Falling on deaf ears

Pope Francis proved himself to be the biggest “rock star” who invaded our country. With an estimated 6 to 7 million braving the rain to hear his final mass at Luneta, the Pontiff has clearly proven that he is the single most loved person in this country. The closest who could rival his drawing power was Tita Cory shortly after the despot cheated her and the people also flocked to Luneta. But make no mistake about it, even Tita Cory was no match to the charm and enigma of the current Pope.

In a way it was sad that many of us ignored the Churchs’ call not to focus on the Pope as a personality, but as a symbol of Christ. I’m sure those who lined up for a glimpse of the pope did so because they were captivated by the smile of the Argentinian, rather than the fact that he stands as a symbol of Christ. Perhaps, what we should be aiming for, now that our favorite “rock star” has left, is that his message should at least not fall on deaf ears.

And boy, did we need his message. Addressing the nation for the first time in Malacañang, the Holy Father did not mince words when in the presence of our corrupt politicians from all branches of government, as well as personalities who belong to the 1 percent that owns 40 percent of all the wealth of the country, the Pope demanded from his audience to “end scandalous social inequalities.”

The Pope continued: “ it is now more than ever, necessary that political leaders be outstanding for honesty, integrity and commitment to the common good”. The pontiff must have known that present in Malacañang then were the biggest thieves in this country. He then enjoined the elite to “ensure social justice and respect human dignity”. Then he demanded what surely will be ignored by our political and economic elite: “to reject every form of corruption, which diverts resources from the poor”.

Certainly, the pontiff must have been briefed about the PDAF and DAP scandals that are proof that almost every senatong, tongressman, president and members of the cabinet are corrupt to the core. In fact, he had even harsher words to say to the thick-faced goody-goodies in the cabinet who are building their election kitties from the miseries of the victims of typhoon Yolanda in Leyte: “but you have seen, in the profiteering and failed responses to this great human drama, so many tragic signs of the evil from which Christ came to save us”. He urged the faithful to pray that “everyone be more sensitive to the cry of our brothers and sisters in need. Let us pray that it will lead to a rejection of all forms of injustice and corruption which, by stealing from then poor poison the very roots of society”.

Then the pope clearly took sides against the rich and in favor of the poor: “I ask that the poor of this country be treated fairly- that their dignity be respected, that political and economic policies be just and inclusive xxx and that obstacles to the delivery of social services be removed”. I do not know about you, but if I were PNoy or a member of his cabinet, this should be read as a big slap on the face coming at a time when even the Commission on Audit reported that the controversial policy of dole-outs known as CCT has been tainted with widespread corruption, ranging from ghost beneficiaries and over-reporting of benefits received by its beneficiaries.

At the UST, the pope could not help but weep when a child asked: “why does God allow the children to suffer?” Earlier, Father Shay Cullen reported that Dinky Soliman’s DSWD caged no less than 400 children to clean up the streets of Metro-Manila for the pope’s visit.

Now that the pontiff has left, what will happen to the message he has imparted?

Well, the President was quick to say that the Pope could not have been referring to his administration when he asked that the government treat the poor with respect. He must still be blaming the past administration, as in fact he did in his address in Malacañang, for the poverty that the Pope decried. Taking the cue from PNoy, Dinky Soliman followed suit and again assured the nation that in the same way that the COA report on the corruption in CCT was erroneous, that Father Cullen’s report about caged street children was also wrong. I take it that both the President and Soliman are saying that the pope received the wrong advice?

Fortunately, the pope did not have to be advised to see the real score in this country. He was so moved by the miseries of the typhoon victims that he was reported to have said that he needed the experience. I’m sure he knew that the reason why the victims suffered even more was because of PNoy’s adoption of the Roxas policy to spare their political enemies relief that government should have given on humanitarian grounds.

And yes, he himself must have seen the plight of the street children in both Tacloban and Manila. Yes, he saw the children the we have been seeing every day but unlike our leaders, took a humane view that the children should not be where they are.

So will our leaders heed the message? Honestly, I doubt it. They will forever gloat about the blessing they received from the Pope having seen him up close at the airport, in Malacañang, and from their front row seats at Luneta.

Yup, we’re back to normal.

This post first appeared on http://manilastandardtoday.com/2015/01/22/falling-on-deaf-ears-2/.

Motion Hearing for Laude Case

Request for Coverage
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

The Motion hearing for the “Motion for Reconsideration” to the December 23, 2014 Order filed by Marilou S. Laude, via counsel, is set tomorrow, Wednesday, 14 January 2015 at 10:00 AM at the Olongapo Regional Trial Court.

Please click here for the full text of the MR.

Laude files Motion for Reconsideration to the December 23 Order

Please click here for a copy of the Motion for Reconsideration filed on January 9, 2014 by Marilou Laude, by counsel, to the December 23, 2014 Order of the Olongapo Regional Trial Court based on the following legal grounds:

I. The 3-day notice rule is not absolute. Its rationale is satisfied when there is an opportunity to be heard– which was clearly present in the hearing for these two motions. The collaborating counsel (Atty. Felimon Ray l. Javier) for the accused, and the public prosecutor (city prosecutor Emilie Fe M. Delos Santos) were present during the 22 December 2014 hearing day for the two motions, and they even made their oral comments.

II. Moreover, there were exigent circumstances as to the filing of the two motions that, consequently, called for a liberal application of the 3-day notice rule.

III. Private complainant filed her two motions in accordance with her “right to access to justice” under international human rights law. Hence, the conforme of the public prosecutors is not necessary to the two motions.

IV. It was not possible to get the conforme of the public prosecutors to the “urgent motion to compel the armed forces of the Philippines to surrender custody of accused to the olongapo city jail” since the head of the panel of public prosecutors, city prosecutor Emilie Fe M. Delos Santos, refused to sign it — in contradiction to the official position of the justice secretary. The city prosecutor also refused to sign the “motion to allow media coverage.”

V. The issues raised in the two motions are issues of transcendental importance and of primordial public interest. Hence, it is essential that the honorable court resolve the two motions on its substantive merits.

Further, private complainant reiterates its prayer that the honorable court allow the media to enter the court room and cover the hearings in this case.

Christmas holiday

It was tough to celebrate Christmas this year. For the first time in many years, I failed to give even my closest friends and ninong and ninangs presents because of my very hectic litigation calendar. Literally, I left Olongapo on the 23rd of December to ensure that I was in the loop in the latest order of the judge hearing the Laude murder case. Of course, as it is in the nature of ironies, I left a few hours before the judge issued her last orders for the year granting Joseph Scott Pemberton a stay of two months while his petition for review with the Department of Justice was pending, and two others which denied our motions to transfer the marine to a local jail and to allow media coverage. Given the nature of this Order, I was answering calls form journalists until about 8 pm of Christmas Eve!

It was great, hence, that the Mrs. had long scheduled a private time with the family after Christmas in nearby Hanoi.

It was not my first time to Hanoi. On my first, I delivered a lecture before Vietnamese government lawyers on the International Criminal Court. On that occasion, my friend, Le Dinh, also a human rights defender, had just been imprisoned and charged with violation of national security laws. In the presence of the Vietnamese Secretary of Justice, I then warned the Vietnamese that membership in the ICC entails a domestic legal system that would protect and promote fundamental rights, such as freedom of expression. This piqued the Justice secretary who in turn, lectured me about the nature of the grave offenses committed by Le Dinh.

What shocked the audience was after the Minister’s outburst, I took back the microphone to debunk his statements one by one. In essence, what I said was that “threats to national security” has long been used by despotic regimes to infringe on freedom of expression, and that the real reason for the suppression was simply that they want to suppress the truth from their people.

I did not return to Vietnam for at least three years since immediately after my lecture, the German Mission (I was invited by the European Union), had to ensure that I board my flight back to Manila. So it was a pleasant surprise that despite this incident, my visit to Hanoi with my family was absolutely hassle- free.

Like any other Southeast Asian country, Vietnam also has what we have an abundance of. The attraction in Hanoi is Ha Log Bay, which literally, is a copy of Coron bay in Palawan. But the difference is like the Thais; the Vietnamese know how to extract every single centavo from visiting tourists. And in fairness to them, the tourists would spend with a sense that the visit was worth the money.

What they have in Ha Long that we do not have in Palawan are at least a hundred cruise liners sailing through the bay and bringing the cruisers to a cave and an hour of kayaking, The cruises included all meals and had sleeping quarters which I have not seen on board any ship in the Philippines.

Yes, the vacation was not perfect. My wife, who booked the cruise, was shocked when she was informed by our guide that the ship looked differently from the promotional pictures because the latter was photo shopped. My wife also was shocked that she paid for a certain quality of rooms, which differed substantially from what we got. And yes, there too were the fumes that kept us awake until the wee hours of the morning. This in addition to the guide’s bad joke that the Vietnamese are thankful to us because we would be devastated first by typhoons that head later for Vietnam.

But by and large, Hanoi remains one of the most charming destinations in Southeast Asia. The city is colorful and vibrant, with lakes scattered all over the city. The old quarters of the city stand in stark contrast to its colonial parts . Certainly, Ha Long Bay deserves to be in the company of our underground river as one of the new seven wonders of the world. But to reiterate, the comparative advantage of our Vietnamese neighbors is that despite their communist background, they appear to have a better developed tourism infrastructure intended to maximize their earnings from any arriving tourist. This can be irritating to some tourists, but definitely good policy for government. When will our Department of Tourism aim to be at par even with Vietnam? We know of course that it is now impossible to be at par with Thailand and Malaysia in this regard!

In addition to our three-night stay in Hanoi, I motored to Baguio for an overnight stay. The Mrs. does not like the long drive to the North and hence, I drove up all by my lonesome self. My mission was to see how much of a difference the newly constructed TPLEX in the trip to Baguio made. And yes, I was very pleased to find out that the new expressway constructed by corporate genius Ramon Ang had cut short the travel by at least half. For while it took us about seven hours to get to Baguio before, the highway had cut travel time to only three and a half hours. Now I only have to persuade the Mrs. that the travel time to the mountain city is abbot the same as any plane ride to any Southeast Asia destination.

Because of the Hanoi and Baguio trips, I feel absolutely refreshed and ready to face the task at hand. Yesterday, we filed our opposition to Pembertons’s Petition for Review at the Department of Justice. Today, we have our first trial date for the Maguindanao massacre. Fortunately, in just about eight days, the Pope has given us another five days of holiday.

Maybe then I can persuade the wife to go up to Baguio? Sana!

Kin of Laude opposes Pemberton’s petition for review

Reference: Atty Harry Roque 09175398096

The family of murdered Jennifer Laude today filed a 34-page opposition to Pemberton’s petition for review with the Department of Justice. According to Marilou Laude, sister of Jennifer, Pemberton’s petition is bereft of merit. Pemberton decried and alleged violation of due process when the panel of prosecutors decided that there exists probable cause on the basis, among others, a report made by the NCIS. “We should be one aggrieved by the NCIS report because until today Olongapo City Prosecutor Emily Delos Santos has refused to give us a copy of the same. Pemberton was given a copy of the report. What is he complaining about now?” Laude asked.

Furthermore, Laude emphasized that Pemberton waived his right to rebut any and all evidence when he opted not to submit his counter affidavit. “Pemberton forfeited his right to be heard, he did so voluntarily with assistance of counsel. He cannot now complain that his right to due process is violated,” added Prof Harry Roque, one of the private prosecutors representing the Laude family.

Bertha fellow Charlaine Latorre further added that charge of murder was proper given that the many bruises sustained by Jennifer are all evidence of treachery and cruelty.

Zharmai Garcia, also a Bertha fellow, observed that there is abuse of superior strength because Pemberton underwent combat training and qualified as private first class in the U.S. Marine. The Laude camp also announced that they will file motion for reconsideration of the orders of the RTC suspending the proceedings, and denying their motion to transfer Pemberton to another jail and for media coverage.

Click here for a copy of the comment/opposition filed today.

pfcpembertonphoto US Marine Pfc. Joseph Scott Pemberton during his booking at the Olongapo Regional Trial Court (RTC) Branch 74 this morning, 19 Dec 2014

Marilou Laude, thru counsel, filed the following motions today at the Olongapo Regional Trial Court:



Please click the above links for the full text of the two motion.

Take custody of Pemberton now

With the issuance of the warrant of arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude, it is now incumbent on the Philippine government to insist on custody over the person of Pemberton. At this juncture, all law enforcement agencies should ensure that the warrant is served on the accused. This means that the Philippine National Police and the Armed Forces of the Philippines should physically take custody of Pemberton and deliver him to Branch 74 of the Regional Trial Court, which issued the warrant of arrest.

It is our position as private prosecutors that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.

According to the provisions of the Visiting Forces Agreement, in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request in “extraordinary cases” such as murder. This was the interpretation of no less than our Senate when it concurred with the Visiting Forces Agreement.

This interpretation is also in accord with Department of Justice Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cuevas, himself a retired Supreme Court Justice, stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.

We as private prosecutors demand therefore  that that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now.  It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.

Anent our still unresolved motion to disqualify Olongapo City Prosecutor Emilie De Los Santos from the prosecution panel, we expect the said motion to be initially resolved by her without prejudice to appealing whatever order she may issue to the Department of Justice.

It bears stressing that while all criminal prosecutions are carried out on behalf of the state, the reality is that private prosecutors, as a matter of practice, are delegated the prosecution of the case subject to the “direct control and supervision of the public prosecutor”. This control and supervision is proof that where a private complainant retains a lawyer for the civil aspect of the case, private prosecutors are allowed to actively prosecute the case for and in behalf of the state. It is only in high profile cases that public prosecutors opt to directly participate in the prosecution for obvious reasons.

While it is our position that we are amenable to working with public prosecutors in the Laude case, my experience in the Maguindanao massacre case that it has taught me the importance of having a united prosecution team consisting of both public an private prosecutors. Already, I have shown my track record when I openly sided with the public prosecutors in the Maguindanao case when a fellow private prosecutor accused them of corruption. This proves that I have proven my professionalism in working with public prosecutors. I will not refuse to work with any of them for any other reason than the welfare of my client. My problem with Chief De Los Santos is from Day One, she has been antagonistic towards us because of her alleged prior unpleasant experience with the private prosecutor in the Smith rape case. But despite this, I tried all the tricks I knew to convinced e los Santos that I am not a carbon copy of the private prosecutor that she had disagreements with. I finally gave up when I learned that in my absence, she has not stopped her public tirades against me.

For the record, it is not just the inter-personal strains that led my co-counsel, Virgie Suarez-Pinlac and I to move to disqualify De los Santos in the case, although that would be suffice by itself. It was also because of the city prosecutor’s refusal to furnish us with a copy of the NCIS report, which had a heavy weight in the resolution of the criminal complaint, which we filed. While the De Los Santos did rule in our favor, this does not detract from the fact that she deprived us of a vital piece of evidence by the panel in their finding of probable cause. This is akin to the procedure declared unconstitutional by the Supreme Court at least thrice where then President George Bush sought to deprive respondents in Guantanamo Bay access to evidence adduced against them. According to the US Supreme Court, this kind of a procedure that deprives either of the parties to a proceeding vital evidence does not comply with minimum standards of fair play recognized by civilized nations on earth.

