If it were up to me I'd grant the Bangsamoro outright independence and not mere autonomy. There has just been so much pain and injustice over the centuries. For them, Manila is an occupying power the way the rest of the Philippines saw Madrid, Washington, or Tokyo.
I'd like the peace talks to prosper just like anyone, but I can't see it happening under these circumstances. Too much bad faith. I'm also not sure if MILF are the right people to be talking with-- they have too little control over BIFF/PAGs/lost command/etc. (not to mention ASG) that a deal with them will not really end any of the hostilities (cf. MNLF 1996). It's not like MILF are the sole representative of the Bangsamoro, even if they fancy themselves to be such.
I say just let them go. Give them the vote. Give them the right to self-determination.
Showing posts with label human rights. Show all posts
Showing posts with label human rights. Show all posts
Wednesday, February 11, 2015
Monday, July 2, 2012
Why is the Catholic Church so stubborn on RH? Really?
If you know me then you know where I stand on reproductive health issues. This post is not to defend the Catholic Church's stand on artificial contraception, but to explain why she takes such a strong stance against it. I also hope to clarify some misconceptions on the Church's stance. If you wish to engage the Church on this issue you need to first understand where she's coming from and what motivates her. Maybe it will also help you evaluate the (f)utility of debating with the Church on this issue in the first place. This post is written with a lay (even irreligious) audience in mind, so I will dispense with the Bible quotes and Magisterial references.
It is no secret that the Catholic Church believes in the existence of God who created the universe. Duh. But corollary to this belief in a sentient and benevolent God is the assumption that everything He created has a purpose: nothing is random in God's creation therefore everything has to have been made for a purpose. So the Sun isn't just an amalgamation of cosmic particles brought together by gravity and heated by nuclear fusion; it was created to eventually sustain life on Earth. This belief system applies to all of creation, including the human body. Everything in the human body from the heart to the toenail you clip off has a purpose willed and designed by God. So far so good. No problem.
The problem begins when we start talking about the reproductive system. The Catholic Church believes that the reproductive system-- not just the womb and testes but also the pleasure-giving glans penis and clitoris-- have a dual purpose: to express mutual love and to procreate. The reproductive system was created to enable humans to express their mutual love for each other through sexual intercourse and to encourage procreation. Now take note of the "and". The Catholic Church's issue with contraception begins when that "and" becomes an "or". Artificial contraception, by removing any possibility of procreation, turns sexual intercourse into an exclusively love-making pleasurable affair. This, believe the Church, is contrary to God's will and purpose for creating the reproductive system.
But how about natural family planning? Or when one spouse is infertile due to natural causes or a needed medical operation (e.g., hysterectomy due to a tumour)? Won't sexual intercourse in those situations be divorced from the procreation purpose too, and therefore against God's will? Well, no. Natural family planning, by virtue of being natural, is part of God's plan: in God's wisdom He recognised the need for families to plan and space their offspring, but also recognised the need for spouses to make love, so He provided windows of opportunity to make love while vastly minimising the chance of conception. As for infertility due to natural causes or a needed medical operation, well, God had reasons for giving someone that affliction, and it definitely wasn't His intention to prevent spouses from expressing their love for each other. So in these cases any dichotomy between love-making and procreation was not man's will but God's, which is fine for the Church.
So the Church's real problem with artificial contraception is that man is divorcing love-making with procreation. In the case of artificial contraception, man wants the love-making part while eliminating the procreation part. Note that the same problem arises when man wants the procreation part while eliminating the love-making part, thus the Church's similar opposition to in-vitro fertilisation. Man cannot, should not, separate the expression of mutual love from the possibility of procreation. God can do it, but not man.
It is thus easy to see why no amount of medical, social, economic, democratic, etc. arguments or evidence will change the Church's position on artificial contraception-- they all pale in comparison to God's will and purpose for creating the reproductive system. Practical circumstances may mitigate the gravity of going against God's will through the use of artificial contraception (or in-vitro fertilisation, for that matter), but it is a sin nonetheless and bishops will be remiss in their duty if they tolerate it. So changing their stance on artificial contraception will require a change in their understanding of God's purpose for creating the reproductive system. It hasn't changed in 2,000 years, so it is quite unlikely that it will change any time soon.
