The Bigger Picture in the MMDA Assault (part 2)

Posted at 09/11/2012 9:28 PM

WASHINGTON DC, United States – In the first part of this article, we endeavored to illustrate the bigger picture in the Assault of an MMDA traffic officer by a Philip Morris Human Resources executive by identifying what needs to be changed or reformed on the part of the MMDA as well as the average private motorist or public utility driver. There is much to be done and the typical undisciplined thinking by the MMDA and motorists alike should be overhauled. But there are also other important matters that need to be stressed on, improved or developed.

Scarcity of Timely and Sincere Public Apologies

First, sincere apology is not automatic in the country. MMDA Assaulter, Robert Blair Carabuena, took his time to apologize. He only apologized when the condemnation by netizens was too overwhelming to avoid and perhaps as a recommendation by his employer. It was also timed just prior to appearing before the Quezon City Fiscal’s Office, and that timing alone is dubious.

Then again, MMDA Assaulter Carabuena does not have any executive, congressional or judicial example to look up to in terms of immediate and sincere public apology. Government executives commit fraud all the time and very few apologies are heard. A sitting Supreme Court justice and his female lawyer-research assistant were caught plagiarizing sometime ago, and they have not only refused to apologize but were even upheld by a Supreme Court decision not long after.

The Senator from Eat Bulaga does not want to issue any sincere public apology, and the earlier apology was just to shut up the American health and food blogger (thus, it was insincere).

So the MMDA Assaulter Carabuena can just look to his leaders and say to himself, my delayed public apology (whether sincere or not) is good enough. Because if these leaders themselves have refused to apologize or have issued insincere ones, what more an average person.

Stage-Managing Legal Proceedings (Wheelchairs, etc.)

Second, why are legal proceedings involving high profile cases usually stage-managed these days? When I say stage-managed, this means the use of wheelchairs and other props, walking out of the Senate during his own impeachment, expert medical opinions, foreign trips abroad to consult with foreign doctors, tears and family hugging, parading medical devices and all that.

This means carefully controlling, or staging, an event such as the public appearance before or after a court hearing in order to have a controlled outcome or a sympathetic public perception.

Think of Arroyo, Corona, Ampatuan, Jocjoc Bolante, Gen. Carlos Garcia, ex-DOTC Secretary Leandro Mendoza … and now Carabuena. If this continues on, high profile litigation lawyers and top criminal defense law firms should hire good media consultants. Maybe they already have.

Delay in the Legal System, Discovery Procedures as Remedy

Third, there are so many opportunities for delay in the legal system. A shrewd lawyer (actually even a dumb one) can delay the proceedings at the preliminary hearing before the prosecutor, at the inquest, during the long trial, during appeal before the various appellate courts, before the Supreme Court, and even during the execution of a decision.

Particularly in the Philippines where trials can be stretched from three to more than ten years, there should be a strong emphasis on discovery procedures. The problem is, discovery is taught only in procedure classes (Civ Proc or Crim Proc) but hardly used in practice. If ever discovery is used in practice, it is sometimes even capitalized on for dilatory or delaying benefits.

In the United States, discovery as the pre-trial phase is practiced to its core. Lawyers typically go to so much length for depositions, requests for production, interrogatories, request for admissions, and others. Litigating parties adhere to a discovery schedule and a discovery plan.

States can differ from federal practice, but the strict observance of discovery procedures is paramount.

Discovery can take up anywhere from several months to two years. Parties are able to assess who has more, or better, evidence and pre-trial settlement ensues 90% of the time. Another significant percentage of the cases that are tried are settled pre-verdict. Thus, there is very little number of cases that are tried to conclusion. For the few cases that will actually be tried, once the trial calendar is set, the trial itself can take from a few weeks to just over a month. Then a ruling from the bench or verdict from a jury can be expected. It’s speedier and more effective.

Many Philippine cases are tried from start to conclusion, and the many long years of trial are the cause for disinterest, injustice, apathy and lethargy in the legal process. Even if the Quezon City prosecutor files the charges against MMDA Assaulter Carabuena before the Regional Trial Court, it will take plenty of years before he is adjudged guilty. Before that time, a lot of things could have transpired to derail the progress of the case and the realization of justice.

A Call for Improved and Revamped Corporate Governance

Fourth, there needs to be more rigorous and more effective corporate governance in the country. Philip Morris must move in the right direction completely and swiftly. It cannot wait for several months, half a year or more before publicizing its decision on whether the MMDA Assaulter Carabuena stays on or gets fired (assuming Philip Morris will even issue anything after its first public statement several weeks ago).

Corporations – like its employees – need to be accountable, transparent and judicious in its decisions.

Was the MMDA Assaulter’s Public Apology Sincere?

Let’s revisit Carabuena’s case and see if the points above squarely apply. The MMDA Assaulter’s public apology at the MMDA office on August 23, 2012 was inadequate. In fact, it did not sound sincere. More likely than not, it was staged to save his job.

A sincere public apology to the MMDA is important because hitting and slapping the MMDA traffic officer, Saturnino “Sonny” Fabros, meant assaulting the government agency itself.

After saying his piece at the MMDA, he headed out to the Quezon City Fiscal's Office for the preliminary hearing on his case. This alone is suspicious. He first publicly apologized – again assuming it was sincere – at the MMDA office before Chairman Francis Tolentino and then went to the Fiscal’s Office (prosecutor). Why did he time these at the same day? So he can tell the prosecutor that he just publicly apologized to the MMDA and hope this will mitigate his case.