Worse, De los Santos made an issue when after discussion with the Laude family, we made public pictures of Jennifer at the crime scene. Yes, that was in bad taste. But the family and the legal team nonetheless decided to go public with the pictures so that the public may be informed that contrary to Pemberton’s defense, his killing of Jennifer was murder and not just homicide. Besides, that picture formed part of our filing with the Olongapo Fiscal’s office. It was not as if we did not have the said photograph from the inception of our filing.

And yet, when it came to the evidence that the DNA from the used condom found in the crime scene was not that of Pemberton, De los Santos held a special hearing, despite the fact that the case had been submitted for resolution, just to announce the adverse finding against the complainants. De Los Santos was fuming mad when we released evidence favorable to the complainant. At the same time, she had no hesitation to go public that crucial evidence, the semen, was not from Pemberton. Where is the logic in this?

In any case, while public prosecutors represent the State in the criminal case, the Supreme Court has repeatedly ruled that all lawyers in court are equal since they are all officers of the court. Certainly, the fact that private complainants have lost trust in a Public Prosecutor should be considered by the Department of Justice. As officers of the court, fiscals still have a fiduciary relationship with the victims.

I invite the city prosecutor to respond to my allegations and I will yield this space next week  for her response.


Marilou S. Laude, thru counsel, filed today at the Regional Trial Court in Olongapo, an URGENT EX-PARTE MOTION FOR CORRECTION OF THE ARREST WARRANT for Accused Joseph Scott Pemberton.

Click here for the full text of the EX PARTE MOTION TO CORRECT WARRANT OF ARREST.

Take Custody of Pemberton Now

Centerlaw welcomes the issuance of the Warrant of Arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude. Centerlaw represents the family of Jennifer Laude.

According to Ethel Avisado, lawyer and Bertha Foundation Fellow with Centerlaw, “We are closely monitoring what actions that the government will take, in particular the Department of Foreign Affairs, to ensure that the Warrant of Arrest is served and we get custody of Pemberton at the soonest possible time.”

Centerlaw’s position is that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.

According to the provisions of the Visiting Forces Agreement (VFA), in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request. This is clear from the Senate deliberations on the VFA and the text of the VFA itself.

The official position of the Philippine government as contained in the Department of Justice (DOJ) Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cueves stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.

Centerlaw Chair Harry Roque states, “We demand that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now. It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.”

Roque added that, “ DOJ Undersecretary Jose F. Justiniano should stay away from this case for he has a clear conflict of interest being part of the legal defense team of US soldier Lance Corporal Daniel Smith in the People of the Philippines versus Smith rape case”.

Binay is still on top

The reality is that despite his detractors having thrown the kitchen sink at him, Vice President Jejomar Binay remains the top choice of the country for the Presidency in 2016.

This hardly comes as a surprise given his proven managerial skills as chief executive of the country’s financial center, and his credentials as a lawyer, a humans rights advocate, housing czar, and as a person who genuinely came from the ranks of the poor. Binay’s very high ratings- despite the alleged overpriced Makati City Hall Annex and the so-called Hacienda Binay -is a testament that the people have clearly made up their minds on his fitness for the country’s highest post.

It is also proof of what I warned his detractors about before: it is not enough to destroy a person’s reputation. The people will demand that those who seek higher office prove their own credentials. Clearly, the negligible 3 percent received by my friend Senator Alan Cayetano indicates that the voters are casually asking him: if you are offering yourselves as the alternative to Binay, prove that you have what it takes to succeed. Judging by the single percentage support that Cayetano received from the people, he clearly has to move on to something more constructive to be more acceptable to the voters.

Despite the fact that Binay is still on top, one has to acknowledge that perhaps the biggest gainer in the recent survey is Senator Grace Poe. I have always been fond of Grace Poe. While we missed her in the fight against the cheater President Gloria Macapagal Arroyo, I was happy when she surfaced to continue the fight that her father had started. The fact that she landed first in the last elections is a testament that our voters want to make amends to the late Fernando Poe Jr. Clearly, the electorate has rewarded her for the heartbreak and the injustice that her father suffered in the hands of Garci et al.

But Grace Poe is not just a factotum of her father. Already, she has begun to prove her mettle with her Senate investigation against PNP Chief Alan Purisima, her authorship of the Freedom of Information bill, and her Senate hearings on poverty.

I had the pleasure of seeing her in action when she invited me as a resource person on a piece of legislation that would declare the anniversary of the Maguindanao massacre as Press Freedom Day. She appeared well versed in the draft legislation, astute in her perceptions, and probing in her questions. She is clearly walking the talk when she said that she has shelved any immediate plans for higher office so she can be the best in her current role as senator. I have no doubts that after 2016, Grace Poe may be destined to be the next President of the Republic.

Meanwhile, and I have long advocated for this, I hope to see “Binay na Poe for 2016”. They would be an unbeatable tandem. Let’s hope that those who cheated Poe’s father and belittled him when he was alive will not interfere with her natural political maturity and cajole her into seeking the Presidency in 2016, even before she is able to learn the ropes of governance.

If there’s a biggest winner, there’s also a biggest loser. This clearly is the administration bet, Mar Roxas. I do not know what happened to Mar. I myself was for him until former President Cory Aquino’s sudden demise and destined PNoy for the presidency. At this point, Mar should gather his old guards and have an honest assessment of where he went wrong. Let’s face it, Mar should have scored more than 6 percent after his cohorts in the Senate launched their witch hunt against Binay. Full stop.

The good Justice Ingles

I intentionally left out from my column last week the highlight of the Manila Summit on Judicial Integrity and Accountability. This was not because he was not newsworthy. On the contrary, he was the highlight of the event.

Justice Gabriel T. Ingles is one of the few magistrates that has refused to receive allowances from either the City or the Province of Cebu. This is equivalent to no less than P64,000 monthly in allowances. He has refused the allowances on the basis that it would compromise his judicial independence since the city and the province could have cases with the Court of Appeals.

Considering that a Justice’s full salary amounts to no more than P125,000 per month, this means that Justice Ingles has given up effectively a third of what he could be earning to uphold judicial independence. To the skeptic who thinks that our society is hopeless insofar as corruption, and lack of accountability on the part of our public officers, think again. Justice Ingles is indeed a beacon of hope that the struggle for integrity and accountability could still be realized.

Kudos to the truly good Justice!

This post first appeared in http://manilastandardtoday.com/2014/12/11/binay-is-still-on-top/.

Manila summit

The Center for International Law, a civil society organization that promotes the binding nature of international law in the Philippines and in Southeast Asia, with support of the Konrad Adenauer Stiftung, has been holding a three-day Manila summit on Judicial Integrity and Accountability.

Keynote speaker was Justice Michael Kirby of the Australian High Court, the highest court there, who discussed the Bangalore principles on Judicial Integrity. These principles include, among others, independence, integrity, and probity of judges.

I then delivered a paper on lessons learned from the conviction of former Chief Justice Renato Corona. For the first time, I divulged that the decision to impeach and convict Corona was an order emanating from President Benigno Aquino III after he suffered a string of losses before the Supreme Court. This decision came after his initial position that despite Corona accepting an unconstitutional appointment as Chief Justice from President Gloria Arroyo that he would work with him in order to prevent a “constitutional crisis”.

I divulged for the first time a telephone conversation I had with PNoy in relation with the plagiarism of Justice Mariano Del Castillo when PNoy, before his string of losses, rejected my suggestion to support the impeachment of Del Castillo precisely to avoid a “constitutional crisis”. Obviously, such a concern was jettisoned a year into his administration when the Supreme Court declared the Truth Commission and other policy initiatives of PNoy as being unconstitutional. While I argued that Corona’s conviction for failure to declare $10 million was indeed a legal ground to remove him from office, the motivation for his ouster was nonetheless to undermine the independence of the Supreme Court.

DCA Raul Villanueva, for his part, announced that the Sereno Court was serious in purging misfits from the ranks of the Judiciary as exemplified by the removal of Sandiganbayan Justice Gregory Ong because of his dealings with PDAF queen Janet Lim Napoles. He underscored that this seriousness is why the Court did not require direct evidence of malfeasance before dismissing a judge.

Yesterday Marites Vitug talked about her book “Shadow of Doubt” and expressed the hope that the Supreme Court would be more transparent in its dealings with the public.

She noted that the Court has refused to disclose the SALNs of the Gods of Padre Faura, even if it has authorized the relapse of the SALNs of the Sandiganbayan justices. She also noted that there were no statistics available on the caseload of the Justices so that the public can know who among them comply with the time frames required by the Constitution to resolve pending cases before them.

After Marites, Dr Ana Maria Tabunda of Pulse Asia discussed the public perception of corruption in the Philippines. According to her, there is a slight decrease in the number of respondents saying they have had experience with corruption, from 29 percent to 14 percent from 2003 to 2009. However, 81% of those who said yes said they did nothing about it. The good news though is that 70% of the respondents said that they did not see corruption as in any way justified.

Most interesting in the Pulse Asia Survey report was the fact that PNoy’s flirting with a second term through a constitutional change was responsible for the public’s rejection of the “Daang Matuwid” slogan of this administration. According to her, the slogan would be a kiss of death in 2016 because the very floating of a second term for PNoy was seen by the public as a betrayal of the promise to pursue the right path.

Having been an academic for the past 15 years and after attending at least a hundred conferences, I have to say that this summit on Judicial Integrity and Accountability has been one of the very best conferences that I have been to. The only regret I have is that the Supreme Court rejected our invitation to be a partner of this conference. It would have greatly beneficial to our Judges and Justices to have heard he insights of the world’s most respected Jurists who also include Dato Param of Malaysia, the UN Special Rapporteur on Independence of Judges for whom the International Court of Justice rendered an advisory opinion that UN Rapporteurs enjoy functional immunity. This was an advisory opinion after Malaysian Premier Mahathir sued Dato Param for libel after he called the Malaysian judiciary “corrupt”.

Oh well, maybe soon, we will have a more transparent and more open Judiciary.

Justice Kirby took time out to do a side lecture at the UP College of Law on “marriage equality”. J. Kirby is an openly gay man who has been in a relationship with the same man for the past 45 years. It was his learned opinion that love is personal and that at some point, jurisdictions such as the Philippines and Australia, both of which do not recognize same-sex unions, would. A majority of the students present voted that the Philippines would eventually allow same-sex unions.

This post first appeared in http://manilastandardtoday.com/2014/12/05/manila-summit/.

The Sol-Gen’s defense of EDCA

It was Florin Hilbay’s first appearance as acting Solicitor-General last Tuesday when he defended the Enhanced Defense Cooperation Agreement before the Supreme Court. Unlike petitioners who divided the issues identified by the Court amongst five speakers, Sol-Gen Hilbay defended EDCA alone. As a former Associate of Retired Justice Vicente Mendoza, it was expected that Hilbay would highlight what he probably thought were the insurmountable hurdles to justiciability.

On top of his argument was that none of the petitioners is an incumbent member of the Senate who is complaining that their discharge of their official functions, such as giving concurrence to treaties, was violated.

Outside of technical objections, Hilbay argued that the President’s decision to enter into the EDCA was an inherent discharge of his executive powers as chief architect of foreign relations. He also said that the President entered into the EDCA as part of the Chief Executive’s power to ensure the security of the public, especially against the threat of modern-day terrorism.

On the crux of the controversy, Hilbay argued that EDCA was a mere executive agreement which fixes the details of the earlier signed Mutual Defense Treaty and the Visiting Forces Agreement. He emphasized that the “pivot to Asia” was not a new policy but one that merely reallocates US forces into Asia. He highlighted that the EDCA, as an Executive Agreement, does not authorize the Americans to perform acts, which have not been previously authorized by both the MDT and the VFA. In fact, according to him, unlike the earlier Military Bases Agreement where the US bases were deemed to be the “extension of the territory of the United States, the EDCA does not authorize ‘extra-territorial’ exercise of jurisdiction.” According to him, under EDCA, the military bases shall continue to be part of Philippine territory and that the Americans cannot engage in any form of activity without the consent and approval of Philippine authorities. He emphasized that “operational control” of the Americans only applied to the construction of facilities, but Philippine authorities would have full control over all “agreed locations” where the US would be allowed to preposition defense equipment and supplies, as well as deploy troops on a rotational basis.

As to be expected, the Acting Solicitor-General had his baptism of fire. Justice Marvic Leonen was unrelenting in his queries. He started by discussing Article 7 of Article XIII of the Constitution and asked the same questions he asked of me: whether there ought to be a difference between a treaty and an international agreement, both of which require the concurrence of the Senate. Then he inquired on the prohibitory nature of Section 15 of Article XVIII and elicited Hilbay’s agreement to my position that the same is lex specialis. Where he differed is his assertion that Section 15 applies only to permanent bases and not to the presence of troops and facilities. The latter, he argued, were already within the coverage of the VFA.

Justice Leonen grilled Hilbay on the fact that in the case of Medellin vs. Texas, apparently, the EDCA does not have the force and effect of law under the laws of the United States. Under the case cited by Leonen, treaties can only have the effect and force of law in the US if the treaty itself is self-executory and if a statute implements it. In this regard, Hilbay insisted that the VFA has been declared constitutional at least three times in three separate petitions filed substantially by the same parties. He also said that Leonen’s reading of Medellin was the mere dissenting view of J. Antonio Carpio.

Leonen then compared the language of the EDCA and the rejected Military Bases Agreement of 1991. He noted that contrary to the position of the Sol-Gen, it appears that even under the rejected treaty, the Philippines also had the right to approve all activities of the Americans. This, in my mind, was a very strong point against the position taken by Hilbay as a comparison of the text of EDCA and the MBA would indeed show that Philippines has always maintained its right to approve all activities of the Americans in our territory.

Justice Carpio took the same stance as he did when I argued last week. He was able to get a concession from Hilbay that while the US has always had a treaty obligation to come to our assistance in case any of our islands are attacked, it refused to come to our assistance when both the Scarborough and Mischief Reef were forcibly taken from us by China. He agreed with J. Carpio that in reality, the EDCA ad the MDT are not guarantees that the US will come to our assistance should our islands in the West Philippines Sea be attacked by China, simply because the US has always taken the stand that they “do not take sides in the on-going island disputes” in the West Philippines Sea.

Justice Teresita De Castro, for her part reiterated that Senate concurrence is necessary if we are to exercise jurisdiction over US military personnel. She noted the country’s generosity when we agreed that the US can use our facilities free of rent.

The parties were then given 20 days from Tuesday within which to file their respective memorandum. After which, the Court is expected to rule on whether the petitioners were successful in proving “grave abuse of discretion” when the President entered into the EDCA.

It’s not fun to be a columnist and an advocate. You’re dying to take sides and should not. Darn!

This post first appeared in http://manilastandardtoday.com/2014/11/28/the-sol-gen-s-defense-of-edca/.

Oral arguments versus EDCA

The Supreme Court heard oral arguments yesterday on why the Enhanced Defense Cooperation Agreement is unconstitutional. There were five petitioners who argued: Former Senator Rene Saguisag, who made opening statements; Dean Pacifico Agabin who discussed issues of justiciability and standing; I discussed the crux of the petition, that is that EDCA allows the presence of foreign troops and facilities without a Treaty duly concurred n by the Senate; Rachel Pastores who argued that EDCA is for all intents and purposes, a bases agreement; and Evalyn Ursua who discussed all other issues.

