Oral arguments versus EDCA


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

Thrust and parry on EDCA


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

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

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

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

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

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

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

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

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

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

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

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

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

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

The AFP’s complaint and Secretary De Lima


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

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

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

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

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

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

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

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

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

De Lima answered as follows, to my chagrin:

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

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

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

A more radical participant wanted to slam her.

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

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

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


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

Request for Coverage : November 1 departure of Marc Sueselbeck


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

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

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

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


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

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

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

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

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

Picture of a gruesome murder


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

October 29, 2014

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

Dear Commissioner Mison:

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

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

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

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

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

Respectfully,

Marilou Laude

Michelle Laude

Julita Laude

Marc Sueselbeck’s Motion for Voluntary Deportation


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

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

REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
BUREAU OF IMMIGRATION
BOARD OF SPECIAL INQUIRY

In re Deportation Charges

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

Watch List Order No. SBM-14-778

SUESELBECK MARC,
Respondent.

x ——————————–x

MOTION FOR VOLUNTARY DEPORTATION

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

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

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

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

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

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

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

Prayer

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

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

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

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

Other relief just and equitable are also prayed for.

RESPECTFULLY SUBMITTED.

Makati City for City of Manila ; 19 October 2014.

ROQUE& BUTUYAN LAW OFFICES
1904 Antel 2000 Corporate Centre
121 Valero Street, Salcedo Village
Makati City 1200
mail@roquebutuyan.com
Tel. Nos. 887-4445/887-3894
Fax No: 887-3893

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

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

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

With my conformity:

MARC SUESELBECK

Laude family and Marc to give statement tomorrow at UP IILS


Request for Coverage
Reference: Professor Harry L. Roque 09175398096

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

Access to US Marine Private First Class Joseph Scott Pemberton


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

27 October 2014

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

Dear. Gen. Catapang:

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

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

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

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

Respectfully yours,

(Signed)
Atty. Romel Regalado Bagares

(Signed)
Atty. Ethel C. Avisado

SEMINAR ON INTERNATIONAL LAW FOR MEDIA PRACTITIONERS


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

 
 

SEMINAR ON INTERNATIONAL LAW FOR MEDIA PRACTITIONERS 

 

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

 

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

 

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

 

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

 

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

 

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

On Laude: The issue is accountability


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

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

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

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

What is this rationale?

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

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

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

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

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

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

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

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

 

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

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


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

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

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


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

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

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

In memory of Jennifer: Junk Vfa


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

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

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

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

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

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

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

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

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

Bail granted to 17 cops in Ampatuan case inconsequential


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

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

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

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

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

Pinay transgender slay proof US military presence never good for us


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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

 

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

ISIS and International Humanitarian Law


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

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

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

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

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

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

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

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

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

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

Martial law in the ‘land of the free’


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

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

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

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

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

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

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

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

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

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

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

My Lolo and martial law


By Atty. Harry Roque Jr. | Sep. 25, 2014 at 12:01am
3
I was too young to be an activist during martial law. I was fortunate though to have been raised in a family whose religious convictions include that of taking a stand for the poor and oppressed. This is why even if I did not venture to the streets to protest the Marcos dictatorship until I was a freshman high school student in UPIS, specifically in the infamous march along Liwasan Bonifacio to protest against the Education Act, I had my political education rather early in life.

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

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

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

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

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

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

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

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

I do miss my Lolo.

Binay and the Senate inquisition


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

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

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

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

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

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

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

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

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

Beware, my friends!

Dismal rule of law in the Philippines


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

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

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

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

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

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

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

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

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

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

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

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

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

The future of the Internet


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Judge Mislang agreed with the Sunday Punch’s lawyers.

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

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

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

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

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

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

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

Syrian rebels threat to Filipino UN peacekeepers a war crime


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

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

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

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

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

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

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

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

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Binay is it!


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

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

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

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

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

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

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

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

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

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

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

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

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

Roque: Jail those who paid for Northrail


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

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

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

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

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

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

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

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

Rep. Reyes asks SC to disqualify 3 justices from HRET


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Re-examining freedom of expression


I have been the foremost advocate for freedom of expression, at least in the legal profession. I have always said that this freedom is ever important for it enables us to know the truth. It also enables us to form opinions, which taken collectively, have been proven in fiscalizing governments. For instance, we now know that the PDAF and DAP were never intended to benefit our people. They have been intended and used to further enrich our corrupt officials. If anything, the investigative work of journalists on PDAF and DAP has shown how crucial a vibrant press is in informing our people and in keeping our government in line.

But I have had to re-examine my advocacy for freedom of expression recently. This is because have had to reckon with the ugly side of the terrain: irresponsible journalism.

Note that days after my fellow private prosecutor in the Maguindanao massacre case, Nena Santos, claimed that Department of Justice officials were purportedly accepting bribes from the accused, the witness, Lakmudin Saliao, who, even if purportedly under the government’s Witness Protection Program, is actually under the custody of Governor Toto Mangudadatu; spoke to media, This was obviously arranged by Nena Santos herself. Purportedly the “smoking gun” to prove her allegations of bribery, Saliao then related that when he was still under the employ of the Ampatuans, he gave Atty Sigfrid Fortun the amount of P50 million, 20 million of which was to be paid to Undersecretary Francisco Baraan, and the balance of P30 million to be paid to the rest of the public prosecutors.

In the mind of Santos, this disclosure proved that Baraan was indeed on the take. The only problem was that Saliao, as one of the government’s star witnesses in the Ampatuan trial itself, was testifying on matters which occurred in 2009 and 2010 prior to the PNoy administration. Baraan only joined government as part of the PNoy administration. Hence, contrary to what Saliao is saying, Baraan could not have received P20 million since he was not yet in government at the time of the alleged payoff.

So when Ces Orena-Drilon came to my temporary office in the UP College of Law to show me a PDF file of an alleged diary listing personalities which she concluded were lists of individuals having received money form the Ampatuans, my remark to her was: “Ces, you’re the only one who still believes Nena Santos.” It was at that juncture that Ces then said that her informant was different from Nena Santos although she admitted that she met this informant through Nena Santos. Nena would later lie on national televisions and say that she does not know the informant.

