Revisiting the Ombudsman Law

That former police officer Rolando Mendoza complained about the inefficiency of Ombudsman Merceditas Gutierrez highlights the need for Congress to re-examine the Ombudsman as an institution created by the Constitution and by law. While it is the 1987 Constitution that first created the Office of the Ombudsman, it is a mere law that gave the said office a monopoly in the filing of criminal information against government officials with a salary rank of Grade 27 and up. It is also a law that gave the Ombudsman the power to hear and decide administrative charges against all government employees. This appears to be redundant given that all line agencies, in conjunction with the Civil Service Commission, already have existing mechanisms to determine the fitness of individuals to occupy a public office.
The complaint of the bemedaled slain hostage-taker was that the Ombudsman was not acting seasonably to dismiss charges against him. He apparently considered these charges to be bereft of merit. The charge was supposedly filed by a chef from Manila Hotel who claimed to have been a victim of hulidap by Mendoza et. al. It was this charge, I understand, that led to his discharge from his office which then gave rise to his demand to be “reinstated into the service”.

In a press forum yesterday at the Rotary Center in Quezon City, journalists mentioned that the same charge against Mendoza had already been dismissed by the Internal Affairs Service of the Philippine National Police. Apparently, despite this dismissal, the matter is still being heard by the Office of the Ombudsman. I can only surmise that this is so because criminal charges against Mendoza must have been filed arising from the “hulidap” incident. In turn, the filing of every criminal charge in the Ombudsman comes with it an administrative charge which will determine whether the respondent should stay or be fired from his public office.

Not being a fan of the Ombudsman, I can only hope that Mendoza’s valid complaints against her will add much needed fire to the pending impeachment complaints against her now pending in Congress. But over and above the fitness of the Ombudsman to continue occupying such a sensitive post, the Mendoza incident ought at least to prompt our lawmakers to revisit the Ombudsman law. In particular, I submit three basic submissions on why the said law should be amended: to prevent similar paralysis in the Office where it is occupied by a virulently political person; two, to put the office at par with the National Prosecution Service; and three, to rationalize its administrative jurisdiction.

The Ombudsman was envisioned to be a super body that would have the power to promote honesty, efficiency, and transparency in government. Its powers are many and may in fact be rivaled only by the President himself. It has coercive powers to compel attendance and production of evidence, order the doing or to cease the doing any act, to investigate any case of ill gotten wealth, and even the power of contempt. Moreover, it has the power to file criminal information before the Sandiganbayan against public officers with a salary grade of 27 and up. It is this particular power that is hindered where the Ombudsman is seen to be more political than a legal institution. As seen in the case of Ombudsman Merceditas Gutierrez who has admitted her personal closeness to the past dispensation, political loyalty could lead to wanton impunity owing to the Ombudsman’s avowed refusal to investigate her political benefactors. Perhaps, amendatory legislation is now necessary to address this inherent weakness. How? By vesting in the Executive, through the Department of Justice, the concurrent power to file these criminal Information with the Sandiganbayan. Had this been in place, there would have been no further need for P-Noy’s Truth Commission.

Secondly, in the conduct of preliminary investigation, the law should be amended to compel the Ombudsman to resolve all of its investigations within a non-extendible period of 90 days. In the Pestano case for murder, the Ombudsman took ten years to investigate the matter and at the end of its alleged investigation- only to dismiss the case. Why should the Ombudsman be allowed 10 years to determine the existence of probable cause where our public prosecutors will lose their entitlement to their salaries if they do not conclude with their investigations within 90 days? This was the crux of Mendoza’s gripes against the Ombudsman. The truth of the matter is that the Ombudsman is now notorious for sitting on cases for years with the result that once decent people, like Mendoza, have lost all hopes in our legal system precisely because of inordinate delays.

The final area for remedial legislation is the need to rationalize the exercise of the Ombudsman’s administrative jurisdiction. If the reports from the media are correct, Mendoza’s administrative case had already been dismissed by the Internal Affairs Service of the Philippine National Police. In other words, had it not been for the administrative investigation also being conducted by the Ombudsman, there would not have been a hindrance to his reinstatement into the service even without him resorting to the taking of hostages. It seems to me that legislation should be introduced either to vest in the Ombudsman the sole jurisdiction to determine the fitness of individuals to hold public office, or to grant this existing power to already existing agencies. In the case of the PNP, these bodies are the Internal Affairs Service or the National Police Commission. Certainly, we can understand the frustration of Mendoza when despite being cleared by the

IAS, the inaction of the Ombudsman has nonetheless prevented his reinstatement.

Nothing of course will justify what Mendoza did. Some good, though, should come out of this latest tragedy. Perhaps, the foregoing remedial legislation will be the good news resulting from the tragedy at Luneta.

Published in: on September 2, 2010 at 11:03 pm  Comments (11)  
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State responsibility for treatment of aliens – INQUIRER.net, Philippine News for Filipinos

State responsibility for treatment of aliens – INQUIRER.net, Philippine News for Filipinos.

Published in: on September 2, 2010 at 1:19 am  Leave a Comment  

Third author plagiarized by SC justice complains (from Newsbreak)

Tams – Letter to Supreme CourtMANILA, Philippines—The third of the foreign legal authorities whose works were plagiarized by Supreme Court Justice Mariano del Castillo has written the tribunal to officially express his “concern.”

In a letter addressed to the court en banc, Christian J. Tams, a professor of international law at the University of Glasgow, expressed concern over “the use of one of my publications” in the Vinuya case (GR No. 162230).

In Vinuya et al vs the Executive Secretary, the Filipino women who were turned into sex slaves by Japanese soldiers during World War II wanted to force the Philippine government to demand from Japan an apology and compensation for the atrocities. The Supreme Court denied their petition.

In denying the petition of the Filipino “comfort women,” the Supreme Court, in a decision written by Justice Del Castillo, used arguments that, it turned out, were copied without attribution from the works of three foreign legal experts.

Newsbreak reported that Del Castillo lifted quotes and footnotes from:

“A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law.
“Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law.
“Enforcing Erga Omnes Obligations in International Law” by Christian Tams, published in 2005.
Del Castillo plagiarized 31 parts of Criddle and Fox-Descent’s article; 24 of Ellis’s; and 4 of Tams’s.

Criddle and Ellis had written the Philippine Supreme Court separately over the incident.

In his letter dated August 18, Tams said sentences on page 30 of the decision were “taken almost word by word from the introductory chapter of my book, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005).”

Tams noted that “there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.”

The letter has an annex showing a comparison of the passages from Tams’ book and the Supreme Court’s decision, which Newsbreak published earlier.

“I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law,” Tams continued.

“With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support—as it seemingly has—the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s judgment has drawn on scholarly work without properly acknowledging it,” the professor continued.

Tams ended his letter by saying he would “appreciate a prompt response” from the court on the matter.

This act of plagiarism has been strongly criticized by professor and students of law in the Philippines. Some quarters have even called on Del Castillo to resign.

The Supreme Court has formed an ethics committee to investigate the matter. (Newsbreak)

Published in: on August 22, 2010 at 2:29 am  Comments (1)  

Torture

It was not the ideal image to wake-up to. There he was: naked, emaciated and cringing from pain whenever his torturer would pull the rope attached apparently to his sex organ. He was hog-tied like a beast lying on a cold floor. His torturer, on the other hand, was stocky, full of energy, and apparently, god-like in the belief that he had in his hands—literally and figuratively- the decision on whether his victim was to live or die. Only a beast would not be moved by the said image. And yes, being the squeamish person that I am, I could not help but shed a tear or two after seeing that disturbing image.
Perhaps, the only good thing that came out of this image of torture is the public indignation that it created. It was indignation over the fact that these barbaric acts are still happening in this country at this time and age. It was also indignation at the fact that contrary to public perception that torture is practiced in remote areas of the country, here was proof that it is also happening at the heart of the metropolis, even in Tondo, Manila. We probably needed to see that image to remind us that regardless of who occupies Malacañang, torture persists and with impunity at that. The helpless victim, and the brave soul who publicized the video, have reminded us that unless and until we successfully put torturers behind bar, more of us may fall victims to this barbaric and heinous act.

Torture is defined as the infliction of physical, mental, or psychological pain either for the purpose of exacting information such as a confession to the commission of a crime; or as a form of punishment. It has been prohibited since ancient times principally because of the dictates of natural law and humanity, that is, human beings should not be intentionally harmed. Why? Simply because it should not be done to human beings. This explains hence why torture is prohibited in both times of war and in times of peace.

The prohibition and the criminal nature of torture is described as “jus cogens”, or non-derogable. This means that unlike rights such as freedom of expression and freedom of the press which may be derogated upon in some instances, the prohibition on torture is absolute. It cannot be justified on any ground including that of public emergencies or grounds of national security. Moreover, the duty to investigate, prosecute and punish those who may commit torture is itself non-derogable, and further subject of what is known as “erga omnes obligation”. This means that any state, and not just those with material interest, may sue another for the violation of the duty prohibiting the commission of torture.

Furthermore, owing to the normative character behind the prohibition of torture, states which, for any reason, could not investigate, prosecute or punish torturers are also duty-bound to extradite the person of a suspected torturer to another jurisdiction that is able and willing to prosecute and punish him. Corollary to this is the duty of states to refrain from rendering individuals to a jurisdiction that is known to practice this barbaric act.

The Philippines has been a party to the Convention Against Torture for over 25 years already. Sadly, it was only last year when we finally fulfilled our treaty obligation under the same to criminalize torture as a grave offense under our domestic laws. Prior to the passage of RA 9745 which finally criminalized torture as an offense and RA 9851 which also criminalized torture when committed in the context of an armed conflict or in a widespread or systematic manner, torture was only penalized as physical injuries or maltreatment of prisoners. This was condemned rightfully so by human rights advocates because our treaty obligation was to criminalize torture specifically as a grave offense under our domestic law.

The public discussion provoked by the video aired by ABS-CBN on whether the said video of torture would suffice for purposes of criminal prosecution further attests to the lack of understanding of our treaty obligations under the anti-torture convention. In fact, the entirety of our rules on criminal procedure constitutes a breach of our treaty obligation to investigate and prosecute suspected instances of torture whether or not there is a formal complainant against it. This is because under existing rules of the National Prosecution Service, a preliminary investigation into the commission of any crime is pursuant only to the filing of a formal complaint. This is in breach of the treaty because such a complaint should not required. A state is under a positive duty to investigate when there is information that torture was probably committed. This means that authenticated or not, such a video clip is sufficient to trigger our duty to investigate regardless

of whether such would be sufficient to convict anyone in court.

There are pending issues arising from what appears to be differing definitions of torture under RA 9745 and RA 9851. This is on the matter of who may commit torture. Our special law adopted the definition under the anti-torture convention that it could only be committed by state agents. The IHL law, on the other hand, adopts the progressive definition that it can be committed by anyone in the custody of another. This debate, fortunately, does not figure in the controversy stirred by this video clip if only because without a doubt, it was committed in the heart of the City of Manila, an area without an armed conflict, and presumptively by state agents given circumstantial evidence that it was in fact committed in the premises of a Manila police station.

We hope that the identity of the victim who has apparently also become a victim of extralegal killings is soon ascertained. This is a humanitarian concern because his family after all, regardless of who he was in his lifetime, have a right to grieve for his demise and under such painful circumstances at that. More than this, we hope that with no less than two laws now prohibiting torture as grave offenses in our statute books, that torture would soon be a thing of the past. We are hoping that given the promise of P-Noy that he will usher the winds of change, that amongst these changes will be the effective investigation, prosecution and punishment of torturers. Only then could that poor victim in that video, and the many others before him, truly rest in peace.
See video at http://www.abs-cbnnews.com/video/nation/metro-manila/08/17/10/alleged-cop-torture-caught-cell-phone-video”>

Published in: on August 19, 2010 at 12:46 pm  Comments (4)  
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International Humanitarian Law on IHL Day

When a fighter from the Moro Islamic Liberation Front beheads a soldier or a civilian, or resorts to cutting off ears and other body parts, he will be subject to an obligation of all states to investigate, prosecute and punish him for a serious breach of International Humanitarian Law. In like manner, a soldier from the Armed Forces of the Philippines who targets a civilian or causes the dislocation of civilian populations as a result of an armed conflict is equally liable for prosecution for serious violation of IHL.
This fact alone—criminal prosecution for all those who will breach the law—is why this body of law has been adhered to by all states as being binding on them on a non-derogable manner. Human rights law, on the other hand, is a system of minimum standards by which states must treat individuals found in their territory. Unlike IHL, it is subject to derogations in times of national emergencies. Despots will even argue, albeit erroneously, that human rights is subject to cultural relativity.

IHL is that branch of public international law that seeks to limit human suffering in times of armed conflicts. It does so by according protection to non-combatants such as civilians, prisoners of wars, humanitarian and religious workers. Additionally, it seeks to protect non-combatants by limiting the means and methods that combatants and fighters may resort to in times of hostilities. Thus, any method that does not distinguish between civilians and combatants, and weapons that cause superfluous injuries and unnecessary suffering, are declared illegal by the law.

Of late, an interesting issue that has arisen is whether acts of modern-day terrorism are covered by IHL. George W. Bush argued that the war against terror is legal tabula rasa and hence, not governed by IHL. This is why when he apprehended 600 or so allegedly fighting side by side with the Taliban in Afghanistan, he condemned these men to indefinite incarceration in Guantanamo Bay, Cuba as “enemy combatants”. In three major decisions of the Supreme Court, the Bush assumption that IHL was irrelevant in the war against terror was effectively debunked. In Hamdie, a petition for the issuance of the privilege of the writ of habeas corpus, the US Supreme Court ruled that it is precisely IHL that provides the legal basis for the US President to detain the Guantanamo detainees. The court then partially granted the petition and ordered the District Court of Washington DC to determine whether the detainees are entitled to prisoner-of-war status and if they are, they would have the right to be immediately released upon cessation of hostilities.

In the second and third cases of Hamdan and Boumedien, respectively, the Court invalidated the creation of the Guantanamo Bay military tribunals created initially by an executive order and subsequently by law. Purportedly in compliance with the decision of the court in Hamdie, these tribunals were given jurisdiction to determine whether the detainees are entitled to POW status. Given, however, the very limited mandate of these tribunals, Bush argued that the detainees were not entitled to all the rights accorded other individuals facing similar military tribunals in the US. Specifically, because these detainees were considered “terrorists”, Bush deprived them access to evidence submitted against them on the ground that these information are “classified’ by reason of national security.

In the later decisions in Hamdan and Boumedien, the US Court expressly ruled that these tribunals were contrary to IHL, specifically, common article 3 of the Geneva Convention which prohibits the impositions of sentences without prior judicial determination that complies with minimum standards recognized by civilized nations. The Court in these decisions reiterated in clear and unequivocal language that the war against terror, where there is in fact an armed conflict, is governed by IHL. Despite the Court’s refusal to qualify the war against terror as either international or internal in character, the US Supreme Court nonetheless emphasized that Common Article Three should be complied with as a minimum regardless of the actual nature of the armed conflict.

Closer to home, today is the first International Humanitarian Law Day when the country finally has an IHL law that implements our earlier treaty obligation under the Geneva Conventions to criminalize grave breaches of IHL. Republic Act 9851 criminalizes not only grave breaches and serious violations of IHL, but also criminalizes the further crimes of genocide, crimes against humanity, torture, and enforced disappearances. It also now provides for grave penalties for these crimes, which includes life imprisonment and fines of up to one million pesos.

The new law also codifies customary norms, which in the past was applicable to us as “generally accepted principles of international law”. Today, the law expressly provides that even the President cannot invoke immunity from suit when he or she is sued for violation of the law. There can be no doubt furthermore, that the prosecutions for these international crimes are no longer subject to prescription. The law also provides that the criminal prosecution of these crimes is basis for the exercise of universal jurisdiction, or that our courts can hear and decide cases involving violations of the law regardless of where the crime was in fact committed. This new law also codifies our previous jurisprudence that a military commander or a sitting president may be criminally liable for breach of the law committed by subordinates under their control if they failed to prevent the commission of the listed crimes, and if they fail furthermore to investigate, prosecute and punish the perpetrators thereof.

It is hoped that these developments in the United States and the passage of the new law will add further protection to non-combatants in times of armed conflicts. While IHL is of critical relevance to the Philippines because of the three internal armed conflicts raging in our territory, it is still hoped that the law will cease to be relevant to us. This will only happen if all these armed conflicts become a thing of the past.

***

The Civil Society Initiatives for IHL invites the public to the IHL Day Commemoration today, 9 a.m. at the Technoportal Conference Room in Ayala Technohub, Quezon City.

The IHL Day event has two parts: 1) A Forum with the Bakwits: Internal Displacement and Updates on Mindanao; and 2) a film screening of “The Reckoning”, which presents the development of IHL.

Published in: on August 12, 2010 at 11:35 pm  Comments (1)  
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RESTORING INTEGRITY

A STATEMENT BY THE FACULTY OF THE UP COLLEGE OF LAW
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war. After they courageously came out with their very personal stories of abuse and suffering as “comfort women”, waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of someone else’s ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice.

A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers’ works and interspersed them into the decision as if they were his own, original work. Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the original writers’ names and the publications from which they came, the thing speaks for itself.

So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.

It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the ‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original authors’ writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary sources.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.

But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled “A Fiduciary Theory of Jus Cogens,” the main source of the plagiarized text. In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely have such opportunities to make an international impact. That the petitioners were Filipino “comfort women” who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its “power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society. Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system. And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.

With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippines College of Law that:

(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;

(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

(SGD) MARVIC M.V.F. LEONEN
Dean and Professor of Law

(SGD.) FROILAN M. BACUNGAN
Dean (1978-1983)

(SGD.) PACIFICO A. AGABIN
Dean (1989-1995)

(SGD.) MERLIN M. MAGALLONA
Dean (1995-1999)

(SGD.) SALVADOR T. CARLOTA
Dean (2005-2008)
and Professor of Law

REGULAR FACULTY

(SGD.) CARMELO V. SISON
Professor

(SGD.) PATRICIA R.P. SALVADOR DAWAY
Associate Dean and Associate Professor

(SGD.) DANTE B. GATMAYTAN
Associate Professor

(SGD.) THEODORE O. TE
Assistant Professor

(SGD.) FLORIN T. HILBAY
Assistant Professor

(SGD.) JAY L. BATONGBACAL
Assistant Professor

(SGD.) EVELYN (LEO) D. BATTAD
Assistant Professor

(SGD.) GWEN G. DE VERA
Assistant Professor

(SGD.) SOLOMON F. LUMBA
Assistant Professor

(SGD.) ROMMEL J. CASIS
Assistant Professor

LECTURERS

(SGD.) ARTHUR P. AUTEA
(SGD.) ROSA.MARIA.J..BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O. CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L. JARDELEZA
(SGD.) ANTONIO G.M. LA VIÑA
(SGD.) CARINA C. LAFORTEZA
(SGD.) JOSE C. LAURETA
(SGD.) DINA D. LUCINARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA

Published in: on August 9, 2010 at 7:58 am  Comments (9)  
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Airport robbery

I was a bit disappointed when I read that President Noynoy Aquino was jubilant over the government’s alleged win in the International Chamber of Commerce against the Philippine Air Terminals Corporation, builder of Ninoy Aquino International Airport Terminal 3. I was disappointed because obviously, the President was made to comment anew by his advisers on an issue that he is not completely familiar with. The arbitration is about how much the government should pay the builders of Terminal 3. It is not even about whether the Philippines should pay as the matter has already been answered affirmatively even by the Philippine Supreme Court. The only issue is how much and what law should govern the valuation of just compensation. There is no reason to be jubilant over a matter that has caused the country so much embarrassment, particularly in Europe.
The airport issue on compensation is hardly a novel issue. The matter of how much to pay a foreign investor when his investment is expropriated by a state is well settled under international law. It started with the famous Aramco arbitration where the British oil giant alleged that its exclusive concession to extract, explore and transport oil was breached when the Saudi leader of the day granted Aristotle Onassis, the oil tanker mogul, a contract likewise to transport Saudi oil. Because of an arbitration clause which said that all disputes arising from the contract should be settled with finality through arbitration, Saudi Arabia agreed to arbitrate but only to invoke the defense that the arbitration violated the country’s sovereign immunity from suits and on the merit, that the concession was in the nature of a franchise and hence, a privilege and not a right. Accordingly, it argued that it could be revoked at will.

In what would become arbitration’s shining moment, the arbitral tribunal, using “general principles of law”, including the Koran and Sharia law, ruled that the concession is in the nature of a contract between a state and a foreign investor. Accordingly, its terms must be complied with faithfully and in case of breach, the innocent party may ask for specific performance, damages, or both. On the issue of sovereign immunity, the tribunal ruled that the same may be waived. When Saudi Arabia entered into the concession agreement, the tribunal ruled that it voluntarily went down to the level of an ordinary contracting party and waived its immunity. On the merits, the tribunal held that Saudi Arabia was in breach of its obligations and must pay the oil giant damages, although critics of the decision argued that the tribunal should have ordered specific performance.

The Aramco arbitration was followed by other arbitrations when other Middle Eastern states also nationalized their respective oil industries. As a result of all these arbitral awards, the rule today is that states have the sovereign right to expropriate foreign investments. It can do so even if the taking is not for a public purpose. In fact, there is now only one simple rule in international law on when a taking is legal, that is: that the foreign investor must be paid prompt, adequate and just compensation.

There is “prompt” compensation when it is paid without delay. In the case of Terminal 3, the taking took place in 2005 when the Supreme Court promulgated its decision in the Agan case and declared the Build-Operate-Transfer contract of PIATCO as illegal, but ordering the national government nonetheless to pay PIATCO just compensation. Clearly, the duty to pay the builder of the structure has been delayed by at least five years reckoned from the taking. This is hardly what is required by international law when it requires “prompt” compensation.

There have been protestations too that the building allegedly is “structurally unsound”. If this is so, why is the terminal being used today for domestic flights? Seems to me that the remedy against unsound structures is to demolish them for being dangerous nuances. The fact that it remains to be used, and will allegedly become completely operational by December of this year, is ample proof of the structural integrity of the terminal. Any claim to the contrary is only for purposes of posturing for a lower cost of just compensation.

There is “adequate” compensation, on the other hand, when the compensation is in a form and currency that is fully convertible. Foreign investors, because they are not residents of the country where they have invested, naturally would require ease in bringing back their investments to their home countries.

Finally, the crux of the matter: how much is “just “compensation? In reality, all that the Philippine succeeded in, in having Fraport’s prior arbitration in the Washington DC-based International Center for the Settlement for Investment Disputes dismissed , and the recent decision of the ICC in Singapore also dismissing both PIATCO’s and the Philippine government’s claims and counter-claims, is to have the matter of how much just compensation is be determined by local courts and pursuant to local laws. This is not a victory because unlike in the past, the Philippine law on expropriation today, the so-called Villar law, adopts the same formula in the determination of just compensation as that provided under International law. In the past, just compensation on realty for both land and improvements was on the basis of the property’s declared value, for real property tax purposes, or the so-called “ameliar”. This was but a fraction of the market value of the property. Today, the Villar law provides that just compensation for land is its zonal valuation, which in most instances is even higher than market price. Improvements, on the other hand, are valued on the basis of is reconstruction cost reckoned at time of taking. In addition, the Villar law also allows for “damages” which can also be for incorporeal assets such as foregone income, a rule also found in international law.

Terminal 3 has been a sore issue with Europe because the foreign investor in PIATCO, Fraport, is not only a publicly listed German corporation, but also owned substantially by both Frankfurt Airport Authority and the City of Frankfurt. Imagine their anger when the Philippines described their project as “substandard”. This is also why ties are strained: for unless they are paid prompt, adequate, and just compensation for a terminal that the Philippines is already using, the taking of Terminal 3 is not only illegal under international law. It is airport robbery, plain and simple.

Published in: on August 5, 2010 at 11:41 pm  Comments (4)  

On the Maguindanao Ampatuan Massacre

Centerlaw condemns “darkest hour in Philippine journalism”
Reference: Atty. H. Harry L. Roque, Jr.   +639175398096

Manila, Philippines – The Center for International Law (CENTERLAW) condemns in the strongest possible terms the alleged abduction and execution of 40 people in Maguindanao, including 20 local journalists, in what is reported to be an election-related violence.
 “We join all sectors in denouncing this vicious violation of the elementary rules of humanity,” said lawyer Harry Roque, chair of the Manila-based non-profit with a broad advocacy to promote the rule of law in the Philippines and the Asian region through the promotion of international legal norms.
 He said what is especially heinous about the carnage is that even journalists were not spared from the violence. Fresh reports say 21 persons, who were among a group of local politicians and journalists abducted in the southern Philippines on Monday have been found dead.
 “Over the last ten or so years, the press in the Philippines has come under attack,” said Roque, “and yet this is Philippine journalism’s darkest hour – if reports are true that every one in the group abducted by gunmen had been executed, some of them by beheading.”
He called on authorities to immediately dispatch investigators to the scene of the crime to gather evidence and file the appropriate charges against those responsible.
He said CenterLaw is fielding its Executive Director, lawyer Romel Regalado Bagares, to the region to assess the situation and see what legal remedies are available to the families of the journalists who were reported to have been killed in the attack.

CenterLaw, the group that Roque heads, is a member of the Southeast Asia Media Defense Network.
The gunmen responsible for the carnage are allegedly in the employ of a powerful politician in the region.

The Philippines has been on the list of declared hotspots in the world for working journalists. A supposedly peaceful democracy, it has been lumped with the world’s conflict zones because of the unabated extrajudicial killings in the country targeting many journalists.

“This is a horrendous crime,” said Roque. “The killings must end.” He said the Philippine government has continually failed to abide with its obligations under international law to protect its own citizens, let alone journalists, from unabated criminality.   

Among those abducted were the wife of a mayor in Maguindanao province, Esmael Mangundadatu, his aides and supporters.

The journalists were invited by Mangundadatu’s group to a local elections office to where he was set to file his candidacy for governorship of the predominantly Muslim Maguindanao province in the May 2010.

The Mangundadatu clan has a long-running feud with the family of Maguindanao’s incumbent governor Andal Ampatuan, a local warlord and military officials say the latter has in his control about 100 gunmen, most of whom were militiamen he had deputised as security men for his family, according to a news report from the Philippine Daily Inquirer, a Manila-based English-language daily.
 -30-

H. Harry L. Roque; Jr
Chairperson
CenterLaw Philippines
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
1227 Makati City Philippines
www.centerlaw.org <http://www.centerlaw.org>
administration@centerlaw.org
Tel +632.8873894
Fax +632.8873893

Published in: on November 24, 2009 at 3:14 am  Comments (6)  
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Why Agra should be happy


The recent decision of Acting Justice Secretary Alberto Agra reversing his earlier decision to absolve Zaldy and Akmad Ampatuan from multiple charges filed against them for the Maguindanao massacre is a reason for Agra himself to celebrate. Until the reversal, he came close to beating Gloria Macapagal Arroyo’s notoriety as the most hated public officer of the land. His decision will at least ensure that he will now be a distant second to his boss.
But even in his effort to recover from the flak that he has received, Agra is still full of misrepresentation and half-truths. For instance, he now claims that his reversal of his ruling is not because it was flawed, but because of new witnesses that attested to the fact that both Ampatuans were present during the planning of the massacre. This is the ultimate in palusot.