The hearing took almost four hours with questions from Justices Bernabe, Leonen, Carpio, De Castro, Perez and Chief Justice Sereno.

The most asked question was whether instead of declaring the EDCA as unconstitutional, the court could order the President to transmit it instead to the Senate for concurrence. Both Dean Agabin and I did not interpose any objection to this possibility. I did underscore though that since the language of the prohibition against the presence of military bases, troops and based is prohibitory in nature, the fact that EDCA is being implemented without compliance with the imperative condition that it be pursuant to a treaty concurred in by the Senate, this means that EDCA is null and void. I suppose the Justices were concerned that an outright declaration of unconstitutionality would affect our bilateral relations with the US and may prejudice the President’s power to deal with security threats in the country. I personally think that a referral of the EDCA to the Senate would mean a victory for the petitioners. This is because it is precisely our submission that foreign troops, bases and facilities could only be allowed pursuant to a treaty duly concurred in by the Senate.

Justice Carpio made a very interesting point. He said that while collective security treaties, such as the Mutual Defense Treaty, are legal, the US has breached its obligation to come to our defense twice : when China took from our possession both Mischief Reef and the Scarborough Shoal. He then asked me what advice I would give to the President relative to the west Philippine Sea dispute: I said, build our own defense capability, build alliances with out neighbors, or strengthen our ties with the US, among others. I answered all of the options except for strengthening our ties with the US since China already views us as a mere lackey of the US, I explained that with the billions of pesos that we have lost in PDAF and DAP, we could already afford the cost of modernizing our navy. I am unsure though until now what Justice Carpio was leading to since he ended his interpellation by observing that China has also been aggressive against Vietnam despite the latter’s staunch independent foreign policy.

Justice De Castro, a former State Counsel in the DOJ and former chair of the task force on jurisdiction when the US- Philippines bases agreement was still in force, asked why treaties have the force and effect of law. I responded that it was precisely because the legislature, through the Senate, gave its concurrence. She concurred and observed that the Senate needs to concur because the presence of foreign troops in our country normally requires a treaty to ensure that we can exercise criminal jurisdiction for non-service related offenses.

For his part, Justice Leonen inquired on the textual provision of section 21, Art. 8, which requires that treaties and international agreements require Senate concurrence. He asked me if I could make an alternative argument that EDCA is an international agreement that also requires Senate concurrence. I believe my answer to the question was that EDCA cannot be an international agreement because Sec. 25 of Art 18 applies specially to the presence of troops, facilities and bases in the country. Accordingly, the requirement is that the EDCA be in the form of a treaty. I’m not sure if I was correct in this assertion but the language of the Constitution appears to support my submission.

Atty Rachel Pastores, the most junior of the lawyers who argued for the petitioners, took a beating particularly from the Chief Justice who argued that we should give EDCA a try given that the AFP itself admits to short-term operation difficulties. In any case, Atty Pastores, despite the barrage of questions, stood her ground and invoked the duty of Filipinos to defend national sovereignty.

Asked by the media later if the questioning of the Justices was reflective of how they would rule, I had no problems in declaring that my experience has been that there is no correlation between the questions of the Justices and how they vote. I cited the example of the Chief Justice whose questioning in the oral arguments against the Cybercrimes Prevention Act appeared adverse to the petitioners. She later dissented and wrote an opinion declaring the law as unconstitutional.

United Nations (UN) Free speech special rapporteur in dialogue with families of massacre victims

Invitation for Media Coverage
Center for International Law (CenterLaw)
For Reference: Harry Roque, Jr: 09175398096

Prof. David Kaye, the new UN Special Rapporteur on Freedom of Opinion and Expression, will hold a dialogue by video link with widows of the Maguindanao Massacre today at 1:30 pm at the Sta. Ana Room, 3/F of the University of the Philippines College of Law.

The dialogue will be moderated by Prof. Harry Roque, Jr. chair of the Center for International Law and lead counsel for the families of 15 victims of the massacre.

As Special Rapporteur, Prof. Kaye seeks to bring to the attention of the UN key issues on free expression around the world, including the safety of journalists, internet censorship, electronic surveillance, hate speech and incitement to violence.

The video-link is therefore both significant and historic as an activity to commemorate the 5th anniversary of the Maguindanao Massacre, which has been described by international groups as the single worst attack on a free press in recorded history.

For a background on Prof. Kaye, click http://www.law.uci.edu/faculty/full-time/kaye/.

Request for Coverage : Laude family to file “Petition-In-Intervention” against EDCA at SC today

Centerlaw Release
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

Julita S. Laude, the mother of Jennifer Laude, along with Marilou and Michelle Laude, Jennifer’s sisters, will file a “Petition-In-Intervention” against the Enhanced Defense Cooperation Agreement (EDCA) at the Supreme Court today, 17 November 2014, at 1:30 pm.

Jennifer, a 26-year old Filipino transgender, was brutally murdered on October 11, 2014 in Olongapo City. The murder suspect is US Marine PFC Joseph Scott Pemberton, a participant in the joint Philippine-US training exercises in the country under the Visiting Forces Agreement.

Thrust and parry on EDCA

The Supreme Court scheduled oral arguments on the constitutionality of the Expanded Defense Cooperation Agreement on Tuesday, 18 November. The core issue for determination by the Court is whether the EDCA is a treaty, which allows the presence of foreign bases, troops or facilities in the country. If so, Sec 25, Art VIII of the 1987 Constitution requires that it be in the form of a treaty, duly concurred in by a 2/3 vote of all the members of the Senate; duly recognized by the other contracting party as such; and when so required by the Senate, duly ratified by a majority vote of the people in a referendum called for the purpose.

The controversy, on the basis of the pleadings submitted by the parties, is not whether the EDCA allows the presence of troops and facilities in the country as it clearly does. What is at issue is whether as claimed by the government, the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951, which was duly concurred in by the Senate, and by the Visiting Forces Agreement, whose constitutionality has been upheld twice by the Supreme Court.

Similar to what I have done prior to the oral arguments on the constitutionality of the Cybercrimes Prevention Act which resulted in a draw decision with both petitioners and the state claiming partial victory, I will detail the thrust and parry of the parties on the seminal issue of whether EDCA requires Senate concurrence.

Petitioners submit that it does because EDCA implements a new national policy. In the case of Commissioner of Customs vs. Eastern Shipping, the Court ruled that treaties that need to be submitted for concurrence by the Senate are those that formulate a new policy. Those that merely implement existing ones or fix the details of existing ones do not require concurrence.

Why do petitioners claim that EDCA is a new policy? Because it makes the Philippines a partner of the United States in a new defense policy that has since rendered permanent US bases outside of its mainland unnecessary. This policy represents a radical departure from previous US defense policy anchored on the existence of permanent US bases in strategic parts of the world. Under this new policy, US Defense Undersecretary for Policy Douglas J Feith explained, “We are not talking only about basing, we’re talking about the ability of our forces to operate when and where they are needed.”

This policy is based not just on a major shift in strategic priorities, but also on economics. Simply put, the new policy is because the US can no longer afford the economic and political costs of permanent bases.

Moreover, it also forms part of a new US policy that has been described as a “pivot to Asia”. Under this scheme, the US will redeploy most of its naval resources into Asia. Currently, its existing naval presence is evenly split between the Pacific and Atlantic oceans.

Government, on the other hand, argues that Senate concurrence is not required because the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement. Specifically, Acting Solicitor General Florin Hilbay argued that the EDCA, insofar as it authorizes temporary rotational presence of troops and pre-deployment of military supplies and facilities, merely implements the duty of the Philippines to improve its capacity and readiness under the Mutual Defense Treaty. The activities of US troops, on the other hand, according to the OSG, are mere restatements of the “activities” authorized to be undertaken by the Americans under the Visiting Forces Agreement.

Other issues up for argumentation include the issue of whether the EDCA authorizes the establishment of permanent US bases in the country. Petitioners will argue that given the scope and breadth of what the Americans can do outside of Philippine jurisdiction as specified in the EDCA, coupled with the fact that the agreement maybe be permanent since it is automatically renewed every ten years, that is its tantamount to permanent basing. Government will argue that it is temporary and falls under the scope of the VFA.

Other issues such as whether petitioners have the standing to sue (since none of them is an incumbent senator) and whether there is an actual case or controversy will also be discussed. Additionally, the dispute settlement procedure of the agreement is also up for discussion since Petitioner alleges that this infringes on the exercise of judicial powers, which falls within the exclusive jurisdiction of our courts.

The oral arguments will happen amidst the controversy created by the murder of the Filipino transgender, Jennifer Laude allegedly perpetrated by a US serviceman, Joseph Pemberton. Already, the murder case has put into serious doubt the compatibility of all existing agreements that we have authorizing the presence of foreign troops and facilities in the country with Philippine sovereignty. At the core of the controversy in the Laude case is the apparent failure of the Philippines to exercise jurisdiction over the person of the suspected murderer who remains continuously under US custody.

Clearly, the arguments to be heard this coming Thursday will go beyond whether the Senate concurrence is required for the EDCA. Unwritten yet in bold script is the issue of whether any such agreement violates the exclusive exercise of Philippines sovereignty and jurisdiction, and whether these limitations, if any, redound to the national interest.

Clearly, the issues for determination are of transcendental importance to every Filipino. Be there if you can.

This post first appeared on http://manilastandardtoday.com/2014/11/13/thrust-and-parry-on-edca/

The AFP’s complaint and Secretary De Lima

The AFP’s filing of disbarment charges against me yesterday is anti-climactic to their repeated threats that they would do so for the past ten days. I welcome it and will answer it in due course. I hope that with its filing, the AFP can now concentrate on running after the Abu Sayyaf and defending our territory in the West Philippine Sea. I am flattered that the AFP gave me so much attention in the face of the many concerns that it faces.

As I have previously stated, I will also file graft and administrative charges against the AFP for allowing Joseph Scott Pemberton to remain in US custody in Aguinaldo. This is contrary to Philippine sovereignty and hence, a breach of the oath of allegiance that officers and men of the AFP took. This is also dereliction of duty.

That the Philippines should have custody over Pemberton is pursuant to the VFA’s provision that the Philippines should have primary jurisdiction over non-service related offenses committed by American servicemen. This is also apparent in the provisions that the Americans “may request to have custody” of their servicemen “from time of the commission of an offense”, which obviously contemplates that the person of an American serviceman should be in the custody of our authorities. This is also consistent with the definition of jurisdiction, which is the legal competence to enforce and prescribe conduct. Without custody over the person of the accused, police authorities cannot conduct the requisite investigation, which forms the basis for the filing of Information in court. The AFP’s failure to have custody over Pemberton is why we do not have the fingerprints, DNA samples, and physical examination of the suspect, all of which are basic physical evidence.

I will also hold the AFP liable for contempt since to publicly announce the filing of disbarment against an officer of the court is to ridicule the administration of justice in this country. All such proceedings are supposed to be confidential. Recently, the Supreme Court fined Prima Quinsayas, collaborating counsel of Nena Santos, the Mangundadatu counsel, in the Ampatuan prosecution for making public their disbarment complaint against Atty. Sigfrid Fortun.

I assure the public that the AFP will not cow me. I will continue to fight for my clients’ interests with even more zeal knowing that Philippine state agents have sided with foreign interests. I will also continue to assert Philippine sovereignty. This is my duty as a member of the Bar and as a Filipino. My promise: I shall return to Aguinaldo should there be a need for me to personally take custody of Pemberton in order to turn him over to Philippine authorities less subservient to the United States.

I will file all my complaints against the AFP as soon as I return from Europe where I am attending Council of Europe and UNESCO meetings on the killing of journalists. Ironically, experts have identified the AFP as amongst the perpetrators of killings against our journalists.

As I write this, I have just asked three questions to Secretary Leila De Lima on the killing of journalists. First, how different is Administrative Order 35 form other Inter-agency committees created by PGMA to deal with extralegal killings which Philip Aston dismissed as insufficient to discharge state obligations to protect and promote the life to life?

Second, why has the government not complied with Ampatuan massacre victims rights, under human rights law, to satisfaction and compensation?

Third, what steps has the Philippine government taken to implement the Human Rights Committee view that criminal libel is contrary to freedom of expression?

De Lima answered as follows, to my chagrin:

One, AO 35 is different from PGMA’s Task Force Usig and Task Force 211 because it is composed of high-level cabinet members and entail cooperation between the police and the prosecutors even if she acknowledged that the current conviction rate for extralegal killings remains at 1%.

Anent the view on libel, she said that there are now pending bills in Congress decriminalizing libel.

De Lima’s answers were politely taken by an audience dominated by advocates for media rights. They were, however, dismissed as being unacceptable by all whom I talked to. One participant remarked that De Lima’s statements, particularly denying the Maguindanao victims their right to satisfaction and compensation, is why there is impunity in the Philippines. Another, a former Vice-Chairman of the Human Rights committee who admired De Lima when she appeared before the Committee, expressed surprise why a person knowledgeable in human rights could publicly claim ignorance of an apparent state obligation.

A more radical participant wanted to slam her.

All told, the Philippine government’s sending of Leila De Lima to the forum was an obvious attempt to bolster the standing of the Philippines in the eyes of the international human rights community. Unfortunately, a messenger can only do so much. The substance has to be provided by the President and his administration. Here, PNOY is clearly wanting.

This post first appeared on November 6, 2014 at http://manilastandardtoday.com/2014/11/06/the-afp-s-complaint-and-secretary-de-lima/

Reaction to AFP’s ACTUAL ( not just the threat) filing of Disbarment Complaint against me

Ref: Prof Harry Roque 09175398096 (Viber until 11 November) The AFP’s filing of disbarment charges against me today is anti-climactic to their repeated threats that they would do so for the past ten days. I welcome it and will answer it in due course. I hope that with its filing, the AFP can now concentrate on running after the Abu Sayaff and defending our territory in the West Philippine Sea. I am flattered that the AFP gave me so much attention in the midst of the many concerns that it faces. As I have previously stated, I will also file graft and administrative charges against the AFP for allowing Pemberton to remain in US custody in Aguinaldo. This is contrary to Philippine sovereignty and hence, a breach of the oath of allegiance that the AFP took. This is also dereliction of duty. I will also hold the AFP liable for contempt since to publicly announce the filing of disbarment against an officer of the court is to ridicule the administration of justice in this country. All such proceeding are supposed to be confidential. I assure the public that I will not be cowed by the AFP. I will continue to fight for my client’s interests with even more zeal knowing that Philippine state agents have sided with foreign interests. I will also continue to assert Philippine sovereignty. This is my duty as a member of the Bar and as a Filipino. My promise: I shall return to Aguinaldo should there be a need for me to personally take custody of Pemberton in order to turn him over to Philippine authorities less subservient to the United States. I will file all my complaints against the AFP as soon as I return from Europe where I am attending a Council of Europe and UNESCO meetings on the killing of journalists. Ironically, experts have identified the AFP as amongst the perpetrators of killings against our journalists

Request for Coverage : November 1 departure of Marc Sueselbeck

Centerlaw release
References: Professor Harry Roque Jr. 09175398096, Atty. Romel R. Bagares 09328798422

Marc Suesebeck, Jennifer Laude’s fiance, will have a short press conference in front of NAIA Terminal 1 tomorrow, 1 November 2014, at 1:30 pm, prior to his scheduled flight.

