Family of the victims of the Ampatuan massacre, thru counsel, filed today a Second Motion for Immediate Resolution at the NAPOLCOM. Please click here for a copy SECOND MOTION FOR IMMEDIATE RESOLUTION DUHAY et al vs PSUPT ABUSAMA MAGUID et al
Please see attached the pleadings we filed yesterday with the Supreme Court on behalf of former US Senator Mike Gravel, who wishes to intervene in the Enhanced Defense Cooperation Agreement (EDCA) proceedings.
In his younger days, Senator Gravel, collaborating with Daniel Ellsberg, was instrumental in the release of the Pentagon Papers to journalists. The Pentagon Papers showed how four presidential administrations and later, a fifth, had lied to the American people about the reasons for American involvement in the Vietnam War.
In the concluding remarks of his Petition-in-Intervention, Senator Gravel intones, thus:
“The Petitioners in the instant case are more than qualified to that task. However, Petitioner-Intervenor is qualified as a globalist, a student of international affairs, an experienced political observer, and somewhat of a constitutional scholar having devoted the last two decades of his life to the issues of human governance and their relationship to the electoral implementation of direct democracy.
The discussion above is made in an attempt to motivate this distinguish Court to render a judicial decision that will in effect transfer the deliberations on the EDCA from its secret confines to the Philippine Senate where arguments will be made in full public view. Petitioner-Intervenor hopes his arguments made above will contribute to that debate. The extreme importance to the wellbeing of Filipinos and the survivability of Philippine democracy are at stake in that debate.
This Honorable Court’s judicial decision could well set a chain of circumstances in motion that could ultimately affect the course of world affairs. In this regard, Petitioner-Intervenor is reminded of a famous statement made by the renowned sociologist Marguerite Meade: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has”.
METRO MANILA, PHILIPPINES- That was the position of Atty. Harry Roque when asked about possible repercussions of a contrary ruling of the Supreme Court regarding the Senate Resolution against the validity and effectivity of the Enhanced Defense Cooperation Agreement (EDCA).
The EDCA has been signed by Defense Secretary Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg in April last year, as part of the defense pact between the US and the Philippines. It has been characterized as an executive agreement, which supporters say is valid even without Senate concurrence. Those against it emphasize that in all respects it was a treaty, which required approval of the Senate for it to be valid.
Atty. Roque has long been opposing EDCA, and has in fact filed with the Supreme Court to declare it invalid, together with Former Senator Rene Saguisag, Dean Pacifico Agabin, and lawyers Rachel Pastores and Evalyn Ursua. Their group has now found strong political support in the said Senate resolution.
“The Santiago resolution reiterated the letter and spirit of the highest law of the land,” Atty. Harry Roque said. “An SC ruling to the contrary may render the Justices liable to impeachment for culpable violation of the Constitution.”
Senator Miriam Defensor-Santiago proposed said resolution to Senate, with thirteen other Senators concurring: Sonny Angara, Nancy Binay, Joseph Victor Ejercito, Francis Escudero, Teofisto Guingona III, Manuel Lapid, Loren Legarda, Ferdinand Marcos Jr., Sergio Osmeña III, Aquilino Pimentel III, Grace Poe, Ralph Recto and Cynthia Villar.
Sen. Pia Cayetano, while absent during the vote, signified her support for the resolution.
Senate President Franklin Drilon and Senate Minority Leader Juan Ponce Enrile abstained, while only Sen. Antonio Trillanes IV objected to it.
“Even though the SC is the interpreter of the Constitution, it cannot ignore well-defined constitutional powers of the Senate, such as giving concurrence to treaties,” Roque added.
Atty. Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, a position he has held for more twelve years. He is also a professor of Constitutional and International Law at the UP College of Law. He gave up his academic tenure to run for the 2016 elections under the party-list KABAYAN.
“While the Senate resolution is a political act,” Atty. Roque notes, “so is the act of impeachment. And that is why it is important for the SC Justices to follow the letter of the Constitution, otherwise they may be liable for impeachment.”
WHO : PRESIDENT/MAYOR JOSEPH ESTRADA and MS. NURUL IZZAH ANWAR
WHAT : PRESS CONFERENCE for the GLOBAL CALL FOR THE IMMEDIATE RELEASE OF ANWAR IBRAHIM
WHEN : NOVEMBER 9, 2015 (MONDAY) 2:00 PM
WHERE : OFFICE OF THE MAYOR, MANILA CITY HALL
The daughter of Anwar Ibrahim of Malaysia, Nurul Izzah Anwar, a member of Parliament, is arriving at noon on Nov 9, Monday, for a 2:00 PM meeting with Mayor Erap Estrada followed by a press briefing with some personalities who signed petitions for Anwar’s release. The Working Group on Arbitrary Detention of the Human Rights Council of the UN Assembly finds Anwar Ibrahim held in violation of International Law and MP Izzah is drumming up more support from Datuk Seri Anwar Ibrahim Filipino friends. We would like to invite the Press to the meeting at Manila City Hall to begin the ASEAN /Worldwide campaign to Free Anwar.
For more details please contact:
ALVIN M. SISON Media Officer
TEL NO. +632 832 3018
Metro Manila, PHILIPPINES— “This is only the first hurdle against our legal battle with China,” said lawyer and KABAYAN first nominee Atty. Harry Roque, “and we have more to come.”
Atty. Roque was referring to the Hague arbitration court’s ruling that it has jurisdiction to hear the territorial dispute between China and the Philippines regarding the West Philippine Sea.
“However,” noted Atty. Roque, “the tribunal ruled that it has jurisdiction only over seven assertions, out of the fifteen which the Philippines has submitted.”
These assertions include territories of Panatag Shoal, Ayungin Shoal, Gavin Reef and Mabini Reef, to name a few.
Seven other assertions, the Court noted, will be considered in conjunction with the merits.
“That’s what we have to be prepared for,” Atty. Roque said. “One of our strongest arguments, that China’s imaginary 9-dash line has no legal force and effect under international law, has yet to be decided by the court whether it has jurisdiction or not.”
Basing its claim on ancient title, China claims sovereignty over the entire West Philippine Sea under its proposed 9-dash line. China’s claim was articulated in the 1950s, but resurfaced only recently in 2009, when it submitted an opposition against Vietnam and Malaysia’s application for an extended continental shelf.
Since then, China has employed its ships to patrol the area and has commenced the building of artificial islands in low-tide elevations.
The Philippines, claiming that these actions constitute transgressions on national maritime territory, has since initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS).
China’s insistence on not being bound by the arbitration court has been countered by the court itself, which stated that it has jurisdiction to hear seven of the fifteen submissions by the Philippines against China.
The ruling also directed the Philippines to clarify the content and narrow the scope of its 15th submission regarding its prayer for China to “desist from further unlawful claims and activities.”
“That is why we should celebrate with caution,” Atty. Roque said. “We still have a long way to go.”
Atty. Harry Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He is now running for party-list under KABAYAN, whose main advocacies are KAlusugan (health), PaBAhay (housing) and KabuHAYan (livelihood).
While focusing on using his legal expertise in the national arena to fight for the socio-economic constitutional rights of Filipinos, Atty. Roque remains an active part on the legal battle of the Philippines in its international claims.
Reference: Atty. H. Harrry L. Roque 09175398096
Metro Manila, PHILIPPINES — “We are happy that the Philippines has won regarding the issue of jurisdiction,” said lawyer and KABAYAN first nominee Atty. Harry Roque, “but this is only the first step: our legal battle to win our case on the merits against China has just begun.”
This was after the Hague arbitration court has ruled that it has jurisdiction to hear the territorial dispute between China and the Philippines regarding the West Philippine Sea.
China claims sovereignty over the entire West Philippine Sea under its proposed 9-dash line, basing its claim on ancient title. Legal experts around the world has disputed this, stating that said 9-dash line was initially articulated by Taiwanese academics in the 50’s and was only resurrected in 2009 as part of China’s opposition to joint application of Vietnam and Malaysia for an extended continental shelf.
Because of actions by the Chinese government, including the employment of Chinese ships to patrol the area and the building of artificial islands in low-tide elevations, the Philippines has since initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS), claiming that said acts are transgressions on national maritime territory.
China has boycotted the proceedings, and while having commissioned the submission of a de facto counter-memorial, insists that it will not be bound by the outcome of the arbitration.
However, China’s assertion was countered by the Hague arbitration court itself, which held that additional hearings were to be conducted to decide the merits of the Philippines’ arguments, including the issue of whether artificial islands can be the subject of title and can generate maritime zones.
“The challenge right now is on the merits of the case,” Atty. Roque said, “and we are optimistic that we can declare the nine-dash line illegal as per the UNCLOS.”
However, added Atty. Roque, the Philippines needs to be prepared for any eventuality.
“Even if we win, we still have to think of ways and means to compel China to comply, which is easier said than done,” Atty. Roque said.
Atty. Harry Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He has given up his established academic career to pursue an elected legislative position through party-list, but remains active regarding issues of national and international importance.
“We need to conduct ourselves in a manner consistent with international law,” Atty. Roque advised. “We should implore the US to cease provocation and allow arbitration to take its course.”
The main advocacies of his partylist, KABAYAN, are KAlusugan (health), PaBAhay (housing) and KabuHAYan (livelihood), as part of the legal mandate of the State. Atty. Roque aims to use his expertise in national and international law to fight for the socio-economic constitutional rights of Filipinos, as well as support the Philippines in its international claims.
METRO MANILA, PHILIPPINES— “We should hold Indonesia liable for the haze under the Articles on State Responsibility,” said Atty. Harry Roque, in light of the deadly Indonesian haze reaching Philippine territory.
Philippine Atmospheric Geophysical and Astronomical Services Administration (PAG-ASA) had earlier issued an advisory that moderate haze is affecting the Zamboanga peninsula, and that said haze has even reached as far as Metro Manila.
The haze is caused by the intentional slashing and burning of forest land to clear the way for new plantations. Indonesia is the world’s leading producer of palm oil, as well as a leading producer of paper and pulp products.
But this year’s El Niño and the prolonged dry season have caused raging forest fires, leading to more than 500,000 cases of respiratory infections and 10 deaths from haze-related illnesses in the islands of Sumatra and Kalimantan alone.
The forest fires and inadequate government response are now being described as “crimes against humanity.”
Atty. Roque emphasized that the haze is not merely a local concern for Indonesia, as other countries, like Malaysia, Singapore and the Philippines, are now being affected by it.
“Under international law, Indonesia is liable under the Articles on State Responsibility,” Atty. Roque said. “Clearly this is a breach of Indonesia’s international obligation to keep its environment and economic activities in check. It has sanctioned for too long the burning of its forests to the detriment of everyone.”
Atty. Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He has given up his established academic career to pursue an elective legislative position.
One of the main advocacies of his party-list, KABAYAN, is KAlusugan (health), as part of the legal mandate of the State, including housing and livelihood.
Atty. Roque aims to use his expertise in international law to fight for socio-economic constitutional rights of Filipinos.
“Establishing liability will compel Indonesia and Malaysia, as frequent sources of haze, to be more vigilant against allowing their territories to be used in a manner injurious to other countries, especially the Philippines,” Atty. Roque said.
The 2009 Bilateral agreement between the Philippines and China signed by then DFA Sec. Alberto Romulo, which accorded Chinese consular officials full immunity is constitutionally infirm. Such an agreement which provides for full immunity where international law only accords functional immunity is a new national policy and requires therefore the concurrence of the Philippine Senate. A DFA Secretary has no power to limit the applicability of Philippine laws for crimes committed in the Philippines. Only Congress can do this which is why the Constitution provides that no treaty shall be valid and binding in the Philippines without the concurrence of 2/3 votes of all the members of the Senate.
