proposal must be submitted to a vote of the People.

Art. 139 Popular initiative requesting a partial revision of the Constitution in specific terms

1 Any 1,250,000 persons eligible to vote may within 18 months of the official publication of their initiative request a partial revision of the Constitution.

2 A popular initiative for the partial revision of the Constitution may take the form of a general proposal or of a specific draft of the provisions proposed.

3 If the initiative fails to comply with the requirements of consistency of form, and of subject matter, or if it infringes mandatory provisions of international law, the National Parliament shall declare it to be invalid in whole or in part.

4 If the National Parliament is in agreement with an initiative in the form of a general proposal, it shall draft the partial revision on the basis of the initiative and submit it to the vote of the People and the Regions. If the National Parliament rejects the initiative, it shall submit it to a vote of the People; the People shall decide whether the initiative should be adopted. If they vote in favour, the National Parliament shall draft the corresponding bill.

5 An initiative in the form of a specific draft shall be submitted to the vote of the People and the Regions. The National Parliament shall recommend whether the initiative should be adopted or rejected. It may submit a counter-proposal to the initiative.

Art. 139a…

Art. 139b Procedure applicable to an initiative and counter-proposal

1 The People vote on the initiative and the counter-proposal at the same time.

2 The People may vote in favour of both proposals. In response to the third question, they may indicate the proposal that they prefer if both are accepted.

3 If in response to the third question one proposal to amend the Constitution receives more votes from the People and the other more votes from the Regions, the proposal that comes into force is that which achieves the higher sum if the percentage of votes of the People and the percentage of votes of the Regions in the third question are added together.

Art. 140 Mandatory referendum

1 The following must be put to the vote of the People and the Regions:

a. amendments to the Constitution;

b. accession to organisations for collective security or to supranational communities;

c. emergency national acts that are not based on a provision of the Constitution and whose term of validity exceeds one year; such national acts must be put to the vote within one year of being passed by the National Parliament.

2 The following are submitted to a vote of the People:

a. popular initiatives for a complete revision of the Constitution;

b. popular initiatives for a partial revision of the Constitution in the form of a general proposal that have been rejected by the National Parliament;

c. the question of whether a complete revision of the Constitution should be carried out, in the event that there is disagreement between the Parliamentarians.

Art. 141 Optional referendum

1 If within 100 days of the official publication of the enactment any 700,000 persons eligible to vote or any of the Regions request it, the following shall be submitted to a vote of the People:

a. national acts;

b. emergency national acts whose term of validity exceeds one year;

c. national decrees, provided the Constitution or an act so requires;

d. international treaties that:

1. are of unlimited duration and may not be terminated;

2. provide for accession to an international organisation;

3. contain important legislative provisions or whose implementation requires the enactment of national legislation.

2 ...

Art. 141 Implementation of international treaties

1 If the decision on ratification of an international treaty is subject to a mandatory referendum, the National Parliament may incorporate in the decision on ratification the amendments to the Constitution that provide for the implementation of the treaty.

2 If the decision on ratification of an international treaty is subject to an optional referendum, the National Parliament may incorporate in the decision on ratification the amendments to the law that provide for the implementation of the treaty.

Art. 142 Required majorities

1 Proposals that are submitted to the vote of the People are accepted if a majority of those who vote approve them.

2 Proposals that are submitted to the vote of the People and Regions are accepted if a majority of those who vote and a majority of the Regions approve them.

3 The result of a popular vote in a Region determines the vote of the Region.

NOW, certainly there are parts of the 1987 Philippine Constitution’s Article XVII, Section 2, that could be incorporated here, where they don’t conflict with what is here.

     Obviously, also, Republic Act 6735 will henceforth need some rewriting to adapt it to the above constitutional requirements and terms, and perhaps even partly incorporated here.

     But, there you go. That’s my piece. I’ve been transparent with my Cha-Cha dreams, and, now, how I wish the Aquino government will likewise publish somewhere its proposals for its Cha-Cha dreams in their transparent totality. . . .