Marc will be accompanied by members of the Laude family and his legal team.

Statement on the Bureau of Immigration’s go-signal for Marc Sueselbeck’s voluntary deportation

Centerlaw release
References: Professor Harry L. Roque, Jr. 09175398096
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431

We thank the public for their support and concern for our client Marc Sueselbeck. Without it, he wouldn’t have been allowed to leave by the authorities.

The Laude family are of the mind that the charges filed against him by the military were meant to silence them and to pressure them to come to a deal in regard to the case of their slain loved one, Jeffrey “Jennifer” Laude; his voluntary departure frees them from a difficult bind.

Our client wants to spend some of the last few hours he is allowed to spend in the Philippines to visit Jennifer’s grave, to say goodbye to her; but for Marc, his return to Germany doe not mean it is the end of his fight for justice for Jennifer.

He very well understands the gravity of being placed in a blacklist of the Bureau of Immigration, as it could mean being barred from returning to the Philippines for the rest of his life. For now, our priority is to get him on a flight to Germany as soon as possible, so that he does not lose his only source of livelihood there.

Picture of a gruesome murder

[I apologize to those offended by my publication of Jennifer’s last image. This article is not a justification but intended only to explain why the family and the legal team made it public. Picture bore the caption : “Is this homicide?”, which is the defense of Pemberton. Mea culpa and lesson learned.]

I published in my blog the latest picture of Jennifer Laude when she was found dead in the toilet of the Calzone Lodge. It was grotesque, gruesome and macabre. The picture shows that Jennifer died a painful and cruel death. Her face was bloated, indicating she must have been struck repeatedly in the face, her tongue protruding, suggesting she must have struggled to breathe, and while lifeless, it was obvious that she was screaming from pain nonetheless.

After six hours, I removed it from my blog realizing that I would have to devise a way first to warn the reader that it could be one of the most horrifying images ever photographed. I promise to approach techies on how to put this warning. I will republish it as soon as I know how.

The picture, though, had to be published. Why?

Primarily because judging from the pronouncements of the Armed Forces of the Philippines and its supporters, the public obviously does not know just how gruesome her murder was. Yes, it has been reported that she was drowned in a toilet bowl. But the public does not know that prior to drowning, she was also strangled and beaten. The problem was while the public saw how Marc Sueselbeck pushed the Filipino soldier in his desire to see the man who killed his loved one, the people have only seen the picture of Jennifer when she was alive and pretty. They probably assumed that the emotions of both Marc and Marylou, Jennifer’s sister, when they climbed the fence of Aguinaldo to see Pemberton- were simple theatrics. The AFP even says I instigated it.

They are wrong, of course. The anger is not only because Pemberton is suspected to have killed Jennifer. It is also because of the absolutely barbaric and savage manner by which Pemberton may have killed her. That’s why the family wants to make sure that Pemberton is where he is supposed to be. Otherwise, he might be accorded impunity for this bestial killing simply because Philippine authorities do not have him in its custody.

The intention then of posting the picture, with the consent of the Laude family of course, is to explain the Laude family’s anger and their desire to see Pemberton in the flesh.

In any case, make no mistake about it: victims have the right to confront those who violated their rights. This forms part of the right to satisfaction and restorative justice. Here, the confrontation should lead to reparation, specifically, the restoration of the victim’s state of mind prior to the violation of their rights. This is because when allowed to confront the perpetrators of crimes, the victims can ask basic questions such as why their loved ones had to be the victims, what acts, in any, their loved ones committed to deserve their plight.  Hopefully, it might even lead to the perpetrator seeking a apology which to many victims, might amount to full satisfaction.

In any case, the government’s response to the acts of Malou and Marc again indicates its ignorance of the basic rights of victims. Under human rights law, the victim’s right to reparation entitles them to trauma and psychosocial assistance to restore their emotional and mental well-being prior to the breach of their rights. Instead, Marc was branded as an undesirable alien and Malou was  threatened with prosecution.

I hope the picture of Jennifer immediately after her murder will settle this issue once and for all.

In any case, its worth highlighting yet another injustice in the way the PNoy administration has been dealing with the two men in Jennifer’s life: her lover and her murderer. For while the government has done the ludicrous—preventing Marc from leaving the country as originally scheduled so he can be forced to leave through deportation—the government appears helpless in dealing with the suspected killer, Pemberton. Government has, in the process of deporting Marc, confiscated his passport. Pemberton, who perpetrated a gruesome murder, has not been asked to deposit his passport. The government seems hell bent in humiliating Marc into admitting that he is an undesirable alien. In contrast, it has not said anything to Pemberton, as if shoving a soldier in the heat of anger is more criminal than killing a person with absolutely no mercy, No wonder Jennifer’s mother already slammed PNoy in a forum at the UP Law Center last Tuesday. According to her, the President appears not to have given any attention to the gruesome murder of Jennifer simply because they are poor.

Mrs. Laude appears to be right. As correctly observed by Ellen Tordesillas, the reason why PNoy did not even condole with the family is that they are neither members of the LP, Kabarilan or Kaklase of the President. They also obviously do not belong to the same cacique class that produced P Noy.

But never mind. Even if PNoy did not bother to condole with the Laudes, thousands, if not millions of other Filipinos did. For Jennifer- to many of us- has become a symbol of a nation struggling for respect and equality from a former colonial master. Jennifer, hindi ka nag-iisa!

Laude family to request Bureau of Immigration to declare Pemberton as undesirable alien

Request for Coverage
References: Atty. Harry L. Roque Jr. 09175398096, Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431

The family of Jennifer Laude, along with Marc Sueselbeck, will file at the Bureau of Immigration today, October 29, 2014, at 2pm, a letter asking that US Marine Private First Class Joseph Scott Pemberton be declared an undesirable alien.

October 29, 2014

The Hon. Siegfried M. Mison
Bureau of Immigration
Department of Justice
Magalles Drive
Intramuros, Manila

Dear Commissioner Mison:

We bring to your attention the case of US Marine Private First Class Joseph Scott Pemberton, who stands accused of killing our loved one, Jeffrey “Jennifer” Laude, on October 11, 2014.

The murder of our loved one violates Philippine law and is a gross disrespect to what we hold dear as a people. His gruesome murder of a citizen should be enough a justification to declare him an undesirable alien of the most repulsive kind.

Yet until now, we have not seen even just his shadow. Police investigators had been unable to obtain his fingerprints and buccal samples from him for DNA testing. His being placed at a facility inside Camp Aguinaldo is an arrogant flaunting of the Rule of Law; every day that he is shielded from accountability, we allow impunity to reign. Every day that he is placed beyond the pale of our criminal laws, we allow someone to abuse in the most revolting way the welcome our country has accorded him.

We pray that he be subjected to the procedures prescribed by our immigration laws pertinent to an undesirable alien, including the confiscation of his passport as well as his attendance in deportation hearings.

We hope you will give this submission your kind and immediate favorable consideration.


Marilou Laude

Michelle Laude

Julita Laude

Marc Sueselbeck’s Motion for Voluntary Deportation

Centerlaw release
References: Professor Harry L. Roque 09175398096,
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431

Please click here for a .doc copy of the MOTION FOR VOLUNTARY DEPORTATION filed today by Jennifer Laude’s fiance, Marc Sueselbeck.


In re Deportation Charges

D.C. No. SBM-14-10/26-783
Art. 2711, Sec. 69

Watch List Order No. SBM-14-778


x ——————————–x


RESPONDENT MARC SUESELBECK, through counsel, and unto this Honorable Office, respectfully states:

1. On 26 October 2014, a charge of undesirability was made against Respondent at the instance of Armed Forces of the Philippines Chief of Staff, Gen. Gregorio Pio P. Catapang, based on the events of 22 October 2014 at Camp Aguinaldo, Quezon City. Subsequently, Respondent was placed under the Bureau of Immigration Watch List No. SBM/BOC-14-778.

2. Pursuant to the Watch List, Respondent, a German national, was barred from leaving the Philippines even though he was scheduled to do so on 26 October 2014 on board Malaysian Airlines flight MH 0803, at 6:30 p.m., out of NAIA Terminal 1.

3. His German passport, with No. C689C1W4, was also confiscated.

4. Yesterday, after undersigned counsel informed him of the formal charges filed against him before this Honorable Office, he received word from his employer in Germany that he has to report for work by Monday next week, Nov. 3, 2014, or risk losing his job and paying liquidated damages for failing to perform certain provisions in his employment contract.

5. Thus, with a heavy heart – as he desires to defend himself against the charges leveled against him by Gen. Catapang – he manifests before this Honorable Office that he is seeking voluntary deportation the soonest time possible so he can attend to his only source of livelihood.

6. While he desires to leave the country immediately for that purpose and if allowed, he manifests that he will do so not later than this coming Saturday, November 1, 2014.


WHEREFORE, premises considered, Respondent prays that this Honorable Office issue an Order:

(a) granting his request for Voluntary Deportation and allowing him to fly out of the country as soon as practicable;

(b) deleting his name and other personal details from Watch List Order No. SBM/BOC-14-778; and

(c) returning to his possession without delay his German Passport as described above and earlier seized by immigration authorities.

Other relief just and equitable are also prayed for.


Makati City for City of Manila ; 19 October 2014.

1904 Antel 2000 Corporate Centre
121 Valero Street, Salcedo Village
Makati City 1200
Tel. Nos. 887-4445/887-3894
Fax No: 887-3893

Roll No. 36976
PTR No. 4264493/Jan 30, 2014/Makati
IBP No. 01749/Lifetime
MCLE Exemption No. IV-000513
(issued on Feb 15, 2013)

Roll No. 49518
PTR No. 4264492/Jan 30, 2014/Makati
IBP No. 961461/Jan 29, 2014/Socsargen
MCLE Compliance No. IV-017519
(issued on Jan 25, 2013)

Roll No. 56254
PTR No. 4281935/Feb 12, 2014/Makati
IBP No. 961251/Jan 27, 2014/Davao
MCLE Compliance No. IV-019563
(issued on May 2, 2013)

With my conformity:


Laude family and Marc to give statement tomorrow at UP IILS

Request for Coverage
Reference: Professor Harry L. Roque 09175398096

The Laude family and Marc Sueselbeck (Jennifer’s fiancé) will talk about Jennifer and the Visiting Forces Agreement (VFA) at the “Seminar on International Law for Media Practitioners” sponsored by the UP Law Center’s Institute of International Legal Studies (UP IILS) on Tuesday, October 28, 2014, from 8:30 am to 4:00 pm at the 4th Floor, Penthouse, Bocobo Hall, UP Law Center, Diliman, Quezon City.

Access to US Marine Private First Class Joseph Scott Pemberton

This letter was sent by the Laude family, thru their counsel, to the AFP today.
References: Professor Harry L. Roque 09175398096,
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431

27 October 2014

Gen. Gregorio Pio P. Catapang, Jr.
Chief of Staff
Armed Forces of the Philippines
Office of the Chief of Staff
Camp General Emilio Aguinaldo
Quezon City

Dear. Gen. Catapang:

On behalf of the family and loved ones of the late Jeffrey “Jennifer” Laude, we respectfully write your good office to inform you of their request that they be given access to US Marine Private First Class Joseph Scott Pemberton who is in custody at the MDB-SEB facility inside Camp Aguinaldo.

As you know, other than reports in news media that PFC Pemberton has indeed been moved to the said facility, Jennifer’s family does not have any clear proof that he is in fact now being held at the MDB-SEB facility or that the person reported to have been placed in custody there is in fact the same PFC Pemberton who stands accused of killing the victim.

Under the applicable principles of international human rights law, they are entitled to due recognition of victimhood and effective participation in the search for legal remedies to the injury they suffered as a result of the loss of their kin and loved one; applicable principles of international human rights law have considered this due recognition, by way of satisfaction, as embracing a host of entitlements accorded to victims of human rights violations, including access to the status and disposition of the case in question, as well as to the State’s obligation to treat the victims and their family and loved ones with humanity and respect for their dignity.

We look forward to your immediate favorable response to our request. You may reach us through our stated contact details in this letter.

Respectfully yours,

Atty. Romel Regalado Bagares

Atty. Ethel C. Avisado


UP Law Center’s Institute of International Legal Studies (UP IILS)
For inquiries and confirmation of attendance, please call 929-3654 or 920-5514 loc. 207.




The U.P. Law Center’s Institute of International Legal Studies (UP IILS) will conduct a seminar on International Law for Media Practitioners on Tuesday, October 28, 2014, from 8:30 a.m. to 4:00 p.m. at the 4th Floor, Penthouse, Bocobo Hall, U.P. Law Center, Diliman, Quezon City.


The proposed seminar is composed of a series of talks on international law for journalists and media practitioners in the Philippines.  The seminar topics seeks to arm journalists and media practitioners covering international stories with essential international Law concepts and nomenclature, and to acquaint them with the most important and relevant developments in international law that deserve their focus and attention.  Invited lecturers are noted international law experts.


Lecture topics include An Introduction and Overview to the International Legal System by Dean Merlin M. Magallona; Reporting on the West Philippine Sea: Key Concepts by Dr. Raul C. Pangalangan; The Implications of the UNCLOS to Philippine Territorial Claims and National Security by Prof. H. Harry L. Roque; Visiting Forces Agreement and Other Related Agreement with the United States of America also by Prof. H. Harry L. Roque; An Introduction to the Rome Statute of the International Criminal Court by Atty. Celeste Ruth L. Cembrano-Mallari; An Introduction to the World Trade Organization and the ASEAN Economic Integration: Focus on Thrusts and Commitments by DFA Executive Director Jose Victor V. Chan-Gonzaga; and The Most Common Errors Committed by Journalists in Reporting Stories with an International Law Aspect by Atty. Romel R. Bagares.


The seminar is free and open to representatives from the media, concerned government agencies, the academe, and other relevant institutions from the private sector.


For inquiries and confirmation of attendance, please call 929-3654 or 920-5514 loc. 207.


Please click here for the Media Practitioners Programme (Final)-Oct.28 (3)-2

On Laude: The issue is accountability

The issue that we have been trying to address with the Jennifer Laude case is one of accountability. Will a US Marine, normally exempt from jurisdiction of the Philippines, be sent to Muntinlupa in case he is proven guilty of murder?

If we go by the Daniel Smith incident, the answer would be no. Smith, despite having been found guilty by a trial court, was absolved after the victim issued an affidavit of recantation. Nicole, Smith’s victim, is now residing in the United States. This means that outside of a possible monetary settlement, it was ultimately the US government that offered the visa in exchange for the recantation.

What is the lesson learned from the Daniel Smith incident? That the US government will simply not surrender its soldiers to any foreign government no matter what crime they may have committed.

Much of course has been said about the fact that the constitutionality of the Visiting Forces Agreement has been upheld twice by the Philippine Supreme Court, but always with strong dissent from the acknowledged heavyweights in the Court.  In both instances, our Supreme Court upheld its validity because it is not for them to decide the domestic requirements in order that the VFA should have the force and effect of law in the United States. That, according to our Supreme Court, is not its concern. In so doing, they brushed away the rationale for the constitutional requirement that the presence of foreign troops, facilities and bases in the country should only be pursuant to a treaty duly recognized by the other contracting party as such.

