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.”

Provisional measures


Philippine policy makers have confirmed that despite the pendency of its arbitration proceedings under the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea, China is hastening the building of an artificial island in Mabini reef, as well as expanding its existing artificial island in Fiery Reef.

Contemporaneous with these construction, China has been more aggressive in exercising its sovereign right to explore for oil in the disputed area leading to recent boat ramming incidents resulting in at least 10 Vietnamese being wounded. It also issued what appears to be a demand letter for the Philippines to leave all of the disputed islands and waters in the Spratlys, as well as from Panatag shoal, the latter being separate and distinct form the Spratlys.

I have written before that China’s acts are consistent with its published defense policy, which currently seeks to achieve “sea-denial capability” in what it considers as its coastal waters, the waters within the so-called nine-dash lines. Clearly, one must commend the Chinese—albeit bereft of legal merits—for their consistency in both policy formulation and implementation.

Given recent Chinese actions and the fact that contrary to the best hope of Philippine policy makers that US President Obama’s visit to the region will have a deterrent effect on Chinese expansionism, these recent events validate China’s design to expel all other claimant countries from the disputed territory on or before 2020, which is only six years away. Given this reality, it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling particularly on the validity of the nine-dash lines, described by a Japanese academic recently descried as a prayer for “declaration of rights” rather than an exercise of maritime delimitation, the latter being covered by a Chinese reservation to the jurisdiction of the UNCLOS dispute settlement procedure.

One manner by which the Philippines could utilize the existing arbitration as a means to curtail China from its expansionist desires is through a remedy known as “provisional remedy” provided under Art. 290 (1) of the UNCLOS. Said provision reads: “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision”.

Case law is replete with instances when Tribunals deciding on issues involving the Law of the Sea have resorted to provisional measures. For instance, the ITLOS, prior to the formation of an Hoc panel headed by Filipino Florentino Feliciano in the Southern Blue Fin Tuna case, issued a provisional order against Japan from further fishing of blue fin tuna in the pacific pending resolution of the arbitration on the merits. Likewise, in MV Saga No. 2, ITLOS issued provisional measures for the immediate release of the vessel and its crew. In the latest case between Netherlands and Russia involving the arrest and charging of Greenpeace activists charged by Russia with piracy, the ITLOS also issued provisional orders for the immediate release of the activists.

The literal provisions of Art 290 of the UNCLOS on provisional remedies require only two elements for the issuance of a provisional order, to wit; prima facie determination of subject matter; two, necessity of preserving rights of the parties pending the final decision.

I suppose the reason why the Philippine legal panel did not ask for provisional measures from the start of its claim is because of China’s specific reservations to the dispute settlement of the UNCLOS which may come to play where a provisional order is asked of the tribunal. Specifically, this relates to the exercise of law enforcement activities arising from the exercise of sovereign rights. Note that the arbitration was finally resorted to by the Philippines after its fishermen were literally barred from fishing in the area of the Panatag shoal. Fishing in the Exclusive Economic Zone is an exercise of sovereign rights, which relates to the exclusive right to explore and exploit natural resources found in the EEZ. Had the Philippines asked at the onset for provisional remedy against China barring Filipino fishermen from fishing in Panatag, the controversy would have fallen on a subject matter expressly reserved by China from the jurisdiction of the tribunal: the sovereign right to fish.

But China’s recent acts have gone beyond law enforcement activities relating to sovereign rights. The building of artificial islands in low tide elevations, such as Mabini reef and Fiery Cross reef, are actual exercise of sovereign rights and do not relate to law enforcement activities. Likewise, its recent use of and resort to the threat to the use of force against the Philippines and Vietnam, coupled with its demand for both claimants to leave the area under their possession, are clear exercise of sovereignty and do not relate to the subject matter reservation of China. Moreover, China’s acts, because they are done pursuant to its disputed nine-dash lines, may be challenged on the basis that the Philippine (would be) prayer for provisional measures, and its prayer on the merits, call for declaration of rights and not maritime delimitation, the latter also excluded by China in its reservations to the UNCLOS dispute settlement procedure.

The bottom line is this: when the UNCLOS required all parties thereto to bring all questions of interpretation and application to the dispute settlement of the Convention, it could not have contemplated that state parties who opted not to participate in these proceedings should be allowed to violate provision of the Convention with impunity more so when they choose not to participate in the compulsory proceedings. Given China’s recent actuations, it’s high time that it is reigned in through a provisional measure.

China is challenging UNCLOS


Following is an excerpt from my discussion in the recently concluded 5th Annual Meeting of the Japan Society of International Law held last June 15, 2014 at Chuo University in Tokyo.

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are aserious and belligerent violations of the UN Convention on the Law of the Sea (UNCLOS), to which it is a party.

Its refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratlys constitute a serious breach of the UNCLOS. As a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention.

The international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”. By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory.

The view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice, that states that made declarations when they ratified the UNCLOS, China included, are “deemed to have opted out of the dispute settlement procedure of the Convention” is erroneous. Proof of this is that China subsequently made reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures. This proves that China agreed to be bound by the procedure and hence, it is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal.

More worrisome is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings.