     But, of course, I’d totally understand if this now-only-arguably-“liberal” Aquino administration faction opts to continue to be secretive about it. I would totally, totally understand if it does. Wouldn’t you? [END]

Of Someone Saying There's A Hole In BIR Commissioner Kim Henares' Bread

photo borrowed from http://kensanph.wordpress.com/2013/12/18/an-open-letter-to-bir-comm-kim-henares/comment-page-1/

I.

AT THE START of President Benigno Aquino III’s term, it was made clear through not a few media reports that the Aquino administration, supposedly social liberal and therefore likely intent on a flurry of social spending, would be serious about its tax collection and, through several charges soon filed in the courts (including a later famous lien against a world-renowned boxer-congressman), would be just as serious about its campaign against tax evasion, willful and not.

     Newly-appointed to the Bureau of Internal Revenue helm, Commissioner Kim Henares was portrayed in the media as that no-nonsense lady collector with both a hardened legal view and a Mona Lisa smile, concerned about equality in implementing the (equitable) tax laws of the land. Her image got so familiar that workers looking at their pay slips every fifteenth and thirtieth of the month would refer to her as “Sakim (Tagalog for greedy) Henares”, while professionals (most recently doctors) who were asked through a TV and newspaper campaign to file the right amount of taxes due society called her “Kim Henarrassment”. Meanwhile, those who understood the government’s wisdom about equality applauded her, according her almost-personal campaign the same height of appreciation they once gave the President’s “no to the elite’s wang-wangs on our roads” campaign. Social liberal, too, the BIR’s stance under the Aquino government has seemed, which Aquino stance also showed in the government’s earlier and ongoing series of investigations on fund embezzlement and/or inappropriate appropriations involving past or opposition government personalities.

     Social liberal and for equality? Perhaps.

     Well, not so fast, says a BIR examiner who recently filed a case with the Ombudsman against Henares and her deputy. In fact, the examiner says Henares’ and the government’s media image promoting equality in taxation has proved to be bogus from the git-go. He should know, he says, he’s looked the bogus tiger in the eye. The current government has been as selective in its hardened BIR stance, he says, in the same way it has been perceived as selective when it displayed a soft bearing towards the multi-million peso bonuses for SSS executives that irked SSS members dissatisfied with SSS service or when it defended the valid role of congress people in the allocation of executive DAP funds (as if, for a long hour there, it forgot social liberalism’s disdain for pork barrel politics).

     On May 5 of this year, Representative Magtanggol Gunigundo I (Lakas Kampi CMD-Valenzuela City) made a privilege speech treating of the examiner’s data. According to the examiner, the congressman’s speech “emphasized fair and reasonable enforcement and implementation of revenue laws” and stated that “taxation is in good exercise when it is equitable; i.e., if burden falls on those better able to pay and not on the poor.” The congressional record on this speech further shows that the congressman censured the present leadership of Commissioner Kim Henares for promulgating stiff tax rules on marginalized income earners (farmers, small retail store owners, and tricycle operators)—rules which he says fail to take note of MIEs’ tax exemption by the Barangay Micro-Business Enterprises Law—while appearing to have allowed a large taxpayer, Golden Donuts (licensee and sub-franchiser of Dunkin’ Donuts), to get away with non-payment of P1.56 billion in tax arrears for the year 2007 alone.

     In news reports (read this one here, for instance), Henares said she actually ordered a re-investigation that proved the examiner’s findings to be bloated. The examiner, Othello Dalanon (whose friend E- asked me to allow an interview with the man and accommodate a longer treatment of the case on the blogosphere), maintains that the re-assessment that Henares ordered actually still came up with a fat unpaid amount, the very same P1.56 billion he mentions as the amount that the social liberal government of President Aquino (and its social spending needs), and the people, have been grossly robbed of.

