There is a frenzy out there for heads to roll because of the events of August 23.
But wait an orange-juice minute. We’re not cabbages so easily chopped up. Some “deeper” questions have not been raised enough.
Among them are:
(a) Can official ineptitude be the proximate cause of the tragedy? If so, how?
(b) What about the acts of media? How far can they stretch the skirts of freedom of speech?
(c) If, as the reviewed IIRC report says, no laws were violated, is this a case of damnum absque injuria? If so, how can the government make proper amends to the innocent victims? and
(d) Are the acts of the IIRC and Pres. Aquino governed by the political question doctrine? What is a political question?
I don’t claim to have good answers, but I will try.
As to (a), the proximate cause is that first act which produces a natural and continuous sequence of closely causally related events that end with the tragedy (Bataclan v Medina). I doubt that the act of one who goes “postal” can be the part of the “natural and continuous” sequence of events that follow governmental ineptitude. So the answer to the first part seems to be in the negative.
As to (b), it seems easier to prove causation between the live TV broadcast and the deterioration of the hostage-taker’s state of mind. I believe that freedom of speech is not a defense in a tort suit based on media’s negligence. The broadcast could have been delayed without any diminution of the public’s legitimate right to know; and besides, there is a fair amount of case law that limits media’s freedom on radio or TV. So the answer is most likely that media is liable for damages, and will have a difficult burden in using freedom of speech in defense.
As to (c), it seems the answer is in the affirmative. The principle of damnum absque injuria states that there can be harm or injury for which there is no legal remedy. And there is no legal injury if there is no invasion of a legal right by a defendant/respondent who acts within his limits of discretion, even if he commits mistakes of judgment. But the damage is real, and I believe the government can make amends through some form of compensation. The taxpayer is not a fully innocent bystander here, if only because they elected those responsible for the sorry state of capability of law enforcement. The compensation should also be funded by contributions from or judgments against media to the extent of their own negligence.
As to (d), the answer is also yes. Harry Roque explains:
What people seemed to have overlooked though is that the Presidency is a political and not a judicial office. His decision not to charge anyone with a criminal case is one not based on evidence alone, but on considerations of leadership. And yes, while the President may even have erred in making this political decision, there being no breach of the constitution nor of our laws, the reality is that he is only answerable to the people who gave him a mandate to rule. This is what is termed in constitutional law as a “political question”. Judging though from his very high acceptance rating as reported by the Social Weather Station, a survey taken after the Luneta incident, it appears that his boss- the people- have still given him very high marks.
A political question is one which, under the constitution, is to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch. Vera v Avelino. There is also jurisprudence to the effect that the Executive’s decision to prosecute is discretionary. What Roque is saying is that if the sovereign people are unhappy with what the Executive does, the remedy is to let such unhappiness be reflected at the polls. And here is where freedom of speech is most important and useful.
Photo credit: Robek at commons.wikimedia.org.