Guilty as charged?

DEMAND AND SUPPLY By Boo Chanco (The Philippine Star)

I am still trying to understand the statement of Finance Secretary Sonny Dominguez not to accept the EU’s offer of a grant of about $280 million because it would involve a review of our adherence to the rule of law.  According to Sec Sonny, because of that, the specific EU grant is considered interference in our internal affairs.

Come on Sec. Sonny… Aren’t we supposed to be adhering to the rule of law anyway? That’s what the Constitution is all about.

When President Duterte took his oath of office, he swore to uphold the Constitution. That means he must ensure our government operates on the basis of the rule of law… our law, mind you, not the EU’s.

We have also signed international covenants like the Universal Declaration of Human Rights and I presume that having ratified such covenants, they are as good as being incorporated as part of the laws of the land.

We made a declaration as a people that we believe all human beings have certain inalienable rights – right to life, liberty and the pursuit of happiness. Are we now saying we no longer subscribe to these universal standards?

When our government rejected the EU aid offer because it requires a review of our adherence to the rule of law, we are saying – guilty as charged…

Unfortunately, rule of law to President Duterte is synonymous to respect for human rights which he doesn’t subscribe to. Even then, he cannot by himself take the Filipino nation out of the family of nations that’s governed by civilized norms of behavior.

We agree we have a serious drug problem that requires drastic solutions. But Mr. Duterte cannot try to do what he did in Davao on a national scale and not expect a sharp backlash.

EJK in Davao may be accepted by a smaller population that’s easier to control. But on a nationwide scale, it is unacceptable. That’s why the strategy caught worldwide attention and condemnation.

In any case, the strategy is unsustainable. It is not possible for any leader to kill every drug pusher, drug addict and drug lord.

What makes the task really impossible is that the PNP is tainted. It was Mr. Duterte who said that too. And the leadership of the PNP seems not up to the task of cleansing the ranks to regain credibility.

A president with a singular focus on killing everyone associated with drugs, proven or otherwise, will eventually cause problems in other areas of national importance.

The virtual admission that we can’t survive scrutiny of our adherence to the rule of law puts our economy at risk. Investors will have second thoughts.  Adherence to the rule of law is topmost in an investor’s concern. It is too risky to invest in a country that is not governed by the rule of law.

Indeed, we are losing more than that $280 million in EU assistance. We are liable to lose potential investors not just from the EU, but also from other countries too. We may even lose local jobs dependent on manufacturing products meant for export to the EU.

That’s why the economic planning secretary was surprised and worried upon hearing the news. He said the rejection was spawned only by the “temporary” unhappiness of President Duterte with the EU.

“No, no, no. It will not be a policy, not a permanent policy. It’s temporary… temporary unhappiness,” Sec. Pernia answered when asked if this was a signal of a permanent change in government official policy.

In this regard, I do not believe the claim of Sec. Dominguez that it was he who recommended the rejection. I think he is covering up for the President, thinking he can fix things later.

As my paper’s editor-in-chief pointed out, that decision has an impact on gut issues. The worse immediate possibility is losing our preferential trading status with the European Union under the GSP plus that accords our exports duty free entry.

The Philippines is the only ASEAN country and among 13 beneficiaries with a GSP+ status. See how special we are to the EU! But this privilege is also subject to among others, adherence to the rule of law.

There are foreign investors who moved manufacturing facilities here from China with the intention of exporting to EU states. Exports to the EU grew 48 percent in the first quarter of 2017, making the EU the biggest and fastest-growing export destination of Philippine goods. The EU overtook the longtime top export markets, the United States and Japan, in March.

Then there are our seamen. As my editor pointed out, “at least 28,874 Filipinos serve as crew on EU-registered commercial ships, remitting a hefty $3.35 billion over the years to their loved ones in the Philippines. Some of the sailors are ship captains… These are not investments or jobs that China can replace, especially now that the threat of war has been raised.”

Europe is now the fourth top source of OFW remittances contributing about 10 percent to the Philippines’ GDP. BSP data show remittances from Europe reached about $3.8 billion, the fourth top source next to Asia, the Middle East and US, in 2016. Those inflows from Europe accounted for about 14 percent of the total $26.9 billion in remittances that overseas Filipinos sent home in 2016.