     Dalanon’s beef with Henares’ inaction towards the doughnut company, which was actually the beef the Lakas Kampi CMD representative from Valenzuela was citing in his privilege speech, is actually a tax case that goes back to 2007, concerning Golden Donuts, Inc. (GDI), the exclusive Philippine franchisee of the global brand “Dunkin’ Donuts”, which was “slapped with a tax assessment amounting to P1.56 billion, including increments, that arose from irregularities discovered and documented by me,” said the examiner. Dalanon only ran into this because he was assigned to the case in his official capacity as a former BIR examiner. It was only when an alleged inaction on the case by the current leadership became too obvious, way after the same (but more understandable?) inaction by the Arroyo-era leadership in the bureau, that Dalanon saw the need to promptly resign, purportedly to protect his person’s position from whatever action the bureau may now want to inflict on it. It must also be noted that Dalanon, as per his claim, first wrote to the Office of the President and then saw ruling-party members before he decided to show opposition figures like Rep. Gunigundo his data. It was only Gunigundo who showed interest in his case, while Senator Sonny Angara seemed more interested in Dalanon's views about a lowered VAT rate (Dalanon is also a campaigner for a lowered VAT).

     In his report to the government personalities he approached, Dalanon decried the commissioner’s “intentional failure” to either 1) enforce collection of the said assessment “despite the ensuing finality of the same,” or 2) sue the doughnut company for tax evasion (for under-declaring revenues in its tax return). Dalanon then filed a case against Henares and her deputy with the Office of the Ombudsman.

     Here is Dalanon’s story:

According to him, his assessment has remained undisturbed after rigid scrutiny by high-ranking tax experts in the district involved (RDO 41, Mandaluyong) and from various regional levels of the bureau. The assessment has been covered by a Formal Letter of Demand (FLD) and by Final Assessment Notices (FANs), all bearing Demand No. 41-B072-07 and all dated October 29, 2010, issued and approved by the Regional Director of Revenue Region No. 7, Quezon City. According to Dalanon, his assessment findings are merely the resultant of the following manifestations of irregularities:

1.    GDI has two (2) sets of books of accounts. One is the duly-registered hardbound computer-generated books of accounts which were the bases of his assessment. The other is the unregistered “manually-posted from original books of accounts” records which GDI claimed to be the bases of its Trial Balance for Financial Statements and Income Tax Return Purposes.

Dalanon notes that keeping two (2) or more sets of books of accounts is already a fraudulent act or criminal tax violation.

2.    GDI reflected false information in the company’s tax return. The CD and duly-registered books of accounts (hardbound computer-generated), as duly validated by Dalanon, showed a net taxable income amounting to P135.2 million while the Annual Income Tax Return (AITR) reflected a net loss of P44.9 million.

Again, Dalanon notes that reflecting false information on one’s tax return is already a fraudulent act or criminal tax violation.

3.    GDI’s CD and duly-registered books showed higher sales than those reflected in the company’s tax return. Sales per CD and duly-registered books was P1.928 billion while the amount reflected in the AITR was P1.031 billion, or a substantial under-declaration amounting to P897 million.

Dalanon points to the Supreme Court ruling in the case of Paper Industries Corporation of the Philippines vs. Court of Appeals, et al., 250 SCRA 434, which states that “where the books of accounts reflected a sales or receipts higher than that reflected in the return, the books of accounts should prevail. This is so, because the books of accounts are kept by the taxpayer and are prepared under its control and supervision; and they reflected what may be deemed to be admissions against interest.” The representations made by GDI in the duly-registered hardbound computer-generated books of accounts as presented by it to the BIR for audit and examination, says Dalanon, "amounted to admissions against interest which it cannot disown and change at its convenience or pleasure."

Again, Dalanon emphasizes that substantial under-declaration of sales or revenues in a company’s tax return is already a fraudulent act or criminal tax violation.

4.    Other independent relevant documents, such as, but not limited to, Franchise Agreement, Technical Service Agreement, Final Withholding Tax Remittance Returns, and VAT returns, submitted by GDI to the Bureau for audit, further revealed that GDI’s sales topped P2.366 billion while the amount recorded in its duly-registered books was just P1.928 billion; or a substantial unrecorded and undeclared sales amounting to P438 million.

