Thursday, March 27, 2014

Internet Governance: A Leadership Challenge

A few days ago, the Obama administration announced its plan to give up control over online domain names and addresses by 2015 when its contract with the Internet Corporation for Assigned Names and Numbers (ICANN) expires. The latter has been in charge of managing Internet addresses since 1998.

The plan is to transfer this function to a group of “multi-stakeholders”. This is the same idea advanced by the World Summit on the Information Society (WSIS), which was convened under the auspices of the United Nations. WSIS defines “multi-stakeholders” as “governments, the private sector, civil society, and the technical and academic community to nominate representatives from within their respective stakeholder communities to be selected by the UN.”

The participation of governments means the participation of national sovereign powers of any type – dictatorship or authoritarian, monarchy, democratic, and non-democratic.  They may include North Korea, Iran, China, Russia, and other countries.

The involvement of the United Nations would have been desirable by virtue of the fact that the countries participating are signatories to International Treaties, Covenants, Executive Agreements, and the like. The problem is, some of these countries disregard International Law that covers these treaties. In fact, two (China and Russia) even have veto powers in the UN Security Council.

The United States prides itself not only as a land of the free and a shining example of democracy and republicanism but also as promoter and protector of the democratic ideals worldwide.

The role of the United States in creating the Internet and overseeing its tremendous growth and successful development cannot be ignored. By providing the necessary resources and effective oversight, it became a worldwide network benefitting billions of inhabitants. 

The Internet is where all users regardless of race, nationality, economic class, gender, age, and/or color could exercise freedom of expression.  It is also where freedom of association is respected. 

The Internet, being more accessible, available, and affordable to the masses, data, information, knowledge, and education have been easily accessible to them as well.  This is true in democratic governments as opposed to repressive regimes that restrict access to information and communications.

Of course, the right to privacy and data protection are also respected in the Cyberworld. So are consumer rights. New entrepreneurs have found easy ways of locating markets via online.

Even a freer exercise of religion through online preaching and propagation of their faith has been shown.

So, in the exercise of its oversight functions, and in investing on a new world structure, the United States did not do badly.  “If it ain’t broke, why fix it?”

The idea of turning over ICANN’s functions to a “multi-stakeholder” would some day be desirable if all governments or their front organizations have learned to respect human rights and not to restrict access to information and communications.  In fact, it would be great for all stakeholders if all governments would guarantee access to the Internet and adopt general principles to ensure that network use respects universal human rights.

Former President Bill Clinton who objects to the Obama plan had this to say, “I understand in theory why we would like to have a multi-stakeholder process. I favor that. I just know that a lot of these so-called multi-stakeholders are really governments that want to gag people and restrict access to the Internet.”

He also said, “A lot of people who have been trying to take this authority from the U.S. for the sole purpose of cracking down on Internet freedom and limiting it and having governments protect their backsides instead of empowering the people.”

The former President makes sense.  The Internet or the Cyberworld is the newest world order. The United States government gave birth to it, nurtured it, and oversaw its growth and development. It is a world predicted by its founders by creating its architecture and net infrastructure to become a dominant creature.

It is a world where the cloud is the limit.  It is democracy on display for the entire world to see. Either by design or by default, the United States is the undisputed leader.  It is one where the United States could promote and protect democratic ideals together with its freedom-loving allies. We are not even talking about its role on Cybercrime Prevention and Cybersecurity.

On the other hand, giving it up would just be helping the enemies of democracy.  It would allow the repressive governments to influence, if not control, content of the Internet. Those who regard certain contents as a threat to their holds to power could easily apply censorship. They could also stall technological innovation as these hostile governments dictate what can and cannot be done with the net.

The Internet has been managed by the United States for the benefit of the whole world. I do not see any good reason to abandon whatever role the country still has.

President Obama’s move is not an assertion of leadership. It is giving it up!

Wednesday, March 19, 2014

Human Rights vs. Military Justice in the Cudia Case

The talk at the barbershop is the case of PMA First Class Cadet Aldrin Jeffrey P. Cudia.
1st Class Cadet Aldrin Jeffrey P. Cudia
Cadet Cudia was accused and found guilty of violating the Honor Code by a group of student cadets who make up the Honor Committee. Many are taking issues with this finding because of the process and the corresponding consequences on Cudia.

Commander Junjie Tabuada of the Philippine Navy executed an affidavit detailing his conversation in January with Cadet First Class Lagura, a member of the Honor Committee who found Cadet Cudia guilty of violating the Honor Code.