Truth to tell, the testimony of two mother witnesses to this effect are wholly unnecessary because from the very beginning, there was at least one witness that already said this. Surely, for determination of probable cause, which is only defined as the likelihood that a crime was committed and probably by the accused, that lone testimony would have sufficed. In any case, Agra still has to overhaul our jurisprudence that alibi is the weakest defense and cannot prevail as against positive testimony.

Then there is the matter of P55 million in assistance to the victims. As a pragmatist, I will advise my clients to go ahead and accept assistance freely given by well-meaning private individuals and by the state lottery office. The fact needs to be highlighted, though, that the victims are entitled to compensation from the state as a consequence of the commission of an internationally wrongful act. Here, the breach is that of the duty to protect and promote the right to life since all 197 persons accused of the massacre are all state organs: police, military, auxiliaries, and elected local officials. Money should hence be paid to them as compensation for the state’s breach and not by way of charity.

The timing of the financial assistance is also suspect. It is as if Secretary Agra is paying for the trust of the victims and public. That trust, of course, was lost when he issued that earlier resolution. Perhaps, he should be reminded that trust is earned and cannot be bought.

What about the pending disbarment case against Secretary Agra? It is in the nature of these complaints that they should not be terminated regardless of a compromise between the parties. The rationale for this is that a person who does not deserve to be a member of the most noble legal profession should not be in it even for a minute if he is undeserving.

Reversal or not, the reality remains that Agra nearly absolved two of the principal suspects in the country’s most heinous atrocity without even the benefit of hearing some of the victims, who were not furnished either copies of the petitions for review filed by the two Ampatuans, the right to be heard. This smacks of a blatant disregard of the single most important right of any citizen, that of due process. Lawyers took an oath to uphold and not to violate the constitution that provided for this right.

Moreover, the victims have made up their minds: full speed ahead.

Published in: on May 8, 2010 at 3:05 am  Comments (1)  
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CCM’S RESPONSE TO SMARTMATIC’S OFFER: “GIVE US YOUR PASSPORTS”

The Concerned Citizens Movement accepted the offer of Cesar Flores of Smartmatic to turn over his passport as proof that they will not escape from the country. “We are calling in your bluff. Give us all your passports and we will turn them over to Archbishop Oscar Cruz for safekeeping”, declared UP Law Prof. Harry Roque, Co-convenor of the CCM.

CCM yesterday filed anew a Petition with the Supreme Court to restraint the holding of what it describes as the country’s “first automated failure of elections”. It also asked the high court to order return to manual voting, counting and canvassing of votes for the May 10 election.

Betina Legarda, another CCM Co-Convenor said that the Church maybe relied upon by Smartmatic to return their passports should the Smartmatic PCOS machines actually work” “The Venezuelans behind Smartmatic, like us Filipinos, are predominantly Catholics. Surely, they can trust Archbishop Cruz to return their passports should there be no reason later to ensure their stay in the country”.

CCM asked all foreigners behind Smartmatic to deliver their passports to Archbishop Oscar V. Cruz at CBCP, 470 Gen. Luna St., Intramuros, Manila They also offered to pick them up should they desire

Published in: on May 8, 2010 at 3:08 am  Leave a Comment  
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ABSOLUTELY THRILLED TO BE WRONG

When we argued against COMELEC-Smartmatic-TIM’s automated election system before the Supreme Court last year, we started our arguments by highlighting logistical nightmares that will surely mar an untested automated system. We likened this year’s automated system to the Automated Teller Machines. We said that unlike COMELEC’s overnight implementation of a nationwide Automated Election System (AES), commercial banks did not lay out their ATM’s overnight. Some of them took 18 long years to lay them out. And yet, the scope of the bank’s networks still dwarfed that of the COMELEC’s PCOS. We highlighted that the banks   took very long to lay out their ATM’s because of the accepted reality that all untested systems are bound to suffer from computer glitches. Unless you try out the system in a limited scope, the systems operator would not know what these glitches are and what the corresponding remedies should be.

We then quoted Senator Richard Gordon who, in parrying various concerns against the AES, said that all the Senators’ concerns should be noted, but meanwhile, the body should approve the law so that  “pilot testing could proceed”. It was clearly the intention of Congress to follow the footsteps of the banks in implementing their ATM’s: a limited pilot before full nationwide automation.

We then argued that outside of the dire consequences of not complying with what we said was a “condition precedent” for the holding of a full blown nationwide election system, other logistical nightmares would surely mar this year’s automated election. For instance, we cited the reclustering of 250,000 precincts with an average of 250-300 voters per precinct into only 76,000 precincts consisting of at least 1000 voters. We said that there would be massive disenfranchisement because one, voters would not know where to vote since only one in four will vote in same precinct that he has habitually voted; and two, the sheer time it would take for each voter to fill up and cast the automated ballot. Our objection then was that while voting hours were indeed extended to 11 hours, there was no time motion study undertaken to determine exactly how much time it would take 1000 voters to fill out and cast their ballots.  Later studies would conclude that only about half of all registered voters could vote during the eleven hour period.

There were also very important constitutional issues that we raised. There is the cherished principle of secrecy of voting. We asked how this secrecy could be implemented given the sheer length of the ballot and the fact that first time voters would inevitably have to ask assistance in feeding their ballot into the PCOS machines. Further, we cited a decision of the German Constitutional Court that declared that an AES that did not enable the voters to verify how their voters were actually counted, without the intervention of a highly trained specialist, is unconstitutional. We then concluded that for these reasons, we might be headed into our first automated failure of elections.

Fortunately, the worse did not happen. But did the experience prove critics of the Smartmatic AES completely false? Well, perhaps not. For while we as a nation were elated that results were known even “before we could say Garci “, the reality is that the President Elect himself, Noynoy Aquino, experienced first hand what the Concerned Citizens Movement warned against. First, there were the incredible delays in voting due to our single most major reclustering of precincts. Then there were PCOS machines that did not work and replacements that took hours to arrive. Until now, there are five million votes that still have to be canvassed due to transmission problems.  The glitches in fact were so prevalent that by midday, of Election Day, the nation was rightfully alarmed about the possibility of failure of elections.

In hindsight, failure was averted because of the timely intervention of our public school teachers and the media. In precincts where the PCOS machines did not work and a replacement was not immediately forthcoming, the teachers proceeded with the voting sans the machines anticipating that a replacement would arrive by end of the polling day. Media, on the other hand, played the role of a supportive cheerleader exhorting the electorate to be patient as at stake is the future of democracy in the country.  It helped too that Noynoy Aquino’s win was by a landslide since his closest opponent could no longer complaint about possible cheating. Ultimately, it is perhaps the dire prospect of GMA forever, should the elections fail, that prompted the electorate to withstand the torturous conditions of voting that took an average of two and a half hours when in the past, it took only twenty minutes.

The fact that results were known almost instantly bolsters CCM’s contention that we should automate only the canvassing and transmission of our electoral exercise. We argued then, as we still do now, that voting, which remained manual, and counting, in line with the mantra of public counting, should remain manual. The fact that   voting took  four hours longer than manual voting compensated for the speed by which results were counted by the machine. Had it been a tightly fought race, it would have been difficult for the losers to concede defeat since no one saw how the counting of votes was done.

But fair is fair. The elections, despite our worse apprehensions, did not fail. Credit should be given to both the COMELEC and Smartmatic-TIM for this triumph of democracy. As we have repeatedly stated, we would be more than happy if history were to prove us wrong. And by God: we’re absolutely thrilled#30#

Published in: on May 12, 2010 at 1:08 am  Comments (1)  
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ON THE CJ ISSUE: A Breach of the Mandate

Presumptive President-elect Noynoy Aquino has been emphatic: he will not recognize an Arroyo appointed Chief Justice. Arroyo supporters have made this a casus belli against the presumptive President-Elect.

Can the presumptive Chief Executive ignore an issue that has been ruled upon by the highest court of the land? His critics say this would be an impeachable offense for culpable violation of the Constitution. Why? Under our scheme of government, the Judiciary is a co-equal branch of government and ignoring an Arroyo-appointed Chief justice would be equivalent to an infringement of judicial power.

I submit however, that the real issue is what happens when the ultimate defender of the Constitution is itself in breach of its own mandate. Under this circumstance, should it be allowed a monopoly in upholding constitutional supremacy?

The court set aside  the principle of stare decisis when it overturned Valenzuela, an earlier decision that ruled that the midnight ban on appointments covers the judiciary, without changed circumstances. It did this purportedly on the basis of  constitutional construction.  The language however, of Section 15, Article 7 of the Constitution is so clear that it precludes the need for construction: “Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

The Constitution is written for the benefit of ordinary persons and not just magistrates. Where the fundamental law provides for a prohibition with specified exceptions, all other appointments are equally, fundamentally prohibited. This includes appointments to the judiciary.

De Castro versus Judicial Bar Council invokes alleged intent, as mentioned by then Commissioner Florence Regalado during the proceedings of the Constitutional Commission. He however did not indicate where he derived this alleged intent aside from personal recollection. In contrast, the lone dissenting opinion of Justice Conchita Morales specifically quoted then Commissioner Hilario Davide from the proceedings of the Constitutional Commission: Section 15 of Article VII covers appointments to the judiciary.

If what the majority did was the correct way of proving intent, I shudder to think what will happen to jurisprudence when the drafters of the Constitution are no longer around. That may mean, following the technique of the majority, an eventual impossibility to prove constitutional intent in the future.

The issue is not the jurisprudence but the breach of the mandate. The fact that the court is referred to as “Supreme” is not a guarantee that it is infallible and will never abdicate its constitutional mandate. This happened in our recent history on two occasions: in Javellana when the Marcos Supreme Court sought refuge in the political question doctrine and abdicated its all-important tasks as guardian of constitutional supremacy, and in Aquino, which eventually inspired People Power 1.

The Presumptive President-Elect must keep his promise not to recognize the legitimacy of an Arroyo appointed Chief Justice for two reasons. First, he must honor the mandate of the sovereign people when they ratified the 1987 Constitution. Second, this has become a political issue already decided by the people when they gave the Presumptive President–Elect an overwhelming mandate.

Does the majority of the members of the high court believe that their rulings can be etched in stone without any political context? I submit that the High Court’s role is to uphold the supremacy of the constitution so that despots may be prevented from rewriting or interpreting the fundamental law to suit their personal and selfish interests. It should however, not be exercised to thwart the true intent of the people who gave their mandate to the constitution. And certainly, judicial power cannot and should not be used to thwart popular will of the sovereign who only now, chose Noynoy Aquino as their true leader based on a promise not to recognize the legitimacy of an Arroyo midnight apointee.#30#.

Published in: on May 16, 2010 at 2:38 pm  Comments (16)  
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FIGHTING IMPUNITY

Another judge was killed. The story was all too familiar: as Judge Andres Cipriano of the Regional Trial Court of Aparri, Cagayan was about to return to his rented room, one of two motorcycle-riding gunmen shot him at close range and in cold blood. Judge Cipriano thus became the latest victim of extra-judicial killings in the Philippines. Like the thousands of killings before him, Judge Cipriano’s death will form part of an ever-increasing number of extralegal killings that will remain unsolved. Meanwhile, his family will join the thousands of other victims who will bewail the lack of justice in this country. His killers, on the other hand, will remain scot-free and unpunished. This will further embolden them to commit other killings even for a miniscule fee. Hence, the culture of impunity continues, and worsens.

It is perhaps the problem of impunity that will become Noynoy Aquino’s Achilles heel. His family is also a victim of extralegal killings—they still do not know who killed his father despite the lapse of 30 years.

Meanwhile, the regime of Mrs. Arroyo has destroyed all vital institutions that the State normally utilizes in upholding the rule of law. She has appointed magistrates who themselves violate the Constitution, rather than uphold its supremacy. She has appointed Secretaries of Justice that have made the Department, ironically, into the ultimate tool for perpetrating injustice. Who will forget, for instance, one Secretary’s dismissal of the Alston report, confirming that these killings are happening and that the Philippines is in breach of its obligation on the right to life, as a report of a mere “muchacho” of the United Nations? Another demanded the dismissal of the petition filed by the victims of the Maguindanao massacre with the Asean Inter-Governmental Commission as a pre-condition for their continued participation in the murder proceedings pending before local courts. Most recently, another Secretary dismissed criminal charges against two Ampatuans accused of multiple murder on the weakest legal basis, that of an alibi.

Couple these with actual situations on the ground: The police is ordered to look for suspects for these killings even before they even start gathering physical evidence in the crime scene. Prosecutors, on the other hand, who otherwise could advice the police on how to process evidence in a manner that would be accepted in court, refuse to extend this cooperation, believing that investigation does not form part of their mandate. Many prosecutors also say they are precluded from participating in the investigations of these killings because they perform “quasi-judicial” functions in the determination of probable cause, the evidentiary threshold for the filing of criminal charges in court. Never mind if in the meantime, many of the cases they have filed in court are dismissed, precisely because of the failure of the police to process evidence correctly.

Witnesses, meanwhile, refuse to take the witness stand mistrusting the same State that accuses its agents of the commission of these crimes. Courts, on the hand, contribute to this culture of impunity, with the sheer length of time it takes to hear these cases. A study has found that the average time it takes our courts to finally conclude a case in the Philippines is five years. There is also the perception that when the accused killers are rich and powerful, as they often are, the victims face an uphill climb before the courts with many believing that some of our Judges are corrupt and inept.

This is not to say that all is lost. The Supreme Court, declaring that all other branches in government are in breach of their duty to protect and promote the right to life, has utilized its rule making powers to promulgate the special writs of amparo and habeas data. Amparo is Spanish word for “to protect”. Under the writ, individuals who have proven a genuine fear of a threat on their right to life, liberty and security may petition the court for special protection orders, as well as special inspection or production orders. The writ of habeas data, on the other hand, entitles a person to compel government entities acting as repository of information kept on individuals to divulge, destroy or amend these information where it would affect a person’s right to life. Admirable as these initiatives have been, regrettably, and as observed by no less than Constitutional Law expert former Justice Vicente V. Mendoza, these writs have had a more “symbolic’ effect rather than a real and effective deterrent effect on extra-judicial killings.

How Senator Aquino will rebuild the five pillars of our criminal justice system to put an end to this culture of impunity will ultimately determine the success or failure of his administration. The problems are systemic and require painful, incisive and difficult decisions. It entails a top-to-bottom overhaul of the Justice Department and will require, as a minimum, the appointment of a Justice Secretary not just with the necessary trial experience to know why cases are being lost, but also the managerial abilities to overhaul both systems and the culture currently embedded in the department. It would entail prosecuting the rich and powerful, many of whom supported him, and the political will to improve the credibility and capacity of our investigators.

Daunting as the task may be, I believe the task of restoring the rule of law in this country is possible because of Aquino. It helps that he has an overwhelming mandate to effect painful changes in this country. It helps that he himself has something to gain from the restoration of the rule of law in this country. Who knows, under his administration, he may well solve the puzzle of “Whodunnit?” to his father.

Published in: on May 25, 2010 at 3:45 am  Leave a Comment  
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All IS NOT LOST WITH DEATH OF FOI BILL

“All is not lost with the death of the Freedom of Information Bill”, this was declared by Centerlaw Chair Prof. Harry Roque of the UP College of Law. “It is the Constitution that grants the people the right to information on matters involving public concerns. The failure of  Congress to pass the FOI law simply means that the right would not be subject to limitations other than those provided by jurisprudence”, Roque added.


Roque explained that Freedom of Information as enshrined in the 1987 Constitution is self-executory.  This , according to him, is apparent in the language of the Constitution: “ The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decision, as well as to government research data used as basis for policy development shall be afforded the citizenry, subject to such limitations as may be provided by law.”. In the case of Chavez versus PEA-Amari, the Supreme Court defined “public concerns”  as those “which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen”.


The remedy, as ruled by the Court also in Chavez is for any citizen, including members of the media, to file a suit in Court for mandamus if a government agency does not release any information that may involve public concerns. Mandamus is an extra-ordinary writ to compel the doing of a ministerial act. Here, the refusal to accord the peoples right to information may be controlled by the writ since pursuant to the law, the duty to divulge these information is purely ministerial and does not involve the exercise of discretion.


Roque explained that under existing jurisprudence, some limitations on the right to information include matters affecting national security, the conduct of foreign affairs, and on-going criminal investigations . “Outside of these traditional exceptions, no public officer may deny the people or members of the media their right to information”.


Roque though conceded that it would have been better to have the law. “Law seeks to achieve predictability. Obviously, legislation on how the right should be exercised and the consequences of the breach of the right would promote further predictability on the exercise of the right”. But in default of legislation, Roque exhorted the citizenry and the media to construe the right as not being subject to legislated limitations. “Demand for information as if it is not subject to any limitations”, Roque advised the public and the media.#30#


Prof. Roque Chairs the Center for international Law. He is the Philippine country representative to the Southeast Asia Media Legal Defense Initiative, a coalition of lawyers in the region that seeks to promote freedom of expression.

Published in: on June 7, 2010 at 6:25 am  Comments (2)  
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VICTIMS’ STATEMENT ON AMPATUAN’S “NIGHTLIFE” WHILE IN DETENTION

The 14 victims that Centerlaw represent in the on-going multiple murder cases against the Ampatuan clan for the Maguindanao massacre condemn in the strongest terms possible this latest special treatment accorded to the Ampatuans that allowed them to have a lavish party in their detention facility.At the onset, our victims have consistently decried these special treatment insisting that all of the Ampatuans accused of participating in the massacre should be detained as ordinary detainees in the Quezon City Jail. Repeatedly, they have been told that the Ampatuans required special security and hence, should be detained in a special facility either because of a threat on their lives, or the risk of flight. But even as they suffer in silence in seeing the accused killers of their loved ones enjoy the perks and privileges of VIP detainees, it has become apparent that it is these special detention facilities that breed the kind of VIP treatment that they have been getting.

Not too long ago, our victims, in conformity with the Public Prosecutors, filed a motion to require the warden of the Taguig Detention Center to show why he should not be cited in contempt for allowing Andal “Unsay” Ampatuan Jr. to conduct a press conference in the facility. Before the warden can even explain, comes now the news that the Ampatuans were allowed to have a party in their detention facility.

Enough is enough. Our victims now call on incoming President Benigno “Noynoy” Aquino III to appoint only a Secretary of the Department of Interior and Local Government who can promise an end to the special treatment accorded to the Ampatuans and that they should hence be detained in the Quezon City Jail where they rightfully belong. This Secretary, whoever he or she maybe, should also promise that all will be done to prevent the flight of any of them from the Quezon City jail. This Secretary should promise the victims and the Filipino people that with their last party, “TAPOS NA ANG MALILIGAYANG ARAW NG MGA AMPATUANS”. Second, we will not only file the appropriate motion to cite the warden and all those responsible for the “party” for contempt of court, we will also file administrative and criminal charges against them for dereliction of duty. It is not true, as jail officials claimed, that all inmates are entitled to hold lavish parties in jail. This privilege is accorded only to the rich and powerful.

 The decision to allow them to hold a party is not only a gross insult to the victims of the country’s worse massacre, it also sends the message that those who massacre, when they are rich and with political connections, can have lavish party even as they are already under detention for the possible commission of a heinous crimes. This is a tried and tested formula for impunity of the kind that we precisely have in this country.

The victims call on the incoming Administration finally to exercise the political will and to give utmost priority to the investigation, prosecution and punishment of all those who are responsible for extralegal killing in this country, of which the Maguindanao massacre has been the worse incident thus far. It is only when these killers are punished within a reasonable time can the incoming administration claim a victory in the restoration of the rule of law in this country.#30#

*The Center for International Law (Centerlaw) is the Philippine representative to the Southeast Asia Media Legal Defense Initiative, a coalition of lawyers in the region committed to upholding freedom of expression. Lawyers from Centerlaw are appearing as Private Prosecutors for 14 of the media victims of the Maguindanao massacre.

Published in: on June 8, 2010 at 2:44 am  Comments (5)  
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THE OMBUDSMAN AND PRESIDENTIAL IMPUNITY

The Ombudsman has dismissed anew the Concerned Citizens Movement’s complaint against Mrs. Gloria Arroyo and her husband for the botched NBN-ZTE scandal. In dismissing the case against Mrs. Arroyo, the Ombudsman recited anew the mantra that the President is absolutely immune from suits while in Office. At the same time, the Ombudsman, perhaps to appease an angry public, charged former Commission on Elections Chairman Benjamin Abalos and Social Security System Chairman Romulo Neri with violating the country’s anti-graft law. It also upheld its own earlier resolution suspending Neri from office.The order of suspension is without a doubt a concrete achievement for the CCM since it was the only group of complainants that charged public officers involved in this scandal with both criminal and administrative complaints. Although co-convenor former Transportation and Communication Secretary Josefina “Josie” Lichauco did not live long enough to know about the finality of the administrative sanction against Neri, this is definitely a legal victory in that at least one sinister character in this episode was meted administrative sanction.

This latest dismissal of the complaint against the President is already the second order seeking to exonerate her on the basis of immunity in the same case. An order of dismissal was issued as soon as the CCM complaint was filed, also on the ground that while the Ombudsman is not a court, all proceedings conducted by it are apparently “suits” for purposes of presidential immunity. CCM then alleged that this was a wrong view since the Ombudsman, when evaluating complaints for violations of the country’s criminal laws on anti-graft and corruption, performs only a quasi-judicial function of determining the existence of probable cause. If it is there, the information is filed with the Sandiganbayan. If none, the complaint is dismissed. Obviously, a “suit” for purposes of the immunity of president applies only the moment an information is filed in court. It cannot include the preliminary investigation conducted by the Ombudsman in the determination of probable cause.

It is submitted that the Ombudsman’s construction of presidential immunity has further weakened an institution that the constitutional framers sought to grant with sufficient powers to uphold the constitutional adage of accountability of public officials. Like ordinary prosecutors, the Ombudsman conducts preliminary investigation with the view of not only charging those who have likely committed crimes, but also with the view of sparing the unnecessary wastage of public funds in the prosecution of those who are probably innocent. But unlike ordinary prosecutors, the Ombudsman is vested by the Constitution with extraordinary powers, including the power to:

“(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith x x x.”

In other words, the Ombudsman is not just a prosecutor, but is also the final administrative authority that has the power fire public officers for breach of the trust reposed in them. It also has the power to compel public officers to perform their duties.

Assuming therefore that the President is immune from suits, the Ombudsman, because it is not a court, could still investigate the President for any misconduct. If, despite the existence of probable cause, it cannot charge her in court; it could at least direct Congress, the exclusive body that can initiate impeachment proceedings, to perform its lawful duty of initiating impeachment. This is pursuant to its power to “direct, upon complaint or at its own instance, any public official or employee of the Government, x x x, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties”.

But the bigger issue is whether presidential immunity from suit remains the absolute rule. Again, it is CCM’s submission that absolute presidential immunity is a thing of the past. What is recognized today is the principle of limited immunity where heads of States are immune only for purely sovereign acts. Thus, when Augusto Pinochet was charged for the commission of torture and enforced disappearances, the UK House of Lord rejected the claim of absolute immunity holding that while sovereigns are indeed entitled to immunity from suit for sovereign acts, the commission of a crime can never be sovereign in character. To illustrate the point, the House of Lord even gave an example, that of a despot who ordered that his gardener be tortured for the sheer pleasure of seeing him tortured. “What, asked the House of Lords, is sovereign in this kind of an order?”

Not far from home is the decision of the US Court of Appeals in the Hilao v Marcos case, or the class suit filed by the victims of the Marcos dictatorship before an American Court. In response to an attempt by the Marcoses to have the suit dismissed on the ground of sovereign immunity, the US Court ruled that where the jurisdiction of the Court is vested by Congress itself through the Alien Tort Claims Act, a law that vests US Courts with the power to hear and decide cases against those that may have committed the international crimes of torture, war crimes, crimes against aggression and genocide; the defense of absolute immunity will not lie.

In yet another American case, no less than the US Supreme Court allowed a civil suit filed by one Jennifer Flowers to proceed against then sitting President Bill Clinton because as ruled the court, immunity only covers official acts and presumably, sexual harassment, which was the claim of Ms. Flowers, is not official in character.

Perhaps the status of law on the matter is evident in the international warrant of arrest issued by the International Criminal Court against the sitting President of Sudan, Omar al-Bashir for genocide, crimes against humanity and war crimes. Certainly, Bashir could argue that the crimes charged were committed in the context of an on-going armed conflict and are hence, sovereign in character. Despite this, he is today an international fugitive.

With all these developments, it should be obvious why international law, if not domestic law, no longer recognize absolute immunity for heads of states. For while in the past, it was thought that sovereigns cannot err, scandals like the NBN-ZTE prove otherwise, Ultimately, the question is: why should presidents be accorded impunity for non-sovereign acts?
Published in: on June 11, 2010 at 3:28 am  Comments (2)  
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SINISTER BEHIND NAZARIO’S APPOINTMENT

Of the 250 reported midnight appointees of President Gloria Macapagal Arroyo, a particular appointment of a jurist stands out: that of retired Supreme Court Justice Minita Chico-Nazario as chair of the Philippine National Oil Company -Exploration Corporation (PNOC-EC).

The first obvious question is: why appoint a retired Justice of the highest court to a post which from the very sound of it, requires technical qualifications in the field of natural resource exploitation? A second question, is what is the political consideration for the appointment of Justice Nazario to a post that is seen as the plumiest of all plum posts?

It is true that while the position of chair of the PNOC-EC is amongst the most coveted, it has previously been given to others who like Nazario, also do not possess any technical expertise. What is apparent from the recent occupants of the position, including former prosecutor and Representative Sergio Apostol, is that the post, because of its perks, is given as political pay back to a loyal ally.

In the case of Apostol, the payback is for the fact that he was instrumental in the rise of Mrs. Arroyo to the presidency. Apostol was designated as a member of the House of Representatives Panel of Prosecutors in the aborted Estrada impeachment trial. From then, Apostol proved himself to be a leading and loyal ally of the Arroyos. In fact, he served in the administration in various capacities, including his most recent before his appointment to the PNOC-EC, as Presidential Legal Counsel. When Apostol was the premier counsel to the President, he provided animated defense of many of the President’s wayward acts, including the transfer in the middle of the night of accused rapist Daniel Smith from the Makati City jail to the premises of the US Embassy without a court order.

The question remains: why was Chico-Nazario appointed chair of the PNOC-EC? Is it political pay back?

Nazario is without a doubt an Arroyo loyalist and for good reasons. She was appointed by Arroyo thrice: as Associate Justice of the Sandiganbayan, as Presiding Justice of the same Court, and as Associate Justice of the Supreme Court.