The Philippines initiated proceedings under the UNCLOS dispute settlement procedure to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague-based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has built artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

China’s claim is that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. But clearly, the three specific prayers of the Philippines involve only issues of interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, this is not the subject of the Philippines’ claim.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, which is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. Nishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands where it has built artificial islands, two of which the Philippines claims, should form part of its continental shelf. The Japanese academic observed that since two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, these two may not be declared as part of the international sea bed.

He supported, however, the Philippines’ position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

4

UP PROF: “CHINA CHALLENGING UNCLOS”


REF. Atty Romel Bagares 09166679802

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS), of which it is a member, according to an outspoken Filipino legal academic at an international law conference in Tokyo.

Speaking at the 5th Annual Meeting of the Japan Society of International law at the Chuo University Law School last Sunday, University of the Philippines professor Harry L. Roque Jr. said that China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitutes a “serious breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention”.

Roque, who is also Director of the UP Law Center’s Institute of international Legal Studies, said that the international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”.

“By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” said Roque.

Debunking the view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice that states that made declarations when they ratified the UNCLOS, China included, are deemed to have opted out of the dispute settlement procedure of the Convention, Roque noted that China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures proves that China agreed to be bound by the procedure. “This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

More worrisome, according to Roque, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

“These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings”, Roque said.

The Philippines is the International Tribunal on the Law of the Sea to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague -based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has build artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim, Roque added.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. NIishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands, which the Philippines claimed should form part of the Philippine continental shelf. At least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, and thus may not form part of the Philippine continental shelf, according to the Japanese academic.

He supported however the Philippines position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

Prof. Roque’s power point presentation at the conference may be found in http://www.harryroque.com

THE KILLING OF JOURNALIST NILO BACULIO: BLOOD IN THE HANDS OF OUR COURTS


 

REF. Prof. Harry Roque 09175398096

(Prof Roque represented the deceased Nilo Baculio n procuring the first ever Writ of Amparo in favor of a journalist. The CA, however, did not issue inhis favor a writ of protection)

 

Nilo Baculio, a crusading journalist from Mindoro, was reportedly killed today at about 12 noon by two motorcycle men riding in tandem. He is the latest in the increasing number of journalists who are being killed with impunity because of the failure of he P Noy administration to investigate and punish the killers of journalists in this country.

But Nilo was not just another journalist killed. Prior to his killing, he was the first journalist for whom the Supreme Court issued a Writ of Amparo. Regrettably, when remanded to the Court of Appeals for determination of propriety of issuance of a protection order, the Court of Appeals denied his plea ruling that Nilo failed to prove the threat on his life .

His killing today is what happens when the Court errs in their appreciation of evidence.

Nilo in his application for protection order stated under oath that locally elected officials engaged in the illegal drug trade are out to kill him. The CA said this was not supported by evidence beyond the say so of Nilo. Granted that the CA’s decision was prior to the ruling of the Supreme Court in the Manado brothers case where the Court said that Amparo is proper in order to release a petitioner form the threat of fear form his life, the CA, in Baculios case, wanted evidence which oftentimes cannot be provided given the nature of threats against anyone: their verification is almost difficult if not possible.

In any case, the killing of Nilo Baculio should prompt our courts to be more circumspect in dismissing applications for protection orders. While a wrongfully issued writ will not hurt anyone, a person denied of the same could result in the death of the petitioner.

There is blood in the hands of the CA Justices who refused Nilo Baculio protection.

Allan and Chiz : Walk the Talk


Unlike Butch Abad about whom I wrote last week, both Senators Alan Cayetano and Chiz Escudero were known to me during the anti-President Gloria Macapagal Arroyo days.

I had the privilege of working with both of them in the three impeachment complaints that we filed against Arroyo. PNoy, then their colleague at the House of Representatives, was with us. But the acknowledged brains and spokesman for the impeachment team were Escudero and Cayetano, respectively.

Chiz Escudero was minority floor leader when we filed the first impeachment complaint. Unlike Alan whom I knew only in the course of the impeachment, I have known Chiz since high school in UP Integrated School, although I was three years ahead of him. The task of dealing with the dubious Oliver Lozano bogus impeachment complaint fell on his shoulder, this despite that he and Lozano belonged to the same fraternity.

Alan Cayetano was my best yield from the ill-fated impeachment complaint. While the complaint was thrown out by Arroyo loyalist Edcel Lagman on the basis of “a prejudicial question” which was that the first Lozano complaint, bogus as it was, barred the filing of our substantive complaint. My involvement in the impeachment process gave me a true friend in the person of Senator Cayetano. We may not have reached second base in the sui generis process of the impeachment, but Alan was to shine nationally courtesy of his eloquence and his one-liners.

I have nothing but utmost respect for these two honorable Senators. They are without doubt, men of principle, and both have proven that they adhere to the highest ideal of justice and public accountability.

How do I feel now that we hear that Napoles allegedly paid them off? Like the rest of their supporters, I was very disappointed and sad.

There seems to be a substantial difference between the entanglements of the two senators with the PDAF queen. In Cayetano’s case, it was the uncle, whom everyone knows is the political adviser of the senator, who allegedly received but returned a sum of money because they wanted a bigger percentage. In the case of Escudero, it was alleged that Napoles contributed to his campaign kitty. The difference is, if Napoles is to be believed, that Cayetano’s bribery was frustrated allegedly because his camp wanted a bigger percentage of the loot, while Escudero may have benefited from the scam without probably being aware if it.