I even explained to her that Nena was obviously on the warpath after she was found lying. But Ces was persistent. She then showed me an entry of a phone number, which corresponded to mine -next to the word “speedy”. Another entry had the notation “Speedy 10 M and a car”.

Asked for my reaction, I first explained that the since the diary was provided by an informant who did not prepare the diary, the same was not authenticated. I then said that while the number corresponds to my cell phone, my number is a very public number since it appears in all my press releases, my blog and FB entries, I do not know any “speedy” and do not know why it appears next to my number.

But lo and behold, in the newscast for that evening, it was reported that I received P10 million and a car since I was using the alias “Speedy”.

I am sure that those who know me will not believe this allegation. How do you explain the fact that unlike Nena Santos who has not presented a single witness in the Ampatuan prosecution, we have not only been active in presenting our witnesses (about 35) in the massacre case itself but have field 23 other actions against the Ampatuans? This included the plunder case against the Ampatuans, actions to freeze their assets with the Anti-Money Laundering Council, a separate civil case against former President Gloria Macapagal Arroyo for her complicity in the murder, separate criminal charges against the military officials in the area and international remedies for the victims. And unlike Nena Santos and Prima Quinsayas who are paid for their services, we have been doing our work against the Ampatuans on a pro-bono basis. It is strange that I – who have been working for free in these cases for five long years -was the one maligned as having received money from the same individuals who have in turn, sued me at least 14 times either in the form of contempt petitions or libel in their turf of Cotabato City.

Today, I am in the process of re-examining my advocacy for freedom of expression. I represent today the most number of journalists accused of libel and other families of journalists who have been killed and have not been accorded domestic remedies for their murders. We also continue our advocacy to decriminalize libel. But when a very senior journalist, a graduate of the same state university where I am a full professor, resorts to abuse of the right to a free press, one cannot wonder now if my lifelong passion in defending this freedom is indeed a noble pursuit.

I continue to dwell on it.

This post first appeared in http://manilastandardtoday.com/2014/08/14/re-examining-freedom-of-expression/

Centerlaw : FFFJ Counsel grossly misunderstands SC Resolution on First In First Out


PRESS STATEMENT
Reference: Professor Harry L. Roque, Jr. 09175398096

Centerlaw: FFFJ Counsel Atty. Prima Jesusa Quinsayas is Guilty of Professional Negligence for her Failure to Comprehend the “First-In-First-Out Rule” issued by the Supreme Court in the Ampatuan Case

We at the Center for International Law (Centerlaw) express our grave alarm at the failure of certain Private Prosecutors in the Maguindanao Massacre to comprehend a Supreme Court Resolution which aims to speed up the trial of the multiple murder cases.

We refer specifically to what we have called by shorthand as the “First-in-First-Our Rule” (FIFO) approved by the High Court for the Maguindanao Massacre trial.

For the record, it was Centerlaw through the Roque & Butuyan Law Offices that first proposed FIFO. Simply, under FIFO, the court may already render judgment on the case of any accused over whom all evidence – for and against – has already been heard.

The rationale is that the families of victims and the accused do not have to wait for the evidence concerning 194 Accused to be heard by the court to achieve justice, which could take a long, long, long time.

This is the fair rule respecting due process for both the families of the victim and the Accused.

Thus in the Motion for the adoption by the trial court of the First-in-First Our Rule we filed on December 5, 2011 with the Regional Trial Court Branch 221 trying the multiple murder cases, we said in part:

2. The extraordinary difficult nature of this case behooves this Honorable Court to consider the wisdom of providing closure to the proceedings with respect to some accused.

3. As to some accused against whom the Prosecution has already completed presenting its evidence in chief, after the Prosecution’s filling of its formal offer of evidence with respect to these accused, there is consequently a need to direct the corresponding defense counsels to present their defense evidence.

4. There is nothing in the Rules that prohibits this Honorable Court from so moving; but there is every reason, in the name of procedural and substantive due process for both the Accused and the heirs of the victims of the Maguindanao massacre, to finish
as soon as possible.

5. It goes against every sense of reason and justice to keep everyone in this case waiting until evidence has been presented for and against all 196 Accused, before the court resolves all the cases.

At the time we filed the Motion, we said that of the 196 Accused , only 93 have been arrested. Of those arrested, only 64 had been arraigned. Meanwhile 70 witnesses have been heard in the last two years of the trial as to the 64 Accused.

We noted in the Motion that under the ordinary rules of Philippine criminal procedure, the rule is that an Accused is entitled to confront and cross-examine all his Accusers in court.

This would mean that there will be a constant recall to the witness stand of all witnesses already presented each time there is a newly-arrested and newly-arraigned Accused. Assuming that each of the 103 unarrested Accused claims the right to cross-examine their Accusers one by one, by this measure, it would take a new series of cross-examinations at least 200 years to complete.

We said that none of the international tribunals of contemporary times – even those for cases of mass slaughter where the victims number by the hundreds, if not by the thousands – has resorted to wholesale prosecution of suspects.

“Ultimately, such an approach works against the interests of justice, because of the protracted litigation it entails that could take years and years and years and years and years and years and years and years and years and years and years and years and years and years and years to wrap up,” we said in the 8-page motion.

For the record, other than by lawyers of the Center for International Law, the Motion proposing the FIFO rule was also signed by the Deputy Regional Prosecutor Peter L. Medalle, Senior State Assistant State Prosecutor Ma. Emilia L. Victorio, and Assistant State Prosecutor Susan Villanueva.

Atty. Nena Santos and Atty. Prima Quinsayas did not join the Motion.

The regional trial court hearing the case rejected the proposal, but the Supreme Court subsequently adopted our proposal by issuing a Resolution to institutionalize it and to direct the trial court to implement it.

