By Rico Foz*
“The State shall afford full protection to labor, local and overseas.”*
(Section 3, Art. XIII, Philippine Constitution)
The New York Supreme Court Appellate Division issued on January 13, 2009 its decision prohibiting the Suffolk County District Attorney from prosecuting the Avalon 10 nurses and their labor lawyer. It made findings of facts that conflicted with findings of facts made by Philippine government agencies in related cases. The Philippine agencies’ findings did not rule in favor of former Sentosa nurses. The New York court decision did. This discrepancy has led not a few from the Filipino-American community to ask: “Can we really expect the Philippine government to uphold the dignity and fundamental human rights of labor? Or shall we look instead to a foreign court to render justice to Filipino migrant workers?”
Background
Back in 2006, the former Sentosa nurses filed complaints against Sentosa Recruitment Agency (SRA), its Philippine-based recruiter, and its nursing home-principals for misrepresentation in the recruitment process and for contract-substitution. The nurses submitted to the Philippine Overseas Employment Administration (POEA) documentary as well as testimonial evidence to the effect that their recruiter had misrepresented to them the nature of their employment in the United States. They argued that their recruiter had represented that each nurse would be directly-hired by his or her respective contracting employer. The contracting employers were the various nursing home facilities accredited by the POEA as SRA’s principals. Each nurse and a particular nursing home-employer signed a three-year employment agreement. Upon the nurses’ arrival in the United States, they were not offered employment by their respective contracting employers. Instead, they found employment with Prompt Nursing Employment Agency, doing business as Sentosa Services. The nurses learned to their surprise that Francris Luyun, SRA’s proprietor, was himself working in New York as the international recruiter for Prompt/Sentosa Services. Prompt/Sentosa Services thereafter assigned the nurses to work at various nursing home facilities managed by Sentosa Care, LLC, a healthcare management company owned by Bent Philipson.
The nurses likewise filed money claims and constructive dismissal complaints against SRA’s principals before the National Labor Relations Commission (NLRC). They also filed illegal recruitment complaints before the Philippine Department of Justice (DOJ) against Luyun, SRA and its officers, and Philipson.
The POEA Decision
The POEA dismissed the complaints filed by the nurses in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al., POEA Case No. RV-06-05-0713 and DAE-06-05-0551.
It found the following facts to have been allegedly “established by the records”:
1. “ Sentosa Recruitment Agency is a duly licensed recruitment agency of this Administration.
2. There is a Recruitment Agreement between Sentosa Recruitment Agency and Sentosa Care LLC.
3. Sentosa Care LLC has individual Special Power of Attorneys from each of its affiliates, authorizing Sentosa Care LLC to represent the affiliate in any transaction relative to the recruitment of Filipino workers, and all of it business operations.
4. Each of the affiliates, to which Sentosa Care LLC has individual Special Power of Attorney, are all identified and listed in the official website of the Sentosa Recruitment Agency and Sentosa Care LLC.
5. The notice/information as published in the official website of Sentosa Recruitment Agency is for the Filipino nurses to work in the biggest privately owned healthcare group in downstate New York – Sentosa Care Group – also referring to the Sentosa Care LLC.
6. Complainants were deployed with the Sentosa Care Group using EB-3 visas, obtained by Sentosa Recruitment Agency, totally at no cost to the complainants.”
The POEA ruled that “as to alleged misrepresentation relating to publication of false information, this Administration finds that no such false information was published in flyers or advertised in the websites that will constitute the alleged misrepresentation.” It reasoned that “Sentosa Care LLC as the managing company … entered into a Recruitment Agreement with Sentosa Recruitment Agency for and in behalf of each affiliated companies who in turn executed individual special power of attorneys in favor of Bent Philipson as Managing Partner and Chief Operating Officer of Sentosa Care LLC.”
The POEA found that “Sentosa Recruitment Agency is the local agency of the direct foreign principal which is the Sentosa Care LLC and its affiliated companies. It is not Prompt Nursing Employment Agency, Sentosa Services and Home Care Center, Inc. The fact that they receive their salaries from the aforementioned three entities does not make them their employers because the Sentosa Care Group is merely outsourcing the services of these entities for its payroll, purchasing and other administrative operations and all the facilities under respondent Sentosa Care closely coordinate with the outsourcing company on its operations.”
It ruled that “the fact that the complainants were made to work for a facility different from that appearing in their OECs and in their POEA approved contracts does not make for a case of misrepresentation. What is more important to consider is the fact that all the facilities from where they were made to work are all affiliated companies managed by Sentosa Care LLC and they are all duly registered with POEA as affiliates.”
It further ruled that “complainants failed to prove that because of their assignment to a healthcare facility different from that appearing in their DOLE approved contract there was diminution of their benefits and privileges.”
The NLRC Decision
The nurses’ money claims and constructive dismissal complaints were assigned to the Executive Labor Arbiter, who, on January 24, 2008, dismissed the complaints (Juliet Anilao et al. v. Sentosa Recruitment Agency et al., NLRC OFW Case Nos. (L) 06-05-01397-00 and (L) 06-12-03784-00).
The Executive Labor Arbiter made the following findings:
1. “…(E)xcept for the last batch of complainants, who gave two or four days notice, all other complainants tendered their respective resignations en mass, either before or after their respective shifts to take effect immediately. In short, there was no sufficient notice given to their employer.
2. Under the employment contracts, the employees, herein complainants, agree to be employed for three years. It is also stipulated that after three (3) years of employment, the employer and the employees agree to give each other two (2) weeks notice of intent before terminating their employment.
3. If, under their agreement for employment, the parties have agreed to give each others at least two (2) weeks notice of intent before terminating their employment after the three years expiration of their contract, with more reason that the complainants-employees should have given their employer sufficient time inorder to find their replacement inasmuch as the nurses pre-terminated their employment contracts.
4. Under art. 285 (a) of the Labor Code, as amended, it is necessary that service of notice of the termination or resignation letter to the employer must be made at least one (1) month in advance….Unfortunately, this was not observed by the complainants, thus constituting a clear violation of the aforequoted provision of the Labor Code. All told, complainants herein who tendered their voluntary resignation cannot claim that they were constructively dismissed.”
The DOJ Decision
Like the POEA and the NLRC, the Philippine DOJ, in Elmer Jacinto et al. v. Bent Philipson et al., I.S. Nos. 2006-472, summarily dismissed the illegal recruitment complaints. It found, thus:
“… (T)here was no substantive alteration in the employment contracts signed by the complainants to sustain findings of illegal recruitment against the respondents. It is clear that what happened was that respondents for one reason or another, failed to fully comply and fully implement the stipulations entered into by both parties. Respondents’ failure to fully comply with the stipulations in their contracts or the alleged breach of their contracts may warrant an action which is civil in nature, but definitely, not a criminal action.”
The NY Supreme Court Appellate Division’s Decision
The Appellate Division of the New York Supreme Court, in issuing the extraordinary writ of prohibition in the case of Matter of Vinluan v Doyle, __A.D.3d __, 2009 WL 93065 (2d. Dept. Jan. 13, 2009), made the following findings of facts:
1. The nurses “were recruited to work in the United States by the Sentosa Recruitment Agency, a Philippine-based company that hires nurses for several nursing care facilities in New York”.
2. “Each of the nurses signed an employment contract with the specific nursing homes for which they had been selected to work.”
3. “When the nurses arrived in the United States, they learned that they would be working for an employment agency instead of the specific nursing homes they had signed contracts with.”
4. “The nurses alleged that almost immediately, … issues arose concerning the terms of their employment, and the promises made to them in the Philippines were breached.”
5. “The nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter which they had agreed upon together.”
6. “Following an investigation, on September 28, 2006, the Education Department closed the nurses’ cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.”
7. “The prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will.”
POEA and NY Appellate Division’s Decisions
The POEA decision admits that the nurses individually signed employment agreements with accredited nursing home principals of SRA. It however concludes that the actual employer was Sentosa Care Group or Sentosa Care, LLC, the healthcare management company. The nursing employment agency (Prompt/Sentosa Services) was allegedly only a payroll company. That the nurses were made to work in facilities different from their contracting employers was inconsequential as their actual worksite-facilities were likewise facilities affiliated with Sentosa Care Group (or Sentosa Care, LLC).