Nonetheless, their names have been dragged into the scandal. No longer are both of them the epitome of new politics that they were during the challenging anti-PGMA days.

Am I surprised that even the most idealistic politicians have been dragged into the mess?

Not really. The nature of PDAF as an institutional source of corruption has been widely known since Yvonne Chua and Ellen Tordesillas wrote about it as early as the 1990s. This means that all politicians, even the most progressive, benefitted from institutional corruption for as long as they accepted and/or utilized their pork barrel. That is why only Ping Lacson stands on moral high ground since he is the only one (possibly Joker Arroyo, as well) who refused to accept his pork barrel. So the thought that both Cayetano and Escudero benefited from institutional corruption does not come as a surprise, at least to me.

Be that as it may, the fact that they were dragged into this pork scandal is still depressing, I know both gentlemen as true nationalists. They are competent, and winnable. The two, either individually or together, could very well redefine personality based and feudalistic Philippine politics into an issue and solution based multi-sectoral discussion. While party lists Bayan Muna and Akbayan (during their pre-PNoy collaboration for the latter) have been articulating well the need for progressive politics, Alan and Chiz have also been doing this and still win in the game—something that Bayan and Rissa Hontiveros have failed to do.

Is all lost for these two young beacons of hope?

Most certainly not. But the beginning should be utmost transparency from both of them. Alan here has a bit of an advantage since he never received money from Napoles, even if it is for the wrong reason. He should probably use this opportunity to clean his own backyard and get rid of nepotism within his own camp. This should mean retirement for his uncle.

Chiz, on the other hand, should just come clean since the only allegation against him is that he received campaign funds from Napoles. He probably did on his first run for Congress when as a member of the opposition, there was truly a dearth of campaign funds for those who opposed Mrs. Arroyo. But he has to come clean and be honest in this regard.

I also personally know that both senators have been utilizing the same contractor from the South, notorious also for paying SOPs to his legislator principals. Perhaps, as part of their re-birth in Philippine politics, they should both shun this practice of favoring contractors whom Chua and Tordesillas claim will in turn, pay kickbacks to the legislators. This entire scheme explains the sad state of our public infrastructure.

Not all is lost for these two brilliant statesmen. But they have to walk the talk. They have to practice new politics and not just play lip service to it.

Butch Abad


I do not know if Butch Abad has become corrupt. But I did know him to be an upright and honorable man.

I’ve known Butch for about 30 years now. As an original member of the Liberal Party, I had the pleasure of meeting him as the party’s official candidate for Congressman in the lone district of Batanes. If I’m not mistaken, I first met him in the residence of my grand uncle, Former Senate President Jovito Salonga. My Ka Jovy introduced him as a stalwart of the party. Apparently, his father before him was also a big man within the party.

I also knew him when as a law student; I worked as a legislative staff officer for another LP member of Congress. During the 8th Congress and when he was a loyal lieutenant to Ka Jovy, he had a reputation for integrity and probity. I remember Butch lost his Committee Chairmanship when he refused to join the LDP bandwagon. That made me respect him even more.

I would then have close encounters with him and his wife Dinah when during the Presidential Elections of 1992, Butch ran for the Senate. I was then in the very lonely and cash-strapped campaign of Ka Jovy for President. There were many nights when, had it not been for the kindness of Butch and his wife; I would have spent many nights literally in the sidewalks of the country. Butch and his wife personally paid for many nights of my lodging all over the country.

But it was not just his generosity in times of need that made me respect Butch. He was a man of principles, a firm believer in justice, and yes, of unimpeachable integrity. I am one of those utterly shocked that his name would now be dragged into this latest pork barrel scandal with his name surfacing prominently in the affidavit of Janet Lim Napoles, Benhur Luy’s files, as well as the lists of Ping Lacson, Sandra Cam and Leila De Lima.

Janet’s affidavit is particularly damning for Butch. According to her, it was Butch, when he was then a Congressman, who taught her that PDAF funds could be funneled and laundered through bogus NGO’s.

While Janet’s word should not be taken as gospel truth, what bothers me is that under the rules of evidence, a positive assertion is always stronger than a negative one. This means that Janet’s narration of how she learned the ropes for her infamy, and her account of how in at least two instances she paid off Butch is stronger than any of the denials that Butch has been making and will make in the future.

I must admit that I’ve lost touch with Butch right after the Salonga Presidential debacle. I do not know if he changed since then. I saw him again when he was campaign manager for then Senatoriable Benigno Aquino III. I was then fiercely anti-PGMA (which I do not regret even if I remain outside the kulambo today) and was a volunteer at the Team Unity’s mid-term Senatorial elections with Senator Serge Osmeña as campaign manager. I distinctly remember having a conversation with him in Intramuros during the LP’s proclamation event. I remember him complaining about lack of funding for then Senatoriable Noynoy since many of the campaign donors dare not risk arousing the ire of then PGMA by supporting candidate Aquino. Prior to his Senate run, I knew PNoy because of the three-impeachment complaints that I drafted and filed against PGMA. Strangely enough, I do not recall Butch, nor many of those in the cabinet of PNoy today, to have been active in the struggle against PGMA. Oh yes, lest I forget, at least 75% of those in PNoy’s cabinet today were with PGMA during those exciting times!

