Filing of graft and plunder charges against BOC Commissioner Lina


Notice for Coverage
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Romel R. Bagares 09328798422

Omniprime Marketing Inc. will have a press conference at Serye Quezon City Memorial Circle tomorrow, July 2, 2015, Thursday at 9:30 AM.

Filing of graft and and plunder charges against BOC Commissioner Lina at the Office of the Ombudsman will follow at 11:30AM.

Omniprime will be accompanied by their legal counsels headed by Atty. Harry L. Roque Jr. and Atty. Romel R. Bagares.

ATTY ROQUE: JOURNALIST KILLINGS ARE VIOLATIONS OF INTERNATIONAL LAW


Media Release
Reference: Prof. Harry L. Roque Jr. 09175398096

 

The Center for International Law (Centerlaw), a civil society group aiming to strengthen the binding nature of international law in the country, condemned the shooting of CNN cameraman Jonathan Olden at 5:15am Thursday.

 

29-year old Olden, who worked as an assistant cameraman for CNN, was on his way to work when he was gunned down in Imus, Cavite. Police have yet to identify his assailants.

 

Atty. Harry Roque, Jr, a University of the Philippines law professor and chair of Centerlaw, says that in addition to the shooting being a violation of both the constitutional right to life and the right to freedom of expression, this extrajudicial killing also constitutes another breach of a state obligation to protect and promote human rights under international law.

 

“The mere killing of one journalist is the ultimate violation of the right to freedom of expression under Article 19 of the ICCPR and Article 19 of the UDHR– since it is permanent censorship,” according to Prof. Roque, citing the International Covenant of Civil and Political Rights and the Universal Declaration of Human Rights.

 

In the 2014 UN Conference on the Safety of Journalists sponsored by the European Council and UNESCO, Secretary Leila de Lima admitted that the country’s conviction rate for extralegal killings remains at 1%. The United Nations’ Alston Report on Extrajudicial, Summary or Arbitrary Executions in the Philippines, notes that the Aquino government has continued this gross irresponsibility, in breach of the duty to protect and promote the right to life, because of a lack of political will to prosecute those behind these killings.

 

“This is why impunity persists in the country,” Prof. Roque said. “And that is also why it is all the more important for the next administration to stop this cycle of continuous violence against our journalists.”

Centerlaw statement on the election of Dean Raul C. Pangalangan to the International Criminal Court (ICC)


Media Release
Reference: Prof. H. Harry L. Roque, Jr. 09175398096

The Center for International Law (Centerlaw) extends its congratulations to Dean Raul C. Pangalangan on his recent election as judge of the International Criminal Court.

Dean Pangalangan, who is a trustee of Centerlaw, brings with him to the world’s first permanent court designated to try the most heinous crimes a keen academic intellect and practical wisdom from his years of engaging with relevant issues as a leading member of the Philippine civil society.

Prof. Roque said, “We trust that with his presence in the ICC, our own people and our own government will have greater confidence in pursuing impartial justice before the international tribunal for egregious human rights violations committed in the Philippines that have remained unresolved.”

Scarborough Shoal and the violation of human rights


Center Law Philippines yesterday (June 24) submitted an urgent appeal to the United Nations Commission on Human Rights to call attention to the human rights violations which took place on the fishing grounds of the Scarborough Shoal (locally known as “Panatag Shoal” or “Bajo de Masinloc”).

Scarborough Shoal is 18 hours away from the coastal towns of Masinloc and Subic yet the fisherfolk still seek out the area because of its rich marine resource. Aside from giving them their livelihood, the area also provides safe refuge when storms occur in the West Philippine Sea. Filipinos refer to it as “Panatag Shoal,” with the word “panatag” meaning tranquil. There is more reason for the Filipino fishermen to seek refuge in Scarborough Shoal as it is within the 200 nautical miles-exclusive economic zone of the Philippines.

However, from April 2012, members of the Chinese Coast Guard and other Chinese maritime agencies have been physically harassing these Filipino fisherfolk when they visit the shoal. Several of them have been approached while they were conducting their usual business as fisherfolk. They were either told to leave, or were intimidated to the point that they were forced to leave.

Macario Forones encountered Chinese personnel carrying AK47 rifles and was told to “Go away.” Intimidated by the weapons they carried, he and his group left the area. As they were leaving, Chinese helicopters followed them out of the area and even past it. After this encounter, Forones chose not to go back Scarborough Shoal as he was traumatized by the experience.

The rights violated include: right to a livelihood, right to life, and their right to the places of refuge for ships in distress in accordance with the right to life. This is according to several United Nations issuances, specifically the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and other international customary norms.

China and its state agents violated the right to an adequate standard of living of the Filipino fisherfolk —provided under Article 11 of the ICESCR and under Article 25 of the UDHR—by preventing these Filipino fisherfolk from fishing in the traditional and marine resource rich lagoon of Scarborough Shoal.

Article 11 of the ICESCR provides: 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Further, the actions of China’s state agents in forcing the Filipino fishermen to leave the traditional and rich fishing grounds of Scarborough Shoal and in preventing them from fishing in the shoal constitutes a violation of the Filipino fishermen’s right to an adequate standard of living under Article 25 of the Universal Declaration of Human Rights: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, xxx.

The actions of China’s state agents in preventing Filipino fishermen from seeking refuge in Scarborough Shoal in times of inclement and bad weather pose serious threats to the lives of these fishermen, and constitutes a violation of the Filipino fishermen’s right to life under Article 3 of the Universal Declaration on Human Rights: Everyone has the right to life, liberty and security of person.

China is a signatory to both the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR). As a signatory, it has an international obligation to uphold its contents and to prevent any violations from worsening.