So the President is now in Russia in pursuit of an independent foreign policy. Befriending Russia is good even if there is nothing Russia can significantly contribute to our economy any time soon. 

Maybe we can sell bananas to the Russians and reduce dependence of our banana exporters to China. Maybe there is potential in tourism. Russians trying to escape their cruel winters are frequent visitors to Boracay.

We may buy weapons from Russia to cover what the US will not sell us due to human rights concerns. But getting investments from Russia? Nada! Its nuclear arms aside, Russia is as third world as we are.

We ought to get increasingly worried about how the President conducts foreign policy. It seems dependent on his mood or frame of mind.

The President conducts no policy discussions with the Cabinet and the professional diplomats at DFA. And now that our secretary of foreign affairs is an ambitious politician with zero experience in diplomacy and no inclination to correct Duterte, we really have problems.

The governance of our nation and our foreign affairs cannot be determined by the single issue of drugs. The Mayor has to learn to become the president that we elected him to be… he has more areas of concern than the anti-drug drive.

And in making new friends among nations, we don’t have to throw aside old friends… no matter how personally pissed he is with them. We have invested years working with old allies in trying to build up our country and improve the lives of our people.

Yes let us reject foreign aid with strings attached detrimental to us… like virtually giving up territory a UN Court has determined to be ours. But objecting to a requirement calling for “adherence to the rule of law” is like saying the rule of law in our country is dead or is applied only as our President sees fit.

That’s shameful. Every Filipino should honor the blood spilled by our heroes who fought and died precisely so we, their children, can live in a country where adherence to the rule of law is paramount.

Boo Chanco’s e-mail address is bchanco@gmail.com. Follow him on Twitter @boochanco.     

Behind the dark clouds

I recently called attention to “dark clouds” that we need to watch, seen in weakening numbers on the economy, particularly accelerating price inflation, rising unemployment, and slowing growth. These weakening signs must be arrested before they turn into a trend. Let’s take a closer look to understand where the weaknesses are coming from.

Let’s start with rising prices. Last month’s year-on-year inflation rate of 3.4 percent was the fastest seen in 28 months. It went as low as 0.4 percent in late 2015, but sped up last year, especially in the latter half, mostly owing to faster increases in food and energy prices. What’s bad about inflation that’s driven more by food prices is that it takes a heavier toll on the poor, for whom food makes up a dominant portion of the family budget. As a general category, food prices rose by 4.2 percent last month, and even though it actually slowed down slightly from 4.3 percent in February, it still rose significantly faster than overall inflation.

Price rises were notably faster in rice and meat, which led Socioeconomic Planning Secretary Ernesto Pernia to eye the government’s import constraints as the likely culprit. “Inflationary pressure may ease following the removal of quantitative restrictions on rice importation, and the timely augmentation of supplies,” he noted. Rice alone takes up almost a tenth of the average Filipino family budget, and for poor families, an even bigger share. This is why the ongoing debate on rice importation is so critical, given the profound impact of the price and accessibility of the commodity on the welfare and nutritional status of the poor. Analysts have attributed the much higher incidence of child malnutrition and stunting among Filipinos relative to our neighbors to the much higher prices Filipinos pay for rice, rendering it less accessible to large numbers of people.

The other major reversal has been in the jobs situation. After three years of successive decline in the officially measured unemployment rate, and having already dropped below 5 percent in the last few quarters, joblessness jumped anew to 6.6 percent in January. The quarterly Labor Force Survey reports an overall loss of 700,000 jobs over the past year (from January 2016 to January 2017). This is alarming given that an average of one million new workers join our labor force yearly. The
data clearly show agriculture to be the main reason, with a recorded loss of nearly 800,000 jobs, while services also lost 64,000 jobs. The silver lining was industry’s gain of 149,000 net new jobs, almost all of it in construction. Utilities also gained 17,000 new jobs, but mining lost 36,000 jobs for reasons now well known, and manufacturing similarly lost 9,000 jobs.