Again, Dalanon emphasizes that the non-recording of sales in the duly-registered books and consequent non-declaration of the same in the AITR already constitute fraudulent acts or criminal tax violations.

     It was these irregularities, and other discrepancies enumerated in his memorandum and audit reports, that culminated in the company’s aforesaid tax deficit, says Dalanon.

     Dalanon claims that he personally reported the case to Commissioner Henares and recommended to her the criminal prosecution for tax evasion of the company under the much-vaunted RATE (Run After Tax Evaders) program of the bureau and the Aquino government. But “despite sufficient mathematical computations duly supported by pieces of physical evidence to demonstrate the omissions,” he says Henares “intentionally did not pursue a tax evasion case against the company,” because the said company’s stockholder-secretary, Ms. Marixi Prieto, who also happens to be the president of the Philippine Daily Inquirer (PDI), supposedly “talked to Henares and BIR Regional Director Nestor Valeroso on different occasions, both of whom then extended leniency to the taxpayer in view of Ms. Prieto’s closeness to President Benigno Aquino III,” this ostensibly according to Deputy Commissioner Estela Sales. [Prieto is also the mother of the wife of Benguet Corporation president and CEO Philip Romualdez, who is son to the former Ambassador to the US, China and Saudi Arabia and brother of Imelda Marcos, Benjamin "Kokoy" Romualdez; Philip is also brother to Rep. Ferdinand Martin Romualdez].

     In a broadcast interview with Henares by GMA 7′s news reporter Susan Enriquez on February 28, 2014, Henares publicly declared Dalanon’s assessment as faulty and told Enriquez that she had ordered two re-investigations that found this to be true (she claimed that the re-investigations arrived at identical results, and both had the same conclusion: Dalanon’s assessment was inaccurate). Dalanon, however, says he was not given the chance to rebut the commissioner’s testimony.

     Fortunately for him, the March 4, 2014 Manila Times column of Emeterio Sd. Perez titled “Why is Henares not pursuing a tax evasion case vs. donut seller?” did “take up the cudgel for Othello Dalanon.” The column opines that Henares was “entirely wrong” in publicly declaring Dalanon’s assessment incorrect, “instead of waiting for GDI to question Dalanon’s findings before the Court of Tax Appeals.”

     “'Pinaimbestigahan natin ng ilang beses, at sa mga imbestigasyon na yan, lumalabas na hindi naman tama yung assessment ni Mr. Othello [Dalanon]', Henares said.” – this was from the report written by Elizabeth Marcelo/JDS, GMA News

     Well, Dalanon himself has questions to ask:

     Why was his assessment not given a chance by the commissioner to stand in a judicial scrutiny before it was publicly announced as flawed?

     If his assessment was wrong, what was the correct assessment for Henares? Why did she not clearly disclose the same in public? Where are the reports of those re-investigations that showed identical results? And how much was collected for the government’s coffer? Less than P4 million?—he further asks.

     Is the commissioner’s act not an expression of “tendering” for GDI, a potential tax evader company?

     Dalanon wanted to know the answers then, he still would like to know the answers now.

     And while the BIR promulgates its tax rules on marginalized income earners (MIEs) and has been quite active in “hastily” prosecuting other alleged tax cheats (the case against Zoren Legaspi, for instance), she seems to fear or appears to be coddling Dunkin’ Donuts’ local seller, Dalanon says.

II.

Dalanon’s assessment against Golden Donuts, Inc. obtained finality.

     Commissioner Henares’s statement claiming that the authority to decide and declare finality of a certain assessment is a function vested by law upon the Commissioner of Internal Revenue is wrong, Dalanon says. Though not a lawyer, he says he knows that only the law can determine the finality of an assessment.