The petitioners urgently appeal the United Nations to urgently intervene and investigate the human rights violations committed by China and its state agents against Filipino fisherfolk in Scarborough Shoal; to express grave concern on the human rights violations committed by China and its state agents against Filipino fisherfolk in Scarborough Shoal.

The appeal asks the United Nations Commission on Human Rights to remind, declare and direct China to cease and desist from committing these violations and from interfering with the rights of the Filipinos fisherfolk, and to remind declare and direct China to provide effective remedies and compensation following the violations committed by its state agents.

This post first appeared in http://manilastandardtoday.com/2015/06/25/scarborough-shoal-and-the-violation-of-human-rights/

Roque cautions against provisional remedies from ITLOS against Chinese reclamation


 

 

Media Release
Reference: Prof. Harry L. Roque, Jr. 09175398096

 

University of the Philippines Professor Harry Roque cautioned the Philippine government yesterday against seeking provisional measures before the UN Tribunal on the Law of the Sea against the Chinese reclamation of disputed islands in the West Philippine Sea, saying it could open an opportunity for China to invoke reservations it had earlier made under the UNCLOS a defense.

 

“This action could likely trigger the reservation clause that China had placed, and which the Tribunal has allowed: namely that it be allowed military and law enforcement activities in connection with the exercise of sovereign rights,” he stated.

 

Prof. Roque, who is director of the Institute of International Legal Studies at the UP Law Center, was reacting to a recommendation earlier made by Supreme Court Associate Justice Antonio Carpio on the Chinese building spree.

 

Justice Carpio had said the Philippines should ask the ITLOS for provisional remedies the Asian superpower under Art. 290 (1) of the UN Convention on the Law of the Sea, which provides that if a dispute has been duly submitted to a tribunal of competent jurisdiction, the tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision.

 

Prof. Roque however said such action if pursued by the Philippines might boomerang against its own position because China justifies the reclamation as part of its military and law enforcement activities, pursuant to its claim of sovereign rights over the disputed areas.

 

He said when China joined the UNCLOS it made an express reservation under Art. 298 of the UNCLOs that it does not consider disputes concerning military and law enforcement activities in regard to the exercise of sovereign rights as covered by the jurisdiction of the Tribunal.

 

He said any resort to provisional remedies against the Chinese reclamation will now bring to the fore the Chinese Art. 298 reservations to the UNCLOS.

 

In addition, China may also argue that under the UNCLOS the reclamation of artificial islands are also recognized as a valid exercise of sovereign rights of a coastal state.

 

“Given this reality,” Professor Roque stated, “it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling, particularly on the validity of the Chinese nine-dash lines.”

The Philippines resorted to arbitration before the ITLOS in 2013, after Filipino fishermen were barred from fishing in Panatag Shoal, an area within the Philippine Exclusive Economic Zone. China however has refused to take part in the proceedings, saying that the ITLOS does not have jurisdiction over the dispute.

Filipino fishermen set to file human rights petition against China at the United Nations


Notice for Coverage
References: Prof. Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111
 
 
Filipino fisherfolks, from the towns of Subic and Masinloc in Zambales, who used to fish near the marine-resource rich fishing grounds of Scarborough Shoal (known locally as “Bajo de Masinloc” and also as “Panatag Shoal”) will file an urgent appeal to the UN in relation to the massive and gross human rights violations committed against them by the state agents of the People’s Republic of China. Members of the Chinese coast guard have repeatedly turned away Filipino fishermen from fishing near the disputed shoal and this has led to heavy economic losses for the fishermen.
 
The petition filing will be preceded by a forum on June 24, 2015, Wednesday, from 9:00 am to 12 noon, at Pista Sa Barrio Restaurant, Building 141 Waterfront Road, Subic Bay Freeport Zone in Olongapo.

Poe: “A candidacy that will never fly?”


In my search for jurisprudence on whether a foundling adopted by Filipinos has the status of a natural-born Filipino, I found a 2003 commentary written by renowned constitutionalist Fr. Joaquin Bernas precisely on the issue:  “We follow the principle of jus  sanguinis, that is, a person follows the citizenship of either Filipino blood parent. Our Constitution says that anybody who wishes to be president, vice president, senator or district representative must be a natural-born Filipino citizen. The Constitution defines natural-born Filipino citizens as those “who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.” For the purpose of determining citizenship, therefore, the identity of the blood parents is important.”

Fr Bernas also explored the issue of what happens to a Filipino who has re-acquired Filipino citizen but uses a foreign passport. Citing the case  of a Mayoralty candidate in Lanao del Norte, Fr Bernas paraphrased the Supreme Court:” even if one has renounced foreign citizenship, if he continues to use a foreign passport, he equivalently withdraws his renunciation.”

Fr Bernas was citing the case of Maquiling vs. Comelec where a candidate used a US Passport after he re-acquired his Filipino citizen and renounced his foreign citizenship, the twin requirements under the dual citizen law for candidates for elective office. In this case, the Court ruled that while a person does not lose his Filipino citizenship with the use of a foreign passport; that use, however, negates his renunciation of his foreign citizenship. He thus reverts to the status of a dual citizen: “In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American Citizenship . . .The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack.

Applying Maquiling to the case of Sen Poe, for her to run as President in 2016, she must have renounced and resided in the Philippines exclusively as a Filipino for at least 10 years. Since by her own admission, she only renounced her US citizenship on 2010, she will be short by four years of the residency requirement for the post of president. This is because  the dual citizenship law reckons compliance for candidates for elective posts only from the time they became  exclusively Filipino citizen.

Additionally, I found a very interesting exchange between Former Reps. “Teddy Boy” Locsin and “Digs” Dilangalen, which indicates the legislative intent behind the law. The issue was whether   a natural-born Filipino who lost his citizenship through naturalization, and re-acquires dual citizenship under the law is considered a natural born Filipino. According to Locsin, “your guess is as good as mine”.