Tuesday, August 5, 2008
Don't bring your laptops to the US
Or any electronic storage device, for that matter. Read the whole story here (c/o the Daily Mail). Chek out the lead of the story:
Travellers to the U.S. could have their laptops and other electronic devices seized at the airport under new anti-terror measures.
Federal agents have been granted powers to take such devices and hold them as long as they like.
They do not even need grounds to suspect wrongdoing.
Now, I understand the need to secure the borders and ensure the safety of the public, but this is just crazy. It's one thing to check your bags for explosives or contraband, but to rummage through your email and personal files? Without even having to show probable cause? By comparing a laptop to a suitcase, they are practically saying that certain thoughts, ideas, and knowledge are considered contraband and, thus, actionable.
Guantanamo. Waterboarding. Extraordinary rendition. Warrantless electronic surveillance. Now this. After one terrorist attack these Americans are so ready to give up their rights and forget everything their founding fathers stood for. Not even Israel at the height of the Palestinian intifada, or Britain at the height of the IRA threat, or Spain at the height of the Basque separatist movement, resorted to such draconian measures.
I was in America when 9/11 happened, and I do understand where they are coming from. But this is just wrong. Very wrong.
As Benjamin Franklin so famously wrote, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Travellers to the U.S. could have their laptops and other electronic devices seized at the airport under new anti-terror measures.
Federal agents have been granted powers to take such devices and hold them as long as they like.
They do not even need grounds to suspect wrongdoing.
Now, I understand the need to secure the borders and ensure the safety of the public, but this is just crazy. It's one thing to check your bags for explosives or contraband, but to rummage through your email and personal files? Without even having to show probable cause? By comparing a laptop to a suitcase, they are practically saying that certain thoughts, ideas, and knowledge are considered contraband and, thus, actionable.
Guantanamo. Waterboarding. Extraordinary rendition. Warrantless electronic surveillance. Now this. After one terrorist attack these Americans are so ready to give up their rights and forget everything their founding fathers stood for. Not even Israel at the height of the Palestinian intifada, or Britain at the height of the IRA threat, or Spain at the height of the Basque separatist movement, resorted to such draconian measures.
I was in America when 9/11 happened, and I do understand where they are coming from. But this is just wrong. Very wrong.
As Benjamin Franklin so famously wrote, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Friday, May 16, 2008
Crime and the withdrawal of human rights
By now you've probably heard about the horrendous crime that happened in Laguna. We hear about violent crime everyday and mostly we are desensitised to them, taking refuge in abstraction, anonymity, and distance. But the events in Laguna really jar the psyche-- the magnitude of violence, the cold calculation of the murderers, the everydayness of the victims.
My condolences to the families of the victims-- their cries for vengeance are understandable and, I say, justified. As for the perpetrators, they should be punished in the most painful and protracted way possible.
That said, let me discuss human rights, which I'm sure the perpetrators will seek refuge in if they are caught and found guilty. Of course the accused, who are presumed innocent, should be accorded due process and all the protection under the law. But what do we do with those who are guilty of the most violent and heinous of crimes? What basis is there to say that the death penalty should be off the table? Generally, what rights of criminals, who despite their actions remain biologically human, may or may not be withdrawn?
Human rights are the set of rights and freedoms that everyone is endowed with by virtue of being born human. No one is born without human rights, and no action is required to acquire these rights. Everyone is entitled to the protection of their human rights, and no one may deny others these rights. However, one can do actions (i.e., criminal activity) that result in the State's (as the representative of society) legitimate and just withdrawal of some of these rights. For example, Article 13 of the Universal Declaration of Human Rights (UDHR) declares that "everyone has the right to freedom of movement". But incarceration-- a withdrawal of this right-- is a universally accepted penalty for criminal activity. So if Article 13 of the UDHR can be withdrawn as a consequence of certain crimes, why not, say, Article 3 (right to life) or Article 5 (protection from torture or cruel punishment)?
One argument is that some human rights are inalienable (e.g., right to life) and others are not (e.g., right to free movement). Alston (2005), who famously visited our country last year, puts it softer as the prioritisation of human rights, that some rights are more important than others and should thus be pursued more rigourously. Accepting that such a dichotomy of human rights exists, how do we detrmine which ones are inalienable (or more important) and thus cannot be withdrawn as a consequence of criminal activity?
