The Cybercrime Law: What’s next?


I just read media reports that the Supreme Court had just denied all pending motions for reconsideration on its earlier ruling declaring the Cybercrime Prevention Act’s provision on libel as being constitutional.

As counsel for journalists Alexander Adonis, Ellen Tordesillas et al., I am of course deeply disappointed with this latest turn of events. In my opinion, the Supreme Court just lost a great opportunity to rectify the inconsistencies in our jurisprudence on freedom of expression. Simply put, while we have adopted the normative value of freedom of expression as the means to ascertain the truth and as the means to form informed public opinion which is indispensable in a democracy, the fact that the Court continues to sanction the imposition of imprisonment for libel contradicts our so-called constitutional commitment to freedom of expression.

Moreover, I believe that this latest decision is a blatant disregard of the view expressed by the UN Human Rights Committee declaring criminal libel in the Philippines as being contrary to freedom of expression. It is thus a breach of “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The view expressed by the UN Human Rights Committee in the case of Adonis vs. Philippines that criminal libel in the Philippines violates freedom of expression is as clear as the light of day. Whether or not the Committee actually expressed the view that the Philippines should repeal its criminal libel law is not the issue. What is clear is that with the declaration, we are in breach of our international obligation to protect and promote the right to freedom of expression, the Supreme Court should have ensured: one, that we cease and desist from the breach by declaring criminal libel as being contrary to international law; and two, it should have provided compensation to all those wrongfully sentenced for criminal libel. Certainly, to uphold a law that provides for an even more draconian libel law since it provides for a longer penalty of imprisonment doing away with the possibility of parole is a continuing breach of our international obligation.

So, what will we do now? This latest Supreme Court decision is tantamount to exhaustion of domestic remedies. When we filed our challenge versus cyber libel with Alexander Adonis as petitioner, we were aiming to implement the UN Human Rights Committee view through jurisprudence. Since the highest court of the land has instead put its stamp of approval on the draconian law, the decision is evidence that we have again exhausted all domestic remedies. This will qualify Adonis et al to return to the UN to complaint that instead of implementing its earlier view, the Republic of the Philippines has openly defied it. We will pray for a second declaration that not only does libel under the Revised Penal Code violate Art. 19, but additionally, the Cybercrime Prevention Act equally violates freedom of expression.

The difference is while the earlier view issued by the UN was against a decision of a Regional Trial Court Judge, this time around, we will ask the Committee to declare a collegial decision of our highest judicial organ as violating international law.

If we succeed — and chances are that we will — the Court will be put in an embarrassing situation where proven experts in the field of human rights will find a decision of our 15-man court as being erroneous and violates human rights law. This would be downright embarrassing for the Court. When this happens,  we can say that when we filed our motion for reconsideration, we gave our Courts the opportunity to avoid the spectacle of an experts view that its decision is wrong.  In the end,  the Court will only have   itself to blame for the ignominy of a decision, which could be condemned by the international human rights community as a violation of human rights law.

In Adonis vs. Republic of the Philippines, the UN Human Rights Committee declared that criminal libel under the Revised Penal law is contrary to Freedom of Expression under Article 19 of the ICCPR because it is not necessary, the existing alterative being civil libel. The Committee also ruled that imprisonment is not proportionate to the means sought to be enforced by the law, which is the protection of the right to privacy of private individuals.

The Philippines has also not complied with the view that journalist Alexander Adonis should be paid compensation for the one-year imprisonment he served for his conviction for libel.

While the views of the Committee are non-binding, no less than the International Court of Justice has said that since these views are the opinions of the most authoritative experts in the field of human rights tasked with monitoring states compliance with their obligations under the International Covenant on Civil and Political Rights, the views should be given much weight.

The Philippines also undertook to comply with the views expressed by the Committee because it ratified the optional Protocol to the ICCPR.

Simply put, the denial of our Motion for Reconsideration now triggers the availability of international remedies against the draconian law. Thank goodness for international law!

CENTERLAW Statement on the Supreme Court’s Decision to Dismiss the Motions for Reconsideration Against the Constitutionality of Cyber Libel


“The Court will only have itself to blame if the International Community condemns its Decision on the Cyber Crime Prevention Law as contrary to Human Rights”

(CENTERLAW Statement on the Supreme Court’s Decision to Dismiss the Motions for Reconsideration Against the Constitutionality of Cyber Libel)

Ref: Prof H. Harry L. Roque, Jr.

The Center for International Law (CenterLaw), counsel for newsmen Alexander Adonis, Ellen Tordesillas et al. expresses its disappointment over the Supreme Court’s decision to dismiss all pending motions for reconsideration of its earlier decision declaring libel in cyberspace as being constitutional.

CenterLaw believes that this latest decision is an affront anew on freedom of expression and is a blatant disregard of the view expressed by the UN Human Rights Committee (UNHRC) declaring criminal libel in the Philippines as being incompatible with freedom of expression.

As a result, more journalists face the possibility of spending time in jail for exercising their freedom of expression. Again, this is a violation of Art. 19 of the International Covenant on Civil and Political Rights (ICCPR) and should be condemned vigorously.

In Adonis vs. Republic of the Philippines, the UN Human Rights Committee declared that criminal libel under the Revised Penal law is contrary to Freedom of Expression under Article 19 of the ICCPR because it is not necessary, the alterative being civil libel; and that imprisonment is not proportionate to the means sought to be enforced by the law, which is the protection of the right to privacy of private individuals.

Be that as it may, as all domestic remedies have been exhausted with the denial of the motions for reconsideration, CenterLaw will again submit a communication with the UN Human Rights Committee to complain that instead of taking steps to avoid incarceration of journalists for criminal libel and prevent similar violations occurring in the future, including the review of relevant libel legislation, the Philippines instead breached its state obligation with the recent decision upholding the constitutionality of libel in the cyberspace.

“We gave our Courts the opportunity to avoid the spectacle of another view deploring the Court’s misapprehension of human rights law. It will only have   itself to blame if its latest decision is condemned by the international human rights community as a violation of human rights law. If this happens, the Philippines will be subjected to the embarrassment of being in breach of a treaty obligation”, declared UP Law Professor Harry Roque, Chair of the CenterLaw.

Furthermore, the Philippines has also not complied with the view that journalist Alexander Adonis should be paid compensation for the one-year imprisonment he served for his conviction for libel.

 

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The tale of two envoys


 

Two Ambassadors figured in the news recently. The first is the Ambassador of the Czech Republic to the country. Josef Rychtar, who claims that MRT General Manager Vitangcol and others attempted to extract a 30 Million dollar bribe from a Czech company for the supply of additional rolling cars for the MRT. This supposed bribery became even more controversial because earlier reports claimed that Presidential sister Balsy Cruz was part of the company that attempted to extort the bribe. The Ambassador has since clarified that Balsy was not involved although he stood firm about Vitangcol and Company.

The other is Italian Ambassador to Turkmenistan Daniele Bosio. He was nabbed by police authorities in Laguna allegedly for child trafficking, In both these cases, issues of immunity have arisen. In the case of Rychtar, the issue is if he can be summoned to appear before a Committee of Congress investigating the bribery try; while in the case of Bosio, it is whether he can be investigated, prosecuted and convicting for child trafficking.

A diplomat’s sovereign immunity from local jurisdiction has been amongst the earliest cornerstone of diplomacy. While this immunity is now codified in the Vienna Convention of Diplomatic Relations, which the Philippines has ratified, it has also been recognized under customary international law. This means that this immunity is not just a matter of treaty obligation. It is recognized and complied even by countries that have not ratified the Convention. This is because without this immunity, Ambassadors, who serve as alter-ego’s of sovereigns and heads of states, will not be able to perform their functions in the territory of receiving states. More often than not, Ambassadors function to protect the interest of their states in the receiving state and even to gather information which otherwise would be considered as espionage.

This immunity exists immediately upon a diplomat’s presentation of his credentials in his station and subsists for a reasonable time upon expiration of his tour of duty. This immunity is accorded him while he is posted in his station and subsists for all of his official acts even after he leaves his post.

Under the current state of international law, the Czech Ambassador’s immunity includes the immunity to heed a subpoena that may be issued for him to appear before any committee hearing of Congress. And when he does appear, which is a waiver of his immunity, it will include additionally, immunity for all matters that he states in the official proceedings, including prosecution for false testimony, unless he again waives his sovereign immunity. The latter though, being contrary to human experience, would be highly unlikely.

Ambassador Bosio himself would be entitled to full immunity from local jurisdiction had he been apprehended in his station in Turkmenistan, or when he was officially en route to his official post. But because he was apprehended in the company of very young boys while vacationing in the Philippines, his predicament has figured repeatedly in many bar exam questions in political law: he is not entitled and should not be accorded immunity from our power to investigate, prosecute him and punish him for child trafficking.

The rationale for Bosio’s predicament is immunity is not indispensible to a vacationing envoy since he is not in the discharge of his official functions.

But beyond the issue of immunity for both envoys, there is also the issue of how our officials have been responding to the issues created by these envoys.

In the case of Rychtar, Presidential bad mouth Lacierda has shown his usual foul character by bashing the credibility of the Ambassador saying that the enjoy was merely” sour grapping since the Czechs lost the bid” for additional rolling cars to a Chinese company. Huh? As my students would say: WTF!

All Ambassadors because of their immunities and function are normally the best civil servants of the sending state. Their characters hence are beyond question, Furthermore, the fact that the Philippines as the receiving state had consented to the appointment of Rychter through an agreement (not wrong spelling) means that we have recognized that he is fit for the post which commands utmost respect in all civilized societies. By bashing the character of the Czech envoy, Lacierda shows anew his ignorance of international law and highlights what many foreign investors have been complaining about this country: rampant systemic corruption conducted with impunity.

Any sane spokesperson would not question the character of an Ambassador. instead, where there is an allegation of bribery, a responsible competent authority would promise a transparent and earnest investigation of the matter. This is how a state inspires confidence amongst foreign investors. Lacierda’s ways is why we might be hailed to court for the third time by a foreign investor. The first two instances, ironically, also involved allegations of bribery: the T3 controversy with Fraport and the Belgian dredging contract in Laguna Lake.

Anent Bosio, while I commend our authorities for upholding our sovereignty when they arrested the Italian envoy for child trafficking, I’m afraid it’s too early to tell if they will continue to do so. Chances are, in the same manner that the murderers behind the Ampatuan massacre, and the suspects behind the killings of Gerry Ortega and the many murdered journalists continue to roam free, my bet is that his Excellency Mr. Bosio may soon be allowed to roam free again. Hopefully though, he would no longer be in pursuit of Filipino boys.

 

Centerlaw re: SC decision on RH Law


The Supreme Court of the Philippines today upheld the constitutionality of Republic Act No. 10354, or the Reproductive Health (RH) Law.

Center for International Law (Centerlaw), represented Senator Pia Cayetano and former Secretaries of Health Esperanza Cabral and Jaime Galvez-Tan who filed Petitions in Intervention with respect to the petitions brought before the Supreme Court asking for  the law’s nullification. Centerlaw also represented former Health Secretary Alberto Romualdez, Jr. who passed away in October 2013.

The multiple petitions asking for the nullification of the law stemmed mostly from groups allied with the Catholic Church as well as the Catholic Bishops Conference of the Philippines.

The Supreme Court, which heard arguments on the petitions for and against the RH Law until August last year, struck down eight provisions mostly focusing on those that penalize RH providers who refuse to provide RH procedures or who refuse to refer a patient to another provider due to religion. The core provisions of the law, however, were upheld by the Court.

Centerlaw Chairperson Harry Roque says, “This is a big victory for equality and the right of the Filipino people to health. To have the law declared unconstitutional based on the objections of the Catholic Church would have been a violation of the non-establishment clause in the Philippine Constitution. Despite whatever religious protestations there may be from different quarters, our government ought to observe neutrality with respect to all religions.”