While defenders of Poe are quick to argue the jurisprudence under the old Repatriation Act that a natural born Filipino who lost it and re-acquires an exclusive Filipino citizenship re-acquires his status as a natural born Filipino, the same issue appears unsettled where the person merely acquired Filipino citizenship under the dual citizen law. In the words of Locsin, which may very well apply to Sen. Poe: “They may be preparing for a candidacy that in fact will never fly  . . .”

What is pivotal in Poe’s case is whether the acts of taking an oath of allegiance to the Philippines and renunciation of her US citizenship are ”positive acts” given the definition of a natural-born Filipino as one who is such “without having to perform anyact to acquire or perfect Philippine citizenship”. Here, Rep. Dilangalen was emphatic: the oath and renunciation are positive acts. Locsin appeared to have agreed in that he said that the word “deemed” in Sec. 3 of the law, which provides: “those who have lost their Filipino citizenship by reason of naturalization are deemed to have reacquired Philippine citizenship”, requires a “positive act”.

But as Locsin also pointed out, this will have to be ruled upon by our Courts.

This post first appeared in http://manilastandardtoday.com/2015/06/18/poe-a-candidacy-that-will-never-fly-/

Bringing activism to the Philippine Senate


I confirm that I am mulling running for a seat in  the Senate. Vice President Jejomar Binay has offered me a slot in the United Nationalist Alliance slate and I told him that I am seriously considering his offer.

I am contemplating a run for the Senate for the following reasons:

1. After 35 years of being an activist, I believe the Philippines remains the same: the poor are getting poorer and the rich are getting richer. I still remember the time when we rallied in front of the Liwasang Bonifacio against the Education Act of 1982, which sadly privatized our educational system. I can still vividly remember how we were violently dispersed by the Marcos riot police with sticks and water cannons. Regrettably, the same issues concerning Philippine education still hound our country. Also, the Philippines remains  dependent on the United States, and the traditional elite has remained in power in Congress and in the Executive branch. Clearly, our efforts as activists have  not been effective in changing the economic and political structure of the country. Perhaps, my participation in the policy making branch of government will make more of an impact in effecting change in our society.

2.  We need more qualified people in the Senate. Not only have I been a lawyer-activist for the past 25 years, I have also been teaching Constitutional and International Law for the past 15 years at the University of the Philippines, Philippine Judicial Academy, and American University. My role as a public interest lawyer and as a professor has taught me how to use existing tools towards the building of a more egalitarian and an open society. Certainly, my background will assist me in crafting laws for the same ends. I also want to bring back the Senate to its original purpose: to craft laws to fight poverty and to advance national development.

3. Third, because I want to prove that common citizens, including law professors and human rights advocates, can   be elected by the people to the Senate. If Jovito Salonga and Miriam Defensor-Santiago did it, I see no reason why I cannot do the same. I want to inspire ordinary Filipinos – foremost of whom are our teachers – just like myself, that they can be elected to the Philippine Senate on the strength of the Filipino people and with a vision for the people.

4. I want to make activism not only as a tool of the parliament of the street, but as the main weapon in crafting legislation to fight poverty. I want to bring activism to the chambers of the Philippine Senate, and live out the idea that every senator of the Philippines should be a continuing activist for human rights, for education, for women’s rights, for freedom of speech, for the environment, and ultimately for Philippine development.

Despite the foregoing, I am aware of the many challenges in winning a seat in the Senate. To begin with, the post will require funding of at least P300 million since the Supreme Court recently declared as unconstitutional limits on campaign advertisement spending on radio and television. There, too, is the Herculean task of building an organization that will result in at least 13.5 million votes – the minimum required for a Senate seat.

These are the reasons why I told VP Binay that I would go around with him until September but would decide with finality by October of this year. Meanwhile, I welcome the chance to see as many of our islands and meet as many of our people in the coming four months.

Anent VP Binay, I believe he is entitled to his human right of presumption of innocence, particularly in an election year. I  also believe that his background as a lawyer, a human rights advocate, and as a local executive of the country’s premier city makes him the best choice for President in 2016.

On a personal note, VP Binay has actually experienced how it is to be looked down upon and to struggle beyond one’s poverty. As I have written before, VP Binay was a former student of my mother in her geometry class. He was then bullied because of his dark skin tone and shabby clothes. My mother somehow treated the young Binay as like a son. I believe that this personal experience of VP Binay has greatly influenced his vision to help our poor and downtrodden citizens. And this has influenced me to seriously consider VP Binay’s offer to be included in UNA’s Senate slate.

Still, I know that it is the Filipino people who will ultimately influence my decision on whether to seek a Senate seat. And in that note, I will continue on to travel the country and listen to the voice of the people. And I am confident that whatever I discern from the Filipino people, I will still continue to be an activist-lawyer for them.

Questions for Poe


I like Grace Poe. She is a refreshing face in Philippine politics. She was not here when Marichu Maceda and I went around town explaining how her father, Fernando Poe Jr., was cheated in the 2004 elections. I hope she heard about it and I suppose, she would  have been grateful. She did not know about my involvement in her father’s cause because she was not in the country at that time. She was then in the United States as a citizen and a resident there.