He was reportedly heckled by some people at the Fiscal’s office and that things were thrown his way. He allegedly suffered discomfort and needed to be brought to the hospital. This feels very staged. Haven’t we been accustomed to seeing politicians being transported by wheelchairs to hospitals when they get slapped with criminal charges, during trials or about to be impeached?

If there were offensive comments said to him and if things were thrown his way at the Quezon City Fiscal’s Office, he should have expected this type of hate as he himself acted with so much hate towards the MMDA traffic officer. He should have been man enough to endure such public reaction. He instead appeared fearful, threatened and retreated to the enclaves of a hospital.

Does the MMDA Assaulter Carabuena even think of how fearful, threatened and frightened Sonny Fabros was when he collared, berated and slapped him with the help of his brother? That fear and threat he imposed on Sonny Fabros should have been enough to relieve him of his work at Philip Morris and deprive him of his individual liberty for some time under the law.

Get a Lawyer and Don’t Delay the Case

What the MMDA Assaulter Carabuena needs to do is to stop stage-managing his preliminary hearings at the prosecutor’s office. He also needs to get a litigation lawyer (not provided by Philip Morris), go to the prosecutor’s office ready and on time, and attend the corresponding court hearings without the drama of needing to be brought to the hospital.

He should man up and face up to the direct assault charges, and suffer all legal and financial consequences of his rude rage.

The MMDA Assaulter Carabuena should also instruct his lawyer not to use legal technicalities to delay or draw out the case, whether at the prosecutor’s office, at the trial court or beyond. Just because this issue is now out of the headlines is not a reason to relax or delay the case. Moreover, dilatory tactics or delaying the progress of the case is a manifestation of cowardice.

Acting like a Purple Hulk in the streets is not smart. Assaulting an officer of the law, particularly after he ostensibly beat a red light, is criminal. He has been the poster boy of both road rage and “How to Assault a Public Safety Officer and Be Caught on Camera” for the last few weeks.

Simply, he’s an idiot. And Philip Morris employs him and Ateneo de Manila educated him.

What He Could Have Said in His Defense (“Palusot”)

I bet the first thing this guy did was to apologize and explain to Philip Morris management to save his job. He most likely accused the traffic enforcer of cursing him first and then hitting the Volvo with his knuckles. He probably shifted the blame entirely on the MMDA traffic enforcer and reasoned to Philip Morris management that he only reacted to the wrong accusation.

He may have said something like this: he was cruising along the intersection with his family and following all traffic lights and rules. Out of nowhere, this MMDA traffic officer flagged him down after crossing the traffic light and vehemently accused him of running a red light. The traffic officer appeared very agitated, hit his window or car door with his knuckles, and cursed him nonstop. So he himself got agitated and got out of his car, resulting to the incident on YouTube.

He may have also claimed to Philip Morris management that the YouTube video contains only the last few seconds of the incident, and that the traffic officer’s original verbal and physical tirade against him was not caught on camera at all. That if the incident is seen in its entirety, he would’ve been justified in being that angry (remember the Ramon Tulfo beating at the airport).

Philip Morris Must Move in the Right Direction

In response to this incident, Philip Morris issued a public statement on August 15, 2012, it suspended the MMDA Assaulter, and said that it is conducting an internal investigation. Good start. A laudable good start. The MMDA Assaulter is suspended pending investigation.

But Philip Morris should not simply stop at the temporary suspension due to the gravity of the incident. It ought to move in the right, ethical and scrupulous direction.

If Philip Morris remains quiet after its public statement and temporary suspension (as it is doing now), and eventually allows the MMDA Assaulter Carabuena to go back to work as if nothing happened, then it officially condoned bullying, direct assault of a person in authority, public ridicule of a government agency, anger through violence, intimidation, road rage, arrogance, condescension, insulting with impunity, and an employee’s publicly displayed unethical conduct.

If this was some lowly Philip Morris delivery driver, he would have been fired the following day. But this is a well-connected HR Manager. The fact that he is connected to 60 of my own LinkedIn connections, who are currently managers and executives in their respective companies, only means this MMDA Assaulter is a well-affiliated corporate executive.

Effective Corporate Governance

Philip Morris ought to look beyond whether or not the MMDA Assaulter was on the job when the violent incident happened. Its public statement specified that Carabuena was on his own time, not the company’s, when the incident occurred. Certainly, this is management’s way of protecting itself from the lawsuit afterwards. It is preempting potential vicarious liability.

What’s more important though is that Philip Morris management should ask itself whether someone with such hopelessly bad attitude and contemptuous temper deserve to be their HR Manager (or Recruiting Supervisor).

If the Philip Morris management, its Board of Directors in particular, later on dismisses this as just some minor traffic altercation during an off-duty day of one of its key officers, it would have done a grievous wrong. Something like this goes to the very heart and integrity of the company.

Appearing dismissive of the incident or trivializing it smears its public image. It serves as an indication of weak corporate governance. The suspension was a good start but it must follow through decisively. It cannot prolong the internal investigation too much.

Top Philip Morris management officers, its Board of Directors, Legal, Human Resources and other concerned departments must immediately move to resolve this ugly incident in the right direction. Robert Blair Carabuena needs to be sanctioned beyond the temporary suspension.

This mortifying incident will not simply blow over. People will remember. He needs to be let go.
This column’s author, Carlo Osi, is a lawyer & writer based in Washington, D.C. and was
educated by Georgetown University Law Center, the University of Pennsylvania Law School,
the Wharton School of Business, Kyushu University, and U.P.

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Disclaimer: The ideas and content above are solely the opinion and perspective of the author.
They are not representative in any way of the position, opinion or outlook of his past or present
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