Answers based on the Divine, religion, or some "self-evident" truths are flimsy because they cease to persuade once the underlying assertions and dogmas are disputed-- they are only persuasive for the converted. Natural law, social contract, Kantian morality, and evolutionary game theoretic arguments provide sound bases for the universal existence and protection of human rights, but give no objective limits on the punishment for those who violate them.
The strongest argument against the withdrawal of some human rights is the imperfection of the judicial system-- errors can occur and the innocent may be convicted. In this case, certain rights should not be withdrawn if there is a nonzero probability that the convict is actually innocent, especially if the withdrawal of such rights cannot be reversed. Indeed, it is better to err on the side of protecting human rights than withdrawing them. [I use a similar line of argument in my stand on abortion.] However, this is a practical argument that has no bearing on the merits of what punishments should or should not be allowed. After all, this argument falters if there is absolute certainty that the convicted criminal is guilty (say, there is untampered video of him shooting the victims).
The way I see it, the set of human rights that can be withdrawn as a consequence of criminal activity is a matter of social choice. There is no objective reason why some punishments should be allowed and others should be prohibited-- it all depends on the preferences of society. Thus, if society decides that violent criminals like the Laguna robbers should receive capital punishment (i.e., their right to life should be withdrawn), there is no objective reason to say that this should not be done; the only real constraint is society's sensibilities and public opinion.
Violent crimes like the Laguna robberies strain the rationale behind the limits on their punishment. If we subscribe to the social contract theory of human rights, a criminal should be deemed to have surrendered all his human rights if he decides to use violence on his victim. Perpetrators of heinous and violent crimes, if we are absolutely certain of their guilt, should be punished harshly, severely, and mercilessly.
If you disagree with me, do leave a reply and set me right.
My condolences to the families of the victims-- their cries for vengeance are understandable and, I say, justified. As for the perpetrators, they should be punished in the most painful and protracted way possible.
That said, let me discuss human rights, which I'm sure the perpetrators will seek refuge in if they are caught and found guilty. Of course the accused, who are presumed innocent, should be accorded due process and all the protection under the law. But what do we do with those who are guilty of the most violent and heinous of crimes? What basis is there to say that the death penalty should be off the table? Generally, what rights of criminals, who despite their actions remain biologically human, may or may not be withdrawn?
Human rights are the set of rights and freedoms that everyone is endowed with by virtue of being born human. No one is born without human rights, and no action is required to acquire these rights. Everyone is entitled to the protection of their human rights, and no one may deny others these rights. However, one can do actions (i.e., criminal activity) that result in the State's (as the representative of society) legitimate and just withdrawal of some of these rights. For example, Article 13 of the Universal Declaration of Human Rights (UDHR) declares that "everyone has the right to freedom of movement". But incarceration-- a withdrawal of this right-- is a universally accepted penalty for criminal activity. So if Article 13 of the UDHR can be withdrawn as a consequence of certain crimes, why not, say, Article 3 (right to life) or Article 5 (protection from torture or cruel punishment)?
One argument is that some human rights are inalienable (e.g., right to life) and others are not (e.g., right to free movement). Alston (2005), who famously visited our country last year, puts it softer as the prioritisation of human rights, that some rights are more important than others and should thus be pursued more rigourously. Accepting that such a dichotomy of human rights exists, how do we detrmine which ones are inalienable (or more important) and thus cannot be withdrawn as a consequence of criminal activity?
Answers based on the Divine, religion, or some "self-evident" truths are flimsy because they cease to persuade once the underlying assertions and dogmas are disputed-- they are only persuasive for the converted. Natural law, social contract, Kantian morality, and evolutionary game theoretic arguments provide sound bases for the universal existence and protection of human rights, but give no objective limits on the punishment for those who violate them.
The strongest argument against the withdrawal of some human rights is the imperfection of the judicial system-- errors can occur and the innocent may be convicted. In this case, certain rights should not be withdrawn if there is a nonzero probability that the convict is actually innocent, especially if the withdrawal of such rights cannot be reversed. Indeed, it is better to err on the side of protecting human rights than withdrawing them. [I use a similar line of argument in my stand on abortion.] However, this is a practical argument that has no bearing on the merits of what punishments should or should not be allowed. After all, this argument falters if there is absolute certainty that the convicted criminal is guilty (say, there is untampered video of him shooting the victims).