The 2009 accord illustrates why the executive’s position that any and all executive agreement do not require concurrence of the Senate is wrong.
Atty. Harry L. Roque (UP College of Law International Law Professor and First Nominee, KABAYAN Party-List):
The recent shooting incident involving Chinese consulate officials in Cebu City should be investigated and prosecuted by Philippine authorities.
Consular officials, under the Vienna Convention on Consular Relations, do not enjoy full immunity. They only enjoy functional immunity or such immunity as may be required so that they can perform consular functions properly. These functions are mostly commercial in nature. The shooting incident in Cebu was a breach of Philippine penal laws and should be investigated and prosecuted as an ordinary crime
Reference: Atty. Harry L. Roque, Jr. 09175398096
People should not vote for him and his kin. But then again, in places like Maguindanao, if it is not the Ampatuans, it will just be another feudal family. That is why I am running under a party-list committed to the progressive realization of economic, social and cultural rights. It is only through the implementation of these rights that we can break the feudal hold of warlords in provinces like Maguindanao.
This will be my last column. In the same way that I had my last lecture as a full-time academic at the Malcolm Hall, UP College of Law last Monday, let me share here my reflection on being a full time academic. I never intended to be one. This is because my mother was a full-time academic, initially at the University of the Philippines. I saw how despite the prestige, my mother was doomed to a life of poverty. This prompted her to seek greener pastures abroad, even at a very high social cost of being separated from us. She retired as an academic from the University of Chicago and, as fate would have it, we were finally reunited by reason of her sickness during her final four years.
Much as I was attracted to a teaching career, inspired by the likes of Perfecto Fernandez, Justice Cuevas, Justice VV Mendoza, Merlin Magallona, and Dean Pacifico Agabin, all of whom taught law in a truly “grand manner,” I suppressed this attraction.
It was not until my 10th year of specialized law practice in WTO Fair Trade litigation when I finally succumbed to the seduction of legal education. The invitation to teach international law was made by then Dean and now Judge Raul Pangalangan who, until today, remains one of my mentors.
Fifteen years later, I end my career as a full-time academic. I do so with sadness, even if I am certain that it is for the correct reasons. I am most thankful for the link between my teaching and my scholarship. I have today no less than 30 journal articles, 2 books off the press, and a further two, which will be submitted under the UP Centennial Book series.
It was my teaching too that inspired my filing of many public interest litigation before the Supreme Court. It was my pioneer class in 2001 that was responsible for the case of Pimentel vs. Executive Secretary that unsuccessfully sought to compel the submission of the certified true copies of the ICC Rome Statute to the Senate for the latter’s concurrence. While the students and I lost a battle when we lost the case—where CJ Puno, with all due respect, erroneously ruled that treaty making was an exclusively executive function—we have since won the war since all the grounds which we invoked as basis for the ministerial transmittal of the Rome Statute to the Senate were also the exact same reasons why the Philippines acceded to the Rome Statute, albeit nine years later, in 2010.
Likewise, I am happy to note that the entire corpus of judgments that the SC has promulgated on the meaning of a “treaty” in the context of whether foreign funded projects should comply with our government procurement act, specifically on its provision on public and competitive bidding, were cases arising from my class discussion on Treaties as an element of statehood. I am even happier to note that the most recent ruling on Northrail, where the Court ruled that a treaty is a written agreement entered into by states in connection with a sovereign function, finally corrected the erroneous ruling of the Court in my first case on this topic in the case of Abaya vs. Executive Secretary which the GMA administration invoked as legal basis for the anomalous contracts of NBN-ZTE and Northrail.
It was also my teachings in Constitutional Law two that gave rise to landmark jurisprudence such as David vs. Arroyo, Cacho-Olivares vs. Arroyo, and the UN Human Rights Committee View in Adonis vs. Republic of the Philippines.
Which brings me now to why I say goodbye to this opinion column. Perhaps the best reason is by citing one of the most important case that I argued and lost in the SC representing my greatest mentor in public international law: Dean Merlin Magallona. In the case of Magallona vs Executive Secretary, we impugned the constitutionality of the 2009 Philippine Baselines Law for violating Article I of the 1987 Constitution, which classified our archipelagic waters as internal waters. The 2009 Baselines Law re-classified our constitutional internal waters as archipelagic waters under the UNCLOS subject to innocent passage, over flight and the regime of straights passage. SC Justice Antonio Carpio, in dismissing the petition, said that the matter was not justiciable since it involved an issue of wisdom of the law. It was an issue of policy and hence, the constitutional domain of Congress.
To my dear readers, I say goodbye to you today precisely because policies—such as whether to do away with 220,000 square kilometers of territorial seas, which we abandoned when Congress enacted the 2009 Baselines Law—should be made with full knowledge of the law and with utmost nationalism, rather than on the basis of political accommodation. Further, economic, social, and cultural rights can never be implemented by jurisprudence, but by policies crafted by Congress.
And so I formally announce that I am seeking a congressional seat as the first nominee of the party list KABAYAN that stands for Kalusugan Pabahay at Kabuhayan. I offer myself to our people as a member of Congress on a platform to promote and protect not just political and civil rights, but more importantly, Economic, Social, and Cultural Rights.
I am blessed to have served Philippine society with the view from Malcolm Hall. It is my fervent hope that our people grant me the privilege to serve them with a seat and a view from Batasan Hall.
Please continue to follow me at my blog (harryroque.com), twitter (@attyharryroque), and FB accounts.
Reference: Atty Harry L. Roque 09175398096
UP Law Professor and Activist Lawyer Harry Roque filed today his Certificate of Nomination as first nominee of KABAYAN (KAlusugan, paBAhay, kabuhaYAN) , a multi-sectoral party list dedicated to the promotion of the economic rights of heath, housing and livelihood.
“I have devoted 35 years of my life using the law as a tool for the protection of Political and Civil Rights. Truth though is much as we have had many gains by way of jurisprudence, public interest litigation cannot address the root causes of of why our political and civil rights are violated. 35 years later, the problems remain the same; poverty, lack of livelihood, lack of housing, all of which lead to lack of hope,” Roque added.
Roque will run with his former law students as nominees of the KABAYAN. Roque is counsel for media victims of the Maguindanao massacre and for the family of Jennifer Laude.
He has successfully argued such cases as David vs. Arroyo, Ninez Cacho-Olivares v. Juan Miguel Arroyo, Salonga vs. Executive Secretary and most recently, challenged the constitutionality of the Cyber-crimes Act of 2009. He also procured a view from the UN Human Rights Committee that Philippine Criminal Libel Law is inconsistent with freedom of expression.
Roque is a graduate of the University of Michigan, the UP College of Law, and the London School for Economics and Political Science.
Click here for the KABAYAN flyer 1
Notice for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096
After 15 years of being a law professor at the UP College of Law, Professor Harry L. Roque will be delivering his final lecture as a full-time academic this coming Monday, October 12 from 9 a.m. to 12 noon at the Malcolm Theater, Malcolm Hall, UP College of Law.
The lecture will be on “Criminal Jurisdiction under the Expanded Defense Cooperation Agreement: Customary International Law or under the VFA?” His last lecture will be delivered as the holder of the Manuel and Luz Chan Professorial Chair.
Professor Roque is inviting all his former students for the last 15 years, his colleagues in the academe and in the parliament of the streets, and the general public to the lecture. He is expected to announce his political plans after the lecture.
Reference: Professor Harry L. Roque, Jr. 09175398096
Professor Harry L. Roque’s statement on the decision of the UN Working Group on Arbitrary Detention in favor of GMA:
It is sad that this administration has once again shown that it is inept both in the field of human rights and criminal prosecution that resulted in the UN siding with former President Gloria Arroyo. The decision is an indictment of this administration’s ignorance of human rights law. Hopefully, President Noynoy Aquino’s rights will be respected when it is his turn to be prosecuted for DAP and the Malampaya scam.
I was recently interviewed by a radio station on the applicability of the Anti-Wiretapping Law on a cellphone video showing a Metro Manila Development Authority traffic enforcer attempting to fleece money —“tongpats”—from a female driver. This is the second time I was asked for my opinion on the applicability of the law. The first was when then-Justice Secretary Gonzales threatened media outfits with criminal prosecution for violation of the said law should they air the so-called Hello Garci tape.
My answer remains the same: since criminal laws are construed strictly, the law must be applied literally. Since the 1965 law’s coverage is limited to “dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder,” a cellular video, not being among those enumerated in the law, should be excluded from its coverage.
This is not a personal opinion but based on jurisprudence. In Gaanan vs. IAC and People of the Philippines, the issue was whether the law covered the recording of a telephone conversation through a telephone extension. The Supreme Court ruled that it was not:
“An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts.”
Moreover, the strict interpretation given by the court the phrase “device or arrangement” is pursuant to the rule that criminal statutes shall be construed in favor of the accused. Said the Court: Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase “device or arrangement,” the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:
The rationale for this, according to the Court quoting from American jurisprudence, is “to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.” “The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts.”
In any case, rather than chilling the people from exercising their inherent right to freedom of expression, government should be encouraging the citizenry to use new technology to run after corrupt officials. This is now an ongoing project of the American Bar Association in encouraging the use of social media as evidence. They have in fact developed an application where cellular data, photos and videos, could be utilized as evidence in court. We should replicate this initiative given that we have the highest penetration for Facebook and among the highest penetration for Twitter.
Under our existing rules on electronic evidence, such videos may be used provided the person who took the video authenticates it. Ergo, even without the application developed by the ABA, the female driver who took the video of the MMDA traffic enforcer can already use her video as evidence for extortion.
The problem again is not the availability of rules, but the lack of political will to implement our existing laws. In fact, the problem in this particular instance is the fact that the MMDA chief, instead of investigating his men, is instead, shielding his men from investigation and prosecution. On second thought, what can we expect from the same man who treated women as sex objects and as commodities to be given by way of political patronage in Laguna? Given the resolve of this administration to control both Houses of Congress in the upcoming elections, we surely have a preview of what kind of Congress we will have soon.
* * *
After 15 years of being a law professor at the UP College of Law, I will be delivering my final lecture as a full-time academic this coming Monday, Oct. 12 from 9 a.m. to 12 noon at the Malcolm Theater, Malcolm Hall, UP College of Law.
The lecture will be on “Criminal Jurisdiction under the Expanded Defense Cooperation Agreement: Customary International Law or under the VFA?” My last lecture will be delivered as the holder of the Manuel and Luz Chan Professorial Chair.
I have invited all my students for the last 15 years, my colleagues in the academe and in the parliament of the streets, and the general public. It will be my last lecture as a full-time academic because the Omnibus Election Code provides that I will automatically be resigned from my post in UP when I file my nomination as first nominee of KABAYAN party-list.
My column next week will also be my last in this newspaper. It will be my final column for the time being. I will bid farewell next week.
Metro Manila, PHILIPPINES— “The Internet is a human right,” said Professor Roque, “and the Government has a duty to make sure that Filipinos get what they deserve, especially when they’re paying for it.”
Professor Harry Roque Jr. said this amidst netizens constantly expressing their anger and disgust over the expensive yet spotty internet connection in the country. Roque is a professor of Constitutional Law at the UP College of Law and the Director of the Institute of International Legal Studies.