Ethel Avisado, Bertha Fellow with Centerlaw adds, “The RH law has been a dream for Filipino women. It means access to contraception and health care for mothers who continue to get pregnant and have no idea how feed the children they already have. It means lesser preventable deaths due to childbirth.”

Bertha Fellow Geepee Gonzales adds, “This is great news for our country. While we are disappointed that some provisions were struck down, majority of the law stands. This means that the Court recognizes the right of every Filipino to health. It is also a step towards our nation’s continued development.”

Andal “Unsay” Ampatuan vs Harry Roque


The Quezon City regional trial court has dismissed an indirect contempt charge against human rights lawyer Harry L. Roque, Jr.  filed in 2011 by a principal accused in the Maguindanao massacre case – Andal “Datu Unsay” Ampatuan Jr. – over a History Channel interview the lawyer gave a year before on the celebrated case.

Branch 220 presiding judge Jose G. Paneda, who tried the case, said Datu Unsay failed to show in court that the lawyer’s cable television interview aired on September 26, 2010 on what is now known as the worst attack on press freedom in known history gave rise to a “clear and present danger” to the multiple murder trial.

In so ruling, the judge upheld an established precedent in Philippine jurisprudence that “the advocacy of ideas cannot constitutionally be abridged unless there is clear and present danger that such advocacy will harm the administration of justice.”

The judge said thus: “Under the clear and present danger test, petitioner failed to prove that there exists a substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt.”

“This is a big victory for free expression in  relation to a celebrated case where the very right to free expression of 32 journalists and media workers who perished in the massacre were forever denied them,” said  Center for International Law (Centerlaw) Executive Director Romel Regalado Bagares, who headed a team of lawyers who defended Roque in court. Centerlaw is a non-profit organization dedicated to the promotion and protection of free expression in the Philippines and Asia.

Datu Unsay, along with other members of his political clan, is alleged to have masterminded with key members of his political clan the murder of 58 persons, including 32 journalists and media workers, on November 23, 2009 in a town in Maguindanao bearing his clan’s name.

He had charged that Roque violated the sub judice rule in cases being heard in court when he told History Channel that key members of the Ampatuan clan were responsible for the massacre and used public funds to perpetuate themselves in power. Under the sub judice rule, litigants in a case are prohibited from discussing in public the merits of the case.

Bagares said the court’s decision is an important contribution to the advancement of free expression in the country.

At the trial, Datu Unsay’s only witness was a technician at his lawyer’s office –Fortun & Narvasa –who recorded the History Channel episode in question.  The technician admitted on cross-examination conducted by Centerlaw lawyer Ethel Avisado that Roque did not specifically name anyone in the Ampatuan clan as a massacre suspect. He also admitted that the copy of the video of the History Channel interview he presented in court was not authenticated by the cable television channel.

Judge Paneda said Datu Unsay had the burden to show that Roque’s comments “must really appear that such does impede, interfere with and embarrass the administration of justice.” In this case, all that the petitioner could show was an “abstract accusation” that only resulted in “barren legal questions”.

Under the indirect contempt charge against Roque – a criminal case – a conviction would have meant a fine or a jail term, or both.

“Lawyers occupy an integral role in the administration of justice. Such position justifies the rules and regulations imposed on their conduct because membership in the Bar is a privilege burdened with conditions,” said Judge Paneda in his  12-page decision dated March 11, 2014 but released only yesterday. However, freedom of expression is also secured to them; in this jurisdiction they, like all the others, are given the right to comment on the administration of justice provided their criticisms do not border on disrespect to the authority of the court.”

Roque is also facing two similar indirect contempt charges filed with the Quezon City Regional Trial Court  by two other accused in the Ampatuan massacre, the clan patriarch Datu Andal Ampatuan Sr. and a certain Datukan Malang Salibo.

 

Click here for a copy of the decision_Unsay vs Roque

 

On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

Even if China were to remove the Sierra Madre from Ayungin shoal and build yet another artificial island there, it will never acquire title over the area. The reason: International Law has long outlawed the acquisition of territory through conquest.

China also better rethink whether it should tow-awau a commissioned naval vessel. Derelicit as it may be, it is subject to full sovereign immunity and any attempt to tow it away from Ayungin may finally trigger the applicability of the US-Phil Mutual Defence Treaty. Thus far the US has said that the Treaty may not be triggered by fighting in the West Philippine Sea becauae it does not recognize Philippine title to the area. But an attack against a Philippine comissioned naval vessel may be sufficient for the purpose. The result: the West Philippine Sea, unless China backs off, may trigger the biggest armed conflict in the region since the Vietnam and Indo-China conflict.

What happens now to JPE et al?


Now that the Ombudsman has found probable cause against three senators, Janet Napoles and Dennis Cunanan for plunder and violations of the anti-graft law, what happens next? Will they immediately be put behind bars and tried in the same manner that former President Erap Estrada was?

Not quite.

All indicted accused have the statutory right to move for reconsideration on the finding of probable cause. There is probable cause when on the basis of the evidence, the Prosecutor or the Ombudsman concludes that there is likelihood that a crime was committed and that the respondents are probably liable for these crimes. It’s a very low standard because ultimately, the determination of guilt beyond reasonable doubt is a judicial function. Nonetheless, when the indictment is for a capital offense where bail is not a matter of right when the evidence of the accused is strong, a finding of probable cause is almost always a guarantee of the temporary deprivation of the right to liberty.

So, because of their right to move for reconsideration, no information is immediately forthcoming. Consequently, there will also be no warrant of arrest that will be issued soon.

I was correct in my assessment that the finding itself of probable cause will be marred with delay. The Ombudsman resolution came eight months after newspaper reported the details of the scam. This is still relatively quick given that the Ombudsman, unlike the regular Prosecutors, do not comply with the requirement that they conclude their preliminary investigations on or before 90 days from submission of the case. Clearly, it was the public indignation of the PDAF scam that compelled the Ombudsman to act more quickly than usual.

Outside of the motion for reconsideration, the accused may also proceed to the Court of Appeals to challenge the determination of probable cause. Although this is no longer a statutory right, it is nonetheless a constitutional right since the 1987 Constitution provides that judicial power includes the power to annul acts of government which are done in utter grave abuse of discretion amounting to lack of or in excess of jurisdiction. There is grave abuse of discretion where there is a violation of the Constitution or any existing law. Already, Senator Bong Revilla has a pending petition describing the Ombudsman’s refusal to act on his complaints against Luy et al as acts indicating grave abuse of discretion The Supreme Court has already scheduled his petition for oral arguments.

It is only after the resolution of the motion for reconsideration and if the higher courts do not restrain the Ombudsman that the information is filed with the Sandiganbayan. Unless the information is filed, the special anti-graft court cannot issue warrants of arrest.

Is it for certain that the accused will be apprehended and detained?

Yes, insofar as their actual arrest is the manner by which the Court can acquire jurisdiction over their persons. Fortunately for the respondents, they can now invoke the new rules of the Supreme Court on the speedy grant of bail to secure provisional release even for capital offenses. Under A.M. No. 12-11-2- or the SC “GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL”, the respondents, when they are charged in court can file a petition for bail. The procedure now is on the basis of affidavits or direct testimonies, the prosecutor has the burden to prove that the evidence of guilt is strong. Thereafter the Judge, including the Sandiganbayan, only has 48 hours to summarize the evidence presented and determine whether or not the evidence of guilt is strong. If so, the accused will be denied bail. Otherwise, he will be allowed to post bail to secure his provisional liberty.

This new guidelines is long delayed. The predisposition of Courts is to allow the prosecution to prove that the evidence of guilt is strong in a manner that would reproduce the evidence presented for bail as evidence on the merits. In this manner, the accused is for all intents and purposes, denied the right to bail because the determination of guilt is made part and parcel of the presentation of the evidence on the merits.

Senator Juan Ponce Enrile as an octogenarian will probably be given special consideration given his age. So will the two incumbent senators. While pickpockets and others committing petty crimes have to endure torturous conditions in our local jails, the three senators, because of precedents—will inevitably detained in special detention facilities. Already, Janet Lim Napoles is on hospital arrest. I foresee that Enrile and the two other senators may also seek hospital or house arrest. Note that being an octogenarian will not exempt Enrile from criminal prosecution or from being arrested. This is how the Sandiganbayan can acquire jurisdiction over his person. But when he is convicted, the Sandiganbayan has the option of recommending his release on humanitarian grounds.

What happens to Ruby Tuason and Cunanan? To begin with, I’m surprised that they were even indicted. Under the Witness Protection Law, those admitted into the program should not be included in the charge sheet. Perhaps the Ombudsman will later move that they be dropped. Otherwise, it could already be an indication that the Ombudsman does not consider their testimonies to be indispensable in proving the averments in the Information. Personally, I hope this is in fact the case. Let Tuason be the queen of socialites in jail.

 

(View from Malcolm, Manila Standard Today, 4 April 2014)

 

 

China’s retaliation?


Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)

 

Forum on “Philippine Legal Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges


The UP Institute of International Legal Studies (IILS), in cooperation with the School of Economics, is inviting everyone to a forum entitled “Philippine Legal  Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges” on Tuesday, March 25, 2014,  at 8:00 a.m. – 5:00 p.m. at the Malcolm Theater, University of the Philippines College of Law, Diliman, Quezon City.

Our obsession with Bar topnotchers


UnknownUnknown-1The UP College of Law topped anew the 2014 Bar examinations with my student, Nielsen Pangan, placing first. His schoolmate, Mark Oyales, bagged the second place. Three other students from UP Law landed in the top 10: Eden Mopia was fourth, Michael Tiu was eighth and Cyril Arnesto was tenth.

This was the first time for UP Law to top the Bar Examinations since Joanne de Venecia placed first in 2005. In 2011, no one from UP placed in the top 10 of the Bar.

I am, of course, together with the entire UP community, ecstatic about the results. This is not just because I am a product and a professor of UP Law. It is more because every UP graduate’s success is a toast to the poor and the middle class in this country. The UP dream is the stuff that is written about in telenovelas: poor children dreaming of climbing the economic ladder through a world-class education.

That’s why more people celebrate when UP students top not just the Bar -but the other Board exams as well. While private school graduates should also be honored when they reach similar success, the joy of topping the exams for a rich kid is simply not the same when poor or middle class students achieve the same fete. This explains why when the likes of Nielsen, the son of a Meralco engineer and a housewife; and Mark, son of a security employee and a bakery worker from Tacloban, top the bar, the entire nation celebrates with them. This is because their success is the success of every middle-class and poor family in this country. Rich people, when they achieve the same feat, celebrate only amongst themselves in their gated enclaves. The poor and the middle class, on the other hand, live their dreams through students like Pangan and Oyales. This is the UP fairy tale.

Be that as it may, this country really ought to reconsider the prestige and importance that it bestows on the Bar top notchers. Having been a Bar examiner in 2010, I have probably earned the right to say that given the very limited time given to Bar examiners to check almost 6,000 booklets of essay questions, the Bar exams could not be a reliable measure of one’s preparedness to be a member of the Bar. Moreover, one’s success as a lawyer is not measured by how well one does in the Bar examinations. Here, it’s the successful barristers’ future conduct as lawyers that will determine his or her greatness as a lawyer. Case in point is that of the former dictator Ferdinand Marcos, who despite having been a bar top notcher, earned notoriety for infringing on rights protected by the Bill of Rights. Here you have an instance when a topnotcher earned notoriety because of what he did with his title later on in his life. If the bar exam results were indeed the ultimate measure of one’s preparedness to be a lawyer, then the remains of Marcos should today be at the Libingan ng mga Bayani and not in an air-conditioned crypt awaiting a funeral.