The way I see it, the set of human rights that can be withdrawn as a consequence of criminal activity is a matter of social choice. There is no objective reason why some punishments should be allowed and others should be prohibited-- it all depends on the preferences of society. Thus, if society decides that violent criminals like the Laguna robbers should receive capital punishment (i.e., their right to life should be withdrawn), there is no objective reason to say that this should not be done; the only real constraint is society's sensibilities and public opinion.
Violent crimes like the Laguna robberies strain the rationale behind the limits on their punishment. If we subscribe to the social contract theory of human rights, a criminal should be deemed to have surrendered all his human rights if he decides to use violence on his victim. Perpetrators of heinous and violent crimes, if we are absolutely certain of their guilt, should be punished harshly, severely, and mercilessly.
If you disagree with me, do leave a reply and set me right.
Monday, March 3, 2008
EDSA, This Noble Fight
Arise, you citizens from your slumber!
Arise, you victims of plunder!
For the rot of corruption has reached the core
And immoderate is the greed of the whore.
For we have had enough of this pretender
For we have had too much of this impostor.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
The time is now to finish corruption's dread
Let us start by cutting off the serpent's head.
The time is now to wage battle in the streets
And kick the serpent's minions from their seats.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
Cower not in your offices and farms
Believe not her lies, bribes, and charms.
Betray not the cause of our motherland
Against this government take a strong stand.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
Let our groups' loud collective will prevail
Let our liberation be the fruit of our travail.
Let us, on EDSA, dictate the nation's fate
To us the country's gratitude will be great.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
---
* Adapted from The Internationale.
Arise, you victims of plunder!
For the rot of corruption has reached the core
And immoderate is the greed of the whore.
For we have had enough of this pretender
For we have had too much of this impostor.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
The time is now to finish corruption's dread
Let us start by cutting off the serpent's head.
The time is now to wage battle in the streets
And kick the serpent's minions from their seats.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
Cower not in your offices and farms
Believe not her lies, bribes, and charms.
Betray not the cause of our motherland
Against this government take a strong stand.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
Arise, you citizens from your slumber!
Arise, you victims of plunder!
Let our groups' loud collective will prevail
Let our liberation be the fruit of our travail.
Let us, on EDSA, dictate the nation's fate
To us the country's gratitude will be great.
So comrades, with us come rally!
And this noble fight let us face
On EDSA be part of the tally
Our fists and arms let us brace!
---
* Adapted from The Internationale.
Thursday, September 20, 2007
Lest We Forget
PROCLAMATION No. 1081 September 21, 1972
PROCLAIMING A STATE OF MARTIAL LAW IN THE PHILIPPINES
x x x
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph ('2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered re- leased by me or by my duly designated representative.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 21st day of September, in the year of Our Lord, nineteen hundred and seventy two.
PROCLAIMING A STATE OF MARTIAL LAW IN THE PHILIPPINES
x x x
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph ('2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered re- leased by me or by my duly designated representative.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 21st day of September, in the year of Our Lord, nineteen hundred and seventy two.
FERDINAND E. MARCOS
President
Republic of the Philippines
Wednesday, July 18, 2007
Law & Order: Trial by Technicality
The Supreme Court recently announced that it will amend the rules on criminal procedure, possibly even the rules on evidence. Reforms of any kind-- legal, economic, political-- give us a chance to compare what is and what ought to be. Now, I'm nowhere near an expert in legal theory and am not a practitioner of law, but I'd like to take a look at some of the rules on evidence, particularly the so-called poisonous tree. Please bear with me if I mix up my legal terms or processes; feel free to educate me. To lay my point let us consider a hypothetical but very likely situation:
[thun-thun]
An eight-year-old girl goes missing in the park; a few metres from where she was playing, blood and several teeth are found by passers-by. SOCO confirm that the blood and teeth belong to the missing girl. SPO4 Lenny Brusko investigates-- there are no witnesses to the attack and abduction, and there is no evidence in the scene that can point to any suspect. However, some witnesses say they saw Manny Yakis-- a known violent sex offender who recently got out of prison-- walking in the park on the day the girl disappeared, but no one can say that there was any contact between the two. Brusko, after 30 years on the job, has a hunch that Yakis is their guy.