The Philippines is lagging in Asia and the world in terms of Internet speed. The average global Internet speed is 24.2 mbps (megabytes per second). In stark contrast, the Philippines gets a miserly 3.7 mbps.
The National Telecommunications Commission signed a memorandum in August of this year redefining broadband services, setting the minimum broadband speed at 256 kpbs (kilobytes per second). Failure to render this service 80% of the time, roughly 24 days per months, will result to administrative sanctions.
But for Prof. Roque and a huge number of netizens, this move was insufficient. Good service is still lacking.
“The United Nations, way back in 2011, recognized access to the Internet as a human right,” he added. “More than that, it is an enabler of rights, including the right of the freedom of speech, and the right of freedom of assembly, both of which are guaranteed under the 1987 Philippine Constitution.”
“Poor access to the Internet also impedes development, which is against the principles and state policies under our Constitution,” he stressed.
Centerlaw Press Release
For reference: Atty. Harry L. Roque Jr. 09175398096. Atty. Romel R. Bagares 09328798422 and Atty. Gilbert Andres 09228952111
Lawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.
One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.
More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”
“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”
Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.
“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).
The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.
“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.
“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.
He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia. “But it is important that cases are filed to have an historical record of wrongs brought to court.”
Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.
“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.
Delegates from Myanmar also highlighted their “Yellow Ribbon campaign” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .
Click here for a copy of the CEBU DECLARATION
Courtesy of live streaming, many of us were able to listen to the oral arguments in the Senate Electoral Tribunal that is hearing the quo warranto petition that seeks to expel Senator Grace Poe from the Senate. The lone ground to be addressed by the Tribunal is a legal issue: Is Grace Poe, as a foundling, a natural-born Filipino?
My views on this issue have been published in this column before. She is not a natural-born Filipino because under the 1935 and the 1987 Constitutions, only those whose fathers or mothers are Filipinos are classified as natural-born Filipinos. Unless Poe can pinpoint either of her biological parents as a Filipino, she does not meet the qualification to run for the post of senator or president.
Critics of my view cite a provision in the 1961 Convention to Reduce Statelessness that allegedly gives foundlings a “presumption” to be a natural-born Filipino as a ‘general principle of law.” I have highlighted the fact the 1961 Convention is not customary international law since it only has 63 state parties out of 197 states today. To be customary, there must be virtually uniform state practice. The fact that only a minority of states today have ratified the said convention belies the existence of this element.
I feel vindicated that despite the “expert views” of those who have never taught nor studied international law,” the Justices who are members of the SET appear to share my view. Is this not discriminatory against foundlings? Certainly! But so is the constitutional rule that only natural-born Filipinos can stand for the offices of members of both Houses of Congress and for the top executive posts of the land. The rule in fact is discriminatory against those who acquired their citizenship through naturalization. Dura lex. Sed lex. The law might be harsh but that is the law. The remedy is for the sovereign people to amend the Constitution and do away with the discrimination against naturalized Filipinos.
It too was not surprising that some senators who are members of the tribunal appear to view the issue along partisan lines. Poe’s supporters, such as Senators Pia Cayetano, Loren Legarda (both of whom are from the Nacionalista Party) and Senator Tito Sotto asked questions that were sympathetic to Poe. On the other hand, presidential cousin and LP Senator Bam Aquino appears to favor the Justices. Surprisingly, only Senators Cynthia Villar and even Nancy Binay appear to have open minds on the issue. This is hardly surprising as precisely, the people, while it mandated the SET to be the SOLE judge of all questions involving qualifications for the post of senators, agreed that there should be at least three Justices of the Supreme Court sitting in the tribunal who are expected to resolve disputes according to the Constitution and under existing laws. Senators should heed the warning of the Supreme Court in the case of Lerias vs. Mercado: “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity.”
I am pleasantly surprised at the performance of the lawyer Luna, counsel for David. While apparently no match to the great Alexander Poblador, magna cum laude graduate of the UP College of law, he seemed to have stood his ground firmly and only showed signs of buckling down after two hours of intense questioning. Bravo to him! Anent my former boss Alex, well, he is truly one of the greatest legal minds in this country. Unfortunately, the law on the matter simply was not to his favor.
I make two further observations. One on the statement of Senate President Franklin Drilon that the Supreme Court would ultimately sit as judge of Poe’s eligibility; and two, the scathing remarks of Poe’s supporters against Senior Justice Antonio Carpio.
On the first, Senator Drilon is wrong that the Supreme Court is the ultimate judge of a senator’s qualifications. Under our Constitution, it is the Senate Electoral Tribunal which is the “sole judge of all contests relating to the election, returns and qualifications of their members”. Here, I can only think of one case where the Supreme Court disturbed the ruling of an Electoral Tribunal, which is the Lerias case. In that case, Justice Isagani Cruz in his dissent deplored the obvious partisan voting of the politicians who were members of the House of Representatives Electoral Tribunal: “It becomes only too obvious then that by sheer force of numbers; by overturning, at the post-appreciation stage, the rulings earlier made by the Tribunal admitting the claimed ballots for Protestant Lerias; by departing from the interpretation of the neighborhood rule heretofore consistently followed by the Tribunal; by injecting `strange jurisprudence,’ particularly on the intent rule; the majority has succeeded in altering the figures that reflect the final outcome of this election protest and, in the process, thwarting the true will of the electorate in the lone district of Southern Leyte.”
It is clear that absent such obvious partisanship, the Supreme Court will honor the textual commitment of the Constitution that the Electoral Tribunals shall be the “sole Judge “ of all electoral contests in both houses of Congress.
Anent the attacks on Justice Carpio who, in the 20 or so times I have argued in the Court, has proven to be most cerebral of all our justices, I can only tell Poe and her supporters that he is an upright and acknowledged individual who has never hidden his ties with ‘The Firm’. They should have moved to inhibit him at the onset, and not now, after he has issued his statement. Moreover, if pre-judgment is the ground for inhibition, then Senators Cayetano, Legarda and Sotto should also inhibit themselves because they too have shown their pre-judgments in favor of Poe.
I may have doubts about the judicial system in this country. Thus far, though, the SET appears to have proven me wrong.
QUEZON CITY, PHILIPPINES— “Drilon is wrong.”
Professor Harry Roque Jr. said this regarding Senate President Franklin Drilon’s statement that the issue of Grace Poe’s citizenship which the Senate President said will be finally decided by the Supreme Court .
“Under our Constitution, it is the Senate Electoral Tribunal which is the sole judge of all contests relating to the election, returns and qualifications of their Members,” Roque stated, citing Article VI, Section 17 of the 1987 Philippine Constitution.
Roque is a professor of Constitutional Law at the UP College of Law and the Director of the Institute of International Legal Studies.
“The Supreme Court can only look into decisions of the SET when there is evidence of collusion or fraud among the members of the SET,” he added. “Absent any showing of that, the Supreme Court cannot overturn the decision of the SET.”
Roque cited the case of Lerias vs. Mercado where the Supreme Court ruled: “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity”.
In effect, he said, the SC has no “final say” in the Poe case, as opposed to Drilon’s statement.
Professor Roque also criticized the supporters of Poe when they questioned Justice Antonio Carpio’s recent statement that Poe is a naturalized citizen. Justice Carpio, current chair of the SET, stated that Poe must prove blood relations to Filipino parents in order to show that she is a natural-born Filipino.
“There is a principle of international law that every state must avoid statelessness, and there is also a principle that every person has the right to acquire citizenship,” Carpio said. “We avoid statelessness, give the foundling citizenship. But it is under 5 [Section 5, Article 4 of the 1935 Constitution]: that a foundling is a citizen, but naturalized.”
Poe supporters criticized the ruling, and some have ventured that Carpio’s decision was a conflict of interest, being a former law partner of Atty. Avelino Cruz, currently the lawyer of Liberal Party standard bearer Mar Roxas.
Prof. Roque bristled at the thought.
“Justice Carpio is an upright and acknowledged individual who has never hidden his ties with ‘The Firm’,” Prof. Roque said. “They should have moved to inhibit him at the onset, and not now, after he has issued his statement.”
“Now that the tides are not in their favour, they start questioning him,” Roque said. “In truth nothing will satisfy Poe unless the SET decides in her favour.”
References: Atty. Harry L. Roque, Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111
Click here for a copy of the URGENT APPEAL OF FILIPINO FISHER FOLKS AGAINST CHINA.doc filed today at the Office of the High Commissioner for Human Rights (OHCHR). This concerns the Filipino fisher folks of Infanta, Pangasinan, and of Sta. Cruz, Zambales.
Please contact the reference persons above for inquiries or clarifications.
Reference: Atty. Harry L. Roque Jr. 09175398096
Authorities should not stop at the recent arrest of the Reyes brothers in Phuket, Thailand over the murder of environmentalist Dr. Gerry Ortega but should ensure that justice is meted out to the guilty, including those who plundered the Malampaya funds, according to the Center for International Law.
“We’re hoping for justice for Dr. Gerry Ortega’s family and for the country,” said Prof. H. Harry L. Roque, chair of the Center. “All those who plundered the Malampaya funds should also be prosecuted and Palawan should be given its lawful 40 percent share from all of the gas well’s revenues.”
Roque served as counsel for the Ortega family in the murder case against former Palawan governor Joel Reyes and his brother Mario, a former mayor, until it was filed in court. He is also counsel for the Kilusan Love Malampaya (KLM), a Palawan-based civil society group and residents of Palawan who had filed a petition in the Supreme Court to compel the National Government to give to the province a 40-percent share in the proceeds of the Malampaya gas wells as provided in the Local Government Code.
It has been pending with the High Court since it was filed nearly seven years ago.
Ortega, one of the prime movers behind KLM, had been a staunch critic of the role of the Palawan provincial government – then headed by Joel Reyes as governor – in the handling of the funds from the gas wells.
He was gunned down near his veterinary clinic on Jan. 24, 2011.
The Malampaya funds were among the government coffers raided by the alleged pork barrel scam mastermind Janet Lim Napoles.
Filipino fisher folks, from the municipality of Infanta in Pangasinan province, who used to fish near the marine-resource rich fishing grounds of Scarborough Shoal (known locally as “Bajo de Masinloc” and also as “Panatag Shoal”) will file an urgent appeal to the United Nations in relation to the massive and gross human rights violations committed against them by the state agents of the People’s Republic of China. Members of the Chinese coast guard have repeatedly turned away Filipino fishermen from fishing near the disputed shoal and this has led to heavy economic losses for the fishermen.
The petition filing will be preceded by a forum today 22 September 2015, Tuesday, from 9:00 am to 12 noon, at the Pangasinan State University, Infanta Campus. The forum will be led by Infanta fisher folks, officers from the Pangasinan State University, UP Institute of International Legal Studies (IILS), Centerlaw and other stakeholders in the province.
References: Atty. Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111
Filipino fisher folks, from the municipality of Infanta in Pangasinan province, who used to fish near the marine-resource rich fishing grounds of Scarborough Shoal (known locally as “Bajo de Masinloc” and also as “Panatag Shoal”) will file an urgent appeal to the United Nations in relation to the massive and gross human rights violations committed against them by the state agents of the People’s Republic of China. Members of the Chinese coast guard have repeatedly turned away Filipino fishermen from fishing near the disputed shoal and this has led to heavy economic losses for the fishermen.
The petition filing will be preceded by a forum on 22 September 2015, Tuesday, from 9:00 am to 12 noon, at the Pangasinan State University, Infanta Campus. The forum will be led by Infanta fisher folks, officers from the Pangasinan State University, UP Institute of International Legal Studies (IILS), Centerlaw and other stakeholders in the province.