The NY Court’s decision likewise found the nurses to have entered into employment agreements with specific nursing home facilities. It differs from the POEA decision in that it understands the non-provision by the contracting employers of employment to the contracted nurses as a “breach” of the employment agreements. It found Prompt/Sentosa Services as the at-will employer of the nurses. As at-will employees, the nurses had the right to resign at anytime, except in the middle of their work shifts. Prosecuting the nurses for exercising their right to resign as at-will employees impermissibly criminalizes their protected labor activity in violation of the 13th Amendment.
Critique on the POEA Decision
The POEA decision finds its fulcrum on the alleged findings of fact that there was a recruitment agreement between SRA and Sentosa Care, LLC, and that Sentosa Care, LLC has a special power of attorney from each of its affiliated nursing home facilities. The nurses’ lawyers claim that neither the recruitment agreement nor the special power of attorneys was submitted during the proceedings. The findings are simply not supported by the records of the case. Even assuming these findings to be grounded in reality, the fact remains that each nurse entered into an employment agreement with a nursing home facility-principal of SRA. The nurses did not sign up with Sentosa Care Group. Each one of them was induced to be recruited by SRA’s representation that each recruit would be directly-hired by his/her contracting employer. They were not informed that they would be working for Sentosa Care Group. In fact, Sentosa Care Group or Sentosa Care, LLC is not even an accredited principal of SRA.
POEA conveniently dismissed the nurses’ contention that Prompt/Sentosa Services was their actual employer, and not merely a payroll company. The decision did not bother to discuss the elements of employer-employee relationship. It ignored the voluminous documentary evidence submitted by the nurses proving their having been employed, not by a nursing home facility nor by Sentosa Care, LLC, but by Prompt Nursing Employment Agency/Sentosa Services.
The Role of Prompt Nursing Employment Agency
In its brazen attempt not to find employer-employee relationship between the nurses, on one hand, and Prompt or Sentosa Services, on the other hand, the POEA characterized Prompt/Sentosa Services’ role as merely that of a payroll company. Documentary evidence was however submitted by SRA itself that belied this finding. SRA submitted a copy of the Complaint filed by Sentosa’s Philipson in Nassau County Supreme Court entitled Sentosa Care, LLC et al. vs Anilao et al., Index No. 006079/06. Prompt Nursing Employment Agency is one of the named plaintiffs in this civil case. Pertinent paragraphs of the Complaint support the nurses’ contention that Prompt, in collusion with SRA, violated POEA rules and regulations on illegal recruitment.
Paragraphs 12, 16, 17, 18 and 19 of the Complaint state, thus:
“ x x x.
12. Prompt is a New York corporation with its principal place of business located at 204 Broadway, Brooklyn, NY 11211, engaged in the recruitment and placement of nurses and other healthcare workers with employers.
x x x.
16. Representatives of Prompt traveled to the Philippines and recruited the Nurses, many of whom had little or no experience working as nurses, to work at the Sentosa Facilities.
17. Among other things, Prompt financed the Nurses’ travel expenses to come to the United States, provided them with housing for two months at no cost, provided them with several weeks of orientation, training, financed the licensing process with the New York Department of Education and financed the immigration process to enable them to enter, work and remain in the United States.
18. Prompt informed the Nurses in advance that they would be expected to work --- initially at a reduced rate of compensation which would be increased from time to time.
19. Upon commencement of their employment, the Nurses were also given health care coverage, two weeks vacation and an extra week to study and prepare for licensing tests.
x x x.”
The judicial admissions by Prompt that it traveled to the Philippines and recruited nurses manifestly reveal its true role. As a “recruitment and placement” agency, it colluded with SRA, which was owned by its own employee/independent contractor Francris Luyun, to recruit Filipino nurses and assign them elsewhere, which in this case, would be the various Sentosa-afiliated facilities. Prompt was not merely a payroll company. It actually employed the recruited nurses whom it “placed” or assigned to work at the various Sentosa facilities.
At the outset, SRA and Luyun knew that the recruited nurses would not be working for the contracting nursing home-employers. SRA and Luyun knew that the nurses would be working for a nursing agency – Prompt/Sentosa Services. Luyun clearly misrepresented this fact to the detriment of the nurse-recruits.
Furthermore, by Prompt’s judicial admission, the POEA should have found that SRA and Prompt violated POEA rules and regulations concerning who can recruit in the Philippines. Prompt/Sentosa Services is neither a licensed recruitment agency in the Philippines nor an accredited principal of SRA. Why should it recruit or be allowed to recruit then in the Philippines? Prompt’s recruitment activities in the Philippines constituted a flagrant violation of Philippine recruitment rules and regulations.
NLRC and NY Appellate Division Decisions
Like the POEA decision, the NLRC decision did not bother to analyze whether or not Prompt/Sentosa Services was indeed the actual employer of the nurses. It unjustifiably presumed that the nursing home facilities that contracted with the nurses were the employers of the nurses. That was precisely the bone of contention. The nurses complained that they were not employed by the contracting nursing home facilities. They argued they were employed by Prompt/Sentosa Services. The Executive Labor Arbiter, however, did not analyze the documentary evidence submitted that proved the existence of employer-employee relationship between Prompt/Sentosa Services and the nurses. She ruled that the nurses were the ones who preterminated their employment agreements when they resigned from their jobs. She even went on to say that the nurses had the obligation to give at least one month notice of their intention to resign from their jobs.
The NY court decision, however, found that terms of the nurses’ employment contracts were breached. When the nurses found employment with the nursing employment agency, they entered into an “employment at will” relationship with the agency. The Appellate Division ruled that they had the right to resign anytime, so long as it was not in the middle of their shifts. Clearly, they had no obligation to give any notice at all, much more so a one-month notice. It must be emphasized that New York State is an “employment-at-will” state (http://www.labor.state.ny.us/workerprotection/laborstandards/faq.shtm).
The DOJ and NY Court Decisions
The DOJ remarkably found that the contracting nursing home facilities “failed to fully comply and fully implement the stipulations entered” into with the nurses. Although it acknowledged the nurses may have a civil cause of action against their contracting employers, the DOJ ruled that the contracts were not substantially altered as to constitute the crime of illegal recruitment.
The Appellate Division did not discuss the issue of substantial alterations to the employment contracts. It did however find that terms of the employment contracts were “breached”.
When the POEA decided that SRA and its nursing home principals did not violate any POEA rule or regulation, the DOJ deemed it had no choice but to dismiss the illegal recruitment complaints. In so doing, the DOJ miserably failed to rise to the occasion by not finding that SRA misrepresented the nature of the nurses’ employment. SRA’s website and flyers that promised “direct-hire” employment and the employment contracts that stated which “specific nursing homes” as the nurses’ employers, when understood together, clearly represented that a recruited nurse would be directly hired by his/her contracting employer, not by a healthcare management company (Sentosa Care Group or Sentosa Care, LLC), nor by a third-party nursing employment agency (Prompt/Sentosa Services). Proof of the misrepresentation was the fact that the nurses were made agency nurses of Prompt/Sentosa Services. This misrepresentation alone would have been sufficient to find probable cause to accuse SRA and its officers with illegal recruitment.
POEA’s Review of Sentosa Contracts
Inquirer.net reported on January 20, 2009 that the new POEA Administrator, Jennifer Manalili, had reviewed Sentosa contracts after the New York Court came out with its decision in favor of the former Sentosa nurses. She opined that the “liquidated damages” provision of the employment contracts whereby a nurse would pay the employer $25,000 in damages if he/she preterminated the 3-year employment contract “did not seem illegal” and was “reasonable”.
Whether the “liquidated damages” provision was reasonable or not should not have been the issue the POEA Administrator concerned herself with. She should have instead looked at the “parties” of the employment contract and clarified who the “employer” is of a particular nurse. What does the contract say? Does it name “Sentosa Care Group” or “Sentosa Care, LLC” as the “employer” of the nurses? In addition to the “parties” of the employment contracts, the POEA Administrator should have reviewed the Administration’s files if a “Sentosa Care Group” or a “Sentosa Care, LLC” is indeed registered as an accredited principal of SRA.
Sentosa Care Group or Sentosa Care, LLC is not a party to any of the employment agreements signed by any of the nurses. It is likewise not an accredited principal of SRA. Why should Sentosa Care, LLC then be considered by the POEA as the “direct foreign principal” of SRA and the employer of the nurses?
Liquidated Damages or Penalty?