In paragraphs (2) and (3) OF A.M, No.10-11-5-SC, the Supreme Court thus directed Branch 221 Presiding Judge Jocelyn Solis-Reyes

“…to hold, based on her discretion separate trials for the accused against whom the prosecution contemplates no further evidence and thereby order such accused to present their evidence and, accordingly, have the case submitted for decision with respect to them; provided, that this paragraph is without prejudice to the application of rules on demurrer to evidence or other modes of terminating a case in advance of a full trial.

…to issue, when appropriate, separate decisions or resolutions for issues which are ripe for resolution in any of the 58 cases being heard without waiting for the completion of the presentation of the evidence for all the accused.”

The Resolution of the Supreme Court on FIFO is very clear. It so disturbing and bothersome that the counsel hired by the FFFJ Atty. Prima Quinsayas and Atty. Nena Santos for that matter fail to understand the same.

Atty. Quinsayas equates FIFO with any of the following: (1) the accused first on trial would be the one whose case would first be resolved (2) the Accused first to be arraigned to be the one whose case would first be resolved, and (3) first to file a Petition for Bail would be the one whose case would first be resolved

She said as much in two statements she signed and posted by the Center for Media Freedom and Responsibility on the latter’s Ampatuan Trial Watch blog.

The first statement, posted on August 4, 2014 entitled, “Private Prosecutor: resting in ‘evidence-in-chief’ does not reflect ‘first in, first out’ principle” said:

“…FFFJ legal counsel Prima Jesusa Quinsayas said that resting in ‘evidence-in-chief’ before the resolution of bail petitions in the Ampatuan (Maguindanao) Massacre trial does not reflect the ‘first in, first out’ system. Quinsayas pointed out that the list of the 28 accused for whom state prosecutors intend to rest their case in both the bail petitions and ‘evidence-in-chief’ does not show that they were among the first arrested, arraigned or the first to file a bail petition.” (emphasis supplied).

The second statement, quoting Atty. Quinsayas and posted on August 8, 2014, and entitled “FFFJ counsel: clarifications on points raised by Atty. Harry Roque,” said:

“My understanding of the concept is that the accused first put on trial would be the one whose case would first be resolved. But whether it’s First to be Arraigned, or First to File a Petition for Bail, the list does not reflect any of those. Thus based on the list of the 28 accused, his reason for supporting the partial resting in evidence-in-chief does not hold.”

Obviously, Atty. Quinsayas totally misread what the Supreme Court said because in this second statement, she also says that “as for the guidelines issued by the Supreme Court for the criminal proceedings of the massacre, the ‘First In First Out’ as a term does not appear in the said guidelines. Instead, the guidelines allow separate trials for the accused if so decided by the trial judge based on her discretion.”

Exactly. First-in-First-Out:

“…to hold, based on her discretion separate trials for the accused against whom the prosecution contemplates no further evidence and thereby order such accused to present their evidence and, accordingly, have the case submitted for decision with respect to them; provided, that this paragraph is without prejudice to the application of rules on demurrer to evidence or other modes of terminating a case in advance of a full trial.

…to issue, when appropriate, separate decisions or resolutions for issues which are ripe for resolution in any of the 58 cases being heard without waiting for the completion of the presentation of the evidence for all the accused.”[emphasis supplied]

Essentially, the High Court approved our proposal as contained in our Motion asking the trial court to adopt the First-in-First Out Rule in the trial of the cases.

It is highly disturbing to us that Attorneys Santos and Quinsayas have seriously jeopardized the prosecution of the case by their professionally negligent blunder.
In their gross error they have likewise arrogantly issued public statements that questioned without any basis the integrity of the work of the panel of public prosecutors and their fellow private prosecutors.

We call on organizations constituting the Freedom Fund for Filipino Journalists (FFFJ) to re-examine the professional competence of Atty. Quinsayas. We even invite these organizations to refer the interpretation of Atty. Quinsayas on the FIFO rule to their respective independent counsels for objective evaluation purposes.

As we have shown, her pointed and unfounded attacks on the integrity of the work of the public prosecutors betray her uncomprehending incompetence. Unwittingly, she has not only placed in serious risk the case of the other victims being prosecuted by other private prosecutors, but also those of victims being supported by the FFFJ as an organization.

H. Harry L. Roque, Jr.
Joel Ruiz Butuyan
Romel Regalado Bagares
Gilbert T. Andres
Ethel C. Avisado
Geepee Aceron Gonzales

Please click here for a copy of the Motion for First in First Out filed December 5, 2011 and the Supreme Court Resolution dated December 10, 2013

Statement of Professor Harry L. Roque, Jr. and the Center for International Law (Centerlaw) Philippines on allegation of bribery


CENTERLAW PRESS STATEMENT
Reference: Professor Harry L. Roque, Jr. 09175398096

This current scandal has the sole purpose of destroying the prosecution and derailing the conviction of the Ampatuans. I will not fall into it. I will not allow myself to be used as a tool in this attempt to derail.

In this fight to bring justice to the 58 victims of the Ampatuan massacre, we are up against somebody who has all the resources to do everything to derail the case and prevent the conviction of the Ampatuans. We will not be derailed.

Since they came up with this story about bribes, I ask the police, the NBI, the Ombudsman, and the AMLA and all the proper authorities to resolve these accusations because this should not get in the way of our mission. Our mission is to bring justice to the massacred journalist and the other Ampatuan victims.

While investigation is being done, I will continue prosecuting the cases against the Ampatuans. This is for the cause of press freedom, this is for the mission. I want justice for the victims.

Our mission is to give the Ampatuan victims swift justice. People say that the trial will take more than 10 years to finish. We want justice now. This is our mission for the fallen journalists and the civilian victims of the massacre.

I expect more ploys to derail us, but I assure the victims that we will be steadfast in our mission and we will deliver the justice that the victims deserve. To the victims, we have a strong case, we will obtain convictions against the perpetrators of these dastardly crimes.

Statement of the Center for International Law on the alleged bribery of public prosecutors in the Maguindanao Massacre


The Center for International Law (Centerlaw) is firm in our goal to achieve justice for the victims of the Maguindanao Massacre.

As counsel for the heirs of 15 victims of the massacre, we lament unsubstantiated allegations of bribery that serve no purpose other than to derail the goal of effective and expeditious prosecution.