I was at UP Los Baños on Tuesday and I want to set the record straight about reports that Vice President Jejomar Binay was booed during his appearance.
Yes, there were some students outside the lecture room who gave the VP the thumbs down when he entered the venue.
Yes, the students asked tough questions about political dynasties, human rights and political ads.
But while the response of the students indicated that they were not in accord with the VP’s answers, it was hardly what one would call “jeering.”
I too disagree with the VP on the issue of political dynasties. His belief though is that in a democracy, the electorate should be given a choice. The problem, he said, is bad governance and not dynasties. To me, the matter appears moot since much as we want an anti-dynasty law, the fact is that an overwhelming number of legislators are from political dynasties. This makes the matter of legislating against dynasties a political impossibility.
I might run for Congress precisely to improve the odds of passing one. For now, with the Aquino dynasty entrenched in power, it would be an impossible task. Note though that despite his views on the matter, the VP conceded that he has no choice but to follow the law if one against dynasties is in fact passed.
The VP easily answered the matter of the killing of Lumad and others. He simply repeated a fact: that is, of all the presidential hopefuls, it was only he who is a recognized human rights defender being the founder of the lawyers group MABINI.
The students though attempted to pin him down on what he has done to promote human rights as part of this administration. Binay replied with a constitutional reality: as VP elected from the opposition party, he was not technically part of the administration. The truth too, according to him, is that while he was given the housing portfolio, he could not address violations of political and civil rights under this portfolio. Besides, he opined that the only function of the Vice President is really that of spare tire. This appears to be the harsh reality of constitutional powers.
Anent corruption, again, given his limited constitutional powers, all that he could do was to ensure that the housing agencies under him: NHA, Pag-Ibig, and the HUDCC—were not hubs of corruption. With the likes of lawyer Darlene Berberabe in these offices, not one of the students could question the VP’s submission.
Perhaps the best that happened at UPLB was that contrary to Malacañang trolls’ predictions that the VP would be a no-show, he did go. Moreover, the trolls predicted he would not answer questions; he did so from 2:30 to 6 p.m., an hour longer than the organizers reserved the theater for.
This proves what the VP has been saying all along: that he would answer the proper questions in the proper forum. In this instance, it was before the Iskolar ng Bayan in the UP system and not in the venomous premises of the Senate where our Senatongs lord it over.
I did notice though that the Maoist Reaffirmists (RAs) among the student body appeared to prefer Grace Poe to Binay. This, I cannot understand. It seems to me that the barest minimum of all qualifications for the post of president is loyalty and patriotism to this country. How can our leftist young people support one who had previously renounced her Filipino citizenship and took an oath of allegiance to colonial America? I am reminded of Aguinaldo, Paterno and Buencamino who during the Philippine-American war were only too eager to be assimilated into America’s bosom.
What has happened to our young revolutionaries? How can they go for America’s anointed one under any circumstance?
I do not know who ultimately will be chosen by our people to lead in 2016. In my book, Poe is the least deserving because she took an oath that she “will absolutely and entirely renounce and abjure all allegiance and fidelity to the Philippines” and has opted instead to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic”. Worse, she swore even “to bear arms on behalf of the United States when required by the law” and that she undertook this obligation “freely, without any mental reservation or purpose of evasion”.
At the very least, if she professes loyalty anew to this country, she certainly can no longer be trusted.
So to the student revolutionaries of UPLB: how can you?
This post first appeared at http://manilastandardtoday.com/2015/09/17/binay-at-uplb/
MANILA, PHILIPPINES— “Investigate and follow the proceeds of the Sabah sell-out!”
This is the strong recommendation issued by Professor Harry Roque Jr. regarding the issue of the US$750 million which Malaysia has allegedly given to a number of government officials to gain control of the long-disputed territory.
Earlier, a Filipino lawyer claimed that Malaysia will spend as much as US750 Million dollars as lobby money for the Philippine governemen to enact the Bangsamoro Basic Law (BBL)
“If this report is true, this constitutes Malaysia’s interference in our domestic affairs which is a violation of international law,” Prof. Roque added. Roque is a professor at the UP College of Law and the Director of the Institute of International Legal Studies.
The Eastern part of the state of Sabah is disputed territory between the Republic of the Philippines and the Federation of Malaysia. Formerly known as North Borneo, the Philippine claim is based on its representation as the successor state of the Sultanate of Sulu, claiming that despite its lease to the British North Borneo Company in 1878, said territory has never been relinquished. Malaysia asserts that the territory was ceded to it by virtue of the 1878 agreement, and further that the Sabah residents exercised their right to self-determination when they decided to join in the formation of the Malaysian Federation.
Annually, Malaysia issues 5,300 ringgit (US$1710 or 77,000 Philippine pesos) to the heirs of the Sultan of Sulu via its embassy in Manila, claiming that said fee is for cession. The Sultan’s descendants maintain that the aforementioned payment was for rent, and that the lease agreement actually expired in 1978.
“We have so much wealth in Sabah na dapat tayo ang nakikinabang,” Princess Jacel Kiram, daughter of Sulu Sultan Jamalul Kiram III, said. Kiram claims that Sabah earns for Malaysiia at least US72 Billion dollars annually
In early 2015, treason charges were filed against President Aquino, some members of his Cabinet members and Moro Islamic Liberation Front (MILF) leaders for supporting the Bangsamoro Basic Law which they claim seeks only to benefit the MILF. The case is stillpending with the courts. Complainants in the treason case alleged that the passage of the BBL was in exchange for the Philippines dropping its claim to Sabah.
“The Anti-Money Laundering Council has a duty to investigate this claim,” Prof. Roque concluded. “The transfer of this huge amount of money should not have gone unnoticed by the AMLAC. Where is their freeze petition now? They were so quick to file for one against the leader of the opposition, VP Jojo Binay.” Roque lamented that AMLAC’s failure to act on this report is yet another evidence of selective justice in this country.
Malaysian politics has been in disrray since media reports confrmed that Malysian Prime Minister Razak has US $750 million in his personal account.
Click below for the copy of our “Motion to Suspend Bureau of Customs Chief Alberto Lina” filed yesterday at the Office of the Ombudsman :
Click here for a copy of the Motion for Preventive Suspension against BOC Lina
References: Atty. Joel R. Butuyan 09175229613 and Atty. Harry L. Roque Jr. 09175398096
Omniprime Marketing Inc., the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system, will file a “Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina” at the Office of the Ombudsman today, Monday, 14 September 2015, at 2:00 pm.
(Please note that Atty. Harry Roque, counsel for Omniprime, is currently in Olongapo for the Jennifer Laude trial and would be unable to attend this filing at the Ombudsman.)
It is unfortunate that the upcoming elections have made Filipinos blind to and unable to appreciate fast-developing world events.
The first is the deteriorating threat to international peace in Syria.
Trouble started in 2011 when as a result of the so-called Arab Spring uprisings, Syrian civilians turned to civil protests in demanding the resignation of the country’s President Assad. The world was shocked when in response thereto, the Assad regime ordered its troops to open fire at the protestors leading to an estimated casualty of at least 100,000. It took about a year before soldiers deserted the country’s armed forces to form an organized armed group to resist the Syrian government. Today, there’s a full-blown civil war in Syria with the USA and the UK belatedly deciding to finance and arm the country’s resistance movement.
Matters turned for the worse when the Islamic State of Iraq and Syria (ISIS) joined the armed fray. Meanwhile, the United Nations Security Council has thus far been paralyzed from dealing with the Syrian situation because Russia, a permanent member of the Council, has vetoed and threatens to veto any future resolution authorizing collective security measures.
Further trouble is brewing in Syria with the recent decision of the United States to directly conduct military operations against the Assad government. Russia, meanwhile, has decided to extend military assistance to the same government, purportedly to assist the latter in fighting the ISIS. So while Mar Roxas does an epal stunt here in Boracay where the country’s local councilors are having their convention, and while Grace Poe is unabashedly playing hypocrite, pretending to be still undecided about running for the presidency when Chiz Escudero has obviously decided on the matter, the situation in Syria has reached alarming proportions. It might lead anew to open military confrontation between traditional rivals: the United States and Russia.
Meanwhile, closer to home, our Malaysian neighbors, having learned and obviously deriving inspiration from us, are on the streets demanding the resignation of Prime Minister Najib Razak. One account has it that even former Malaysian Prime Minister Mahathir was shocked to hear that the current PM has a cash deposit amounting to US$750 million! When queried about this, Razak said that this cash was: “intended for the Philippines.”
Huh? And for what purpose? Princess Jacel Kiram, who should be elected senator in 2016, posits that it must be to buy political support for the BBL!
This is not the first time that foreign money is said to have entered the country to finance the passage of the BBL. Veteran reporter Christine Herrera reported earlier in this newspaper that a Chinese fugitive was supposed to deliver hundreds of millions of dollars to members of the House of Representatives to pass the BBL. While this was denied by the administration, the fact remains that the Chinese fugitive was deported and presumably, no money found its way to Congress. Could this be why despite the BBL being this administrations topmost legislative priority, the proposed law has not seen the light of day? If so, thank goodness for freedom of the press. Obviously, it was Herrera’s world-class investigative journalism that pre-empted what could have been literally a sale of our country’s territory.
So what have the ‘presidentiables’ said about these developments? I can assure you that Vice President Binay would get a thorough briefing from me on the implications of these current events to the country. How the possible military engagement in Syria may, for instance, lead to a spike in world prices of oil, how it is bound to result in further depreciation of the peso as investors rush to hang on to the US dollar and other currencies considered as safe havens; and how non-aligned nations should insist that all players to the conflict should adhere to the UN Charter in resolving the ongoing disputes in Syria, both as it relates to the atrocious Assad regime and the ISIS.
On the other hand, I will also brief VP Binay on the need to call for the continuing protection of human rights in Malaysia, as the country is witness to its biggest civilian protests. While the corruption of Razak is an internal matter, the fact that his dirty money is somehow linked to us here in this country is a matter, which should be investigated fully. What has the Anti-Money Laundering Council done on this much-publicized statement of Razak? And yes, since the protection of human rights is a concern for the entire international community, the Philippines should be vocal in calling that the right of the protestors, including the right of Malaysia’s main opposition leader Anwar Ibrahim, should be protected.
Meanwhile, expect the advisers of both Roxas and Poe to continue just engaging in everyday politics. I don’t know about you: but I’ve had enough of both the so-called crooked “daang matuwid’ and the imported “bagong umaga.”
I was shocked when Noli De Castro woke me up last Monday to inquire if there was truth to a newspaper report that the Laude family had asked for P36 million and six US visas as settlement for the murder case against Joseph Scott Pemberton. Pemberton had rested his case last Tuesday with the presentation of his third and last witness, Dr. Raquel Fortun. The defense asked and was granted time to file their written offer of evidence and the prosecution was give an even time to comment thereto. Thereafter, the court granted what really is an optional oral summation on September 14 and set the promulgation of the case on December 14.
I was shocked because with the defense resting their case, it is now a legal impossibility for the family to accept a settlement, even if it wants to. Unlike the previous case of “Nicole” for rape, which could legally be settled, the case versus Pemberton is for murder and can no longer be settled after plea-bargaining because murder is a felony committed against the state.