Did new restrictions on contractualization have a role in the jobs decline? At first glance, it would appear otherwise; there was actually a net gain of 361,000 jobs in wholesale and retail trade (where contract employment is common), and vehicle repair. But the data don’t distinguish trade jobs in large retail establishments from those of self-employed vendors in the informal sector or “underground economy.” One gets a clue from the statistic on individually self-employed workers, whose numbers rose by 370,000, suggesting that the rise in trade jobs was mainly in the informal sector. The numbers could thus still be consistent with thousands of jobs having been lost in the formal retail trade sector, where contractuals tend to be most prevalent—but more detailed data need to be gathered for more conclusive evidence.

As for slowing economic growth, agriculture has been the main culprit, having declined by 1.3 percent last year, even as industry and services grew briskly. The sad truth is that the observed weaknesses, whether in presyo, trabaho or kita, all point to bad agricultural performance. That is how important the sector is. We simply need to stop neglecting agricultural products with high income potential because of an inordinate preoccupation with rice, and instead emulate the fast growing and much more diversified agriculture our neighbors have had. Every Filipino will be all the better off for it.

cielito.habito@gmail.com

source:  Philippine Daily Inquirer

Lacson contradicts Duterte: No pay hike for cops, soldiers until 2018

Despite a commitment from President Rodrigo Duterte for a pay raise, soldiers and policemen would most likely not enjoy a salary hike until 2018.

On Thursday, Sen. Panfilo Lacson said it would be "impossible" for the salary increase for the Philippine National Police and the Armed Forces of the Philippines to be included in the 2017 General Approriations Act because the measure for such is already about to submitted for approval.

"I don’t see how ma-incorporate ang salary increase ng pulis at military. Hindi na makakahabol yan," Lacson told reporters.

Just last week, Duterte promised to double soldiers' salary by December. 

“By December, you’d have doubled your salaries. This August, umpisa na, ngayong August. Tignan ninyo iyang pay checks ninyo. Nandiyan na iyan,” Duterte told soldiers in Cebu City.

Still, Lacson said President Duterte has an option to submit a supplemental budget to Congress.

Lacson said funds from other agencies could also actually be realigned for the PNP and AFP personnel's salary increase, but that doing so would be "substantial."

"We’re talking of 140 to 150,000 police officers and another 150,000 military personnel. Saang ahensya mo huhugutin ang salary increase ng katakut-takot na personnel ng dalawang ahensya?" asked Lacson.

Only in 2018

Lacson said the earliest that the goverment can include the salary increase in the national budget would be in 2018.

"Puwede naman gawin iyan sa 2018, Presidente pa rin siya sa 2018. So magkaroon ng substantial compliance," Lacson said.

"But for the 2017 budget, I doubt. I think sa 2018 he’ll make sure. Pero sa 2017 it’s highly improbable if not impossible," he added.

During a Senate inquiry on the various Salary Standardization bills on Wednesday, Sen. Antonio Trillanes IV admitted being "surprised" by Duterte's pronouncement that servicemen can enjoy a pay hike by August, with their salaries being doubled further by December.

"As you know, the soldiers are holding on to the word of their Commander-in-Chief... Pipila yung mga sundalo sa ATM (this August), di ba?," Trillanes said as he asked Budget Secretary Benjamin Diokno if such promise from Duterte was ineeded feasible.

"You better advise your President because he’s been making commitments and promises left and right. Ayaw nating masira yung credibility niya, na he’s just a big talker," Trillanes said.

"Noong sinabing 'August meron na kayo, incremental increase,' palakpakan yung mga sundalo eh. Then here is our DBM secretary saying it’s not gonna happen," added Trillanes.

Sen. Alan Peter Cayetano earlier said the President is now studying a proposal to increase the salaries of police and military personnel up to a minimum of P50,000 a month.

Cayetano said that this is in fulfillment of Duterte's campaign promise and he hopes it will be implemented before Christmas with the support of Congress.

An additional P70 billion --P50 billion for active personnel and P20 billion for retired officers-- is said to be needed if the new salary scheme will be implemented.