The employment agreements as prepared by SRA provided that the nurses would have to pay twenty five thousand dollars ($25,000) “as liquidated damages penalty” if they were to preterminate their 3-year agreement. If only to belabor the point, the contracting employers were the ones that breached the employment agreements when they did not afford the contracted nurses any employment at all. The nurses were the aggrieved parties to breached contracts. Thus, the aforementioned liquidated damages provision in the employment agreements would be a non-issue insofar as the nurses are concerned.
Furthermore, liquidated damages provisions in the state of New York are unenforceable if they provide for a “penalty” (Vernitron Corp. v CF 48 Associates, 478 N.Y.S.2d, 933, 934). That is precisely how the adhesion contracts prepared by SRA worded the provision – a “penalty”. A liquidated damages provision to be enforceable must provide for graduated damages based upon the degree of breach. Fixing the damages at $25,000 whether the breach occurred a few months after the start of the contract or a few months before the end of a 3-year contract exemplifies the nature of the provision as a penalty. It penalizes a breach in the same amount regardless of when the breach happened relative to the term of the contract. To be enforceable, liquidated damages provisions should set out a specific formula that would result in a reasonable approximation of harm suffered. They should not seek to penalize the breaching party. In the Sentosa contracts, the provision is clearly a penalty, and is therefore unenforceable.
Challenge to the Philippine Secretaries of Labor and of Justice
In light of the recent decision by the NY Appellate Division vis-à-vis the POEA, NLRC and DOJ decisions, we call upon the Philippine Secretary of Labor to reverse the POEA’s decision in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al. The appeal has been sitting on the Secretary’s desk for quite some time now. It is about time to right a wrong. The Labor Secretary must likewise instruct the National Labor Relations Commission (NLRC) to review its findings in Juliet Anilao et al. v. Sentosa Recruitment Agency et al.
We also challenge the Philippine Secretary of Justice to motu propio initiate an investigation into the recruitment activities of SRA and its accredited principals. Not only does SRA misrepresent the nature of employment of its nurse-recruits. It has colluded with a non-licensee and a non-principal to engage in recruitment activities in the Philippines. SRA’s employment contracts with its nurses do not follow its approved model contract. The actual employment agreements that SRA require its recruits to sign do not contain the minimum provisions as mandated by Part V, Rule I, section 2, 2002 POEA Rules in relation to Memo Circular #26, series of 2003. Luyun, in collusion with Prompt/Sentosa Services and its accredited principals, has coerced workers to accept prejudicial arrangements in exchange for certain benefits that rightfully belong to the workers (Part VI, Rule I, section 2t, 2002 POEA Rules). Finally, SRA has deployed workers to principals not accredited by the Administration (Part VI, Rule1, section 2q, 2002 POEA Rules).
Or shall we expect the Philippine government agencies to remain inutile and not give true meaning to the constitutional mandate to afford full protection to labor? Must justice for Filipino migrant workers come from a foreign court? Pray, tell, the Philippine government can protect the interests of its citizens, especially those it calls the “new heroes of the nation”.
* The author is the Executive Vice President of the National Alliance for Filipino Concerns (NAFCON), a national, multi-issue alliance of Filipino organizations and individuals in the United States serving to protect the rights and welfare of Filipinos by fighting for social, economic, and racial justice and equality. He is also the Lead Campaign Convener of the “Justice for Sentosa 27++! Justice for all Filipino Migrant Workers!”
Sunday, March 22, 2009
Saturday, March 21, 2009
The Bigger Picture
Streetwise
By Carol Pagaduan-Araullo
Business World
Vol. XXII, No. 163, Friday, March 20, 2009 | MANILA, PHILIPPINES
The headline of a widely circulated broadsheet screams, “Nicole recants, clears Smith”. For the first time, the face of the young Filipina raped by a US marine, who used the pseudonym Nicole to hide her real identity, is published in the front page with the caption “The Unveiling, Unmaking of Nicole”. The temptation to sensationalize the purported recantation; to accept it hook, line and sinker; and to thereafter condemn Nicole is so strong, many have succumbed to it.
Nicole is disparaged and scorned for either taking almost everyone, including a court of law, for a ride crying “Rape!” Or for changing her story and allowing herself to appear as the stereotypical slut and gold digger, out to hook an American soldier that the defense lawyers had tried to do during trial but failed.
Not a few are disappointed and disheartened. While they do not condemn her for caving in to tremendous pressure from all sides to give up the fight for justice, they secretly wish that she had been made of sterner stuff. At least, that she had some remaining sense of decency not to have reportedly flown off to the United States with a new-found American boyfriend, in order to pursue the foolhardy dream of the colonial-minded.
As for Smith’s lawyer, Atty. Jose Justiniano, what is important is not Nicole’s credibility nor reputation, nor the public’s affront at this distasteful turn of events, only that she has retracted critical parts of her earlier testimony, sufficient to jeopardize the legal victory she had attained in a lower court. The wily lawyer that he is, Mr. Justiniano knows that the defense has successfully thrown a monkey wrench into the overall equation, no matter that the predominant legal opinion is that Nicole’s latest affidavit is no better than a scrap of paper.
We leave it to the legal experts to explain why Nicole’s “recantation” is worthless going by the rules of court and the law on evidence applicable in this case. What must be exposed are the highly suspicious circumstances surrounding the execution of the affidavit that render it totally lacking in credibility despite the claims of the victim’s mother that Nicole signed it of her own free will and that it is not an out-of-court settlement.
Atty. Evalyn Ursua , Nicole’s dismissed lawyer, says that the affidavit has all the hallmarks of something the defense lawyers cooked up. For one it contains the line of defense used unsuccessfully by Smith at his trial. Moreover, going by what she knew about her client in the three years that she counseled her, Ms. Ursua says that the affidavit does not “sound” like Nicole at all. And why did it have to be one of the lawyers in the law firm that is defending Smith, to notarize the document? Nicole herself is conveniently unavailable to either corroborate or refute the contents of the affidavit.
Those who easily condemn Nicole forget what she has been up against in pursuing the rape case against US Marine Smith. They forget that Smith was fully backed by his government, the superpower USA. This is the same superpower that has ignored worldwide protests and has single-mindedly, as well as violently, imposed its imperial designs on sovereign countries. It is the same US government that has threatened sovereign states with economic sanctions to dissuade them from ratifying the Rome Statute. In so doing, US troops and civilian personnel are exempted from prosecution by the International Criminal Court for violations of human rights and international law.
Even worse, Nicole has had to contend with the Philippine government, her government, which has consistently been more concerned with not offending, but rather sucking up to, the US government, than defending its own citizen's rights.
Sec. Gonzales and his prosecutors have used the “recantation” to further assail the credibility of their own client, the person they are duty-bound to stand by considering that the criminal justice system from the police to the fiscals to the trial judge all found that the evidence presented proved Nicole to have been raped by Smith.
Recall how Sec. Gonzales badgered and threatened the fiscal in Olongapo and later, in Makati, with administrative sanctions when they stood their ground in finding that all four US servicemen who were at the scene of the crime be indicted. Recall how disparaging Mr. Gonzales was about Nicole.
See how the public prosecutors showed little understanding much less sympathy for the plight of Nicole then and now. Remember how Nicole’s mother then made public her disgust that the government prosecutors were pushing for an out-of-court settlement rather than a conviction.
In this light, Nicole's "retraction" is hardly worth considering. Nicole is clearly the victim twice-over: she was raped by US marine Smith and now she has somehow been duped to be a party to her own undoing by Smith’s lawyers with the collusion of the US and Philippine governments.
So what is the game plan here? First, the rape conviction. To have it overturned by the Court of Appeals by means of Nicole’s much-ballyhooed “recantation”, if not legally, then extra legally, by shaping the public’s and the justices’ opinion that there is now, at the minimum, doubt as to the guilt of Smith.
The fish is caught by the mouth. Sec. Ermita says that if Smith is set free then the issue of custody is rendered moot. The Arroyo regime will no longer have to engage in negotiations for custody and be subjected to the indignity of being ignored by the US government. He predicts that calls for abrogation of the VFA will loose steam.
Again, this regime and US foreign policymakers who have not changed gears despite US President Obama’s I-am-the-darling- of-the-American- people and I-am-the-friend- of-the-world’s peoples pose, grossly underestimate how the lesson in the Nicole rape case is getting hammered, little by little, into the Filipino people’s consciousness. That is, with the VFA, Filipinos are treated as second class citizens in their own country, no different from the victims of American soldiers’ abuse when the US bases were still around.