I do know that she came back when her father died. She invited    me once to her house located near mine, but I could not go. My colleagues in the Concerned Citizens Movement,    such as Pong Querubin and Betina Legarda, went. We are not friends, but we are cordial to each other. One time I bumped into her in the premises of ABS-CBN. I was then uncommitted to anyone as President. I asked her to be the alternative candidate for President. She said “No” and said “Kay Jojo Binay tayo”. I took her words into consideration when I decided to back VP Binay for the Presidency. My last time to see her was in the wake of the SAF 44. Again, I asked if she was running. She said    “maybe not”. Later, she was to publicly say that she would rather be good at her current post in the Senate. But even before our last meeting, I did text Anthony Taberna’s afternoon program on DZMM to say that in my opinion, a “Binay na Poe” tandem for 2016 would be unbeatable.

Now it appears that with or without PNoy’s blessings, she would run for President -but still refuses to declare her intentions.    I have told her political advisers, Gary Jimenez and another of her staff lawyer, Camille Sevilla, both of whom are lawyers, that she should let her intentions be known. Otherwise, people, like me cannot consider her as a contender for the top post of the land.

This is the context that I now write about my own questions about her residency and her citizenship, both of which are required by the Constitution for all candidates seeking the post of the Presidency, to wit: residence of 10 years and the status of a natural born Filipino. In other words, I genuinely seek answers to these questions because like millions of other voters, I want to consider her still as a candidate for president if and when she does declare to run for the office.

Truth to tell, I thought the controversy that would hound her would be that of her citizenship. While the Philippine Supreme Court affirmed that her father was a natural-born Filipino, her problem is that she is an alleged foundling. The status of a natural-born Filipino is acquired by one who is born of    a Filipino parent. In the Fernando Poe case, the Court construed this as being the offspring of a Filipino father or Filipino mother.

A foundling, though, does not enjoy a presumption of being a natural-born citizen. The Convention on Statelessness does guarantee a foundling the citizenship of    the foundlings parents. This is not the same as  the  natural-born Filipino citizenship required of all candidates for President, Vice-President and Congress. Filipinos who are not natural-born can run for local posts but not for Congress and the Presidency. So, I would like an answer to the difficult issue of whether a foundling legally adopted by Filipino parents enjoys the status of    a natural-born Filipino. I am not aware of any jurisprudence in this regard. I will continue my search for one.

A second truth to tell is that VP Binay mentioned to me this controversy about Poe’s residency. I had no idea what the VP was saying. I thought he was alluding to her citizenship. Neither VP Binay nor I pursued the subject matter. This is proof that, as Rep. Toby Tiangco has said, the VP has not put much attention on this issue. I heard again the issue of her residency on the radio as I was on my way back from an out-of-town lecture only the other night.    Unfortunately, I did not hear    the newscast that evening and failed to catch the information that Rep. Tiangco was referring to Poe’s own declaration that she had six months and six years of    residency at the time of the elections in 2013. Ergo, Rep. Tiangco did his mathematics and came up with the conclusion that Poe would be six months short of the prescribed 10 years residency required by the Constitution. Rep Toby reckoned that she would only have a residency of nine years and six months by May of 2016.

Senate President Franklin Drilon, Senator Francis Escudero and Dean Tony La Vina all defended Poe by saying that she had “animus revertendi,” or the intent to return which is determinative on the issue of domicile. True, such a principle exists. But    it has only been applied where the candidate    himself does not create the controversy by declaring a period of residency short of what the Constitution provides. For instance, it has been applied to one who has a green card and renounced the same before filing a certificate of candidacy for an elective post. It has also been applied to a Filipino who has become a naturalized American, acquired a dual citizenship, and renounced the foreign    citizenship before filing    a certificate of candidacy for a congressional post. This was the case of Rep. Gina Reyes of Marinduque, whom I represent. In Poe’s case, what is determinative is when she renounced her dual citizenship. This is because the rule on “animus revertendi” on residency cannot be applied to a foreign citizen. At most, it can be applied to a Filipino national with permanent residency abroad, or to one who has renounced a foreign citizenship reckoned from date of renunciation.

So for Poe, the crucial question is this: When did she renounce her dual citizenship? This is an issue of fact. I have heard her say that she renounced it when she assumed the post of MTRCB chair. If so, the point of reckoning should be 2010. Assuming she did so in 2010, she would have only 6 years of residency by 2016. Apparently, this is worse than what she declared in her certificate of candidacy for the post of senator.

Any which way, the Supreme Court can now rule on whether estoppel can be applied to the issue of residency. If so, Poe will be disqualified. I hope otherwise because I believe the Filipino electorate is entitled to as many choices possible for the position of Chief Executive.

Good luck, Senator!

Customs Chief Lina under fire for voiding Php 650-M contract won by his firm’s competitor


Press Advisory

 
For reference: Atty. Harry L. Roque, Jr. 09175398096
Roque and Butuyan Law Offices
 
Media friends are invited to attend our press conference this Monday
June 1, 2015, regarding Customs Commissioner Alberto Lina’s decision to cancel
a PhP 650-million contract to establish a new modern integrated customs
processing system and national single window already won by
a competitor of his firm E-KONEK.
Date: June 1, 2015 Monday
Venue: Max Restaurant Orosa St. Malate Manila
Time: 10:30 am

Hypocrisy on the death squads


Mayor Rodrigo Duterte’s recent admission that he has   “ties” with the dreaded Davao Death Squad is old news. Those who know about the killings perpetrated by the death squads also know that somehow, the death squads operate with permission, if not upon orders of the mayor. If at all, his latest admission is warning to one and all about what he intends to do if elected into higher office. To quote the Mayor; “the 1000 (recorded killings) will become 100,000.   You will see bigger fish in Manila Bay because it is there where I will dump their bodies.”

In fact, no one should be surprised with the mayor’s recent statements. The real question is why the PNoy administration, including Secretary De Lima, has, to date, done nothing to investigate, prosecute and punish members of the Davao Death Squad, including the mayor.