What is this rationale?

Under International Law, the acts of foreign troops in a foreign jurisdiction are absolutely immune from local jurisdiction. The latest case in this regard is that of Germany v. Italy. There, an Italian made to work against his will in a German munitions factory during World War II sued Germany before Italian courts for damages arising from his forced labor. The Italian courts granted him damages and proceeded to execute against the Goethe Institute, the German Cultural Office. Germany filed suit in the International Court of Justice. The Court ruled in favor of Germany and ruled that acts committed by German troops during World War II are absolutely immune from Italian domestic jurisdiction. It also ruled that diplomatic assets of the Goethe are also immune from execution.

This is the reason why the Constitution requires that presence of foreign troops and bases here should only be pursuant to a treaty. This is the only way around the absolute immunity of foreign troops in our country: if the US agrees to the exercise of local jurisdiction. Theoretically, the VFA is evidence that the US government has agreed that ordinary crimes committed by its troops while in pursuit of the VFA will be subject to the primary jurisdiction of the Philippines. This is to ensure that the US cannot claim immunity for common crimes committed by its troops.

The infirmity of the VFA hence in not having been concurred in by the US Senate is that this waiver of immunity does not have the force and effect of law in the US. This is because their legislative branch of their government, through the US Senate, did not give its concurrence to the agreement.

This in turn is why the Laude family now doubt if they can hold PFC Joseph Scott Pemberton criminally liable for murder. As of now, he is still in the custody of the US and hence, beyond the reach of Philippine jurisdiction. This has very practical ramifications: without custody over Pemberton, the Philippine National Police has not been able to subject him to custodial interrogation in connection with their investigation of the murder. In fact, because he has not been made available to Philippine authorities, we do not even have the basics of physical evidence from Pemberton such as thumb prints and buccal samples for DNA. Worse, since he was never in our custody, we have not had the opportunity to conduct a physical examination of his body to see if there is any physical evidence that Jennifer attempted to defend herself when she was attacked.

But ultimately, it was the Nicole precedent that has disparaged the family. Remember that Smith was found guilty but got away as a result of a compromise, the juiciest part of which were the US visas for Nicole and her family provided by the United States government.

This was the frame of mind of the Laude family and Jennifer’s fiance, Marc, when we descended on Camp Aguinaldo last Wednesday. As a lawyer, I deemed that the family has the right to ensure that Pemberton was indeed in Aguinaldo and the right to ask him basic questions such as why he murdered their loved one. This forms part of their right to satisfaction under human rights law. The fact that the sister Malou and Marc climbed over the fence came as a complete surprise. In reality, Malou is on the verge of losing hope, what with the entire machinery of the Philippine government, with the exception of Sen. Miriam Defensor-Santiago, espousing the alleged rights of Pemberton and justifying the existence of the VFA. Marc, on the other hand, followed Malou after he was enraged to have seen the US Marines guarding the premises laughing at Malou and the family. Any other reasonable person would have felt the same rage. What is unacceptable is the kind of rage expressed by Pemberton that led to the murder of Jennifer.

Jennifer will be laid to rest today. There will be a mass and neurological service at 2 pm at Columban Church in West Pinlac, Olongapo City. Her remains will then be laid to rest in Heritage Memorial Park.

All Filipinos, including members of the AFP, should condole with the Laude family. For unless the VFA is abrogated, we could be its next victims.


This post first appeared in http://manilastandardtoday.com/2014/10/24/on-laude-the-issue-is-accountability/ on October 24, 2014.

Statement on the Camp Aguinaldo MDB-SEB facility incident (Laude vs Pemberton)

Atty. Harry L. Roque 09175398096
Atty. Romel Regalado Bagares 09328798422
Army Lieutenant-Colonel Harold Cabunoc, chief of Public Affairs Office of the Armed Forces of the Philippines (AFP) is mistaken that our client, Marc Sueselbeck, fiancé of murder victim Jeffrey “Jennifer” Laude, had violated Presidential Decree no. 1227, or the law punishing unlawful entry into any military base in the Philippines.
That law applies to a person “who, without express or implied permission or authority of the base commander or his duly authorized representatives, shall re-enter or is found within any military base after having been removed there from and ordered not to re-enter by the base commander or his duly authorized representative.”
In Mr. Suselbeck’s case, he, along with members of the Laude family, was allowed into the premises of Camp Aguinaldo, where the MDB-SEB facility — the detention area for PFC Pemberton — is located. Subsequently, he and Marilou Laude, a sister of the murder victim, entered the premises of the MDB-SEB in an angry bid to confront PFC Pemberton.
But PD 1227 applies only to a person who, having been removed from a Philippine military facility re-enters it or is found there yet again without proper permission from the base commander.
We do not wish to belabor this point any further, as the Laude family’s focus is on tomorrow’s funeral for their loved one.
We wish to inform everyone that a necrological service for Jennifer is scheduled tomorrow at 2 pm at the Columban Church in West Pinlac, Olongapo City. Afterwards, Jennifer’s remains will be laid to rest following a 3-kilometer march at the Heritage Memorial Park.
All Filipinos who love to see justice done in Jennifer’s case are welcome.

However, should Philippine authorities, at the behest of their American counterparts, charge and jail Mr. Sueselbeck because of what happened, certainly, the irony will not be lost on the Filipino people: here is a person seeking justice for someone he loves being placed behind bars while the very person accused of the murder remains outside the pale of Philippine law, and coddled by a government subservient to its foreign masters.
They should just as well charge and jail Jennifer’s sister Marilou, the complainant in the murder proceedings against PFC Pemberton, since she as well scaled the perimeter fence of the facility in search of justice for her murdered brother.
Our client Mr. Sueselbeck – while he regrets having been overtaken by emotion when he saw the US marines there mocking Ms. Laude – is ready to face the consequences of what he did.
Atty. Harry Roque, our lead counsel, beseeches “the understanding of everyone. Our clients are losing hope that justice will be served at all in the death of their loved one. Surely the armed forces understand their predicament.”
When we talked to Mr. Sueselbeck about this, he was very apologetic and told us he “just blanked out” and did not know the strength that suddenly seized him and propelled him to do what he did. He was overcome with anger when he saw US marines posted there laughing at Ms. Laude’s efforts to get inside the premises of the facility.
He wishes to apologize to the Filipino marine guarding the outer reaches of the facility he unintentionally ran against.

Laude family asks Olongapo Prosecutor to subject Pemberton to DNA and fingerprint tests

Centerlaw release
Reference: Professor Harry L. Roque, Jr. 09175398096

Please see attached Omnibus Motion we filed yesterday with the Office of the Prosecutor in Olongapo City, asking that fingerprints and DNA test samples be taken from PFC Pemberton.

Click here for a copy of the Omnibus Motion of Marilou S. Laude vs. Private First Class Joseph Scott Pemberton

In memory of Jennifer: Junk Vfa

I am in Olongapo City standing as lawyer for the Laude family in connection with the gruesome murder of Jennifer.

To set the record straight, I “did not volunteer” my services to the family. A couple of months back, we had a training here in Subic jointly sponsored by the American Bar Association and the defunct AustAid on victim’s rights advocacy. The said training was intended primarily for civil society organizations so that they will know what to do in case there is a case of extralegal killing or torture in their community. That training had members of the Kilusan Demokratikong Pilipino and the women’s group KAISA-KA, the same group also advocating the cause of the last remaining comfort women in Pampanga, in attendance. So when Jennifer’s killing became public in Olongapo, both civil society groups lost no time in assisting the family in taking steps that the proper investigation of the crime take place. Kudos to them, we now have at least three eyewitnesses who can testify that Jennifer was last seen in the company of Pemberton in the crime scene. It was also civil society that alerted police authorities about the occurrence of the crime, which led to the timely investigation by the SOCO of the PNP led by Maj De La Torre.

Yesterday, we filed the criminal compliant that would trigger the process of preliminary investigation to begin. We had doubts about whether the proceedings could move forward given that the Respondent, PFC Joseph Scott Pemberton, is still in the custody of his American superiors. We asked ourselves: where would the Prosecutor serve him with notices for preliminary investigation? We indicated the name of his ship. In reality, no process server from the DOJ could board the vessel since it is an American warship.

So the Laude family is now in a quandary. While their filing of the criminal complaint triggers the legal process, how could it proceed without Philippine custody over the person of the Respondent?

Apparently, the Daniel Smith precedent was different.  There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes. Could it be that US authorities are contemplating of exercising jurisdiction over him since murder as a hate crime against a transgender relates as well to the discipline of its troops? If this is so, this is worrisome since unlike the case of Smith, American authorities may not have Pemberton available to Philippine authorities altogether.

For the record, we decided to still press charges as of last night since this will at least inform the entire nation that the ball is now in the hands of the Philippine government. The most that the victims can do under the circumstance is to commence with the filing of complaint to trigger the preliminary investigation. Unfortunately, the victims are powerless to compel US authorities to have their soldier available to attend the proceedings. We filed nonetheless at least to illustrate exactly how the VAF offends Philippine sovereignty and jurisdiction. For while Philippine laws were breached and despite the fact that the Victim was a Filipino killed in his own country, our legal system appears to be powerless against the person of a US serviceman.

The consolation is that at least, DFA Secretary Del Rosario, unike the Department’s spokesperson,  has articulated the correct interpretation of the VFA. That is, Philippine authorities should have custody over non-service related crimes committed by US servicemen under extraordinary circumstances. I join Sec Del Rosario that a murder committed as a hate crime against a transgender, suffices to qualify as an “extraordinary” circumstance to warrant Philippine custody over Pemberton.

In any case, the brutal killing of Jennifer, a apparently from drowning in a toilet bowl, should be a wake-up call to all Filipinos that the VFA, and the EDCA will never serve the Filipino interest. Unless we abrogate the VFA and reject the EDCA, more Filipinos will suffer the fate of Jennifer: victimized my bigoted US servicemen and yet denied an adequate domestic remedy.

My promise though is when we fail to get justice for Jennifer and the nation before Philippines courts, we will pursue the killer before foreign courts wherever the bigoted killer may be. Meanwhile, we should unite as a nation and assert our sovereignty: Junk the VFA! Junk the EDCA!

Bail granted to 17 cops in Ampatuan case inconsequential

Centerlaw release
Reference : Professor Harry L. Roque, Jr.

Lawyer Harry Roque downplayed yesterday the decision by the Quezon City regional trial court to grant bail to 17 police officers tagged as perpetrators in the Maguindanao Massacre case.

“The bail granted is not too consequential as far as we are concerned,” said Roque, who represents the families of 15 victims of the massacre, most of whom are journalists from Mindanao. “We’re focused on proving the guilt of the Ampatuans before 2016 and we believe we have strong evidence to prove precisely that.”

The police officers are among 64 Philippine National Police (PNP) officers and men facing administrative cases before the National Police Commission (NAPOLCOM) in connection with the massacre.

The administrative cases were filed by the Center for International Law, a non-profit dedicated to the promotion of free expression in the Philippines and Asia headed by Roque.

Pinay transgender slay proof US military presence never good for us

The alleged killing by a U.S. Marine of a Filipina transgender in Subic Bay is proof that the presence of foreign troops on Philippine soil will never work for the national interest, according to human rights lawyer Harry Roque.

“We should learn from history, foreign military presence and national interest do not mix well,” said Roque.

Roque, Chairperson of Center for International Law, a think-tank dedicated to the promotion of international legal norms in Philippines and Asia, who also teaches constitutional law and international law at the University of the Philippines College of Law, is one of the petitioners challenging the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States.

According to Roque, the agreement, which expands the presence of US military forces in various parts of the country, violates the constitutional bar to the establishment of US military bases in the country.

Earlier, Jeffery Laude, also known as “Jennifer,” a 26-year old transgender, was found in the toilet of a room at Celzone Lodge late Saturday in Olongapo City. Police said the victim was apparently strangled to death after checking into a room at the lodge near the former US military base at Subic Bay with a “male, white foreigner”, later on identified as a US marine personnel.

Roque said Laude’s case recalls yet again the iniquitous provisions of the Visiting Forces Agreement on detention facilities for US servicemen found guilty of violating Philippine laws.

EDCA is being pushed by the Philippine government as a necessary supplement to the VFA, to enable the country to better address Chinese incursions in the West Philippine Sea.

Roque had served as counsel in a petition questioning the VFA in the wake of a conviction by the Makati City Regional Trial Court of US serviceman Daniel Smith in 2006 for the rape of a Filipina, Suzette Nicholas, also in Subic Bay. Roque filed the petition after Philippine authorities summarily transferred Smith from the Makati City jail to the US Embassy before he could be formally turned over to the National Penitentiary.

Ruling on the petition, the Supreme Court said the VFA’s constitutionality is not open to question. However, it also said that the Philippines and United states should renegotiate the terms of the VFA in regard to detention facilities under Philippine authorities for US servicemen found guilty of crimes in the country.

In February 2013, in a motion for execution, Roque asked the High Court to compel the Department of Foreign Affairs to renegotiate the relevant provisions of the VFA in accordance with the Supreme Court’s ruling in the Nicholas case.

Early this year, the High Court denied the petition, saying it does not have jurisdiction to hear a motion for execution. On motion for reconsideration, it said US and Philippine authorities have already met to discuss the question of detention facilities, with the Philippines proposing the AFP Custodial Center as an “agreed facility.”

VP Binay’s refusal to attend Senate hearing is not an Impeachable Offense

Ref: Professor H. Harry L. Roque, Jr. 09175398096

In an interview last October 10, 2014, Sen. Miriam Defensor – Santiago said that Vice President Jejomar Binay’s obstinate refusal to appear before the Senate Blue Ribbon Subcommittee constituted betrayal of public trust, an impeachable offense. While we respect the wisdom and experience of the learned Senator, we believe that this statement will just sow confusion and, in turn, affect the public’s perception of the entire impeachment process.

It is our view that the VP’s failure to attend the Senate inquiries is not an impeachable offense.

Article XI, Section 2 of the 1987 Constitution provides that; “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.” In the words of Justice Estela Perlas – Bernabe, the phrase “betrayal of public trust” refers to acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.


The Constitution is clear. The Senate does not possess the power to compel the Vice-president to attend its inquiries because of the principle of separation of powers between co-equal branches of government. To compel him would be to assert the Senate’s supremacy over the Executive, which is frowned upon by the Constitution. , To claim otherwise would be to go beyond what is spelled out in the Constitution. To claim that it is an impeachable offense is therefore an error.

ISIS and International Humanitarian Law

The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.

Martial law in the ‘land of the free’

It was ironic that on the very same day my column on martial appeared last week, I had first hand experience on the pernicious face of martial law, albeit in Thailand.

The occasion was an international conference on “Southeast Asian Views on the Convention Against Torture (CAT) and its Optional Protocol”. Apparently, the forum was organized long before the declaration of martial law. Originally, the focus was only on Thailand’s compliance with the said Convention. Fortunately, the Hanss Seidel Foundation provided funding that enabled participants from the Philippines, Indonesia, and Malaysia to attend the forum.