So actually, I do not know what to think about Butch nowadays.

But what I do know is: one, he has to explain his side very well, giving good reasons why Janet would lie against him; and two, present contradicting evidence against the damning testimony of both Janet and Benhur.

It does not help Butch that the warring Napoles and Luy have consistently pointed the accusing finger against him, Worse, it does not bode well for Butch that his boss has been dismissive of the assertions against him if only because this attitude sends the message that Malacañang will sweep his culpability, if any, under the rug. At this point, what Butch needs is a venue to clear his name. If his boss PNoy really cares for him, he will facilitate an impartial and credible investigation on the accusations against him. Anything short of this will have the stench of cover-up.

The best going for Butch is that until now, he and his family have had a good and untainted name. It bodes well for him too that people will remember him risking life and limb against the Marcos dictatorship, and being a trusted and loyal ally to Mr. Clean himself, Jovy Salonga. As Ka Jovi lies now fighting for his last breath, perhaps, it is but apropos that Butch, being one of his favorites, clear his name. Mr. President, please help him in this regard.

Two members of the 1991 Senate that voted No to US bases to question EDCA before the SC today at 11 A.M.


Two members of the 1991 Senate that voted No to US bases question EDCA before the SC

Former Senators Rene A. V. Saguisag and Wigberto E. Tañada will file with the Supreme Court today a petition questioning the validity of the Enhanced Defense Cooperation Agreement between the government of the Philippines and the United States.

Saguisag and Tañada, it could be recalled, are among the “magnificent twelve” senators led by Senator Jovito Salonga who voted to kick the US military bases out of the Philippines in 1991.

Joining them in the Petition are former UP President, Dr. Francisco “Dodong” Nemenzo Jr., Dean Pacifico A. Agabin, Sr. Mary John Mananzan, Atty. Steve Salonga who is a son of former Senate President Jovito R. Salonga, lawyers Harry Roque, Evalyn Ursua and Edre Olalia, Dr. Carol Pagaduan-Araullo and Dr. Roland Simbulan, and former Representative Teddy Casiño of Bayan.

The EDCA is being touted as a mere implementation of policies enshrined in the 1951 Mutual Defense Treaty between the US and the Philippines.

The Petitioners, who are represented in the case by the Center for International Law, however argue that even so, it has no legal leg to stand on because the MDT has already been superseded by the 1987 Constitution which renounces war as a national policy.

For the first time, the constitutionality of the MDT itself is now being challenged before the High Court.

The EDCA also violates the ban on nuclear weapons in the country set in place by the 1987 Charter and deprives the Supreme Court of its constitutional prerogatives to review its constitutionality, according to their 65-page petition.

They also highlight the many disadvantages that the EDCA provides. Finally, the Petitioners argue that the EDCA is a treaty, and therefore requires Senate concurrence.

“Not only is the EDCA a violation of the Philippine Constitution,” the Petitioners said in their petition, “ it also does not provide any substantial, long-term real benefit, much less distinct advantage or improvement in our position vis-à-vis the United States.”

It would be remembered that in 1991, Senators Saguisag and Tañada, along with the ten another Senators led by then Senate President Salonga, rejected a proposed treaty would have extended the presence of the US military bases in the country for at least another 10 years.

The Petitioners say that the EDCA, which allows the US to build structures, store as well as preposition weapons, defense supplies and materiel, station troops, civilian personnel and defense contractors, transit and station vehicles, vessels, and aircraft, grants the Americans carta blanche power to establish and operate de facto military bases anywhere on Philippine soil, minus the cost of paying for one.

According to them, the terms and provisions of the EDCA are clearly lop-sided in favor of the Americans, leaving the Philippines with nothing more than empty promises of support in the event of a Chinese invasion of Philippine territories in the West Philippine Sea.

Scenarios for the accused


Now that it appears imminent that the Motion for Reconsideration from a finding of probable cause against “Tanda”, “Sexy” and “Pogi” would be dismissed, what are some of the likely scenarios that may happen soon?

First, on the issue of how the three Information will be heard by the Sandiganbayan, it is certain that these would be raffled separately since the three were indicted for separate acts, not as part of a conspiracy. Chances are that three separate divisions of the Sandiganbayan will then hear the cases separately.

Second, on the issue of detention, it appears that all three would respect the jurisdiction of the Sandiganbayan when and if it issues warrants of arrest against them. I predict all three would surrender. Nonetheless, as I have repeatedly complained, the rich and powerful are never detained in local jails and made to share a small cell with at least 39 other inmates. Instead, it is almost inevitable that they would be detained in special detention facilities. After all, even former President Gloria Macapagal Arroyo agreed to have Senator Jinggoy Estrada detained in an office of the Philippine National Police in Camp Crame. It is a foregone conclusion that all there senators may be housed in similar offices.

Former Senate President Juan Ponce Enrile, owing to his advanced age, should also have no problem getting a medical certificate attesting to an illness. He will probably get hospital arrest not only because of precedents, but also because of real health issues.

It is almost certain that all three accused would file motions to allow them to post bail to secure their arrest pending the hearing of their cases. The rule is that bail is a matter of right except in capital offenses where the evidence of guilt is strong.