But an even more fundamental consideration is: what kind of lawyers are we producing with the obsession we have with topping the Bar examinations? Responding to the debacle of 2011 when no student from UP landed in the top 10 of the Bar, UP Law has since required its students to enroll in bar review subjects as electives instead of those that will enrich them as lawyers in an increasingly internationalized profession. For instance, I no longer teach electives on International Humanitarian Law and UNCLOS that have enabled at least two of our graduates, Raymond Sandoval and Suzette Suarez, to land appointments in the International Criminal Court and the International Tribunal on the Law of the Sea, respectively. Likewise, we have done away with the elective on International Trade Law that enabled the likes of Dr. Diane Desierto and Ana Ramos to land careers as a tenured faculty teaching trade law at the University of Hawaii and the World Trade Organization, respectively.  Likewise, we have done away with the elective on project financing which has proven to be the country’s monopoly in terms of cross border legal practice.

Worse, this giant step backward—just to satisfy the country’s obsession with Bar top notchers—is still happening when we only have a year before the borderless Asean Economic Community comes into being in 2015. This will usher in not only free cross border trade in goods, but also in services, including the practice of professions.

There is hence an apparent contradiction with UP Law’s decision to revert to being a bar review institute with the decision of the University itself, for instance, to change its academic calendar to begin in August, to be in synch with the rest of Asean. Simply put, we are retreating to the Jurassic past when we seek to produce Bar topnotchers instead of preparing grand lawyers for an increasingly interdependent world.

But what the heck: the public wants the topnotchers and for now, UP played well to the gallery. I hope though that for the country’s sake, this obsession will soon be a thing of the past. For otherwise, while we continue to heap praises on the topnotchers of an archaic exam, the country, meanwhile, may be left behind in the race for modernity.

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Request for coverage : Centerlaw, on behalf of Alexander Adonis, to file Motion for Partial Reconsideration re: Cybercrime Law at SC tomorrow


Radio broadcaster Alexander Adonis, represented by Centerlaw, will lead petitioners in filing a Motion for Partial Reconsideration at the Supreme Court, tomorrow, March 13, 2014 at 1:00 pm, re: Cybercrime Law of 2012.

Reference Prof. Harry L. Roque 09175398096

 

 

Why the invasion of Ukraine concerns us


Russia’s invasion of Ukraine highlights how some countries can so easily breach the United Nations Charter provision on the prohibition on the use of force. Imperfect as the Charter may be, it has still achieved a tenuous peace since World War II by prohibiting resort to force except in two very well defined exceptions: self-defense, and when so authorized by the UN Security Council. Contemporaneous with the UN Charter is the international community’s resolve to penalize individuals who may start wars for the international crime of aggression. In fact, the first prosecution for this crime was against the Nazis for their act of waging war during World War II. Former Defense Secretary Donald Rumsfeld and even President George Bush II continue to be accused of this crime of aggression in Germany and Belgium.

Note though that when strong countries violate the prohibition against the use of force, they will argue that despite their action that they have complied with the normative rule against the waging of wars. For instance, the United States, when it invaded Iraq a second time around—this was after Iraq had already been driven out of Kuwait—argued that despite the absence of a fresh mandate from the Security Council, its acts were nonetheless covered by the earlier Security Council Resolution authorizing the ejection of Iraq from Kuwait. In Ukraine, Russian President Vladimir Putin argues that his action was to protect the millions of Russians living in Ukraine after an incredibly corrupt pro-Russian Ukrainian President was deposed in a bloodless people power reminiscent of ours in 1986.   It was therefore the exercise of jurisdiction to defend millions of its ethnic Russians living in Ukraine.

But superpower rhetoric, more often than not, is farthest from the truth. In both Iraq and Ukraine, it was economic interest that propelled superpowers to breach international law. In Iraq, it was to enable Bush’s campaign contributors form Texas, notably oil and gas companies, to take over the lucrative oil and gas fields of Iraq. In Ukraine, it is similarly, to enable Russia to control recent oil and gas deposits discovered found in the area, specifically in Romania. In fact, Ukraine, after gas was discovered in Romania, was about to sign an exploration agreement with oil giant Exxon. I do not think this is forthcoming anymore. Moreover, like the Americans who want to use out military installations through the Increased Rotational Agreement, the entire Russian naval fleet is stationed in Ukraine, particularly in Crimea, pursuant to what many believe is a one-sided treaty.

Of course President Obama has come under fire from his Republican critics for allowing Russia to act with impunity. What these critics do not tell the public is that the US cannot question the acts of Russia because it has unclean hands. By invading and still occupying Iraq today, it is equally guilty of violating the prohibition on the use of force.  It therefore has no moral and legal standing to question Russia’s acts because of the “unclean hands doctrine”—a state cannot come to court with unclean hands.

So should Filipinos stand idly by and accept the realities of power politics i.e., that might is right?

Far from it. Imperfect as the world may be, weak countries like the Philippines can only rely on the rule of law to achieve a semblance of equality with its mighty neighbors.  The Philippines should be at the forefront of protesting any resort to the unlawful use of force because our own powerful neighbor, China, may just follow suit and eject all our troops from the islands that we currently occupy in the disputed Spratly group of islands. They have done this in the past when they took control of Mischief Reef and Panatag. They have been threatening to drive our boys away from the derelict warship that is our   basis of our occupation of Ayungin shoal. They certainly could very well invade Kalayaan and eject all nationals from there. If the US and Russia could invade the mainland’s of Iraq and Ukraine, China could certainly invade remote and uninhabited islands in the West Philippine Sea.

Which leads me back to the normative value of the United Nations Charter. Yes, Chapter VII of the Charter, which is the section on collective security measures, the means envisioned to prevent another “scourge of war”, is far from perfect. But its literal provisions give weak countries such as the Philippines comfort that despite inequity in power politics, international law seeks still to achieve equality before the law.

Let’s condemn both the continuing US occupation of Iraq and Russia’s invasion of Ukraine!

High court on libel: Lost in overbreadth


The recent Supreme Court decision upholding the constitutionality of libel under the Revised Penal Code and under Section 4 C (4) of the cybercrime prevention law but declaring the crimes of aiding and abetting cyberlibel unconstitutional are contradictory rulings, which can only be because of the court’s misappreciation of the doctrine of “overbreadth.”

There is overbreadth where the language of a statute that proscribes speech is so broadly tailored that it could encompass even protected speech.

Its application has been recognized in Philippine jurisprudence in the case of Estrada v. Desierto: “When statutes regulate or proscribe speech and  x x x the transcendent value to all society of constitutionally protected expression  x x x justify allowing attacks on overly broad statutes (Broadrick v. Oklahoma).

In this same case, “a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid.”

Courts in the United States have struck down criminal statutes in at least half of the states in the union because first, only falsities made knowing they were false or in utter disregard of its truth should be actionable. This was the ruling of the court in the seminal case of New York Times v. Sullivan.

We have incorporated Sullivan in our jurisprudence in Borjal v. CA and Guingging v. CA. The rationale for this is that “debate on public issues should be uninhibited, robust and wide-open, and … may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

In Garrison v. Louisiana, the court ruled that a definition of actual malice including ill will and hatred would still inhibit public debate on public issues: “Even where the utterance is false, the  x x Constitution  x x x preclude attaching adverse consequences to any except the knowing or reckless falsehood …. even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”

Under the foregoing rulings, criminal libel was struck down in the United States because as worded, it would encompass at least two types of protected speech:

First, false statements regarding public figures made without knowledge or recklessness outside of fair and true report of any act performed by public officials in the exercise of their functions; and second, true statements regarding public figures not covered by qualified privilege.

 

In Disini Jr. v. The Secretary of Justice, the Supreme Court upheld criminal libel on the basis that in its latest pronouncement on libel involving Cristy Fermin, the court found that “verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants.”

Perhaps, unknown to the court, this was precisely why criminal malice suffers from overbreadth because it defines malice as including ill will and not just knowledge of falsity or in utter disregard thereof.

And yet, despite its ruling that criminal libel is constitutional, it held aiding and abetting libel as unconstitutional because of overbreadth: The terms “aiding or abetting” constitute [a] broad sweep that generates [a] chilling effect on those who express themselves through cyberspace posts, comments and other messages.

Hence, Section 5 of the cybercrime prevention law that punishes aiding or abetting libel on the cyberspace is a nullity.

Apparently, the court applied overbreadth where it is uncertain as to who should be held liable for aiding and abetting criminal libel but not for those who will actually be accused of libel using the wrong definition of malice in fact.

There is no basis for this distinction given that facial challenges on overbreadth are allowed precisely because of our constitutional commitment to freedom of expression as a means of ascertaining the truth and the value of a free marketplace of ideas in a democracy.

To say that only an uncertainty of who may be accused of aiding and abetting cyberlibel will lead to a chilling of rights is absurd. As held in Garrison: “Debate on public issues will be inhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred.”

We have in the Disini case a serious misappreciation of overbreadth, which will now certainly cause a chilling of the exercise of the right to free expression.

(Harry Roque is associate professor at the UP College of Law and is petitioner in Adonis et al., v. The Executive Secretary. He argued the issues of libel and cybersex in the oral arguments of the Disini Jr. v. The Secretary of Justice.)

 

Read more: http://opinion.inquirer.net/72119/high-court-on-libel-lost-in-overbreadth#ixzz2uoBnkkAX 
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Rejoice for Edsa 28?


We commemorated the 28th anniversary of the first People Power Revolution this week. As is customary, we ask the question: are we better off today, 28 years after the dictatorship?

In fairness to everybody, we are definitely better off living in today’s nominal democracy compared to the absolute dictatorship of the past. For one, we have at least a semblance of freedom of expression which was the first liberty infringed upon by the dictatorship.

Of course, despots despise free speech. This is because they fear the truth. Once people know what the truth is, they can form their own opinion. When taken collectively, public opinion can make or unmake governments, even dictatorships. This is exactly what happened to the Marcos dictatorship.

I was fortunate to have been raised in a family of activists. In my grandfather’s farmhouse, noted journalists would gather and whisper at the latest misdeed of the dictatorship. They would talk about Imelda’s avarice, Dovie Beams, Alfie Anido, and other taboos that the dictatorship kept from the public. Their informants were other journalists in the know but could not write the truth. Later in the day, an obscure publication, known as the “mosquito press” would surface. This was the WE forum. My Grandpa’s group would then converge late at night to read with eagerness back and current issues of the outlawed tabloid.

Peaceful assemblies were also prohibited. One of my fondest memories is how as children, we would defy the ban by walking and chanting anti-Marcos slogans in the rice fields behind my grandfather’s subversive farm house. That experience, needless to say, shaped the kind of person that I became today.

The dictatorship of course suppressed freedom of expression because it had closets upon closets full of skeletons. There was the fact that the dictatorship was downright corrupt. There was the fact that Marcos, the despot was megalomaniac and the wife, delusional. There too was the fact that despite systematic violations of human rights, the dictatorship survived because of Uncle Sam’s support in a region which became a battleground for the Cold War. There too was the fact that bereft of a popular mandate, Marcos had to invent himself as some kind of a demi-God with a divine mandate to rule. These were some of the reasons why he was averse to freedom of expression. Simply put, behind the lyrics of the “Bagong Lipunan” propaganda song lies the ugly truth that the dictatorship was in power only for itself.

Twenty-eight years later, we find that many of the ailments that afflicted our society during Martial Law are still prevalent. There’s still the ever-widening gap between the rich and the poor. And while President Aquino has not himself forced our children to sing his counterpart of the “Bagong Lipunan”, he has been peddling an equally pernicious lie that we’re now on the “Daang Matuwid”. Worse, while we have a thriving media industry that will not be cowed by the presidential bad mouths, we have a worse form of censorship that we did not see during martial law: the systematic and pernicious killing of journalists. In fact, the impunity against journalists has earned us the notoriety of being either the most or the second-most murderous country for journalists worldwide.

So are we better off today?

I submit that yes, we are better off today. While our journalists continue to die heroes’ deaths, at least our media has been persistent and untiring in exposing the scams in government that led to the public contempt and indignation for the PDAF, the DAP and the Malampaya scams. While the presidential bad mouths of Edwin Lacierda and Abigail Valte continue to wreak havoc, PNoy at least has taken steps to have a more palatable spokesman in the person of Sonny Coloma. And while scandals continue to hound the administration with the likes of Dinky “when he hold on together” Soliman’s election fund raising dubbed as poverty alleviation, Ging Deles’s bloody peace pact with the MILF, and Butch Abad’s DAP, the reality is PNoy himself remains untainted with corruption. Thus he continues to honor the memory of his parents.