     He cites Section 228 of the 1997 National Internal Revenue Code (1997 NIRC), as amended, in relation to Revenue Regulations (RR) No. 12-99 as amended by RR No. 18-2013 and as clarified under Revenue Memorandum Circular No. 11-2014, which provides that assessment becomes final, executory and demandable in the following instances:

1.    If taxpayer failed to file a valid protest against the Formal Letter of Demand (FLD) and Final Assessment Notice (FAN) within thirty (30) days from date of receipt of the FLD/FAN.

The taxpayer may file a protest against the FLD/FAN through a request for reconsideration or re-investigation. He must state the facts, the applicable laws, rules and regulations or jurisprudence on which his protest is based; otherwise, the protest shall be considered void and without force and effect. If taxpayer failed to file a valid protest, assessment shall become final, executory and demandable.

On November 30, 2010, GDI filed its letter of protest vs. the FLD/FAN. However, Dalanon says it did not state the facts, the applicable laws, rules and regulations or jurisprudence on which its protest was based. The protest merely stated “adopt in toto the arguments, explanation and supporting documents as set forth in our letter protest to the PAN (Preliminary Assessment Notice) dated October 14, 2010.″ It also failed to specifically state whether the protest was a plea for reconsideration or re-investigation. It merely requested the cancellation and withdrawal of the assessment on the grounds that the same had no factual and legal bases.

Dalanon says that the Court of Tax Appeals, in the case of Security Bank Corporation vs. Commissioner of Internal Revenue (CTA Case No. 6564, November 28, 2006), emphasized that “a protest to the preliminary assessment notice is not the same as the protest required to be filed as an answer to the final assessment notice. In fact, a preliminary assessment notice may or may not even be protested to by the taxpayer, and the fact of non-protest shall not in any way make the preliminary assessment notice final and un-appealable. What is clear from Section 319-A of the Tax Code of 1977, as amended, is that failure on the part of the taxpayer to protest or reply to a preliminary assessment notice paves the way for the issuance of a final assessment notice. However, evident under the said Section is that failure on the part of the taxpayer to file a valid administrative protest through a request for reconsideration or reinvestigation on the final assessment notice, shall result in the finality of the said FAN.” Underscoring supplied by Dalanon.

Again, what the law demands is a valid protest against the final assessment notice; otherwise, the assessment becomes final, executory and demandable.

2.    If the taxpayer failed to submit all relevant documents in support of his protest within sixty (60) days from date of filing of his letter of protest.

As mentioned above, it was on November 30, 2010 when GDI filed its letter of protest against the FLD/FAN. The 60-day period within which it could submit all relevant documents in support of its protest ended on January 29, 2011. It submitted the documents only on March 24, 2011. When it submitted the required documents in support of its protest, 114 days after the date of the filing of its protest had elapsed, not to mention the fact that said documents contained the same information as that already contained in its letter dated November 27, 2009 which were already taken up in the Adjusted Final Audit Findings sent to GDI covered by the Post-Reporting Notice dated July 19, 2010 which became the bases of the PAN and FLD/FANs.

     Furthermore, Dalanon says that notwithstanding the ensuing finality of his assessment, Commissioner Henares “intentionally failed” to enforce collection, and instead ordered two re-investigations.

     “…nang aming tanungin si Henares x x x nagreklamo daw kasi ang kinatawan ng GDI na mali ang assessment sa kanila ni Dalanon kaya pinareview niya ito ng dalawang beses. Ang resulta, mali nga raw ang ginawang assessment ni Dalanon” – that’s Susan Enriquez reporting for GMA News.

     Again, as per report of Elizabeth Marcelo/JDS, GMA News: “Pinaimbestigahan natin ng ilang beses, at sa mga imbestigasyon na yan, lumalabas na hindi naman tama yung assessment ni Mr. Othello [Dalanon], Henares said.”

     “Is there a law that authorizes the commissioner to order two re-investigations of a due and demandable assessment?”—Dalanon asks.

     Clearly, he says, “while the law grants the taxpayer the opportunity to protest the FLD/FAN, such must be a valid protest, otherwise the assessment becomes final, executory and demandable, and the right of the government to collect the deficiency tax becomes absolute and, thus, precludes the taxpayer from questioning the correctness of the assessment and from raising any justification or defense that would pave the way for a re-investigation.”