US Ambassador Kenney will do a song-and-dance number, kiss babies, hand over reward money to Abu Sayyaf bounty hunters and lecture the Philippines ever so sweetly about how democratic elections should take place in the grand tradition of the US of A. But she, as the principal representative of an overweening, aggressive Superpower out to corner the best business deals and the world’s resources, will deny Nicole and other Filipino victims of crimes perpetrated by the US armed forces their due justice.
Outrage as to how the Arroyo government sells out the country’s sovereignty and the people’s rights to a former colonizer, acting now as neocolonizer, will accumulate over time, to an extent and to a degree, much more than the outrage at the abuse inflicted on this unfortunate individual Filipino who goes by the name Nicole.#
By Carol Pagaduan-Araullo
Business World
Vol. XXII, No. 163, Friday, March 20, 2009 | MANILA, PHILIPPINES
The headline of a widely circulated broadsheet screams, “Nicole recants, clears Smith”. For the first time, the face of the young Filipina raped by a US marine, who used the pseudonym Nicole to hide her real identity, is published in the front page with the caption “The Unveiling, Unmaking of Nicole”. The temptation to sensationalize the purported recantation; to accept it hook, line and sinker; and to thereafter condemn Nicole is so strong, many have succumbed to it.
Nicole is disparaged and scorned for either taking almost everyone, including a court of law, for a ride crying “Rape!” Or for changing her story and allowing herself to appear as the stereotypical slut and gold digger, out to hook an American soldier that the defense lawyers had tried to do during trial but failed.
Not a few are disappointed and disheartened. While they do not condemn her for caving in to tremendous pressure from all sides to give up the fight for justice, they secretly wish that she had been made of sterner stuff. At least, that she had some remaining sense of decency not to have reportedly flown off to the United States with a new-found American boyfriend, in order to pursue the foolhardy dream of the colonial-minded.
As for Smith’s lawyer, Atty. Jose Justiniano, what is important is not Nicole’s credibility nor reputation, nor the public’s affront at this distasteful turn of events, only that she has retracted critical parts of her earlier testimony, sufficient to jeopardize the legal victory she had attained in a lower court. The wily lawyer that he is, Mr. Justiniano knows that the defense has successfully thrown a monkey wrench into the overall equation, no matter that the predominant legal opinion is that Nicole’s latest affidavit is no better than a scrap of paper.
We leave it to the legal experts to explain why Nicole’s “recantation” is worthless going by the rules of court and the law on evidence applicable in this case. What must be exposed are the highly suspicious circumstances surrounding the execution of the affidavit that render it totally lacking in credibility despite the claims of the victim’s mother that Nicole signed it of her own free will and that it is not an out-of-court settlement.
Atty. Evalyn Ursua , Nicole’s dismissed lawyer, says that the affidavit has all the hallmarks of something the defense lawyers cooked up. For one it contains the line of defense used unsuccessfully by Smith at his trial. Moreover, going by what she knew about her client in the three years that she counseled her, Ms. Ursua says that the affidavit does not “sound” like Nicole at all. And why did it have to be one of the lawyers in the law firm that is defending Smith, to notarize the document? Nicole herself is conveniently unavailable to either corroborate or refute the contents of the affidavit.
Those who easily condemn Nicole forget what she has been up against in pursuing the rape case against US Marine Smith. They forget that Smith was fully backed by his government, the superpower USA. This is the same superpower that has ignored worldwide protests and has single-mindedly, as well as violently, imposed its imperial designs on sovereign countries. It is the same US government that has threatened sovereign states with economic sanctions to dissuade them from ratifying the Rome Statute. In so doing, US troops and civilian personnel are exempted from prosecution by the International Criminal Court for violations of human rights and international law.
Even worse, Nicole has had to contend with the Philippine government, her government, which has consistently been more concerned with not offending, but rather sucking up to, the US government, than defending its own citizen's rights.
Sec. Gonzales and his prosecutors have used the “recantation” to further assail the credibility of their own client, the person they are duty-bound to stand by considering that the criminal justice system from the police to the fiscals to the trial judge all found that the evidence presented proved Nicole to have been raped by Smith.
Recall how Sec. Gonzales badgered and threatened the fiscal in Olongapo and later, in Makati, with administrative sanctions when they stood their ground in finding that all four US servicemen who were at the scene of the crime be indicted. Recall how disparaging Mr. Gonzales was about Nicole.
See how the public prosecutors showed little understanding much less sympathy for the plight of Nicole then and now. Remember how Nicole’s mother then made public her disgust that the government prosecutors were pushing for an out-of-court settlement rather than a conviction.
In this light, Nicole's "retraction" is hardly worth considering. Nicole is clearly the victim twice-over: she was raped by US marine Smith and now she has somehow been duped to be a party to her own undoing by Smith’s lawyers with the collusion of the US and Philippine governments.
So what is the game plan here? First, the rape conviction. To have it overturned by the Court of Appeals by means of Nicole’s much-ballyhooed “recantation”, if not legally, then extra legally, by shaping the public’s and the justices’ opinion that there is now, at the minimum, doubt as to the guilt of Smith.
The fish is caught by the mouth. Sec. Ermita says that if Smith is set free then the issue of custody is rendered moot. The Arroyo regime will no longer have to engage in negotiations for custody and be subjected to the indignity of being ignored by the US government. He predicts that calls for abrogation of the VFA will loose steam.
Again, this regime and US foreign policymakers who have not changed gears despite US President Obama’s I-am-the-darling- of-the-American- people and I-am-the-friend- of-the-world’s peoples pose, grossly underestimate how the lesson in the Nicole rape case is getting hammered, little by little, into the Filipino people’s consciousness. That is, with the VFA, Filipinos are treated as second class citizens in their own country, no different from the victims of American soldiers’ abuse when the US bases were still around.
US Ambassador Kenney will do a song-and-dance number, kiss babies, hand over reward money to Abu Sayyaf bounty hunters and lecture the Philippines ever so sweetly about how democratic elections should take place in the grand tradition of the US of A. But she, as the principal representative of an overweening, aggressive Superpower out to corner the best business deals and the world’s resources, will deny Nicole and other Filipino victims of crimes perpetrated by the US armed forces their due justice.
Outrage as to how the Arroyo government sells out the country’s sovereignty and the people’s rights to a former colonizer, acting now as neocolonizer, will accumulate over time, to an extent and to a degree, much more than the outrage at the abuse inflicted on this unfortunate individual Filipino who goes by the name Nicole.#
Friday, March 20, 2009
Nicole Did Not Fail Us. The Justice System Did
by: Rob Ty
Mar 18, '09 12:34 PM
Sen. Francis Pangilinan's words, not mine. But I completely agree with him.
Let's one thing straight: We are not the victims here. She is. We've never been raped. Never been exposed to an overblown media circus. Never been agitated in court. Never been harassed by reporters, lawyers and embassy men.
So when someone like Korina Sanchez announces on her AM radio station that Nicole is a disgrace to Filipino women everywhere (translated from tagalog), you can't help but shudder.
So this is justice, this is hate. It's no wonder she left the country.
We are not the victims here. Yet, we are the ones who cannot forgive. Here we are, sitting in our armchairs, waving our nation's flags, our gender's hopes, our nurtured concepts of justice.
But the thing is, we did nothing. We let people like Raul Gonzalez change the prosecutors of the case. We let people like NSA Norberto Gonzales change custody of Smith in the dead of the night. We let the US embassy exert pressure on Nicole by withdrawing her US VISA. We allowed countless women like Nicole to be gobbled up by the system, by the politics.
So who are we to judge? Who are we to cast the first stone?
Truth be told, we've already used her up. We got the conviction - which allowed us to question the VFA in the Supreme Court. We got the Supreme Court decision.
What more do we want? Maybe just more blood, sweat and tears.
What Can We Do?
Right now, if you really care for Nicole, you will support the drafting of a disbarment complaint against Daniel Smith's lawyer.
Why? At the time of the affidavit (March 12), Evalyn Ursua was still Nicole's lawyer. She was only fired last Monday (March 16). Smith's lawyer violated a cardinal rule of legal ethics by talking to Nicole behind her lawyer's back. Why is this unethical? The legal reason is that it undermines a fellow attorney's ability to handle her client's case. It's a form of disrespect for a colleague. The practical reason is to prevent people from being tricked since the best defense against the opposing lawyer, is your own lawyer.
In the case of Camacho v. Pangulayan, a UP law professor accused some lawyers of directly negotiating with his clients in order to obtain an amicable settlement. In effect, they ignored him even though he was the counsel on record. The Court agreed with the professor and said that the failure to inform opposing counsel is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. The erring lawyer was suspended from the practice of law for three months.