My talk itself should have been uncontroversial in Thailand. While the Philippines has ratified the (CAT) way back in 1986, it took us almost 30 years to comply with our treaty commitment to pass domestic law punishing torture as a distinct crime. Moreover, I presented the results of a multi-stakeholder meeting on the challenges to the Philippines compliance with the convention. These include the fact that pretrial detentions, which breed torture continue, failure to investigate torture cases adequately, and failure to readily provide free medical assistance to torture victims. Moreover, there is the persistent problem in our rules on criminal procedure, which makes it the burden of the victims to establish prima facie evidence for the crime of torture for the purpose of filing Information in court. Under the Convention, it is the State, and not the victims, that have the obligation to investigate, prosecute and punish torture even in the absence of a formal complaint.

The otherwise innocuous presentation proved controversial because the ruling Thai military junta sent censors with a clear warning that none of the speakers should talk about Thai domestic matters, including the prevailing martial law in that country. The warning was given to me thrice: by the academic from Thammasat University that sponsored the event; the German expat from Seidel foundation, that paid for the event, and the event organizer. I sensed that they specifically had to remind me about the presence of censors from the country’s “ National Council for Law and Order” because my last engagement in Thailand a couple of months back, also in Thamassat, dealt with the very sensitive topic of Lese Majeste, or the Thai law that prescribes up to 20 years of imprisonment for anyone criticizing their King. The organizers knew too that I am the counsel for Thai nationals behind bars for Lese Majeste, which includes Thailand’s counterpart of our own Ninoy Aquino, Somyot Prueksakasemsuk. Centerlaw, an advocacy group that files public interest cases of which I am the Chair, appears as counsel of record for Thai activists before international bodies in actions that seek to declare Lese Majeste, and incarcerations because of the law, as contrary to freedom of expression and hence, a form of arbitrary detention.

So I found myself in a bind. Neither Marcos, Arroyo nor PNoy have been successful in shutting my otherwise big mouth particularly in my advocacy to promote freedom of expression. Even my most outspoken critic in Facebook, an ex-envelopmental journalist who is suspected of having killed his common law wife and his two children in an act of arson, and his pagan cabals, has not succeeded in shutting me up. Should I allow the Thai junta to shut me up for once?

Certainly not. But to placate my hosts, I did not speak specifically about Thailand’s martial law. Instead I spoke about the Philippines experience with Martial Law and why despots like Marcos, resort to them.

I explained to my audience that despots declare martial law because of their unmoderated greed for power and money. Marcos, like other despots, resort to military rule because they have lost democratic legitimacy. Marcos then was already disqualified from seeking a new term. And so, the solution was to do away with the 1935 Constitution prescribing for term limits and declaring himself as leader of a martial law regime. This enabled him to rule as an absolute dictator for in excess of 20 years without a popular mandate. And why do despots seek to be in power? Simple. It’s because of their unmoderated greed for wealth. Marcos of course today has had at least 150 billion pesos of his ill-gotten wealth already sequestered by government. My guess is that this is probably just the tip of the iceberg. Certainly, unless the rest of his assets are found, none of his descendants would have to ever worry about financial survival.

The Thai audience was very much amused by my discussion. Although an open forum was not encouraged, I am sure that the audience saw the parallels between Marcos martial law and the current situation in Thailand. There is of course a subtle difference. In Thailand, the struggle is between a revered King bereft of a popular mandate and a popular Thaksin. Whenever the sovereign people install the popular Thaksin in power, the Thai military, ever loyal to the King, will depose the Thaksin administration. This latest coup is already the second against Thaksin.

Make no mistake, though. Thaksin is no Ninoy Aquino. He’s probably akin to the Marcos cronies who relied on a system that breeds crony capitalism to enable them to amass their tremendous fortunes. The Problem started when Thaksin thought that his wealth was sufficient to challenge the supremacy of the King in Thai society. Recent Thai history has proven him false.

For the record hence, the Thai martial law regime attempted to censor me but did not succeed. They of course resort to censorship to hide the truth from the public. Guess what, try as they do, the truth always has a way of getting out.

Meanwhile, all freedom-loving Filipinos should condemn the lack of legitimacy of the Thai junta and express our solidarity with genuine peoples’ organizations seeking to restore democracy ironically, in the so-called “land of the free”.

My Lolo and martial law

By Atty. Harry Roque Jr. | Sep. 25, 2014 at 12:01am
I was too young to be an activist during martial law. I was fortunate though to have been raised in a family whose religious convictions include that of taking a stand for the poor and oppressed. This is why even if I did not venture to the streets to protest the Marcos dictatorship until I was a freshman high school student in UPIS, specifically in the infamous march along Liwasan Bonifacio to protest against the Education Act, I had my political education rather early in life.

Born in 1966, I, as a young child, could only remember being roused from my sleep with the commotion in our ancestral Pasay residence. My Lolo, Hipolito De Leon Lopez, announced that Martial law had been declared by Marcos. Lolo was a lawyer by training, but opted to work, together with “King” Doromal, for an American multinational company and became one of its pioneer Filipino executives. He himself was a founding councilor in Quezon City having been appointed to the post by then President Manuel Quezon. Owing though to an edict issued by of my Lola, who valued the family’s privacy, he was forced to retire early from politics. This is why among others, they moved from Quezon City to Pasay.

Lolo, despite having retired very from politics, was nonetheless still tremendously immersed in it. Lola, on the other hand, was a cousin of a rising star whom every one knew as “Mr. Clean,” Jovito Salonga. It was through this family relations that my political education began.

Lolo’s immediate concern upon declaration of martial law was an uncle, now a protestant Pastor, Uncle Rey, who was then a law student at the UP College of Law. Uncle Rey lived through the first quarter storm in UP and was a true blue activist when martial law was declared. Lolo knew that over and above our relations to Salonga, my uncle, whom he knew was active in the soon-to-be-declared illegal Kabataan Makabayan, was most at risk. Years later, the Protestant Church, through the Reverend Cirilo Rigos, would arrange for Uncle Rey to seek asylum in many monasteries in Europe where he evolved from a student activist to a seafarer’s advocate, which he remains today.

My political education was one of extreme contradiction. While my entire family was anti-Marcos, and not just because of Jovy Salonga, but primarily because Marcos trashed the 1935 Constitution and was engaged in widespread kleptocracy, my Lolo would nonetheless berate my Uncle for his student activism. Lolo himself had his share of cabal activities against the martial law regime, including late night sessions in his farmhouse in Parañaque, with journalists then residing in Fourth Estate subdivision, including its developer, a journalist who was a former diplomat whose first name I cannot now recall, Mr. Rodriguez. They would congregate for many nights reading the banned editions of the mosquito press and would take turns condemning, even cursing the excesses of the conjugal dictatorship. Meanwhile, my Ate and I would lead the siblings and cousins to our own march in the rice paddies chanting “Ninoy!” and other slogans against the dictatorship. But maybe owing to his corporate background, Lolo could not accept my uncle’s activism as if it were enough to condemn the dictatorships in secret meetings. Perhaps, it was fact that my uncle’s activism caused him to drop out of law school. To this date, I do not know if Lolo disliked my uncle’s activism because of the risk that it caused, or because it kept my uncle from becoming a lawyer. Maybe it was both.

There too were the many individuals wanted by the dictatorship, which we gave safe haven in our home in Pasay. While I no longer recall who exactly they were, one nun stands out because she used to play the piano very well. She had two favorites: Bayan ko and If a Picture Paints a Thousand Words. It was this nun, whom I never saw in a hobbit, who would lecture me on the basics: neo-colonialism, neo-feudalism and US imperialism. Looking back, it was she who explained in a manner that a child could understand why the US, because of its security interest in the region, opted to support the Marcos dictatorship. Ironically, this nun would later seek asylum in the heart of the beast: the United States.

Meanwhile, my political education continues, but with a difference. While I continue to espouse the view that only Filipinos can safeguard the Filipino interest, I have moved from sloganeering to legal advocacy. This means that while I continue to go and speak at rallies, particularly against the pork barrel and the DAP, I have gone further and actually used the law as a tool to change society. I guess I now know why my Lolo was so frustrated that my uncle gave up on his law training. Advocacy itself is important to build awareness amongst the people, but lawyers can do more for the cause when and if they use it as a tool to promote the people’s agenda.

Years from now, in the twilight of my life and when I am asked what I have done for society, I can cite jurisprudence and not just the advocacies I engaged in: David vs. Arroyo where the Court ruled that General Order No. 5 as unconstitutional since in the absence of a statutory definition for terrorism, only the President can define what it is which she can use to stifle dissent; Roque vs. de Venecia, where the Court ruled that ordinary citizens have a standing to sue to enforce a public right; Cacho vs. Arroyo, where the Court recognized that abuse of right was a valid cause of action when then FG Mike Arroyo filed 45 libel cases against journalists, Adonis vs. RP where the UN Human Rights Committee ruled that Philippine criminal libel is against freedom of expression, and the latest, Belgica vs. Aquino, where the Court ruled that the Disbursement Acceleration Program is unconstitutional.

Looking back, my political education must be the realization of my Lolo’s aspirations: the use of the legal profession as a tool to promote democracy and to spoil the day for despots.

I do miss my Lolo.

Binay and the Senate inquisition

The Senate investigation of the alleged overpriced Makati City Hall 2 building is obviously in aid of the senators’ own election bids. Vice President Jejomar Binay’s inquisitors, Senators Alan Cayetano and Antonio Trillianes, are both great young leaders and are also my closest friends. But friendships aside, the reality is that the two of them have also publicly admitted that they’re after higher office: Alan for President and Sonny for Vice possibly under the banner of the Nacionalista Party. This does not per se make the Senate investigation on Binay spurious. It however, casts a doubt that the investigation is being conducted precisely for partisan purposes: to bring down the presidential front-runner in 2016.

 The on-going Senate smear against Binay though is not new. This is why despite the fact that the Senate’s power to conduct investigations in aid of legislation is plenary in nature, meaning that only the Senate itself can say if when its investigations are indeed pursuant to law making, the Supreme Court has recently ruled that these investigations, bereft of genuine legislative basis, is prone to abuse. This is why plenary or not, the Court has ruled that the Senate cannot investigate without a legislative purpose.

The starting point in this long line of Jurisprudence is Arnault vs Nazareno. In this case, the Supreme Court first ruled that Senate inquiries are plenary in nature and that witnesses may be cited in contempt of the Senate where they fail to appear before the investigation and when they are found to be lying before the body.  Said the Court: “The power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who possess it.”

Much later, during the administration of President Corazon Aquino, the Court ruled in the case of Bengzon vs. Blue Ribbon Committee that despite the plenary nature of legislative inquiries, the Senate could no longer pursue an investigation on a matter which was already pending in Court. This is because parties to the Senate investigation, when they are already charged in Court for the same subject matter being inquired upon, have the right against self-incrimination. In other words, the rationale behind the prohibition is because persons appearing in the legislative hearings may be held criminally responsible for matters, which they may state before Congress.

But more importantly, the Court in Bengzon highlighted that legislative inquiries must be for legislative purposes. Said the Court: The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited.   x x x Thus, as provided therein, the investigation must be “in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected.”

The Court then enjoined the Senate Blue Ribbon Committee from further proceeding with the inquiry in the absence of a legislative purpose: “Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.” I other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon committee was to find out whether or not the relatives of President Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin “Kokoy” Romualdez to the Lopa Group. There appears to be, therefore, no intended legislation involved”.

The words used by the Court in Bengzon could very well be applied to the ongoing smear against VP Binay. What is the legislative purpose of the investigation? What possible amendments to the plunder law and/or the anti-graft and corrupt practices acts could be introduced as a result of the investigation against Binay? Could not its investigations already conducted against the PDAF and Janet Lim Napoles already facilitate these amendments? Why investigate Binay and not the DAP?

The senators, even with their plenary powers, are still public officials. While they may engage in inquiries for legislative purposes, they should not waste the public coffers in investigations in aid of their own elections. Lest we are misunderstood, we already have the Ombudsman as the Constitutional body tasked with the investigation of public misfeasance of public officers. Let the very able and independent Ombudsman Conchita Carpio-Morales do her job. Meanwhile, we expect our senators to do theirs as well: craft policies through laws.

A further word of advice to my good friends: Philippine history has shown that while smears have sometimes worked, it has not always resulted in poll victories. Jamby Madrigal spearheaded the smear against Manny Villar that proved to be somehow effective. Her smear though was not enough to win her a second term in the Senate. This shows that our electorate people do not appreciate individuals behind smear campaigns. They will still vote for people with positive achievements.

Beware, my friends!

Dismal rule of law in the Philippines

It’s confirmed. The Philippines does not adhere to the rule of law.

In the annual Rule of Law Index for 2014, the Philippines received dismal grades for its adherence to the rule of law. In fact, the country was a dismal failure, receiving an average score of only .5 out of 1. That’s a failing grade of 50 percent.

In the region, we ranked 11th out of 15 states, behind even Mongolia, and in the company of Vietnam, China, Myanmar and Cambodia. We were eighth out of 24 in our income rank of lower middle-income countries. Worldwide, we were in the bottom half of the world ranking 60th out of 99 countries included in the survey.

The annual Rule of Law Index is a project of the World Justice Project. While the “rule of law “ is difficult to define, the project nonetheless evaluates countries’ adherence to the rule of law through outcomes that the rule of law brings to society. This includes “ accountability, respect for fundamental rights, and access to justice”.

The annual survey is based on four universal principles on the rule of law: one, government and its officials and agents are accountable under the rule of law; two, the laws are clear, publicized, stable and just, applied evenly, and protect fundamental rights including security of persons and property; three, the process by which the laws are enacted, administered and enforced is accessible, fair and just; and four, justice is delivered by competent, ethical, independent representatives who are of sufficient numbers, have adequate resources, and reflect the make-up of communities they serve.

The rule of law project then conducted a survey on 99 countries asking respondents to comment on eight factor areas of the rule of law, to wit: constraints on government power, or the extent to which those who govern are bound by the rule of law where the Philippines received a score of 59 percent. Absence of corruption where the Philippines received a score of 50 percent%, open government where the country got a lower score of 45percent, fundamental rights with a score of 52 percent, order and security with a score of 73 percent, regulatory enforcement with a score of 46 percent, civil justice with a score of 40 percent and the lowest, criminal justice with a depressing score of 36 percent.

While the methodology of the project was through a survey of at least 300 local experts in each country jurisdiction, the findings correspond with the reality on the ground. For instance, the country’s lowest score in criminal justice jibes with the fact that almost no person has been held accountable for extralegal killings in this country. The index bolsters the Asia Foundation-funded Parreño report that showed that the country has a dismal 1 percent conviction rate for extralegal killings. The score on civil justice also corresponds with the grim reality that civil cases take forever to be resolved in our courts. Likewise, the failing grades on corruption, open governance and fundamental rights appear to be reflective of realties, what with PDAF and the DAP scandals.

The surprise is the 73 percent, which we received in the area of order and security. With the recent spate of criminal activities, including kidnappings again prevalent, I am surprised that respondents still gave our country a nearly passing grade for this category.