Its not just these appointments that indebted her to Arroyo. It’s the fact that these appointments were made despite lackadaisical performance as a jurist. Her stint as a judge of the lower court was uncontroversial, but neither was it remembered for being distinguished. She had neither Judicial Excellence award nor earth-shaking decisions that were upheld by the Supreme Court to remember her by. And yet despite these, she was catapulted into higher judicial posts. In both the Sandiganbayan and the Supreme Court, she was consistent in that her stint may at best be described as uncontroversial.

Justice Nazario proved to be loyal to her appointing authority in the Supreme Court. An ABS-CBN/Newsbreak investigative report indicated she “ literally voted in favor of the Arroyo administration” in all contentious cases save for three cases. This record includes voting in favor of Charter change in Lambino versus COMELEC, in favor of executive privilege in Neri versus Senate Blue Ribbon Committee, in favor of the MOA-AD, the Visiting Forces Agreement, the notorious NBN-ZTE deal and Poll Automation.

But is a solid voting record in favor of the administration sufficient justification for the perks of a chair of the PNOC-EC?

While rewarding a very loyal ally is clearly indeed a consideration for Nazario’s appointment, this is the more benign reason for her appointment. Behind the appointment is a more sinister motivation that is so typical of Mrs. Arroyo.

The country has barely recovered from Arroyo’s midnight appointment of a Chief Justice. Despite very clear language of the Constitution that such an appointment is prohibited, Arroyo succeeded only because the Supreme Court itself, as the final interpreter of the Constitution, gave its judicial imprimatur to the appointment.

It was in this case of De Castro versus JBC where both Arroyo and the Court gave no value whatsoever to public opinion that was overwhelmingly against the appointment. It was also here that the solid legal reasoning of the lone dissenting Justice was ignored in favor of the weakest technique of constitutional construction. Both the appointment and its imprimatur were issued despite express pronouncement from Arroyo’s successor, P Noy, that he would not recognize such an appointment. Against all odds, Arroyo went ahead with the appointment with a sense of impunity. She had, after all, the solid backing of a loyal court.

Here lies the greater sinister side of the Nazario appointment. Arroyo was not satisfied with one controversial midnight appointment. She went ahead and made 249 other prohibited midnight appointments. She did this with impunity knowing that a loyal judiciary would again sustain her. This was precisely why Chico-Nazario was appointed to the most coveted post of chair of the PNOC-EC.

Chances are, together with her midnight appointment to the PAGCOR and other lucrative posts, the issue of Nazario’s appointment would again be submitted for judicial review to the Supreme Court. Arroyo very clearly knew this and hence, the choice for a retired Justice of the same Supreme Court for the plumb post.

Human nature being what it is, it would otherwise be difficult for a court already loyal to Arroyo to rule against a colleague who retired from it only last December 9, 2009. Come to think of it, Nazario’s appointment also violated the spirit of the constitutional prohibition on magistrates from appearing before any court within a year from their retirement. There may not be a literal violation since Nazario is unlikely to argue her own case before the Court. There nonetheless is still a violation of the intent and purpose behind this prohibition because inevitably, the appearance of a recently retired magistrate as a party to a case will unduly influence the court in the same way that the appearance of a recently retired colleague would.

Simply put, it would be extremely difficult now for P Noy to convince the Highest Court to void Nazario’s appointment who until very recently was one of them. When this occurs, the court would then, by operation of stare decisis, legitimize the 249 other illegal appointments.

With this kind of deviousness wrecked on the nation by Arroyo -even as she is on her way out- may God have mercy on P Noy and on this poor country!

Published in: on June 16, 2010 at 1:02 pm  Comments (2)  
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DEMOCRACY, DE LIMA AND DEMOCRACY

A third journalist was killed in a span of five days. Nestor Bedolido of Digos City was shot six times by a motorcycle riding assailant. Previously, two other journalists—Joselito Agustin from Laoag and  Desidario Camangyan from Mati City, bothe radio commentators —were also killed. Already, the number of journalists killed during the administration of Gloria Macapagal-Arroyo has reached 103. It is because of these killings that international journalists groups such as the Committee to Protect Journalists have  concluded that the Philippines is now   the deadliest country for journalists .

While journalists are not the only ones being  killed in this country, as in fact, the number of victims of extralegal killings have already exceeded a thousand for the period of Arroyo’s administration alone, the question is asked: what is so wrong with the killing of journalists outside of the fact that under both natural and our penal laws, murder is a crime? What makes the killings of media professionals more heinous than say the killing of a street vendor by a drug crazed killer?

The answer lies in the unique role that the media plays in a democratic society.

Our Constitution provides that “no law shall be passed abridging the freedom of the press”. This is based on a belief that the truth is discerned only in a free market place of ideas. According to Justice Holmes, the “true test for truth is the power of an idea to be accepted as truth in a market place of ideas”. This explains why under democratic systems, a falsity per se is not actionable. It becomes actionable only where there is actual malice, be it actual or legally presumed.

A free press, though, is valued far more than because it helps us discern the truth. More importantly,  it is valued because it is only when you have a free market place of ideas that an individual can form an opinion on issues involving him and the public at large. It is because of these individual opinions that individuals can participate in public debates on issues that affect the public. When there is a consensus of individual opinions, we have what we refer to as public opinion. In turn, it is believed that public opinion, over and above institutions of government, is best able to fiscalize governments and regimes. This is why the media is referred to as the “fourth estate”, a co-equal institution in a democracy, albeit not a branch or instrumentality of government.

To kill a member of the media is hence is to kill what makes democracy work. Without information, there can be no opinions. Without the latter, there would be no debates. With no debates, there would be no consensus. Without public opinion, there would certainly be despots and dictatorial regimes. This explains why in the course of history, dictators would always infringe on freedom of the press first. To kill members of the media, in other words, is the surest way to kill a democracy.

***

I have just gotten word that Commission on Human Rights Chairperson Leila De Lima has accepted her appointment as Secretary of Justice. I must say that this is thus far one of the best moves of President-elect Noynoy Aquino. What has contributed to the culture of impunity prevailing in this country is that the Arroyo administration, including all the Secretaries of Justice, did not prevent these killings of journalists and activists. Worse, they also failed to investigate, prosecute and punish the perpetrators of these killings. With Leila De Lima at the helm of the Justice Department, there is now hope that change may indeed be forthcoming.

Secretary-Designate De Lima surprised skeptics who thought that as an election lawyer, she may not be effective in protecting and promoting human rights in the CHR. But in a very short span of two years, she studied the law on human rights and became by far the most effective exponent of rights in an administration that has become notorious for being a human rights violator. What made her effective may not have been her thorough grasp of the specialized field of human rights, but her visibility, dynamism and her sincerity in promoting these rights. When people stayed away from Maguindanao right after the massacre, she was on the ground conducting her own parallel investigation. When the Morong 43 was apprehended, she had the balls to summon the Armed Forces hierarchy and declare that they committed acts of torture against the apprehended health professionals. Even in the recently concluded automated elections, she was an advocate for clean and honest elections, arguing what many people may not have realized: that clean and honest election is also a fundamental human right enumerated in the International Covenant on Civil and Political Rights. Kudos for P-Noy for the De Lima appointment.

***

At least 10 Filipino comfort women conducted a prayer vigil last Tuesday, June 22 to protest the recently promulgated decision of the Supreme Court in the case of Vinuya versus Executive Secretary. The Petition was to compel the Philippine government to sponsor the claims of these Filipinas for compensation from Japan. The claim was because all of the petitioners in the case were brutally and repeatedly raped by officers and soldiers of the retreating Japanese Imperial Forces when it had become apparent that they would lose the war. Some of these Lolas were as young as 12 years old when they were forcibly brought to the infamous Bahay na Pula, which stands until today along the national highway en route to Cabanatuan, where they were repeatedly raped for days and weeks by Japanese soldiers. When these women previously filed suit before Japanese Court for compensation as victims of mass rape as a war crime, the Japanese court ruled that they had no  standing to sue as it is the Philippines that should have filed suit on their behalf. According to the Japanese Court, it is states, and not individuals, that have the capacity to sue under International Law. And because their claim was never espoused by the Philippine government, they filed suit to compel the government precisely for this purpose.

The lolas protested a ruling that said that their claims for compensation is barred by the San Francisco Peace Pact where in exchange for nominal war reparations, the Philippines allegedly renounced all further claims for compensation. The Court also said that there was no jus cogens prohibition on rape during World War Two and that the plight of the comfort women was one of those where there was a violation of a right but with no legal remedy.

The lolas will congregate anew in front of the Supreme Court on July 5 at 10 a.m.

Published in: on June 25, 2010 at 4:57 am  Comments (1)  
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KEY WITNESS IN AMPATUAN MASSACRE SHOT DEAD

A key witness in the Maguindanao-Ampatuan massacre was shot dead last June 14, 2010 in Parang, Maguindanao. Suwaid Upham, who publicly surfaced under the name of “Jessie,” was shot to death by a still unidentified gunman. “Jessie” surfaced in March of this year to apply to be admitted into the Government’s Witness Protection Program. He was never interviewed by the DOJ despite the having previously arranged twice to be interviewed by a panel from the Department. In both instances, the department agreed on the time and date of the interview at a venue to be selected by “Jessie”. That initial and first interview was scheduled in the office and in the presence of CHR Chair Leila de Lima. The personnel of the Witness Protection Program did not, however, appear on the agreed time and date stating belatedly that “Jessie” should appear in the premises of the DOJ. Jessie refused to appear in the DOJ premises because Jessie himself had information that high-ranking officials of the Department were working with the Ampatuans. DOJ. Acting Secretary Alberto Agra would later dismiss the cases against   Zaldy and Akmad Ampatuan.

In his narration before his counsel and the media, Jessie admitted that he was   one of seven gunmen who shot and killed 58 victims of the Maguindanao massacre. He identified the other gun men as including Andal  ”Unsay” Ampatuan Jr., the latter’s cousins Kanor Ampatuan, Ban Ampatuan, and Mama Ampatuan; PO1 Ando Masukat and one he knew only as Kudja. He publicly stated that members of the Ampatuan clan including Former Governor Andal Ampatuan Sr. and ARRM Governor Zaldy Ampatuan ordered the killings.

Jessie stated that amongst the first to be killed was the wife of Maguindanao Governor-Elect Toto Mangundadatu. He stated that after the first batch of killing, Unsay then ordered all seven gunmen to fire indiscriminately at all members of the ill-fated convoy, many of whom were still in their vehicles. He also recounted how witnesses pleaded for their lives. Jessie also positively identified at least 4 members of the media as amongst the fatalities of the massacre.

“Jessie” was in Manila for two months from March to April. He returned to Mindanao when it became apparent that the DOJ would not give him protection.

In his interview with international television network Al Jazeera, Jessie recalled how Unsay bade farewell to his men before surrendering to authorities. Unsay was quoted by Jessie as saying “Walang magyayari sa kaso nila. Kaya ng pera namin silang lahat”.(Nothing will happen to their case. Our money can buy all of them)

Centerlaw, counsel for 14 media victims of the massacre,  condemns the killing of Jessie in the strongest terms possible. At the same time, it lays the blame for his death to Acing Secretary Agra and his principal, Gloria Macapagal-Arroyo, who refused to accord any protection to Jessie. There is blood in Agra and Mrs. Arroyo’s hands. May they forever by hunted by the souls of Jessie and the rest of the victims of the massacre. #30#

Published in: on June 25, 2010 at 5:18 am  Comments (1)  
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Do you know who was Suwaib Upham?

Would Justice secretary Agra have acted more favorably to the application for witness protection of Suwaib Upham if he had been presented to the DOJ by someone other than me or Centerlaw? A true commitment to justice should transcend personal prejudices. As a consequence of the secretary’s prejudice, a key witness who went to Manila to testify, at great personal risk, has since been killed due to the government’s refusal to even give him an audience.

And for the record, contrary to Agra’s contention, Suwaib Upham was represented by his own, independent lawyer. And yes, a letter from state prosecutors prove that DOJ officials knew of Upham and the nature of his testimony. So it is not true, as Secretary Agra claims, that Upham was never presented to the DOJ. Perhaps he means that Upham was never brought to the premises of the DOJ. Is the loss of this key witness really due to a bickering over the venue? Was Secretary Agra’s reason for refusing to entertain Upham really this … simple? Because the issue of whether Upham would be subject to the supervision of the government was moot when he sought to present himself as a state witness. That he however would exercise his right to first appear in a neutral place, such as the office of the Commission of Human Rights, was surely the prerogative of someone who was not yet certain that he would be admitted as a state witness.

Secretary Agra refers to Suwaib Upham as a “killer.” Well, in his testimony, Upham admits he was. In fact, he said only seven bullets were left in  his magazine after he and six other shooters finished firing their rounds against the journalists killed in Ampatuan, Maguindanao on November 23, 2009. Does that make Upham’s testimony less legitimate? Does it make him less eligible for witness protection?

I submit that a government truly committed to ensuring that justice is served would have at least given Upham the time of the day.

Secretary Agra also said something today in one of his TV interviews that was an insight about how truly he looked upon Upham: he said that we should have presented this witness if not to the DOJ, then to the NBI. Agra forgets that one of the key suspects in the Ampatuan massacre, Datu Unsay Mayor Andal Ampatuan Jr., a man that Upham himself held with great alarm, was at that time  detained at the NBI.

Published in: on June 25, 2010 at 1:46 pm  Comments (2)  
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CENTERLAW THANKS GOVERNMENT PROSECUTORS FOR THEIR CANDIDNESS AND ADMISSIONS: IT ONLY CONFIRMS THEIR LIABILITY

We thank Chief State Prosecutor Claro Arellano, Assistant Chief State Prosecutor Richard Anthony Fadulion and Senior State Prosecutor Juan Navera for their statement dated 25 June 2010.

Their statement – no, their very own admission – has verified facts that we have ourselves stated and as a result of which, the public and our courts can now determine if the Department’s refusal to provide to the now deceased witness “Jessie” was both legally and morally justified.

Please consider the following:

1. They agreed to interview the witness Jessie on March 1, 2010 at 3PM at the UP Law Center. Unknown to them, the UP Law Center was only a rendezvous as days before, we had already asked Chairperson Leila de Lima for her good offices by hosting   and witnessing, for monitoring purposes, the government prosecutors interview  with Jessie. The prosecutors on the day itself unilaterally declared that they would not travel to the UP Law Center and that the witness would have to be brought to the DOJ premises. We then asked the witness whether he was willing to go to the DOJ. His reply was: DOJ, “hwag doon. Hawak ng mga Ampatuan yun”. This was months before DOJ Secretary Agra would dismiss the criminal charges against Zaldy and Akmad Ampatuan. Clearly, it was not me or any of my colleagues said that the “DOJ” was hawak ng “Ampatuan”. It was the witness himself.

2. We confirm that we did suggest a hotel near the airport as  an alternative venue for March 1. This was because of the refusal of the witness to step foot in the DOJ premises for reasons that he had already stated. We chose that particular American chain  hotel precisely because of its very strict security arrangements replete with  metal detectors and sniffing dogs  at the  entrance for both cars and individuals. We certainly felt that we would all be safer there compared to the DOJ, which incidentally, does not even have even hand held detectors at its entrance.

3. Initially, the WPP acceded.  Again  at the last minute,  the Committee changed  their decision and called the meeting off. He did say that aside from the DOJ as their preferred venue, then Secretary Agnes Devenadera was on the way out and the Committee had to confer with her. We brought the witness to Manila on that date precisely because upon the advice of the WPP, we needed Secretary Devenadera to approve his enrollment into the WPP. Apparently, the personal  action of the sitting Secretary was required for this purpose.  This was why we were both apprehensive and frustrated that the interview did not push through.

4. In any case, since the witness was already in Manila, we still brought him to the office of Chairperson De Lima who met and heard the testimony of the witness. One of the things Chair de Lima said in that meeting was that “she was frustrated that the CHR did not have the capability to provide witness protection as she would have otherwise provided it to Jessie”. We hope the incoming Secretary of Justice will confirm this fact.

5. It was after this aborted meeting that we decided to reduce into writing the application of the witness into the WPP. We  included a detailed narration of what would have been his testimony. By then, I already suspected that the Department was lukewarm to admit the witness into the program for reasons unclear to me. I then thought that by detailing his proposed testimony, we would be able to memorialize the fact that the Department did not go out of its way to interview the witness despite the seriousness of his testimony. This turned out to be a  very good decision because while the department now insists that the interview could have taken place at the vicinity of the DOJ, certainly, the seriousness of the testimony would otherwise lead to the conclusion that had the WPP used even ordinary diligence, they should have gotten out of their way to interview the witness. Besides, there is no rule which mandates that all interviews of the WPP should be conducted at the premises of the DOJ. Human experience, on the contrary,  dictates that witnesses at risk would demand a more secure location than the premises of the DOJ. If security were indeed the concern, we wonder why the Prosecutors did not bother to suggest a military camp as a venue.

6. The records bear out the fact that we submitted to the DOJ a detailed narration of what would have been Jessie’s testimony. The state prosecutors have admitted receiving the narration attached to a communication we sent to the DOJ dated March 5, 2010; in fact, Assistant Chief State Prosecutor Richard Anthony Fadullon replied to our query in a letter dated March 11, 2010. They too admitted to this.

7. This belies Secretary Agra’s statement to  Human Rights Watch (HRW) when the international human rights group told him about Jessie’s case that he has not heard of him.  It boggles the mind that a matter of such high importance should not be communicated to him by his state prosecutors.

8. If the state prosecutors did not relay to him the facts regarding Jessie’s application into the WPP, they are liable for dereliction of duty. Assuming that Secretary Agra made good of his word to the HRW that he would look into the matter but in the process, the state prosecutors decided to withhold the information about Jessie from him, it only makes things worse for the state prosecutors.  But this in itself does not absolve Secretary Agra of liability; after all, he is the Justice Secretary. How can he not now of the case when his own state prosecutors now admit they officially received and replied to an application for admission into the DOJ’s Witness Protection Program from Jessie? Ultimately, the buck stops where he sits at the top of the hierarchy at the DOJ.  Given this, we wonder how he can say that he leaves the Department as one “extremely happy” man.

9. We confirm all the other details which they mentioned, including the meeting on March 12 where the lawyer of the witness – Macky Hernandez –was in attendance. This would prove in no uncertain terms that Secretary Agra lied when he claimed that I was representing the victims and a killer at the same time. I also confirm that I obtained for the witness, with his conformity,   an independent counsel. This was because I knew that I had a conflict of interest and could not represent both victims and killer at the same time. The witness having his own counsel avoided this conflict and also ensured that the constitutional rights of a witness, whose testimony my clients required, would be protected.

10. While we admit that our second meeting did not push through because we could not bring the witness immediately from where he was then seeking sanctuary, we dispute that we did nothing to schedule a third one. It was Senior State Prosecutor Navera himself who, in refusing a third attempt at an interview said that they were no longer interested in meeting the witness. On that day, he arrogantly gave a deadline of 5 p.m., after which, he said, any talk about getting the witness into the WPP would be over and done with. He even sarcastically texted that we should not have brought him to the media first.

11. Further, their statement that I walked out of a hearing on January 20, 2010 is both a lie and is downright malicious. The records will show that the hearing on that day was recessed at 11AM after Gov. Magundadatu had finished with his cross-examination. It was during the recess that my clients and I talked to the assembled media outside the courtroom to discuss our filing with the Asian Inter-Governmental Commission on Human Rights. This was a filing that the prosecutors, echoing the position of then Secretary Devenedara, did not like because they mistook it as an expression of distrust with the on-going  criminal proceedings here. On the contrary, the ASEAN filing was to declare the Philippines guilty of  breach of obligation to protect and promote the right to life of the victims. With such a declaration, the Philippines would in turn be constrained to pay reparations to the victims.

12. I dispute Prosecutor Navera’s assertion that I have been belligerent. But I would agree that I have differed with the Public Prosecutors on at least three issues: First, the place of detention for the Ampatuans. The Public Prosecutors wanted a special detention for them, my clients wanted them to be treated like ordinary criminals and  hence, they wanted them detained in the Quezon City Jail. We filed a “manifestation” in this regard after our clients confirmed that the Ampatuans were being given special treatment in the General Santos facility where many of the Ampatuans were then detained. The victims could file a manifestation, unlike a “motion” alone. A proper motion could only be filed with the conformity if the public prosecutor. Obviously, we filed a manifestation because the prosecutors until today –  despite the press conferences and the parties in Bicutan where the Ampatuans are still detained – would not want to detain the accused in Quezon City jail.

13. Second, we filed similar “manifestations” on the issues of live coverage and the fact that the victims whom we represent have lost their trust and confidence on Secretary Agra. In the latter manifestation, we also asked the court to defer proceedings until after July 1 after the administration of  President Arroyo. Again these were manifestations filed to register the sentiments of the victims to  the court as otherwise, the conformity of the prosecutors would be required. Certainly, the 14 victims whom we represent have earned the right to let their feelings known to both the court and the public.

14. Finally, to dispute that we have been belligerent to the Public Prosecutors, we drafted and filed, with their conformity, a motion to cite BJMP officials in contempt for allowing accused Unsay to conduct a press conference in Bicutan.

15. While the prosecutors and I agree substantially on the recital of facts, the issue remains whether despite their detailed knowledge of the nature of testimony of the witness, they were justified in their failure to even listen to the witness in person. In this regard, we submit that Agra and the DOJ cannot wash their hands of the death of a potential witness with a potentially damning testimony against suspects in the most gruesome massacre perpetrated in the Philippines in recent memory.  At the very least, they cannot escape liability and culpability for their dereliction of duty as public officers.

16. Ultimately, it is the State, through the DOJ, that is precisely tasked to protect and promote the right to life of individuals, especially those who have come to them for assistance. No amount of blaming others can absolve the DOJ and the state in this regard.

#30#

Published in: on June 27, 2010 at 3:27 pm  Comments (5)  
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Starstruck at Luneta

It was the first time I attended a Presidential inauguration. Executive Secretary Jojo Ochoa was thoughtful enough to remember our nine years of constant struggle against “the evil one” and gave me two invitations to attend P-Noy’s and V-Nay’s oath taking at Luneta. My wife went berserk when she found out that we would be going merely two days before the event. Like most women, she panicked because she claimed that she had nothing to wear. I was only too pleased that men do not have this problem. Filipino men can only be thankful that a barong was the only attire expected of them in attending historic and formal events.

We were among the first to arrive in the grandstand. Excited as I was, I thought it prudent to arrive very early, thinking that it would be free seating. I was relieved when the ushers directed us to our designated seats. Turns out, the ticket that came with the invitation apparently contained a seat number similar to those in fancy movie houses.

What a sight it was. At least a million souls gathered to celebrate a new beginning. Being ordinary mortals, we were seated at the upper portion of the Quirino grandstand above the designated areas for VIP’s. Directly across the grandstand was a sea of humanity as far as Taft Avenue. What a treat it must have been for everyone to be part of that historic moment.

Maybe because of the fast-paced life that I have been living, I have not taken time out before to observe people. Arriving early on inauguration day enabled me to go people watching, a luxury that I have not had since my freshman year of pre-law in Diliman.

There were gorgeous women in abundance. I thought Gretchen Barretto and Lucy Torres-Gomez were like princesses. Tingting Cojuangco was ageless. And yes, the academic that I am, I have to say that James Yap is making the mistake of his life: Kris Aquino looked stunning despite her domestic concerns. There were VIPs all over the place. There were the two ex-Presidents, Fidel Ramos and Joseph Estrada, seated together but obviously ignoring each other’s presence.

Living icon and statesman Jovito Salonga was there with his lawyer son, Steve. There was the brave Chief Justice Renato Corona who I thought was a perfect sport and a gentleman for being there, despite the fact that it was senior Associate Justice Conchita Carpio-Morales who administered the oath. There too were Associate Justice Antonio Carpio, the best chief justice that I hope we would still have, and one of my favorite jurists, retired Justice Adolph Azcuna.

I saw my colleagues in the parliament of the streets led by the Sisters Mary John Mananzan, Fely, and Cres, all still guarding the whistleblower Jun Lozada. Jun has become a celebrity in his own right with almost everyone wanting to have a picture with him. There were the street parliamentarians, spouses Paco and Gloria Alcuaz, the latter donning a native hat that would have put British royalty to shame. And of course, there were stars—many of them: Pokwang, Ai-Ai de las Alas, Marian Rivera , Dingdong Dantes, Ogie Alcasid, Regine Velasquez, Christian Bautista, the APO Hiking society, Noel Cabangon, and my all-time favorite, Juana Change, among others.

In keeping with tradition, she whom we would now want to forget rode in the limousine with Plate Number 1 together with P-Noy. I thought that they arrived a lot earlier than expected , maybe because P-Noy ordered the chauffeur to make the ride as quick as possible. She then made her last review of the guards, was rightfully booed and shooed, before she set off on board her private SUV, not into the horizon, but hopefully to the Mandaluyong rehabilitation facility for women. Kudos to Akbayan for their bold roaming banner that read: “We will not miss you, GMA.”

The program then started with Charice Pempengco singing the national anthem the way it should be sung, with an angelic voice and none of the artistic license that has made the singing of the anthem controversial. Manny Pacquiao should take the hint and ask Charice to sing at his next gig at the boxing ring. Then there was an ecumenical prayer before a cultural show that I thought was a bit too long. At about quarter to 12, Justice Morales administered the oath to Vice President Jojo Binay and at exactly 12 noon, to P-Noy.

Then it was time for the highlight, the inaugural address. Speaking in Filipino, Aquino spoke in short and brief sentences, highlighting our everyday peeves such as the “wang-wang”, counterflow,  and tong—hallmarks all and evidence of arrogance of the past administration. “This”, he said in Filipino, “marks the end of leadership that has been insensitive to the cries of the people”. He repeated his campaign slogan: “no poverty if there is no corruption” and gave the marching order to Secretary Leila de Lima to “proceed  dealing with the problems of criminality”. Then came my favorite: “there shall be no reconciliation, without justice”. I was too pleased with what I heard that I was clapping like a child during the entirety of the speech even if at times, I was alone in doing so. Heck, his words sounded like colorful campaign promises, but spoken by one who has suffered so much, we were entitled to delight in them for the time being.

There was a pledge, which I thought was neither dramatic nor poetic enough, and lo and behold, it was over. My wife and I tried to beat the exodus of people by leaving the stand during the recital of the pledge. That too was a wise move because it took my colleague Romel Bagares half an hour before he could find his way to our agreed rendezvous at the Manila Hotel. It was more people watching at the hotel with the Aquino sisters and Shalani Soleded dominating the scene. I had a quick chat with Cory loyalist and now foster mother to the Aquino brood, Margie Juico and her hubby, Philip. And off we went, back to our normal, everyday lives.

Back home, my eight-year-old son who knows about the “bad” and the “good” President, said that he did not see me on television. That, I thought, was a good break!

Published in: on July 1, 2010 at 11:21 am  Comments (13)  

TWO SUSPECTS IN KILLING OF MAGUINDANAO WITNESS APPREHENDED

I confirm that two individuals recently arrested by the Philippine National Police in Maguindanao are amongst the four suspects in the killing of Maguindanao massacre witness, Jessie. Bedo Pasawilian alias Bro Pasawilan and Morshed Salik Simpal were arrested Thursday, July 2, 2010, on the basis of  a warrant of arrest issued by Judge Ibrahim Banzawan for illegal possession of firearms.