Fast forward to the present: Smith's lawyer prepares a statement, has a junior associate (who, by the way, is a UP law graduate) notarize the document, and then asks Nicole to sign it as a condition for the release of her VISA and 100,000 pesos. All this WITHOUT EVER consulting her counsel on record.
If Nicole had a lawyer, she might still have signed the affidavit. But it would have never looked this bad. Take a look at paragraphs 6-10, which incorporate all the arguments the defense raised during trial. ALL OF THEM.
And then take a look at the last sentence of the affidavit: "I would rather risk public outrage than do nothing to help the court in ensuring that justice is served." The sentence brings a whole new low to the legal profession. I admit I am ashamed of what we have become.
Nicole left everything behind so she could start anew, and I don't blame her. Not one bit.
Mar 18, '09 12:34 PM
Sen. Francis Pangilinan's words, not mine. But I completely agree with him.
Let's one thing straight: We are not the victims here. She is. We've never been raped. Never been exposed to an overblown media circus. Never been agitated in court. Never been harassed by reporters, lawyers and embassy men.
So when someone like Korina Sanchez announces on her AM radio station that Nicole is a disgrace to Filipino women everywhere (translated from tagalog), you can't help but shudder.
So this is justice, this is hate. It's no wonder she left the country.
We are not the victims here. Yet, we are the ones who cannot forgive. Here we are, sitting in our armchairs, waving our nation's flags, our gender's hopes, our nurtured concepts of justice.
But the thing is, we did nothing. We let people like Raul Gonzalez change the prosecutors of the case. We let people like NSA Norberto Gonzales change custody of Smith in the dead of the night. We let the US embassy exert pressure on Nicole by withdrawing her US VISA. We allowed countless women like Nicole to be gobbled up by the system, by the politics.
So who are we to judge? Who are we to cast the first stone?
Truth be told, we've already used her up. We got the conviction - which allowed us to question the VFA in the Supreme Court. We got the Supreme Court decision.
What more do we want? Maybe just more blood, sweat and tears.
What Can We Do?
Right now, if you really care for Nicole, you will support the drafting of a disbarment complaint against Daniel Smith's lawyer.
Why? At the time of the affidavit (March 12), Evalyn Ursua was still Nicole's lawyer. She was only fired last Monday (March 16). Smith's lawyer violated a cardinal rule of legal ethics by talking to Nicole behind her lawyer's back. Why is this unethical? The legal reason is that it undermines a fellow attorney's ability to handle her client's case. It's a form of disrespect for a colleague. The practical reason is to prevent people from being tricked since the best defense against the opposing lawyer, is your own lawyer.
In the case of Camacho v. Pangulayan, a UP law professor accused some lawyers of directly negotiating with his clients in order to obtain an amicable settlement. In effect, they ignored him even though he was the counsel on record. The Court agreed with the professor and said that the failure to inform opposing counsel is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. The erring lawyer was suspended from the practice of law for three months.
Fast forward to the present: Smith's lawyer prepares a statement, has a junior associate (who, by the way, is a UP law graduate) notarize the document, and then asks Nicole to sign it as a condition for the release of her VISA and 100,000 pesos. All this WITHOUT EVER consulting her counsel on record.
If Nicole had a lawyer, she might still have signed the affidavit. But it would have never looked this bad. Take a look at paragraphs 6-10, which incorporate all the arguments the defense raised during trial. ALL OF THEM.
And then take a look at the last sentence of the affidavit: "I would rather risk public outrage than do nothing to help the court in ensuring that justice is served." The sentence brings a whole new low to the legal profession. I admit I am ashamed of what we have become.
Nicole left everything behind so she could start anew, and I don't blame her. Not one bit.
Thursday, March 19, 2009
THE STRUGGLE CONTINUES FOR THE SENTOSA 27++ NURSES
News Release
March 18, 2009
Reference: Atty. Felix Vinluan, Justice for the Sentosa 27++ Campaign,
email: nafconusa@yahoo.com
Community Forum Pledges to Struggle for Complete Justice for Wronged Healthcare Workers
"It's time to up the ante...."
This was the sentiment posed by community supporters of the Sentosa 27++ Nurses who will be holding an important forum on the ongoing Justice for the Sentosa 27++ Nurses Campaign this Sunday, March 22nd, 2pm at Jing Fong Restaurant in Chinatown . Entitled "Up the Ante Towards Full Justice for the Sentosa 27++ and All Victims of Illegal Recruitment" the dinner event will feature highlights from the community campaign for the trafficked healthcare workers from the Philippines who came to the United States in 2006 under direct hire nursing contracts with SentosaCare LLC. But after tenets of the Sentosa contracts were not honored, the 26 nurses and a physical therapist fought back with the help of their lawyer, Felix Vinluan.
Sentosa's CEO Bent Philipson retaliated against 10 of the nurses who resigned from his Avalon Gardens Nursing home in Suffolk County , Long Island and Vinluan by filing criminal charges of so-called patient endangerment. In a historic court decision earlier this year, the criminal charges against the 10 Avalon Nurses and Vinluan were formally prohibited. This was after supporters, such as the Legal Aid Society, the National Employment Lawyers Association of New York, New York State Nurses Association (NYSNA), the American Nurses Association (ANA), SEIU 1199, and the Suffolk County Defenders Association filed their respective amicus briefs to support the Article 78 prohibition petition filed by lawyers James Druker and Oscar Michelen for the nurses and Vinluan.
"Justice has not been fully served. We still need to fight for the shutting down of SentosaCare LLC. The former Sentosa nurses represent millions of Filipino migrant workers who fall victim to illegal contractualization and other forms of human trafficking because contractors like SentosaCare LLC prey on their desire to escape joblessness and poverty in the Philippines . Every year, tens of thousands of Filipinos enter the US as healthworkers or teachers duped by fraudulent contracts signed in the Philippines ," states Rico Foz of the National Alliance for Filipino Concerns or NAFCON.
NAFCON, along with supporters from the Philippine Nurses Association of America (PNAA), NYSNA, Movement for a Free Philippines (MFP), formed the Justice for the Sentosa 27++ Campaign (J4S27), a grassroots community campaign in support of the nurses as early as 2006, at a time when the nurses plea for justice was largely shunned by others in the Filipino community. "Unfortunately, there were those who refused to offer help to the nurses back then that are only speaking out now in support because of the Avalon 11's recent victory against criminalization," Foz added.
In 2007, the Justice for the Sentosa 27++ Campaign marched as one large contingent down Madison Avenue during the annual Philippine Independence Day Parade in New York City after holding several community forums at the NAFCON office in Queens . NAFCON, PNAA and NYSNA members also held outdoor demonstrations in the freezing cold winter of 2007 outside the Suffolk County Courthouse during the hearings on the Avalon 11's case. Congressional hearings were held in Manila through the J4S27's campaign's Philippine-based partners investigating the Sentosa Recruitment Agency, the agency who contracted the nurses from the Philippines to work at Sentosa-owned facilities in New York State . A campaign website was generated with a petition calling for six basic demands, which include the dropping of all civil and criminal charges against the nurses and shutting down of SentosaCare LLC. "For as long as all six demands have not been met, we will continue to up the ante on this important struggle for justice," Foz ended.
Jing Fong Restaurant is located at 18 Elizabeth Street , between Canal and Bayard Streets in Chinatown . The Justice for the Sentosa 27++ Campaign site can be accessed at www.s27plus.com. ###
March 18, 2009
Reference: Atty. Felix Vinluan, Justice for the Sentosa 27++ Campaign,
email: nafconusa@yahoo.com
Community Forum Pledges to Struggle for Complete Justice for Wronged Healthcare Workers
"It's time to up the ante...."
This was the sentiment posed by community supporters of the Sentosa 27++ Nurses who will be holding an important forum on the ongoing Justice for the Sentosa 27++ Nurses Campaign this Sunday, March 22nd, 2pm at Jing Fong Restaurant in Chinatown . Entitled "Up the Ante Towards Full Justice for the Sentosa 27++ and All Victims of Illegal Recruitment" the dinner event will feature highlights from the community campaign for the trafficked healthcare workers from the Philippines who came to the United States in 2006 under direct hire nursing contracts with SentosaCare LLC. But after tenets of the Sentosa contracts were not honored, the 26 nurses and a physical therapist fought back with the help of their lawyer, Felix Vinluan.