In its report on the Philippines, the Rule of Law Index noted favorably “the existence of a vibrant civil society and a free media” which has been “reasonably effective checks on government power”. It noted though that “civil conflict and political violence remain problematic”. It also reported that “the country also has challenges with respect to protection of fundamental rights (ranking 67th over-all), particularly in regard to violations against the right to life and security of the person, police abuses, due process violations, and harsh correctional facilities”. It also highlighted that the “civil courts system ranks poorly (82/99 globally and 12/15 regionally) due to deficient enforcement mechanisms and the lengthy duration of cases”.

Beyond the index, the report confirms that we have a barely working rule of law in this country. This means that our public officers are not held accountable for their acts; our laws are unevenly applied, depending on whether one is rich or poor or politically connected or otherwise, think of NAIA Terminal 3 which is now being used without the builder being paid for the building; laws are not effectively enforced, and justice is not delivered by competent judges with sufficient numbers and competence.

In other words, we have a failed legal system where we are one notch away from reverting to the laws of the jungle.

This is yet another reason why a lawyer like Jojo Binay should be in Malacañang come 2016.

This post first appeared in http://manilastandardtoday.com/2014/09/11/dismal-rule-of-law-in-the-philippines/ on September 11, 2014.

The future of the Internet

I am in Istanbul, Turkey to attend the 9th Internet Governance Forum (IGF). This is an initiative of the United Nations General Assembly to bring together stakeholders to discuss the future of the Internet.

On top of the agenda is how governments should treat the net. The majority view still is what is referred to as the “multi-stakeholderism approach”, which believes that as the Internet is the technological realization of a free market place of ideas, it should be allowed to flourish with minimal governmental interference. On the other end of the spectrum is the view that the Internet should be subject to the full exercise of state sovereignty and jurisdiction exemplified perhaps by China’s decision to build the counterpart of its great wall on the Internet.

But beyond the debate on how much control government should exercise over the net, the conference also deals with a host of other controversial topics. I would think that given the archipelagic nature of the Philippines and the fact that we have one of the slowest and most expensive Internet service in the world — a topic that should have prompted our government to at least send an official delegate to the forum would be the issue of access to the Internet. But reflective of the lack of political will and/ or lack of appreciation that access to the internet is fast developing into a human right, the Philippines did not bother to send anyone, even a third secretary from our embassy in Ankara, to the forum. A fellow Filipino civil society delegate, Liza Garcia of Gender and ICT, cynically observed that if the international community put a price tag on the Internet, our government would most definitely have sent an official delegate to the forum.

In any case, it is strange that the Philippines, as the country that has most recently implemented a draconian law that infringes on freedom of expression on the net through the Cybercrimes Prevention Act, would choose to ignore the UN-sponsored forum on the future of the Internet.

Other interesting topics for discussion include: content creation, dissemination and use, the Internet as an engine for growth, enhancing digital security, human rights and other emerging issues.

I have thus far attended two interesting panels. The first is on the future of the data privacy in a post-Snowden world. The other is on human rights principles and the Internet.

Apparently, the concern today arising from the Snowden incident is the privacy of data, which governments have been accessing. This is why most governments insist on “in-country data storage”, referred in techie language as “localization”, which many Internet servers object to as being uneconomical and violate their clients’ rights to privacy. Unfortunately, a theme that arose from the panel discussion is that it is start-up companies that have the balls to stand up to government in resisting localization. The big guys, apparently driven by potential loss of revenues, have been more than happy to comply with both localization and requests for data. All that Big Brother has to do is to ask.

Closer to my interest are human rights principles, which have been codified into the Charter of Human Rights for the Internet. While this remains lex ferenda, meaning this is still aspirational; the panel observed that countries have been moving, albeit slowly, to enact enabling legislation to transform the Charter into lex lata, or what the law is. New Zealand and Brazil are two such countries. I do recall that Sen. Miriam Defensor Santiago has a pending bill, the Magna Carta for the Internet, which I hope will be enacted into law soon so that the Philippines can help in making the aspirational Charter into law. Some of the rights included in the Charter include the right to access and the right against government surveillance without due process of law. Thank goodness that while we lost in our challenge against cyber libel and cybersex in the Cyberprevention Act, we at least succeeded in nullifying real time data gathering without a court warrant and the take-down clause which would have enabled the Justice Secretary to act as investigator, prosecutor, judge and executioner in taking down Internet sites.

Today, my hosts, Freedom House and the American Bar Association, have arranged a series of bilateral meetings with donors and tech companies. In a few minutes there will be a bilateral meeting with the European Commission, followed by bilateral meetings with the State Department, the Director for Advocacy of Human Rights Watch, and meetings with companies such as Twitter and Facebook. At issue with the techie companies is the procedure by which they comply with government requests to take down materials. Early in our pre-conference planning, we agreed that we would attempt to persuade these companies to adapt an administrative procedure by which civil society and other interested parties may challenge any such request to take down content. Prima facie, these requests constitute prior restraint and infringe on freedom of expression.

It’s my first time to attend the IGF. I do concede that three days can make a world of a difference. I started on Day 1 when I was still pessimistic that a forum where nothing is adopted might be a waste of time. Today, and because I have been teaching international law for 15 years, I realize that a forum such as this facilitates the formation of customary norms. This is because civil society and other stakeholders are allowed to persuade governments to adopt uniform state practice on the basis that these practices have become law.

It’s not such a waste of time after all.

My profuse thanks to the American Bar Association for sponsoring me to this event, and to Freedom House for including me in their delegation. This means I win the prize for social media, right?

This post first appeared in http://manilastandardtoday.com/2014/09/04/the-future-of-the-internet/

Pasig court throws out libel suit by bank against Dagupan’s Sunday Punch

Dear media friends, please see below our media release on a libel case we have successfully defended. Kindly refer to the attached 5-page copy of the court’s order dismissing the case.

Media Release from CenterLaw
For reference : Professor H. Harry L. Roque, Jr. 09175398096 and Atty. Romel R. Bagares, 09328798422

The Pasig City Regional Trial Court has dismissed a two-count libel suit filed by a publicly-listed thrift bank Citystate Savings against the entire staff of the multi-awarded Dagupan City-based Sunday Punch newsweekly, having found no probable cause to try the case.

“There being no malice in the subject articles, a reasonably discreet and prudent person would find it difficult to charge the accused for libel,” said Branch 167 presiding judge Rolando G. Mislang in his five-page order dated August 27, 2014.

The suit arose from two articles published last year by the Sunday Punch in its print and online issues for August 25-31 and September 1-7 detailing the Pasig City-based bank’s alleged use of public funds to pay for the electricity consumption of one of its branches in the city.

The articles – vigorously disputed by the bank for allegedly being false – were based on comments made by an officer of the local electric cooperative and Dagupan City mayor Belen Fernandez herself. Both officials did not retract their statements even after the filing of the libel suit against the Sunday Punch, a pioneering community paper that has won many journalism awards over the years.

But as the judge could not find probable cause against eight Sunday Punch editorial staff members – namely, editor-in-chief and publisher Ermin Garcia Jr., associate editor Marifi Jara, contributing editor Jun Velasco, correspondents Jesus A. Garcia and Johanne R. Macob, online administrator Julie Ann Arrogante, production manager Jocelyn F. De La Cruz, and cartoonist Virgilio Biagtan – he granted their motion for judicial determination of probable cause and recalled arrest warrants issued against them.

Lawyers for the newsweekly – Attorneys Harry Roque, Romel Regalado Bagares and Zharmai Garcia of the Center for International Law – had argued for the application to the case of the public figure exception in Philippine jurisprudence on libel, which requires a complainant who is a public figure to prove “actual malice” in the allegedly libelous article.

The actual malice standard provides that any falsity in a news report is not liable for liable unless the public figure concerned proves that the report was made with knowledge that it was false or with reckless disregard of whether it was false or not.

Professor Harry L. Roque Jr., Chair of Centerlaw that defended the Sunday Punch, hailed the dismissal as a triumph for freedom of expression and stated that, “The dismissal recognizes that a discussion on how public property is managed is imbued with the public interest”.

Judge Mislang agreed with the Sunday Punch’s lawyers.

“The two articles in question merely referred to or quoted the statements of officials, thus establishing the fact that the accused did not write the articles and publish them with reckless disregard for truth,” wrote the judge in his order.

He brushed aside the argument made by the bank’s counsel — lawyer Ferdinand Topacio — that the actual malice standard should not apply to it as it is not a public figure, saying that Citystate after all “operates a business that is imbued with public interest.”

Citystate is a bank owned by investors led by Mr. Antonio Cabangon-Chua, who also owns interests in print, broadcast and television outfits, among them the Business Mirror newspaper, Aliw Broadcasting Network AM Radio Station DWIZ, Solar Television Network and Radio Philippines Network.

The judge said: “[c]learly, private complainant Citystate failed to prove not only that the charges made by accused in the subject articles were false but also that accused made them with knowledge of their falsity or with reckless disregard of whether they were false or not.”

Judge Mislang also took issue with Citystate’s wholesale filing of the libel suits against the entire staff of the Sunday Punch. Noting that it was the paper’s editor-in-chief who took responsibility for the articles in question, he said that the bank failed “to specify how each of [the other Accused] could have actively participated in the publication of the subject articles.”

The Office of the City Prosecutor earlier dismissed the bank’s libel complaints. However, it reinstated the case on the latter’s motion for reconsideration and filed two counts of libel against the Sunday Punch news staff with the regional trial court.


Click here for a copy of the ORDER PP v E Garcia

Syrian rebels threat to Filipino UN peacekeepers a war crime

The Center for International Law (CenterLaw) said today Syrian rebels who have surrounded Filipino soldiers who are part of the UN contingent of peacekeepers in the Golan Heights and threaten to hold them hostage violate the latter’s protected status under international law .

“UN peacekeepers have been deployed not to take part in hostilities as combatants but to maintain international peace and security under the UN Charter,” said lawyer Romel Bagares, Executive Director of the non-profit dedicated to the promotion of international legal norms in Asia and the Philippines. “They therefore remain protected as civilian non-combatants and are not to be targeted nor taken as prisoners of war by any of the parties to the hostilities.”

Bagares appealed to the Syrian rebels to respect the Geneva Conventions granting protected status to UN peacekeepers, warning that they may be prosecuted for war crimes if they insist on ignoring the distinction between peacekeepers and combatants under the law on armed conflict and attack the UN peacekeepers.

He said three rebel commanders in Sudan are now being prosecuted before the International Criminal Court for leading an attack on African Union peacekeepers in Darfur.

“All persons who are neither members of the armed forces of a party to the are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.,” said Bagares.

Intentionally directing attacks against a peacekeeping mission is a crime under the Rome Statute, which created the world’s first permanent international criminal tribunal.

In this case, it is clear that the Filipino soldiers had been deployed under the color and authority of the UN and are readily distinguishable from combatants in the conflict for that reason, according to the lawyer.

He added that the Filipino peacekeepers have a recognized right to self-defense under international law and may use force to protect themselves from any attack.


Binay is it!

I am not from Makati. I have, however been practicing law from Makati for the past 25 years. Surely, I have had enough experience with the City to conclude that while not claiming to be a saint, unlike many in this administration, Jejomar Binay is still the best leader to steer this country into the path of genuine and relevant economic growth and democracy.

My admiration for him begins from having known him as my mother’s favorite student in Pasay City High School. While he has lived in Makati for a very long time, he studied high school in Pasay. My mother never ran out of good things to say about the man, He was apparently very poor as a student that my mother and my grandmother, herself a public school teacher, took him under their protective fold not just in school, but even outside of school. My mother would tell me that Jojo was actually her eldest son. An orphan, he obviously brought out my mother’s maternal instinct to the point that Jojo’s many achievement became the proud moments for my mom as well.

But beyond the very parochial reason that Jojo Binay was my mom’s absolutely favorite student in her 55 years or so of teaching, I also admired him particularly during the trying anti-Marcos days. Then a renowned human right lawyer, Jojo was fearless in fighting for the restoration of democracy during one of the darkest moments of our history. His convictions did not go unnoticed. This was why former President Corazon Aquino appointed him Officer in Charge for Makati. This was also why initially, the residents of the country’s financial district gave him a mandate to rule. But the Cory magic could not have lasted long. Remember that like the son PNoy, she was initially everyone’s darling. She left office with one of the lowest acceptance levels of any President since the onslaught of public opinion surveys.

The fact therefore is that Jojo Binay has been in control of Makati, either because he (or his kin) was or his kin mayor of the City, or he did a lot of good to the City. Yes, it had been the financial district even before he became mayor. But it was during his stay in office that the people of Makati actually benefited from the financial growth of the city. This, we hope, is something that he can duplicate nationally for six years, beginning in 2016.

For instance, notice the proliferation of classrooms in the city. Notice how big the city’s college has become. Notice that in primary schools, the city’s children have been fed, a feat which the national government has not replicated. Then, there’s the now-famous yellow card that has enabled the city’ s poor to avail of quality medical care even from private hospitals that cater only to the rich. His developmental model is obviously patterned after Europe: encourage financial development so the rich can be taxed high. Use the tax revenues, in turn, to deliver basic services to the people. And, lest we forget, Makati beat the rest of the nation in according our elders simple but much appreciated privileges—from free movies to the birthday caked that his detractors now want to demonize.

Can I vouch that Jojo Binay did not enrich himself all these years that he has been in control of Makati?

Like everyone else, probably not- if only because I do not have any personal knowledge that he has plundered, malversed and/or misappropriated public funds. Yes, I have heard of some disparaging reports about him. But none of these charges have been proven in Court. Certainly, he could not have evaded the wheels of justice for as long as he has been in control of Makati without the elite from his city ensuring that he would be found guilty of at least for one crime involving graft and corruption. Let’s face it, the elite of Makati from their enclaves in Forbes and Dasma hate the guy, probably because he is dark. Be that as it may, they have not, despite their huge financial resources, been able to prove that Jojo Binay is corrupt.

What do I think about the alleged overpriced parking building in City Hall?

To begin with, all practicing litigators appreciate that building. It used to be dingy court rooms with smelly toilets. Now, the court rooms are world-class. Once, I had foreign observers in a Makati court to observe a trial of a freedom of speech case. The top notch lawyers comprising the trial observation team could only say that they believed that they were in a court room at the heart of Manhattan. And yes, that allegedly overpriced building has given lawyers what they need the most: parking at reasonable rates.

But let the Ombudsman investigate if the building is really overpriced. That’s its constitutional mandate. But for our senators to arrogate unto themselves this constitutional powers in aid of their own elections is clearly an abuse of power.

Will I support Jojo Binay for 2016? Make no mistake: he’s the only one for the job. To begin with, he is a lawyer and unlike PNoy, can defend his initiatives through the wringers of our Court system. He has had a very long experience as a local executive which is the experience that this country needs if we are to improve the plight of the poor. He also has the ideology , which I will describe as European democratic socialist, which judging from what he did in Makati, would mean excellent public schools systems and medical care for our people. With a little luck, and with his experience as housing czar, he can also provide for housing for many which in turn, will also serve as a genuine economic stimulus, unlike the DAP.

Binay’s profession, managerial experience, and the fact that he was once poor and knows what the poor need, make him the guy who should be in Malacanang in 2016. Go Jojo!