I do concede that the practice in reality is different from the theory. Criminal cases are settled all the time with private complainants executing affidavits of desistance claiming that the filing of the case was due to a “misunderstanding”. Such was the case with “Nicole” who even belied the fact that she was raped. Naturally, the prosecutors would be compelled to move for dismissal, but not because of the settlement. The ground would be in the absence of a complainant; there would be an impossibility to prosecute. The exceptions to the prohibition on settlement in criminal cases are private crimes such as rape, which can even be settled if the accused should marry the offended party; and “quasi-crimes”, because they are felonies committed not because of criminal intent but because of recklessness or negligence.
Murder, I reiterate, cannot be settled beyond the plea bargain stage.
Even the Rules of Court provision on plea bargain is new. It was not in existence 25 years ago when I was in law school. The rule against compromising criminal cases was absolute when I took up my criminal procedure under the late Justice Serafin Cuevas. I supposed it was introduced as a means of facilitating settlements but subject to the concurrence of two conditions: one, the private complainant must consent, and two, there must be a plea to a lesser offense. The latter condition means that the accused must be convicted of a crime despite the extinguishment of the civil liability.
I am not unmindful that as a private prosecutor, I could suffer the same fate as my law school classmate Evalyn Ursua, private prosecutor for “Nicole”. One fine day, Evalyn found herself fired by Nicole and substituted by another lawyer who signed the affidavit of desistance together with “Nicole”. The possibility is even more pronounced since we have the same City Prosecutor as in the Nicole case; and worse, the counsel of Smith is now Undersecretary of Justice designated as in-charge of the Laude prosecution. The difference though is Jennifer is dead and cannot sign an affidavit of desistance. Moreover, unlike Evalyn who, as our class valedictorian, is far more reserved and academic in her actuations than me; I will be very clear: I will move for the disbarment for any lawyer, private or public, who will talk directly to my clients for any compromise of the Laude case. If Evalyn was more reserved in the manner by which she dealt with the counsels of Smith, expect no such reservations for me. I will scream and kick and will give any such unethical lawyer what they truly deserve: to be purged from the roll of attorneys.
On another issue, I was not surprised that the Iglesia ni Cristo ended their five days of mass protest after “they have come to terms with government”. I was vocal against what I saw was a violation of their freedom of religion precisely because I was sure that a terribly unpopular administration would have to strong-arm the Iglesia into supporting its slate in the upcoming 2016 elections. I am sure that Mar Roxas and Leila De Lima got what they wanted.
I do not take this decision against the INC. I completely understand their predicament. The guarantee against state interference in church affairs exists precisely because governments will always attempt to infringe on it. I am only hoping that after 2016, the INC can call it quits with PNoy and his cohorts and can join the nation in henceforth demanding accountability and good governance from the future government.
Had PNoy’s cohorts allowed the legal system to work, the issue that should have been resolved by the Court is whether the internal disciplinary procedures of the INC was consented to by one of its high-ranking ministers and hence, covered by the principle of benevolent neutrality. As it stands, PNoy’s machinations deprived us of what could have been another important INC contribution to our jurisprudence on freedom of religion.
This post first appeared in http://manilastandardtoday.com/2015/09/03/laude-no-deal-/
Please click the link below for a copy of the “PETITION FOR CERTIORARI AND PROHIBITION [With Prayer For The Issuance of Temporary Restraining Order And/Or Writ of Preliminary Injunction]” vs the resurrected PDAF and DAP filed yesterday, 1 September 2015 at the Supreme Court
References: Atty H. Harry L. Roque Jr 09175398096 and Atty Joel R. Butuyan 09175229613
Due to unforeseen circumstances, the scheduled filing of the “Motion for Preventive Suspension against BOC Lina” by Omniprime at the Ombudsman today, Tuesday, 1 September 2015, at 1:30 pm will not proceed.
Apologies to everyone for the inconvenience this has caused.
References: Atty. H. Harry L. Roque Jr. 09175398096 and Atty. Joel R. Butuyan 09175229613
Omniprime Marketing Inc, the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system, will file a Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina at the Office of the Ombudsman on 1 September 2015, Tuesday, 1:30 pm.
Omniprime officials will be accompanied by their lead counsels, Atty. Harry L. Roque Jr and Atty Joel R. Butuyan.
Date: Tuesday, 1 September 2015
Time: 1:30 pm
Venue: Office of the Ombudsman
Reference: Prof. Harry L. Roque, Jr. 09175398096
The Center for International Law (Centerlaw) cautioned the Department of Justice yesterday against overreaching in its investigation on the allegations of an expelled minister of the Iglesia Ni Cristo against the influential indigenous Filipino church.
“The freedom of expression and of religion occupy the highest rungs of our constitutional values,” said Prof. Harry L. Roque, Jr., chair of the free expression advocacy group. “In fact, the people’s right to freedom of religion is stymied if they are denied their right to express such freedom.”
Prof. Roque stated, “In a modern society, the state and the church must recognize the principle of differentiated responsibility. In this case, the state recognizes that it has no competence to rule on theological or doctrinal disputes. But at the same time, the church must also see that it is the legitimate interest of the state to investigate where a crime has been committed.”
The idea of differentiated responsibility – or the recognition of the sovereignty of each sphere of society within its own orbit – is crucial to the survival of a pluralistic and just society.
Prof. Roque said the DOJ cannot prevent members of the church from practicing their faith, unless it is shown that “there is a clear and present danger” that what they are doing is already injurious to the life, liberty and property of others.”
“Freedom of expression is central to our communal quest for the truths that animate who and what we are as a society,” he said. “We deny such freedom, we tell ourselves we are afraid of these central truths and find no relevance for them in our daily lives, and to the meaning of our existence.”
I have never been a supporter of Juan Ponce Enrile. He was the strong arm of martial law and he got away with it. While Marcos and his cronies had to flee the country after 1986, he stayed as a hero and managed to keep his loot intact. Even at the height of his popularity as Senate President and Presiding Officer during the impeachment trial of former Chief Justice Renato Corona, I was disappointed to find out that his seemingly erudite handling of the proceedings was because he was getting dictations from his junior associates through an ear piece. Simply put: I am not and have never been a fan of JPE.
But when media asked me a year ago about my opinion on the plunder charges filed against him, I opined that the evidence against him was very weak. Consider: neither Janet Lim Napoles nor any of her associates, ever testified that they had directly talked or dealt with JPE. Furthermore, JPE did not sign any document that would prove any illegal transaction that could qualify for plunder. At most, the evidence pointed to the culpability of his former Chief of Staff, lawyer Gigi Gonzales. Even then, I find it hard to believe that Gigi would profit from the public coffers or would leave evidence that would incriminate her. So my guess is that even the evidence against Gigi will not hold water.
I was therefore not surprised when the Supreme Court granted JPE bail. As a human rights advocate, I believe the right to liberty is such a cherished right that it can only be denied in capital offenses where the evidence of guilt is strong. Ergo, the presumption is that all accused are entitled to bail except when the evidence of guilt is strong.
While I have not followed closely this latest trial of JPE, I surmised that JPE’s position is that since the information filed against him is unclear as to how he allegedly broke the law, the Ombudsman should be compelled to specify the basis for his culpability. This is why he filed a “bill of particulars”, or a motion to compel the Ombudsman to be more specific in her allegations.
Apparently, the Supreme Court agreed with JPE with the additional reasoning that being 91 years old, he is not a flight risk and should be released on humanitarian grounds.
Critics of this decision, Associate Justice Marvic Leonen included, criticized the decision as deviating from the law and jurisprudence and amounted to special treatment for JPE.
Being the anti-Enrile person that I am, I submit the dissenting Justices are wrong.
The dissent substantially is that the grant of bail is because JPE is rich and powerful. Wrong. The majority decision, assuming that it is even solely on the ground of humanitarian reason, does not violate the equal protection clause. Simply put, this clause is a constitutional guarantee that persons similarly situated should be treated alike. Leonen et al say that the basis of distinction is because Enrile is a Senator and is rich. I submit that the correct basis of distinction is that he is 91 years old. To violate the equal protection clause, Justice Leonen et al should show that there are other 91-year-old individuals being prosecuted for a capital offense and denied bail. I am sure that no one as old as Enrile is detained for a non-bailable offense, or is in jail by reason of a final and executory conviction. Why? Because our penal system recognizes that senior citizens, and those who are sick, should be the first to be released from detention on humanitarian grounds. Every year, the DOJ’s Board of Pardon and Parole prepares a list of convicted felons for release on humanitarian grounds. Again, I am so sure that there is no 91-year-old felon that continues to be behind bars. So if convicted felons could be released because of their senior years as a humanitarian gesture, why should not a mere accused —enjoying the presumption of innocence—who is also a senior citizen, not be released from custody on humanitarian grounds?
Secondly, the minority is wrong when they opined that his release on humanitarian grounds is bereft of legal basis. Under our Revised Penal Code, a trial judge may recommend that a person 70 years of age or older should no longer serve the sentence of imprisonment on humanitarian grounds. Again, this has to do with convicted felons. So why can’t the Supreme Court, by analogy, the collegiate boss of individual lower court judges, release a senior citizen also on humanitarian grounds?
Perhaps, the minority’s error is in failing to recognize that all civilized societies recognize the laws of humanity as binding on all states. This finds articulation in the so-called “Martens clause.” This provides that in default of a specific legal basis, humanity shall continue to be protected by public international law, the dictates of conscience, and the laws of humanity.
I rest my case.
Please click here for a copy of the omnibus order
Lawyer Harry Roque, Jr. called on Bureau of Customs Commissioner Alberto Lina to resign from his post, calling him hollow block faced. “Commissioner Lina should resign immediately. He has been rebuff by both the Executive and Judicial Departments, unless he is hollow block faced in his lack of self respect.”
A day after President Ninoy Aquino reversed his order to open and tax balikbayan boxes, Customs Commissioner Alberto Lina suffered a second rebuff when the Regional Trial Court of Manila reversed his decision to cancel a P650 million bidding contract aimed at curbing corruption and smuggling activities at the Bureau of Customs.
The contract cancelled by Lina is alleged to be the long sought-after solution to rampant smuggling in the Philippines. It aims to implement a fully electronic, paperless and human contact-free system of recording and monitoring of Bureau of Customs transactions. At the same time, the project will link the Philippines with the other ASEAN countries customs systems in time for the implementation of the ASEAN free trade in December 2015
In its Order dated August 24, 2015, the Regional Trial Court ordered Lina to stop the cancellation of the project and was directed to continue with the signing of the contract and to issue the winning bidder a notice to proceed with the implementation of the project.
In its August 24, 2015 Omnibus Order, the Court enjoined Commissioner Lina and his co-respondents from implementing both the 6 May 2015 Letter of Lina aborting the competitive bidding of the PNSW 2 Project and the 7 May 2015 Cancellation Notice of Jose Tomas Syquia in the meantime that the case is heard upon its merit.
The public is invited to attend our press conference this Tuesday, 25 August 2015, at 11:30 am, regarding Bureau of Customs Commissioner Alberto Lina’s move to inspect/tax balikbayan boxes and to cancel a PhP 650-million contract to establish an integrated customs. The contract would have armed the BOC with a modern system to catch fake, tampered, and reused documents, and other devious schemes resorted to by big time smugglers.
I’m perplexed and disturbed by Justice Secretary Leila de Lima’s continuing investigation against the Iglesia ni Cristo for an alleged incident of abduction. To begin with, the National Bureau of Investigation, the investigative arm of the DOJ, had already conducted an investigation and has concluded that there was no abduction. According to Atty. Manuel Eduarte, head of the NBI’s Anti-Organized Transnational Crime Division, the case of the alleged abduction is “case closed.” Despite this, De Lima has declared that she will continue her investigation.