Yes, we’re not in heaven. But because we’ve been to hell during the days of the dictatorship, we would be damned if we allowed it to happen again. This is why PNoy and his cohorts better watch out. For unless they do better in the next two years, he may not have a legacy to speak of and may very well be equally notorious—if not because of kleptocracy, then because of sheer incompetence.

Shape up, PNoy!

Request for Coverage: Activities to Mark the Relaunch of the Philippine Society of International Law


THE MEDIA IS REQUESTED TO COVER THE FOLLOWING EVENTS AT THE UP LAW CENTER TO MARK THE REVIVAL OF THE PHILIPPINE SOCIETY OF INTERNATIONAL LAW:

Round Table on the West Philippine Sea Arbitration
Solicitor -General Francis Jardeleza: Keynote Speaker
Reactors:
Dean Merlin Magallona
Dean Raul Pangalangan
Prof. H., Harry L. Roque
February 27, 1PM at the 2nd floor conference room, UP Law Center, Bocobo Hall, UP Diliman
Focused Group Discussion on the ASEAN Common Market
February 28, 2014
9AM, 2nd flr. conference room, UP Law Center, Bocobo Hall, UP Diliman
Please confirm attendance with Au Tolentino, 9293654

The fight versus cyberlibel continues


The Supreme Court on Tuesday upheld the constitutionality of libel in the Cybercrimes Prevention Act of 2012. This is both unfortunate and disturbing. Our Supreme Court, as early as Angara vs. Electoral Tribunal, is recognized as a co-equal branch of government despite its lack of political and military power because its task is to uphold the supremacy of the Constitution. But with this unfortunate decision, the Court has clearly abdicated its role to uphold fundamental freedoms.

I represented journalists in this constitutional challenge led by Alexander Adonis. Adonis spent a year behind bars for libel courtesy of former Speaker Prospero “Burlesque King” Nograles. He went to the UN Committee on Human Rights for a view that criminal libel here is contrary to freedom of expression enshrined in the International Covenant on Civil and Political Rights. He succeeded and the Committee declared, for the first time, that criminal libel is unnecessary and disproportional for the protection of privacy of private individuals. The Committee ruled that the alternative to achieve this aim is civil damages and not incarceration.

The rationale for why criminal libel infringes on the right to free expression is because of a principle known as “overbreadth”. Under this, legislation so broadly tailored should be annulled on its face since its enforcement may cover even protected speech. This is why many states in the United States have stricken down much criminal libel legislation as being unconstitutional. Specifically, it may criminalize criticisms against public officials, which even if untrue, were nonetheless said without knowledge of falsity or in utter disregard thereof. The rationale for this in turn was summarized in the case of New York Times vs. Sullivan: “debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Garrison v. Louisiana then said why speech motivated even by hatred and ill-will should not be penalized: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth”.

The fact that the cyber prevention act criminalizes libel in the Internet, a different medium form print or broadcast, also adds to the confusion. For instance, the Revised Penal Code provision on libel says: “Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same”. The issue now is who else, besides the author, should be held liable for libel. Should the ISP and the intermediary, whose facility is indispensible for Internet publication, also be held liable? Are cybercafé owners, because bulk of our netizens goes to these cafes, also liable?

The Court attempted to narrow the scope of application of the cyberlibel law by ruling that only original posts may be penalized. This reflects that the court does not fully appreciate the nature of the Internet as a technology. Netizens today not only repost Facebook entries, they also reproduce them through cut and paste. So in the case of cut and paste, who are the original authors? Moreover, the court spokesperson said that comments are not liable for persecution. But how can these be when comments, by their very nature are in fact original posts distinct to the Web page or the Facebook entry that they seek to propagate?

Ultimately, the objection to the cybercrime law is that it seeks to penalize individual space on the Internet, which is recognized as the realization of the free market place of ideas. The theory of free speech is right or wrong; information should be made available to everyone, as ultimately, people will use their own intelligence in distilling the truth from falsity.

Karen Davila in her show yesterday was correct. The Internet is the medium of communication of the future. This is why they now seek to regulate it. For unless they instill fear in the hearts of those who criticize government, the possibility exists that government will cease to be a business and be  a means to serve the public. This is what they seek to prevent by legislating the draconian cybercrime prevention act.

But make no mistake about it: the fight shall continue. There shall be a motion for reconsideration in due course and a new petition in the future, for the alternative that of having the draconian law in force is simply unacceptable.

The high court should not abdicate its duty to protect freedom of expression


After the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

After the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

“The high court should not abdicate its duty to protect freedom of expression. No less than the U.N. Human Rights Committee has already declared that Philippine Criminal Libel Law is contrary to Freedom of Expression. The Court’s decision failing to declare libel as unconstitutional is therefore contrary to Human Rights Law.

“Centerlaw and our client, Alexander Adonis, welcome the other provisions of the Act such as the Take Down clause and the decision to strike down the real time gathering of information. This is indeed a major victory for privacy and the right of the people
to be secure in their communication.

“We will continue the fight to nullify criminal libel. Cyber libel is an infringement on free speech.”

Centerlaw issued this statement following today’s announcement that the Philippine Supreme Court ruled that online libel is constitutional.

Centerlaw, through Harry Roque, argued before the Supreme Court on January 15, 2013 that Republic Act 10175 or the anti-cybercrime law is against the law. Four other lawyers argued, representing 15 groups that petitioned against the law.#

The Centerlaw team after the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

The Centerlaw team after the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

Ruby Tuason and the WPP: Some criminals are luckier than others


ImageThe recent admission of pork barrel scam co-conspirator Ruby Tuason highlights anew the political nature  of the Witness Protection Program. Contrary to popular thinking, the WPP and the discharge of a witness as a state witness are two different things. The first is an executive act which, for all intents and purposes, is under the control and supervision of the Secretary of Justice, The latter is a judicial act and will require that the person sought to be discharged as a state witness first be charged in court.

The Witness Protection Program was created by an act of Congress, RA 6981. Under this statute, a person may either apply to the program if:

a) the offense in which his testimony will be used is a GRAVE FELONY as defined under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially CORROBORATED in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony.

As a consequence of being admitted into the program, a protected witness may be granted immunity for the crime for which he is testifying, be granted protection and a safe house, and may even keep his loot. This is because according to the web page of the DOJ, a person admitted into the program “may not be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents or writings produced.”

A discharge as state witness, on the other hand, is pursuant to Section 7, Rule 119 of the Revised Rules of Court. Unlike the WPP, the Rules of Court require that a state witness should have already been charged for a crime in court. A person then can be discharged as a State witness if the court is satisfied that:

(a)   There is ABSOLUTE NECESSITY for the testimony of the accused whose discharge is requested;

(b)   There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper prosecution of the offense committed, except the testimony of said accused;

(c)   The   testimony   of said   accused   can   be   substantially CORROBORATED  in its material points;

(d)   Said accused does NOT appear to be the MOST GUILTY; and

(e)   Said accused has NOT at any time been CONVICTED of any offense involving moral turpitude.”

While both provide for testimonial immunity for the accused who will testify for the state, it is clear that the WPP provides for more benefits. This  includes protection,  a safe house,  and even the right to keep his loot. Moreover, unlike the discharge of a state witness, a person may be admitted into the WPP and be accorded all benefits of the program, including immunity form prosecution, on a very low threshold, that the testimony may be corroborated on its material points. It does not matter hence if the testimony is redundant nor that the testimony will not involve new matters that only the witness can testify on.

Simply put, admission into the WPP -which is tantamount to impunity for one’s criminal acts – is a highly political act. Unlike discharge of a state witness in court, all that is required is that there must be an alleged threat on the life of the witness and that the testimony is subject to corroboration. This is why many are aghast at the possibility that Ruby Tuason, who should be equally be prosecuted as Enrile, Estrada et al, appears to be off the hook. Just because the Secretary of Justice now admits that the cases she filed in connection with the PDAF scam does not have her “slam dunk” testimony, she now wants an equally corrupt character to be off the hook.

I have always believed in good governance and that all corrupt people in government should be thrown behind bars. In this regard, we must ensure that all those who stole from the public coffers should all spend the rest of their lives behind bars, Certainly, the admission to the WPP of Ruby Tuason, including her right now  to keep part of her loot, as I think she has said that she will only return a measly P 40 million, is more reason for decent citizens to be aghast at the manner by which the WPP is being implemented.

The WPP, including the Rules of Court provision on state witnesses, exists to ensure that those who breach the law should be punished for their acts. It certainly should not be implemented in a manner to make some criminals appear luckier than others.

The Massacre Victims of Luneta and Maguindanao


The victims of the Luneta massacre —Chinese tourists from Hong Kong —and the victims of the Maguindanao massacre have much in common. Both were victims of multiple murders at the hands of state agents. The Luneta Hong tourists died in the hands of Rolando Mendoza and the inept PNP members, many of whom also shot and killed them. The Maguindanao massacre victims were killed by suspects, all of whom are government agents—from elected officials to state multipliers such as the civilan volunteer organizations (CVOs) and the Citizen Armed Force Geographical Unit (CAFGUs).

Both sets of victims have been waiting for a long time for justice. In the case of the Luneta hostages, their plight is slightly worse off because no one at all has been charged for the killings. The Maguindanao victims, on the other hand, stand to wait hundred sof years for justice given that four years later, more than 80 of the suspected perpetrators still have to be arrested.

Further, while all of them are victims of violations of the right to life, not one of them has received satisfaction in the form of an apology from the state. Neither has any of them received compensation from the state.

President Aquino and his cohorts have offered identical reasons why the Philippine government has not and will not apologize nor pay compensation to them. In the case of the Luneta victims, its is because Mendoza—not Mendoza – was solely at fault. In the case of the Maguinadanao massacre, it is because it was former President Gloria Arroyo and her allies at fault, and not the Aquino administration.

The President’s refusal to both apologize and pay compensation to all victims of the violation of the right to life is a continuing breach of international human rights law. Under the articles of state responsibility, a state incurs responsibility for an internationally wrongful act when it breaches a norm of international law and when it is committed by a person whose acts may be attributable to the state. Both of these elements are found in the Luneta and the Maguindanao massacres.

Under the International Covenant on Civil and Political Rights, states have the duty to protect and promote, among others, the right to life of their people. This is a guarantee against the arbitrary taking of life. But since the Philippines no longer has the death penalty, all killings are hence unlawful in the Philippines. The only question to invoke international responsibility for these killings is this: Who perpetrated them? If it is through a state agent or a private person acting upon orders or control of the state, then the state will be in breach of the obligation anent the right to life.

It is crystal clear that the killers in both massacres are state agents. Mendoza was with the PNP, albeit then suspended, while the rest of the bullets were “friendly fire” from other PNP officers. Meanwhile, the fiasco that led to the firefight, including the decision not to take down Mendoza earlier and to use force belatedly were formulated by other state agents. For this decision, a committee headed by Justice Secretary Leila De Lima recommended that criminal charges be filed against those who formulated the botched policy. Those recommended to be charged included then-Mayor Alfredo Lim, then-PNP General Jesus Versoza, and then-DILG Undersecretary Rico Puno. Strangely enough, until today, none of these individuals have been charged for anything.

In the case of the Maguindanao massacre, there can be no doubt that while the criminal cases against the suspected murderers are still on-going, all of those charged for the multiple murder are all state agents. There were two governors: of ARMMM and Maguindanao, mayors, vice-mayors, military men, and members again of the PNP. There too were CVOs and CAFGUs whose members are auxiliary members of the Armed Forces of the Philippines as force multipliers. In fact, although these paramilitary groups consist of members of a private army, they were nonetheless conferred the status of state agents by reason of an Executive Order issued by Mrs. Arroyo which, until now, remains in force.