Sentosa's CEO Bent Philipson retaliated against 10 of the nurses who resigned from his Avalon Gardens Nursing home in Suffolk County , Long Island and Vinluan by filing criminal charges of so-called patient endangerment. In a historic court decision earlier this year, the criminal charges against the 10 Avalon Nurses and Vinluan were formally prohibited. This was after supporters, such as the Legal Aid Society, the National Employment Lawyers Association of New York, New York State Nurses Association (NYSNA), the American Nurses Association (ANA), SEIU 1199, and the Suffolk County Defenders Association filed their respective amicus briefs to support the Article 78 prohibition petition filed by lawyers James Druker and Oscar Michelen for the nurses and Vinluan.
"Justice has not been fully served. We still need to fight for the shutting down of SentosaCare LLC. The former Sentosa nurses represent millions of Filipino migrant workers who fall victim to illegal contractualization and other forms of human trafficking because contractors like SentosaCare LLC prey on their desire to escape joblessness and poverty in the Philippines . Every year, tens of thousands of Filipinos enter the US as healthworkers or teachers duped by fraudulent contracts signed in the Philippines ," states Rico Foz of the National Alliance for Filipino Concerns or NAFCON.
NAFCON, along with supporters from the Philippine Nurses Association of America (PNAA), NYSNA, Movement for a Free Philippines (MFP), formed the Justice for the Sentosa 27++ Campaign (J4S27), a grassroots community campaign in support of the nurses as early as 2006, at a time when the nurses plea for justice was largely shunned by others in the Filipino community. "Unfortunately, there were those who refused to offer help to the nurses back then that are only speaking out now in support because of the Avalon 11's recent victory against criminalization," Foz added.
In 2007, the Justice for the Sentosa 27++ Campaign marched as one large contingent down Madison Avenue during the annual Philippine Independence Day Parade in New York City after holding several community forums at the NAFCON office in Queens . NAFCON, PNAA and NYSNA members also held outdoor demonstrations in the freezing cold winter of 2007 outside the Suffolk County Courthouse during the hearings on the Avalon 11's case. Congressional hearings were held in Manila through the J4S27's campaign's Philippine-based partners investigating the Sentosa Recruitment Agency, the agency who contracted the nurses from the Philippines to work at Sentosa-owned facilities in New York State . A campaign website was generated with a petition calling for six basic demands, which include the dropping of all civil and criminal charges against the nurses and shutting down of SentosaCare LLC. "For as long as all six demands have not been met, we will continue to up the ante on this important struggle for justice," Foz ended.
Jing Fong Restaurant is located at 18 Elizabeth Street , between Canal and Bayard Streets in Chinatown . The Justice for the Sentosa 27++ Campaign site can be accessed at www.s27plus.com. ###
Wednesday, March 18, 2009
Leftist Victory in El Salvador Closes an Historic Cycle
by: Marc Cooper
The Huffington Post
Special Correspondent, frmr Editorial Director of OffTheBus
Posted March 16, 2009 | 09:08 AM (EST)
The apparent victory of leftist candidate Maurico Funes in Sunday's presidential election in El Salvador finally closes out the Cold War in Central America and raises some serious questions about the long term goals of U.S. foreign policy.
With Funes' election, history has come full cycle. Both El Salvador and neighboring Nicaragua will now be governed by two former guerrilla fronts against which the Reagan administration spared no efforts in trying to defeat during the entire course of the 1980's. We will now coexist with those we once branded as the greatest of threats to our national security. Those we branded as "international terrorists" now democratically govern much of Central America.
Funes, once a commentator for CNN's Spanish-language service, comes to power representing the Farabundo Marti National Liberation Front (FMLN), a Marxist guerrilla group-turned-political -party, an organization that the U.S. government once described in terms now reserved for Al Qaeda and Hizbollah.
From the late 1970's until a negotiated peace settlement in 1992, the FMLN fought a bloody civil war against a series of U.S.-backed right-wing regimes. Those Salvadoran regimes engaged in horrific massacres and deployed savage death squads, taking a massive human toll. While the FMLN also perpetrated atrocities, all independent analysts agree that the overwhelming majority of the 75,000 who were killed in the war in El Salvador were victims of government-sponsored violence.
This same FMLN which now comes to power in El Salvador was once declared as the primary perpetrator of "international terrorism" by the Reagan administration who deployed hundreds of U.S. military advisors to the tiny Central American country and who quadrupled the size of the Salvadoran Army. In this all-out quest to crush the FLMN, U.S. authorities, at best, turned a blind eye to the bloody excesses of the Salvadoran regime. At worst, it encouraged them.
At the same time in history, the U.S. spent billions creating a "contra" army to destabilize and dislodge the leftist Sandinista National Liberation Front (FSLN) which had taken power in Nicaragua in 1979, overthrowing the dynastic and dictatorial rule of the Somoza family - another U.S.-backed ally.
During the entire eight years of the Reagan era, defeating both the FMLN and the FSLN were the absolute top priorities of U.S. foreign policy as the administration argued that the Texas border was a short hop from the fields of Central America and that all must be done to stop the northward march of hemispheric revolution. The sort of inflammatory rhetoric used to describe the Central American guerrilla movements was an eerie precedent for the overheated war of words against "The Axis of Evil" that would emerge earlier this decade.
The Nicaraguan Sandinistas were eventually defeated by an American-backed opposition in elections in 1990 and democratically and peacefully transferred power (something the Reaganites claimed could never happen). But the Sandinistas returned to power last year re-electing its historic leader Daniel Ortega as president. Almost twenty years of rule from the pro-U.S. coalitions that had succeeded the Sandinistas had failed to implement any meaningful social change.
The Salvadoran FMLN, meanwhile, which has acted as a parliamentary opposition party since the 1992 Salvadoran peace accords, now comes to power ending twenty years of uninterrupted rule by the country's ultra-conservative ARENA party - a political organization born directly from the death squads of the 1980's and, yes, a close ally of the U.S.
All of this raises the question of why so many lives were spent and so many billions in U.S. dollars were burned in an attempt to expunge these leftist forces twenty years ago? Wouldn't it have been possible in 1989 to find some sort of accommodation with these radical forces and not postpone the inevitable for twenty years?
In the case of Nicaragua, the year-old reborn and duly elected Sandinista administration--while far from a model of democratic ethics-- hardly poses any threat to U.S. interests. Though President Ortega, saddled with governing one of the poorest countries in the hemisphere, still clothes his actions in revolutionary rhetoric, he has headed up what many think is essentially a conservative regime which recently outlawed all abortion (a move that could warm the deceased Ronald Reagan's heart). Ortega campaigned successfully for the presidency last year by quoting from scripture and has not flinched from pacting with the most conservative of political elements.
In the case of El Salvador, President-elect Funes has pledged to maintain close and cordial relations with the U.S. And while the FMLN--like the Sandinistas - clings to some of its Cold War revolutionary rhetoric, no one expects any radical moves by the incoming government. Fighting widespread poverty aggravated by the global slump and a chilling crime wave, the FMLN will have its hands full just keeping the government on keel. President-elect Funes holds distinctly moderate views and in an American context would be little more than a liberal Democrat. In any case, the FMLN can point to its recent governance of several Salvadoran cities (including until recently the capital of San Salvador) as its democratic bona fides.
The resurrection of the FMLN and the FSLN at this time in history raises a troubling irony regarding U.S. foreign policy. Yesterday we were told they were our greatest enemies. Today, now in power, they hardly garner any U.S. press coverage, let alone much attention from Washington. Likewise, the right-wing forces we bankrolled with blood and treasure and who we were told were a bulwark of Western Civilization, utterly failed in solving the basic existential questions that bedeviled their respective countries. Twenty years from now, we have to ask, what will Iraq, Afghanistan and Syria look like? Might we find ourselves peacefully co-existing with the same undefeated forces who today we proclaim our mortal enemies? Might we be better off using our soft power, our economic and diplomatic clout to force negotiation and moderation with those we perceive as irrational and radical enemies? Or do we only reach that conclusion after the dissipation of prolonged, bloody and ultimately unsuccessful armed intervention and war?
The Huffington Post
Special Correspondent, frmr Editorial Director of OffTheBus
Posted March 16, 2009 | 09:08 AM (EST)
The apparent victory of leftist candidate Maurico Funes in Sunday's presidential election in El Salvador finally closes out the Cold War in Central America and raises some serious questions about the long term goals of U.S. foreign policy.