Two witnesses, including an eyewitness to the killing, have positively identified the four shooters of Jessie. Both eyewitnesses are currently in the custody of CIDG ARMM.  I have received reports likewise that a high-ranking official of the ARMM has been interceding to effect the release of the two suspects. One of those currently in custody and facing prosecution for 57 counts of murder is ARMM  Governor Zaldy Ampatuan.

Manhunt operations continue against two further suspects in the killing of Jessie. Until the PNP has apprehended or have declared that they have given up on the manhunt for the two other suspects, I will withhold the release of their  names so as not to interfere with an on-going police operation. Meanwhile, I confirm that per consultations with CIDG investigators, the PNP has discarded the theory that Jessie’s killing was a result of a love triangle.

We note too that Jessie may not have died in vain. Secretary Leila De Lima has broken her silence and has confirmed that she met and heard the testimony of Jessie. She further added that the now deceased witness had to wait for three hours at her office awaiting for the DOJ Prosecutors to arrive. They never did. We are pleased likewise that amongst her first public pronouncements as Secretary of Justice was that she would to review, re-examine and audit the Department’s Witness Protection Program. We reiterate that this program is crucial to ending impunity as unless witnesses are given protection, they will not have the confidence to take the stand and to tell the truth.

Published in: on July 6, 2010 at 12:16 am  Leave a Comment  
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CITO LORENZO: DON’T DO A NERY, SPEAK THE TRUTH!

(more…)

Published in: on July 7, 2010 at 1:15 pm  Comments (14)  
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OMBUDSMAN’S HALF-BAKED INVESTIGATION OF THE FERTILIZER SCAM

Ombudsman Merceditas Gutierrez proves anew her loyalty to the Arroyo’s. As if on queue with the homecoming of Cito Lorenzo, she filed charges for mere malversation of funds against Bolante and Lorenzo instead of Plunder in connection with the Fertlizer Fund Scam. The charge does matter. Malversation is bailable, while plunder is not. Moreover, despite the fact that Mrs. Arroyo no longer enjoys immunity, she did not include her in the charge sheet. What was the use of sitting on the fertilizer scam case for 5 years if she did not charge one who no longer has presidential immunity after she finally took action on the case? The Filipino people are screwed anew. When evidence was submitted by the Senate that 728 Million of taxpayers money was spent for liquid fertilizers intended for orchids, delivered to non-existent framers groups, and diluted with water, these were already at least three separate criminal acts that qualified the scam into an act of plunder. This decision, therefore, is legally erroneous, disadvantageous and malicious against the Filipino people.

Published in: on July 9, 2010 at 4:11 am  Comments (16)  
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A necessary toothless tiger

Much has been said about the Truth Commission. While it is true that this body promised by President Noynoy Aquino as a means of ferreting out the truth on the many scandals of Gloria Macapagal Arroyo is in reality a toothless tiger, a superfluity, and will be the source of disappointment for many, it is still an exercise that must be resorted to if the Arroyos are to be held responsible for their many crimes.
The pitfalls of the commission are many. For instance, as a creation of the Executive, it cannot exercise powers beyond gathering facts. It cannot have the powers to issue summons, nor will it have the power to cite individuals in contempt. In other words, absent legislative imprimatur, it can only count on the willingness of crucial witnesses to testify and their voluntary submission of evidence.

To be sure, P-Noy’s Truth Commission is not the first in Philippine history. An earlier one was the Agrava Commission. It was formed to conduct factual investigation on who killed Ninoy Aquino. The appointed Chair of the Aquino Truth Commission was also legal counsel of the Agrava Commission. To highlight the weakness of fact-finding commissions, thirty years after the Agrava Commission was formed, we still do not know with certainty who killed Ninoy Aquino.

The Truth Commission is also being compared to the Presidential Commission on Good Government. The comparison at least is that both bodies seek to ascertain the sins of the previous dispensation. But that is the beginning and end of the comparison. For unlike the Truth Commission, the PCGG was a legislative creation, created pursuant to EO 1 issued by then President Corazon Aquino when she was exercising extraordinary powers that were both executive and legislative in nature. The PCGG could hence issue summons, order the production of evidence issue writs of sequestrations, and cause the filing of cases in court. The difference lies, in other words, with the fact that the law gave the PCGG extraordinary powers whereas the Truth Commission, being a mere creation of the Executive, cannot exercise powers not delegated to it by Congress, the latter in the exercise of its policy making mandate.

Can it compel, for instance, Romulo Neri to answer the three questions which would implicate Gloria Macapagal Arroyo in the NBN-ZTE scam but which were declared by the Supreme Court to be covered by executive privilege? Certainly not. If Congress, despite its plenary powers to conduct investigation in aid of legislation, was restrained by the Supreme Court, there is more reason that a mere fact finding commission would not succeed in this regard. Likewise, Cito Lorenzo, even if he wanted to turn state witness, could not count on the Commission to grant him testimonial immunity. It behooves both rhyme and reason why he would then incriminate himself voluntarily without being admitted first as a state witness.

Likewise, it is unlikely that the intelligence community, despite the chain of command, would voluntarily surrender information on the “Hello Garci” scandal. And of course, the Department of Foreign Affairs, still under Secretary Alberto Romulo, would not want to reopen the Northrail controversy as he would almost certainly argue that to do so would harm bilateral ties with China.

So is the Truth Commission completely irrelevant?

Not necessarily. In transitional societies like South Africa where convictions for the gravest human rights violation has become impossible because of the passage of time and the dearth of witnesses, truth commissions have at least accorded these societies an opportunity to heal. While justice was not completely served in the absence of criminals actually being meted sentences for crimes that they committed, the truth would at least give the victims an opportunity to move on. There is solace in knowing, for instance, that a loved one who has disappeared has conclusively been found to have been killed. These kinds of confirmations at least accorded mothers to grieve, rather than hope that their loved ones could still be alive.

The Truth Commission to be established by P-Noy should not, however, follow the pattern of the South African model. In truth and in fact, the Commission should meanwhile perform the fact-finding function that the Ombudsman has opted not to perform. With Merceditas Gutierrez appointed precisely to protect the Arroyos, the intention should be not to accord the latter impunity, but to engage in fact finding while there is paralysis, nay dereliction of duty, in the Office of the Ombudsman.

The Truth Commission should thus be supported precisely because the evidence against the Arroyos should be gathered and preserved while the merciless Mercy is still in office. It should never be considered as a substitute for the vast powers granted by the Constitution to the Ombudsman. It is, hence, a stop-gap measure intended to send the message that at no time should the Arroyos think that they can get away with their crimes.

Since the Truth commission appears to be a necessary toothless tiger, how then should the Commission proceed with its mandate?

To begin with, in the absence of legislative imprimatur, it must conduct its investigations utilizing existing executive offices with the powers that it will require. Here, it is indispensable that the Department of Justice formally conduct preliminary investigations on the many crimes of the Arroyos. In this manner, it can utilize its power to resort to compulsory processes, which the Commission does not have on its own. Furthermore, the Commission should also have the Solicitor-General on board. This is because existing laws on unexplained wealth grants the Solicitor-General the power to file forfeiture cases against proceeds of the crime of plunder and other violations of the Anti-Graft and Corrupt Practices Act. Likewise, the Commission should have the full support of the Anti-Money Laundering Council, if we are to freeze and still recover the ill-gotten wealth of the Arroyos and their cohorts.

Published in: on July 16, 2010 at 8:38 am  Comments (5)  
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The Repeated Siege of the Women of Mapanique, Candaba, Pampanga

At dawn of November 23, 1944, Japanese troops descended on the town of Mapanique, Candaba, Pampanga. To the shock of the local inhabitants, Japanese troops gathered all the men and boys and proceeded to castrate many of them. After which, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse.

The women and girls, on the other hand, were marched to what is known until today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, the women and girls were interred and repeatedly raped.

The magnitude of the Japanese cruelty witnessed by the remote town of Mapanique was because the town was known to be hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before he siege of Mapanique. One of its most respected leaders was a woman, Commander Dayang Dayang, who was herself a native of Mapanique. This, plus the desperation of the Japanese troops who already knew that they had lost the war, would explain the unparalleled cruelty that accompanied the war crimes committed by the Japanese troops against the civilian population of the town.

Inspired by the revelations of South Korean women who publicly admitted that they were victims of the Japanese comfort women system, about 60 victims of rape and other war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were victims of mass rape committed by the Japanese during the infamous siege of Mapanique, it also includes in its roster women folk whose husbands, sons and other male loved ones became victims of Japanese war atrocities.

In 2004, the Malaya Lolas filed suit in the Philippine Supreme Court to compel the Philippine government to espouse, or sponsor their claims for compensation from the Japanese government. Prior to their suit before the Philippine Supreme Court, the Malaya Lolas had their suit for reparations dismissed by Japanese courts on the ground that the women do not have personality to sue under international law. The Japanese courts opined that the Philippine government must sponsor their claims. Hence, the of case Vinuya et. Al. versus Executive Secretary.

The suit was itself novel because it was researched, drafted, prepared and filed by law students who were then enrolled in the first ever course on International Humanitarian Law in the Philippines. In that year, the University of the Philippines Institute of International Legal Studies, an Institute that I once headed, embarked on a training program on the teaching of IHL in Philippine law schools. To practice whet we were then preaching, UP pioneered in the teaching of IHL as a separate course since IHL used to be taught only as part of the general course on Public International Law.

It was in the course of teaching this pioneer class on IHL that the Malaya Lolas requested for us to provide them with a legal remedy after their suit for compensation had been dismissed by the Japanese courts. After some of the Lolas met the students then enrolled in that class, many of whom have become leading authorities in International Law today, such as Diane Desierto of Yale and the International Court of Justice, Neal Silva of the Department of Justice, Raymond Sandoval of the International Criminal Court; the students came out with this cause of action: one, mass rapes against civilian populations have always been subject of a non-derogable prohibition in times of war; two, it is also subject of a duty for all states to investigate, prosecute and punish the perpetrators thereof. Accordingly, and three, the commission of mass rape will not only entail the duty of a state to pay compensation as a consequence of the doing an internationally wrongful act, it is also the basis for individuals to incur individual criminal responsibility.

To counter the position of the Philippine Government that further reparations is barred by a waiver which the Republic signed, the students argued that such waiver is null and void for being contrary to public policy and that the state cannot waive a right that inures to its nationals. The students likened this second argument to the prosecution of the crime of rape. While the state is the offended party in a criminal prosecution for the crime of rape, compensation that would excuse the rapist from incurring criminal responsibility could only come from a pardon made by the private offended party. Here, it is the private offended party that has the power to determine whether or not to accept compensation in exchange for the dropping of a criminal case. There should no difference , the students argued, where the crime is more abominable, such as in the war crime of mass rape.

6 years after the filing of the case of Vinuya, and after 20 of the original petitioners had died, the Philippine Supreme Court unanimously dismissed the Malaya Lola’s petition. In its 33 page decision, the Court said that the claims for compensation are barred because the Philippines entered into the San Francisco Peace Pact where in exchange for nominal war reparations, the government was said to have waived any and further claims for compensation from Japan, a view consistently espoused by the Department of Foreign Affairs. Furthermore, the court ruled that while it commiserates with the sufferings of the women of Mapanique, this, allegedly, is one instance where there is a violation of right but bereft of a legal remedy. The Court also said that while rape is prohibited, there is no non-derogable obligation to investigate, prosecute and punish those who committed mass rape as a war crime. This is the second siege of the women of Mapanique.

In a few hours, read about the third siege of the women from Mapanique, Candaba, Pampanga.

Published in: on July 18, 2010 at 8:26 am  Comments (6)  
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The 3rd Siege of Mapanique: Plagiarism in the Supreme Court of the Philippines

40 member of the Malaya Lolas (Liberated Grandmothers) will file tomorrow at 10:30 AM at the Supreme Court a Supplemental Motion for Reconsideration detailing plagiarism committed by the court in its unanimous decision in the case of Vinuya et. al. versus Executive Secretary promulgated in April 28, 2010. In their Supplemental Motion, petitioners will detail how 12 pages of the court’s 33 page decision appear to be plagiarized from at leat three sources, an article from the Yale Journal of International Law, a book published by Cambridge University, and an article from the Case Western University Joiurnal of International Law. In addition to the plagiarism, which is a word for word lifting of pages from the three articles without the proper attribution, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies. All three plagiarized articles argue otherwise.

It was a difficult decision to file the Supplemental Motion. In the end, we were guided by our duties as officers of the court under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, which provides for our duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”

It is our intent in calling attention to the plagiarism to strengthen rather than to weaken the Supreme Court as the ultimate guardian of constitutional supremacy. We hope that this unfortunate incident will result in a stronger rule of law for this country.

We are confident that the Justices of our Supreme Cort will eventually make the right decision and protect the integrity of the court.

Published in: on July 18, 2010 at 2:02 pm  Comments (4)  
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Supplemental Motion Alleging Plagiarism in the Supreme Court

REPUBLIC OF THE PHILIPPINES
SUPREME COURT
En Banc, Manila
ISABELITA VINUYA, et al.,
Petitioners,
G.R. NO. 162230
CERTIORARI with an Application for a Writ of
Preliminary Mandatory
Injunction
-versus-

THE HONORABLE EXECUTIVE SECRETARY, et al.,
Respondents.
X——————————————X

SUPPLEMENTAL MOTION FOR RECONSIDERATION

Petitioners, by counsel, and unto this Honorable Court, respectfully submit their supplemental Motion for Reconsideration of this Honorable Court’s Judgment dated April 28, 2010 in the instant case on the following submissions:

PREFATORY STATEMENT
The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
–1987 CONST. Art. II, § 2
The State values the dignity of every human person and guarantees full respect for human rights.
- 1987 CONST. Art. II, § 11

But if what, God forbid, these Conventions should ever have to be applied, they must be obeyed.
– M.W. Mouton

Towards the end of its Judgment of April 28, 2010, this Honorable Court expresses its great sympathy for Petitioners, saying its members “cannot begin to comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers.” And then it goes on to say that it is “deeply concerned” that – in “apparent contravention of fundamental principles of law” – the Malaya Lolas “appear to be without a remedy to challenge those that have offended them before appropriate fora.”
In the first place, it is highly improper for this Honorable Court’s Judgment of April 28, 2010 to wholly lift, without proper attribution, from at least three sources – an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005 and an article published in 2006 in the Case Western Reserve Journal of International Law – and make it appear that these sources support the assailed Judgment’s arguments for dismissing the instant Petition when in truth, the plagiarized sources even make a strong case for the Petition’s claims;
Petitioners’ counsel are mindful that in raising this matter they bring serious charges against the integrity of this Honorable Court’s deliberations in this case. But if Petitioners’ counsel are to take faithfully their duty as officers of the court sworn to uphold the Constitution and the law, they realize – and this, not without much trepidation – that they only renege on such high legal duty if they choose to keep their peace.
In fact, under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, they have a duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”
Surely, Petitioners may not be begrudged their right to expect of the supreme interpreter of laws –their last hope of redress for the historical injustices they have borne in shame and sorrow for over half a century because of inexcusable government neglect – the highest standards of jurisprudence in international law.
This Honorable Court itself has stated in a disciplinary case against a judge that the decisions of courts need not only be just but must be perceived to be just and completely free from suspicion or doubt both in its fairness and integrity.
Canon 1, Rule 2.01 of the Code of Judicial Conduct states that a judge “should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary” and with Canon 3, Rule 3.01 of the same Code which provides that a judge “shall be faithful to the law and maintain professional competence.”
The High Court’s authoritative function requires no less than a scholarship with high intellectual and moral integrity, especially in a case of transcendental importance such as this. Indeed, it cannot faithfully dispense with its constitutional duty to render justice to whom it is due without such singular conscientiousness.
Under our system of judicial adjudication, judicial decisions become part of the law of the land.
As Art. 8 of the New Civil Code would put it, “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.” Moreover, a globalized world has made it easier for courts from different parts of the globe to cite one another in their judgments. Jurisprudence steeped in serious error and falsity ultimately injures the cause of an international legal order founded on a common respect for the Rule of Law. The very integrity of the idea of a just judicial precedent is at stake here.
Unfortunately, the assailed Judgment has already been posted on this Honorable Court’s website; it will now be easier for the world – and of course, the authors of the above-named articles – to know about the intellectual theft that happened in the hallowed halls of the Philippine Supreme Court.
In this controversy, the evidence bears out the fact not only of extensive plagiarism but also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition.
Moreover, infringement of copyright – arguably at the very least an instance of moral turpitude – is a criminal offense under the applicable Philippine law on intellectual property. Art. 217 of the new Intellectual Property Code, Republic Act 8293, imposes a penalty of imprisonment of one (1) year to three years (3) plus a fine ranging from P50,000 to P100,000 on copyright infringement on a first offense.

The assailed Judgment is the Judgment not of a mere Division but of the Supreme Court en banc itself. In accordance with § 13, Art. VIII of the 1987 Charter, the Chief Justice of this Honorable Court certified that the conclusions in its Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. The full court signed the Judgment – all 13 sitting Honorable Justices of this Honorable Court at that time.
Five of the Justices concurred in the result: then Chief Justice Reynato S. Puno, Associate Justice Conchita Carpio-Morales, Associate Justice Diosdado M. Peralta and Associate Justice Antonio Eduardo B. Nachura (who issued a separate opinion concurring in the result, and which was issued by Associate Justices Carpio-Morales and Diosdado M. Peralta) Associate Justice Antonio T. Carpio concurred in the result on the ground that the Petitioners’ claims are barred by the Peace Treaty Between the Philippines and Japan (a point Petitioners vigorously dispute in extenso below).
Meanwhile, the following Associate Justices concurred in full with the opinion written by Associate Justice Mariano C. Del Castillo – Renato C. Corona (now the incumbent Chief Justice), Presbitero Velasco, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Roberto A. Abad, Martin S. Villarama, Jr. and Jose Portugal Perez.
This Honorable Court has dismissed judges for less serious offenses. Indeed, in its illustrious past, in one such case, this Honorable Court has had occasion to say of the competence of magistrates in this wise:
In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities place a premium on how he has complied with his continuing duty to know the law. A quality thus considered essential to the judicial character is that of “a man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the learning of the law; is profoundly learned in all the learning of the law; and knows how to use that learning.”
Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles. For, service in the judiciary means a continuous study and research on the law from beginning to end….
It has been said that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. This means that a judge should not only render a just, correct and impartial decision but should do so in such a manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should moreover inspire that belief. Like Caesar’s wife, a judge must not only be pure but beyond suspicion.
Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of laws and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may have detrimental consequences beyond the immediate controversy. He should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of the law. These are immutable principles that go into the very essence of the task of dispensing justice and we see no reason why they should not be duly considered in the present case…..
To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in the performance of his duty that diligence, prudence and care which the law is entitled to exact in the rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by a reasonable interpretation, and even though there is a misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a very clear and indisputable manner, in the notorious violation of the legal precept…. [emphasis supplied]

It is thus every lawyer’s serious and urgent concern that this Honorable Court address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism discovered (and discoverable by the rest of the world) from the Court’s published Judgment, which did not only twist the content of such texts, but worse, resulted in gross prejudice to Petitioners.
It is also for this reason that Petitioners are submitting before this Honorable Court their Supplemental Motion for Reconsideration, having discovered the plagiarism after the filing of the Motion for Reconsideration. Petitioners are compelled to further address the relevant material points made in the assailed Judgment on account of the fact that these were substantially based on sources plagiarized and twisted out of context and therefore stand on shaky if not contravening legal grounds.
More importantly, Petitioners are left without any remedy for the injury they suffered under the Japanese Imperial Army’s Comfort Women System during the last World War because this Honorable Court refuses to grant them recognition before the law. Petitioners take issue with this Honorable Court’s holding that it is not within its power to compel the Executive Department to take up their cause as theirs is only the power to urge and exhort the Executive Department to do so, as all the prerogatives on foreign policy imperatives belong solely to the President.
On the contrary, as the Supreme Court itself has recognized when it outlined the constitutional regime governing the issuance of the writs of Amparo and Habeas Data, it has the constitutionally-mandated duty to ensure that redress for the impairment of the constitutional rights of citizens are given the appropriate remedy.
This Honorable Court has already acknowledged that the fundamental rights of Petitioners had been violated; it cannot then say that all that it can offer to them are words of sympathy. This Honorable Court has a duty to do justice – to protect the constitutional rights of citizens.
It cannot do so by merely commiserating with the sufferings of the Petitioners without providing them with adequate legal remedies that are available under the constitution. Its contention that it can only sympathize with Petitioners for their shame and suffering because the legal remedy they seek is not available runs counter to its own pronouncements on its expanded certiorari powers, most recently expounded upon in the Manalo Brothers case.
Such is the Amparo protection found in Art. VII, § I of the 1987 Charter, which empowers the courts “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” According to the Manalo Brothers case, the Grave Abuse Clause, “accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo.”
Indeed, the assailed Judgment is a profoundly inexplicable disavowal of this Honorable Court’s constitutional mandate and a grievous denial of justice that finally banishes from history the claims of Filipino Comfort Women.
In the end, what this Honorable Court purports to do is to enshrine as an impregnable precedent in our jurisprudential history the dubious and dangerous legal principle that despite a clear violation of their fundamental rights under law and the constitution, where the President refuses to recognize such rights, claimants can only look to Heaven at the consummation of the Day of Judgment for the redress of the grievous wrongs suffered.

The submissions and after that, the discussion:

THE SUBMISSIONS

I.

IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.

II.
THEN AS NOW, THE CRIMES COMMITTED BY MEMBERS OF THE JAPANESE IMPERIAL ARMY AGAINST PETITIONERS CONSTITUTE VIOLATIONS OF JUS COGENS NORMS – OR AT THE VERY LEAST, OF CUSTOMARY NORMS BINDING ON ALL CIVILIZED NATIONS – AND ARE THEREFORE SUBJECT TO THE ERGA OMNES DUTY TO PROSECUTE INTERNATIONAL CRIMES UNDER INTERNATIONAL LAW.

III.

MOREOVER, THE INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES HAS LONG BEEN CONSTITUTIONALIZED IN PHILIPPINE CONSTITUTIONAL HISTORY, REACHING ITS FULLEST EXPRESSION IN THE 1987 CHARTER. INDEED, OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ ASSERTION THAT THE EXECUTIVE’S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.

IV.

INDEED, THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE FUNDAMENTAL RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS – ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.

V.

THE FILIPINO COMFORT WOMEN’S CLAIMS COULD NOT HAVE BEEN A LEGAL SUBJECT OF THE TREATY OF PEACE AS THESE ARE NOT PRIVATE CLAIMS BUT ARE IN FACT CLAIMS ARISING FROM WAR CRIMES AND JUS COGENS NORMS SUBJECT TO ERGA OMNES OBLIGATIONS UNDER INTERNATIONAL LAW. AS SUCH, THE CLAIMS RAISED BY PETITIONERS AGAINST THE STATE OF JAPAN IS AS WELL THE INTEREST OF THE INTERNATIONAL COMMUNITY AS A WHOLE UNDER THE LAW OF STATE RESPONSIBILITY, NOT TO MENTION THAT SUCH WAIVER IS PROHIBITED UNDER PHILIPPINE LAW.

THE DISCUSSION

I. IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.

On the matter of the article A Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-Decent, published in the Yale Journal of International Law (2009)

1. With two or three exceptions, key passages of this Honorable Court’s Judgment of April 28, 2010 have been plagiarized word for word from an essay co-authored by Evan J. Criddle and Evan Fox-Decent that appeared in Volume 34 of the Yale Journal of International Law. A copy of the article is attached as ANNEX A, with the plagiarized sections duly highlighted for easy reference. The pertinent pages (27-32) of this Honorable Court’s 33-paged Judgment, where the plagiarized sections of the three sources e were used, is attached as ANNEX B. The relevant portions of the pertinent pages were highlighted as well for easy reference.

2. Petitioners here choose to discuss first the theft of ideas from Criddle and Fox-Decent’s article because it is here where the plagiarism was most extensive. Criddle is Assistant Professor of Law at the Syracuse University College of Law in New York, teaching international law, administrative law and civil procedure. Fox-Decent is Associate Professor of Law at the McGill University Faculty of Law in Canada, handling legal theory and human rights law, among other courses.

3. In the following, Petitioners quote from the passages as they appeared in the Yale Journal of International Law article and cross-refer them with the Judgment of April 28, 2010 as these same passages appeared there:

Yale Journal of International Law Judgment of April 28, 2010

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.

p. 331 of the article

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.

pp. 30-31 of the Judgment

Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.

p. 332 of the article

Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.

p. 31 of the Judgment

…[p]eremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law…

p. 335 of the article

…[p]eremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law…

p. 31 of the Judgment

See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

p. 331 of the article, in footnote 2

See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

p. 31 of the Judgment, in footnote 70

Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent

p. 334 of the article
Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent

p. 31 of the Judgment, as a discussion in the first sentence of footnote 71

See HUGONIS GROTII, DE JURE BELLI ET PACIS [ON THE LAW OF WAR AND PEACE]
(William Whewell ed. & trans., John W. Parker, London 2009) (1625); EMER DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE [THE LAW OF NATIONS OR PRINCIPLES OF NATURAL LAW] §§ 9, 27 (1758) (distinguishing “le Droit des Gens Naturel, ou Nécessaire” from “le Droit Volontaire”); CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTORUM [A SCIENTIFIC METHOD FOR UNDERSTANDING THE LAW OF NATIONS] ¶ 5 (James Brown Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764)

p. 334 of the article, in footnote 6 See HUGONIS GROTII, DE JURE BELLI ET PACIS [ON THE LAW OF WAR AND PEACE]
(William Whewell ed. & trans., John W. Parker, London 2009) (1625); EMER DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE [THE LAW OF NATIONS OR PRINCIPLES OF NATURAL LAW] §§ 9, 27 (1758) (distinguishing “le Droit des Gens Naturel, ou Nécessaire” from “le Droit Volontaire”); CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTORUM [A SCIENTIFIC METHOD FOR UNDERSTANDING THE LAW OF NATIONS] ¶ 5 (James Brown Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764)

p. 31 of the Judgment, in the second sentence of footnote 71

Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement

p. 334 of the article Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement

p. 31 of the Judgment, in the third sentence of footnote 71.

WILLIAM HALL, A TREATISE ON INTERNATIONAL LAW 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate[], or at least render voidable,” conflicting international agreements); 1 LASSA OPPENHEIM, INTERNATIONAL LAW 528 (1905).

p.335 of the article in footnote 9 WILLIAM HALL, A TREATISE ON INTERNATIONAL LAW 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate[], or at least render voidable,” conflicting international agreements); 1 LASSA OPPENHEIM, INTERNATIONAL LAW 528 (1905).

p. 31 of the Judgment, in the fourth sentence of footnote 71.

….judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.

p. 335 of the article
….judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.

p. 31 of the Judgment, in the fifth sentence of footnote 71.

For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

p. 335 of the article, in footnote 10
For example, in the 1934 Oscar Chinn Case, Judge Schücking’s influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

p. 31 of the Judgment, in the sixth sentence of footnote 71.

Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.

p. 335 of the article
Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.

p. 31 of the Judgment, in the first sentence of footnote 72

At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy.

p. 335 of the article

At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy.

p. 31 of the Judgment, in the second sentence of footnote 72

These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War.

p. 336 of the article
These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War.

p. 31 of the Judgment, in the second sentence of footnote 72.

See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

p. 336 of the article, in footnote 18;

See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

p. 31 of the Judgment, in the third sentence of footnote 72.

….the 1950s and 1960s with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT)

p. 335 of the article
….the 1950s and 1960s with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT)

p. 31 of the Judgment

In March 1953, Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”

p. 336 of the article In March 1953, Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”

p. 31 of the Judgment, in footnote 73

….that certain international norms had attained the status of jus cogens.

p. 337 of the article

….that certain international norms had attained the status of jus cogens.

p. 31 of the Judgment

[S]ee,….. Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

p. 337 of the article, in the second sentence of footnote 23

[S]ee,….. Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

p. 31 of the Decision, in footnote 74

….the ILC was unable to reach a consensus….[on] the proper criteria for identifying peremptory norms.

p. 337 of the article

….the ILC was unable to reach a consensus….[on] the proper criteria for identifying peremptory norms.

p.31 of the Judgment

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”

p. 337 of the article
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”

p. 32 of the Judgment

Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc. A/CN.4/156.

p. 227 of the article, in footnote 27
Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc. A/CN.4/156.

p.32 of the Judgment, in footnote 75.

In commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”

p. 338 of the article In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”

p. 32 of the Judgment

Armed Activities on the Territory of the Congo, Jurisdiction of the Court and
Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 31-32, available at http://www.icj-cij.org/docket/files/126/10435.pdf

p. 346 of the article, in footnote 67 Armed Activities on the Territory of the Congo, Jurisdiction of the Court and
Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 31-32, available at http://www.icj-cij.org/docket/files/126/10435.pdf

p. 32 of the Judgment, in the second sentence of footnote 77

In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens

p. 346 of the article In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens

p. 32 of the Judgment, in the third sentence of footnote

See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be invoked “[o]nly as a last resort”).

p. 346 of the article, in footnote 72
See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be invoked “[o]nly as a last resort”).

p. 32 of the Judgment, in the fourth sentence of footnote 77

In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty.

p. 346 of the article
In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty.

p. 32 of the Judgment, in the fifth sentence of footnote 77

See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court).

p. 346 of the article, in footnote 73
See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court).

p. 32 of the Judgment, in the sixth sentence of footnote 77

In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law.

p. 346-347 of the article
In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law.

p. 32 of the Judgment, in the seventh sentence of footnote 77

See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 2 (dissenting opinion of Judge Dugard),

p. 347 of the article, in the first sentence of footnote 74

See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 2 (dissenting opinion of Judge Dugard),

p. 32 of the Judgment, in the eighth sentence of footnote 77

Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.

p. 347 of the article Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.

p. 32 of the Judgment, in the ninth sentence of footnote 77

….Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61).

p. 347 of the article, in footnote 75

Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61).

p. 32 of the Judgment, in the tenth sentence of footnote 77.

4. The Judgment of April 28, 2010 never made any reference to the article to indicate that in fact, the legal arguments it employed to deny the Petition were taken from the article; the effect of the omission of proper attribution is to make it appear that the key arguments made in the Judgment with respect to jus cogens norms are a product of the opinion-writer’s original research –and not someone else’s – and based as well on firm legal grounds.

5. A careful examination of the stylistics of the pertinent portions of the Judgment will show the clever way in which the arguments lifted from the plagiarized article were employed; important points on the matter of jus cogens norms – upon which Petitioners anchored their contention that the State has a duty in international law to prosecute international crimes – were taken without proper attribution from the article and used as the Judgment’s own.

6. And where appropriate, the corresponding footnote references and footnote texts in the Yale Law Journal of International Law article were likewise used in the pertinent pages of the Judgment; practically all the footnotes in pp. 31-32 of the Judgment – where the all-important arguments dismissing the claims raised by Petitioners on jus cogens grounds are found – were taken from the article and copied word for word (with the exception of ever so slight variations made in a handful of examples), without proper attribution.. In some cases, sentences from the essay’s main body were copied word for word and used as footnote details without proper attribution, thus making them appear like they were the words of the opinion-writer.

7. In any case, as the title of the plagiarized article suggests, it is a proposed reworking of the dominant hierarchical theory of jus cogens norms; as it stands, the fiduciary theory remains a minority view. Even so, the authors acknowledge that in current international law, seven categories of norms have achieved the status of jus cogens norms: (a) slavery or slave trade; (b) murder or disappearance of individuals; (c) torture or other cruel, inhuman, or degrading treatment or punishment (d); prolonged arbitrary detention; (e) systematic racial discrimination; and “the principles of the United Nations charter prohibiting the use of force (f).

8. Moreover, the fiduciary theory it propounds is also of the view that “each of these well-established norms merits peremptory treatment.”

9. In other words, this very same article that the Judgment of April 28, 2010 plundered for ideas to support its contention that the claims Petitioners have founded on jus cogens norms are unavailing ACTUALLY agree with the Petitioners’ fundamental claims. Expounding on a key principle of the fiduciary view, the authors contend thus:

At a minimum, the fiduciary model’s criterion of equal security – the principle that a state may not exploit individuals as mere means to its own ends – limits state legislative and administrative power by outlawing grave offenses such as genocide, crimes against humanity, summary executions, torture, forced disappearances, and prolonged arbitrary detention. Such flagrant abuses of state power deny a state’s beneficiaries secure and equal freedom and therefore trigger international law’s strictest peremptory prohibitions

10. Thus, a faithful reading of the entire article (from which numerous portions were selectively plagiarized in the Judgment) shows that crimes against humanity and torture — the very crimes suffered by Petitioners here — constitute jus cogens. The Judgment’s claim that these crimes do not constitute violations of jus cogens is plainly false.

On the matter of the book Enforcing Erga Omnes Obligations, by Christan J. Tams, published by the Cambridge University Press (2005)

11. This Honorable Court’s Judgment of April 28, 2010 also lifted without attribution from Christian J. Tams’ 2005 book, Enforcing Erga Omnes Obligations in International Law. Most likely, the opinion writer stole from the book excerpt – a 10-page portion of its introductory chapter – that the book’s publisher, the Cambridge University Press – has made available to the public through its website. A copy is attached as ANNEX C. The plagiarized portions have been highlighted for this Honorable Court’s convenience.

12. In the following, Petitioners quote from the passages as they appeared in Tams’ book excerpt and cross-refer them with the Judgment of April 28, 2010 as these same passages appeared there:

Excerpt of Christian J. Tam’s 2005 Book Judgment of April 28, 2010

The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law.

p. 3 in the except

The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law.

p. 30 in the Decision

As often, the reality is neither so clear nor so bright.

p. 3 in the excerpt

[However, as is so often the case], the reality is neither so clear nor so bright.

p. 30 in the Decision

….whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice.

p. 3 in the excerpt

[W]hatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice.

p. 30 in the Decision
Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the ‘‘ought’’ rather than of the ‘‘is’’

p. 3-4 of the excerpt
Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the ‘‘ought’’ rather than of the ‘‘is’’

p. 30 of the Decision, in the first sentence of footnote 69

13. Now in the second sentence of footnote 69, there is a reference there that said, “See Tams, Enforcing Obligations Erga Omnes in International Law (2005), immediately after the reference to Simma’s work, The Charter of the United Nations: A Commentary.

14. The way in which the reference to Tams’ book was made – which is totally different from the reference system used all throughout – does not make sense, unless the Judgment in question meant to refer the reader to Tams’ work as an entirely different source he or she may wish to check. Besides, the sentences in the paragraph for which footnote 69 was meant to serve as reference signal were not placed in quotation marks to indicate that they are direct quotes from Tams’ book. It must be noted that the reference system used for the source of the comment appropriating Simma’s work is the Harvard Blue Book. But the one used for the Tams reference is something else. It certainly used neither the Oxford Standard Citation of Legal Authorities (OSCOLA) nor the Philippine Manual of Legal Citations (PMLC).

15. Whatever the case, the questioned Judgment’s move to marshal Tams’ work to support its contention that the doctrine of erga omnes obligations in international law is a problematic concept without any practical application is to say the least, grossly inaccurate, because the author has by all indications written a book exploring how erga omnes obligations may be enforced and have been enforced.

16. In other words, the source plagiarized by the Judgment of April 28, 2010 to denigrate the doctrine of erga omnes obligations – Christian J. Tams’ book – actually argues for a central place for erga omnes obligations in the enforcement of international law.

17. This should be fairly obvious in his work’s title: Enforcing Erga Omnes Obligations in International Law. (or a study, in his words, “on attempts to induce a State to cease its wrongful conduct and to remedy its consequences.”)

18. Here, Tams, first of all, made a rundown of contemporary objections or reservations to the workability of erga omnes obligations as a legal doctrine and then proceeded to examine the ways in which it may be worked out in practice and how it is now being worked out in practice. “The present study,” he says, “attempts to demystify aspects of the ‘very mysterious’ concept and thereby to facilitate its implementation.”

19. Tams’ chosen method is to identify the different obligations erga omnes, analyze contentious ICJ proceedings involving these obligations and finally evaluate the effectivity of countermeasures as means of enforcing them (in particular the so-called “decentralized means of enforcement” , which in his view seems to be the most promising in the arsenal of enforcement measures ).

20. Some of the assumptions about erga omnes on which his study proceed are the following: obligations erga omnes have an important bearing on enforcement in international law, because not only does it concern the legal interest of all states but also that it involves many issues not at all related to enforcement; (2) the analysis of countermeasures and the relevant ICJ proceedings bears out the significance of measures of decentralized enforcement by states, that is, “measures taken by groups of States and may even include measures agreed within the framework of an international organisation, as long as these are directed against non-member States,” inasmuch as “State enforcement remains an essential aspect of protecting general interests under international law.” (3) countermeasures and CJ proceedings are the very things most affected by the concept of erga omnes obligations , considering that (a) the concept enhances the enforcement of international law and (b) “States can respond against erga omnes breaches in a way not otherwise open to them.”

21. If there is still any doubt about the book’s intent, the blurb provided by the book’s publishers as it appears on its website, will obliterate it:

The concept of obligations erga omnes – obligations to the international community as a whole – has fascinated international lawyers for decades, yet its precise implications remain unclear. This book assesses how this concept affects the enforcement of international law. It shows that all States are entitled to invoke obligations erga omnes in proceedings before the International Court of Justice, and to take countermeasures in response to serious erga omnes breaches. In addition, it suggests ways of identifying obligations that qualify as erga omnes. In order to sustain these results, the book conducts a thorough examination of international practice and jurisprudence as well as the recent work of the UN International Law Commission in the field of State responsibility. By so doing, it demonstrates that the erga omnes concept is solidly grounded in modern international law, and clarifies one of the central aspects of the international regime of law enforcement.

On the matter of the article Breaking the Silence: On Rape as an International Crime, by Mark Ellis, published in the Case Western Reserve Journal of International Law (2006).

22. A significant portion of the long commentary on the international crime of rape found in footnote 65, p. 27-28 of the Judgment of April 28, 2010 has been copied word for word without proper attribution from an important article written by Mark Ellis on the subject for Case Western Reserve Journal of International Law in 2006. It is readily available in the internet through Brittanica Encyclopedia’s website. A copy of the article as published in the journal is attached as ANNEX D. Mr. Ellis is the current Executive Director of the International Bar Association (IBA), the foremost international organization of bar associations, law firms and individual lawyers in the world, with 198 national bar associations and 40,000 individual members from around the world. He has recently been appointed adviser to the UK Foreign and
Commonwealth Office on international rule of law initiatives.

23. A close scrutiny of footnote 65 of the Judgment, which runs from pp. 27-28, will reveal that the ponencia did not at all make any reference to the Ellis article from which a good part of its background discussion on the international crime of rape as found in footnote 65 was taken. At first glance, it would appear to the reader that the long discussion in the footnote was the ponente’s own words. But the truth is otherwise.

24. The assailed Judgment clearly lifted without attribution from the Ellis article, down to the footnotes found in the Case Western Reserve Journal of Internationa Law essay. However, what it did was it jumbled some paragraphs or sentences – as if it were ever enough to hide the plagiarism that had been committed with abandon; with some effort these paragraphs and sentences stolen from the Ellis article and re-arranged in footnote 65 of the assailed Judgment can be picked out and compared with the Ellis article.

25. In the case of one crucial assertion in the Ellis article on the role of the international criminal tribunals in Rwanda and the former Yugoslavia on the penalization of rape as an international crime, the assailed Judgment appropriated it and then added a detail that thoroughly changed its meaning.

26. According to the Ellis article, the most important development in breaking the silence of rape as an international crime has come through the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).

27. It added thus: “[b]oth of these Tribunals have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.”

28. The assailed Judgment put it this way: “Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.”

29. Ellis was actually making the historical point that from the tribunals of the Second World War, where rape was for the most part punished as a subset of crimes against humanity, it was the tribunals for Rwanda and the former Yugoslavia that advanced the cause to penalize rape as an international crime according to three explicit categories. In fact, if one reads the subsequent sections of the article, the author would later on say that the International Criminal Court (ICC) only built on these gains made by the two earlier tribunals.

30. The comparative table below illustrating these observations diverges from the comparative tables seen above in the plagiarism involving the Yale Journal of International Law article on jus cogens norms and the book on erga omnes obligations by Christian J. Tams for the reason that here, all the plagiarized portions were appended to the assailed Judgment as part of an extensive discussion by the ponente in a single footnote – footnote 65; the opinion writer passed off the extensive footnote comments as his own, including the references found in the comments. As can be seen here, Ellis was never mentioned at all in footnote 65 as the source of the comments and the references incorporated in the comments.

31. As an example: in the Ellis article, the following paragraph opened the discussion in the article’s Section III (p. 227):

The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war.

32. As his source, Ellis cited thus in footnote 7 of his article:

For example, the Treaty of Amity and Commerce Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85, available at http://www.yale.edu/lawweb/avalon/diplom acy/germany/prus1785.htm (last visited Nov. 20, 2003).

33. The opening sentences of the Ellis article were also the opening sentences of footnote 65 of the assailed Judgment, copied word for word from the former.

34. The above discussion in footnote 7 of the Ellis article however, appeared as the fifth sentence of footnote 65 in this wise as part of its running commentary:

(For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85.

35. Notice that the opinion writer chopped off the original reference made by the Ellis article on the Treaty of Amity and Commerce between Prussia and the United States the website of the Yale Law School Avalon Project , from which Ellis sourced the text of the Treaty.

36. As an example of how the assailed Judgment juggled the sentences it copied from the Ellis article, we cited the third sentence of the latter concerning the 1863 Lieber Instructions:

The 1863 Lieber Instructions, which codified customary international law of land warfare, classified rape as a crime of “troop discipline.”

37. The above sentence was the third sentence in Section III of the Ellis article (p. 227) and the source of the same information was referenced by the author in footnote 8, which reads (in what appears to be the Harvard Blue Book format):

David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L L. 219, 224.

38. The Lieber Instructions discussion appeared in slightly different form as the sixth sentence of the commentary found in footnote 65 of the assailed Judgment, with its reference – also modified by the ponencia by removing the author’s first name (the “David” in “David Mitchell”) appended to it thus:

The 1863 Lieber Instructions classified rape as a crime of “troop discipline.” (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224

39. And so on. Thus in the table below, the emphasis found in certain texts of the comparative table have been added merely to highlight them as sentences juggled by the opinion writer in the assailed Judgment (although not all of these juggled sentences have been highlighted; the device was used only to make it easier for the reader to spot them). For easier reference, the plagiarized portions of the Ellis article have been numbered as sentences in the comparative table. Thus, where appropriate, the discussion in the “Footnote 65” section of the comparative table will be cross-referred with the numbered sequence in the Ellis article section of the comparative table..

40. Where appropriate footnotes are also used to indicate the exact locations in the Ellis article of the references stolen by the assailed Judgment:

Ellis article on rape as an international crime Footnote 65 of the Judgment of April 28, 2010
The concept of rape as an international crime is relatively new.

p. 227, first sentence of Section III of the article The concept of rape as an international crime is relatively new.
First sentence of footnote 65

This is not to say that rape has never been historically prohibited, particularly in war.

p. 227, second sentence of Section III of the article This is not to say that rape has never been historically prohibited, particularly in war.
Second sentence of footnote 65

The 1863 Lieber Instructions, which codified customary international law of land warfare, classified rape as a crime of “troop discipline.”

p. 227, third sentence of Section III of the article The 1863 Lieber Instructions [....]classified rape as a crime of “troop discipline.”

Seventh sentence of footnote 65

It specified rape as a capital crime punishable by the death penalty.

p. 227, fourth sentence of Section III of the article. It specified rape as a capital crime punishable by the death penalty
Ninth sentence of footnote 65

Id. at 236.
p. 227, footnote 9 of the article
(Id. at 236).
Found as appended to the ninth sentence of footnote 65 above.

The 1907 Hague Convention protected women by requiring the protection of their “honour.”

p. 227, fifth sentence of Section III of the article. The 1907 Hague Convention protected women by requiring the protection of their “honour.”
Tenth sentence of footnote 65
But modern day sensitivity to the crime of rape did not emerge until after World War II.

p.227, sixth sentence of Section III of the article. But modern-day sensitivity to the crime of rape did not emerge until after World War II.
Third sentence of footnote 65

[After World War II, when the Allies established the Nuremberg Charter], the word rape was not mentioned.

p. 227, fourth sentence of Section III of the article. In the Nuremberg Charter, the word rape was not mentioned.

Fourth sentence of footnote 65

The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name.

p. 227, eighth sentence of Section III of the article. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name.
Fifth sentence of footnote 65
Article 6(c) of the Charter established crimes against humanity as the following:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, dportation, and other inhumane acts committed against any
civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

p. 227, ninth sentence of Section III of the article. Article 6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Fourteenth sentence of footnote 65

The Nuremberg Judgment did not make any reference to rape and
rape was not prosecuted.

10th sentence of Section III of the article. The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted.

15th sentence of footnote 65

It was different for the Charter of the International Military Tribunal
for the Far East.

p.228, 12th sentence of Section III of the article.
However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape.
17th sentence of footnote 65

The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority.

p. 228, 13th sentence of Section III of the article.
The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority .
18th sentence of footnote 65

The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity.

p. 228, 20th sentence of Section III of the article.
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity.
20th sentence of footnote 65

Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.

p. 228, 21st sentence of Section III of the article. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.
21st sentence of footnote 65

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women.

p. 228, 22nd sentence of Section III of the article.
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women.

23rd sentence of footnote 65

However, the most important development in breaking the silence of rape as an international crime has come through the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).

Both of these Tribunals have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

p. 228, 23rd and 24th sentence, respectively of Section III of the article

Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

25th sentence of footnote 65

For example, the Treaty of Amity and Commerce Prussia and the United States providesthat in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.Pruss.8 TREATIES & OTHER INT’L
AGREEMENTS OF THE U.S. 78, 85, available at http://www.yale.edu/lawweb/avalon/diplom
acy/germany/prus1785.htm (last visited Nov. 20, 2003).

p. 227, found in footnote 7 of Section III of the article. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85.

Sixth sentence of footnote 65

David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm
of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L L. 219, 224.

p. 227, found in footnote 8 of the article. (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224).
Eighth sentence of footnote 65

“Family honour and rights, the lives of persons, and private property, as well as religious
convictions and practice, must be respected.” Convention (IV) Respecting the Laws &
Customs of War on Land, art. 46, Oct. 18, 1907, available at http://www.yale.edu/lawweb/
avalon/lawofwar/hague04.htm#art46.

p. 227, found in footnote 10 of the article. (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907.

Eleventh sentence of footnote 65

See generally, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

p. 227, found in footnote 11, Section III, of the article. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
13th sentence of footnote 65

Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishmentin the International Arena, 7 ILSA J. INT’L COMP L. 667, at 676.

p. 228, found in footnote 13 of Section III of the Ellis article.
(Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INT’L. COMP. L. 667, 676.)
16th sentence of footnote 65

THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST 445–54 (B.V.A. Roling and C.F. Ruter eds., 1977).

p. 228, found in footnote 18 of Section III of the article (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977).
19th sentence of footnote 65

Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946), available at http://www1.umn.edu/humanrts/
instree/ccno10.htm (last visited Nov. 20, 2003)….

p.228, found in footnote 22 of Section III of the article. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))

22nd sentence of footnote 65

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter
Fourth Geneva Convention]

p. 229, found in footnote 23 of Section III of the article. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].

24th sentence of footnote 65

41. In any case, the discussion on rape as an international crime by the Ellis article actually supports the contention by Petitioners that early there has developed as a binding customary norm in international law an absolute prohibition on rape. Before San Francisco Peace Treaty in 1951, it was already penalized as a war crime and as a crime against humanity in the 1949 Geneva Conventions, as a crime against humanity in German Courts that tried war criminals of World War II and as a war crime in the International Military Tribunal in the Far East that tried Japanese war criminals of World War II.

42. Too, Petitioners wish to add one important detail to the extensive discussion by Dr. Ellis on rape as an international crime: that right after World War I, a Preliminary Conference at Versailles created a Commission on Responsibility of the Authors of War and on Enforcement of Penalties.

43. The 15-member Commission – of which Japan was part – submitted a report to the Conference on the responsibility of belligerent states, in which it included a list of punishable war crimes as violations of the laws and customs of war. These included, among other crimes, (1) rape, (2) abduction of girls and women for the purpose of enforced prostitution, (3) deportation of civilians, (4) internment of civilians under inhuman conditions and (5) forced labor of civilians in connection with the military operations.

44. Moreover, the Japanese delegates issued a statement annexed to the Commission’s report published in 1920, which read thus:

The Japanese delegates on the Commission on Responsibilities are convinced that many crimes have been committed by the enemy in the course of the present war in violation of the fundamental principles of international law, and recognize that the principal responsibility rests upon the individual enemies in high places. They are consequently of the opinion that, in order to re-establish for the future the force of the principles thus infringed, it is important to discover practical means for the punishment of the persons responsible for such violations.

45. As Dean Magallona notes, “a study of cases involving ‘comfort women’ showed that Japan committed all these acts on comfort women.” Indeed, he says that Japan cannot deny knowledge of the full legal implications of its acts involving the comfort women on account of its participation in the Commission and its public acknowledgement there that rape and forced prostitution, among other acts, are violations of the laws and customs of war.

46. The question must now be asked: why did the Judgment in question fail to reference the commentary in footnote 65 as a verbatim appropriation from the Ellis article?

47. Surely, Petitioners may not be begrudged their right to expect that a case of such transcendental and historical importance as theirs will receive a careful and jurisprudential reflection from the highest court of the land.

48. Of the 33 pages making up the Judgment of April 28, 2010, the sections that directly addressed and resolved the controversy at hand run from pp. 18-32 or a total of 15 pages; the plagiarized sections cover pp. 27-32 or six pages – or nearly half – of the full discussion of the main issues in the controversy. By any measure, the plagiarism is substantial and as the above discussion shows, it deals with very material points that go into the heart of the arguments against granting the Petitioners the relief prayed for.

49. As it were, this is their last hope of redress for the historical injustices they have suffered in the last half century because their very own government has decided that it is not worth the bother to take up their claims against the State of Japan. Indeed, to this Honorable Court belongs the burden of historical expectation.

50. It therefore pains Petitioners to state that this Honorable Court’s pronouncements in this Judgment do not speak well of what it can do in the exercise of its pedagogic if authoritative function to educate the next generations of Filipinos and perhaps, of people from other nations, about the central role of the Rule of Law in the creation of a just, prosperous and stable international public order.

51. Petitioners’ counsels are mindful that the matters they now bring to this Honorable Court’s attention involve serious charges against the integrity of its deliberations in this case. But they do so only because under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, they have a duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”

52. Moreover, the Code obligates them to resist any falsehood done in Court. Such proscriptions on falsehood equally apply to the honorable members of the Bench, even more so, of this Honorable Court. As Canon 1, Rule 1.01 of the Code of Judicial Conduct provides, “[a] judge should be the embodiment of competence, integrity and independence.”

53. A leading commentator of the Code explains:

Upon his assumption to office, a judge ceases to be an ordinary mortal. He becomes the visible representation of the law, and more importantly, if justice. He must be the embodiment of competence, integrity and independence. No position exacts greater demand on moral righteousness and uprightness of an individual than a seat in the Judiciary. A magistrate of the law must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.

The standards of integrity required of members of the bench are not satisfied by conduct which barely enables one to escape the penalties of criminal law.

54. As officers of the Court, undersigned counsels are to comport themselves with candor, fairness and good faith in any proceedings before it. Candor, fairness and good faith demand that undersigned counsels every effort and consider it their duty to assist in the speedy and efficient administration of justice.

55. Falsehood – such as the extensive plagiarism ostensibly committed in the assailed Judgment of April 28, 2010 – is an impediment to the sound administration of justice by the Courts and it is the duty of undersigned counsels as officers of the Court to bring it to this Honorable Court’s attention.

56. Moreover, infringement of copyright is a criminal offense under the applicable Philippine law on intellectual property. Art. 217 of the new Intellectual Property Code, RA 8293, imposes a penalty of imprisonment of one (1) year to three years (3) plus a fine ranging from P50,000 to P100,000 on copyright infringement on a first offense. Under Art. 216 of the same law, the copyright owner may ask the court to award the payment of moral and exemplary damages as the court may deem proper, wise and equitable.

57. In this controversy, the evidence bears out the fact not only of extensive plagiarism but of also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition.

II. THEN AS NOW, THE CRIMES COMMITTED BY MEMBERS OF THE JAPANESE IMPERIAL ARMY AGAINST PETITIONERS CONSTITUTE VIOLATIONS OF JUS COGENS NORMS – OR AT THE VERY LEAST, OF CUSTOMARY NORMS BINDING ON ALL CIVILIZED NATIONS –AND ARE THEREFORE SUBJECT TO THE ERGA OMNES DUTY TO PROSECUTE INTERNATIONAL CRIMES UNDER INTERNATIONAL LAW.

58. The Court says:

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese Army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

59. This sweeping assertion by the Honorable Court involve several inter-related issues here, namely: (a) did jus cogens norms exist in 1951?; (b) Did the crimes committed by the Japanese Army violate jus cogens prohibitions at the time of Treaty of Peace was signed?; (c) Is the duty to prosecute perpetrators of international crimes an erga omnes obligation or a jus cogens norm? and (d) corollary to question (b), is there a duty to prosecute the crimes committed by the Japanese Army at the time the Treaty of Peace was signed, regardless of whether these d violated jus cogens prohibitions?

60. As Petitioners will discuss in the detail, the answers to all these questions are in the affirmative, with the qualification that the duty to prosecute international crimes is an erga omnes obligation but is not a jus cogens norm. This Honorable Court needs to take a second look at footnote 66 of its Judgment of April 28, 2010 to see why its holding is in serious error. Footnote 66 talks of the establishment of the International Criminal Court (ICC) under the Rome Statute. A careful and detailed study of the creation of the ICC and its Charter will show why Petitioners say that the answers to the questions outlined above are in the affirmative.