I have written before about the innovations introduced by the Supreme Court en banc that now makes it mandatory for judges to rule on motions for bail expeditiously. Unlike, therefore, the Ampatuans who have been waiting for almost five years before a ruling could be made on their petitions for bail, it is now certain that the rulings on the three senators would be made anywhere from six months to a year.

What are the chances for the three to be granted bail?

Objectively, JPE appears to be certain to be granted bail since there is no direct testimony that he received money directly from Napoles, nor that be benefited from the allegedly malversed public funds. Jinggoy’s fate will depend exclusively on the weight that the Court will give to the lone testimony of Ruby Tuason. While she will testify that she personally delivered money to Sen. Jinggoy, her testimony is tenuous since she does not even know how much she delivered. Anent Senator Revilla, his fate will depend on the weight that the Court will give to handwriting experts who will testify that all the signatures purporting to be those of the senator are in fact forged.

I predict a 75 percent chance for bail for Enrile; and 50 percent chance of bail for both Estrada and Revilla.

In any case, all three accused are entitled to the presumption of innocence and it is the burden of the Special Prosecutors of the Office of the Ombudsman to prove that they are guilty beyond reasonable doubt. Given though that the Ombudsman has had a below-10 percent conviction rate, I doubt if any of the accused are really losing sleep over their cases.

Forgive me for being pessimistic. But if the prosecution for the gruesome murder of 58 people have been moving at a snail’s pace, how much more for a crime that does not involve murder?

The bottom-line is this: unless and until the five pillars of the country’s criminal justice system get their act together, no rich or powerful individual will be punished for their criminal acts.

***

I cannot help but admire the Vietnamese for the manner that they have been standing up to China. When the Chinese hosed their vessels, their vessels hosed them back, even if they were terribly outnumbered. And yes, I also admire the fury of its people. I am not condoning the senseless targeting of Chinese businesses in Vietnam, many of whom turned out to be Taiwanese-owned anyway. But the fact is ordinary people are infuriated at China’s expression and they have made their views widely known, especially by the policy makers in Beijing.

Will the Filipinos have the same fury as our Vietnamese brothers? Probably not. When China took control of Mischief Reef away from us, our leaders cried and whimpered but there was nothing heard from the general public.

Its high time that we Filipinos take the issue of our national territory personally. At stake after all, courtesy of the estimated 2 billion to 200 billion barrels of oil in the contested area, is the economic future of all our descendants.

The Vietnamese are correct: the West Philippine Sea is a personal issue to those being bullied.

This post first appeared in http://manilastandardtoday.com/2014/05/22/scenarios-for-the-accused/

Pigs all


Now it can be told: they were all pigs.

While Malacanang may have intended its witch-hunt to be limited to the political opposition with the recent cases field against Tanda, Pogi and Sexy, the dangerous maneuver has since boomeranged and the pig stench now goes all the way to Malacanang.

We now know that Napoles did not just deal with three senators. She dealt with no less than 25 of them. This is why the only senator who is undoubtedly untarnished by the pork barrel scandal, Ping Lacson, said that the latest Napoles list may bring down the Senate as an institution.

In fairness to those whose names appeared in the list, their guilt still has to be proven in a court of law. All of them, including the initial targets of Malacanang, are all entitled to presumption of innocence. This applies even to DBM Secretary Butch Abad, probably among the closest to PNoy, and even to the Umali siblings, one of whom, the incumbent governor of Mindoro, is known to be among the BFFs of the President. But the cat is now out of the bag. While they all enjoy due process rights, they all now have to answer to the court of public opinion. Ultimately, Malacanang is the biggest loser in this latest expose. For while the Palace billed itself as the persecutor of the corrupt in high and mighty places, such as the Senate, it now has to account for the fact that the dung is now in its front porch. Talk of karma.

Lest we think that only those who appeared in list should explain themselves to the public, the reality is that list only enumerates senatongs and tongressmen who allegedly benefitted from the Napoles style of funneling pubic funds to bogus NGOs. It is not an authoritative list of legislators who personally benefitted from their pork. Ten billion pesos, after all, is a very small amount relative to the total expenditure for PDAF over the years. What still have to be accounted for are the kickbacks, anywhere from a low of 10 percent to a high of 60 percent, in the cost of infrastructure projects. Already, we have heard how a southern contractor, also said to be fronting for the former FG, has cornered the infrastructure allocations from his region and even of sitting and past senators. When will we begin the inquiry on this? Ten billion is an anthill compared to the amount of money funneled to this southern contractor.

The truth is that every legislator who accepted and used his or her pork stinks. Those not in the lists are not in the limelight but are dirty nonetheless. Another stinking truth is that legislators bought their seats in Congress expecting to make a net profit from their pork barrel allocations. This explains why we have a Congress with virtually no cerebral capacity.

But the blame should not be on the corrupt legislators alone. It is the people, after all, who sold their votes to these thieves for a song! Had they voted on the basis of qualification and integrity of those who stood for public office, we would have had quality policies and not the crap that we have right now. And it is precisely because their votes had to be bought that politicians systematically made money out of their pork.

Furthermore, let us not deceive ourselves into thinking that the problem is only in the Legislature. The President has the biggest pork! It’s in the national budget, in Pagcor, and in PCSO. Presidential aspirants, PNoy included, spent no less than P2 billion to join the presidential fray. How do you think a sitting President will recoup his cost? Part of it will come from his pork, although a large part of it will be repaid in dole to campaign contributors.