The publicity lamentably generated by Attorneys Nena Santos and Prima Quinsayas in making grave allegations against the public prosecutors unfairly taint the integrity of the entire work of the prosecution considering that the allegations hurled remain bare, naked, and reckless even.

If Attorneys Santos and Quinsayas have good faith belief in the worth of their cause, we are the first to encourage them to correctly ventilate them in the proper forum of IBP administrative and judicial criminal proceedings, where they should present real, concrete and substantiated evidence.

As to their claim that they still have many witnesses crucial to the case to present,
we have been hearing about this claim for so long – in fact, long before this controversy came up – and we regret to say that, to the best of our knowledge and after waiting for so long, there is not much that can be staked on such a claim.

For the record, it was Centerlaw that first proposed the First-in-First-Out Rule (FIFO). Simply, under FIFO, the court may already render judgment on the case of any accused over whom all evidence – for or against – has already been heard.

The rationale is that the families of victims and the accused do not have to wait for the evidence concerning 194 Accused to be heard by the court to achieve justice, which could take a long, long, long time.

This is the fair rule respecting due process for both the families of the victim and the Accused.

The regional trial court hearing the case rejected the proposal, but the Supreme Court subsequently adopted our proposal by issuing a circular to institutionalize it and to direct the trial court to implement it.

This is the legal background against which the decision of the public prosecutors to rest the case on the first batch of 28 Accused must be understood.
We actively participated in the presentation of the case against these 28 Accused. With the public prosecutors, we believe there is more than enough evidence presented in court to satisfy the demands of justice.

This is why for lawyers of the Center, without evidence of bribery presented before the proper forum, the charges raised by Santos and Quinsayas do not make any sense.

Sadly – whether Santos and Quinsayas wittingly or unwittingly realize it — the parties that will benefit most from their baseless allegations and senseless intrigues are the Ampatuans.

H. Harry L. Roque, Jr. Joel Ruiz Butuyan Romel Regalado Bagares Gilbert Andres Ethel Avisado Geepee Gonzales

No conflict between Public and Private Prosecutors in Ampatuan Massacre Case: It’s a conflict between Attys Nena Santos ,Prima Quinsayas and everyone else Ref. Prof. H. Harry L. Roque, Jr. 09175398096


“There’s no conflict between the public and private prosecutors in the Ampatuan massacre case. The conflict is between Attys Nena Santos and Prima Quinsayas and everyone else”, this was the reaction of Prof. H. Harry L. Roque, Jr., private prosecutor for 15 media victims in the massacre.

Roque was reacting to the statement of Atty Nena Santos, counsel for Governor Toto Mangundadatu, that a conflict exists between the public and private prosecutors.

Atty Santos has been objecting to the action of the Public Prosecutors in resting its evidence versus 28 of the accused, including Andal Ampatuan Jr aka “Unsay “. Roque added: “We cannot join her in this objection because it was upon our instance that the Supreme Court allowed the system of “First in-First Out” that allows the prosecution to rest its case against some of the 194 accused without waiting for the presentation of the evidence against all of the accused. It was pursuant to this that the prosecutors partially rested its evidence against 28 of the accused.

Roque explained that this is without prejudice to the prosecution resting their evidence against Andal Sr and Gov. Zaldy Ampatuan when all pending incidents in the appellate courts are finally decided upon.

Roque explained that they moved the Regional Trial Court to adopt the “First in First out policy” so that there can be partial promulgation of judgment against some of the accused , hopefully including the Ampatuan patriarch and his two sons, before the end of the administration of President Noynoy Aquino. Roque declared: “for all the President’s fault, we know that he does not owe any debt of gratitude to the Ampatuans. We’re not sure the next President can claim this much”.

Roque, Chair of the Center for International Law (Centerlaw) filed a motion before the Regional Trial Court to adopt the :”First in First Out Policy’. This was denied by the Trial Court but later provided by the Supreme Court in its guidelines for the Trial of Ampatuan Massacre Case.

MH17 and war crimes


The shooting down of Malaysian Airlines 17 over the territory of Ukraine should indeed be a source of great alarm. To begin with, airline travel has toady become the primary mode of transportation for passengers. I log in no less than 50,000 miles per year because I am engaged in the practice of International Law. The 11 million Filipino diaspora worldwide rely on air travel to reach their place of work and to return to their loved ones here in the Philippines. In fact, the three Filipinos based in the Netherlands who perished in the ill-fated flight were part of that diaspora. The concern is if a civilian airliner could accidentally be fired upon by a surface to air missile in an area with an armed conflict, no air passenger is in fact safe today.

The incident, under existing air travel conventions, should primarily be investigated by Ukrainian authorities. This is because Ukraine remains sovereign over its airspace. This is part of its territory. But even if this is the case, the shooting down of a civilian airliner is a concern for the entire international community. This is because the shooting incident is a grave breach of the non-derogable norms of the laws and customs of armed conflict, International Humanitarian Law. Under this law, combatants and fighters must at all times distinguish between civilians, as protected individuals, and other combatants and fighters. The rules say that civilians must not be the object of attack. This is in line with the avowed purpose of the law, which is to spare civilians and other protected persons, of the adverse consequences of an armed conflict. This is why the Geneva Conventions, the treaty that restates the norms of International Humanitarian Law, remains today to be the only universally ratified convention in our planet.

Why is International Humanitarian Law (IHL) applicable to the incident?

It is applicable since there is an armed conflict in parts of Ukraine where pro-Russian separatists have taken up arms with the goal of either creating a new state, or to be reunified with Russia. IHL is applicable to both international and non-international armed conflicts. Here, the rules applicable appear to be those for non-international armed conflicts since it is uncertain if the support given by Russia to the separatists is sufficient to ‘internationalize” the conflict. Thus far, it appears that the separatists, while armed and financed by Russia, do not appear to be under either the effective or over-all control of Russia. In any case, the duty to distinguish between combatants and civilians is a positive obligation of all fighters regardless of the type of conflict.

So how does the application of IHL affect the incident?