61. It was in recognition of the overarching need to protect fundamental human rights that the Rome Statute of the International Criminal Court provided for an international remedy against the crimes of aggression and genocide, crimes against humanity, and war crimes, crimes that constitute the darkest violations of the human rights to life, security, and dignity. Considering the inability of old remedies to protect these rights, the Statute was considered a major advance in the effort to check the recurrence of the said crimes.

62. Indeed, the establishment of the ICC has been called a “millenial project,” considering the “enormity of vision, energy and effort, in largeness of ambition and in breadth of scope” it embodies.

63. And yet, the Rome Statute is but a codification of what under customary law, had been considered as binding prohibitions on all states against these crimes; The crimes punishable by the Rome Statute violate the conscience of the world and victimize humanity at large, and they require international criminalization in order to ensure their suppression.

64. Their prohibition in international law is peremptory and absolute; any person who commits them may, under the principle of universality, be tried and sentenced by any nation that acquires jurisdiction over them; and the liability of any state that makes them its policy may be invoked against it by any member of the community of nations.

65. In fact, the Rome Statute itself, as a codification of jus cogens norms of international humanitarian law and human rights, obligates even those who are non-parties to the establishment of the International Criminal Court to act against impunity through such norms as for instance, the aut judicare out dedere principle, which applies, for example, to grave breaches of the Geneva Conventions.

66. This simply means that first and foremost, any State has a primary obligation under customary international law to prosecute war criminals, and failing that, to extradite them to the next state willing to do so.

67. Alas, the drafters of the Rome Statute were themselves, aware that they were in fact, mere codifiers of lex lata or existing customary international law, and not legislators drafting lex ferenda or a progressive development of international law.

68. The struggle against impunity, that is, the prohibition against, and the need to punish crimes against the laws of humanity, the very reason for the existence of the Rome Statute, have long become jus cogens norms.

69. As early as the North Sea Continental Cases, the ICJ affirmed the non-derogable nature of jus cogens norms by qualifying the statement that “it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases or as between particular parties” with the clause “[w]ithout attempting to enter into, still less pronounce upon any question of just cogens (par. 72).”

70. Thus it is erroneous for this Honorable Court to assert in footnote 77 of its Judgment that the ICJ “recently endorsed for the first time the jus cogens concept in the Congo case.”

71. Indeed, even before the Nuremberg trials, it has been a doctrine that certain international legal obligations prevail over national legal norms. It has been said that the Geneva Conventions not only contain an obligation to prosecute but also an obligation to search for suspects, and to establish universal jurisdiction over them. Such duty already existed in international law as well as in our Constitution by incorporation and thus refutes the assailed Judgment’s claim that jus cogens norms were non-existent in 1951.

72. The aut dedere aut judicare principle is rooted in the idea of a civitas maxima, a community of states where certain crimes are of common concern, regardless of the territory in which the crimes took place. The UN General Assembly itself has declared with respect to war crimes and war criminals:

…3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.

4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes . . . .
. . . .
. . . States shall not grant asylum to any [such] person…

73. Perhaps it is best to trace the development of jus cogens norms now codified in the relevant core crimes penalized by the Rome Statute.:

74. In the case of Genocide: Originally, it was classified as a sub-category of the crimes against humanity by Article 6(c) of the 1945 Charter of International Military Tribunal at Nuremberg, which provided thus:

…murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetuated.

75. It was applied in the trials of a small number of Nazi war criminals as in the Nuremberg trials but it was officially recognized as an independent war crime in 1948, when the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide [hereinafter Genocide Convention].The Genocide Convention, in Article 2, defined genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national ethnical, racial, or religious group, as such:”

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole
or in part;

(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another
group.

76. The UN General Assembly recognized the an act of genocide for the first and as yet, the only time, in the case of Sabra and Shatila in resolution 37/123 D, dated Dec. 16, 1982. The resolution condemned the alleged massacre of Christian Falangist troops as an “act of genocide.”

77. The Genocide Convention’s definition was copied word for word in Article 6 of the Rome Statute.

78. Article 38 para. 1(b) of the ICJ Statute provides “international custom, as evidence of a general practice accepted as law” as source of international law, custom being evidenced by state practice and opinio juris sive necessitatis. As held by the ICJ in the North Sea Continental Shelf Cases:

“[N]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.

79. State practice is evidenced by signatures to and ratification of treaties – acts which express their agreement to the terms of the treaties and their willingness to be bound by such treaties. There is unanimity in the international community that genocide is prohibited.

80. That universal conviction binds even those not parties to the treaty, which to date has 133 State-Parties. The customary nature of the Genocide Convention was established by the ICJ in its Advisory Opinion on Reservations to the Convention on Genocide, where it said that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.

81. The ICJ, in the Barcelona Traction case, also opined that outlawing acts of genocide are obligations erga omnes, meaning, obligations in which “all States can be held to have a legal interest in their protection.”

82. Also, the prohibition against genocide was repeatedly invoked as a peremptory norm during the Vienna Conference that lead to the adoption and ratification of the Vienna Convention on the Law of Treaties. It is clear that the prohibition against genocide has become a jus cogens norm from which there can be no derogation.

83. In the case of War Crimes. The prohibition on war crimes has a long history, beginning with ancient civilizations, some which have been known to draft elaborate codes of conduct in times of war.

84. The Peace of Versailles, signed following the end of World War I, expressly adopted prohibitions against war crimes. Article 228 of the treaty recognized “the right of the allied and associated powers to bring before the military tribunals persons accused of having committed acts in violation of the laws and customs of war.”

85. In Article 6 of the Nuremberg Charter, war crimes were defined as inclusive of:

…[V]iolations of the law or customs of war, but not limited to, namely, murder, ill-treatment or deportation of civilian population of or in occupied territory, to slave labour for any other purposes; ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity.

86. The Nuremberg Tribunal would hold that “by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.”

87. But war crimes as penalized in the Rome Statute are based on the four Geneva Conventions of 1949 and the Additional Protocols of 1977. There are four Geneva conventions that address different contexts of conflict: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the filed (GC I), Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GC II), Geneva Convention Relative to the Treatment of Prisoners of War (GC III) and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV).

88. It should be noted however that nowhere in the conventions do we find the term “war crimes” – really a political compromise to accommodate the hard-line stance adopted by the Soviet negotiators on the treatment of prisoners of war convicted as “war criminals.”

89. Instead, the Conventions use the term “grave breaches” of its terms and conditions, such breaches defined by all four international instruments as:

…[T]hose involving any of the following acts, if committed against persons or property protected by the present Convention: willfull killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

90. Later, in Article 85(5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, we find the first reference to grave breaches of the Conventions as “war crimes.”

91. The Four Conventions address the conduct of belligerents in international armed conflicts; Article 3 common to all four provides the minimum protection for participants in a non-international armed conflict. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) applies to “large-scale armed hostilities, other than international disturbances and tensions, or riots or isolated or sporadic acts of armed violence, between State authorities and rebels, or between two or more organized armed groups within a State.”

92. Article 8 of the Rome Statute defines war crimes by a qualifying clause in para. 1, which reads thus: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of large-scale commission of such crimes.”

93. The Rome Statute then classifies war crimes into four categories (1) in Article 8(2)(a), “[g]rave breaches of the Geneva Conventions of 12 August 1949”; (2) in Article 8(2)(b), “[o]ther serious violations of the laws and customs applicable in international armed conflict, wihtin the established framework of international law”; (3) in Article 8(2)(c), “[i]n the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions…”; and (4) Article 8(2)(e), “[o]ther serious violations of the laws and customs applicable in armed conflicts not onf an international character, within the established framework of international law.”

94. No one can question the universal acceptance of the Conventions. The ICJ, ruling in the Nicaragua case, said that the Geneva Conventions embody, “in some respects a development, and in other respects no more than the expression” of basic principles of international humanitarian law.

95. Hence, it ruled that the United States, has an obligation,…to ‘respect’ the Conventions, and even ‘to ensure respect’ for them ‘in all circumstances,’ since such an obligation does not derive only from the Conventions themselves, but from general principles of humanitarian law to which the Conventions merely give specific expression…

96. What is most important to this discussion in the Nicaragua case is the declaration that while the conflict between the Contras and the Sandinistas was an internal armed conflict, the intervention by the United States was governed by rules relating to international armed conflicts. The ICJ held thus:

Article 3…defines certain rules to be applied in the armed conflicts of non- international character….in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts…they reflect what the Court in 1949 called ‘elementary considerations of humanity’ (Corfu Channel…)

97. Because the minimum rules applicable to international and non-international armed conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.

98. Later, the ICTY Appeals Chamber, in the Tadic case (Interlocutory Appeal), would hold that there is no longer any reason to make a distinction between international and internal armed conflicts:

Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign state?

99. On Crimes Against Humanity. Article 6(c) of the 1945 Charter of the Nuremberg Tribunal defined crimes of humanity as constituted by:

…murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

100. It was the first explicit proscription against such acts ever made in any document, one in which acts of genocide have been subsumed to crimes against humanity.

101. Both Article 5(c) of the IMTFE or the Tokyo Charter and Article II(c) of the Allied Control Council Law No. 10 carried this Nuremberg definition, albeit they also embodied certain changes on persecution. But Article 7 of the Rome Statute, with a few variations, embodies by and large, the existing customary law on crimes against humanity in this manner:

For the purpose of this Statute, ‘crimes againt humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity;
(h) Prosecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gedner…or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

102. By a fortiori logic, as acts of genocide are considered a sub-specie of crimes against humanity, it follows that the conviction of the international community that acts of genocide violate jus cogens norms should likewise apply to crimes against humanity.

103. As already noted, the ICJ, in the Barcelona Traction case, held that genocide, slavery, and racial discrimination give rise to obligations erga omnes, and hence, should be considered crimes against humanity.

104. Both the ICTY and the ICTR have subject matter jurisdiction over crimes against humanity. Article 5 of the International Criminal Tribunal for Yugoslavia’s Charter says:

The International Tribunal shall the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts.

105. Article 3 of the International Criminal Tribunal for Rwanda, on the other hand, provides that:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts.

106. Crimes against humanity are clearly held as a violations of jus cogens norms from which there can be no derogation, and the Rome Statute represents the most advanced document embodying protection and punishment against such crimes.

107. Notice that in both the prohibitions against war crimes and crimes against humanity, torture is prohibited; in both the prohibitions against war crimes and crimes against humanity, slavery is prohibited; in both prohibitions against war crimes and crimes against humanity, rape is prohibited.

108. On the Crime of Aggression. Perhaps the most controversial of the crimes punished by the Rome Statute because it is yet to be defined, nevertheless scholars are agreed that in the last 50 years or so, there has been a collection of state practice and opinio juris criminalizing it under customary international law.

109. Article 5 of the Rome Statute provides (on jurisdiction):

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: The crime of genocide; Crimes against humanity; War Crimes; the crime of aggression.

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. (numbering ommitted, emphasis supplied)

110. In the early part of the 20th century, war was considered a valid aim of any country’s foreign policy. But the horrible incidents of World War I forced the founders of the League of Nations to adopt the revolutionary idea that the international community must be based on a collective effort to maintain peace. The first individual to be officially charged for the the instigation of war was Kaiser Wilhelm II of Hohenzollern at the Treaty of Versailles in 1919, but he was never put on trial because he fled to the Netherlands, which refused to extradite him on the ground that he enjoyed immunity as head of state.

111. At the close of World War II , the Nuremberg Tribunal was established to try war criminals. Article 6(a) of its charter penalized a crime against peace, defined as “planning, preparation, initiation or waging of a war of aggression, or war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”

112. The so-called Nuremberg Principles would serve as the foundation for future efforts to enact a code penalizing the crime of aggression, from the International Law Commission which elaborated on them and the United Nations General Assembly which affirmed them in 1946. Indeed, between 1954 and 1996, the Commission would present three drafts, though none of them would pass muster. The Rome Conference would likewise fail to reach a consensus on an acceptable draft defining the crime, hence, a compromise provision providing for the Court’s exercise of subject-matter jurisdiction only when the crime has already been defined.

113. The Philippines itself has an expressed constitutional proscription against the crime of aggression in the Incorporation Clause of the 1987 Charter; “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

114. In Kuroda, there is a recognition that customary international law proscribes any crime of aggression: “…all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor.”

115. A further note on customary international law. The International Committee of the Red Cross – the international body charged with the task of monitoring compliance by states with international humanitarian law – has published in 2005 a landmark, two-volume study on customary international humanitarian law, now made available on-line.

116. This study has identified 161 rules of customary international humanitarian law covering a wide range of issues and reflecting a comprehensive assessment of state practice, as one of its editors, prominent IHL expert Jean-Marie Henckaerts, notes in an essay published in the third volume of the Asia-Pacific Yearbook of International Humanitarian Law.

117. Henckaerts says:

These customary rules are binding for all States, regardless of ratification of treaties, and also on armed opposition groups in case of rules applicable to all parties to a non-international armed conflict. The study shows that State practice has created a significant number of customary rules governing non-international armed conflicts. Indeed 148 of 161 rules identified in the study are applicable in non-international armed conflicts. These customary rules fill a large part of the gap left by treaty law in the regulation of non-international armed conflict. Finally, the study shows that many of the customary rules applicable to non- international armed conflict are the same as those applicable to international armed conflicts.

118. The following customary norms in international humanitarian law are of particular relevance to this instant proceedings, and are listed in an appendix attached to the essay:

Fundamental guarantees

Rule 89. Murder is prohibited

Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.

……

Rule 93. Rape and other forms of sexual violence are prohibited.

Rule 94. Slavery and the slave trade in all their forms are prohibited.

Responsibility and Reparation

Rule 149. A State is responsible for violations of international humanitarian law attributable to it, including:

(a) violations committees by its organs, including its armed forces;
(b) violations committed by persons or entities it empowered to exercise elements of governmental authority;
(c) violations committed by persons or groups acting in fact on its instructions, or under its direction or control; and
(d) violations committed by private persons or groups which it acknowledges and adopts as its own conduct.

Rule 150. A state responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused.

….

War Crimes

Rule 156. Serious violations of international humanitarian law constitute war crimes.

Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, investigate other war crimes over which they have jurisdiction, and, if appropriate, prosecute the suspects.

….

Rule 160. Statutes of limitation may not apply to war crimes.

Rule 161. States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.

119. Thus Petitioners find it utterly bewildering that the learned members of the High Court could support the assertion that “[n]onetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an obligation to prosecute international crimes.” The very existence of the ICC nullifies that assertion. The very existence of long-established norms in customary international law goes against it.

120. Petitioners alleged that they were victims of war crimes and crimes against humanity – in particular, of mass rape, sexual slavery, and torture – under the Comfort Women system set in place by the Japanese Imperial Army in the Philippines during World War II.

121. By way of a review of the discussion above, both treaty and customary international law provide that when rape is committed as part of a widespread or systematic attack directed at any civilian population, regardless of its international or internal character, then it constitutes one of the gravest crimes against humanity ; this principle is codified under Article 6(c) of the 1945 Nuremberg Charter as well as Article 5[c] of the Tokyo Charter, which enumerated “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian populations, before or during the war” as crimes against humanity, and extended in scope to include imprisonment, torture and rape by Control Council Law No. 10;

122. In sum, crimes against humanity entail that the prohibited acts be committed (1) before or during war, (2) as part of a large- scale or systematic attack committed against a civilian population, and (3) in connection with war crimes or crimes against the peace ;

123. The acts of the Japanese military, as exemplified in the mass rape and sexual slavery of the petitioners in Barangay Mapanique, Candaba, Pampanga (1) during the war, (2) pursuant to its widespread and state sanctioned “comfort system”, (3) in raping and forcibly subjecting Filipinas into sexual slavery, constitute a crime against humanity contrary to the norms of customary and conventional international law.

124. Moreover, under the 1926 International Slavery Convention, slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised , and may, furthermore, take on the form of debt bondage, and/or sexual enslavement ; Under international customary law, and treaty law , forced sexual labor and forced labor are absolutely prohibited ;

125. In exercising powers attaching to the right of ownership over Filipina “comfort women”; asserting ownership over the women by procuring them by force, purchase, and deceitful recruitment; by confining them to inhumane conditions and brutally punishing attempts to escape; subjecting them to repeated rapes and other forms of sexual violence; by otherwise torturing, mutilating and punishing them for disobedience; by subjecting them to invasive and inhumane medical examinations often involving rape; by subjecting them to unwanted pregnancies, forcing them to have abortions or give up their children; and by killing them or abandoning them when their services were no longer of use, such acts seen in whole or in part in the atrocities committed against the women of Barangay Mapanique, Candaba, Pampanga, the Japanese military clearly committed the crimes against humanity of rape and sexual slavery.

126. Finally, the Petitioners were also subjected to torture under the Comfort Women System. Under customary international law, “torture” is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of, inter alia, obtaining from him/her or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ;

127. The rapes committed by the Japanese military against the Filipina “comfort women” as exemplified in the plight of petitioners in Barangay Mapanique, Candaba, Pampanga meet the definition of torture since they manifestly: (1) were committed by and with the acquiescence of persons acting in an official capacity; (2) were not incidental to lawful sanctions; and (3) constituted acts by which severe pain or suffering is intentionally inflicted.

128. Not only are the acts committed by the Japanese against Petitioners considered violations of jus cogens norms and are subject to an international duty to prosecute these as international crimes.

129. Too, these acts – being war crimes and crimes against humanity – are not subject to any statute of limitations, as provided for in the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Art. I of the same provides that:

No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
( a ) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
( b ) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

130. Thus, the Judgment’s assertion that “petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply that the Philippines is under a non-derogable obligation to prosecute international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but seek to recover monetary reparations from the state of Japan” is a statement that seriously misinterprets current international law.

131. Such a statement glosses over a basic principle in international humanitarian law and the law on state responsibility that a state responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused independent of the individual criminal responsibility incurred by the agents of the state who committed the criminal acts. Considering that the criminal acts committed by the agents of the State of Japan are not subject to prescription, the obligation of the State of Japan to pay reparations to the victims does not prescribe as well.

III. MOREOVER, THE INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES HAS LONG BEEN CONSTITUTIONALIZED IN PHILIPPINE CONSTITUTIONAL HISTORY, REACHING ITS FULLEST EXPRESSION IN THE 1987 CHARTER. INDEED, OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ ASSERTION THAT THE EXECUTIVE’S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.

132. The fundamental duty of the Philippines, and the imperative need, to protect human rights and advance the laws of humanity, or international humanitarian law, both under treaty law and customary international law, especially the rights to life and dignity, underscore the transcendental importance of the instant petition to the Philippines and its people.

133. The Philippines is required under domestic law and under international law to undertake the protection of basic human rights, especially the rights to life, to dignity, and to be provided with adequate remedies for the violation of fundamental rights.

134. The international obligation of the Philippines to protect human rights stems from conventional law, through the myriad human rights treaties which the Philippines has ratified or acceded to. In particular, the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Charter – as interpreted by the subsequent practice of State parties – impose upon the Philippines the obligation to promote and protect human rights.

135. Furthermore, the existence of such an obligation under customary international law is evidenced by the widespread acceptance of numerous international conventions and instruments stating this hallowed principle, it being settled international doctrine that conventions that nations have entered into evidence the existence of a customary norm.

136. This non-derogable duty under custom and convention is an obligation erga omnes, since it implicates the interest of all nations in the protection of human rights and fundamental freedoms. If the Philippines violates this duty, all the nations would be entitled to invoke the liability of the Philippines for this breach.

137. The acts committed by Japanese soldiers against Petitioners have long been treated under customary law as serious breaches of international humanitarian law, which is distinct and separate from the regime of the international human rights law. Customary norms under international law are binding upon all civilized nations, especially in this case were the acts committed are shocking to the conscience of humanity.

138. In saying that the claims Petitioners wishes the Philippines to bring against the State of Japan are, under our system of government, the prerogative of the Chief Executive, this Honorable Court has unfortunately read the foreign policy powers of the Office of the President in isolation from the rest of the constitutional protections that expressly textualize international human rights and humanitarian law standards, as well as disregarded a distinguished jurisprudential history upholding the same standards.

139. Indeed, the presidential foreign policy prerogatives have been made subject to obligations to promote international humanitarian law and international human rights law as incorporated into the laws of the land through the Incorporation Clause.

140. We argue that the obligation – the duty – of the Philippine state to afford protection and legal remedy to its citizens who have fallen victim to mass atrocities is first and foremost, a constitutional duty because the 1987 Charter has in fact, constitutionalized it.

141. To appreciate this, this Honorable Court must re-visit the texts of two landmark cases in Philippine constituional history : Yamashita v. Styer and Kuroda v. Jalandoni, which have been noted for their prescient articulation of the import of the laws of humanity and the fight against impunity to any country claiming to be a member of the “civilized community of nations.”

142. As early as these two cases, this Honorable Court had ruled that we are bound to observe the laws of war and the laws of humanity as embodiments of customary norms that every member of the community of nations must observe.

143. Petitioners bring this Honorable Court’s attention to its declaration in the Yamashita case that the Military Commission may hear the charges leveled against him for having permitted members of his command “to commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the Philippines,” crimes and atrocities which in the bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young girls, as well as devastation and destruction of public, or private, and religious property for no other motive than pillage and hatred.

144. For the Court “these are offenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare” – a pronouncement which expressly recognized rape as an international crime under International Humanitarian Law, a legal regime antedating International Humanitarian Law by centuries. Borrowing from an American precedent, the Court held:

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.

145. Meanwhile, Shigenori Kuroda, Commanding General of the Japanese Imperial Forces in the Philippines from 1943-1944, was charged before a Military Commission established by the Armed Forces Chief of Staff with having disregarded and failed to discharge his duties under international law as commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against civilians and prisoners of war, in violation of the laws and customs of war.

146. His lawyers, in defense, argued in the Kuroda case that Executive Order No. 68, which established the National War Crimes Office, was illegal because it violated both statute and constitutional law, “to say nothing of the fact [that] the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law, national and international.” But the ponente, Justice Moran, declared :
This Court holds that this order is valid and constitutional. Article 2 of [the 1935] Constitution provides in its section 3, that –

The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.

In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of the Constitution

147. According to Chief Justice Moran, even if, as the defense lawyers argued, the Philippines had not acceded to the Hague Convention on Rules and Regulations covering Land Warfare, these principles in fact formed part of the law of our nation, yes, even if the Philippines was not a signatory to the Convention by virtue of the Incorporation Clause. The ponente wrote:

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioners for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by two belligerent nations, United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be signatory.

148. That is why the acts committed by the Japanese soldiers against Petitioners are called “international crimes.” The nomenclature points to the fact that these being violations of the laws of war and the laws of humanity, the violators may be prosecuted in any jurisdiction on earth under the principle of universal jurisdiction; and even if, in Kuroda, the Philippine was not a party to the Hague and Geneva Conventions, the Philippines had the obligation to prosecute the Japanese soldiers because our constitution recognizes that these conventions merely embody rules and principles of international law long held to be binding upon the community of nations under customary international law.

149. Indeed, such a commitment to the Laws of war and the Laws of humanity is now well-enshrined in the fundamental law of the land: Article II, Section 2 of the Constitution provides that “[t]he Philippines…adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

150. The history of what is now known as the Incorporation Clause shows this. Article 2, Section 2 of the 1987 Charter carries exactly the same phraseology as that of the 1973 Constitution; The 1935 Constitution bears a nearly-identical phraseology.

151. Dean Magallona argues that without the Incorporation Clause, the status and applicability of the generally accepted principles of international law within Philippine jurisdiction will be uncertain, adding that the clause may imply that general international law only forms part of Philippine law insofar as they are expressly adopted. Accordingly, unless so incorporated, general norms of international law may acquire no enforceability in the Philippine legal system.”

152. In fact, the Supreme Court, in at least, two cases has held that even without the Incorporation Clause, international law is automatically deemed part of Philippine law as a consequence of Statehood, decisions that the good Dean takes the pains to declare as a mistaken position. It must be said though that in fact, there is also at least one case, Agustin v. Edu, where the Supreme Court held that a treaty law, though yet to be ratified by the Philippines, was part of the law of the land through the Incorporation Clause.

153. The Philippines, by virtue of the Incorporation Clause, is bound to abide with the erga omnes obligations arising from the jus cogens norms embodied in the Laws of War and the Laws of Humanity – including the principle of the non-prescription of the action against war crimes..

154. The crimes committed against the Petitioners in this instant case precisely are crimes that are proscribed under international human rights law and international humanitarian law. Their being violations of jus cogens norms are beyond question. The eminent publicist on international criminal law Bassiouni writes thus:

The legal literature discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture. Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus cogens. This legal basis consists of the following: (1) international pronouncements, or what can be called international opinio juris, reflecting the recognition that these crimes are deemed part of general customary law; (2) language in preambles or other provision of treaties applicable to these crimes which indicates these crimes’ higher status in international law; (3) the large number of states which have ratified treaties related to these crimes; and (4). The ad hoc international investigations and prosecutions of these crimes.

155. Bassiouni writes that these erga omnes obligations include, among other things:
The duty to prosecute or extradite, the non-applicability of statutes of limitations for such crimes, the non-applicability of any immunities up to and including Heads of State, the non-applicability of the defense of ‘obedience to superior orders’ (save as mitigation of sentence), the universal application of these obligations whether in time of peace or war, their non-derogation under ‘states of emergency,” and universal jurisdiction over perpetrators of such crimes.

156. Thus, by way of the Incorporation Clause in the Constitution, the presidential foreign policy prerogatives have been proscribed as to recognize the compelling nature of certain international legal norms that are now being claimed as applicable to their case by herein Petitioners – norms subject to erga omnes obligations, or obligations owed to the international community as a whole.

157. Meanwhile, there is also the matter of the Philippines’ obligations erga omnes partes – its obligations as a party to multi-lateral international human rights and humanitarian law treaties all penalizing war crimes and crimes against humanity. The refusal by the Chief Executive to abide with these treaty obligations pertaining to jus cogens norms is grave abuse of discretion amounting to an excess or lack of jurisdiction subject to the expanded certiorari powers of this Honorable Court.

158. Thus, invocation by this Honorable Court of American jurisprudence on the political question doctrine is misplaced. The constitutional backdrop to these American cases is markedly different from the Philippine experience; these cases are therefore irrelevant and unpersuasive.

159. Thus, the Chief Executive has the constitutional and legal duty to afford redress to the victims of the Comfort Women system set in place by the Japanese government in the Philippines during World War II. Petitioners respectfully submit that in effect, what the Court is legitimizing by affirming the political question doctrine in this case is the denial of justice by the President to the victims of atrocities by the Japanese in World War II.