Brusko invites Yakis for questioning. Yakis is careful with his answers, giving Brusko nothing but leering eyes and tonnes of frustration. Jack Makoy, the fiscal who will prosecute the case, says they don't have enough evidence on Yakis to secure an arrest or search warrant. With no other leads to follow, Brusko stakes out Yakis' apartment.
After three days of staking out and no other sources of evidence in sight, Brusko is getting very worried, believing that the girl is being harmed in the apartment. Claiming he heard a scream from inside Yakis' apartment, Brusko breaks down the door and finds the body of the missing girl, along with the club that broke several of her teeth in the park, the plastic-lined duffel bag which he used to cary the girl, and the kitchen knife he used to stab her. Brusko immediately arrests Yakis, knocking the perp unconscious in the scuffle. The coroner identifies the cause of death as loss of blood due to multiple stab wounds-- she has been dead for two days. Yakis' semen is found on the girl's body. Confronted with this evidence, Yakis, alone with Brusko and a camcorder in the interrogation room, confesses to the crime. He is then assigned a public attorney for his trial.
During the arraignment, Yakis' defense attorney files a motion to throw away all evidence gathered from Yakis' apartment because they were found in a warrantless search-- he can prove beyond any doubt that the scream Brusko supposedly heard never happened. The attorney also files a motion to throw away the confession because (1) this was brought about by evidence from the warrantless search and (2) Yakis wasn't informed of his rights when he was arrested because Brusko knocked him unconscious. Noting that the police and prosecution have no other evidence on Yakis aside from those gathered in his apartment, the defense attorney files a motion to dismiss the case due to lack of evidence.
Under current rules of evidence, the judge has no choice but to grant the defense attorney's motions to throw away all evidence on Yakis because they are all fruits of the poisonous tree-- they are all tainted evidence. Brusko conducted a warrantless search and lied about exigent circumstances, and Yakis' confession was obtained without him knowing about his rights. The judge will have to dismiss the case due to lack of admissible evidence because he will have to pretend that he never saw the girl's body and the perp's confession. Even if the judge rules that double jeopardy does not apply, Yakis will remain free unless Brusko can find evidence that is not in any way linked to the contents of the apartment.
I clearly understand the need to prevent agents of the State from committing abuses such as warrantless arrests and searches. No one wants to see overzealous detectives overstep the rights of the accused-- allowing one noble detective to overstep the lines will lead to other less noble ones doing the same and before we know it it's as if the Magna Carta never existed. There is a clear need to protect people from the State's agents given their immense powers.
But is it really in the interest of justice and human rights to overlook what we know is true? In the case above, two people committed crimes: Yakis and Brusko. If the judge does not admit the evidence and dismisses the case, Yakis and Brusko will both go free (ok, Brusko will have a bad day, maybe a stern warning from his boss) but the real victims-- the girl and her family-- will be denied justice. How can a wrong correct two wrongs?
I understand that the purpose of the doctrine on tainted evidence is to prevent abuses by agents of the State. But instead of completely ignoring the truth, even from tainted evidence, why not simply criminalise acts that taint the evidence? Say, life in prison for a warratntless search or illegal wiretap, or the errant cop joins the perp in jail for the duration of the latter's sentence. This way the criminal goes to jail along with the abusive agent of the State, giving justice to both the victims and the criminal justice system.
I'm not arguing that the end justifies the means; on the contrary, agents of the State who abuse their power should be punished harshly, even as harsh as the criminals they convict. But I think it's wrong to deny the truth-- to pretend that what we know as true does not exist-- just to punish those who abuse their police powers. In fact, the present doctrine on tainted evidence is incentive incompatible-- those who abuse their powers (i.e., agents of the State) are not held personally liable for their actions. Their punishment, if you can call it that, comes mainly in the form of dismissed cases. There is a mismatch between the crime, which is a personal decision by the abusive agent, and the punishment, which is borne by society in the form of a dismissed case (not to mention a criminal on the loose). We want agents of the State to do their jobs well, within the bounds of the law, and respecting the rights of the accused-- I think the prospect of a long prison term provides more of a deterrent against abuse than potentially dismissed cases.