As early as 2009 Philip Alston, the then-UN Special Rapporteur on Extra-legal Killings, has called the attention of the country to the malaise of the Davao Death Squad: “the vigilante-style executions that took place almost every day in Davao City was the most troubling development in the extrajudicial killings in the Philippines in the last two years…Reliable information indicates that, in 2008, such killings were almost a daily occurrence in Davao City, jumping from a reported 116 in 2007 to 269 in 2008.

Alston called on the National Police Commission to “withdraw” Duterte’s supervisory powers over the police. He further suggested that the system of having a “watch list” of petty criminals in Davao, the basis apparently for determining whom to kill, should be abolished; and that an independent investigation into the killings should be conducted.

Commenting on Duterte specifically, Alston stated: “Mayor Rodrigo Duterte has done nothing to prevent these killings”.   He noted how Duterte’s public statements suggested “he is, in fact, supportive.” Specifically, Alston cited how Mayor Duterte responded to the reported release of a big-time drug lord in Manila. Alston quoted the mayor as saying: ‘Here in Davao, you can’t go out alive. You can go out, but inside a coffin. Is that what you call extra-judicial killing? Then I will just bring a drug lord to a judge and kill him there, that will no longer be extra-judicial’,”

“The Special Rapporteur is not aware of a single conviction for a death squad killing in Davao. As a result, death squad members operate with complete impunity. Killing for hire is on the rise as death squad members become bold enough to sell their services, and some reports indicate that a killing only costs about 5,000 pesos (about US$ 100),” Alston said.

He also observed,   “Although killings take place in broad daylight, witnesses are not prepared to testify against the perpetrators.”

Alston also warned that the impunity “encouraged death squad killings to sprout up in other cities beyond Davao.” Alston stated: “since 2007, numerous patterns of death squad killings have been reported by media and civil society organizations in other cities in the region such as General Santos City, Digos City, and Tagum City, and even in Cebu, the Philippines’ second largest city.”

So why has the PNoy administration failed to act on the findings of Alston?

Clearly, the reason is that Aquino and his Secretary of Justice simply do not care. This is consistent with the reality that PNoy has not given any priority to the promotion and protection of human rights in the past five years of his administration. This is why I am absolutely disappointed at Leila De Lima. She was once Chairperson of the Commission on Human Rights and should have utilized the vast powers, personnel and resources of the Department of Justice to fulfill the state obligation to protect and promote the right to life. Instead, PNoy and De Lima opted to ignore the recommendations of Alston, specifically on the Davao death squad. It is the height of hypocrisy for De Lima to now belatedly say that Duterte should be held liable for the acts of the death squads. Why did she wait   six years before she manifested a willingness to run after Duterte? And why only after the latter has expressed interest to be President?

International law provides that PNoy and his Secretary of Justice have had the obligation to investigate, punish and prosecute Duterte as soon as they obtained information that he may be in any way connected to the death squads. They have had this information since 2009 when Philip Alston said so. De Lima was then chairman of the CHR and did nothing. PNoy, on the other hand, since Day One of his administration, should have investigated Duterte for these killings, The fact that he failed to do so is a ground for him to incur criminal liability himself under the concept of Superior Responsibility – he knew that Duterte may have been involved, and he did nothing to investigate and prosecute him.

To run after Duterte in time for the 2016 elections adds ignominy to the President’s sin of omission. It also demeans the importance of human rights promotion and degrades it as yet another election issue. This is vintage PNoy.

This article was first published on http://manilastandardtoday.com/2015/05/28/hypocrisy-on-the-death-squads/.

Schizophrenia on boat people II


The Aquino administration has yet another policy schizophrenia on what to do with the Rohingya boat people crisis. Last Monday, newspaper reports quoted Presidential Spokesman Herminio Coloma saying that the Rohingya boat people will be “pushed back to sea.” Coloma made this remark in the context that today’s modern boat people do not possess travel documents. Under existing immigration laws, the country can ordinarily refuse entry to undocumented aliens or those without travel documents.

Then yesterday, another alter ego of the President, Justice Secretary Leila De Lima suggested sending rescue boats to the distraught boat people. According to her, “it would be a good gesture if we send a rescue ship or two along with other Asean neighbors and it should be a concerted effort, a regional action.”   She clarified, however, that this was only a “suggestion” as the issue should be decided by “government officials at the highest level.”

Meanwhile, the Department of Foreign Affairs has issued a statement stating that we have to balance our obligations under our treaty obligations with “our interests, economy and security.” This sounds suspiciously similar to the position of Thailand and Malaysia in refusing entry to today’s boat people.

There should never have been conflicting positions, to begin with. As a party to the 1951 Convention on the Rights of Refugees, we are duty bound to accept and provide humanitarian assistance to those who have crossed national boundaries owing to a well-founded fear of persecution in their homelands. Our duty is to accept them  and we cannot turn them away even if they are illegal refugees. Further, under the  Palermo Convention  and its protocols, we also have the duty to provide for the protection of trafficked persons.

According to the United Nations, the Rohingya Muslims are today among the most “persecuted” minorities in the world. Largely based in Myanmar, the estimated 1.3 million Rohingya Muslims are considered as illegal settlers in the predominantly Buddhist country. Recently, one of the biggest scandals that rocked Thailand was an expose that members of the group are being employed there literally as slaves made to work in exchange for food and lodging.

The problem today is that countries such as Australia and the states constituting the EU have insisted that they cannot afford the material and political costs of admitting modern-day boat people in their territory. Australia has consistently refused entry to boat people opting to process and detain them in an offshore island. The EU, despite its proven commitment to human rights, has also tightened its border controls and has also refused entry to boat people from Africa. The EU now has to contend with the fall-out arising from a sinking of one such boat with at least 700 casualties. Increasingly, more and more countries, Thailand and Malaysia included, have refused entry to refugees precisely on the same grounds mentioned by our DFA, to wit: “national interests, economy and security.”