First published in http://manilastandardtoday.com/2014/08/28/binay-is-it-/ on August 28, 2014.

Roque: Jail those who paid for Northrail

Reference: Professor H. Harry L. Roque, Jr. 09175398096

Center for International Law (Centerlaw) welcomes the inquiry by Senator Francis “Chiz” Escudero into the highly anomalous Northrail Project during the budget deliberations of the Senate.

Centerlaw filed a Complaint seeking the annulment of the Contract Agreement between the North Luzon Railways Corporation (Northrail) and the China National Machinery and Equipment Corporation (CNMEC) in February 2006. Centerlaw also asked for the annulment of the Buyer Credit Loan Agreement between China Exim Bank and the Government of the Philippines.

CNMEC raised the issue of whether or not Centerlaw could question the validity of the Northrail contract all the way to the Supreme Court stating that the Contract as an Executive Agreement between the Philippine government and CNMEC.

On February 7, 2012 however, the Supreme Court disagreed with CNMEC and stated that the contract between Northrail and CNMEC is not an executive agreement and thus, could be subject of annulment proceedings. The Supreme Court then remanded the case to the trial court for further proceedings. The case is currently pending before Regional Trial Court Branch 145, Makati City.

As of 2013, Northrail, through the Office of the Government Corporate Counsel, has reversed its position on the issue of the validity of the Northrail Contract. The Department of Finance, however, through the Office of the Solicitor General continues to defend the validity of the Loan Agreement. Centerlaw however argues that since the Loan Agreement was entered into solely for the purpose of funding the Northrail Contract, the same is also invalid.

Recently, the trial court denied Centerlaw’s prayer for a Temporary Restraining Order against the Deparment of Finance’s payment of the Loan Agreement. As a result, the full $180 million has been paid to China Exim Bank as of this year.

Centerlaw Chairperson Atty. Harry Roque, who is also a Complainant in this case, welcomes the inquiries that Senator Escudero has made regarding this anomalous transaction. Roque states, “We have been after the annulment of these contracts since February 2006 and we will continue to fight until those responsible are criminally charged and jailed. The fact that the government is paying hundreds of millions of dollars for a project that has never materialized is alarming. We demand to know where this money went and why we are on the hook for it when nothing at all came of this project.”

Rep. Reyes asks SC to disqualify 3 justices from HRET

Reference: Professor H. Harry L. Roque, Jr. 09175398096

Marinduque Representative Regina Ongsiako Reyes asked the Supreme Court today to disqualify three justices – Associate Justices Presbitero Velasco, Lucas Bersamin and Diosdado Peralta – from sitting as members of the House of Representatives Electoral Tribunal (HRET) where she is facing a string of disqualification cases.

In her 23-page petition filed through her counsel, the Roque and Butuyan Law Offices, Reyes questioned the three justices’ continuing membership in the HRET, citing a conflict of interest on their part.

The HRET, which is chaired by Justice Velasco, is hearing three cases questioning her assumption to office as representative for Marinduque, namely (a) Case No. 13-036 (Quo Warranto), entitled Noeme Mayores Tan & Jeasseca L. Mapacpac v. Regina Ongsiako Reyes; Case No. 130037 (Quo Warranto), entitled Eric D. Junio v. Regina Ongsiako Reye; and a Petition-in-Intervention by Victor Vela Sioco.

If the HRET grants any of the petitions, it will benefit Lord Allan Jay Q. Velasco, Justice Velasco’s son, Rep. Reyes’ political rival whom she beat in the May 2013 elections, earning a comfortable 52,209 votes over the latter’s 48,311 votes.

Under Section 17, Article VI of the 1987 Constitution, the Senate and the House of Representatives have an electoral tribunal as the sole judge all contests relating to the election, returns, and qualifications of their respective Members. Each tribunal is composed of nine members, three of whom are justices of the Supreme Court designated by the Chief Justice while the rest are members of the Upper House or the Lower House, as the case may be.

Velasco, being the most senior of the three justices, chairs the HRET but has inhibited himself in the proceedings of the tribunal as well as in the proceedings of the Supreme Court involving his son’s case.

But Reyes said Velasco’s continued stay at the HRET in relation to his son’s case has become untenable.

“There has never occurred an equivalent incident in the entire history of the Supreme Court — or in any other Philippine governmental body for that matter — where a son’s desire to be awarded a Congressional seat would depend on a body headed by his own Justice-Father,” Rep. Reyes said in her 23-page Petition. “ The Supreme Court runs the risk of incurring historical infamy if it ignores this unprecedented scenario and contents itself with a complacent and run-of-the-mill inhibition by the Justice-Father from the case, even if said Justice/Father/HRET-Head still retains administrative control and moral suasion, and enjoys collegial camaraderie in the HRET.”

Reyes questioned the speed with which the HRET took up the Sioco petition-in-intervention, even if the petitioner failed to pay the required docket fees, which should have been a ground for its summary dismissal, not to mention that under the rules of the tribunal, a petition-for-intervention is not allowed.

She noted that the petition was filed on March 12, 2014 and by the next day, the HRET calendared it for discussion during its session set for March 13, 2014. Justice Velasco inhibited himself from the proceedings, with Justice Peralta taking over his duties.

Although Justice Velasco has officially inhibited himself from the cases against her, the HRET – the Members of which are not hampered from continuing their interactions with Justice Velasco in other pending HRET cases and administrative issues– is not thereby shielded from his influence, Rep. Reyes said. “By maintaining Justice Velasco as part of the HRET, that is the image that the Honorable Court projects to the public and the whole world.”

Reyes, citing jurisprudence said as the three only sit in the HRET in a designated capacity, they may be replaced anytime by the appointing authority as their designation to the tribunal is only temporary.

Rep. Reyes was proclaimed the winner by the Marinduque Provincial Board of Canvassers on 18 May 2013 and, at the time of her proclamation, no final judgment has been rendered against her for her disqualification. Likewise, no motion to suspend proclamation was filed to arrest her proclamation by, and the Commission on Elections (Comelec), has not issued an Order for the suspension of her proclamation in accordance with Section 6 of Republic Act No. 6646. To date, her proclamation has not been lawfully annulled by the only constitutional body – the House of Representatives Electoral Tribunal – vested with jurisdiction over election contests, returns and qualifications of Member of the House of Representatives, including pre-proclamation controversies and annulment of proclamation.

She assumed office on 30 June 2013 and has been discharging the functions of her office since then.

Earlier, the HRET dismissed an election protest brought by the younger Velasco against Reyes

Rep. Reyes said both Justice Velasco and Justice Bersamin must admit that coming from political families, their job as part of the HRET is now hampered by questions about their impartiality to a political contest. Justice Velasco’s wife is a representative of a party-list group while his son ran against Rep. Reyes. Justice

Bersamin himself also comes from a family of Abra politicians, Rep. Reyes added, noting that he had likewise prejudged her case by voting with the majority in the petition filed by Velasco’s son before the Supreme Court which ruled in his favor. The controversial ruling of the Supreme Court in the said case has not been recognized by the House of Representatives.

“Like Caesar’s wife, a judge must not only be pure but above suspicion,” said Rep. Reyes. “A judge’s private as well as official conduct must at all times be free from all appearances of impropriety, and be beyond reproach.”

Moreover, in the case of Justice Velasco, even if he has inhibited himself in the case against Rep. Reyes, he remains the boss, head, and superior of everyone in the HRET, retains administrative control over all the operations of the Tribunal, and enjoys unavoidable camaraderie with the judicial and congressional members of the Tribunal.

“That is the only conclusion that can be made considering that, as Chairperson of the HRET, there is no way that Justice Velasco can completely detach himself from the cases involving his own son as the opponent of the Petitioner in the congressional elections in Marinduque, Rep. Reyes said.

As for Justice Peralta, Rep. Reyes said there are indications that he is equally guilty of failing to appear impartial, including the fact that he chaired the proceeding which allowed the Sioco petition-in-intervention to continue, despite its fatal flaws.

She asked the High Court to transfer Justice Velasco to the Senate Electoral Tribunal and to designate Justice Antonio T. Carpio in his stead. She also asked that Justices Bersamin and Peralta be substituted by other justices who do not suffer from the same entanglements.

Click here for a copy of the Petition For Transfer, Disqualification and/or Substitution of Justices Velasco, Jr., Peralta and Bersamin from the HRET

Je Suis Charlie!

This past week saw two very serious threats to freedom of expression.

The first was the worst terrorist attack in Paris, France in 50 years that left 10 journalists dead. All ten were then attending an editorial meeting of the publication Charlie Hebdo, a tabloid popular renown for its satire. Amongst the subject of its satirical commentary was the Islamic faith.

Some temper their condemnation of the attack in Paris on the basis that after all, the murdered journalists should not have worked for a publication that blasphemed the Islamic faith. This is gross error. Freedom of expression precisely exists to protect unpopular speech. Expression that extolls needs no protection. It is precisely thoughts that might offend some that deserve protection because these kinds of comments still form part of the free marketplace of ideas from which the people discern the truth and form their opinions.

The second was the decision of the Court of Appeals dismissing the appeal of Carlos Celdran from a conviction for the felony of offending religious feelings. Celdran’s conviction was for displaying the placard “DAMASO” in Manila Cathedral during a mass. He allegedly also said that the church should stay out of politics at the height of the debate on the RH law.

Actually, Celdran’s conviction, save for the fact that he is alive, is equally infirmed as the Paris attack. The only difference is that the infringement on unpopular speech has been in Celdran’s case, legitimized by the Courts. But make no mistake about it: in failing to declare that the crime of offending religious feelings is contrary to freedom of expression, the Court has sustained the validity of an archaic law that makes it a crime to criticize the dominant faith in the Philippines. This is no different from the intent of those who murdered 10 in Paris: to suppress information which is deemed offensive.

The marked difference is how the French and we, Filipinos, deal with the threats to freedom of expression. True, there is the fact that the death of 10 journalists should never be countenanced and should be condemned as a brutal affront on a cherished right. This was why millions expressed their condemnation in a giant rally in Paris and on the net worldwide. But here in the Philippines, even when 32 journalists were killed in Maguindanao in the single deadliest attack against journalists worldwide, there was some condemnation, but there was no rally of the size and scope that we saw on CNN a couple of days ago. This is also probably why Celdran’s conviction was barely noticed especially since the entire nation is stricken with pope fever. Why bother, after all, with one who blasphemed the majority faith at a time when the holy Pope is about to visit the country?

How I wish the Filipinos could be more like the French in this regard. True, it was France that gave us modern democracy through the mottos of liberty, freedom and equality. But we Filipinos were also the first to utter the same motto when we declared ourselves the first Republic in Asia.

In other words, we should be more conscious of the role that freedom of expression plays in the promotion of freedom, liberty and equality . Without freedom of expression, there can be no exchange of ideas. Without exchange of ideas, there can be no truth. Without the truth, there can be no opinion. Without individual opinion, there could be no pubic opinion. Without public opinion, there cannot be accountability. Without accountability, there will be no democracy.

Yes, the papal visit is a reason to celebrate. But just as this Pope stands for justice and democracy, the Filipino people should emulate him and be more expressive in condemning threats to democracy and freedom.

Je Suis Charlie!

Welcome to the Philippines, Holy Father!

10 Highlights in Human Rights for 2014

Happy New Year, Philippines!

For a second time, here are 10 highlights in the field of human rights in the Philippines for the year that just passed:

1. In February, the Philippine Supreme Court rendered a split decision on the constitutionality of the Cybercrimes Prevention Act. Critics of the law argued that its provisions on libel and cybersex were overboard and could infringe on freedom of expression. The Supreme Court disagreed and ruled that defamation and obscenity were traditional limitations on freedom of speech. Despite this set-back, libertarians rejoiced because the court declared as unconstitutional the provisions that could otherwise have subjected libel to double jeopardy and real time gathering of information which the court said should be pursuant to a judicial warrant.

2. In April, the Supreme Court upheld by and large the Reproductive Heath Law. This law promotes the right to health of both women and their children, as well as implements the right to privacy and responsible parenthood. A big win for Human Rights!

3. From May 12 to November 10, the Human Rights Claims Board, a body created by law to pay reparation to victims of human rights abuses during the Marcos dictatorship, accepted claims from victims of the dictatorship. While not all victims were able to submit the claim, the fact that the Board was created by law and accepted some claims for reparation is significant as a way of implementing the state’s obligation to make reparations to victims of human rights violations.

4. In August, the Supreme Court dismissed with finality the prayer of Filipino women raped by Japanese soldiers during World War II to compel the Philippine government to espouse their claim for reparations in international tribunals. Ruling that the President as chief architect of foreign policy cannot be compelled to espouse the comfort women’s claims, the Court made legal history and made the Philippines the only state in the world that does not recognize the duty of war criminals to make reparations to their victims. The main decision could also be read to mean that the Philippines is the only country on earth that does not consider rape as criminal in times of armed conflicts. This decision is perhaps the biggest blow to human rights for the year.

5. The Supreme Court’s decision to declare as unconstitutional both the PDAF and the DAP were major victories on the fight to promote Economic, Social and Cultural rights. This is because by declaring pork barrel in all forms as unconstitutional, the Court in effect ruled that public coffers should be spent to benefit the people economically and not to enrich our politicians. A truly great victory for human rights!

6. The murder of Jennifer Laude said to have been perpetrated by Joseph Scott Pemberton not only highlighted yet another violation of the right to life. It also highlighted the country’s fight for genuine independence pursuant to the internationally recognized right to self-determination. For the first time, the internet generation learned why the presence of foreign troops offends our national sovereignty. This is because when GIs commit common crimes, they’re given special treatment since they will remain the custody of their fellow Americans in an air-conditioned jail and not in a local jail which has been described by the UN Human Rights Committee in one of its View as being “torturous”.

7. Deputy presidential bad mouth Abi Valte called attention again to her gross ignorance of human rights law when she reiterated, ironically, by way of commemorating the 5th year of the Maguindanao massacre, that the P Noy administration will not pay compensation to the victims of the massacre since the current administration had no hand on the massacre. Will someone please teach this woman the basics of state responsibility or better yet, tell her to shut up on matters she’s clueless about!

8. In any case, the fact that the murder cases for the Maguindanao massacre are proceeding at a snails pace is proof that the Philippines is not just in breach of the duty to pay compensation to victims of human rights violations; it is also proof that it is in breach of its duty to the victims to accord them also an adequate domestic remedy.

9. The murders of journalists Rubylita Garcia, Nilo Baculo, Samuel Oliverio, and Richard Nadjid in 2014 are proof that the Philippines remains amongst the most murderous countries fro journalists. Already the National Union of Journalists of the Philippines has recorded at least 217 media killings since 1986. The killing of journalists is not just a violation of the right to life. It also infringes on freedom of the press, as murder is the most pernicious and permanent form of censorship.

10. In a UN conference on the safety of journalists sponsored by the European Council and UNESCO, last November in Strasburg, Germany, Justice Secretary Leila de Lima admitted that the country’s conviction rate for extralegal killings remains at a measly 1%. This is why impunity persists in the country.

Keep safe and do not be a victim this 2015!

(Disclosure: the author acted as counsel for either the petitioners or the victims in almost all of the cases cited in this column)