I can't see how ignoring facts, wherever they're from, helps the cause of justice. It's weak as a deterrent and does not really hit abusive agents of the State where it hurts. Now that we are considering revising the rules on criminal procedure and evidence, what is the philosophical reason not to change the doctrine on tainted evidence and fruits of the poisoned tree? Aren't justice and the justice system served by considering the facts-- all facts-- and punishing all who did wrong?
As I said earlier, I'm nowhere near an expert in legal theory and am not a practitioner of law. If you are, and you think I'm way off, please educate me.
[thun-thun]
An eight-year-old girl goes missing in the park; a few metres from where she was playing, blood and several teeth are found by passers-by. SOCO confirm that the blood and teeth belong to the missing girl. SPO4 Lenny Brusko investigates-- there are no witnesses to the attack and abduction, and there is no evidence in the scene that can point to any suspect. However, some witnesses say they saw Manny Yakis-- a known violent sex offender who recently got out of prison-- walking in the park on the day the girl disappeared, but no one can say that there was any contact between the two. Brusko, after 30 years on the job, has a hunch that Yakis is their guy.
Brusko invites Yakis for questioning. Yakis is careful with his answers, giving Brusko nothing but leering eyes and tonnes of frustration. Jack Makoy, the fiscal who will prosecute the case, says they don't have enough evidence on Yakis to secure an arrest or search warrant. With no other leads to follow, Brusko stakes out Yakis' apartment.
After three days of staking out and no other sources of evidence in sight, Brusko is getting very worried, believing that the girl is being harmed in the apartment. Claiming he heard a scream from inside Yakis' apartment, Brusko breaks down the door and finds the body of the missing girl, along with the club that broke several of her teeth in the park, the plastic-lined duffel bag which he used to cary the girl, and the kitchen knife he used to stab her. Brusko immediately arrests Yakis, knocking the perp unconscious in the scuffle. The coroner identifies the cause of death as loss of blood due to multiple stab wounds-- she has been dead for two days. Yakis' semen is found on the girl's body. Confronted with this evidence, Yakis, alone with Brusko and a camcorder in the interrogation room, confesses to the crime. He is then assigned a public attorney for his trial.
During the arraignment, Yakis' defense attorney files a motion to throw away all evidence gathered from Yakis' apartment because they were found in a warrantless search-- he can prove beyond any doubt that the scream Brusko supposedly heard never happened. The attorney also files a motion to throw away the confession because (1) this was brought about by evidence from the warrantless search and (2) Yakis wasn't informed of his rights when he was arrested because Brusko knocked him unconscious. Noting that the police and prosecution have no other evidence on Yakis aside from those gathered in his apartment, the defense attorney files a motion to dismiss the case due to lack of evidence.
Under current rules of evidence, the judge has no choice but to grant the defense attorney's motions to throw away all evidence on Yakis because they are all fruits of the poisonous tree-- they are all tainted evidence. Brusko conducted a warrantless search and lied about exigent circumstances, and Yakis' confession was obtained without him knowing about his rights. The judge will have to dismiss the case due to lack of admissible evidence because he will have to pretend that he never saw the girl's body and the perp's confession. Even if the judge rules that double jeopardy does not apply, Yakis will remain free unless Brusko can find evidence that is not in any way linked to the contents of the apartment.
I clearly understand the need to prevent agents of the State from committing abuses such as warrantless arrests and searches. No one wants to see overzealous detectives overstep the rights of the accused-- allowing one noble detective to overstep the lines will lead to other less noble ones doing the same and before we know it it's as if the Magna Carta never existed. There is a clear need to protect people from the State's agents given their immense powers.
But is it really in the interest of justice and human rights to overlook what we know is true? In the case above, two people committed crimes: Yakis and Brusko. If the judge does not admit the evidence and dismisses the case, Yakis and Brusko will both go free (ok, Brusko will have a bad day, maybe a stern warning from his boss) but the real victims-- the girl and her family-- will be denied justice. How can a wrong correct two wrongs?