III.

Again, here are the arguments:

     To Dalanon this is Issue One—GDI’s CD and duly-registered books of accounts (hardbound computer-generated) showed sales amounting to P1.928 billion, while its AITR showed only P1.031 billion, or a substantial under-declaration amounting to P897 million.

     GDI’s contentions go thus—the CD and duly-registered books of accounts (hardbound computer-generated) contained more than 2,500 errors posted in 84 accounts and, thus, should not be the bases for Dalanon’s assessment. Furthermore, we have “manually-posted from original books of accounts” records which were the bases of our Trial Balance for Financial Statements and Income Tax Return Purposes.

     Dalanon’s points include the following:

1.    “GDI’s CD and duly-registered books of accounts (hardbound computer-generated) already contained GDI’s external auditors’ adjustments. It means that said financial records were already audited by GDI’s external auditors.”

2.    “The differences or discrepancies between the sales accounts reflected in the CD and duly-registered books of accounts on one hand and the AITR on the other were not reflected by GDI’s external auditors as adjusting or correcting entries in the said financial records.”

3.    “With the more than 2,500 errors posted in 84 accounts contained in the said financial records as GDI claimed, it is unfeasible and amazing that GDI—which belongs to the high-profile business in the Philippine industry, with its highly competent accounting and auditing workforce, and with the supervisors, the tax managers, the external auditors, and the reputable independent public auditors that GDI hired to conduct quarterly reviews of its financial records—would not notice such remarkable and significant errors.”

4.    “The 84 accounts reflected in financial records that allegedly contained errors are all nominal accounts (i.e., income and expense accounts). GDI did not claim that the real accounts (i.e., balance sheet) reflected in the said financial records contained errors. Thus, let us determine sales based on a real account that is associated with sales account.

“VAT Payable is a real account that is associated with sales account. Using this account, sales can be determined as follows:

VAT Payable account total credit per duly-registered books	P      227,263,254.33
Divide by VAT rate	12%
Sales per duly-registered books with VAT components	1,893,860,452.75
Add: Sales per General Journal without VAT components	34,511,326.03
Sales based on VAT Payable account	P   1,928,371,778.78

“It may be noted that even if sales is computed based on VAT Payable account, it would result in the amount of P1.928 billion. This proves that sales reflected per CD and duly-registered books do not contain errors, contrary to GDI’s claim.”

5.    “According to the Supreme Court, the books of accounts prevail over the return when they reflect higher sales, because they are kept and prepared under control and supervision by the taxpayer and, thus, are admissions against interest.”

Then here’s Issue Two—GDI’s sales topped P2.366 billion based on other independent relevant documents; but the amount recorded in the CD and duly-registered books was only P1.928 billion, or a substantial unrecorded and undeclared sales amounting to P438 million.

     Here are the facts supplied by Dalanon—GDI is the exclusive Philippine franchisee of Dunkin’ Donuts of America, Inc. (DDA). As such, it grants sub-franchise rights to various domestic entities nationwide. It has 642 outlets (shops) all over the country, 54 of which are directly-owned by GDI, with the remaining 588 owned by the 35 sub-franchisees under GDI’s supervision. GDI maintains a shop: central warehouse (commissary) from where all its sub-franchisees purchase on a COD basis all products, ingredients, supplies, commodity, and merchandise for their stores.

     According to Dalanon, the Franchise Agreement between GDI and DDA states, among other things, that the former shall remit to the latter a franchise fee equivalent to 1% of all sales of each shop, whether directly operated by GDI or sub-licensed to others. GDI shall be responsible for the remittance of all fees due DDA. Well, for year 2007, the franchise fee per GDI’s CD and duly-registered books (hardbound computer-generated) was P23.668 million. Said amount was claimed by GDI as its own expense.