In his affidavit, Commander Tabuada swore that Cadet Lagura told him that he originally voted to acquit Cudia but was pressured to change his vote. Lagura’s “not guilty” vote would have exonerated Cudia.

If the decision of the Honor Committee sticks, Cadet Cudia would suffer the following consequences:

1.    Excluded in the list of graduating class of Siklab Diwa 2014;
2.    Deprived of all the academic honors he deserves;
3.    Denied commission as new ensign of the Philippine Navy;
4.    Ostracized by all cadets;
5.    Dismissed or discharged from the military service; and/or
6.    Asked to refund or reimburse all expenses incurred for all his years as a PMA cadet. 
The PMA publication on the Honor Code states:

"Our Code does not deviate from the universal concept of Honor. It demands the truth ... nothing else, but the truth ... both by act and implication. Each cadet becomes a zealous guardian to this earmark of the Corps and will report another or himself for a violation of honor. It is in keeping this priceless legacy from our predecessors that we seek to transmit it unblemished to the unending gray line."

It further says, “Truth is the virtue of the Corps.”

The Commission on Human Rights (CHR) headed by Chairwoman Eta Rosales conducted its investigation to find out the truth.  Commander Tabuada reiterated his claim in a sworn testimony before the CHR.  It was also determined and admitted by other witnesses that the initial vote was 8-1 and changed to 9-0.

CHR concluded that Cadet Cudia’s human right to due process has been violated.

In order to discover the whole truth, the Honor Committee should make available all the records of the proceedings done against Cadet Cudia, including the video footage, audio records, and minutes of the proceedings to the new AFP Body reviewing the case.

There are Cadet recorders.  In fact, at West Point where the PMA Honor Code System was patterned, they even have Civilian Recorders. The records should be made available for the sake of finding out the truth.

The AFP reviewing body should also look into the certification and affidavit of Dr. Maria Monica Costales, the professor of the class that supposedly caused Cudia’s tardiness by two minutes.

First Class Cadet Cudia spent four (4) years of schooling going through rigorous mental and physical preparation which included initiation.  The taxpayers underwrote all that with an estimated expense of about Two Million Five Hundred Thousand Pesos (P2, 500,00.00).

Do we forego all that because Cadet Cudia was allegedly late two minutes in his next class - a subject the final exams of which he is exempted from taking by virtue of his excellent academic record?

Do we forego all that because he said he was dismissed later than usual? This was because he finished a long exam and was told to wait for his section grade by the professor who certified and swore to this fact.

The spirit of the Honor System is based on two basic questions:
Do I intend to deceive? Do I intend to take undue advantage?
Did Cadet Cudia’s actions and statement intend to deceive?  What on earth make his actions and statement so deceptive? 

Did he intend to take undue advantage? Why would he jeopardize his military career by bringing dishonor?  What advantage would he get?

The answer to these questions which is NO would negate any violation of the Honor Code.
The Philippine Military Academy (PMA) was organized under Commonwealth Act No. 1, Section 30 and Section 31.  Upon the recommendation of certain officials and upon the fulfillment of certain conditions that include among others physical and mental examinations, the President of the Philippines shall have the authority to appoint all of the cadets of the academy.

Correspondingly, the President also has the power to remove or dismiss any or all of them.

In the case of First Class Cadet Cudia who would have graduated as Salutatorian of the 2014 Graduating Class, his appointment by the President is being countermanded by a group of student cadets called Honor Committee.

The fact is, even those adjudged as guilty under the Honor Code are only asked to resign. They are not automatically dismissed or fired. 

The taxpayers and the Office of the President invested on Cadet Cudia.  He worked very hard to earn his diploma and did it with flying colors. He made his parents, relatives, and the taxpayers proud. He was a good investment!
Cadet Cudia has been unfairly deprived of due process. In a democracy like ours, which soldiers are called upon to protect, and where civilian authority reigns over the military, due process is a constitutional right enjoyed by all citizens.

Cadet Cudia deserves both the protection and enjoyment!

Wednesday, March 12, 2014

Take On Cunanan As A Witness

 In the Pork Barrel Scam a conspiracy to commit plunder, malversation and other corruption charges is alleged.  The scheme was supposed to have been planned and committed by, between, and among Janet Napoles assisted by her staff and a bunch of co-conspirators led by certain lawmakers, officials of DBM and implementing agencies, and officers of fake NGOs.