160. Thus, Tañada v. Cuenco belongs to a time from before the grant of expanded certiorari powers of the Supreme Court under the 1987 Charter; it is properly speaking, an historical curiosity, for under the post-Marcos constitution, the political question doctrine has seen a “diminished role” as a result of the adoption of Art. III, Sec. 1 and Art. VII, Sec. 18 of the Constitution. Chief Justice Puno, concurring in the result in this judgment, wrote in his concurring opinion – also in the result – in the case of IBP v. Zamora in 2000, or nearly half a century after Tañada v. Cuenco:
It is now history that the improper reliance by the Court on the political question doctrine eroded the people’s faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA.

161. To cite Tañada v. Cuenco’s pronouncement on the political question doctrine as if it remains the unmoved bedrock principle in constitutional adjudication where the principal issue concerns the foreign policy dictat of the president is to ignore the developments that have taken place in both constitutional design and interpretation in the last half a century in Philippine constitutional history;
162. Thus, US v. Curtiss-Wright Export Corp. is only seminal in the American context, where the Constitution could only recognize a very limited certiorari power for the American Supreme Court, (not to mention that it does not have an Incorporation Clause found in the Philippine Constitution that, as will be shown in the succeeding sections, places presidential prerogatives within an “universalist” framework anchored on the recognition of international legal norms ).

163. As a young Filipino scholar of the interface of international law and constitutional law –Diane A. Desierto –would put it, the 1987 Charter:

….strongly entrenches democratic participation, individual autonomy guarantees, and executive accountability in the public order — a decidedly ‘legal’ vigilance fueled by the experience of centuries of colonialism and recent decades of martial law rule. The 1987 Constitution, the longest to date with eighteen Articles and three hundred and six sections, already institutionalizes many universalist norms and conceptions. Apart from overt textualization, however, the Constitutional framers still provided for further entry of universalist norms in the Philippine legal system through the traditional mode of treaty-making, and more controversially, through the Incorporation Clause, where “generally accepted principles of international law form part of the law of the land”. It is this latter provision that has been the mechanism by which customary international law and general principles of international law have been invoked (and with recent frequency) as actionable norms before Philippine courts.

164. Bayan v. Executive Secretary and Pimentel v. Executive Secretary – purported precedents for the presidential prerogative in foreign relations – are inapplicable; for one, they only tangentially, if at all, tackle the principal issue in the instant case, in particular, the matter of gross violations of human rights and humanitarian law. The former concerns the RP-US Visiting Forces Agreement while the latter – because of the refusal of this Honorable Court to tackle the core values embodied by the International Criminal Court established by the Rome Statute – framed the principal issue in terms of who has the power of treaty ratification under our system of government.

IV. INDEED, THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE FUNDAMENTAL RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS – ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.

165. Barcelona Traction is a double-edged sword. It is a leading authority in international law for the principle that the corporation has a legal personality separate and distinct from its shareholders, so that under the nationality principle, the nationality of share holders is not determinative of the issue of which state may invoke diplomatic protection in its favor but the forum where it was registered; however its pronouncement on diplomatic protection as the state’s – that is, the Executive Department’s – exclusive discretionary domain is set against the backdrop of its most important and oft-quoted holding, though it is but in the nature of an obiter dictum; that is; the idea of erga omnes obligations owed by any state to the international community as a whole.

166. Precisely because these are obligations owed by any state to the international community, these cannot be a discretionary matter. These cannot be of an obligatory nature if subject to a state’s discretion. Discretion and obligation are two conflicting worlds – like matter as against anti-matter.

167. The case clearly makes that distinction between an obligation owed to the international community and one that pertains merely to bilateral state relations:

When a State admits into its territory foreign investments or foreign national, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment afforded to them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes

168. Thus there is a class of claims that properly belongs to the domain of diplomatic protection and that only; but where the class of claims pertains to erga omnes obligations (and not necessarily jus cogens norms as well) – as in the case of mass atrocities committed against a state’s citizens – such claims cease to be the exclusive concern of the traditional doctrine of discretionary diplomatic protection. In fact, under the doctrine of erga omnes obligations, as the injuries suffered are a legal interest of all states, any state may seek redress for the injuries suffered.

169. The language of Barcelona Traction has found its way into the Rome Statute, which speaks of “the most serious crimes of concern to the international community as a whole” – an inclusive language that is as well used in Art. 48 (1)(b) of the Draft Articles on State Responsibility ; that is, “[a]ny State other than the injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, the Commentaries to the Draft Articles underscore the continuity between Art. 48 and the Court’s ruling in the Barcelona Traction case, saying the Draft Articles recognizes the “essential distinction” between obligations owed to particular States and those owed to the international community as a whole.

170. It is an obligation owed by the State of Japan not just to the Philippines but to the international community as a whole.

171. The entirety of Art. 48 of the Draft Articles of State Responsibility reads thus:
Article 48. Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility y an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

172. Of particular relevance in this discussion is Art. 48(1)(b), which deals with collective obligation of States. As a recent landmark study on the use of diplomatic protection as a human rights mechanism would put it:

Yet the distinction between invocation of responsibility by means of diplomatic protection and such invocation erga omnes is not to be found in the nature of the injury inflicted upon the individuals concerned. As has been demonstrated claims erga omnes are inherently direct claims, since the obligation erga omnes is owed to the community as a whole, including the claimant state. A state invoking responsibility under Article 48(1)(b) is thus claiming its own right. This is markedly different from the exercise of diplomatic protection, where states, while relying on their own right to exercise diplomatic protection, are not claiming their own rights but rights owed to their nationals. States invoking responsibility erga omnes have legal standing because they have a direct legal interest in compliance with the obligations erga omnes. States exercising diplomatic protection also have a legal interest, but it is indirect because it is conditioned upon the bond of nationality. Considering these differences, it is clear that invocation under Article 48(1)(b) is must be distinguished from invocation by means of diplomatic protection. Accordingly, the rules applicable to diplomatic protection do not apply to such claims.

173. The argument that there is no established “duty of diplomatic protection” under international law is irrelevant in the particular case of atrocity crimes, where there is a line of contemporary authority that already recognizes the every State’s duty to afford protection to victims of these crimes. Its holding ignores developments since World II on the law of State Responsibility to protect their nationals and prevent impunity for mass atrocity crimes.

The claims raised by Petitioners in this case are not simple private ones which are the usual subject of diplomatic protection, as in the Mavrommatis Palestine Concessions Case cited by the Judgment; these pertain to crimes that are shocking to the conscience of humanity and are every civilized nation’s duty to prevent and prosecute.

174. Thus, sovereignty must yield to obligations to human rights and laws of humanity. We must distinguish between foreign policy and international law. Yes, the Chief Executive is the chief architect of Philippine foreign policy, but he cannot veto what for all intents and purposes, has, for so long, been binding obligations, or erga omnes obligations, under customary international law (or the realm of general international law).

175. The President has the constitutional and legal duty to afford access to redress for the victims but there is nothing in the record to show that the Executive has performed this constitutional and legal duty. With due respect, Petitioners say that it was erroneous for this Honorable Court to conclude that espousal of claims is simply a question of Executive prerogative, when the Executive has not shown how and by what means it had afforded redress to the victims. It has not aggressively sought any official reparation scheme on behalf of the victims, much less an official apology, from the State.

176. Nowhere in the submissions of the Government through the Office of the Solicitor General were the Chief Executive able to point to any process, claims procedure, or any official action to obtain any form of restitution for the Petitions, whether through compensation, satisfaction (apology), guarantees of non-repetition, etc.

177. Instead, the Government assumed that it could “waive” this duty under the San Francisco Peace Treaty, which, as shown in the next subsection, is not and could not be a valid subject of governmental waiver.

178. Indeed, if and when the Philippines invokes it to espouse the claims of the Filipino comfort women against Japan, it does so on behalf of the international community as a whole, following para. 33 of the Barcelona Traction case ; in the contemplation of general international law, the injury was sustained directly by the international community as a whole; its legal interest here would consist of the prohibitions established by jus cogens norms against impunity:

A claim under Article 48, even if it concerns individual injury and not direct injury to a state, is a direct claim, since the claimant state as a member of the international community has a direct legal interest in compliance with the relevant rule by virtue of its membership of the international community and not, as in diplomatic protection, through the bond of nationality.

179. The Philippines’ own interests in the said case can be said to overlap with that of the international community as a whole. When the Philippine does so, it is not in the nature of a traditional espousal of a diplomatic claim. It is both to its own interests and the interest of the international community as a whole to espouse the claims of the comfort women.

180. Vermeer-Künzli illustrates this point in relation to the jus cogens prohibition on torture:

Even if states invoking responsibility for a breach of a peremptory norm may ‘act in the collective interest’ , it is not necessary to accurately define the ‘collective’ for the claim to be admissible. It is sufficient that states invoking the responsibility for an obligation erga omnes are entitled to do so because the obligation is owed to the international community including the invoking state. That is to say a state invoking responsibility for an obligation erga omnes is claiming its own right, a right that it shares with other states. It is thus a kind of invocation of responsibility that is rightly distinguished from diplomatic protection, a distinction inherent in the erga omnes nature of such invocation. Although this is sometimes a subtle distinction, it may be clarified by the example of the prohibition on torture. A violation of this prohibition may be claimed either by exercising diplomatic protection on behalf of a national or erga omnes. In the former case, the rights that are claimed are rights that are not primarily owed to the claimant state. Although the claimant state may have agreed with the defendant state not to practice torture, the obligation not to subject individuals to torture is owed to the individual (foreign) nationals and this is the right that is claimed. It is an indirect claim and the customary rules for such a claim apply. If the claim is brought erga omnes, the obligation is owed to the international community, including the claimant state, which makes it a direct claim.

181. In any case, even Art. 19 of the Draft Articles on Diplomatic Protection, while it does not express the mandatory nature of diplomatic protection in regard to cases involving peremptory norms, provided as recommended practice that states should ‘[g]ive due consideration to the possibility of exercising diplomatic protection, especially when significant injury has occurred.”

182. Vermeer-Künzli argues that the accompanying Commentary to the text of the Draft Articles on Diplomatic Protection actually shows that what the Commission had in mind were serious breaches of fundamental human rights norms, if not breaches of peremptory norm.

183. In fact, the Commentaries to the Draft Articles on Diplomatic Protection notes that despite the discretionary nature of the State’s right to exercise diplomatic protection on behalf of its nationals,

….there is growing support for the view that there is some obligation, however imperfect, of States, either under international law or national law, to protect their nationals abroad when they are subjected to significant human rights violations. The Constitutions of many States recognize the right of the individual to receive diplomatic protection for injuries suffered abroad, which must carry with it the corresponding duty of the State to exercise protection. Moreover, a number of national court decisions indicate that although a State has a discretion whether to exercise diplomatic protection or not, there is an obligation on that State, subject to judicial review, to do something to assist its nationals, which may include an obligation to give due consideration to the possibility of exercising diplomatic protection.

184. In discussing the ILC’s recommendation that States should give consideration to the possibility of exercising diplomatic protection on behalf of a national who suffers significant injury, the Commentaries point out that the protection of human beings by means of international law is today one of the principal goals of the international legal order, citing the 2005 World Summit Outcome resolution adopted by the General Assembly on 24 October 2005.

185. As the 2005 World Summit on The Responsibility to Protect would put it (paras. 138-139):

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out

186. On this account, and from the point of view of Philippine practice, the failure of the government to espouse the Petitioners’ claims may indeed be open to a certiorari action on the ground of grave abuse of discretion as such failure is tantamount to a denial of justice, under the 1987 Constitution and the relevant international conventions of which the Philippines is a party..

187. Indeed, under the 1987 Constitution, Philippine courts have been granted an expansive certiorari power to check the abuses of government. As Justice Puno has stressed in his dissenting and concurring opinion in the case of Arroyo v. De Venecia:

…In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts “x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-à- vis the Executive and the Legislative departments of government.

…..

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.

….

The provision defining judicial power as including the ‘duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government’ constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis-à-vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government.

….

In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.

188. In the instant case, the Petitioners raise many constitutional issues against certain acts of the President made with or expressed through Presidential alter egos in the Cabinet – issues that are also of transcendental, novel, serious and precedent-setting nature. Indeed, the President wields awesome powers as Chief Executive. Under our present system of government, executive power is vested in the President.

189. The acts committed by the concerned offices of the Executive denying or disregarding the claims for reparation of Petitioners are an exercise of Executive Prerogative subject to the certiorari powers of this Honorable Court. The members of the Cabinet and other executive officials are merely alter egos through the Doctrine of Qualified Political Agency. In that capacity, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed.

190. In the words of Justice Laurel:

After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.

191. The Petition alleges that the Executive has transgressed constitutional bounds in its refusal to espouse the claims of Petitioners against the State of Japan in accordance with international obligations contained both in treaty law –erga omnes partes obligations – and customary law – erga omnes obligations under general international law, and which obligations have been constitutionalized in the 1987 Charter.

192. In the case of Secretary of National Defense, et al., v. Raymond Manalo and Reynaldo Manalo, this Honorable Court, speaking through Chief Justice Puno, recognizes the duty of the Courts to ensure that the constitutional rights of citizens are protected.

193. The case in question is the very first to be decided by the Philippine Supreme Court under the Rules on the privilege of the Writ of Amparo. The ponencia traced the development of the legal doctrine to Latin America where the writ

has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental right.

194. According to Chief Justice Puno the writ as it evolved in the Latin American experience began as a protection against acts or omissions of public authorities in violation of constitutional rights but subsequently became an overarching protective mechanism addressing a slew of abuses: (1) Amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions; and (5) Amparo agrario for the protection of peasants’ rights derived from the agrarian reform process.

195. What he would say next is of high significance to the present controversy:

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.

196. This Honorable Court has already acknowledged that the fundamental rights of Petitioners had been violated; it cannot then say all that it can offer to them are words of sympathy. This Honorable Court has a duty to do justice – to protect the constitutional rights of citizens. It cannot do so by merely commiserating with the sufferings of the Petitioners without providing them with adequate legal remedies that, it has already acknowledged, are available under the constitution. Its contention that it can only sympathize with Petitioners for their shame and suffering because the legal remedy they seek is not available runs counter to its own pronouncements on its expanded certiorari powers, most recently expounded upon in the Manalo Brothers case.

197. Such is the Amparo protection found in Art. VII, § I of the 1987 Charter, which empowers the courts “”to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” According to the Manalo Brothers case, the Grave Abuse Clause, “accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrative.”

198. Contrary to what this Honorable Court contends, the Asian Women’s Fund is not an official act or creature of the State of Japan. It is a private fund and is therefore, yet another scheme to evade historical responsibility for the wrongs suffered by the Comfort Women. The fund channels money from private sources – from donations given by various groups. It is not an official fund created out of the public coffers of the State of Japan as reparations for what the comfort women suffered in the hands of the Japanese Imperial Army. In fact this Honorable Court has not denied this fact. There is nothing in its assailed Judgment to establish that the AWF sources its founds from public coffers.

199. By disregarding, patently violating, and refusing to act in accordance with, the clear mandate of the Constitution and Philippine international obligations under the relevant international human rights and international humanitarian law, the Executive Department has clearly acted without and/or in excess of their jurisdiction.

200. Petitioners are mindful that Rule 65, Section 4 of the Rules of Court, sets a 60-day period “from notice of the judgment, order, or resolution” within which to file the instant petition. This Honorable Court has generally held this period to be “inextendible”, on the rationale that “[t]he period was specifically set to avoid any unreasonable delay that would violate the constitutional rights of parties to a speedy disposition of their case”.

201. However, it should be stressed that the judicial policy underlying the sixty-day reglementary period to file petitions under Rule 65 is not sacrosanct, particularly when weighed against the historical claims raised by the Petitioners founded on jus cogens norms and erga omnes obligations . Besides, it cannot be said that there has been a violation of the “right to speedy disposition of the case”. The right to a speedy disposition of a case “is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.”

202. Since there has been no actual violation of the right to speedy disposition of a case, the purpose of the rigid implementation of sixty-day reglementary period under Rule 65, Section 4 of the Rules of Court does not exist.

203. Juxtaposing the absence of the rationale for the reglementary period with the Respondents’ ongoing breaches of Petitioners’ fundamental rights inflicting grave and direct injury upon them, there is likewise a greater impetus for this Honorable Court to exercise its discretion to liberally give due course to the instant petition and resolve the same on the merits. This Honorable Court has not been precluded from taking cognizance of petitions involving issues of “transcendental significance to the people”, and may thus “brush aside technicalities of procedure” where the “issues raised are of paramount importance to the public”.

204. As a common-law remedy, the writ of certiorari was an original writ issued out of the chancery or the King’s bench, directed in the King’s name to the judges or officers of an inferior court, commanding them to return the record of a cause pending before them, so that the party might review the proceedings. Contemporary practice, in general, has retained the original intent of the writ, which, under our Revised Rules of Court of 1997, is a special civil action.

205. Thus, as Sec. 1 of Rule 65 states, any aggrieved party may file such a verified petition “[w]hen any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law…”

206. Indeed, by its very definition in the Rules of Court, the mode of certiorari applies to the exercise of judicial or quasi-judicial functions. The function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction.

Quasi-judicial is a term applied to the action or discretion of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official function, and to exercise discretion of a judicial nature. To be precise, quasi-judicial adjudication denotes a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. This does not cover rules and regulations of general applicability issued by an administrative body to implement its purely administrative policies and functions

207. Over time however – and especially in the wake of the country’s experience under Martial Law – the Courts, following the ratification of a new constitution, have expanded their understanding of their certiorari powers, venturing to acquire jurisdiction in cases involving a constitutional question attacked by Petitioners as an exercise of grave abuse of discretion amounting to lack or excess of jurisdiction, even if the question itself does not involve a tribunal or an officer exercising a quasi-judicial function.

208. In fact, more recently the Supreme Court has ruled that there is grave abuse of discretion when an act is done contrary to the Constitution, to law or to jurisprudence, which act is subject to a writ of certiorari.

209. The landmark case of Francisco et al, v. De Venecia, et al., explains this power of the Courts to pass upon the constitutionality of policy – especially that expressed in the exercise of grave abuse of discretion amounting to lack or excess of jurisdiction.

210. In this case, the ponente, Justice Carpio-Morales, notes that the major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the American Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, “is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.”

211. Justice Carpio-Morales locates the roots of this “expanded certiorari jurisdiction” of Philippine courts in the deliberations of the 1986 Constitutional Commission, especially in the sponsorship speech of Chief Justice Roberto Concepcion, which Petitioners quote at length:

…The first section starts with a sentence copied from former Constitutions.

It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: “Well, since it is political, we have no authority to pass upon it.” The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. . . . [italics supplied]

212. It is of double significance that in Francisco et al., v. De Venecia et al., – the case that resolved the propriety of the impeachment complaint against Chief Justice Davide – the High Court brushed aside technicalities in the name of the transcendental and constitutional importance of the issues involved.

213. In fact, the lead petitions and many other petitions consolidated in the case adopted the special civil action of certiorari and prohibition under Rule 65 as a remedy to question the acts of the House of Representative relative to the impeachment of a sitting Chief Justice of the Supreme Court.

214. Indeed, it can well be said that there is greater support for the propriety of the remedy used in the instant case than in the Francisco case because what is being assailed are the acts not of a legislative body but of the Chief Executive and his alter egos.

215. In dismissing the Petition, this Honorable Court is affirming the denial of justice to the victims of the Comfort Women System of the Japanese Imperial Army committed by the Executive Department, all in violation of the Philippine State’s international law and constitutional law obligations..

V. THE FILIPINO COMFORT WOMEN’S CLAIMS COULD NOT HAVE BEEN A LEGAL SUBJECT OF THE TREATY OF PEACE AS THESE ARE NOT PRIVATE CLAIMS BUT ARE IN FACT CLAIMS ARISING FROM WAR CRIMES AND JUS COGENS NORMS SUBJECT TO ERGA OMNES OBLIGATIONS UNDER INTERNATIONAL LAW. AS SUCH, THE CLAIMS RAISED BY PETITIONERS AGAINST THE STATE OF JAPAN IS AS WELL THE INTEREST OF THE INTERNATIONAL COMMUNITY AS A WHOLE UNDER THE LAW OF STATE RESPONSIBILITY, NOT TO MENTION THAT SUCH WAIVER IS PROHIBITED UNDER PHILIPPINE LAW.

216. In first place, the intent of the Parties, as expressed in its Preamble, recognizes that Japan has a human rights commitment that trumps the idea that the Treaty’s Waiver Clause wiped out the claims of victims of the Japanese Imperial Army’s Comfort Women System.

217. As Dean Magallona argues, “the waiver clause of the Treaty cannot be so interpreted as to defeat the human rights commitment of Japan; in particular, it cannot have the effect of avoiding the claims of the comfort women against Japan for responsibility arising from the breach of international obligations.”

218. Following the Separate Opinion of Judge Dillard in the South-West Africa case, the Waiver Clause in the San Francisco Treaty must be read along with the very Preamble of the Treaty, which expresses the intention of the State Parties. Along this line, by signing the Peace Treaty, Japan had in fact, committed itself to respect human rights and fundamental freedoms. The Preamble states intention of the parties,

a. to conform to the principles of the UN Charter “in all circumstances”;

b. to strive to realize the objectives of the Universal Declaration of Human Rights; and

c. to create internal conditions (in Japan) “as defined in Articles 55 and 56 of the Charter of the United Nations.”

219. According to Dean Magallona, under Article 55, States Parties are to take joint and separate action in cooperation with the UN, for the “universal respect for, and observance of, human rights and fundamental freedoms for all without discrimination as race, sex, language, or religion” that Article 56 pursues.

220. The rights on which the Petitioners’ claims are founded pertain to no ordinary rights. These pertain to elementary considerations of humanity recognized by both international human rights and international humanitarian laws and are not subject to prescription.

221. The acts committed by members of the Japanese Imperial Army against Petitioners are violations of jus cogens norms – of customary norms long held to be binding upon all civilized nations.

222. Indeed, the 1969 Vienna Convention on the Law of Treaties is only a codification of long-held principles in international law, namely jus cogens norms; Put in another way, the Convention is but a restatement of long standing and long held principles of international law that in fact, co-exist side by side with and independently of treaty law, as the decisions of the ICJ in the North Sea Continental Shelf Cases and the Nicaragua v. US case so clearly import.

223. Thus, even if at the time of the conclusion of the San Francisco Treaty of Peace, the VCLT was not yet in force, the norms which it codified remain binding as part and parcel of a separate legal regime under general international law.

224. To hold so otherwise is to put across the argument that the actions of the Japanese military during the Second World War were not prohibited in treaty or customary law at the time they were committed – an argument also put forward by defendants in the Nuremberg, Tokyo, Kuroda and Yamashita trials.

225. Yet, as the UN Commission would put it, “the Japanese government’s claims that the actions of the Japanese military during the Second World War were not prohibited during the time period in which the offences were committed because the international crimes of rape and enslavement were not clearly prohibited as customary norms during the Second World War are easily refuted. Similar arguments were unpersuasive 50 years ago when they were first raised at the [Nuremberg] trials and…they remain unpersuasive today.”

226. Thus, the invalidity of the Waiver Clause in question is not only a concern of the parties to the Peace Treaty but of humanity in general; For what is involved are violation of the Laws of War and the Laws of Humanity;

227. Indeed, no State can waive the liability of another state for crimes against humanity. On this basis, so said the Women’s International War Crimes Tribunal (hereinafter, Tribunal), the Japanese government cannot evade liability for violations of crimes against humanity by invoking the terms of the Peace Treaty because the waiver is void on the ground that the Allies had no power to waive the liability of Japan for crimes against humanity.

228. In addition, from the point of view of the UN Commission of Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter, UN Commission), equity dictates that the Treaty of Peace provisions on settlement of claims be rendered void for the following reasons:

(a) Japan’s direct involvement in the establishment of the rape camps was concealed when the treaties were written, a crucial fact that must now prohibit on equity grounds any attempt by Japan to rely on these treaties to avoid liability;

(b) Plain language of the treaty indicate that it was not intended to foreclose claims for compensation by individuals for harms done by the Japanese military in violation of human rights or humanitarian law.

(c) It is argued that at the time these and other post-war treaties were forged, the Japanese government hid the extent of the Japanese military’s involvement in the horrifying treatment of comfort women. “Although there was clearly ample knowledge within Korea, the Philippines, China and Indonesia that women and girls had been enslaved and raped during the war, the systemic involvement of the Japanese Imperial Army was concealed by Japan following the war. Private ‘entrepreneurs, rather than the Japanese military, were suspected and often blamed for the emergence of rape centers,” so said the UN Commission. The same objections can very well be said against the Reparations Agreement between the Philippines and Japan, which made no mention at all of the claims of the comfort women against the Japanese government.

(d) …[T]he plain language of article 14(b) of the 1951 Peace Treaty waives all reparations claims and other claims of the Allied powers and their nationals arising out of the actions taken by Japan and its nationals during the war…By distinguishing between the claims for “reparations” and “other claims”, this language clearly indicates that the waiver does not apply to compensation of the Allied Powers’ nationals. The only reparations contemplated by the waiver are those “other” than reparations. Thus the claims for compensation by the former “comfort women” are not barred by the waiver at all because they do not fall within the claims discussed in the Treaty.

229. In fact, the Philippines itself made a reservation against any rigid interpretation of the Waiver Clause, as can be gleaned from the statement of the then Foreign Affairs Secretary of the Philippines, Carlos P. Romulo, at the San Francisco Conference on September 7, 1951:

If Article 14(a) is to be interpreted as an inflexible restriction on the form of reparations between Japan and the Philippines, then I would be obliged to declare that the Philippine Government will make the following reservation:
The right of the Government of the Republic of the Philippines to negotiate and mutually agree with the Government of Japan on the kinds and forms of reparations due the former from the latter and the manner of their payment or delivery is hereby reserved, and provision of the present treaty to the contrary notwithstanding…

230. Moreover, when the Philippines signed the Treaty of Peace, the New Civil Code (NCC) was already in effect. Art. 6 of Republic Act 386, otherwise known as “An Act to Ordain and Institute the Civil Code of the Philippines,” provided that “Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good custom, or prejudicial to a third person with a right recognized by law.”

231. Too, Art. 17 of the NCC, in particular in the second paragraph, provides that “Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.”

232. The Treaty of Peace is one such convention agreed upon in a foreign country by the Philippines. Thus, even without the reservations made by the Philippines to the Treaty, under our Civil Code, the waiver does not have the effect of binding law; as far as Philippine law is concerned, it is repugnant to public order, public policy and good customs.

233. Clearly, the Philippine government could not have waived the rights of Petitioners to a just claim against the state of Japan when it signed the Treaty of Peace; such waiver being contrary to law, the notion of an international public order founded on the rule of law and the principles of human rights and prejudicial to the rights of the Petitioners.

234. F. Kalshoven, in an opinion quoted with favor by the Tribunal, also argues that the Peace Treaty, because it provides for lump-sum reparations, is a political, rather than a legal settlement:
Lump-sum agreements are inter-State agreements; they are concluded for political reasons and are not, or at most only very partially, based on the damage and injury suffered by individual persons of the nationality of the State that receives money under the agreement. Often, the individual damage and injury are unknown at the time of the conclusion of the agreement, and therefore, simply cannot have been taken into account in ‘calculating’ the payment under the agreement.