In many ways. To begin with, the investigation, apprehension, prosecution and punishment of all those behind the shooting become the concern not only of Ukraine, but the entire international community. In fact, their apprehension and punishment under the doctrine of au dudire au adjudicare are an obligation of all states. Russia hence, must take steps, as do Ukrainian authorities, to investigate the incident and ensure their prosecution and punishment. In default of this duty, Russia is under a positive obligation to surrender the suspected perpetrators to the jurisdiction of a third state that is able and willing to prosecute them.

International precedents have also treated attacks on civilians also as threats to international peace. IHL, or jus in belo, is distinct form the law that determines the legality of the use of force, Jud ad bellum. Under the latter the UN Charter provides that the use of force is illegal save in instances of self-defense or when authorized by the UN Security Council itself. The Security Council, in turn, has characterized the duty of states to turn over suspected perpetrators of attacks against civilian airlines as a binding obligation of UN member states. This was why Libya had to later create a fund to indemnify victims of the Lockerbie incident where a Pan-American airline 747 was shot down in the airspace of Lockerbie, Scotland. Libya initially invoked the provisions of the Montréal convention to argue that it should exercise jurisdiction over the suspected Libyan bombers, but the Security Council, weary of a moro-moro, said that Libya should turn over the suspects to United States authorities, the flag state of Pan Am. Libya’s initial refusal to turn over the suspects became the grounds for the imposition of economic sanctions against it for a very long time. In fact, the sanctions were only lifted shortly before the ouster of Khadafy and after it agreed to put up the fund to indemnify the victims.

Apart from the duty to investigate and prosecute, can Russia incur additional responsibility for the incident?

This would depend on whether evidence can be presented to prove that the separatists are in fact acting for and on its behalf. In the case of the contras that were financed and used by the Americans in attempting to topple the then Sandinista regime in Nicaragua, the International Court of Justice said that the mere training and funding do not make the acts of the contras attributable to the United States, The Court said that it must be shown that the contras were under the effective control of the Americans so that their acts could be attributed to the latter; this means that all the acts of the contras should be shown as undertaken upon orders of the American. This is a very high threshold.

This is probably why the International War Crimes Tribunal for the former Yugoslavia formulated an alternative test known as the Over-all Control test. Under this test it need only be shown that the third state shared the same military objectives as the armed insurgents, even if the daily course of battle is not dictated by the third state. The problem is that the ICJ in a later case of Bosnia vs., Serbia ruled that the correct test should still be the higher Effective Control test. Currently, it is uncertain which test should apply. Maybe the ill-fated MH17 incident will provide the answer.

Petitioners file Motion for Partial Reconsideration of SC decision on DAP


P-Noy cannot augment funds for approved government projects, activities and programs (PAPs) in the annual General Appropriations Act (GAA) through his controversial Disbursement Acceleration Program (DAP) beyond what he had originally recommended to Congress.

To allow him to do so violates the mechanisms for checks and balances provided in the Constitution and opens the budget process to abuse, according to   defeated senatorial candidate Greco Antonious Beda Belgica, one of the main petitioners in the case.

Belgica, through his lawyers Harry L. Roque, Jr., Joel Ruiz Butuyan and Roger R. Rayel of the Roque and Butuyan Law Offices, filed yesterday a Motion for Partial Reconsideration of the Supreme Court’s earlier ruling striking down cross-border transfers of funds made by the Office of the President through the DAP.

He said there is a need for a definitive ruling from the Supreme Court on the power of the President to augment the funds to cover a deficit in a program for which public funds had been earmarked under the annual appropriations law.

He said that under the DAP, President Aquino in many occasions augmented or added funds from government savings for projects in amounts that exceeded many times the originally funding for them under the GAA.

“To do so would mean giving the President more money for a project that he failed to properly assess and evaluate how much it would cost to implement,” he said in his 23-page motion. “ To allow him to use more money than he initially determined would be required for a certain project would be to disregard the process of budgeting required to be observed under the law.” As proof of this, he cited the following:

 

  • The DREAM Project of the Department of Science and Technology under the 2011 budget (R.A. No. 10147) with an augmentation of One Billion Six Hundred Million Pesos (P1,600,000,000.00).[1] A check with Republic Act No. 10147 disclosed that the project referred to by the Office of the President only had a total appropriation of Five Hundred Thirty Seven Million, Nine Hundred Ten Thousand Pesos (P537,910,000.00) under the category of Maintenance and Other Operating Expenses (MOOE). How could a P537,910,000.00 appropriation be augmented by almost three times such amount, that is, P1.6 Billion for a total expenditure of P2.137 Billion?
  • The same thing is true with respect to the second item wherein the total appropriation under R.A. No. 10147, p. 711, under Section A.II.a is P8,003,000.00 comprising of P5,975,000.00 for Personal Services and P2,028,000.00 for MOOE. Yet, this was “augmented by P300 Million, an amount more than twenty six (26) times the original appropriation.
  • The Repair/Rehabilitation of the PNP Crime Laboratory under R.A. No. 10147, p. 502 under Section A.III.a.1.a on “Conduct of operation and other related confidential activities against dissidents, subversives, lawless elements and organized crime syndicates and campaign against kidnapping, trafficking of women and minors, smuggling, carnapping, gunrunning, illegal fishing and trafficking of illegal drugs.” Clearly, the activity to be funded is a operational activity and not a capital outlay. However, the “augmentation” expense of P3,255,837,000.00 is one for capital outlay for the “Repair/Rehabilitation of the PNP Crime Laboratory.” What is worse is that out of the P48,152,488,000.00 total appropriation for the item under Sec. A.III.a.1.a, P47,476,814,000.00 was for Personal Services while only P675,674,000.00 was for MOOE. There is no appropriation for capital outlay. Thus, there existed no appropriation that the Office of the President could latch on to for this particular “augmentation.”