The Operating Scheme (OS) as discovered and reported proceeded this way: 
1.         Napoles and lawmaker agree:          
            (a) Lawmaker promises to designate Napoles’ NGOs as the recipients of his PDAF.
            (b) Napoles promises to give 40-60% of the cash value of the project as kickback.
2.         Lawmaker first submits a list of projects to the DBM.
3.         DBM issues a SARO (Special Allotment Release Order) to the lawmaker.
4.         Lawmaker endorses a selected NGO for the implementation agency.
5.         Implementing agency, without any public bidding, enters into an MOA (Memorandum of Agreement) with the NGO for the   implementation of the project.
6.         Documentation is drawn up and completed.
7.         DBM issues a Notice of Cash Allocation (NCA) to the implementing agency.
8.         Implementing agency receives NCA.
9.         Implementing agency issues a check to the Napoles NGO.
10.       JLN (Napoles NGO) employees deposit check.
11.       Cash withdrawn by employees.
12.       Cash delivered to Napoles.

Kickback Payments
1.    First payment (50%) in advance to the lawmaker upon submission of the project list to DBM. (See No. 2, Napoles OS)
2.    Second payment (50%) upon release of the SARO. (See No.3, Napoles OS)
3.    Chief-of-Staff of lawmaker or his representative who facilitates documents and follow ups with agencies for the lawmaker and Napoles gets 1-5% of the project cost
4.    Head of implementing agency gets 10%.
5.    Rest is pocketed by Napoles after deducting the cost of overpriced supplies such as agricultural kits and training materials procured from a supplier enterprise, which is owned by her, or the full remaining amount if there is no delivery.

Proving the conspiracy are the sworn testimonies of whistleblowers that actually participated in the scheme.   Corroborating the testimonies is documentary evidence including but not limited to books or ledger detailing the amounts paid as kickbacks to certain individuals who are now charged.  Other corroborating documentary evidence are sourced from the Commission on Audit and the Anti-Money Laundering Council.

Among the alleged co-conspirators are Senators Johnny Enrile, Jinggoy Estrada, and Bong Revilla.  Also charged is Dennis Cunanan, former Deputy Director General of the Technology Resource Center, one of the implementing government agencies that dealt with the Senators, Napoles, and the fake NGOs.

Dennis Cunanan
Dennis Cunanan applied to be a State Witness as well as to be under the Witness Protection Program (WPP). The Department of Justice (DOJ) provisionally admitted him under the WPP.  Only the Sandiganbayan upon the recommendation of the Ombudsman can approve his being a State Witness.

Cunanan is either guilty or innocent.  He continues to profess innocence.  From the point of view of the DOJ, of course, he is guilty. He just does not appear to be the “most guilty”. This is why he applied to be a State Witness.  This is also why his application was provisionally approved by the DOJ.

His sworn testimony directly linked Senators Revilla, Estrada, and Enrile among others to the Napoles scheme and to the fake NGOs.  Documentary evidence as well as the testimonies and records of the whistleblowers corroborate it.  He showed motive on the part of the Senators when they pressured him to accelerate the process.

Reading his affidavit, corroborated by documentary evidence and also by the testimonies of Benhur Luy and company in relation to the conspiracy affecting TRC, I find Dennis Cunanan credible and necessary to nail Revilla, Estrada and Enrile. Taken all together, the witnesses point to this conclusion. Senator Miriam Santiago and of course, Secretary de Lima would attest to a similar view.

But the effective questioning and interpellation by Senators Grace Poe and Koko Pimentel revealed an apparent conflict between the claims of Star Witness Benhur Luy and Dennis Cunanan.  The latter maintained his innocence refusing to admit that he received any financial benefit from the scheme.

In an earlier sworn testimony, Benhur Luy had stated that he prepared and caused the delivery in a paper bag the amount of P960, 000 to Dennis Cunanan through Evelyn de Leon.  Luy admitted that he never saw Cunanan actually receiving the money but saw him carrying the same paper bag when he got out of the room where he met Napoles and de Leon.

Cunanan is one of the recipients of cash (P960K) as recorded in Luy’s ledger.  Luy also stated in detail the preparation and delivery of the cash in a paper bag intended for Cunanan via de Leon.

Why is Cunanan denying it? Admitting it would still qualify him to be a State Witness.  What was in the paper bag that he was carrying when getting out of the room? Did it still contain the cash? If it was still there, was he carrying it to be given to his boss? Is it part of the agency commission for TRC and not a kickback?  If so, did he turn it over to TRC? I always assumed that he financially benefited from the scheme.

Secretary de Lima asked Cunanan to “rectify” or clarify the situation.  His status as a witness is in question.  

Many in the barbershop, cyberspace and other places are waiting for the answer!