     On the basis of these information, Dalanon computed the unrecorded and undeclared sales amounting to P438 million as follows:

Franchise fee per CD, duly-registered books and FS	P      23,668,908.00
Divide by franchise fee rate	1%
GDI’s grossed-up sales (or should be GDI’s total sales)	2,366,890,800.00
Less: Sales per CD and duly-registered books	1,928,770,398.68
Unrecorded and undeclared sales	P    438,120,401.32

     Now, take note, Dalanon says, that the method of validation he used in determining GDI’s sales was already upheld by the Court of Tax Appeals in the case of Asia Coal Corporation v. Commissioner of Internal Revenue, CTA Case No. 6803, February 13, 2008, when it stated: “the commissioner may utilize any kind of documents x x x to determine the correct sales...”

     Dalanon says he presented several mathematical computations duly supported by documentary evidence to corroborate the above computed, unrecorded, and undeclared sales.

     But here are GDI’s contentions—the Franchise Fee amounting to P23,668,908.00 is equivalent to 1% of our “system-wide sales” which refers to sales generated by our directly-owned outlets and those of our sub-franchisees’, excluding central warehouse’s sales. Also, our central warehouse’s (commissary’s) sales of products to the sub-franchisees are not covered by the 1% franchise fee.

     But let us first determine the shops which GDI directly and indirectly operates, Dalanon says.

     As mentioned above, GDI has 642 outlets all over the country, 54 of which are directly-owned by the company, with the remaining 588 owned by the 35 sub-franchisees under GDI’s supervision. Again, GDI maintains a shop: a central warehouse or commissary from where all its sub-franchisees purchase all their products.

     So, GDI’s directly-owned shops would include: (1) the central warehouse or commissary; and (2) the 54 directly-owned outlets. Its indirectly-owned shops are the 588 outlets owned by the 35 sub-franchisees which are merely under GDI’s supervision.

     Now to Dalanon’s stand:

1.    “The franchise fee amounting to P23.668 million is equivalent to 1% of GDI’s sales alone, such as sales generated by the central warehouse and the 54 directly-owned outlets.”

2.    “There is no specific condition in the License Agreement between GDI and DDA that says sales of central warehouse to the sub-franchisees are not covered by the 1% franchise fee.”

3.    “Is not GDI’s central warehouse a shop which it also operates? Are not the purchases by the sub-franchisees from the central warehouse also sales of GDI?”

4.    “Why did GDI claim the entire amount of P23.668 million as its own expense? The fact that it claimed the entire amount as its expense indicates that the same is equivalent to 1% of GDI’s sales alone.”

5.    “Why did GDI claim the whole amount of P2,840,123.69 representing VAT (Input Tax) on Franchise Fee as tax credit against Output Tax? The fact that GDI claimed said amount as tax credit against its output tax indicates that the franchise fee amounting to P23.668 million pertains to 1% of GDI’s sales alone.”

6.    “GDI is only responsible for the remittance of the franchise fee supposed to be remitted by its sub-franchisees to DDA. Instead of the sub-franchisees remitting directly to DDA, the amount is coursed through GDI and would not, in all aspect, form part of GDI’s expense.”

     Again, according to Dalanon, there are several mathematical computations duly supported by pieces of documentary evidence that would prove his findings.

     “So, where did I err when my audit findings were based on facts taken from financial records which GDI itself submitted and presented to the bureau for audit and examination? Furthermore, I clearly cited the applicable laws, rules and regulations or jurisprudence on which my findings were based,” Dalanon asks.

     He adds: “Why is BIR Commissioner Kim S. Jacinto-Henares, whom I expected to support my audit findings, which remained undisturbed after stiff scrutiny by high-ranking tax experts of the bureau, lawyering for GDI? Is this the straight path policy, the “daang matuwid,” of the Commissioner?”

     To Dalanon, the 2007 deficiency tax assessment against GDI amounting to P1,564,426,808.08 is final, executory, and demandable and already legally belongs to the Filipino people.