 

He also attacked recent proposals made by some sectors sympathetic to the President on the issue that the DAP expenditure by the President may be justified under Section 49 of Book VI of the Administrative Code of 1987. The provision reads in part thus:

Section 49. Authority to Use Savings for Certain Purposes. – Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President:

xxx

(9) Priority activities that will promote the economic well-being of the entire, including food production, agrarian reform, energy development, disaster relief, and rehabilitation;

(10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities;

xxx (Emphasis supplied)

 

However, Belgica said through his lawyers that the very same provision requires that the obligations being funded from savings be “incurred during a current fiscal year or previous fiscal years.”

 

This, it can only refer to PAPs with existing appropriation covers and to those unpaid obligations of the previous years, especially contingent obligations that became due and demandable only during the current fiscal year as borne by the enumeration in the cited provision, he said.

 

Belgica took issue with the Supreme Court’s characterization of the government’s budget process as descriptive rather than normative, charging that to do so ignores the constitutional requirement found in            Section 15 (1), Article VI of the 1987 Constitution requiring that the “form, content, and manner of preparation of the budget shall be prescribed by law.”

 

“Thus, and with due respect, to characterize the budget process as merely ‘descriptive, not normative’ and to propose a different ‘treatment of departments and offices granted fiscal autonomy’ is to demean the legal significance thereof as if the process described is merely directory and not mandatory,” he said.

 

[1] Consolidated Comment, par. 33.

The President as a bully


I could not believe my ears. There he was- the President of the Republic—acting like the head of the Sputnik gang, with apologies to the gang.

Sure, no one likes to lose. But when you want to reconsider a loss, you should argue on the basis of law and reasons- at least if its the highest court that you need to convince. But no, the President threw both reason and law and instead acted like a bully telling the members of the Court that if they do not reverse themselves on the DAP, he will ask the Legislature to remove them from office. He even taunted them to a fight, as if the Justices, because of their sheer physical age, could stand up to him.

And why did he think the Court was wrong on the DAP? He identified at least two points, both of which do not hold water. One, the administrative code purportedly empowers him to realign funds even on a cross-border basis. The problem with this submission is the elementary principle of hierarchy of laws. Even assuming that the administrative code authorizes him to resort the DAP, all laws must still conform to the Constitution, the latter being the supreme law of the land. Those that do not are declared by the courts as null and void ab initio, or without legal effect from the beginning.

Second, he argued that at most, the DAP is akin to parking at a no parking zone in order to bring a dying patient to a hospital. Really? Since when did a culpable breach of the Constitution become akin to a breach of a minor local ordinance? Moreover, the Court identified a major breach of the Constitution as basis for invalidating the DAP; that is, that it usurped the exclusive power of Congress over the purse. The DAP involved more than a violation of an ordinance that could result in a parking ticket. The DAP was about the very essence of representative democracy: that there will be no taxation without representation and its corollary, that there can be no spending of public funds without the consent of the people acting through their representatives. That was the full impact of the ruling of the Supreme Court when it reiterated the doctrine in Demetria vs. Alba that the Executive could only realign savings to augment an existing line item and only within the executive or that branch of government that incurred the saving. To sanction what the DAP purported to do, which was to replace projects identified by Congress with other projects identified by the Executive would infringe on the power of Congress to pass the appropriations law which incidentally, is also an important part of the system of checks and balances institutionalized by the Constitution by having three co-equal branches of government.

Well, we ourselves will file a partial motion for reconsideration but find no need in bullying the Court to accede to our arguments. We will rely on the tried and tested formula of arguing through law and reason.

What are our grounds for reconsideration?

Two points.

First, the Court was not clear how much the executive could augment for existing line appropriation items using savings. On the basis of the Court decision itself, we identified at least three projects that were augmented by at least doubling the amount originally appropriated and even up to 51 times of the appropriated amount. Take for instance the national highway project for the President’s home province of Tarlac. The original budget was P1 billion. This was augmented by P900 million, or almost double the initial amount., This, we will argue, is no longer augmentation but a new budget allocation which again, infringes on the power of the purse that properly pertains to Congress. Similar “augmentations” mentioned in the Court’s decision include a P6 million budget for research and development of the DOST which was augmented 51 times with 300M and the billions and billions by way of augmentation to senatoriables Ging Deles and peace bond queen alias “when we hold on together” Dinky Soliman’s departments.

A second ground for reconsideration is that the lump sump for contingencies and natural calamities should also be declared unconstitutional. This is pursuant to the earlier Belgica decision on PDAF which declared all lumps sums, except for these two items, as being unconstitutional. We will argue that even these two should be declared unconstitutional since the remedy for the executive in case of extraordinary expense is to go to Congress for a supplemental budget. This was done for Yolanda. Why shouldn’t it be done anew for similar unexpected expenses?

In any case, what appeared more troublesome with the President’s desperate effort to defend the patently constitutional infirmed program that is the DAP is the reality that while he has the Constitutional mandate to enforce the Constitution and the laws of the land, he is the first to breach both the Constitution and the laws of the land. And in so breaching his constitutional oath, he resorts to bullying the Judicial branch of government into sustaining his unconstitutional acts. This is troubling because this would have been unthinkable in the administration of both my idols, Ninoy and Cory. The parents must now be turning in their graves with the acts of their unico hijo.

Petitioners to seek partial reconsideration of SC decision on DAP


Centerlaw Press Release
Reference: Prof. Harry L. Roque, Jr. 09175398096

A group of Petitioners against the Disbursement Acceleration Program (DAP) will seek a partial reconsideration of the DAP Decision to force the Supreme Court to implement the laws that require that savings can only be used for augmentation of deficient appropriations according to lawyer Harry Roque, counsel of Petitioners Greco Belgica, et al. This is necessitated by the fact that while the Decision categorically said that “an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings,” in the dispositive portion of the Decision, the Court declared as unconstitutional only “The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.” Thus, the Court did not actually give life to the constitutional requirement for valid augmentation and did not implement the provisions of the General Appropriations Act for 2011, 2012 and 2013 and the second paragraph of Section 44 of Presidential Decree 1177 which required that for any augmentation to be valid, there must be an actual deficiency in an existing appropriation and not merely the existence of an appropriation cover.