235. The judgment of the Tribunal, elucidating on this point, said the United States has expressly admitted this in an amicus curiae brief filed recently in the United States Federal Court hearing the case of Comfort Women from the Philippines, China, Taiwan and South Korea. In the brief, the United States argued against recognizing individual claims in this way:

The Treaty was considered as part of a package….relating to the Pacific region, reflecting the United States’ view of the Treaty as an integral part of its political and foreign relations goals in that region.

The Allies’ intent was to effect as complete and lasting peace with Japan as possible by closing the door on litigation of war-related claims. This policy decision was made in order to allow Japan as a nation to rebuild its economy and become a stable force and strong ally in Asia….To that end, the United States actively facilitated and encouraged Japan’s efforts to enter into peace treaties and/or claims settlement agreement with non-signatory countries such as China, Burma and Indonesia.

236. Against this stance, the Tribunal said:

This is a transparent admission of the political nature of this effort to extinguish individual claims for war-related injury. It is also an effective warning of the danger of permitting a geopolitical negotiating process to extinguish the claims of the injured. Today, it is often said that there can be “no peace without justice.” The long and courteous battle of reparations waged by the aging survivors of the comfort system attest to the necessity (of establishing) accountability (for) survivors to have peace. It also makes clear the crucial importance of the principle we affirm here: that as to crimes against humanity, the bargains of states cannot extinguish against the claims of injured people.

237. Hence, the Waiver Clause must be reconciled with the fundamental considerations respecting human rights which form part of the context of the Treaty as articulated in its Preamble. If both prove to be irreconcilable, under Article 103 of the UN Charter, we arrive at the interpretation that the human rights obligations under the UN Charter is the context of the Peace Treaty, indeed, its primary point of reference, over and above the obligations that the Waiver Clause demands of the signatories.

238. Besides, in signing the Peace Treaty, Japan and the Allied Powers themselves likewise intended to comply with Articles 55 and 53 of the UN Charter.

239. There too is another aspect – gender, that this Honorable Court has not considered. The Tribunal thus noted:

We…find persuasive the arguments…regarding the inherent gender bias underlying the Peace Treaties. We note that women, either as individuals or as a group, did not have an equal voice or equal status to men at the time of the conclusion of the Peace Treaties with the direct consequence that the issues of military sexual slavery and rape were left unaddressed at that time and formed no part of the background to the negotiations and ultimate resolution of the Peace Treaties. The tribunal considers that such gender blindness in international processes contribute to the continuing culture of impunity for crimes perpetrated against women in armed conflict.

240. The high order nature of jus cogens norms and erga omnes obligations trump the provisions of treaty. In fact, where treaty law conflicts with jus cogens and erga omnes obligations, the former must give way; precisely Petitioners argue that the Philippines and Japan itself are subject to the demands of erga omnes obligations. The principle of pacta sunt servanda cannot prevail over jus cogens norms and erga omnes obligations. Indeed, only a distorted understanding of the principle can lead one to arrive at a conclusion to the contrary.

PRAYER

WHEREFORE, premises considered, Petitioners respectfully pray that this Honorable Court reconsider its Judgment of April 28, 2010 and instead:

(a) DECLARE the rapes, sexual slavery, torture and other forms of sexual violence committed against the Filipina ‘comfort women’ as crimes against humanity and war crimes under customary international law;

(b) DECLARE that Treaty of Peace with Japan does not bar
the claims of the Filipina “comfort women” and any waiver of claims arising therefrom does not cover jus cogens norms and the erga omnes obligation of states to prosecute crimes against humanity and war crimes under customary international law,

(c) DECLARE that the Secretary of Foreign Affairs and the Executive Secretary committed grave abuse of discretion amounting to lack or excess of jurisdiction in refusing to espouse the claims of Filipina ‘comfort women’ for the crimes against humanity and war crimes committed against them;

(d) ORDER the Secretary of Foreign Affairs and the Executive Secretary to espouse the claims of Filipina ‘comfort women’, specifically demanding an official apology from the State of Japan and legal compensation for the rapes Filipina ‘comfort women’ endured from the hands of the Japanese military in World War II.

(e) DECLARE THAT The Petitioners are entitled to a Writ of Preliminary Mandatory Injunction against the Respondents to require their espousal of Petitioners’ claims for official apology and other forms of reparations against the State of Japan before the International Court of Justice or other international legal forums or tribunals.

(f) DIRECT THE RESPONDENTS to espouse the Petitioners’ claims for official apology and other forms of reparations against the State of Japan before the International Court of Justice or other international legal forums or tribunals.

Other relief just and equitable under the premises are likewise prayed for.

Makati City for the City of Manila, July 18, 2010

By the Counsel for Petitioners:

ROQUE & BUTUYAN LAW OFFICES
Unit 1904 Antel 2000 Corporate Center
121 Valero St., Salcedo Village
Makati City 1200
Tel No. 750-3847 to 48
Email: mail@roquebutuyan.com
Fax No: 887-3893

By:

H. HARRY L. ROQUE, JR.
Roll No. 36976
PTR No. 1573586, 1.08.09/Makati
IBP No. 499912/ Lifetime
MCLE Exemption No. III-001000 (issued on April 26, 2010)

ROMEL REGALADO BAGARES
PTR No. 0016687/Jan 13, 2010/Makati City
IBP No. 811902/Jan 12, 2010/Socsargen
Roll No. 49518
MCLE Compliance No.III-0017855 (issued on July 8, 2010)

EXPLANATION

Due to the shortage of messengerial services, distance and lack of time this pleading is being served to the other parties by registered mail in accordance with Section 11, Rule 13 of the Revised Rules of Court.

ROMEL REGALADO BAGARES

COPY FURNISHED:

Office of the Executive Secretary
Malacanang, Manila

Department of Foreign Affairs
2230 Roxas Blvd
Pasay City

Department of Justice
Padre Faura Street
Manila City

Office of the Solicitor General
134 Amorsolo St.
Legaspi Village
Makati City

Published in: on July 18, 2010 at 11:13 pm  Comments (11)  
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American Academic Confirms Plagiarism

Supreme Court Spokesperson Midas Marquez, in defending the Court from allegations of plagiarism , said that the authors of the alleged copied articles, and not the comfort women, have the standing to question the alleged intellectual theft. Without conceding this point, it appears though that at least of one of these authors has in fact done just this.

An American academic, Prof. Evan Criddle, confirmed in a well-known US-based legal blog that an article he had co-authored with a Canadian colleague was plagiarized and taken out of context by a recent decision of our Supreme Court dismissing a suit filed by Filipino “Comfort Women” seeking official espousal of their claims for reparations against the State of Japan.

Prof. Criddle, an assistant professor of international law at the Syracuse University College of Law, told the international law blog Opinio Juris (www.opiniojuris.org) that he found what the Philippine Supreme Court did in its April 28, 2010 Judgment in the case of Vinuya et al., V. Executive Secretary et al., (G.R. No. 162230) to be “most troubling.”

Prof. Criddle was responding to a post by one of the blog’s regular contributors, Julian Ku of the Hofstra University, reporting on the allegations against the Supreme Court, including the filing of a supplemental Motion for Reconsideration by the Petitioners last Monday.

In response, Prof. Evan Criddle wrote on the blog:

“The newspaper’s plagiarism claims are based on a motion for reconsideration filed yesterday with the Philippine Supreme Court yesterday. The motion is available here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

The motion suggests that the Court’s decision contains thirty-four sentences and citations that are identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the petitioners’ plagarism allegations until after the motion was filed today.

Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite,” Criddle explained.

Prof. Criddle’s disclosure to Opinio Juris, a blog widely circulated among international law academics from around the world, confirms the allegations at least with respect to the article he co-authored with Prof. Evan Fox-Decent, who teaches at the McGill University Faculty of Law in Canada, on “A Fiduciary Theory of Jus Cogens.” It was published by the Yale Law Journal of International law last year.

Jus Cogens pertains to international legal norms that cannot be set aside by any State as they refer to “non-derogable” principles of law “binding on the international community as a whole.” The Petitioners had argued that what they suffered in the hands of the Japanese Imperial Army during World War II were a violation of jus cogens norms on war crimes and crimes against humanity. Thus, every State, including the Philippines, has an obligation to prosecute these crimes.

The matter was of particular interest to contributors to the blog because it had previously featured Criddle and Fox-Decent’s article, which presents an alternative view of jus cogens norms, in its pages.
In their article, the authors wrote:

At a minimum, the fiduciary model’s criterion of equal security – the principle that a state may not exploit individuals as mere means to its own ends – limits state legislative and administrative power by outlawing grave offenses such as genocide, crimes against humanity, summary executions, torture, forced disappearances, and prolonged arbitrary detention. Such flagrant abuses of state power deny a state’s beneficiaries secure and equal freedom and therefore trigger international law’s strictest peremptory prohibitions

A link to the blog page where Prof. Criddle’s comment appears is found here: http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/

Opinio Juris is a US-based blog run by several academics in the field of international law. It is a forum for informed discussion and lively debate about international law and international relations. It was founded by Chris Borgen, a law professor at St. John’s University Law School, who started the site with Peggy McGuinness of the University of Missouri Law School and Julian Ku of Hofstra Law School. The site debuted in January 2005. #30#

Published in: on July 21, 2010 at 2:54 pm  Comments (3)  
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CENTERLAW CONDEMNS THE RELEASE OF KILLERS OF MAGUINDANAO MASSACRE WITNESS JESSIE

The Center For International Law (Centerlaw), COUNSEL FOR 14 MEDIA VICTIMS OF THE Maguindanao massacre, condemns in the strongest terms possible, the release today of two individuals behind the murder of the Maguindanao massacre witness “Jessie”. The two suspects, Abdullah Pasawilan and Morced Simpal, were both arrested last July 2, 2010 on a search warrant issued by the RTC of Cotabato for illegal possession of firearms ans explosives. Ballistic examinations later showed that a .45 caliber pistol, 1911 model (SN 851773) seized from the suspects was the same gun used to kill the witness “Jessie”.

The two suspects were apparently ordered released by a Judge who ruled that separate informations filed against the two for illegal possession of firearms and illegal possession of explosives were defective allegedly pursuant to paragraph f, Section 3, Rule 117 of the Revised Rules of Court on Criminal Procedure. Said provision allows the Court to quash the information that charges for more than one offense. This we submit is an erroneous conclusion. The remedy under the afore-cited provision is to order the amendment of the Information AND not to dismiss the criminal cases particularly herewhere it has become apparent that one of the sized firearms was used in a separate murder case.

This is why there is a culture of impunity in this country. Killers are apprehended, charged, and yet are allowed to go scot-free by the very institutions that we depend on to uphold the rule of law.

We call on the Supreme Court to investigate the erring judge who allowed the release of two men who, on the basis of forensics and physical evidence, are the likely killers of “Jessie”, the self-confessed participant to the Maguindanao massacre and who until his murder, wanted to testify against the Ampatuans.

We call on Secretary Leila De Lima to sanction the Prosecutors who obviously did not do their duty to represent the interest of the State in the criminal cases already pending in court that led to the dismissal of the criminal cases against the two suspects.

We call on Secretary Robredo and General Versoza to investigate the Maguindanao and Cotobato PNP who failed to file the appropriate criminal complaint for murder against the two suspects even after ballistics examination conformed that the two were the likely assassins of the witness “Jessie”.

We also put on record that with two known assassins now on the loose, all victims, witnesses, private prosecutors, and public prosecutors involved in the Maguindanao massacre are now at risk.#30#

Published in: on July 22, 2010 at 9:34 am  Comments (7)  

Filipina “Comfort Women” Deserve Political Support

(From ICTJ)
NEW YORK, July 23, 2010—The Philippines government should support renewed efforts by former sexual slaves to seek reparations and an official apology from Japan , said the International Center for Transitional Justice (ICTJ) today.

Before and during World War II, the Japanese military government forced an estimated 200,000 women from many Asian countries, known as “comfort women,” to provide Japanese soldiers with sexual services. In April 2010 the Philippine Supreme Court dismissed a case by a group of Filipina comfort women aiming to compel the Philippine government to seek reparations from Japan on their behalf. On July 19 these women asked the Philippine Supreme Court to reconsider.

ICTJ calls on the Philippines government to support the women’s efforts and on President Aquino to show leadership on this issue.

“The remaining survivors of Japan ’s system of sexual slavery in World War II do not need pity or charity. They need justice,” said ICTJ president, David Tolbert . “The struggle of President Aquino’s parents against impunity is well known. Their son should follow in their footsteps and support these aging comfort women in their long struggle for justice,” said Tolbert.

“The comfort women’s arguments are well supported under international law,” said Helen Scanlon , director of ICTJ’s Gender Justice Program. “The Philippines has an opportunity to set an example. It can show how a state can fulfill its duty and seek to provide effective remedies for citizens whose human rights have been violated—in this case, women singled out and subjected to the crime of wartime sexual slavery. We strongly encourage the court to revisit its April 2010 ruling on this issue,” said Scanlon.

Background

Accountability for the Comfort Women System

While some war crimes prosecutions for crimes committed during World War II took place at the post-war Tokyo Trials in the late 1940s, the trials did not bring accountability for the comfort women system. In 1993 a statement by the Japanese Prime Minister’s office expressed regret for what happened to the women, but it did not go as far as to give an official apology or provide reparations. Comfort women have endured the long-term effects of their sexual slavery through physical injuries, mental and emotional suffering, damage to their reproductive capacity and harm to social relationships.

In 1995 Japan established the Asian Women’s Fund (AWF) to provide financial, medical and welfare assistance to surviving former comfort women. But the AWF was financed through so-called “atonement” funds from private sources, including Japanese corporations and private individuals, but excluding government funds. Many comfort women rejected the AWF because they saw it as a way for Japan to evade state responsibility.

A group of some sixty Filipina former comfort women, called the Malaya Lolas (Free Grandmothers), first sought to compel the Philippines government to support their request for reparations and an apology in 2004. The case was dismissed by the Supreme Court on April 28, 2010. The group filed a motion asking the court to reconsider on July 19.

Victims Have a Right to Reparations

There are long-standing legal and moral principles that support compensation, giving acknowledgement, offering apologies, establishing memorials and delivering needed material and physical support to victims of such crimes.

Based on these principles, Germany provided reparations and official apologies to victims of the Nazi regime¾including victims of sexual and gender-based violence¾and the United States also compensated and apologized to Japanese-Americans it forced into internment camps during World War II.

Rights to reparation are clearly established under international law and are summarized in the 2005 United Nations General Assembly Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

The right to remedy is not discretionary. All states are bound to provide an effective remedy for victims of torture and slavery. In the case of the comfort women, their age makes reparations an even more urgent need that should be provided ahead of all other forms of accountability.

The right to remedy should not be confused with the duty to extend diplomatic protection to citizens’ abroad, and is not dependent on whether prosecutions take place.

(See also Japanese Government Should Give Apology and Compensation To WWII Comfort Women)

About ICTJ
The International Center for Transitional Justice works to redress and prevent the most severe violations of human rights by confronting legacies of mass abuse. ICTJ seeks holistic solutions to promote accountability and create just and peaceful societies. For more information, visit www.ictj.org.

Contact

Helen Scanlon ( Cape Town GMT +2)
Director, Gender Justice Program
Tel +27 21 448 6464/6255/6620

Lisa Jamhoury ( New York GMT -4)
Communications Associate
Tel +1 917 637 3846
Cell +1 917 975 2305

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Published in: on July 25, 2010 at 12:37 pm  Leave a Comment  
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The First Aquino SONA

I’m happy that two of my most important advocacies, the investigation and prosecution of extralegal killings and the reform of the Witness Protection Program, figured in President Noynoy Aquino’s first State-of-the-Nation Address. While I would have preferred an express mention of the Maguindanao massacre in the first Sona since the massacre took place, and specific promises that he had for the victims of the country’s worse massacre ever, either in terms of reparations to the victims who were killed by state agents or a specific time frame within which to finish the prosecution of the case; still, P-Noy did promise in general terms that “killers would be prosecuted” under his administration. It was good that while he acknowledged that the killings continue until today, the difference is that in the three weeks that he has been in office, half of the extralegal killings that welcomed his administration had been investigated and now being prosecuted in court. Contrast this with the almost 1,000 killings under nine years of the Arroyo regime with only about three convictions, all of them involving only gun men, and none of the masterminds.
Under international law, the duty of civilian presidents is to prevent the loss of the right to life and in default of this, the further obligation to investigate, prosecute and punish the perpetrators thereof. Civilian heads of state will in fact incur criminal liability if they fail in this duty to investigate and prosecute. How, in turn, is this duty to investigate triggered? For military commanders, it is if it is shown that a commander in control of his subordinates had knowledge of the commission of the crimes or should have known about the same had he not turned a blind eye to the crimes. Civilian presidents have a similar duty, except that it must be shown that they actually knew that the crimes were actually happening and did nothing to prevent or investigate them. This duty to investigate is triggered , among others, by news reports and reports of human rights organizations. While these reports are hearsay insofar as the truthfulness of their contents are concerned, they are, however, sufficient basis to trigger the duty to investigate.

The President also promised reforms in the Witness Protection Program.

This is vindication of sorts since until today, government prosecutors, in addition to former Secretary of Justice Alberto Agra, have not acknowledged that “Jessie”, the murdered eye witness to the Maguindanao massacre, should have not died if only those charged with the implementation of the WPP bothered to listen to what he had to say. At the very least, the President’s promise to reform the WPP is evidence that the witness “Jessie” probably did not die in vain. Hopefully, he will heed the recommendations of professor Philip Alston, UN Special Rapporteur on Extralegal Killings, to separate the WPP from the National Prosecution Service to insulate the program from the biases of government prosecutors. It is further hoped that these much-needed reforms in the WPP would finally accept how difficult it is for witnesses to gruesome crimes perpetrated by state agents to trust the WPP. Maybe, the Supreme Court, as an immediate remedial measure to address this issue of mistrust, should accredit soonest the list of organizations that can provide private sanctuaries.

I am happy that the President also repeated his promise to curtail graft and corruption in government. It was good that he singled out his marching orders for the Department of Justice and the Bureaus of Customs and Internal Revenues to file new cases against big-time smugglers and tax cheats on a weekly basis. I thought though that the President should have mentioned more specific means of how his administration would deal with the problems of corruption beyond mentioning the Truth Commission anew and promising to issue the Executive Order detailing the workings of the commission within the week. Perhaps though, he should have been more clear on how he intends to deal with the biggest obstacle to the fight against corruption: Ombudsman Merceditas Gutierrez. With the administration Liberal Party now a Juggernaut in the House of Representatives, I am sure that his party mates were more than eager to find out how he intended to deal with the problem that is the Ombudsman. I would also have liked to hear the basics, that is, he will send thieves in government, including the Arroyos and their cohorts to jail. But maybe he thought mentioning this would be a superfluity given his repeated promises of “no reconciliation without justice” during the campaign. We hope this is in fact the case.

I’m not sure I liked Aquino’s having singled out the excesses of the board of the Metropolitan Waterworks and Sewerage System, though. Having had the opportunity, albeit all so briefly, to act as corporate secretary of a government-owned and -controlled corporation once, I do not find the P2 million per annum compensation for board members particularly scandalous if only because almost all of GOCCs of the same size as the MWSS probably have the same levels of compensation. I’m sure this sum is either the same or even bigger in the boards of the Philippine Amusement and Gaming Corp., Philippine Charity Sweepstakes Office, Government Service Insurance System, Social Security System, PNOC-Energy Development Corporation, Development Bank of the Philippines, Land Bank of the Philippines, to name only a few. The issue should not have been solely focused on the remuneration of the MWSS Board. The President should have raised how much all board members of GOCCs should make.

Anent the hoard of rice stocks that the National Food Authority imported, the President remained quiet on what made these importations even more reprehensible. That hat is, in addition to rotting rice stocks and overpriced warehouses, there is the greed of those who obviously made money out of these importations. To quote Jun Lozada, “they failed to moderate their greed.”

On his legislative agenda, I hope the anti-trust bill is finally enacted into law. There has been a pending anti-draft law in Congress since the 8th Congress in 1988. I should know since I drafted one such version of the draft bills which I pattered after the American anti-trust law. It has since gathered dust for the past 25 years despite the fact that we need the law badly, what with the proliferation today of monopolies and oligopolies which render free competition in the market illusory.

The call to re-examine our codified laws was also welcomed particularly by the University of the Philippines College of Law community. Individual members of the faculty have been engaged in the re-examination of these codes ranging from the Revised Penal Code, to a proposed Code of Commercial Laws, an amended Environmental Code, and even amendments to the Family Code and other laws affecting persons and family relations.

By and large, the President stuck to a tried-and-tested formula in speech writing: use short sentences that are direct to the point. Still, where it was lacking was the lack of an action plan. Maybe that will come as soon as the respective heads of the executive departments have finalized their action plans.

Published in: on July 30, 2010 at 8:09 am  Comments (3)  
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INCOMPETENCE AND TRAGEDY IN LUNETA

9 months ago, at least 62 policemen participated in the worse massacre in Philippines history: the Maguindanao massacre. Then last week, at least 9 of them, although their numbers should swell as more evidence are uncovered, were also involved in a torture witnessed in every living room in the country courtesy of a cell phone video broadcasted by one of the country’s television giants. Two days ago, there was yet another action packed event- only like the torture- it was not a production of a television company. It was for real, and yes, it involved again policemen- one with gripes, and many others who were simply incompetent. With policemen like this, who will protect us?

I do confess having missed much of action at Luneta as it was televised live by Philippine media organizations. . Thanks to the digital age though, I learned about the hostage taking incident almost as soon as it happened through twitter on my blackberry. While checking in at T-3 headed for Bacolod City, I did manage to read further accounts about the incident on the Internet in my blackberry. I boarded my flight thinking that like a similar “bus jacking” incident in Manila that involved a school bus, this too would pass since apparently, the hostage taker has agreed to wait it out for authorities to heed his demand for reinstatement into the service. I arrived in my hotel in Bacolod at about 5PM and was pleased to have seen on cable that as I predicted, both hostage taker and the police have agreed to wait it out. I then went to my dinner meeting confident that although we would be embarrassed tremendously because the incident involved foreigners, it would nonetheless come to pass.

At about 7PM and well into my meeting, I received a tweet that shooting had commenced. Subsequent tweets erroneously reported that all hostages and the gunmen have been killed. I announced this in my meeting and the responses ranged from shock to anger, and even to despair. Many thought that this was the last thing that the country needed even with a brand new reform oriented leader. There was an overwhelming consensus amongst Negrenses that PNoy would find it very difficult to recover from this incident.

On hindsight, two factors made the incident a real tragedy. First, there was the obvious incompetence of the policemen who decided to arrest the brother of the hostage taker in full view of the cameras. While both the police and media may not have known it, there apparently was a television on board the bus that enabled the hostage taker to know what was happening in his environment. Certainly, the more prudent thing to do should have been to quietly apprehend the brother assuming they had basis in apprehending him in the first place. But no, they had to make a spectacle out of it.

That was not the only evidence of incompetence. By 7PM, the police had already decided to assault the bus as in fact; they came near it replete with dramatic footages of one of them seeking to gain entry into the bus forcibly. Strangely, after using a giant mallet to break open the door of the bus, the police froze and waited! Meanwhile, the lone gunman has violently responded and killed at least 9 of his victims. It took a whole hour for the police to use teargas and bring the hostage taker down.

The point to underscore is that this incompetence on the part of our security force is not isolated. It was this same incompetence that led 62 of them to be involved in the Maguindanao massacre and at least 9 of them to be involved in that highly publicized case of torture. The question is: why such incompetence?

Perhaps a clue may be had in the recruitment process that is being implemented in the PNP. For instance, in Maguindanao before the massacre, PNP insiders told me that recruitment into the ARMM PNP was on the basis of “3 for1”. That meant 3 recruits for 1 million pesos. In other words, those desirous of entering the PNP had to buy their position. This is also apparently the case in other governmental agencies such as the Bureau of Immigration, the Bureau of Internal Revenue and the Bureau of Customs. With public servants having bought their appointments, little wonder that they would give priority to return on their investments over discharge of public service. This would explain why incompetence in the PNP is more of the rule rather than the exception.

The second factor that made Luneta such a tragedy was the manner by which media handled the situation. Make no mistake about it: I have always been an advocate of freedom of expression and of free press primarily because I have been tactless and possess a big mouth. But when you have the media broadcasting for the hostage taker everything happening around him, even the arrest of his brother, in real time, which in turn provoked him to be violent after waiting it out for 11 hours; one cannot help but conclude that police incompetence notwithstanding, the media should accept part of the blame for this tragedy.

Again to be absolutely clear, I am not in favor of any act of the state restricting the activities of the media. That to me would be tantamount to prior restraint and hence, unconstitutional. What I am in favor of is the exercise of voluntary restraint on the part of the media, particularly in incidents such as this, where their coverage could literally mean the difference between life and death.

To be fair to the media, the public at large too is partly to be blamed. The “usisero” syndrome is such a Filipino trait that one can understand the media’s desire pander to the gallery. Perhaps, this could be one of the lessons learned from this tragedy. That in our desire to be at the center of things that are happening, our curiosity could contribute to the death of others. #30#

Published in: on August 25, 2010 at 11:10 pm  Comments (11)  
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To SC Spokesperson Midas Marquez: Take heed of the Supreme Court’s own ruling — “Courts and Justices are not sacrosanct.” by Joel Butuyan


SC spokesperson Midas Marquez uses a parochial application of the sub judice rule when he criticized the UP Faculty on the latter’s stand on the plagiarism issue. To stop embarrassing himself, he should read the constitutional right on free speech in relation to the doctrine of “fair comment on matters of public interest” and also in relation to the In Re Almacen doctrine. Under the Midas Marquez doctrine, you can demand the resignation of the President, Senators, and Congressmen. Heck, you can even demand the resignation of the Pope. But you cannot call on an SC Justice to resign??!! The gods must be going crazy on the promotion of additional gods.

In In Re Almacen, the Supreme Court itself said that “Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve.”

I also plagiarized the following relevant Supreme Court pronouncements:

“Ultimate good desired is better reached by the free trade in ideas… that the best test of truth is the power of a thought to be accepted in the competition of the market, and truth is the only ground by which their wishes can be carried out.”

My personal favorite:

“Sunshine is the best anti-septic; the maligned should answer back and let the marketplace of ideas work; when an idea is exposed to the public for debate, its merits and demerits are exposed and eventually, the public will know the truth and the false;

“The interest of society and good government demands a full discussion of public affairs. Whether the law is wisely or badly enforced is a fit subject of public comment. Public policy, welfare of society and the orderly administration of government have demanded protection for public opinion.”

“freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech x x x discussion would be futile; and that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrines; the greatest menace to freedom is inert people.”

Amen.

Published in: on August 11, 2010 at 1:57 pm  Comments (3)  
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Plagiarism in the Supreme Court? – INQUIRER.net, Philippine News for Filipinos

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via Plagiarism in the Supreme Court? – INQUIRER.net, Philippine News for Filipinos.

Published in: on August 8, 2010 at 1:37 am  Leave a Comment  
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