Doe this mean that De Lima des not trust her own investigative branch? Or does this mean that as an election lawyer prior to her entry into government 7 years ago, that she is better qualified to conduct the investigation even if she has absolutely no experience as a crime investigator?
The fact that she is a sitting Secretary of Justice insisting on the investigation of a closed case and despite the absence of a complainant brings to mind the act of former secretary of Justice, Raul Gonzalez, threatening telecommunication and broadcast companies against the playing of the “hello Garci” tape. According to the Supreme Court, such a threat, albeit said verbally and not reduced into writing, constitute a violation of freedom of expression: “In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. x x x Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non-formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint.” Ergo, mere utterances made by De Lima may be sufficient to violate protected rights.
While I concede that freedom of speech is not involved in De Lima’s continuing resolve to investigate the INC, the reality is that freedom of religion is as important as freedom of expression. Under the Constitution, freedom of religion is a guarantee that the state will not interfere with the freedom to believe, referred to as the “free exercise clause”; and that the state will not favor a religion, referred to as the “establishment clause.” Under the latter, the duty includes the obligation not to interfere with the affairs of a church.
Perhaps, De Lima’s action may be justified had there been no prior investigation conducted by competent authorities. But the best investigative arm of the government has precisely declared the matter as “case closed.” This, then, makes De Lima’s acts suspect for violating the INC’s freedom of religion. It is tantamount to interference with what clearly is an internal strife within the INC, assuming that there indeed is an ongoing one.
What makes matters worse is that like me, De Lima is also mulling a run for the Senate. It is no secret that the INC is politically influential because it resorts to bloc voting in elections. Her act therefore, aside from constituting unjustified interference with church affairs, appears to be politically motivated. But unlike ordinary politicians who will court the INC, she is resorting to a modified form of “hulidap”: political blackmail. Her act could be construed as “support me and my party or I file charges against you in court.”
All public officials, and even ordinary citizens, have the duty to uphold our penal laws. That is why even ordinary citizens are empowered to resort to citizen’s arrest when a crime is committed in their presence. So did De Lima witness such a crime or is she inventing one given the NBI’s earlier terminated investigation?
The INC has had invaluable contribution to our jurisprudence on freedom of religion. In one case, our Supreme Court nullified a law that recognized a “closed-shop” policy that prohibits the hiring of non-union members. Jovito Salonga, my grand uncle, successfully argued that the law violates the religious freedom of the INC since it prohibits its members from joining unions. In another case, which is one of my favorites, the Supreme Court declared that the broadcast of the INC’s attacks against the catholic church is protected speech: “The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”
To be sure, the INC is no stranger to government’s persistent bullying. What De Lima and her party mates should learn from history is that the INC has never given in to such bullying and will go to court to assert its freedom of religion.
Kudos to the INC!
Reference Prof. H. Harry L. Roque, Jr.
UP College of Law Professor Harry L. Roque today called on Justice Secretary Leila M. De Lima to respect the freedom of religion of Iglesia ni Cristo. “Sec. De Lima should cease and desist from her witch hunt of Iglesia ni Cristo. In the absence of a complainant, she should not investigate the alleged intramurals within the Iglesia ni Cristo. To persist in investigating the local church would be to violate the constitutional right of freedom of religion which includes both a guarantee of freedom to believe and non-intervention with church affairs.”
Roque further added that Philippine jurisprudence has respected the Iglesia ni Cristo’s religious tenets including its right not to allow its members to join labor unions. In another case, the Philippine Supreme Court upheld the stinging attacks of the Iglesia ni Cristo against the Catholic Church in a television program. In that case the Supreme Court ruled that “the bedrock of freedom of religion is freedom of expression. The antidote to bad theology is more theology.”
Roque also express dismay that De Lima’s witch hunt will lead to a chilling effect on the exercise of freedom of belief. “If there indeed was a crime committed, let the complaint be filed with the police, the fiscal’s office and eventually the court. Unless such a complaint is filed the Justice Secretary should leave the Iglesia ni Cristo alone.”
Two issues have hounded two state universities lately. The first was why, according to Malacanang, the Cavite State University required its students to watch Vice President Jejomar Binay’s True State of the Nation Address.
The other is the lack of dormitories in my university, UP Diliman.
I have previously written that the Vice-President’s TSONA was simply terrific since it outlined the not- so-good state of the nation. Predictably, Malacanang dismissed it as “charot”, or gay lingo for non-sense (I think).
Strangely though, while the palace belittled the message of the Vice-President, it engaged in witch-hunt against the officials of the state university where the address was made. This was reminiscent of Malacanang’s attempts to infringe on freedom of speech and academic freedom in UP Diliman.
I remember that at one point during the Ramos administration, then President Ramos attempted to scuttle the talk of freedom fighter and Nobel prize awardee Jose Ramos-Horta of East Timor. This was to placate Indonesia’s protest since it was then in military occupation of East Timor. But pursuant to the tradition of UP Diliman, the University resisted the Malacanang intervention and even went to court to question the palace intervention. While the University won the litigation, the ruling came a bit late since meanwhile, the Horta talk had been cancelled. Years later, Horta would make a heroes welcome to the University as the founder of the newly independent state of East Timor. UP, on the other hand, also celebrated the return of Horta as its way of asserting both freedoms of speech and academic freedom.
One thing that despots in Malacanang seem to have forgotten is that freedom of though is the bedrock of universities. Ergo, not only is freedom of thought cherished in universities, it the freedom that enables freedom of thought and freedom to engage in the search for the truth. Infringe on these rights and you make a mockery of the concept of a university as a community engaged in the search for both truth and excellence.
Cleary, Malacanang’s witch-hunt of the university officials who allowed the VP to speak at the Cavite State University is because they were adverse to the truth. Fearing that the people would believe that economic development has so far benefitted only the rich, they now seek to sow fear in the hearts of academicians with the message that the truth must not be allowed to be articulated in hallowed university grounds. But did they succeed? Well, I would say no if only because the studentry has taken the cudgels for the university- highlighting the right of the studentry to information and the truth.
The other controversy that hounded another state university was a television news report that showed freshman students of UP Diliman sleeping on the sunken garden of the university. I’m happy at the condemnation that arose form the news report. It only shows that despite government’s policy of “bahala kayo sa mga buhay nyo at buhay naman kayo.” Many citizens are still of the conviction that education is a right particularly at the premier state university. While University officials were quick to dismiss the story as featuring radical students out to make a story, the truth though is there are nonetheless real students currently sleeping at the UP Union office for lack of dormitory space.
I did hear Diliman Chancellor Michael Tan admitting in a radio interview that it was lack of foresight that led to the current dormitory crisis at the state university. While the student population has grown tremendously in the past years, the University has built only two semi-private dormitories and a new dormitory for law students where monthly fees cost 3 thousand per month. Contrast this with the 400 pesos that the regular dormitories charge the lucky students who have qualified to stay at the existing dormitories.
The bigger problem is the P oy’s administration’s apparent propensity to cut the budget requests made by state universities such as UP.
My personal suspicion is this is because many in this administration are not from UP, either because they were not smart enough to pass the entrance test or because they were born with silver spoons that studying in a school like UP would be extended “slumming”. The data would speak for themselves. In 2015, UP’s budget request was slashed by P2 billion. UP has since been given a budget of P13 billion, almost P2 billion of which is earmarked for the Philippine General Hospital, the biggest teaching hospital in the country that caters to indigent patients.
Of the remaining P11 billion, P6 billion went to salaries, P3 billion went to programs, and P4 billion went to capital outlays such as new academic buildings. There was no money allotted for new dormitories. The end result of course is while the University continues to attract the brightest amongst the poor students, lack of affordable housing would mean they couldn’t afford the cost living in Diliman.
Fortunately, the end is near for this administration. I could only hope that the people would elect a new President who had the experience of being a true iskolar ng bayan: meaning bright but poor. A cacique or a princess would mean more of the bad thing: bad news for the iskolar ng bayan.
This post first appeared in http://manilastandardtoday.com/2015/08/13/state-universities/
In stark contrast to P Noy’s State of the Nations Address, VP Jojo Binay’s True State of the Nation Address was simply terrific.
To begin with, it was short, concise and straight to the point. It took no more than 50 minutes, which is the right length of a major speech. It was based on data and figures on the economy, and it thanked the proper individuals: those who sacrificed their lives for the nation, the SAF 44 and not just hair dressers and yayas — with no offense meant to the latter.
It was a speech that articulated the unspoken views of a clear majority of our people: that is, from the very beginning of his term, P Noy’s administration was both palpak and manhid. VP Binay rightfully focused on three of the people’s woes: MRT, Luneta, and Mamasapano.
I would be lying if I were to say that I take the MRT and LRT regularly. I don’t. But because I deliver regular lectures, too, at Fr. Rannie Aquino’s San Beda Graduate School of Law, I would always take the LRT2 from Katipunan and get off at Legarda. One time, I was very late for one such lecture that I opted to try the MRT line from SM North near UP to Caloocan and from there, the LRT to Manila. I was shocked! The LRT was jam-packed with people, the driver obviously callous and kept on stepping at the brakes making people fall forward and backwards. It was simply hell!
The only consolation for me was that I do not take the trains regularly, unlike the ordinary person.
Yesterday, after I guested at UNTV, I saw the line at SM North. It literally should be no less than 2 kilometers long snaking through a covered walkway that crossed EDSA. How can this administration promise the straight path when people are literally stuck in the MRT queue!
The fact that Binay emphasized this administration’s neglect of the MRT and LRT was to articulate the everyday curse experiences by the train-riding common tao against daang matuwid.
VP Binay then detailed the kapalpakan of Luneta, Tacloban, Zamboanga and Mamasapano. The Luneta hostage incident illustrated early on not only the incompetence of P Noy, but his callousness as well. It so happens that P Noy and I have the same favorite restaurant for siopao along Roxas Boulevard. The friendly waiters there confirmed that as the PNP proved incompetent in dealing with the lone hostage taker, PNoy, meanwhile, had a grand time consuming our favorite siopao.
Tacloban illustrated Mar Roxas’s penchant for prioritizing partisan politics over the need to provide humanitarian assistance to the devastated city of Tacloban. People will never forget the image and words of Roxas telling Mayor Alfred Romualdez that unless he signed a sheet of paper, Tacloban should not expect assistance form the national government simply because he was a Romualdez.
That was enough for me to forever dismiss Mar Roxas from all my lists. That incident resulted in our common conviction that we will have nothing to do with Mar since he failed to heed the dictates of humanity and pursued instead the dirty ends of partisan politics.
Anent Mamasapano, it should be clear to one and all that the SAF 44 were martyred because of PNoy’s insistence to have his trusted Alan Purisima lead an ill-planned police operation. It is also clear to one and all that PNoy allowed them to be martyred to please Ging Deles and their common friends at the MILF.
Binay also articulated what is on the mind of every Filipino on the BBL. He said that any peace agreement must conform with the Constitution, must be inclusive, and must not be rammed through Congress.
Perhaps the most noteworthy portion of the TSONA was the true state of the economy. According to Binay, economic indicators cited in the SONA were somehow deceiving because increases in economic indicators did not translate to better live for the poor. Citing the recent survey conducted by the SWS where five out of 10 Filipinos claimed to be in poverty, Binay concluded, “After five years, many are still poor”.