At present, policemen ranked Police Officer 1 receive P14,000 basic salary and P24,329 gross pay. — RSJ, GMA News

Gov't bats for lower flat tax rate for deposits, securities

MANILA, Philippines — More depositors and investors could be encouraged to park their money with the banks or let them grow in the financial system once a planned flat tax rate of 10 percent becomes a reality.

The proposal is part of the government's comprehensive tax reform program, composed of four packages which will be filed one by one beginning later this month.

"We propose to harmonize all capital income taxes regardless of currency, maturity and type towards 10 percent," Finance Secretary Carlos Dominguez was quoted in a statement.

"This way, the poor pay less on the interest income and the rich pay more," he told the House ways and means committee last Tuesday.

Capital income taxes pertain to final levies charged on bank deposit earnings as well as interest income from investments in bonds.

Under the present law, peso deposits are charged differently depending on their maturities, with those parked for less than three years being slapped a rate of 20 percent.

Money staying put for three to less than four years are taxed 12 percent, four to less than five years with 5 percent, while those for longer periods are tax-free.

Foreign currency deposits, meanwhile, have a fixed 7.5-percent rate, while interest from investing in bonds are levied 20 percent.

Dominguez said retail depositors with a small amount of money do not even feel the benefits of saving in the bank.

"Small depositors are burdened with high tax rates because they save less and cannot keep their money in banks for a long time, while rich depositors, who park their money in banks because they do not have an immediate need for it, are not taxed," he said.

"Is that fair?" he asked.

A total of 51.86 trillion accounts had deposits worth P9.41 trillion as of the first quarter, central bank data showed. Of that, more than 90 percent were savings accounts.

Of the 46.91 trillion savings accounts, 32.14 million contain P5,000 and below. 

Separate data showed the government earned P23.31 billion from taxes on deposits and state securities as of June. They accounted for just nearly 3 percent of the total.

"That is very positive to the ordinary citizen and encourage savings," central bank deputy governor Nestor Espenilla Jr. said in a text message.

"More savings expands the stable funding base of the banking system that supports more loans and investments," he added.

source: Philippine Star

Too many lawyers

“The first thing we do, is to kill all the lawyers.”

Popular in cocktail parties and reliably worth a chuckle or two, and almost always intended at the lawyers’ expense, the phrase seemingly connotes weariness of the legal profession’s annoyingly unwelcome omnipresence in people’s lives.

In truth, the line is actually an unintended compliment to lawyers.

Uttered by the murderous villain Dick the Butcher in Shakespeare’s Henry VI, Part 2, the setting involved a group of no-gooders out to foment chaos in England and seize power. And the best way to achieve that, they conclude, to ensure that anarchy happens, is, you guessed it: “to kill all the lawyers.”

Which leads me to another so-called “fact”: the Philippines has too many lawyers. A complaint of businessmen constrained by regulations, policy makers bothered by constitutional parameters, and academics outraged that their discipline is perceived as a steppingstone to law.

The lament is usually accompanied by the wish for more scientists, doctors, engineers -- anything involving the “hard sciences.”

Just not more lawyers.

Of course, humanities and arts feel the same: we need more philosophers and artists. Business schools meanwhile trumpet the need for more managers or (even better) entrepreneurial-minded youth.

But do we really have too many lawyers?

One way of addressing that query is too see how people generally feel about legal costs or the variety of legal counsels they can choose from.

Because if there are indeed too many lawyers, then the law of supply and demand should take care of that, by dragging the fees down. An eventuality, I believe, most are not inclined to admit is happening.

The fact is, we currently have on roster around 40,000 living lawyers. And people have to understand that most of those will not be engaged in traditional law practice.

Many will work in corporations, either as counsel or as part of management. Still many more will be engaged in private business, politics, or the academe.

The actual number of lawyers that people can choose from to handle their litigation or legal requirements is therefore understandably far lesser than what most people think.

Furthermore, the recent development of top corporate positions being increasingly offered to those with law degrees further speaks of the demand for lawyers and against the notion of the latter’s oversupply.

Ah... but surely lawyers are disproportionately too many compared to the other disciplines, particularly within the context of the overall Filipino population?

Again, not true.