But where do the victims differ?

Their nationalities. And boy, this makes a hell of a big difference.

The Luneta massacre victims are of course Hong Kong residents and nationals of China. The Maguindanao massacre victims are all Filipinos. This means that while the Luneta victims can expect their rights to be espoused by their state, the Maguindanao massacre victims cannot look forward to any support from their own state. True, the latter’s criminal cases have been prosecuted in the name of the Republic by public prosecutors. Big deal. Every single one of the victims has their own private prosecutors anyway. This is evidence that the victims have not relied on the state alone even for the conviction of the suspects for murder. Moreover, given the proximity of the accused to the then-administration of PGMA, many of them believe that even the manner by which the prosecution was initiated: against 197 accused and hence, guaranteed to take forever, was a means to ensure impunity for the very influential family accused of committing the murders. But meanwhile, anent their claim for satisfaction in the form of apology and compensation, the Maguindanao victims, unlike their Hong Kong counterparts, could only fend for themselves since it is their own state that has decided against issuing to them an apology and paying them compensation.

Meanwhile, the fact that Hong Kong has already taken steps to espouse the claim of their nationals against the Philippine government can only be the source of envy for the victims of the Maguindanao massacre. For while their own government has denied them their rights as victims, at least their Hong Kong counterparts can still hope to get satisfaction and compensation. Perhaps there is solace for them in this thought.

Some clearly are luckier then others. Sad.

VHONG NAVARRO IS STILL LUCKY


It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.

Navarro was also brought to the station in the company of the men who admitted to have beaten him up allegedly in defense of the woman who cried rape. The neighbors  though in the condominium unit where the alleged rape and the torture occurred have spoken to the media and said  that they did not hear any strange occurrence form the unit on the date and time involved. Of course the determination of what actually happened will still have to be threshed out in a court of law. All the actors in this real life drama are wealthy and have retained the most expensive lawyers in town. But meanwhile, and as observers, we cannot help but question the actuation of the police when Vhong was brought to their station for blotter purposes. Why for instance, did they not inquire as the reason why he sustained serious physical injuries, which on the basis of media images, could not have been missed by the police? Why was he not brought immediately to a government doctor for mandatory forensic and medical examination? Why was the woman who cried rape not referred to the woman’s desk officer so she can be counseled on the issue of whether to press charges or not? Why was the woman herself not advised to have a medical examination to document the alleged rape? But worse, given that Vhong Navarro allegedly confessed to a rape, why was he, despite his sorry physical conviction, not asked if he was voluntarily giving his statement? Why did the police not take steps to ensure that the celebrity was not a victim of torture? Torture has long been considered amongst the most serious crimes committed not only in domestic jurisdictions, but also against humanity itself. Presidents, such as Pinochet, Milosevic, Marcos, and Senegal’s Habre have been prosecuted for it despite their pleas of sovereign immunity. In Pinochet, the UK House of Lords ruled that while sovereign immunity continues to be recognized under international law, torture is an international crime and can never be a sovereign act. Hence, presidents accused of committing them should not enjoy immunity from suit. Furthermore, under the Convention Against Torture, which has been rarified by the Philippines, police authorities are under a positive obligation to investigate where information exists to suggest that torture may have been committed. Certainly, the injuries sustained by Navarro, coupled with information that he was beaten by a group of persons albeit allegedly in defense of strangers and a confession, should have prompted authorities to conclude that they are probably dealing with a case of torture. Torture is defined under both international law and our domestic law as the “infliction of physical or mental pain” for the purpose, among others, of extracting a confession.  (The Philippines has two laws with contradictory definitions of torture. RA 9851 does not require the perpetrator to be a state agent. RA  9745 does) All the elements of the international crime appear to be present in the Vhong Navarro incident. Eventually, the question is: if one of the country’s most recognizable personalities could be a victim of torture with our police oblivious to this fact; what happened to ordinary people? One can imagine the fate of the faceless and faceless detainees in our police camps why have routinely been subjected to torture by the police themselves. Already, Amnesty International and the Commission of Human Rights have declared the existence of a torture chamber in a camp intended for the Special Forces of the PNP. What these organizations have uncovered is a long-standing practice of torturing detainees, those who still have to be found guilty of the commission of any crime, for sheer fun and pleasure of our men in uniform. With this kind of a culture amongst our law enforcers, should we still be surprised that Vhong did not get any form of police assistance at a time when he actually needed it? I can only commiserate with the plight of Vhong. But still, he should still consider himself lucky. He has the support of  his fans and his television station solidly behind him. For if he were an ordinary Filipino who was tortured, he would surely have become just another anonymous number in the statistics of the number Filipinos who have been tortured and denied any and all forms of remedies.

Bloggers equally protected as journalists


 

BLOGGERS enjoy the same protection as journalists.

 

This was the recent ruling of the US Court of Appeals in  the case of Obsidian Finance Group v. Cox. In this case, Crystal Cox, a blogger, claimed that Obsidian finance company was guilty of tax fraud. The US District Court earlier found Cox guilty of defamation and awarded the finance company $ 2.5 in damages. The lower court issued its ruling anchored on the assumption that since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of” legal malice or a presumption that the defamatory statement is presumed malicious.

 

Further, Cox, as a mere blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case.  The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the US Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”

 

First Amendment refers to an amendment to the Constitution of the United States guaranteeing the right of free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the Government for a redress of grievances.

 

In ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored  x x x in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions”. Citing the US Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

 

The dilemma is precisely because of a lack of precision on who are in fact and in law – journalists. In fact, separate definition on who is a journalist indicates a lack of consensus even from those who profess to practice the profession. For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain”, a definition adopted as well by the UNESCO. This will exclude bloggers altogether from the protection of the proposed shield law. On the hand, the Human Rights Committee in its General Comment, defines  “it is a function shared by wide variety of actors, including professionals full time reporters and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere”.

 

Crystal Cox caseBut outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist”. In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily”, with the latter being given wider latitude for mistakes.

 

But all these miss the point. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of pubic issues”. If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?

 

The US Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right and not just a right of journalists.

 

In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction. In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas”. Certainly, Holmes did not write that only paid journalists could contribute to this market.

 

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Women’s Free Speech: Centerlaw hails non-issuance of TRO vs RH Forum


24 January 2014, Manila—

Center for International Law Philippines, Inc. (CenterLaw) hails the decision of the Pasay City Regional Trial Court not to issue a temporary restraining order (TRO) against an on-going international conference on reproductive health at the Philippine International Convention Center.

The 7th Asia Pacific Conference on Reproductive and Sexual Health and Rights is from January 21-24.

According to lawyer Harry Roque, “the non-issuance of a TRO is a victory for freedom of expression and upholds our Constitutional right to discuss important issues.” Roque Jr. argued in open court against the a TRO on behalf of conference organizer Philippine NGO Council on Population Health and Welfare, Inc. (PNGOC)

RTC Judge Petronilo Sulla, Jr. denied the TRO application of Pro-Life Philippines Foundation due to lack of merit.

“It shows to the world that in the Philippines, discussion on reproductive rights is robust in the free market place of ideas,” added Roque who is also CenterLaw Chairperson.

Prior restraint, Tacloban and Corona


 

I am forced to rush the writing of this column because I have to proceed  to the Pasay Regional Trial Court. Apparently, Jo Imbong and  son filed an application for a temporary restraining order to stop the holding of a conference on Reproductive Health currently being attended by 1,500 delegates from all over the world. The hearing this afternoon is on the prayer for the TRO.

I do not know what Jo Imbong alleged in her petition in support of her prayer for a TRO. Media reports say that she seeks to restrain the management of the Philippine International Convention Center, Health Secretary Enrique Ona and the other organizers of the conference since the affair has three panels on safe abortion and access to medical abortion. Media have reported that Imbong and son argued that these panels violate the Revised Penal Code because it encourages the commission of a crime.

I am almost sure that the Revised Penal Code does not punish any incitement to commit abortion, even if Jo imbong’s assertions are correct, but which I very much doubt. This being the case, the mere inducement or incitement is not a crime in this jurisdiction. Accordingly, what the conference will discuss should be treated by the state as protected speech. Accordingly, the prayer for the remedy of injunction will have the effect of prior restraint on the exercise of free speech. Let’s hope that the RTC of Pasay, my home city, will be true to its mandate to uphold the suprmemacy of civil rights over religious dogmatism.

* * *

I was overwhelmed by the readership of and comments on my column on graft in Tacloban. I’d like to thank the almost unanimous expression of support for my view that public international law, the dictates of conscience and the law of humanity does not discriminate on the basis of partisan political affiliations in the delivery of humanitarian assistance to the typhoon ravaged province of Leyte. By way of follow-up, I have since discovered that Dinky “If We Hold On Together” Soliman has been distributing 25 kilos of rice per week for families in Leyte. This is good but I hope not in aid of her election bid in 2016.

Apparently, this large amount of rice was sourced from the recently seized smuggled rice from Vietnam. I suppose  that distributing the fruits of the crime of smuggling to those in need is the most appropriate means of disposing of fruits of a crime. I just hope that smuggling could be curbed once and for all because in addition to depriving our farmers fair access to the market, it also deprives rice traders and allied industries a share of the market. Let’s also hope that the vultures responsible for the anomalous bunkhouses will not profit from the distribution of smuggled rice.

While we’re at it, the anomalous bunkhouses defended by Secretary Rogelio Singson as not being “overpriced” have all been blown away anew by nature. I’d like to hear the good Secretary and Malacañang say again that these bunk houses were not anomalous. Mind you, they were not blown away by a major typhoon. It was more like mere monsoon rains. Let’s refer to these golden bunkhouses as the Yolanda-gate scandal to remind us of the vultures who will make profit from the miseries of others.

* * *

Let me end by saying kind words to Malacañang.

Senator Bong Revilla was off-tangent when he claimed impropriety when the President talked to him to vote to oust Corona from the Chief Justice post. While I am of the view that PNoy certainly has a lot to answer to us, his boss, talking to the senators to rid us of a lying Chief Justice is not one of them. PNoy had nothing to do with the fact that Corona lied through his teeth o when he withheld information about his millions of dollars in dollar deposits in his Statement of Assets, Liabilities and Net Worth.

Moreover PNoy had nothing to do with the bad acting that Corona exhibited in the Senate which sealed his fate as the first Chief Justice removed through impeachment. Corona only had himself to blame for his ouster. Let’s not pass the buck to Pnoy—not on this issue, at least.

 

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Access to electricity is a human right


I was one of those who called over the weekend for Congress to declare a state of national emergency and grant the President the power to temporarily take over the running of both the power generation and distribution industries. This was in response to Meralco’s statement that the temporary restraining order issued recently by the Supreme Court against what could have been Meralco’s biggest increase in electricity cost will lead to power disruptions and brownouts.

I made this call amid testimony made by officials from the Energy Regulatory Commission in the Senate that there is now evidence of “detectable collusion” among power generators. This, they said, was because power generators are also players in the spot market where Meralco purchases its electricity:  “gaming in the spot market and shutting down without justification are clear indications of collusion.”

In response thereto, the chairman of the committee, Senator Antonio Trillanes, concluded: “It’s clear there’s conflict of interest. It appears you shut down here and then you sell there; it’s higher there”.

In the first place, the business of power generation and distribution are imbued with the public interest. This is because these industries sell an indispensible commodity, electricity, to the general public. This is why these businesses are recipients of a franchise to operate. This is a privilege bestowed on the state only to those who are deserving—this is not a right. This is also why when we privatized these industries through the Epira law, Congress still granted the ERC the power to fix rates for electricity. Simply put, these businesses are subject to close regulation because their business will affect the welfare of the general public who are the end users of their commodity.

But my call for the temporary takeover was not only because these companies have breached their obligations to provide a convenience to the general public. On the contrary, I advocated their temporary takeover because in addition to being mere recipients of a state privilege—which can hence be revoked when the interest of the public requires this—what is involved here is a human right, which a State is duty bound to take progressive steps to realize.