Binay also said that while country’s foreign direct investments (FDIs) exceeded P6 billion ($131.24 million) in 2014 this is still he lowest FDI among countries in Southeast Asia. He also decried: ““Kahit na totoong record-breaking ang foreign direct investments noong 2014, hindi rin naman ito nagresulta sa trabaho para sa nakararami,”
He said that 21 percent of the FDIs went to financial and insurance activities, which did not generate enough jobs.
But the real highlight of the speech was something that I did not expect. After castigating PNoy for thanking everyone but the martyrs of the SAF 44, Binay read individually the names of the fallen heroes. I would say that even for this alone, a recognition to the heroes made by the second highest official of the land, Binay’s TSONA would go down in history as one of the best public addresses in Philippine history.
I am happy too that some broadcast outfits carried the TSONA live. This allowed the people to make their own opinions free from the bias hurled against the speech by many commentators, disguised as journalists. As for the Malacanang reaction to the speech, Lacierda’s bad mouth was very scarce probably for the first time. This may be because it really is difficult to argue against the truth.
I do not know if the TSONA would be enough to restore VP Binay as the leading presidential candidates come September, when the pollsters go to the people anew. One thing is certain though: ordinary people who heard the TSONA can now find satisfaction in that Binay articulated their views. In a democracy, this is priceless.
Atty. Harry L. Roque, Jr. 09175398096
Chairperson, Center for International Law
The Philippines should vigorously pursue the liability of Canada under international environmental law – in particular under the Basel Convention – for exporting to the country without the latter’s consent 50 40-footer container vans of hazardous wastes, according to a UP professor of international law.
“It’s a shame Canada, which fashions itself to be a world leader in the promotion of the Rule of Law, is acting as if it does not know what its duties are as a party to the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal,” said Prof. Harry L. Roque Jr., who teaches international law at the UP College of Law and chairperson of the Center for International Law, a non-profit dedicated to promoting binding international legal norms in the domestic setting.
To begin with, Canada is acting deviously on the controversy as it violated the Basel Convention requirement that to begin with, it cannot export to the Philippines any hazardous waste without the latter’s written consent, said Prof. Roque.
Like Canada, the Philippines is a party to the multi-lateral treaty.
The issue has become a sore point between the two countries, with Canada eschewing responsibility over the shipment and passing it on to Ontario-based Canadian firm Chronic Inc., and its Philippine partner. Chronic allegedly shipped the vans to the Philippines in 2013 as recyclables. But the Bureau of Customs, upon inspection, found these to be filled with “toxic” wastes.
Prof. Roque said Canada is responsible for the repatriation of the wastes back to its own shores under the terms of the Basel Convention.
And while the shipment was mis-declared by its Canadian exporter and its Philippine partner as that of “recyclable plastics,” Canada cannot claim it did not know the contents of the container vans because as the state of origin, it had the obligation to inspect the contents of the shipment, according to Prof. Roque.
“In addition, under the Basel Convention, if the shipment cannot be completed under the authorized terms or within the provisions of the Convention, the state of export – Canada – must re-import the shipment unless an alternative arrangement for proper disposal can be made within ninety days of notification by the state of import,” he said.
“Thus even assuming that the Philippines legally consented to receive the shipment, by the terms of the Convention, Canada remains responsible for the waste up until its disposal, and may be entirely liable for costs if fulfillment of the contract becomes impossible,” said Prof. Roque.
The Canadian embassy in the Philippines insists it is not liable for anything.
He said that if Canada refuses to accept responsibility for the wastes, the Philippines may take the issue up to an international arbitral panel or to the International Court of Justice.
“This not a question of cost but of principle,” he said. “The cost will be recovered later on, but Canada should be made to face up to its obligations under international law not just to the Philippines but to all the parties to the Basel Convention.”
That was the lousiest State-of-the-Nation Address I have ever heard. To begin with, the President showed disrespect to his listeners by speaking for more than two hours. The duty to report on the state of the nation is mandated by the Constitution itself. In the discharge of this obligation, the President should have been more considerate to the Filipino people struggling to survive on a day-to-day basis. Simply put, it was gross disrespect for the people- whom he described as his bosses- when he took more than two hours of their time largely for matters that should not have been included in a SONA in the first place.
After five years, the people have earned the right to expect that the President will summarize his accomplishments thus far in the SONA. He instead wasted the first 50 minutes of his speech engaging in his favorite pastime: bashing everyone for the mess that he found when he assumed office. This would be fine had this been his first and second SONA in order to lay the basis for the Herculean task of rebuilding. But five years later, this is wholly unacceptable. Yes, there were obstacles in the beginning of his term which could be attributed to his predecessor. But after five years in office, he should have been able to address these challenges had he only governed well. The reality is that PNoy spent a lot of time condemning the past regime because he has failed to govern. In other words, he continues to rant about the past because he did nothing to clear the mess that he found at the beginning of his term. Ironically, his never-ending tirades against PGMA are also a strong condemnation of his own malfeasance and misfeasance.
Then he enumerated his alleged accomplishments. He began by singling out his appointees for their integrity. But shouldn’t the accomplishments of these appointees be attributed to them and not to the appointing power? He cited Ombudsman Conchita Carpio-Morales, Supreme Court Chief Justice Maria Lourdes Sereno, former Commission on Audit Chairperson Grace Pulido-Tan, and Bureau of Interval Revenue Chief Kim Henares as examples of his appointees with integrity.
But what about the scoundrels such as former Philippine National Police chief Alan Purisima, Agriculture Secretary Proceso Alcala, Technical Education and Skills Development Authority Secretary Joel Villanueva, Transportation and Communication Secretary Joseph Abaya, former Health Secretary Enrique Ona, Budget Secretary Butch Abad, Moro Islamic Liberation Front collaborator Teresita Deles, PEACE bond scam mastermind Corazon Soliman, all of whom have been embroiled in one scandal after another?
It seems clear that while PNoy cited four gems among his appointees, they simply were outnumbered by rotten appointees embroiled in never ending scandals.
He cited alleged gains in the economic front including unprecedented GNP and GDP growth, increase in foreign direct investments, and supposed increase in employment. While all these economic indicators may have indeed increased, the question is: did it benefit the poor among us? The answer is a resounding NO! Bayan Muna Party-List Rep Neri Colmenares cites that the wealth of Filipino billionaires listed by Forbes magazine increased by 250 percent from 2010 to 2015. Compare this to the increase in the minimum wage for the same period, which increased by a measly 3.5 percent. This means that while economic indicators indeed increased, it did not translate to inclusive growth. Hence, the rich became even richer and the poor became poorer.
He then enumerated one infrastructure project after another. Goodness! This should not have been included in a SONA simply because any government, provided there is a national budget, could have built the infrastructure. He also boasted about the Conditional Cash Transfer. How can he claim credit for a program started and implemented by his predecessor?
If at all, PNoy could only claim credit for legislation such as the RH Law, the Competition Law and the Cabotage Law. The problem here is that credit should go to Congress for these laws and not to the President. Moreover, for every law passed, there was a bill not enacted to law. The FOI bill is one such bill.
The worst part of the speech was the never-ending expression of gratitude to his family, hairdresser and Yaya. At one point, I thought PNoy had to thank his yaya and hair dresser because they were true members of his Cabinet, responsible for his lousy policies. Levity aside, when the Constitution required the State-of-the-Nation Address, it was not so that the President could thank everyone in his life, both private and public. He can do that as he leaves Malacanang before noon on June 30, 2016.
So what did he not say? Plenty.
There was nothing on his promise to protect and promote human rights. This is consistent with his policy to completely ignore human rights, including the fight against extra-legal killings, enforced disappearances and torture.
There was no mention of what he intends to do to the SAF 44. Maybe this too is consistent with his position that the SAF 44 had to be sacrificed to appease his new BFF, the MILF.
There was no mention of how he would oversee clean and peaceful elections. Maybe because he could not care less and simply wants to end his term. Maybe because his anointed one, who is currently lagging in the polls, intends to cheat? Who knows!
Despite all the shortcomings in the last SONA, the best news is that it was indeed his last! This was the good news in the SONA.
Good riddance, PNoy, and may the nation never choose a college council President ever again, particularly one who was also a foreigner for 13 years.
This post first appeared in http://manilastandardtoday.com/2015/07/30/a-lousy-speech/
In fairness to this administration, it would be difficult to discuss the true state of a nation in a 700-word commentary. So instead of discussing all aspects of our lives under PNoy, I will focus on two particular areas, to wit: the promised anti-corruption drive of the administration under the slogan of “daang matuwid,” and the promise to uphold and protect human rights.
Pulse Asia in its Ulat sa Bayan had grim findings on how the public perceives PNoy’s promise to pursue the straight path. In brief, the public thought this was a promise terribly broken, In fact, only 29 percent of the people agreed that PNoy pursued the path that was promised. Thirty-six percent disagreed while 34 percent were undecided. Ana Maria Tabunda posited that the people perceived Daang Matuwid as a broken promise because of the discovery of the Priority Development Assistance Fund scam which involved all politicians, whether those with the administration or the opposition. The fact that charges were filed against three opposition senators only made matters worse since the people perceived these cases as evidence of selective justice. Indeed, the fact that no one from the administration has been charged for what is clearly an institutional form of corruption for Senatongs and Tongressmen contributed to the people’s perception. According to Tabunda, 53 percent of the people thought that it was unfair for the administration to prosecute only members of the opposition, while only 30 percent thought that this recourse was fair.
In truth and in fact, the people’s perceptions must have also been affected by the fact that the President has been playing deaf and dumb to the misfeasance and malfeasance of his KKK: kaibigan, kaklase and kabarilan. There is the Agriculture Secretary Proceso Alcala who has figured in one scam after another. He continues to have the trust and confidence of PNoy. There too is former PNP Chief Alan Purisima, who despite SAF 44, continued to have the trust and confidence of the President. There is also Technology Education and Skills Development Authority chief Joel Villanueva and Former Customs chief Ruffy Biazon, both implicated in the PDAF scam. There is DBM Secretary Butch Abad who remains among the most trusted by PNoy despite the Supreme Court’s rulings invalidating both PDAF and DAP, both of which were implemented by Abad. Former Senator Panfilo Lacson recently claimed that Abad had resurrected both anomalies through the so-called unified accounts codified system.
Then there was his promise to protect and promote human rights, in general, and specifically, to pursue justice for the victims of the notorious Maguindanao massacre that claimed 58 lives. This was dubbed as the single most murderous attack against journalists in the world. Under PNoy, the killings went unabated. He has utterly failed to investigate, prosecute and punish the perpetrators of these killings. Karapatan claims that there have been 262 cases of extralegal killings in the country under PNoy. Meanwhile, there has only been one conviction for these killings, the case of the hired gun man in the killing of environmentalist and broadcaster Gerry Ortega, who confessed to the killing. In any case, Justice Secretary Leila De Lima admitted in a UN Meeting in Strasberg that the conviction rate for extralegal killings in the country remains at a pathetic 1 percent.
Aquino reneged on his promise to accord justice to the victims of the notorious Maguindanao massacre. To date, the quest for justice against the patriarch of the Ampatuan clan has been mooted with the recent death of Andal Ampatuan Sr. Meanwhile, no less than 90 of the 197 accused remain at large, while the trial is still at the bail proceedings. It took the Supreme Court to order the implementation of our suggested “First in- first out” policy, which would enable the trial judge to render partial promulgation of judgment against some of the accused, to provide hope that some of the accused, but definitely not all, could be held liable for the massacre. This too appears to be speculative given that De Lima and her classmate representing some of the victims have objected to a partial offer of evidence by the public prosecutors.