Assuming a 100-million Filipino population, that would make a lawyer density of .4 lawyers for every 1,000 Filipinos (or 1 lawyer serving 2,500 Filipinos). And again remember, not all registered lawyers are engaged in traditional law firm work, so the proportion would be far smaller in reality.

Compare that with the United States, which has 1.3 million lawyers for a population of around 300 million. That makes it 4 lawyers for every 1,000 Americans or 1 lawyer for every 250 US citizens.

But don’t we need more scientists or doctors? Sure we do.

But consider: the number of practicing doctors is already nearly twice that of registered lawyers. Reportedly, in 2014, there are around 130,000 registered doctors, with perhaps 75,000 practicing. That makes it 1 doctor for every 1,333 citizens. Although, apparently, the medical profession thinks the optimum doctor-population ratio should be 1:100, which seems to mean that they’re aiming for almost 1 million more doctors!

Perhaps such is possible.

In 2015, there were 2,491 new doctors (a board passing rate of 85%). The year before, 2,218 (81% passing rate).

In 2016, we also had 2,245 new civil engineers (a board exam passing rate of 38%), 2,967 new accountants (43%), and 6,183 new nurses (44%).

Every year, the legal profession just has a little over a thousand new lawyers, with Bar exam passing rates meandering at 18-22% (the most recently released result, 2015, had a higher than normal rate of 26%).

Even looking at student numbers belie the myth of too many lawyers: for example, the 2013 University of the Philippines Statistics show that only 1.1% of its student population are law students, with science and engineering and social sciences accounting for 64%, arts and letters, 15.1%, and management 11.5%.

Now perhaps lawyers are disproportionately represented in high profile or influential positions vis-a-vis other professions or academic disciplines. But one can’t blame lawyers for that.

But it does lead to questions of why.

The Philippines gives too much prestige to lawyers? If true, why? The Philippines is too litigious? If so, why? Why do scientists, engineers, philosophers, etc. not exert a bigger influence in the country?

This article is emphatically not saying that the legal profession is better than others. The only point here is that to say we have too many lawyers is untrue.

In any event, if Filipinos really want to get rid of lawyers or make them irrelevant, then they should just stop lying, stealing, cheating, or hurting one another.

Jemy Gatdula is the international law lecturer at the UA&P School of Law and Governance and executive director of the Philippine Council for Foreign Relations.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com

facebook.com/jemy.gatdula

Twitter @jemygatdula

Killing suspects is also unchristian

THE VILIFICATION of the United Nations seems to have stopped; now the focus of presidential ire seems to be on the United States. But it is only a matter of time before UN involvement in Philippine affairs comes under attack again; the flawed but functional guarantor of international arbitration and human rights campaigns will necessarily be heard from again.

Here’s a thought, to prepare for the inevitable: The UN is not a remote organization, located half a world away and only distantly connected to goings-on in the Philippines. It is in fact intimately involved in Philippine society. In response to a query I posted about how many people the UN has working in the country, Martin Nanawa of the UN Resident Coordinator’s Office in the Philippines wrote back: “We have 1,449 National and 240 International Staff in the Philippines under the UN umbrella, which is spread over more than 25 different Agencies, Funds, Programs, and Organizations.”

That’s a lot of ears on the ground; it is folly, or wishful thinking, to suggest that UN experts do not know what is going on in the Philippines.

source:  

By: John Nery  Philippine Daily Inquirer

Digital privacy vs public security

By: Drexx D. Laggui / @inquirerdotnet

Philippine Daily Inquirer

THE #WarOnDrugs has reached a crescendo now that President Duterte has issued Proclamation No. 55 declaring a state of national emergency on account of lawless violence.

According to open-source reports, elements of the illegal drug trade have stepped up their battle against the government by establishing a partnership with terrorists and kidnap-for-ransom organizations in their efforts to distract or discourage law enforcers from doing their jobs. The bombing of a Davao City night market on Sept. 2 is a heinous sample of their criminal synergy.

Criminals today have the advantage
The #WarOnDrugs is not easy. The numbers are not in favor of our government. The 2015 Annual Report of the Philippine National Police revealed a volume of 201,010 for index crime, and 474,803 for nonindex crime, for a total of 675,813 reported crimes to the police alone.