Perhaps the confusion over access to electricity as a human right is because there is a dearth of human rights treaties that explicitly mention that it is a human right. In fact, there is only the Convention on the Elimination on Discrimination Against Women that provides for it as a right: “States should take steps to ensure that … women … shall enjoy adequate living conditions particularly in relation to … electricity”.

Despite this paucity of literal sources for the right to access to electricity, it is accepted in the field that this right is covered by Article 11 of the International Covenant on the Economic Social and Cultural Right (ICESCR), which imposes an obligation on State Parties to the Covenant to “recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions.”  Essentially, this obligation requires every nation to provide human habitation with all the other accompanying facilities in it such as electricity. As opined by a leading NGO: “Inadequate power supply is one issue that generates feelings of helplessness, sometimes anger or outright disgust. Experience has clearly shown that the absence of electricity constitutes one single major factor impeding the full achievement of these rights.”

Thanks to an exposure trip sponsored by the Bertha Foundation to India, I have since discovered that a Mumbai High Court was the first to apply this right to access to electricity in domestic law. In ruling that informal settlers have the right to access to electricity, the High Court ruled: “access to electricity should be construed as a human right. Denial of it would amount to violation of human rights… Lack of electricity supply is one of the determinative factors, affecting education, health and a cause of economy disparity, and consequently, inequality in society leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine competing with others.”

A concurring opinion to this decision said: “Lack of electricity denies people equal opportunities in the matter of education and consequently suitable employment, health, sanitation and other socio-economic rights. Right to electricity of a person… is integral to the achievement of socio-economic rights…It is the fundamental duty of the authorities to show compassion to those who are living in huts and tenements for long. When socio and economic justice is the mandate of the Constitution, it is a travesty of justice to deny electricity to the petitioners.”

Let’ s hope that our very own Supreme Court does not only find grave abuse and discretion in this latest Meralco increase. Let’s hope it also goes further and recognizes access to electricity as a human right.

Graft in Tacloban


searchI had dinner recently with Mayor Alfred Romualdez of Tacloban City. That was a first. I have been consistently an anti-Marcos activist since my grade school days. I’ve always thought that the Philippines would be a better place without the Marcoses and their conjugal half, the Romualdezes. Like the Aquino’s, my mother’s immediate family, including the Reyes clan of Pasig that gave the country the great statesman, Jovito Salonga, were victims of the Marcos dictatorship. Scars from those days will probably never heal. And perhaps, they should never heal if only to remind us of what dictatorships can do to a democracy.

But I was touched by the tale of Mayor Romualdez.

We’ve heard over and over again the Palace line that the local government is always the first line of defense. That is true because normally, the national government will not be in the area affected by a calamity.

But this was not the case in Tacloban. Pagasa warned us about the onslaught of Yolanda. This was why P Noy sent Secretaries Mar Roxas and Voltaire Gazmin to Tacloban before the typhoon’s landfall to coordinate disaster preparedness. Ergo, this means that the mantra about the LGU’s being the first line of defense is inapplicable because Malacañang, through the closest allies of PNOY- was already in Tacloban.

Then there was the looting. According to Mayor Romualdez, they repeatedly requested from both secretaries to deploy additional soldiers or policemen immediately after the storm precisely because they anticipated the breakdown of peace and order. This fell on deaf ears and instead, the DILG deployed additional firemen. Naturally, with the people hungry and with no assistance immediately forthcoming, the worse did happen.

Then there is the reason behind the national government’s inaction.  I doubt if anyone who has access to the Internet has not yet seen the infamous video of Secretary Mar demanding the effective resignation of Romualdez as the pre-condition for assistance to Tacloban. I had of course heard about this prior to the video and could not believe it. I had to see the short version and the full version of the video before I could believe that Mar Roxas and P Noy were capable of this.

I have been an ardent advocate for humanitarian law because in times of the worse disasters, both man made or otherwise, humanity deserves humanitarian assistance pursuant to the law of nations, laws of humanity and dictates of conscience. This is otherwise known as the Martens clause. Simply put, civilized people will provide humanitarian assistance to those in need because they are human beings. This is  a right which is not subject to discrimination be it based on race, gender, or membership in a political group. Certainly, the fact that the Romualdezes are the Aquino’s political nemesis is not a reason to condemn the entire population of disaster stricken Tacloban to doom. That at least, is the standards recognized by civilized people of the world.

It comes therefore as no surprise that the media has again reported that despite the misfortune of Tacloban, even the bunkhouses built for the victims of the strongest typhoon in the world would be the source of tongpats for some in the administration. How can these people make money out of the misery of others?

Because the PNoy administration embraced anyone and everyone singing praises to it, including many of those whose business is always to be allied with those in power unabashedly singing “when we hold on together” with the devil reincarnate; we have the mess that we find now in Tacloban.

Make no mistake about it. The fault lies not just with Mar Roxas. PNoy, in his pronouncements in Japan, ratified and adopted Mar’s actions as his own. No wonder the people of Tacloban have lost hope that Malacañang will come to their rescue. Perhaps, it was destined that the people of Tacloban will rise again- no thanks to Malacañang, but with the assistance from civil society and the private sector. Maybe in this manner, we can even spare scarce taxpayers money from benefitting  (again) the plunderers in this administration.

But the administration better watch out. For while it has condemned Tacloban to perish from the face of this earth to benefit its political allies, the law is very clear. Graft can be committed not just by stealing public funds, assuming it is true that the President has not been stealing public funds himself, which I tend to believe. It can also be committed by “(f) Neglecting or refusing,  x x x without sufficient justification, to act within a reasonable time on any matter pending before him for  x x x the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party”.

Refusing to assist calamity stricken Tacloban just to defeat a political opponent and to install political allies in the city will fall in this category of graft.

Human rights highlights in 2013


imagesThis will be an annual tradition. For as long as I have a column to write, I will devote my first column of the year to a summary of the highlights for human rights in the Philippines.

For the year 2013, here are what I consider the highlights:

1. The detention and maltreatment of Tausug Filipinos on a mission to reclaim Sabah. First on my list is the maltreatment suffered by the Filipinos as a consequence of the decision of Sultan Jamalul Kiram of the Sultanate of Sulu to reclaim Sabah. Not only is the Sultanate’s title as clear as the light of day. The arbitrary arrest of Filipinos, which really was a witch hunt, coupled with the disproportionate use of force employed by the federation of Malaysia, and the arrest of journalists from ABS-CBN, GMA and Al Jazeera covering the event, highlight the sorry state of human rights in the Southeast Asian region. I highlighted this event because it should be taken as a reason for our own state to comply with the letter and spirit of human rights law: do not do to others what you do not want to be done to your own people;

2. The challenge to the 2012 Cybercrimes Prevention Law. Not since the first quarter storm and the 1986 people power revolution have we seen the youth of this country united in their opposition against an Orwellian attempt to infringe on freedom of expression in the medium intended to institutionalize the free market place of ideas. What is noteworthy is not just the petitions filed against the law, but the use of the Internet as a medium for protest. Regardless of how the Supreme Court rules on the legality of the law, the fact is the youth have rediscovered activism in a new medium—in cyberspace.

3. The Palace position that it would not pay compensation to victims of the Ampatuan Massacre. The year 2013 was the year when the PNoy administration made clear its position that it would not pay compensation to the victims of the Ampatuan massacre. This is clearly a breach of the state obligation under human rights law to provide compensation to victims of violations of the right to life. Independent of the guilt of the accused in the pending criminal cases against the Ampatuans and their cohorts, the state has the obligation to pay compensation to those whose loved ones were killed by state agents despite the state’s obligation to protect and promote the victims right to life.

4. The Philippine position not to support UN Human Rights Council resolutions condemning the attacks against civilians in Syria. Alleging that neutrality to the ongoing systematic attacks perpetrated by the Assad regime against its civilian population was the best means to protect Filipinos in Syria, the Philippine government declined to support any UN Human Rights Council resolution condemning the attacks against civilians in Syria. In adopting this position of neutrality, Filipino policy makers assumed that bullets used by the Assad regime could distinguish between a Syrian and a Filipino worker in Syria. Clearly, the duty to protect our nationals in troubled spots like Syria requires our government to support all initiatives to uphold and promote both human rights and humanitarian law in these troubled lands. This, in fact, is the only means that we can ensure that our diaspora do not fall victim to rampant and systematic human rights violations;

5. Indiscriminate violation of International Humanitarian Law in the Zamboanga siege. Regrettably, IHL, as the law applicable in armed conflicts, found additional application as a result of the Zamboanga siege. Regrettably, both the MNLF and the AFP were noted to have committed grave breaches of the law which is accepted by all countries in this planet as being non-derogable. Both parties to the conflict were observed to have been guilty of indiscriminate attacks against civilian populations.

The AFP order to indiscriminately detain individuals who cannot recite the Lord’s Prayer as possible MNLF members deserves special mention as this violates both the right of the people to be secure in their persons and the right of the people to liberty;

6. The Supreme Court decisions invalidating the PDAF, the Presidential Social Fund and Illegal Disbursement of the Malampaya funds. The decision declaring the pork barrel expenditures as unconstitutional impacts on human rights because hopefully, government funds could now be used to discharge the state obligation to take progressive steps in the realization of economic, social, cultural and economic rights. Hopefully, the hundreds of billions in taxpayers money which used to go to the pockets of our corrupt politicians can now be used to give realization to such basic rights such as the right to food, water, housing, and public health;

7. Finally, the temporary restraining order issued by the Supreme Court on the implementation of the Reproductive Health Law. This was a big blow to the right of the people to heath, the right of privacy, the right to make very personal decisions such as the number of offsprings that spouses would want, and the right of women to non-discrimination.

I hope that 2014 will usher in both a Happy New Year to all and better compliance with human rights and humanitarian law in the Philippines.

Christmas thoughts on corruption


It cannot be denied that the nation was rocked this year with unprecedented allegations of corruption. And because it is Christmas, let me dwell on this topic in the context of what the Bible says about corruption.

Corruption undermines what God instructs us to do. In Isaiah. 58:66, God instructed the faithful: “Is this not the fast which I choose, to loosen the bonds of wickedness, to undo the bands of the yoke, and to let the oppressed go free, and break every yoke? Is it not to divide your bread with the hungry, and bring the homeless poor into the house; when you see the naked, to cover him, and not to hide yourself from your own flesh?”

Given this mandate, all those who professed to be Christians must be activists by heart. For in a country like ours- with an ever-widening gap between the rich and the poor, Christians were clearly mandated to side with the poor and the oppressed.

Corruption goes against this tenet because instead of pubic funds being spent to alleviate the plight of the poor, it goes to the pockets of those who rely on politics as their business. Instead of going to food, shelter, and education, especially to those ravaged by the recent earthquakes and typhoon Yolanda, it is squandered by those who bought their public office using ironically, public funds at that. Worse, goods given in the name of charity have not been spared by these thieves. Already, the international donor community has lambasted  this government for widespread instances of thievery involving goods intended to alleviate the sufferings of our most unfortunate.

Furthermore, corruption is a kind of injustice. A writer wrote: “after idolatry, justice is the most frequent theme in the Scriptures. God’s people are called to expose and reject false idols, and challenge society where the poor are disadvantaged. The false idol of money gives birth to corruption, and corruption disadvantages the poor. Corruption works by hiding things that should be known by secrecy and lies. To counter corruption we must ‘shine a light’; expose what is hidden and uncover the truth.”

The Bible clearly strongly opposes corruption and bribery. The Bible says: “You shall take no bribe, for a bribe blinds the clear-sighted and subverts the cause of the righteous” (Exodus 23:8). God condemns financial dishonesty again and again in the Bible: “The Lord detests the use of dishonest scales, but he delights in accurate weights.” (Prov 11:1)

“God’s intention for people is flourishing life for all. “(John 10:10)

Corruption hurts the poor the most. Christians should take this to heart because God cares for the poor. God told the Israelites to “leave a portion of their harvest for the poor and immigrants (Lev 19:9-10, Deut 24:19-22). Additionally, everyone’s tithings were collected into town to be redistributed amongst the poor, widows, orphans, and foreigners (Deut 14:28-29). Likewise, in the book of Acts, the early Christian community (Acts 2:44-45, 4:32-35) “organized to shared their possessions in common, for the common good”. Individual charity is incredibly important to Christians; however, organized redistribution through taxation is crucial to ensuring the poor are cared for.