Meanwhile, PNoy has also reneged on his promise to repeal EO 546 that gave legitimacy to the private armies of political warlords, including the Ampatuans. Immediately after his election, he made a complete turn-around on this promise and justified the use of these private armies as “force multipliers” in the fight against insurgents.
So what is the true state of the nation as far as “daang matuwid”, extra-legal killings and human rights are concerned? Well, the state is dismal with the corruption and killings becoming even more rampant under PNoy. Why? Simple. For as long as the corrupt and the killers are jailed, and fear brought back into their hearts, the culture of impunity remains. The corruption and the killings will continue.
Meanwhile, we can only pray that we will not become the next victims. This, sadly, is the true state of the nation.
This post first appeared in http://manilastandardtoday.com/2015/07/23/the-true-state-of-the-nation/
Centerlaw believes that justice would have been better served for both our clients and the defendants if a decision were reached before Andal Ampatuan Sr passed away. We know that the search for justice continues and we will persevere on behalf of our clients.
We knew they would resurrect the Priority Development Assistance Fund and Disbursement Acceleration Program eventually. What we did not expect is that they would do so immediately after the Supreme Court had declared both the PDAF and DAP as being unconstitutional. Talk of being brazen. Talk of being shameless. Talk of being contemptuous.
In a talk before accountants, former Senator Panfilo Lacson unveiled the resurrection of both PDAF and the DAP. First, he mentioned that he had found no less than P428 billion in lump-sum appropriations which took the place of either PDAF or DAP. He cited the example of the budget of the Department of Agriculture amounting to P39 billion pesos. The senator then identified within this budget P6.25 billion for farm-to-market roads, which in reality would be farm-to-pocket roads of the Tongressmen.
Lacson also identified the resurrection of PDAF in the form of the so-called Unified Accounts Code Structure or UACS. According to Lacson: “Recently, the government rolled out reforms in our public financial management. The government adopted, starting last year, the so-called Unified Accounts Code Structure or the UACS, a single classification system for all our government financial processes—from budgeting to cash management to accounting and audit. UACS calls for transparency and accountability, or so they claim. As my team and I randomly analyze this coding system, say, of the National Irrigation Administration, we discovered that there were some codes missing. To our surprise, such ‘missing codes’ were utilized to insert some projects during the budget deliberation in the House of Representatives. We likewise discovered that, in the budget of the said agency alone, there is a total lump sum amounting to 11.3 billion pesos.”
Lacson further argued that “after the PDAF, we also discovered the obvious reincarnation of the SC unconstitutionally declared Budget Circular 541 which earlier gave the DBM the authority to pool and declare as savings unobligated, unutilized, and unreleased appropriations, not at the end of the fiscal year but the second quarter. We found it in Sec 70 and Sec 73 under the General Provisions of the 2015 General Appropriations Act”. This, according to Lacson, is the rebirth of the DAP.
In any case, it can be told that just as in the case of the defunct Countryside Development Fund which, due to its unpopularity as being an institutionalized source of corruption, was renamed Priority Development Assistance Fund, it can now be told that PNoy defied the Supreme Court anew by renaming both the DAP and the PDAF as UACS. What else is new?
It has been reported by the media that Andal Ampatuan Sr is now comatose at the National Kidney Institute. I was able to confirm his illness because the mother of one of my best friends was confined next door to the Ampatuan patriarch.
At this point, we can only decry the snail pace of the on-going trial that may now deprive both the accused and the victims a judicial finding of his guilt or innocence. While we have not objected to the requested furlough of the Ampatuan children who are currently detained in Bicutan to enable them to visit their father, we ask the PNP and the NBI to exercise extraordinary diligence in preventing their possible escape.
Reference: Atty. Harry L. Roque, Jr. 09175398096
Atty. Harry Roque Jr, lead counsel for 13 media and two civilian victims of the Maguindanao Massacre, asked police authorities yesterday to ensure security in the premises of the National Kidney Transplant Institute (NKTI), where principal massacre suspect Andal Ampatuan Sr has lapsed into a coma.
Atty. Roque said that for humanitarian reasons, his clients will not oppose the Ampatuan family’s visit to the clan patriarch, who was accused of ordering the gruesome crime nearly six years ago.
“We are not opposing the Ampatuans’ visit to their father for humanitarian reasons, but we strongly caution the PNP, the NBI and other national law enforcement bodies to ensure that none of the accused can escape,” Atty. Roque said in a statement.
Zaldy, Datu Anwar Sr., Datu Ahmad, and Datu Andal ”Ipi” Jr., all surnamed Ampatuan, were allowed yesterday to visit their ailing father, Maguindanao Governor Andal Ampatuan Sr, at the NKTI. Andal has fell into a coma after suffering from a heart attack.
The request to visit their ailing father was granted by Quezon City Regional Trial Court Branch presiding judge Jocelyn Solis Reyes, on consideration of the Ampatuan patriarch’s grave health condition.
Oral arguments on the issue of jurisdiction in our arbitral claim against China should be on-going as I write this column. In a testimonial tendered in honor of former UP Law Dean Raul Pangalangan who was recently elected Judge at the International Criminal Court, Solicitor-General Florin Hilbay told me that he will open the arguments by introducing the members of the delegation. He will then cede the podium to Foreign Affairs Secretary Albert Del Rosario who will discuss why the Philippines resorted to the arbitration. After which, our American lawyer, Paul Reichler will take the podium to discuss the issue of jurisdiction. Hilbay will then deliver his closing remarks.
At issue in the oral arguments is whether the ad hoc arbitral tribunal has jurisdiction over our arbitral claims. Here, we need to convince the five-man tribunal that our prayers constitute issues of interpretation and application of the Untied Nations Convention on the Law of the Sea. We also need to convince the erudite body that our claims do not fall within the reservations of China which includes issues of maritime delimitation and military and law enforcement activities relating to the exercise of sovereign rights.
We have three principal prayers: one, that the Chinese nine-dash lines be declared bereft of legal basis under the UNCLOS; two, that the artificial islands recently expanded by China are low tide elevations which cannot be the subject of title by any sovereign states since they should form part of the continental shelf; and three, that the waters outside of the 12 nautical miles off Panatag should be declared as part of the country’s Exclusive Economic Zone.
I have consistently opined that all of our three major prayers constitute issues of interpretation and application of UNCLOS. They will entail interpretations of the Convention’s provisions on internal waters, territorial sea, exclusive economic zone, and the regime of islands.
The Chinese defense is that: first, it has not agreed to litigate the issue and cannot be compelled to participate in the proceedings. Second, they argue that the tribunal lacks jurisdiction because the validity of its claims to the waters within the nine-dash lines will depend on the validity of its claim to title over islands that generate the maritime zones. According to the Chinese Judge of the ICJ, our claim “muddles issues of jurisdiction with the merits” since our prayer cannot be resolved without tackling both jurisdictional issues and the merit of the case.
While the oral arguments are scheduled until the 13th of the month, Hilbay is confident that we could conclude our arguments by Friday this week.
The whole international community is glued to developments in our case. At stake in our submissions is the very future of UNCLOS itself. If small countries like us cannot rely on the Convention to resolve maritime disputes with regional superpowers, then the Convention will prove useless. China, on the other hand, by threatening to ignore rulings of the Tribunal, and even threatening to withdraw from the Convention should there be a decision against it, has sent the message to the Tribunal that an adverse decision to China might also lead to the end of the agreement.
What is my prognosis? Well, I’m 100-percent sure that the validity of China’s nine-dash lines involves a declaration interpreting pertinent provisions of the Convention. I predict that the Tribunal would declare the nine-dash lines as bereft of legal basis. In so doing, it will have the opportunity to rule on the nature of claims to historical waters, contrary to the literal provisions of the UNCLOS. Justice Carpio in his ponencia in Merlin Magalona vs. Executive Secretary implies that such claims have ceased to have legal basis. The Chinese Judge maintains their continued validity under the doctrine that what is not prohibited in international law is allowed.
I have less confidence in our two other prayers, which I believe should not have been included at all. I will write about this in due time.
Meanwhile, with only three oralists scheduled to make submissions before the Tribunal, why is it that we have a delegation of at least 35? I say at least because the number does not include our foreign counsels and their staff. I believe the correct number of our delegation should be at least 50. That’s 50 business class tickets and 50 de luxe rooms at five-star hotels in very expensive The Hague!
I am currently in Pangasinan documenting how fishermen have been deprived of livelihood by the Chinese who have taken over their traditional fishing grounds in Panatag shoal. You don’t need a degree from the Kennedy School of Government to conclude that the money spent for the mirons in The Hague should have been used to assist the displaced fisher folks of Panatag instead. Oh well, only in this administration do you have policy makers fleecing off the people’s misery! Talk of the ultimate junket at The Hague! All told, our delegation should not have exceeded 10 given that we have a full-fledged diplomatic mission there headed by our very capable Ambassador Jet Ledda and ably assisted by Atty Peachy Defensor, youngest sister of Inday Miriam. I would understand why the Office of the Solicitor General, the Supreme Court Justices and the Department of Foreign Affairs should be there. But 35 in addition to our foreign counsels? Come on!
Thank God 2016 is just around the corner! Out with the junketeers!
For reference: Atty. Harry L. Roque, Jr. 09175398096
What we want to know is how much the Palace is spending on a delegation of 35 people at the Hague in the Netherlands to the oral arguments in the Philippine arbitral case against China over the West Philippine Sea.
Calling me KSP or Kulang sa Pansin simply avoids the issue altogether. Press Secretary Edwin Lacierda’s response shows the Palace is Kabado sa Paliwanag because they really cannot justify this big junket when only two in the government will actually argue before the Tribunal.
I’m sure the money being spent on the Philippine delegation for at least a week will go a long way in helping fisherfolks from Zambales displaced by the Chinese takeover of the Panatag shoal.
Has the government even thought of assisting the thousands of fisherfolks who are now without any steady and adequate source of livelihood because of its inept handling of the Panatag shoal stand-off?
It is sad that they had been so consumed by junket fever that they couldn’t think of anything else.
Until now, Malacanang has not provided any steady and adequate livelihood assistance to the families of the displaced fisher folks.
The media is invited to a press conference with Sulu Princess Jacel Kiram over issues being raised by the Malaysian press and government leaders against her recent meeting with Nurul Izzah Ibrahim of Malaysia. Accounts in the Malaysian press of the said meeting have labeled Kiram a “terrorist” and painted Ibrahim, daughter of the jailed opposition leader Anwar Ibrahim and a member of the Malaysian Parliament, as being guilty of treason for allegedly agreeing with Kiram that Sabah should be reverted to the Philippines.
The press conference is slated for tomorrow, November 25, 2015 at 2 pm at the Pastor’s Gastro Pub, Unit D1 & D2, Hobbies of Asia Complex, Macapagal Blvd., Pasay City.
References: Atty. Harry L. Roque Jr. 09175398096 and Atty. Romel R. Bagares 09328798422
On the sixth year commemoration of the Ampatuan massacre, the families of the victims will ask the National Police Commission (NAPOLCOM) to come up with a resolution dismissing from service the 64 policemen implicated in the massacre. The widows will file a second motion for the immediate resolution of the administrative case they filed in 2009 before the NAPOLCOM. The first motion was filed in November last year.
The families, led by their counsels Atty. Roque and Bagares, will go to NAPOLCOM tomorrow, 23 November 2015, at 10:30 am.