And yes, even the Judiciary has its own pork, the Judicial Development Fund. Until today, this has not been subjected to full audit.

Was I therefore surprised, or even excited by Ping’s revelation of the names in the list? Certainly not. I know in my heart and mind that all those who accepted pork are corrupt. There is nothing new therefore in the revelation. But what is new is the fact that unlike in the past when the public appeared complacent to systemic thievery, as in fact tongpats has been referred to as “standard operating procedure”, the public now appears enraged.

Some good will hopefully result in this latest telenovela. For instance, it is hoped that with national elections barely two years away, the recent developments will result in the public electing individuals who have the competence and the skills to run both the executive and legislative branches of government. Hopefully, those who have been convicted in the court of public opinion will be meted the penalty of defeat in 2016. This may actually pave the way for those who have not stolen, and will not steal from the public coffers to have the opportunity to render genuine pubic service. Moreover, the public, hopefully, will also be educated that they will have the same rotten leadership if they continue to sell their votes.

The pigsty stinks. Some good will come from  dung—but it wil only come after the process of composting. Let’s hope this is the ending to this zarzuela.

35

World Press Freedom day


It was sad that the annual commemoration of the right that has enabled democracy to exist, freedom of the press, came and went without any form of commemoration in the Philippines. Not only that, instead of a fitting celebration, PNoy himself appeared to have belittled the value of a free press when he responded, on the occasion of Obama’s visit, that most of the victims of media killings are not “work related”.

Again, it was unfortunate that the killing of journalists, high up in the US State department’s list of concerns about the Philippines, took a back seat to the EDCA, which was the subject of intense pubic debate. But the President’s nonchalant way of dismissing media killings as “non- work” related, deserves equal condemnation as the one-sided and Anti-Filipino EDCA.

To begin with, the President’s remarks reflects  ignorance on how the human rights community perceives media killing. This is hardly surprising given his ignorance too of the law on state responsibility when he adamantly refused to take responsibility for the Hong Kong tourists massacre and the killing of the Taiwanese fisherman off Batanes. While ordinary mortals can, perhaps, be forgiven for their ignorance, PNoy is President and should have known better.

His view is opposite to the view expressed by the UN Special Rapporteur on Freedom of Expression, Frank La Rue, who has long said that the killing of journalists is prima facie work related. This is because it’s simply unworkable to distinguish between the official role of journalists from their personal lives. Journalists, like priests, lawyers, or any other professional, should practice in their every day life the ideals and high standards dictated by the practice of their profession. Journalists are responsible for contributing inputs in the free market place of ideas. Their inputs are then used by the public in assessing the truth and in forming their opinions. This is why their roles are crucial in a democracy Without a free market place of ideas; we do not know what the truth is. Without a market place of ideas, there will be no debates on what the truth is.

This is why journalists are targeted in the first place. The killing of journalists is the ultimate form of censorship imposed by those who fear the truth. The fact that we are the most murderous country in the world for journalists reflects the prevalence of the worse form of censorship. PNoy’s justification that they are not work-related adds ignominy to the killings because the state, which is duty bound to put an end to these killings, is instead justifying them.

Does it make it any less worrisome if these killings are in fact not work related? Certainly not. The duty of the Philippines under human rights law is to protect and promote the right to life. The killings of journalists add ignominy to the breach of the right to life. The fact that the victims may not have been killed because of their profession does not make the killings any less a breach of an international obligation.

In any case, the President’s declaration also highlights his administration’s lack of political will to address these killings. The fact that the administration’s point to the Ampatuan prosecution as proof of its  discharge of duties is a cause for alarm. Five years after the gruesome murder, no has been punished for it. The Ampatuan massacre therefore, contrary to the Palace claim, is further proof of breach of the same obligation. It is testament to his administrations failure to accord the victims an adequate remedy under domestic law, which should be just and expeditious.

Vergel Santos was right. What can  we expect from a President who prior to his assumption of office- never held a real job. The Presidency requires extensive work experience and the wisdom derived from it. This President has neither the experience nor the wisdom for the job.

Meanwhile the killings continue. Just yesterday, we had the 27th victim of media killings under PNoy. At the rate journalists are being killed, they will soon be a rarity in our society.

It is crystal clear that under this administration, Press Freedom cannot be celebrated. We can only mourn for every journalist that is killed. There’s bound to be a lot more of them with the prevailing sense of impunity.

This article first appeared in http://manilastandardtoday.com/2014/05/08/world-press-freedom-day/

The EDCA: What’s in it for us?


Why should we allow ourselves to be attacked by the enemies of the US when the US has not given us the same assurance it had given Japan that it would come to our assistance against China?

Let’s compare exactly what President Barack Obama promised the Japanese and what he promised us.

“Our commitment to Japan’s security is absolute and article five [of the security treaty] covers all territories under Japan’s administration, including the Senkaku islands.” In this context, Obama promised that the US is duty-bound to come to Japan’s aid in the event of a conflict with China over a group of disputed islands in the East China Sea.

Compare this with what he declared regarding the Philippines: “Our commitment to defend the Philippines is ironclad. x x x We believe that nations and peoples have the right to live in security and peace and to have their sovereignty and territorial integrity respected.” Furthermore, the US President declared, “We believe that international law must be upheld, that freedom of navigation must be preserved and commerce must not be impeded. We believe that disputes must be resolved peacefully and not by intimidation or force.”