With Funes' election, history has come full cycle. Both El Salvador and neighboring Nicaragua will now be governed by two former guerrilla fronts against which the Reagan administration spared no efforts in trying to defeat during the entire course of the 1980's. We will now coexist with those we once branded as the greatest of threats to our national security. Those we branded as "international terrorists" now democratically govern much of Central America.
Funes, once a commentator for CNN's Spanish-language service, comes to power representing the Farabundo Marti National Liberation Front (FMLN), a Marxist guerrilla group-turned-political -party, an organization that the U.S. government once described in terms now reserved for Al Qaeda and Hizbollah.
From the late 1970's until a negotiated peace settlement in 1992, the FMLN fought a bloody civil war against a series of U.S.-backed right-wing regimes. Those Salvadoran regimes engaged in horrific massacres and deployed savage death squads, taking a massive human toll. While the FMLN also perpetrated atrocities, all independent analysts agree that the overwhelming majority of the 75,000 who were killed in the war in El Salvador were victims of government-sponsored violence.
This same FMLN which now comes to power in El Salvador was once declared as the primary perpetrator of "international terrorism" by the Reagan administration who deployed hundreds of U.S. military advisors to the tiny Central American country and who quadrupled the size of the Salvadoran Army. In this all-out quest to crush the FLMN, U.S. authorities, at best, turned a blind eye to the bloody excesses of the Salvadoran regime. At worst, it encouraged them.
At the same time in history, the U.S. spent billions creating a "contra" army to destabilize and dislodge the leftist Sandinista National Liberation Front (FSLN) which had taken power in Nicaragua in 1979, overthrowing the dynastic and dictatorial rule of the Somoza family - another U.S.-backed ally.
During the entire eight years of the Reagan era, defeating both the FMLN and the FSLN were the absolute top priorities of U.S. foreign policy as the administration argued that the Texas border was a short hop from the fields of Central America and that all must be done to stop the northward march of hemispheric revolution. The sort of inflammatory rhetoric used to describe the Central American guerrilla movements was an eerie precedent for the overheated war of words against "The Axis of Evil" that would emerge earlier this decade.
The Nicaraguan Sandinistas were eventually defeated by an American-backed opposition in elections in 1990 and democratically and peacefully transferred power (something the Reaganites claimed could never happen). But the Sandinistas returned to power last year re-electing its historic leader Daniel Ortega as president. Almost twenty years of rule from the pro-U.S. coalitions that had succeeded the Sandinistas had failed to implement any meaningful social change.
The Salvadoran FMLN, meanwhile, which has acted as a parliamentary opposition party since the 1992 Salvadoran peace accords, now comes to power ending twenty years of uninterrupted rule by the country's ultra-conservative ARENA party - a political organization born directly from the death squads of the 1980's and, yes, a close ally of the U.S.
All of this raises the question of why so many lives were spent and so many billions in U.S. dollars were burned in an attempt to expunge these leftist forces twenty years ago? Wouldn't it have been possible in 1989 to find some sort of accommodation with these radical forces and not postpone the inevitable for twenty years?
In the case of Nicaragua, the year-old reborn and duly elected Sandinista administration--while far from a model of democratic ethics-- hardly poses any threat to U.S. interests. Though President Ortega, saddled with governing one of the poorest countries in the hemisphere, still clothes his actions in revolutionary rhetoric, he has headed up what many think is essentially a conservative regime which recently outlawed all abortion (a move that could warm the deceased Ronald Reagan's heart). Ortega campaigned successfully for the presidency last year by quoting from scripture and has not flinched from pacting with the most conservative of political elements.
In the case of El Salvador, President-elect Funes has pledged to maintain close and cordial relations with the U.S. And while the FMLN--like the Sandinistas - clings to some of its Cold War revolutionary rhetoric, no one expects any radical moves by the incoming government. Fighting widespread poverty aggravated by the global slump and a chilling crime wave, the FMLN will have its hands full just keeping the government on keel. President-elect Funes holds distinctly moderate views and in an American context would be little more than a liberal Democrat. In any case, the FMLN can point to its recent governance of several Salvadoran cities (including until recently the capital of San Salvador) as its democratic bona fides.
The resurrection of the FMLN and the FSLN at this time in history raises a troubling irony regarding U.S. foreign policy. Yesterday we were told they were our greatest enemies. Today, now in power, they hardly garner any U.S. press coverage, let alone much attention from Washington. Likewise, the right-wing forces we bankrolled with blood and treasure and who we were told were a bulwark of Western Civilization, utterly failed in solving the basic existential questions that bedeviled their respective countries. Twenty years from now, we have to ask, what will Iraq, Afghanistan and Syria look like? Might we find ourselves peacefully co-existing with the same undefeated forces who today we proclaim our mortal enemies? Might we be better off using our soft power, our economic and diplomatic clout to force negotiation and moderation with those we perceive as irrational and radical enemies? Or do we only reach that conclusion after the dissipation of prolonged, bloody and ultimately unsuccessful armed intervention and war?
Sunday, December 28, 2008
'Daddy O' brings parenting into politics
By: Andie Coller
The Politico, December 27, 2008 07:37 PM EST
Just call him Daddy O.
Most leaders’ playbooks take at least a page or two from “The Art of War,” but President-elect Obama’s rhetoric seems to be torn from very different kind of text: the modern parenting manual.
The “change we can believe in,” it turns out, shares a lot with the revolution in thinking about child-rearing sprung from the work of Austrian psychologist Alfred Adler, which centers on principles such as mutual respect — or what the president-elect has called “the presumption of good faith” — fostering independence (“Team of Rivals,” anyone?), and encouragement (“Yes we can!”).
This passage from Obama’s victory speech, for example, is a family meeting waiting to happen, complete with attempts to acknowledge his own limits, make room for dissent, make sure the listeners feel heard, and stress the importance of everyone’s contribution:
“There are many who won’t agree with every decision or policy I make as president, and we know that government can’t solve every problem. But I will always be honest with you about the challenges we face. I will listen to you, especially when we disagree. And above all, I will ask you join in the work of remaking this nation the only way it’s been done in America for two-hundred and twenty-one years — block by block, brick by brick, calloused hand by calloused hand.”
These and other progressive parenting principles are reflected not only in Obama’s rhetoric, but also in his approach to leadership — an approach that already seems to be rubbing off.
Sen. Claire McCaskill (D-Mo.), for instance, recently called Senate Democrats’ decision not to strip Sen. Joe Lieberman of his chairmanship a “direct result of the tone [Obama] set.”
“The old school was that you reward your friends and punish your enemies,” she said. “But it’s a new day, and there is no reward and punishment going on.”
No rewards or punishments? Alfie Kohn, whose book “Unconditional Parenting” is subtitled “Moving from Rewards and Punishments to Love and Reason” approves:
“The most respectful — and effective — approach to parenting consists of working WITH children rather than doing things TO them,” he says. ‘Working with’ parents talk less and listen more. They regularly try to imagine how the world looks from the child's point of view. They bring kids into the process of decision-making whenever possible. ‘Doing to’ parents, on the other hand, impose their will and use some combination of rewards and punishments in an attempt to elicit obedience.”
Kohn says a “working with” approach in the political realm is “essentially more democratic” — particularly if it offers real choices, and not just the illusion of them.
A progressive parenting approach also means taking responsibility for your own role in a conflict, says Jane Nelsen, author of the classic child-rearing handbook “Positive Discipline.” She compares Obama’s vow to end the “partisan bickering” in Washington or his determination to use diplomacy as a primary tool in international relations to the efforts of parents who want to break out of power struggles or revenge cycles with their kids: “In order to stop them, someone has to recognize what it is, and say, ‘I can even see what my part has been in the power struggle,’ and find solutions that work for everyone.”
It would be easy to bash Obama’s enlightened-father philosophy as an insulting new extension of the nanny state, but the truth is that the exercise of power in any form shares a lot in common with the parent-child relationship.
As President Bush’s former chief of staff Andy Card said of his boss during the 2004 Republican National Convention: “This president sees America as we think about a 10-year-old child.”
Bush’s rhetorical model, however, is typically more “Father Knows Best” than T. Berry Brazelton.
Consider these words from the 43rd president, back when he was keeping his secretary of defense:
"I hear the voices, and I read the front page, and I know the speculation. But I’m the decider, and I decide what is best. And what's best is for Don Rumsfeld to remain as the secretary of defense."