Index crimes include reports of crime against persons like murder, physical injury and rape, as well as crimes against property, such as robbery, theft, car theft and even cattle rustling. Nonindex crimes include illegal drug use, cybercrime, physical injury and damage to property.

With regards to drug-related cases, conviction rates of criminal cases over the past five years have been poor, according to Justice Secretary Vitaliano Aguirre II. In 2015, there were 43,462 cases but only 782 convictions for a 2-percent success rate.

What is not widely publicized is that when a serious crime has been committed, every law enforcer knows that he has 48 hours to have solid leads, suspects or arrests by that time. Otherwise, the chances of solving the crime drop by half.

To add to the challenge, there are now some 101 million Filipinos. Combining all law enforcement and military personnel and all those from other government agencies, there are only about 400,000 of them.

In contrast, according to the Dangerous Drugs Board, there are roughly 1.7 million Filipinos engaged in illicit drug use. That’s 425 percent more than the number of our law enforcers and peace officers.

Rethink crime fighting
The time has come for our country to rethink the state’s crime-fighting processes and the tools required to support it. Our government needs to step back and see the big picture, to think unconventionally against enterprising criminals.

Criminals have come to be as progressive as commercial businesses in adopting technology to improve their capabilities, to be more effective and efficient in the conduct of their crimes.

For example, criminals have used the internet to conduct surveillance operations against their targets to plan out their crimes, as well as assess the net worth of victims and drug users if they are profitable targets or not.

Wikimapia or Google Maps can give criminals the ability to assess escape routes or vulnerabilities of bank branches or homes of kidnap victims, while Facebook or Instagram or Twitter can yield great information about the lifestyle patterns, family and friends, or the financial capacity of the victims. Waze can even give them the fastest escape route from the crime scene.

Most important for the criminals, however, is for technology’s ability to enable them to conspire invisibly with their members. Criminals have exploited technology to plan, communicate and commit a crime in the virtual world, meeting each other without the risk of physical presence and even share their profits, all online.

Technology: secret weapon of the state
Fortunately, technology can work for the law enforcers, too. The 101 million Filipinos have 110 million mobile devices.

Find the phone, find the criminal.

Nothing is more personal to the criminal than his or her mobile phone. The mobile phone knows more about each individual, about his secret lives more than he would care to admit, or more than what his friends or families know. A mobile phone tracks one’s activity, location, his relationship with friends or family or victims, his favorite food, political affiliation, likes or dislikes, his fears or fantasies, gender or sexual preferences, health, spending habits, travels, comments to friends and families that reveal his sentiments and social influence, his cars and home, or his fortunes and misfortunes, and can collect them all as big data.

Psychometrics
Analyzing big data involves a process called psychometrics, enabling the measurement of mental traits, abilities and processes of the person.

Finding the phone to find the criminal means that there needs to be a continuous observation of a criminal in a place, the person or group that he or she interacts with, or any ongoing activity in order for the law enforcer to gather information about the criminal and the crime. Finding the phone means online surveillance and intelligence gathering.

Vigilance for data privacy rights
The concept of using high-tech tools for online surveillance is scary for everybody and reasonably so. Edward Snowden expressed this in Reddit succinctly: “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different [from] saying you don’t care about free speech because you have nothing to say.”

Online surveillance is not a new idea or initiative, however.

Section 12 of the Cybercrime Prevention Act of 2012 provides for real-time collection of traffic data. “Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.”

In February 2014, however, the Supreme Court struck down this provision for being unconstitutional. The court explained that online surveillance was not evil by itself, but rather, the law was unclear on what “due cause” meant and that may lead to the state abusing this power, and using it as a tool for general warrantless search against anybody and everybody.

The law has been thus interpreted to be enforceable only if there is a warrant issued “with specifity and definiteness” so that our law enforcers would not be given unlimited surveillance powers. The only thing waiting now is for a criminal investigation case to test this law. That will not be too far off from today.

The Supreme Court decision is consistent with the provisions of the Data Privacy Act of 2012, which declares that “it is the policy of the state to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth.