     On March 17, 2014, Othello Dalanon filed a formal complaint before the Office of the Ombudsman against Commissioner Henares and Deputy Commissioner Sales for grave misconduct, gross neglect of duty, and violation of Section 3(e) and (f) of Republic Act No. 3019, Section 269 paragraphs “e” and “h” of the National Internal Revenue Code, and other special laws.

     On the same date, he sent a letter of appeal to His Excellency President Benigno Simeon C. Aquino III, requesting the President’s office to enjoin their subordinates in the BIR to collect the subject of his (Dalanon’s) deficiency tax assessment as it already legally belongs to the Filipino people.

     Dalanon, an ex-seminarian, has also been reverently appealing to the Filipino people’s devotion to God and country to help bring that request to the President’s attention, which might then result in his directing BIR Commissioner Kim S. Jacinto-Henares to enforce the collection of the subject arrears. . . . [JSV]

(This blog column would welcome the Commissioner’s [or GDI's] side of the story.)

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POSTSCRIPT I: Here are additional figures –

Details of sales per CD and duly-registered books (hardbound computer-generated)—

Products	Shops/outlets	Central Warehouse	Total
Bakery	P       4,617,829.34	P                    0.00	P       4,617,829.34
Beverages	14,808,274.83	0.00	14,808,274.83
Donuts	399,306,130.23	0.00	399,306,130.23
Hot chocolates	12,124,500.69	0.00	12,124,500.69
Non-food	2,970,373.42	0.00	2,970,373.42
Others	23,214,373.10	0.00	23,214,373.10
Punch	1,079,941.12	0.00	1,079,941.12
Savory	20,259,716.75	0.00	20,259,716.75
Soft drinks	12,059,320.37	0.00	12,059,320.37
Coffee	31,239,473.89	0.00	31,239,473.89
Coffee beans	0.00	37,731,973.04	37,731,973.04
Drinks mixes	0.00	25,620,464.28	25,620,464.28
Flour mixes	0.00	1,040,179,534.53	1,040,179,534.53
Hot chocolate mix	0.00	24,467,817.55	24,467,817.55
Others	0.00	93,539,558.52	93,539,558.52
Packaging materials	0.00	179,439,948.13	179,439,948.13
Punch mixes	0.00	5,334,341.93	5,334,341.93
T-shirts	0.00	776,826.96	776,826.96
Totals	P    521,679,933.74	P 1,407,090,464.94	P1,928,770,398.68

 

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POSTSCRIPT II:

After reading the above blog, ePIRMA committee member Dexter Briñas Amoroso messaged me to write the following:

"Ka Jojo, Mr Dalanon's case against Kim Henares and Golden Donuts is similar to the late Atty. Mar Gen's case. Remember the issue against Gloria Macapagal-Arroyo I told you before involving the owner of MegaWorld, Mr. Andrew Tan? That info actually came from Atty. Mar Gen. Ang natatandaan kong sinabi niya, ni Atty. Mar Gen, campaign financier ni Noynoy si Mr. Tan kaya hindi sinuportahan ng Noynoy administration ang kaso niya against GMA dahil sasabit daw si Mr. Tan. Hawak daw ni Atty. Mar Gen noon ang evidence (documents) na magpapatunay sa case niya against GMA and Tan, pero hindi na pinansin nung makita ang pangalan ni Tan.

"Si Atty. Mar Gen (Atty. Luis Mario General) was a former Napolcom Commissioner and Regional Director ng LTO sa Bicol.

"It was when I asked Atty. Mar Gen about campaign contributors that he messaged me about this confidential information. Below is the screen shot of that message where Atty. Mar Gen made the statement. Note that he writes 'Please do not share this info to anyone' and I promised to him not to share the info.

"But if this story is not put out there, nobody will know, and we who had access to that bit of information (albeit not the documents) would be party to the hiding. Wouldn't that put us in the same position as the Aquino government?

"I hope the family of Atty. Mar Gen would understand if they happen to read this comment of mine under your blog, if you'd care to place it as an addendum or postscript (since Blogger does not allow image upload in its comment box).

"Much thanks and keep it up, Dexter"