Roque said that this is a disturbing part of the Decision as it seems that the discussion and examples cited by the Supreme Court on the subject focused only on the lack of appropriation cover. For example, the Court cited the Disaster Risk, Exposure, Assessment and Mitigation (DREAM) Project of the Department of Science and Technology (DOST) with the following expenditures under the DAP: Personnel Services – P43.5 Million; MOOE – P1.164 Billion; and Capital Outlays – P391.9 Million. However, the original appropriations under the General Appropriations Act for 2011 are: Personnel Services – P0.00; MOOE – P537.9 Million; and Capital Outlays – P0.00. If the Supreme Court Decision as it now stands is followed, the only questionable augmentations in the above example as pointed out by the Supreme Court itself are those relating to Personnel Services and Capital Outlays which amount to only P435 Million out of the P1.6 Billion spent for the Dream Project. However, the money spent for MOOE under the DREAM-DAP is P1.164 Billion or almost three times (3X) the amount spent for Personnel Services and Capital Outlays (P435 Million) under the DREAM-DAP. More importantly, the P1.164 Billion spent on MOOE is more than twice the P537 Million originally appropriated for MOOE.

It is clear that on the items for Personnel Services and Capital Outlays, there was no valid augmentation as there were no appropriations to be augmented. What is not so clear is whether there was actual deficiency for the MOOE that required augmentation. In the example cited by the Supreme Court, the augmentation was more than twice the original appropriation. Roque asked: “Can this be reasonably called a deficiency considering that the augmentation is more than two times the original budget? Would the additional P1.164 Billion be considered as the actual deficiency in the original appropriation? What would prevent the President to add P1 Billion, P10 Billion or P100 Billion more and claim that it is a valid augmentation?”

He cited other examples:

1. The “National Road Project in the Province of Tarlac” where the original appropriation was only P1.1Billion was given an additional P900 Million which is almost (P200 Million less) the same amount as the original appropriation. Would an augmentation in an amount equal to or less than the original appropriation automatically qualify as a valid augmentation?
2. The DOST original appropriation of P5.975 Million was augmented by P300 Million or almost fifty (50) times the original appropriation. Is fifty times the original amount be reasonably called a deficit so as to qualify for augmentation?
3. The budget for the Office of the Presidential Assistant for the Peace Process (OPAPP) for 2011, 2012 and 2013 totaled P700 Million, more or less, including the budget for the program called Payapa at Masaganang Pamayanan or PAMANA. However, the money given under the DAP for this program granted to the Cordillera People’s Liberation Army (CPLA) amounted to P1.5 Billion while the money given to the Moro National Liberation Front (MNLF) was P1.8 Billion. How can this be called an augmentation of an actual deficiency when the amounts used to augment is more than two times (2X) the budget of the implementing agency for the past three years?
4. The P700 Million in DAP assistance to the Province of Quezon under the Local Government Support Fund (LGSF). The appropriation for years 2011, 2012 and 2013 for LGSF was P200 Million for each year. How can P700 Million be characterized as augmentation when it is more than the budget of the program for the past three (3) years?

Given the above examples, there is a need to clearly define what constitutes actual deficit so as to be able to make valid augmentations as this may be exploited by those responsible for the DAP as their escape mechanism to avoid criminal and administrative liability. Further, this may be relied upon as authority in the future to provide for measly funding for many items in the GAA just for the purpose of providing “appropriations cover” where “savings” may be used.

Roque concluded that what is paramount is the Constitution which requires that “Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget.” If Congress (whose role is to authorize the maximum amounts that Government may spend for any appropriation for any given year) cannot increase the amounts submitted by the President, then all the more reason that the President (whose role is limited to the execution of the budget) cannot go beyond the amounts authorized by Congress unless there is actual deficiency to be augmented.

The problem that is Lacierda


“You seem to equate constitutionality with criminality, those are two different things the basic question is nawaldas ba yung pera?” These were the words of Presidential bad mouth Edwin Lacierda.

This is the problem with PNoy. He has opted to trust misfits like Lacierda.

Lacierda was obviously asleep when his teachers in Constitutional Law and Criminal Law taught the sanctity of the Constitution and the Law on Public Officers. Had he been awake, he would have known that it is always criminal for a public officer, more so a President, to violate the oath to “support the Constitution and all the laws of the land”. This oath of office is not just provided in the Administrative Code, which has the effect of law. It is contained in the Constitution itself. This means that where a public officer willfully violates the Constitution, he violates his oath of office. Even for a sitting President, this is an impeachable offense. It is a ground to remove him form office.

Perhaps, what caused Lacierda’s confusion is that unlike in the United States where a violation of an oath of office is a federal crime, no such statute exists here in the Philippines.

This in turn is why Lacierda should not have slept through his class in Criminal Law and/or Public Officers. Art. 220 of the Revised penal code entitled “Malversation of Public Funds” provides: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which fund or property were appropriated by law x x x shall suffer the penalty of prision correctional its minimum period or fine ranging from one-half of the total sum misapplied x x x”.

Clearly, when the Supreme Court ruled that DAP was unconstitutional, it ruled that public funds were not spent pursuant to the appropriation law enacted by Congress. In fact, the Court enumerated at least three ways by which the crime of misappropriation were committed: one: realigned funds were not savings as defined by law; two, when realigned funds were given to offices outside of the executive, which the Court described as the “cross-border use of funds”; and three, for items not otherwise provided in the appropriations law. Truth to tell is that those behind the DAP could be held liable for a total of at least 3 counts of malversation of public funds. And given the amount involved, hundreds of billions of pesos, the administration officials behind the program could lose even their underwear since the fine for the offense is at least half of the amount misappropriated.

Note too that the criminal prosecution for malversation of public funds is separate and distinct from two further prosecutions for breach of the Anti-Graft and Corrupt practice Acts; specifically, the offense of causing damage to the government and entering into contracts disadvantageous contract to the government, both of which do not require that the public officer benefited from the public funds.

So do I think the President should be impeached?