In fairness to De Lima, she was clear that her opinion to render humanitarian assistance to the modern-day boat people was only a recommendation. This has not prevented UN officials from praising our country for making what in reality, is a non-offer. And while the Justice Secretary appears to be rather influential in this administration since she defied the Supreme Court’s temporary restraining order barring the Executive Branch from preventing the departure of former President Gloria Macapagal-Arroyo early on in PNoy’s term; her recommendations, like her opinion that the CA TRO on the ouster of Mayor Jun Jun Binay as Mayor of Makati, is, to quote her, “merely recommendatory.” In short, we still have to come up with an   official policy on whether we will assist Southeast Asia’s modern boat people.

The Philippines opened its territory in the 1970s to the hordes of Vietnamese people fleeing the repressive communist regime in Hanoi. We did so then out of compliance with our treaty commitments and out of compassion. While we could not accept the Vietnamese as refugees into our territory, we agreed to process them until other countries could accept them as refugees. If we did it then, I see no reason why we cannot do this anew for the Rohingya Muslims.

It’s a cardinal principle under international law that in default of further legal basis, mankind shall continue to be protected by public international law, the dictates of conscience and the laws of humanity. To Asia’s only Christian nation, admitting today’s boat people is to walk the talk that Christians will give   homes to the homeless.

Let’s hope PNoy finds the heart to walk the talk.

She’s alive!


The nation is in celebration mode. Who ever thought that one woman would have such a uniting effect on our people? Mary Jane Veloso, formerly part of the faceless and nameless Filipino diaspora, is now in the hearts and minds of every Filipino. And for good reason. She represents the modern-day Filipino who was forced by economic hardship to seek employment abroad, was apparently duped, made into a drug mule, and has landed in Indonesian death row for it. And to those who have doubts on the power of prayers- think again. For in the final analysis, it could only have been the prayers of the nation that saved her from the firing squad.

But the reprieve is just that—temporary. What should make it permanent for Mary Jane is to apprehend the people behind the drug syndicate preying on the hardships of others in making them modern-day drug mules. Unless we can prove that Mary Jane’s only fault was to agree to carry that suit case to alleviate her hardship, she may find herself back again before the firing squad.

Government should hopefully also learn from this experience. Despite Flor Contemplacion and the other drug mules already put to death in China, government apparently has not learned it lessons.

First, we need to modernize and rejuvenate our consular personnel. Our humble contribution in saving Mary Jane was an Application with prayer for provisional measures, which we hope would be filed with the International Court of Justice. The ground for it is rather unique—breach of the Vienna Convention on Consular Relations. Under this Treaty, the nearest Philippine consular official should have been informed of the arrest and investigation of Veloso at the outset, and not when the case was already in Court. Although seemingly trite, it was this reason that prompted the International Court of Justice to issue provisional measures directing the United States not to proceed with the implementation of the death penalty against Mexican and German nationals in the case of Mexico and Germany vs. United States, that is referred to as the “Avena” case.

Here, the government should learn that with a diaspora of 11 million Filipinos working overseas, we should have a dynamic and well-funded consular service in every state where there is an OFW. If only because the sweat, blood and tears of our OFWs have kept us economically afloat, we owe it to them that our consuls should have the resources to invoke violations of the Vienna Convention as a ground for vacating judgments against our nationals. Moreover, it is absolutely unacceptable that Mary Jane faced trial being defended by pro-bono counsel. The DFA must have sufficient legal funds to retain the best possible lawyers in foreign jurisdictions to defend our OFWs. This is   investing on the goose that has been laying the golden eggs for us. No ifs, no buts. It was wrong that our embassy paid for Mary Jane’s counsel only after she had been found guilty.

With other nationals also facing the death penalty worldwide, we should also now be at the forefront of the struggle to abolish the death penalty worldwide. We are in the best position for this since we too had the death penalty until recently. Perhaps we should focus on the drug syndicates preying on the hardship of our people and using them as drug mules as the theme for our campaign.  Perhaps we should highlight that the drug syndicates are the real criminals, and not the drug mules.

Perhaps the biggest lesson that government should heed is: DO NOT WAIT FOR THE ABSOLUTE LAST MINUTE. If you’re going to call in favors and spend goodwill, you might as well do it as early as possible. We might not be as lucky the next time.

Babes Romualdes and I appeared in Malou Tiquia’s new debate program on CNN Philippines. The topic was whether the Philippines’ diplomatic efforts have been sufficient in resolving the West Philippines Sea dispute. I didn’t feel that I was in debate since Babes appears to be in agreement with me on every point that I raised. For instance, I said the problem was not whether diplomatic initiatives have been exhausted. Instead, I argued that the problem is we do not have a concrete policy on the West Philippine Sea, to begin with. I recalled the time when the DFA was split on whether we should resort to arbitration. The policy group thought that arbitration was mutually exclusive with diplomatic initiatives since China, culturally, allegedly does not want to be sued. The maritime group, which prevailed, thought that arbitration was the lone remedy since we cannot continue to negotiate with a superpower that has a gun pointed at our heads. In reality, a concrete policy on how to deal with China should have told us that the Chinese antipathy against all sorts of litigation is a farce given the many cases that it has filed to date with the World Trade Organization. Likewise, a coherent policy would have made us realize that running to Uncle Sam at every opportunity has only further muddled the issue since China today does not eve recognize us as a party to the dispute. In their minds, we are nothing but stooges for the Americans.

Babes wrote about a reader allegedly complaining about persons like me who will talk against the Americans but seemingly oblivious against China. Babes: tell your friend that I am not such a person. All he has to do is to check out my many writings against the Chinese on this issue.