The prophet Isaiah tells us a what things will be like when God’s king is on the throne: “His governance and reign is completely free from corruption and injustice.”(Isaiah 9:6-7)

This Christmas season, let us reflect on the true spirit of Christmas: “For to us a child is born, to us a son is given, and the government will be on his shoulders. And he will be called Wonderful Counselor, Mighty God, Everlasting Father, and Prince of Peace.”

Merry Christmas to one and all!

Impeach the gods (again)?


There’s a twist in the continuing Marinduque drama involving elected Rep. Regina O. Reyes and defeated candidate Lord Allan Velasco. While the Supreme Court decided 5-4 to uphold an earlier resolution of the Commission on Elections annulling the certificate of candidacy of Reyes on the basis of a blog entry that she is an American, at least 161 members of the House of Representatives signed a resolution recognizing the jurisdiction of the House of Representatives Electoral Tribunal to act as the sole judge of the qualification of Rep. Reyes to sit as a member of the House.

Previously, the Supreme Court, in what Justice Arturo Brion described as done with “undue haste to benefit one of us” (Lord Allan is the son of Senior Associate Justice Presbiterio Velasco) affirmed the decision of the Comelec despite the fact that during the pendency of the petition for annulment, Rep. Reyes had already been proclaimed, sworn, and had discharged her functions as a member of the House. The decision of the Court, according to at least four dissenting justices, overturned a long line of jurisprudence that upon proclamation, the HRET remains the sole judge of all contests involving members of the House of Representatives. Worse, as observed by Senior Justice Antonio Carpio, the ruling in Reyes had the effect of amending the Constitution on when the term of the members of Congress commence. For while the Constitution specifies noon of June 30, the majority decision in Reyes said that members of Congress do not commence their term until they have taken their oath before either the Speaker of the House or the President of the Senate. As observed by the dissenting opinions, this would mean that members of Congress have no mandate from noon of June 30 until the day of the State of the Nation address or the third Monday of July which is when both houses of Congress organize and where the head of each chamber administer the oath to its members.

Solita Monsod was right. This is a case where the Court by edict declared a loser as the winner contrary to the mandate of the sovereign people of Marinduque.

But two obstacles still stand in the way of the Velascos. First, the son of the god erred in not impleading the House of Representatives in the cases filed against Reyes. This means that while Velasco may have won the support of his father’s peers, that decision is not binding on the House. Moreover, the bigger challenge now is how the House can recognize Velasco as one of  its members when an overwhelming number of its members have decided to ignore the ruling of the Court. They have signified their decision to allow the HRET to decide the issue of Rep. Reyes’ qualification to sit in the chamber.

This turn of events is unprecedented. Never before has there been an instance when the Court intruded on an exclusive power of the House, and never before has Congress rebuffed the Court in the manner that it has just done so. As a believer in the view that law forms part of a normative system and is not just the cold application of rules, one cannot help but wonder whether the Court itself undermined its own independence and effectiveness by ruling in the manner that it did in Reyes v. Comelec. I am of the personal belief that the criticism expressed by the dissenting justices has eroded the reputation and integrity of the Court itself. It does not help that in the end, a mere five justices out of 15 voted to favor the son of one of its own.

So are we now facing a constitutional crisis? I do not think so. The fact that Velasco did not implead the House as a party to his cases made this a certainty. But we do have a crisis at the moment. For while the court is believed to be a co-equal branch because of its function to uphold the supremacy of the Constitution, what happens when a co-equal branch, applying a long line of jurisprudence set by the court itself, interprets the Constitution in a manner contrary to that of the court?

Well, this is yet another instance of a political decision taking precedence over jurisprudence of a court without a popular mandate. And as former Chief Justice Renato Corona and Former Ombudsman Merceditas Gutierrez learned in recent years, a political judgment often results in a political decision to impeach even the gods for the sake of upholding the Constitution.

May history repeat itself sooner rather than later!

Disclosure: I stood as counsel for Reyes in the afore-discussed case.

Fences and hope in Madiba’s South Africa


Pretoria, South Africa—Fences. They’re all over Madiba’s South Africa. They are part of South Africa’s everyday life, a testament to its recent history.

And they’re not just ordinary fences. They’re built of steel or hard concrete. Many of them do not just have spikes on top of them. Instead, they have electric wires. Nope, they’re not just intended to shoo away intruders. They have enough electricity to kill.

Sadly, these fences are considered necessities. In fact, they are installed and maintained by monolithic security companies that served as precursors to companies like Blackwater in Iraq. They’re private but are now relied upon by the rich Caucasians as key to their survival in Madiba’s Africa.

Not all is well with Nelson Mandela’s South Africa. While the nation truly mourns the loss of one of humanity’s greatest freedom icon, the future of the country for whom Mandela would have died appears to be unsettled.

Breakdown of peace and order is the primary concern. Almost everyone that I have spoken to here has been a victim of a violent crime: a consul and his wife whose room at a bed and breakfast in the good part of town was broken into, a UN official robbed at gun-point, an elderly Filipina who was hogtied by robbers who broke into her house. Senior diplomats have not been spared, triggering security concerns for Vice-President Jejomar Binay’s security who moves around town with only a handful of security personnel. There was the Thai diplomat whose vehicle was hijacked in broad daylight, the Uruguayan Ambassador whose diplomatic residence was broken into. Mrs. Yoko Ramos, our Ambassador’s wife, says that the security concern in genteel Pretoria is so bad that her “four-year-old daughter and her yaya do not venture into the secured garden of the Philippine Ambassadors residence” already located in the best part of town.

Why is there a breakdown of peace and order? Why has Madiba’s country become the crime capital of the world?

Certainly, an explanation is that South Africa remains to be a society in transition. It has only been 19 years when the icon now lying in state about 2000 meters from my hotel room became President of a country that was notorious for apartheid—the systematic racial segregation of the black and whites. I first read about this racist policy in grade school and was moved to tears when I read about it on a current affairs handout. But unless you personally see the charm of the areas intended for the whites- such as Joberg and Pretoria—and compare it with the black enclaves of Soweto, one cannot have a clear picture of how pernicious the system of apartheid was.

But beyond being a transition society, it is also an economy of such harsh contradiction.

I expected Joberg to be a giant slum area much like Mumbai which I saw in 1996. But it isn’t. For all intents and purposes, the Dutch and the British have transformed this part of Africa into a not-so-little Europe. And looks are deceiving. For while Joberg and Pretoria are amongst the most picturesque cities in the world, it has one of the harshest economy with 35 percent  of the population, almost all of whom are black, currently unemployed. And unless one ventures two hours beyond the limits of Victorian Pretoria into the wilds of the Northeast, one does not see the metal houses occupied by majority of the blacks today. Yes, they’re no different from the slums of Malabon or Pasay. But slum dwellers here, unlike in Metro Manila, have to live through very cold winters and chilly summer nights of 18-20 degrees Celsius.

But they still mourn and celebrate the life of Madiba. It was he, after all, who led the revolution against the racist apartheid regime. In so doing, he sent the message to all that people are equal no matter what their skin colors may be. And while he himself spent decades in prison and was a victim of torture, he rejected the temptation of revenge and preached forgiveness until his dying moments. By the standards of many, it was his willingness to forgive that makes Nelson Mandela a saint.

So is there hope for Madiba’s land now that he has moved on to the great beyond?

Certainly. It has the natural resources that have made it the economic powerhouse of Africa. It is the world’s second-largest producer of fruits, much of it consumed by its former colonizers in Europe. It is an industrial economy, largely because it has had to live through many years of economic isolation. But more importantly, it will survive because Nelson Mandela, one of the greatest men to have roamed this earth, taught them that freedom should come with hope and the ability to forgive.

Our Ninoy and Cory Aquino will surely relish Nelson Mandela’s company in the great beyond. Meanwhile, though, I’m sure both are wondering: why is their son, President Noynoy, not here?

***

I am here in Pretoria as coach to the UP Law Team that competed in the 5th World Human Rights Moot Competition. Our thanks to the hospitality extended to us by Ambassador Bong Vingno and his wife, Madame Yoko.

Centerlaw’s statement on SC’s new guidelines on the Ampatuan massacre trial


We commend the Supreme Court for issuing new guidelines on the Ampatuan trial. These guidelines show that the Court also finds the status quo as being unacceptable. We are happy that the court granted our first in first out proposal, or that the lower court should issue partial promulgation as to some accused who have terminated with presentation of evidence without having to await termination of presentation of evidence for all theaccused. We proposed this to Judge Reyes but it was rejected. We welcome too the designation of an additional judge and the use of affidavits in lieu of direct testimony. We see these innovations as possible reasons why the trial of the case may finish within the term of P Noy.

The judiciary has done what it can do within its realm. We await the inputs from the executive on its initiatives on the prosecution of the case and the issue of compensation to the victims.

The Center for International Law (Centerlaw) represents the families of 15 of the 58 victims of the Maguindanao massacre in the ongoing criminal case. Centerlaw works closely with the government prosecution panel. Centerlaw is chaired by Atty. Harry L. Roque, Jr.

On International Human Rights Day— MDSEA urges 3 UN Special Rapporteurs: intervene now in the continuing killings of Filipino journalists


10 December 2013—On International Human Rights Day, Media Defence Southeast Asia (MDSEA) urged 3 UN Special Rapporteurs to urgently intervene in the continuing incidents of extrajudicial killings of Filipino journalists. MDSEA reported to the 3 UN Special Rapporteurs that within two weeks of the 4th year commemoration of the Maguindanao massacre, two radio broadcasters were shot and killed in Mindanao.
On 29 November 2013, or just six days after the 4th year commemoration of the Maguindanao massacre, DXGT Radyo Abante commentator Joas Dignos was shot to death by two motorcycle-riding killers in Valencia town, Bukidnon.[1] A mere eight days later on 07 December 2013, DXFM radio host Michael Diaz Milo was shot in the head by motorcycle-riding men in Tandag City.[2]
 
“The mere killing of one journalist is the ultimate violation of the right to freedom of expression under Article 19 of the ICCPR and Article 19 of the UDHR– since it is permanent censorship,” according to Harry Roque Jr., MDSEA President and professor of international law.

“These continuing incidents of extrajudicial killings of journalists in the Philippines are gross violations of the right to life guaranteed under Article 6 of the ICCPR and Article 3 of the UDHR,” added Roque.

“As we celebrate International Human Rights Day, it is high time for the Philippine government to vigorously investigate and prosecute these and other numerous incidents of journalist killings to put an end to this culture of impunity against Filipino journalists,” laments Roque.

In its 4-paged “Update with Urgent Appeal” MDSEA made 5 urgent requests to the UN Special Rapporteur on Freedom of Expression, the UN Special Rapporteur on Extrajudicial Executions, and the UN Special Rapporteur on the Promotion of Truth which included urging them to conduct a country visit to the Philippines to investigate these continuing incidents of extrajudicial killings of journalists.

Click here for the  UPDATED LETTER OF ALLEGATION_UN SPECIAL RAPPORTEURS

Families of the Maguindanao massacre victims vs former Pres. Arroyo


To get a copy of the original complaint filed on November 22, 2011 by the families of the Maguindanao massacre victims, please click here Salaysay,etal vs PGMA_COMPLAINT22Nov2011

The Chinese view on the Philippine arbitration on the West Philippine Sea


Judge Xue

Judge Xue

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.

In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.

My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.

But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.

Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”

Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”

She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.

Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.

While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.

We have Judge Xue to thank for this.

Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roques presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”

Request for coverage : 4th year commemoration of the Maguindanao massacre


For the 4th year commemoration of the Maguindanao massacre,  the Center for International Law (Centerlaw) will hold/attend the following activities:

FRIDAY, NOVEMBER 22

10:00 AM             Mass, Fr. Robert Reyes, celebrant
Soliven Room, G/F Malcolm Hall, College of Law, UP Diliman

11:30 AM             Families of the victims of the Maguindanao massacre will file petition at the United Nations Human   Rights Committee (immediately after the mass)

12 NOON             With the UP Community : Maskom Vigil and March around UP Diliman Academic Oval

4:00 PM              With NUJP: Human Chain Protest along Roxas Boulevard

SATURDAY, NOVEMBER 23

10:00 AM             “Kumusta na ang mga naulila?”, a press conference with the families of the victims of the Maguindanao massacre
CMC Auditorium, College of Mass Communication, UP Diliman

Note : Centerlaw’s Mindanao based clients will be in Manila from November 21 to 24. Requests for interviews are welcome. Kindly contact Atty. Harry L. Roque, Jr. (09175398096) or Centerlaw (750-3847 to 48).

Rejecting dictatorial powers


Credit should be given where it is due. President Noynoy Aquino should be commended for rejecting the option of exercising dictatorial powers. At a time when his popularity has gone on a free fall, courtesy partly of the bad mouths in charge of his communications, the President still rejected suggestions for him to be a dictator by imposing Martial Law in Tacloban. Lesser mortals would have taken advantage of the situation.

There is no doubt that the humanitarian crisis resulting from the strongest typhoon ever has caused complete breakdown of law and order in Tacloban. Media have reported rampant lootings and the perpetration of other crimes, including murder, in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, I am happy that PNoy rejected the temptation to exercise powers of a dictator.

Under our Constitution, the President has three extraordinary powers as Commander-in-Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. In cases of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.

PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege of the writ of habeas corpus or the declaration of martial law should be exercised with caution. This is because freedoms are protected by the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.

Moreover, the correct response to the crisis, in addition to his calling out power, is the declaration of a state of calamity. Legally, such a declaration would authorize local governments to spend their calamity funds even without local ordinances. While I am not certain about the legal effect of what was actually declared, that of a “state of national calamity”, I suppose that such a declaration was a fusion of the calling out power and authority for local governments involved in the ravaged areas to spend their calamity funds.

Of course, the perpetrators of the unconstitutional Disbursement Program will, like Napoles and PGMA, capitalize on the Yolanda disaster to justify the DAP anew. But what we do know is: one, there’s still funds left in the appropriation for calamity funds; and two, if the funds are insufficient, the remedy would be to pass a special appropriation to address the crisis. Of course, the use of savings, provided it complies with Demetria vs. Alba, that is, it comes from savings in the executive to be used in connection with an existing line item, is still an option. The controversy over DAP is not whether the President can do this, but whether the use of savings to add further programs which are not provided in the budget law and /or whether the President can use savings from the executive and disburse them to another branch of government such as the Senate. This was of course what Senator Jinggoy Estrada revealed: that each Senator who voted to remove former Chief Justice Corona was given P100 million each from savings of the executive.

PNoy, for all his other shortcomings, should be commended. Recall that his predecessor, the “evil one”, exercised the calling out power thrice and declared martial law twice, albeit the first one, declared to be unconstitutional in David vs. Arroyo, was undeclared . It is no small feat hence for a President to resist the temptation to trample upon civil liberties. Certainly, the Marcos dictatorship was proof of this. All freedom-loving Filipinos should hence commend PNoy for rising up to the challenge and rejecting the allure and temptation of dictatorial powers.

(Published in the Manila Standard Today on November 14, 2013)

Request for Coverage


A forum on “Increased Rotational Presence (IRP) Framework Agreement: Pros and Cons” will be held today, Monday, November 11, 2013, 1:00 – 4:00 pm at the G/F Lecture Hall, Bocobo Hall, UP Law Center, Diliman, Quezon City.
This is sponsored by the Institute of International Legal Studies (IILS) and Institute of Human Rights of the UP Law Center.

Freedom of expression in ASEAN


(Posted in http://manilastandardtoday.com on November 6, 2013)

HarryRoqueI am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Initiative.

The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.

Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.

The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the  killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is  even at this time and age, many of the regimes in the region lack popular mandate.  When they do enjoy the mandate, like PNoy, they are allergic to criticism.

Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.

The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

The “safety valve” function, finally,  was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic  to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.

My Mother on her 1st All Saints Day


Remembering my mother on her first All Saints’ Day

By HARRY ROQUE November 1, 2013 8:09pm
 
There’s solace in the Philippine tradition of commemorating our dearly departed on November 1. While we will all eventually head to the great beyond, our All Saints’ Day celebration is an assurance to all Filipinos that we will be remembered, at least once a year.

Prof. Harry L. Roque Jr.
Call it bizarre. Call it strange. But it is reassuring that, come what may, your loved ones will party at your graveside on that day.
This year’s Araw ng mga Patay is noteworthy for my family and me, because my mother only recently passed away. In fact, I will have not one, but two parties for her. The first is on her 40th day on the eve of November 1, the second is on All Saints Day, which we will celebrate together with all other Filipinos in cemeteries and columbaries all over the country.
I thought I could write sooner about my mother. When my first godchild Atty. Jason de Guzman passed away earlier this year, I managed to write a full-blown obituary about him in my blog, but when it was my mom’s turn to move on last September 21, all I could manage was an announcement on my blog and on my Facebook.
Mothers always have a special place in the hearts of their children. Hey, they carried us in their wombs for nine months and endured our eccentricities no matter what they may be. My mom was no different. She was my emotional punching bag when teenage puberty took its toll. She became a martyr when she bore six children, all of whom grew up to be highly opinionated – before practicing reproductive health control measures. She endured a challenging husband and particularly difficult in-laws. Yet, through it all, she lived life with a sense of humor and with a belief in the inherent goodness of mankind.
My mother, like me, was an educator. But, unlike me, she relied wholly on  teaching for her livelihood. Like me, she loved every minute of teaching students. Unlike me, she spent every minute of a 10-hour workday working.
She wrote some books but, to her, professional fulfillment meant teaching mathematics to those who would otherwise not learn it from any other teacher. While she taught most of her life at Universities such as the University of the Philippines and the University of Chicago, she spent her last few years as an educator working with those who would otherwise not have had secondary school certificates in the public libraries, both here and abroad.
Her absolute last teaching assignment was to tutor our kasambahays for their distance learning high-school degree course. She loved this the most, knowing that she was doing it for the most disadvantaged members of society.
Mom started as a conservative having served as a president of no less than the Temperance Union of the Philippines, but as she matured in years, she saw it as her Christian duty to engage in social advocacy. She was a union steward of a teachers union, a staunch defender of equal protection appearing in both racial and age discrimination cases, and, in her final cases, a full-time demonstrator who led mass actions against Joc-Joc Bolante in Chicago. And, while she was already confined to her wheel chair, she still went to the Senate to cheer Jun Lozada on when the latter was testifying in the Senate about NBN-ZTE.
She was a staunch PNoy supporter, but only because he was the son of Cory Aquino and her college buddy, Ninoy. She, like me, could not understand what happened to Pnoy, particularly on the issue of good government.
My mom was a personal fan of my work. Even in her wheel chair, she managed to watch me in the Supreme Court when I argued the case against Smartmatic and against the Visiting Forces Agreement. She did have problems with my stand against the VFA, since she was staunchly pro-American, owing to her experiences during World War 2. But she tolerated my tirades against the US on the grounds that her great-grandfather killed the highest ranking American military officer during the Philippine-American war.
Of all my advocacies, she felt most for my widows: the comfort women of Candaba, Pampanga, and the widows of the Maguindanao massacre.
I do miss my mother. While she and I lived in separate continents for most time of my life, I’m happy that she stayed in my household in her three final years in this planet. She was already ill but was always a source of strength. And while she was in a wheel chair, she made sure that her presence was felt by the entire household with her constant greetings and laughter in our receiving room whenever she was on her way to her own bedroom.Yes, just like any son, I thought mom would live forever but, like all other children, learned that only God lives forever.

Well, my mother is gone, but on the first of November, come what may, she, with all other parents are truly remembered in our islands.


Prof. H. Harry L. Roque, Jr. is an Associate Professor at the UP College of Law and the Chairperson of the Center For International Law. This piece originally appeared in his website on October 31. We are re-posting it here with his permission.

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Obama and the future of the UN


(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on September 19, 2013) http://manilastandardtoday.com/2013/09/19/obama-and-the-future-of-the-un/

While all our attention was divided between the Priority Development Assistance Fund scam and the war in Zamboanga, we failed to give sufficient attention to an important development that could change the course of history. I am referring to President Barrack Obama’s seeming resolve to resort to unilateral use force in Syria.

I cannot help but be sympathetic to Obama’s cause. We have observed for the last two and a half years how innocent civilians have been fired upon by armed elements of the Syrian security force. While the shootings have become regular, the fact that there has not been an organized armed group opposing the Assad regime does not even make the laws and customs of warfare applicable to the conflict. The shootings have been so widespread that the  UN now estimates the death toll to have reached 100,000 since 2011, when demonstrators were first upon by  the ruling Ba‘ath government.

Now, the US President claims that in addition to conventional weapons, the Assad regime has resorted to the use of chemical weapons against its people. This was the last straw for the US President.

Unfortunately, the issue on the unilateral use of force goes beyond whether a state can intervene on humanitarian grounds. The issue in fact, is the very survival of the United Nations system, imperfect as it may be.

When countries of the world signed the UN Charter after the second World War, it was their intention to spare mankind form the “scourge” of yet another world war. The means that to achieve this was to prohibit the use of force save for two well-defined exceptions: by way of self defense, where a state is attacked and the use of force to repel it is necessary and proportional; and two, when the use of force is authorized by the United Nations Security Council as a collective security measure under Chapter 7 of its Charter.

What is material to Obama’s threat of resort to unilateral force is not the exception of self-defense, as the US has not been the object of a military attack. It is whether the use of unilateral force may be resorted to. I say unilateral the US action contemplated does not have the sanction of the Security Council.

Truth to tell, this has not been the first time that the Security Council failed to authorize the use of force. At the height of the internal chaos in Congo, it was the General Assembly, through the “uniting for peace resolution” and not the Security Council, that authorized the sending of peace-keeping forces in the Central African state to restore peace and order. Russia then vetoed or threatened to veto any resolution in the Security Council authorizing such a deployment. When the UN sought to collect from Russia its proportional contribution to the effort, Russia refused to pay,  arguing that the peacekeeping force was contrary to the UN Charter since it was created sans a Security Council resolution. The International Court of Justice ruled that Russia must pay because while the Security Council has primary jurisdiction in the maintenance of international peace, it does not have a monopoly over this.

The issue in Syria today is more serious than what happened in Congo because even the closest allies of the US, the UK in particular, have refused to resort to the use of force in contravention of the UN Charter, The issue is not whether there is a humanitarian reason to intervene, as there has been since 2011, but whether we can do away with the UN Charter today and the means envisioned by it to maintain international peace.

We do not doubt for a second that Assad and his men should be held criminally for their acts. This is why the international community has created the International Criminal Court. Neither do we deny the urgency of the humanitarian crisis at the moment. At issue, however, is this: If countries were to use force on their own, contrary to the UN charter, what would be a better alternative to the current system?

It is wrong the Russia has been blocking efforts to authorize the use of force in the Security Council against the Assad regime. But even so, the risk of countries resorting to unilateral force at their discretion is even more frightful. It may result in worse humanitarian disasters compared to those already happening on the streets of Damascus.

Moreover, if humanitarian intervention has already crystallized in international law as a further exception to the prohibition on the use of force, there is a mechanism in the UN Charter itself that may be resorted to  amend its provisions on the use of force. Absent such an amendment, any unilateral use of force would constitute an even worse threat to international peace.