I understand that the purpose of the doctrine on tainted evidence is to prevent abuses by agents of the State. But instead of completely ignoring the truth, even from tainted evidence, why not simply criminalise acts that taint the evidence? Say, life in prison for a warratntless search or illegal wiretap, or the errant cop joins the perp in jail for the duration of the latter's sentence. This way the criminal goes to jail along with the abusive agent of the State, giving justice to both the victims and the criminal justice system.
I'm not arguing that the end justifies the means; on the contrary, agents of the State who abuse their power should be punished harshly, even as harsh as the criminals they convict. But I think it's wrong to deny the truth-- to pretend that what we know as true does not exist-- just to punish those who abuse their police powers. In fact, the present doctrine on tainted evidence is incentive incompatible-- those who abuse their powers (i.e., agents of the State) are not held personally liable for their actions. Their punishment, if you can call it that, comes mainly in the form of dismissed cases. There is a mismatch between the crime, which is a personal decision by the abusive agent, and the punishment, which is borne by society in the form of a dismissed case (not to mention a criminal on the loose). We want agents of the State to do their jobs well, within the bounds of the law, and respecting the rights of the accused-- I think the prospect of a long prison term provides more of a deterrent against abuse than potentially dismissed cases.
I can't see how ignoring facts, wherever they're from, helps the cause of justice. It's weak as a deterrent and does not really hit abusive agents of the State where it hurts. Now that we are considering revising the rules on criminal procedure and evidence, what is the philosophical reason not to change the doctrine on tainted evidence and fruits of the poisoned tree? Aren't justice and the justice system served by considering the facts-- all facts-- and punishing all who did wrong?
As I said earlier, I'm nowhere near an expert in legal theory and am not a practitioner of law. If you are, and you think I'm way off, please educate me.
Sunday, February 11, 2007
Nao Obrigada
"Nao Obrigada"-- "No Thank You" in Portuguese-- is the rallying cry of the pro-life movement in Portugal, which has just finished a referendum on abortion. The referendum asked voters whether or not women should be given more leeway in terminating their pregnancy (Portugal has one of the strictest anti-abortion laws in the EU, just a little more lax than that in the Philippines). To cut a long story short, the referendum failed to overturn current policy due to low voter turnout.
First, let me lay down my position: I am against abortion (at least the way pro-choicers want it). I think abortion should only be allowed when the pregnancy poses a medical risk to the mother's life, making abortion a legitimate form of self-defense. Let me explain.
Arguments for or against abortion often boil down to whether or not the fetus is a human being with its own right to life. Pro-life advocates argue that the fetus is a human being at the point of conception. Their reasons for believing this range from "God says so" (a weak argument appealing only to the converted) to pointing out that the embryo is a separate life with human DNA distinct from the mother (therefore, it is not part of the mother's body). Pro-choice advocates, on the other hand, argue that the fetus should still be considered part of the woman's body because it is not viable outside of it (therefore, she should have free rein over what to do with it).
I will not presume to know when human life starts, and neither should the pro-lifers or pro-choicers. The beginning of "human life" is something that cannot be materially proven because it is a metaphysical concept. Science can only tell us when certain aspects of human life are present (e.g., human DNA, beating heart, brainwaves), but it can't tell us when the fetus attains human consciousness (or a soul, for the religiously inclined). Science can't tell us when we should give the fetus the rights equal to ours.
What we can say is that human life starts at some point between fertilisation and birth-- when exactly, we do not know. Therefore, at any point during the pregnancy there is a probability 0 < h < 1 that the fetus is human, and a probability (1 - h) that it is not. So if we abort a fetus there is an h chance what we are killing another human being, and (1 - h) chance that we are not. Given the gravity of the act, this risk (h) is not something that society should take lightly, especially if we claim to value a person's right to life. Better to not kill a fetus and live with the (1 - h) chance that it could have been killed guilt-free, rather than kill it and bear the h chance that a human being was actually killed. Given h > 0, we have to err on the side of life and accord the fetus human rights.
Of course, self-defense is a valid argument for killing another person. If the fetus poses a clear and present danger to the life of the mother, she should be allowed to eliminate the threat. This goes for any person that threatens her life willingly or unwillingly, even those that have been out of the womb for some time.
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