I am a Filipino and will of course only espouse the Filipino interest.

Draft copy of the Veloso petition to the ICJ


I gave this to Vice President Jejomar Binay so that the VP can get the concurrence of President Benigno Aquino. To date, there is no news if the VP has obtained PNoy’s concurrence.

INTERNATIONAL COURT OF JUSTICE

APPLICATION

INSTITUTING PROCEEDINGS

filed in the Registry of the Court on 28 April 2015

VELOSO CASE

(Republic of the Philippines v. Republic of Indonesia)

____________________________________

  1. THE AMBASSADOR OF THE REPUBLIC OF THE PHILIPPINES TO THE NETHERLANDS, FOR THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

The Hague, 28 April 2015

Following instructions of my Government, I am most pleased to submit to the esteemed Court an Application as well as an Urgent Request for Provisional Measures of the Republic of the Philippines pursuant to Articles 40 and 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court against the Republic of Indonesia for violations of the Vienna Convention on Consular Relations and the Convention on the Elimination of All Forms of Discrimination against Women.

The request for provisional measures is extremely urgent, as the execution of 30-year old Philippine national Ms. Mary Jane Fiesta Veloso, mother of two children, set to take place today on or around 1800 hours (Manila time) at Nusakambangan – known as Indonesia’s execution island – would deprive both this Court and the Republic of the Philippines of the opportunity to have the case decided on its merits.

(Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For: Mr. Philippe Couvreur

Registrar

International Court of Justice

Peace Palace, The Hague

The Netherlands

Sir:

On behalf of the Republic of the Philippines and pursuant to Article 40 (1) of the Statute of the International Court of Justice, and Article 38 of the Rules of Court of the ICJ, may I respectfully submit this Application instituting proceedings in the name of the Government of the Republic of the Philippines against the Government of the Republic of Indonesia for violations of the Vienna Convention on Consular Relations of 1963 (hereinafter the “Vienna Convention”) as well as of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).