While both commitments appear to be firm, note that Obama did not mention the Spratlys or Panatag in his remarks about the Philippines. He however explicitly mentioned Senkaku Island, which is at the heart of the territorial dispute between China and Japan.

Why was this so?

It is because unlike Senkaku, which the US believes is part of the Japanese territory, the Americans have never believed that we have title over the Spratlys and the Scarborough shoal. In fact in 1933 when France first declared it had title to the Spratlys, only Japan, China and the United Kingdom protested the French claim. The Americans, who were then the colonial power in the Philippines, did not protest the French proclamation. Why? Because they thought that what they purchased from Spain through the Treaty of Paris were only the land territories contained in the map annexed to the Treaty, even if the Treaty does specify that what was bought was the “archipelago of the Philippines, the common meaning of which means islands and waters forming a unitary whole.

So if the Americans would not come to our assistance against China on the West Philippines Sea, why did we allow them further access to our military bases?

Under International Humanitarian Law, the governing law in times of armed conflict, all enemies of the US can target our territory since we allowed US servicemen and facilities to be in our territory. This means that in case of a shooting war, say over Crimea, or because of the on-going US war against terrorism, Russia and terrorist groups can now lawfully target our territory because US troops are present in our territory. With this very high cost arising from the EDCA, what’s in it for us?

Certainly it can’t be any monetary benefit since EDCA does not even require the Americans to pay us rent. Economic reality has made the maintenance of permanent US bases unaffordable for the Americans. Perhaps this is also why they would not pay rent even for their short-term presence in our territory.

Other than the misplaced gratification on the part this administration to be known as America’s lackey, I can’t think of any further benefit that we can derive from the EDCA.

Worse, the EDCA is unconstitutional. While the Aquino administration claimed that it is in furtherance of the Mutual Defense Treaty and the Visiting Forces Agreement, neither treaty is in fact applicable. The MDT is applicable only in case of an armed attack against our “metropolitan territory” or attacks against our “islands in the Pacific”. Since there is currently no armed attack, and since an attack on the Spratlys cannot trigger the application of the MDT, the EDCA cannot possibly be based on the MDT. Neither can it be anchored on the VFA because the presence of US troops pursuant to EDCA goes beyond “visiting”. It is in fact an implementation of a US Defense policy to do away with permanent bases. This being the case, EDCA had to be signed as a separate agreement from the MDT and the VFA. This is why our policy makers, through a 2/3 vote of all our senators, need to give their concurrence to the agreement . This is to ensure that it is pursuant to our national interest.

Perhaps, this administration does not want the senators involved because it knows that the EDCA does not promote our national interest and/or that the administration simply does not have the political support in the Senate, at least not the kind of support that it had when former Chief Justice Renato Corona was removed.

Let’s wise up. Only the Filipinos can stand up for the Philippine interest. Enough of this colonial mentality.

6

WHATS IN IT FOR US? (CENTERLAW STATEMENT ON THE RECENTLY SIGNED 10 YEAR ENHANCED MIITARY AGREEMENT WITH THE US)


 

Ref. Prof. Harry Roque 09175398096

What’s in it for us? This was the question asked by UP College of Law Professor Harry Roque, Chair of the Center for International Law.

As Malacanang announced the signing of a 10 year enhanced military cooperation agreement with the United States, Centerlaw expresses its disappointment over the administration’s failure to advance the Philippine national interest in agreeing to what amounts to an increased rotational presence of US troops in the country.

“If the US will clearly state that the agreement will trigger Americas military assistance if China expels the Philippines form Ayungin shoal and any of the other disputed islands in the Spratly’s, then perhaps. It makes sense to allow the US further access to our military bases and facilities. But the reality is the United States has on the contrary, declared that it will not be dragged into a military confrontation with China over the use of force in the Spratly’s’, So why did we give them further access to our territory in the first place Roque asked

The Mutual Defense Pact of 1951 stipulates that the US will come to the assistance of the Philippines if its territory is attacked by a third state. The US though does not recognize the Philippine title to the Spratly’s and Panatag, insisting that its interest in the disputed area is only to maintain freedom of navigation.

Roque explained: “This is again a one sided agreement where the Philippines allowed itself to be attacked by an enemy of the US in case the latter figures in an armed conflict with a third state. This conflict, will however, not be because of the Spratlys because the US does not believe we have title to the disputed area. The American had their cake and ate it too”.

Roque, who is also Director of the UP Law Center’s Institute of International Legal Studies also expressed the view that the agreement requires Senate concurrence because of the express language of the Constitution that the stationing of foreign troops and bases shall only be through a Treaty duly concurred in by the senate. This, Roque explained, is to ensure that the people’s representatives can ensure that the agreement is pursuant to the national interest, which involves policy making and is hence a legislative power under our Constitution.

 

 

The Cybercrime Law: What’s next?


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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

 

#30#

 

The tale of two envoys


 

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

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

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

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

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

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

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

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

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

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

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

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

 

Centerlaw re: SC decision on RH Law


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

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

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

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

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

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

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

Andal “Unsay” Ampatuan vs Harry Roque


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

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

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

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

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

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

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

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

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

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

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

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

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

 

Click here for a copy of the decision_Unsay vs Roque

 

On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

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

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

What happens now to JPE et al?