His choice of words suggests a more no-nonsense, SuperNanny-style approach to his job (“It’s in their nature to test the boundaries and it’s up to you to make sure they don’t cross the line”) that also has its proponents: Bush’s tough, take-no-guff rhetoric led many, including former British Prime Minister Tony Blair, to praise him as a “strong leader” during a time of war.
But progressive parenting experts argue that the “love and reason” approach to leadership is not only more respectful — it might also turn out to be more effective.
According to Kohn, children who feel listened to, respected and understood, and who are allowed to take real responsibility and develop internal motivation, tend to care more and work harder than those who are rewarded for their achievements.
On the other hand, says Nelsen, while rewards and punishments may work in the short term, in the long run children who are raised to respond to them rather become either “praise junkies” or “rebels.”
As Kohn puts it in “Unconditional Parenting”: “One reason that a heavy-handed, do-what-I-say approach tends not to work very well is that, in the final analysis, we really CAN’T control our kids — at least not in the ways that matter. ... It’s simply impossible to force a child to go to sleep, or stop crying, or listen or respect us. These are the issues that are most trying to parents precisely because it’s here that we run up against the inherent limits of what one human being can compel another human being to do.”
“Sadly, though, that doesn’t stop us from trying newer, cleverer, or more forceful strategies to get kids to comply. And when these techniques fail, that’s often taken as evidence that what’s needed is ... more of the same.”
More of the same? There’s one phrase that’s definitely not in the new top pop’s vocabulary.
© 2008 Capitol News Company, LLC
The Politico, December 27, 2008 07:37 PM EST
Just call him Daddy O.
Most leaders’ playbooks take at least a page or two from “The Art of War,” but President-elect Obama’s rhetoric seems to be torn from very different kind of text: the modern parenting manual.
The “change we can believe in,” it turns out, shares a lot with the revolution in thinking about child-rearing sprung from the work of Austrian psychologist Alfred Adler, which centers on principles such as mutual respect — or what the president-elect has called “the presumption of good faith” — fostering independence (“Team of Rivals,” anyone?), and encouragement (“Yes we can!”).
This passage from Obama’s victory speech, for example, is a family meeting waiting to happen, complete with attempts to acknowledge his own limits, make room for dissent, make sure the listeners feel heard, and stress the importance of everyone’s contribution:
“There are many who won’t agree with every decision or policy I make as president, and we know that government can’t solve every problem. But I will always be honest with you about the challenges we face. I will listen to you, especially when we disagree. And above all, I will ask you join in the work of remaking this nation the only way it’s been done in America for two-hundred and twenty-one years — block by block, brick by brick, calloused hand by calloused hand.”
These and other progressive parenting principles are reflected not only in Obama’s rhetoric, but also in his approach to leadership — an approach that already seems to be rubbing off.
Sen. Claire McCaskill (D-Mo.), for instance, recently called Senate Democrats’ decision not to strip Sen. Joe Lieberman of his chairmanship a “direct result of the tone [Obama] set.”
“The old school was that you reward your friends and punish your enemies,” she said. “But it’s a new day, and there is no reward and punishment going on.”
No rewards or punishments? Alfie Kohn, whose book “Unconditional Parenting” is subtitled “Moving from Rewards and Punishments to Love and Reason” approves:
“The most respectful — and effective — approach to parenting consists of working WITH children rather than doing things TO them,” he says. ‘Working with’ parents talk less and listen more. They regularly try to imagine how the world looks from the child's point of view. They bring kids into the process of decision-making whenever possible. ‘Doing to’ parents, on the other hand, impose their will and use some combination of rewards and punishments in an attempt to elicit obedience.”
Kohn says a “working with” approach in the political realm is “essentially more democratic” — particularly if it offers real choices, and not just the illusion of them.
A progressive parenting approach also means taking responsibility for your own role in a conflict, says Jane Nelsen, author of the classic child-rearing handbook “Positive Discipline.” She compares Obama’s vow to end the “partisan bickering” in Washington or his determination to use diplomacy as a primary tool in international relations to the efforts of parents who want to break out of power struggles or revenge cycles with their kids: “In order to stop them, someone has to recognize what it is, and say, ‘I can even see what my part has been in the power struggle,’ and find solutions that work for everyone.”
It would be easy to bash Obama’s enlightened-father philosophy as an insulting new extension of the nanny state, but the truth is that the exercise of power in any form shares a lot in common with the parent-child relationship.
As President Bush’s former chief of staff Andy Card said of his boss during the 2004 Republican National Convention: “This president sees America as we think about a 10-year-old child.”
Bush’s rhetorical model, however, is typically more “Father Knows Best” than T. Berry Brazelton.
Consider these words from the 43rd president, back when he was keeping his secretary of defense:
"I hear the voices, and I read the front page, and I know the speculation. But I’m the decider, and I decide what is best. And what's best is for Don Rumsfeld to remain as the secretary of defense."
His choice of words suggests a more no-nonsense, SuperNanny-style approach to his job (“It’s in their nature to test the boundaries and it’s up to you to make sure they don’t cross the line”) that also has its proponents: Bush’s tough, take-no-guff rhetoric led many, including former British Prime Minister Tony Blair, to praise him as a “strong leader” during a time of war.
But progressive parenting experts argue that the “love and reason” approach to leadership is not only more respectful — it might also turn out to be more effective.
According to Kohn, children who feel listened to, respected and understood, and who are allowed to take real responsibility and develop internal motivation, tend to care more and work harder than those who are rewarded for their achievements.
On the other hand, says Nelsen, while rewards and punishments may work in the short term, in the long run children who are raised to respond to them rather become either “praise junkies” or “rebels.”
As Kohn puts it in “Unconditional Parenting”: “One reason that a heavy-handed, do-what-I-say approach tends not to work very well is that, in the final analysis, we really CAN’T control our kids — at least not in the ways that matter. ... It’s simply impossible to force a child to go to sleep, or stop crying, or listen or respect us. These are the issues that are most trying to parents precisely because it’s here that we run up against the inherent limits of what one human being can compel another human being to do.”
“Sadly, though, that doesn’t stop us from trying newer, cleverer, or more forceful strategies to get kids to comply. And when these techniques fail, that’s often taken as evidence that what’s needed is ... more of the same.”
More of the same? There’s one phrase that’s definitely not in the new top pop’s vocabulary.
© 2008 Capitol News Company, LLC
Friday, December 12, 2008
1st CNA for Academic Union and 3rd for the Workers Union Signed Today
In the 100 year history of the University of the Philippines (UP), the first ever collective negotiation agreement (CNA) between UP and the union of UP’s rank-and-file faculty and REPS (research, extension and professional staff) will be signed today, December 12, Friday at 10 to 11 am at the Lobby of Quezon Hall, University of the Philippines. The University will be represented by President Emerlinda R. Roman and the rank-and-file academic personnel will be represented by Dr. Erlinda Castro-Palaganas, National President of the All UP Academic Employees Union.
The third CNA between UP and the university’s rank-and-file administrative staff will be signed simultaneously. President Roman will sign for the university and Arnulfo Anoos, National President of the All-UP Workers Union will sign on behalf of the administrative staff.
The CNA is equivalent to the Collective Bargaining Agreement (CBA) in the private sector.
The two CNAs will be in force for five years and include provisions recognizing the All UP Academic Employees Union and the All UP Workers Union as the sole-and-exclusive representative of the rank-and-file academic personnel and administrative staff, respectively. Provisions on union representation in university committees, union rights and privileges, leaves, incentives and gender responsiveness are among the salient provisions of the CNA.
The signing of the two CNAs is one of the remaining major activities in the state university’s observance of its centennial year, now dubbed as the Philippine's National University under its new charter (R.A. 9500) that was enacted on April 2008.
The third CNA between UP and the university’s rank-and-file administrative staff will be signed simultaneously. President Roman will sign for the university and Arnulfo Anoos, National President of the All-UP Workers Union will sign on behalf of the administrative staff.
The CNA is equivalent to the Collective Bargaining Agreement (CBA) in the private sector.
The two CNAs will be in force for five years and include provisions recognizing the All UP Academic Employees Union and the All UP Workers Union as the sole-and-exclusive representative of the rank-and-file academic personnel and administrative staff, respectively. Provisions on union representation in university committees, union rights and privileges, leaves, incentives and gender responsiveness are among the salient provisions of the CNA.
The signing of the two CNAs is one of the remaining major activities in the state university’s observance of its centennial year, now dubbed as the Philippine's National University under its new charter (R.A. 9500) that was enacted on April 2008.
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