Well, the grounds are certainly present. By committing malversation of public funds, the President committed a culpable violation of the Constitution, and even bribery -if it can be proven that the DAP distributed to the senators were in fact paid to influence their vote in the impeachment trial of removed CJ Renato Corona. But as a veteran of three impeachment complaints against GMA, I can claim some wisdom borne out of experience. First, the people, with only two years left in PNoy’s presidency, will not be too supportive of any move to remove him. The people’s thinking is that since two years is too short in politics, we might as well let him finish his term. But a more fundamental reason I am not supportive of impeachment is it will only enrich our Tongressmen and Senatongs further. Our experience against Gloria Arroyo was that Malacañang would again use the people’s money to buy the loyalty of Congress. To the movers behind the impeachment: please spare our people further acts of misappropriation which will certainly happen again in case of impeachment. Our hope is whatever is left from our coffers should be spent on our people. Meanwhile, let us initiate criminal action against those without immunity and after two years, against the soon to be-ex-President himself.

Criminal liability for DAP


This is one of our biggest wins. On Tuesday, the Court voting almost unanimously (because J. Teresita De Castro took no part) declared all the features of DAP which we impugned as being unconstitutional as illegal. Specifically, newspapers reported Budget Circular 541 issued by the Department of Budget and Management allowing it to withdraw “unobligated allotments of agencies with low levels of obligations as of June 20, 2012 to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget was declared unconstitutional.

The Court also annulled the following:

“1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. The use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAA”.

The Constitutional provision declared to have been violated by the DAP is Section 25 (5) Article VI of the 1987 Constitution which reads: “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Now that the Court has declared the DAP as invalid, what happens to those who implemented it?

Here, a distinction should be made between those who implemented them allegedly as a “stimulus measure’, and those who gave them to the senators to influence their votes for the ouster of former Chief Justice Renato Corona. In any case, for both types of government officials, they are liable for graft and corruption.

For those who implemented the DAP in good faith, believing that this would stimulate the economy, RA 3019 penalizes those who “caused any undue injury to any party, including the Government, x x x in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”Certainly, violating the Constitution through illegal disbursements of public funds constitute a damage to the government whether or not the public officer actually benefitted from the disbursement.

For those who disbursed it and accepted it to influence the outcome of the impeachment trial of former Chief Justice Corona, the anti-graft law states that penalizes this as bribery, or “directly or indirectly requesting or receiving any gift, present, x x x or benefit, for himself or for any other person, in connection with any x x x transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.”

While the proceeds of DAP were allegedly for government projects, the reality is the benefit for the legislators will be the “tongpats”, or the commissions, which respected journalists Yvonne Chua and Ellen Tordesillas wrote could range anywhere from 10-50% of the total cost of the project. The element of the transaction wherein the public officer has to intervene in his official capacity is the removal of the former Chief Justice.

I have said it before and will say it again: resort to bribery to remove the former Chief Justice was wholly unnecessary. It was Corona himself that called attention to his own culpability of betrayal of public trust when he himself acknowledged not having declared the entirety of his assets in his SALN. Moreover, the Ombudsman had the goods on him: AMLAC records proving the bank deposits which the removed Chief Justice did not declare. As a Private Prosecutor in that impeachment trial, it angers me that the not-so-bright boys and girls of Malacanang had to taint the process with fraud when in truth and in fact, no Senator could have turned a blind eye to the evidence against Corona.

So what now? Well, we’ve started the cleansing when we charged three senators for plunder. Time now to charge more senior officials, including Cabinet members, and the senators who benefitted from DAP for graft. Anent the President—well, the wait won’t be too long. His immunity is only for the next two years. Hopefully by then, we’ve done away with hospital arrests for former presidents!

This column appeared in Manila Standard Today on July 3, 2014 http://manilastandardtoday.com/2014/07/03/criminal-liability-for-dap/

Notice of Coverage


Request for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096

Today, July 2, 2014, 1:30 pm at Max’s Restaurant (1123 M.Y. Orosa Street, corner U.N. Avenue, Ermita, Manila), Centerlaw and the Roque & Butuyan Law offices will hold a press conference on the recent court decisions on the following cases:

1) Rev Magnolia Mendoza vs Cebu Pacific – where the court ordered CebuPac to pay 2M in damages to Rev Mendoza.
2) On the Declaration of Unconstitutionality of the Disbursement Acceleration Program (DAP)

Media coverage is requested.

ON THE DECLARATION OF UNCONSTITUTIONALITY OF THE DISBURSEMENT ACCELERATION PROGRAM (DAP)


The Supreme Court today struck down key provisions of the government’s Disbursement Acceleration Program (DAP). The declaration of unconstitutionality of the DAP is a great victory for the Constitution and the Rule of Law. The applicable constitutional and statutory provisions on the matter of use of savings and augmentation are very clear – savings can come only from existing appropriations within the department of the government, including constitutional commissions and augmentations may only be effected if the original appropriation is found to be deficient. Thus, the Supreme Court rightly declared cross-border augmentations and augmentations of inexistent programs as unconstitutional and the withdrawal of the unobligated allotments before the end of the fiscal year for programs or projects not abandoned as unconstitutional transfer of appropriations.

Centerlaw, which filed one of the Petitions questioning the DAP before the High Court is elated at the decision of the Court. In the meantime, the Petitioners wait, as in the case of the Priority Development Assistance Fund (PDAF), the criminal prosecution of those responsible for the DAP.

The unconstitutional transfer of appropriations was one of the principal causes for the unmitigated raid of the government’s coffers during the Marcos regime under Presidential Decree No. 1177 that allowed Marcos to plunder the government in the Billions of Dollars. Unlike the PDAF where previous decisions of the Supreme Court upheld its validity, the case of unconstitutional transfers of appropriation was decided as early as 1987 in the case of Demetria vs. Alba.The present administration cannot therefore claim good faith for its unconstitutional transgression. The declaration of unconstitutionality, is therefore, not enough. Aside from criminal prosecution for technical malversation, heads must roll for the illegal expenditures as is required under Section 43, Chapter 5, Book IV of the Administrative Code of 1987.

Centerlaw Chairperson Harry Roque states, “It is a great victory for the constitution and the rule of law. Our next task is to hold those responsible for DAP criminally responsible as well as those behind the PDAF scam.”