A cacophony of phonies

SEARCH FOR TRUTH By Ernesto P. Maceda, Jr.

Fake news – aka Alternate reality. It has become alarming enough to prompt senior Senator and LP President Francis Pangilinan to inquire into the liability of social media for “allowing” fake news on their platforms.

Designed as “clickbait” to entice social media users, headlines like “Pope endorses Trump” or the slew of false articles attendant to the public excoriation of Senator Leila de Lima test the limits of free speech and contribute negatively to the functioning of democracy.

Facebook (FB) is the principal target of legislative efforts both here and abroad. Sen. Pangilinan correctly debunks FB’s defense that it is but an online platform. In truth, it is a de facto media company. As such, media regulations should apply to FB in equal measure.

There are reportedly 47 million FB users in the country. If it should match the 44 percent figure of adults in the US who get their news from FB, then the urgency of this proposal becomes undeniable.

Skepticism and discernment. A healthy dose of both is what is needed to combat the fake news menace. In short, be very cold. Otherwise, your credulity falls prey to the news platform equivalent of the budol budol gang. Because the principal culprits of these untruths are social media sites, an apropos prefix would be e (used for anything connected to the internet). Lets call them e-bola.

The virus is truly in the air. On the heels of the fake news epidemic, there is this new pathogen on the cusp of annihilating the unwary reader. Lets call it fake law.

Like fake news which is ostensibly authentic but intended to mislead, fake law is promoted as supposedly meritorious, rule based argument but with a similar purpose - to deceive. It is specially disturbing when advanced by members of the legal profession whose arguments are expected to be infused with good faith.

This past week alone, we have been exposed to this malady not once, but twice! Vide:

1.  A pending electoral protest is deemed abandoned when the protestant is elected to different public office. This is true and this is basic. The case of the late Lady Miriam Defensor Santiago who ran for the Senate while her Presidential electoral protest against Fidel V. Ramos was pending is authority for this proposition. 

But to assert that a protestant who is appointed to a different public office likewise abandons his protest is obviously non sequitur. This is one unpleasant, occupational hazard that Sen. Ferdinand “Bongbong” Marcos, Jr. has to face these days as matriculation for being touted as the next Secretary of the Department of the Interior and Local Government.

Incompatible. The Presidential Electoral Tribunal in Lady Miriam’s case reasoned that her filing of a certificate of candidacy was an unconditional promise – a contract - to serve the electorate as an elected official in case of victory. This is the basis for the abandonment theory – the incompatibility of two elective positions.

Au contraire, if Sen. Marcos, Jr. is appointed DILG Secretary, there is no incompatibility. The acceptance by the protestant makes him an agent of his President, serving at the latter’s pleasure. In contrast, the elective official is covered by a term. Indeed, the Vice President is allowed by the Constitution itself to be appointed Cabinet Secretary concurrently. There is no incompatibility.

Mar? In the case of Secretary Mar Roxas v. Vice President Jejomar Binay, the protest was not dismissed when Sec. Mar accepted his appointment as Secretary of the Department of Transportation and Communication in 2011.

Roxas v. Binay could have been the precedent for Sen. Marcos’ situation. But the Court did not reach the issue. There is, however, a similar case involving a Municipal Councilor. Here, the Supreme Court confirmed that acceptance of an appointive position does not have the effect of abandonment of the election protest.

If Marcos, Jr. should accept, it is argued, it would be like acknowledging his loss. But the Supreme Court has, time and again, recognized that the proclamation of a victor is still not a bar to an electoral protest. Public interest dictates that the Court permit all opportunity to ascertain the people’s will.

2. Pacta sunt servanda. The law on inviolability of contracts protects mining companies from the termination of their contracts. Certain sectors seem to think that a contract in hand is a free pass: pag may contract, may forever. The American chamber of commerce even accuses Secretary Gina Lopez of being irresponsible saying that these “permits” are only for exploration.

Again, this is non-sequitur. The language of the Supreme Court refuting this is very certain “Mining exploration permits do not vest in the grantee any permanent or irrevocable right xxx the State, under its all-encompassing police power, may alter, modify or amend the same, in accordance with the demands of the general welfare." Also, “they are not deemed contracts within the purview of the due process of law clause.

Rights v. Privileges. The exploration (now) and the development and utilization (ultimately) of our mineral resources are matters impressed with great public interest. What the American Chamber would understand to be vested rights are really but mere privileges.

And these privileges are not being withheld or revoked unilaterally. Under the Mining Act and related PDs and regulations, violations of the terms and conditions of mining agreements shall be sufficient basis to cancel the same. It is precisely in accordance with due process that the Department has issued show cause orders to the operators why their agreements should not be cancelled.

If these agreements cover areas that are found in watershed reserves, then there is no need for an audit of violations as the mere existence of the agreement is, by itself, a violation of the Mining Act. RA No. 7942, Sec. 19, par. f, states that Mineral agreement or financial or technical assistance agreement applications shall not be allowed in xxx proclaimed watershed forest reserves.

In the end, it is really only Sec. Lopez who is acting responsibly.


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