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

Not quite.

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

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

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

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

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

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

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

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

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

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

 

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

 

 

China’s retaliation?


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

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

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

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

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

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

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

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

 

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


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

Our obsession with Bar topnotchers


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

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

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

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

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

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

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

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

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

2

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


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

Reference Prof. Harry L. Roque 09175398096

 

 

Why the invasion of Ukraine concerns us


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

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

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

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

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

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

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

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

High court on libel: Lost in overbreadth


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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

Read more: http://opinion.inquirer.net/72119/high-court-on-libel-lost-in-overbreadth#ixzz2uoBnkkAX 
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Disputing treason because of Itu Aba


It is unfortunate that the discussion of whether recently appointed Associate Justice Francis Jardeleza committed treason in omitting Itu Aba from our statement of Arbitral Claims is taking place with the general public in the dark on what the facts and issues are. This is because under the rules of the Permanent Court of Arbitration, which is hearing our case, all proceedings, other than the statement of claims, are confidential. It appears hence that the few media discussions taking place are on the basis of non-attributable statements of confidential disclosures made by one of the protagonists to the dispute, hiding under the cloak of anonymity. Justice Jardeleza is thus in a fix: While he has been accused of treason, he is unable to defend himself because his role as chief counsel for the Republic forbids him to discuss matters appearing in our written memorial.

I myself rely on the disclosures published by favored media outlets of the confidential source. I do not know hence if I am accurately addressing issues raised by him.

Those who accuse Jardeleza of treason argue that he should have amended our statement of claims to include the submission that Itu Aba, although the largest of the islands in the disputed Spratly’s group of islands, is not “large enough” to be considered an island that can generate an Exclusive Economic Zone (EEZ) of 200 nautical miles. The Chinese view is that the waters within its nine-dash lines are generated by land territories including Itu Aba and Huangyang (Panatag) Shoal, among others.

The problem with this view is that it assumes that the capability of an island to generate an EEZ has to do with its size. In reality, Art. 121 of the UN Convention on the Law of the Sea provides that an island’s entitlement to an EEZ depends on whether it can “sustain human habitation.” In turn, what seems to be controlling in this determination is not the size of an island, but whether the island can have a water source that can sustain human habitation. Internet sources have said that Itu Aba has a fresh water source.

In other words, to include the issue of whether Itu Aba can generate a mere 12 nautical miles of territorial sea or 200 nautical miles of EEZ is a double-edged sword. If Jardeleza’s detractors succeed in the argument that it can generate only 12 nautical miles because 80 hectares is not sufficient, well and good. But if the Tribunal should rule that the water source in the island is sufficient to make it habitable, then the Tribunal will confirm the Chinese view that the waters within the nine-dash lines are generated by land territories and hence, beyond the jurisdiction of the Unclos dispute settlement procedures.
The Philippine arbitral claim is anchored on Art. 286 of the Unclos covering issues of application and interpretation of the Convention intended by the international community as the ultimate constitution for seas. Both the subject matter jurisdiction of the tribunal, and its jurisdiction over the parties, depend on whether controversy resolves around maritime territory or sovereign rights and whether a party to such a dispute is a party to the Convention. Its jurisdiction does not include maritime territories generated by land territories. This is because the latter would amount to a “mixed claim,” so-called because it consists of territorial claims to both land and water, which would no longer amount to issues of interpretation or application of the law of the sea. The international law applicable to land territorial disputes are governed by the law of effectivities, or the rule that disputed land territory will be awarded to the claimant state with a superior claim to effectivities, or the exercise of effective occupation. The regime applicable to conflicting claims to maritime territories is the so-called “equitable principles that would result to an equitable solution.”

Moreover, to include Itu Aba in order to procure a declaration that China’s nine-dash lines are without legal basis may also trigger China’s specific subject matter reservation to maritime delimitation. If the Tribunal rejects the view that the island can only generate a 12-nautical mile territorial sea, then the Tribunal would inevitably have to rule where the boundary lies between Itu Aba’s and Palawan’s EEZ. This is a jurisdiction, which China specifically reserved from the jurisdiction of the Unclos dispute settlement procedures.

While China has opted not to participate in the arbitral proceedings, it has caused the publication of a book containing its objections to the jurisdiction of our Unclos arbitral tribunal on the basis that our claims are a “mixed claim” and hence beyond the jurisdiction of the Tribunal. Consistent with established litigation technique in international law, China has not addressed the merits of our claims, apparently confident that it will prevail in its preliminary objections to the Tribunal’s jurisdiction.

In light of the foregoing, it appears grossly unfair to accuse Jardeleza of being a traitor for his hesitancy to include Itu Aba in our arbitral claims. There are those who have openly sided with China on this issue: A colleague in the UP College of Law who was a beneficiary of a Chinese junket and who has published that the Tribunal will dismiss our claims for lack of jurisdiction. There too are Makati-based lawyers lobbying for joint use and development with China even of undisputed territories such as Recto Bank. But Jardeleza a traitor? That’s what China wants us to think.
(Harry Roque is associate professor at the UP College of Law.)

Read more: http://opinion.inquirer.net/77892/disputing-treason-because-of-itu-aba#ixzz3Bdc0G17m
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