“The state recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector [is] secured and protected.”

The Data Privacy Act applies to everyone, protecting “individual personal information in information and communications systems in the government and the private sector.”

At its core, this law prescribes appropriate jail time and fines for any violation against any person’s personal information, that “refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.”

Sensitive personal info
It goes even further by defining sensitive personal information and then prescribing even harsher penalties. Sensitive personal information includes anything:

About an individual’s race, ethnic origin, marital status, age, color and religious, philosophical or political affiliations

About an individual’s health, education, genetic or sexual life of a person, or any proceedings for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings

Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, health records, licenses or its denials, suspension or revocation and tax returns

Specifically established by an executive order or an act of Congress to be kept classified.

However, recognizing that no human right is absolute, this law also states that it does not apply to any private or sensitive information that is “necessary in order to carry out the functions of public authority which include the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions.”

Update antiwiretap law
Additionally, it is also interesting to monitor developments in today’s 17th Congress, specifically the five bills that have been separately filed by Senators Gregorio Honasan, Ping Lacson, Grace Poe and Sonny Angara. These seek to update Republic Act No. 4200, or the Anti-Wiretapping Law of 1965.

Their proposals are unified in using the force-multiplying power of technology to go after the criminals in drug-related cases and those charged with plunder, kidnapping, money-laundering, robbery, piracy, rebellion, treason, espionage, provoking war and sedition.

Privacy vs security and Equilibrium-Adjustment Theory

Obviously, zipping along the fine line between privacy and security will be challenging across an undefined and foggy cyberterrain.

To help the Philippines along, a navigational aid like the Theory of Equilibrium-Adjustment may be used by our government decision-makers. Back in 2011, professor Orin Kerr from George Washington University Law School proposed that a government balance the application of laws with the protection of human rights. This means that a government shall tighten or relax the law’s protections in response to changing technology and social acceptance.

When new technologies expand law enforcement’s capabilities, the law does (and should) respond by placing new controls on the government; when new technologies give criminals the advantage, the law does (and should) respond by loosening the government’s restraints.

Negative legal right
To complement the Theory of Equilibrium-Adjustment, the paradigm that the Data Privacy Act is just one of the regulators of our human right to privacy, must also be embraced. When one begins to realize that the law is a negative legal right (i.e. it explicitly says what we should not do with respect to the rights of another person), then one would also follow the realization that there are other previously unrecognized factors affecting our privacy rights and interests.

These structural constraints include economic and physical and technological barriers, and are associated with costs that act as nonlegal regulations. These factors are expressed by professor Harry Surden of Stanford Law School in his essay “Structural Rights in Privacy.”

New guide
Combining both legal ideas above in the context of Section 12 of the Cybercrime Prevention Act and that of the Data Privacy Act, a new guidance can be generated: If a proposed law enforcer’s online system for real-time collection of traffic data makes it too cheap (in terms of financial cost, social acceptance, technology and logical controls) for our government to collect investigation data, that otherwise would have been physically impossible or too expensive to do so, then the use of that high-tech system violates our expectations of privacy. Otherwise, it is all acceptable.

Defining and enforcing the privacy interests of the Philippines is not a one-time activity, but is a very dynamic and contentious process. To paraphrase, our country’s privacy interests is not a destination, but a journey.

Security vs security

Referring to the landmark February 2014 decision of the Supreme Court, one will realize that we are not looking at the question of privacy versus security after all. Rather, it’s actually a question of security versus security.

The question of security against criminals, or security against law enforcement abuse, maybe easier to answer. When law enforcers are empowered with “due cause” to collect or record by technical or electronic means traffic data in real-time, do you trust them that they have just reason or motive to do so?

That they will conduct their online surveillance with faithful adherence to a lawful procedure all the time? Are you hopeful that the operational risks against the abuse of the online surveillance system have proper countermeasures? Do you have confidence that the countermeasures against abuse are sufficient and correct all the time?

Until the answer is “yes” to all these questions, only then can the question of security versus security can be reliably answered.

(Drexx D. Laggui, principal consultant of Laggui & Associates Inc., conducts vulnerability assessment, internet preparation testing and computer forensics.)