  1. Preliminary Statement
  1. A national of the Republic of the Philippines was arrested, detained, tried and sentenced to die by musketry following criminal proceedings in the Republic of Indonesia involving alleged drug trafficking. The sentencing of the Philippine national was conducted in violation of Article 36 (1) (b) of the Vienna Convention, when the Indonesian authorities failed to notify the Philippine government of the arrest and detention of the latter’s national.
  1. Moreover, the death convict, Ms. Mary Jane Fiesta Veloso, a 30-year old Filipina mother of two children, was by any account, a victim of human trafficking; this however, was not taken into consideration by the courts of the Republic of Indonesia, despite its obligations under Article 6 of the CEDAW to ensure that victims of human trafficking, are not doubly victimized by being made to suffer as offenders when in truth and in fact, because of their vulnerable condition, they were merely tricked by others into committing the offense through false pretenses or false promises of economic gain.
  1. The Republic of Indonesia’s violation of the Vienna Convention prevented the Republic of the Philippines from exercising its rights and from accordingly performing its consular functions and duties to its distressed national pursuant to the Vienna Convention. The Republic of the Philippines suffered injuries both from that of its national, and on its own capacity.
  1. Moreover, the failure of the Republic of Indonesia to abide by its obligations under Article 6 of the CEDAW has deprived a national of the Republic of the Philippines of entitlements and protections under the same Convention.
  1. The Philippine national on death row is scheduled for execution just around midnight today at The Hague– a fact which makes this Application and Request for Provisional Measures all the more urgent. The Republic of the Philippines has requested for clemency, following repeated diplomatic representations by it and others – including the UN Secretary General Ban-Ki Moon –with the Indonesian government.
  1. In addition, just a few days ago – at the intervention of Philippine authorities and civil society groups – a second appeal was filed on behalf of Ms. Veloso, this time indicating mitigating circumstances, including her being a victim of human trafficking. Notwithstanding these efforts, authorities of the Republic of Indonesia have consistently refused to provide her remedy or relief.
  1. The Philippine government’s diplomatic protests deal for the most part with cases in which its nationals face capital punishment. This is due, in part, to Philippine’s strong interest in protecting the lives of its nationals and its belief that those countries that apply the death penalty must rigorously adhere to due process. In addition, as noted above, it is the Philippine’s experience that the involvement of consular officers can make the difference between life and death for a Filipino national facing capital offense charges.
  1. The Republic of the Philippines respectfully requests that the Court order provisionally, an injunction against the execution of Philippine national Ms. Mary Jane Fiesta Veloso, while this case is being heard by the Court.
  1. The Republic of the Philippines also respectfully requests that the Court order restitutio in integrum, or a “re-establishment of the situation which would, in all probability, have existed if the violations had not been committed” (Factory at Chorzów (Claim for Indemnity), Merits, Judgment of 13 September 1928, P.C.I.J., Series A, No. 17, p. 47).
  • Further, the Republic of the Philippines requests that the Court order prospective relief necessary and sufficient to ensure that the pattern and practice of violations of Article 36 of the Vienna Convention by the Republic of Indonesia ceases.
  1. Jurisdiction of the Court
  1. Under Article 36, paragraph 1, of the Statute of the Court provides that, “[t]he jurisdiction of the Court comprises . . . all matters specially provided for . . . in treaties and conventions in force”.
  • As Members of the United Nations, the Republic of the Philippines and the Republic of Indonesia are parties to the Statute. They are also parties to the Vienna Convention. The Republic of the Philippines is also a party to the Optional Protocol concerning the Compulsory Settlement of Disputes. Article I of the Optional Protocol provides: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
  • Moreover, both the Republic of the Philippines and the Republic of Indonesia are parties to the CEDAW. In this connection, the Republic of Indonesia itself has made a declaration in respect of the provisions of the CEDAW that it “does not consider itself bound by the provisions of article 29, paragraph 1 of this Convention and takes the position that any dispute relating to the interpretation or application of the Convention may only be submitted to arbitration or to the International Court of Justice with the agreement of all the parties to the dispute.”
  • Upon the filing of the present application, the matters in dispute between the Republic of the Philippines and the Republic of Indonesia concerning the Vienna Convention and the CEDAW therefore lie within the compulsory jurisdiction of the Court.
  • Facts of the Case
  • Veloso was born to a poor family in Nueva Ecija, a province some 200 kilometers northeast of Manila. The youngest of five children, she barely had an education, making it only to first year high school. She married at the age of 17 and had two children by her husband. Her marriage however did not last long.
  • Wanting to help her family rise from abject poverty, she decided to work abroad as a domestic helper on a promise of assistance by an acquaintance, a certain Ma. Kristina Sergio. Ms. Sergio’s partner, Mr. Julius Lacanilao, is said to be friend to Ms. Veloso’s family.
  1. In April 2010, Ms. Sergio and Mr. Juliano promised Ms. Veloso a job as a domestic helper in Malaysia in exchange for her payment of a tricycle, a mobile phone and 7,000 Philippine pesos.
  • That same month, Ms. Sergio and Ms. Veloso flew to Kuala Lumpur. There, they met a certain Ike, an African of a yet unidentified nationality and an acquaintance of Ms. Sergio’s partner.
  1. Sergio and Ike asked Ms. Veloso to make a side trip to Indonesia to meet with someone, with a promise that she will get her job as a domestic helper upon her return to Kuala Lumpur.
  1. On 24 April 2010, she and Ms. Sergio met with Ike, who handed Ms. Veloso a traveling bag. When Ms. Veloso remarked that the bag, though empty, appeared to be heavy, Ms. Sergio told her it was merely because the bag was new.
  • Sergio also gave her 500 US dollars and a number to call upon arriving in Indonesia.
  1. On 25 April 2015, Ms. Veloso flew to Yogyakarta’s Adisucipto airport. At a security check at the airport, she was arrested by Indonesian airport police after 2.6 kilograms of heroin were found in her luggage. At the time of her arrest, Ms. Veloso was 25 years old.
  1. During initial interrogation by the police, Ms. Veloso was identified to be a Filipino citizen. Despite this clear indication of foreign nationality, competent authorities failed to inform her of her rights to consular assistance under Article 36, subparagraph 1 (b), of the Vienna Convention. Not having been apprised of these rights, Ms. Veloso could not and did not exercise them before his trial and sentencing.
  1. During the trial from April 25, 2010 to October 2010, Ms. Veloso was denied her right to due process and a fair trial.
  1. First, during her interrogation conducted by Indonesian police in Bahasa Indonesia, a language she neither spoke nor understood at that time, she was not afforded a lawyer or a translator. She was left to her own devices to understand and answer the questions propounded to her by Indonesian police investigators.
  1. Second, at trial, the court-provided interpreter – only a student at a foreign language school in Yogyakarta who was not licensed by the Association of Indonesian Translators – translated the proceedings from Bahasa Indonesia to English, a language with which Ms. Veloso was not conversant.
  1. Third, because of the failure of Indonesian authorities to inform Philippine consular authorities of her situation, Ms. Veloso did not have access to a Philippine-nominated lawyer who could give her proper legal advice in regard to her case. All that she had to defend her was a public defender provided by the police, who failed to raise any Convention-based arguments in direct appeal and state post-judgment proceedings on her behalf.
  1. On October 2010, after only six months of trial, Ms. Veloso was convicted and sentenced to die by firing squad. Ms. Veloso’s appeals of the conviction and sentence were denied.
  1. Having been uninformed until that time of Ms. Veloso’s situation, the Republic of the Philippines was unable to exercise its right to provide consular assistance to her at the trial and direct appeal levels. However, upon belatedly learning of his situation, Filipino consular authorities began rendering assistance, legal and otherwise, to Ms. Veloso.
  1. Efforts of the Republic of the Philippines to Prevent the Carrying Out of the Death     Sentence on Ms. Veloso

 

  1. Thus in August 2011, Philippine President Benigno S. Aquino III submitted an appeal for clemency on behalf of Ms. Veloso to then Indonesian President Susilo Bambang Yudhoyono. At the time however, as Indonesia had a moratorium on executions, the clemency request was not acted upon.
  • In October 2014, a new Indonesian president, Jokowi Widodo, was sworn into office. President Widodo however, was not inclined to grant requests for clemency for drug traffickers on death row, noting the serious illegal drug situation in Indonesia.
  1. In January 2015, President Widodo rejected a new round of clemency appeals including that made for Ms. Veloso.
  1. Last Friday, 24 April 2015, a second appeal was filed with the Sieman District Court in the Republic of Indonesia, arguing that Ms. Veloso was a victim of human trafficking who should not have been prosecuted for a crime she knew nothing about.
  1. The second appeal pointed to evidence recently provided by the Philippine Drug Enforcement Agency that Ms. Veloso had fallen victim to an international criminal drug syndicate, unwittingly becoming a “drug mule”.
  1. Yesterday, 27 April 2015, the Sieman District Court rejected the second appeal.
  1. Also yesterday morning, President Aquino met for a few minutes with President Widodo on the sidelines of the 26th Association of Southeast Asian Nations in Kuala Lumpur to discuss Ms. Veloso’s case. Media reports said the Indonesian President promised his Philippine counterpart that he will look again into Ms. Veloso’s case.
  1. However, time is running out on Ms. Veloso, with little or no hope that President Widodo will grant her clemency.
  1. The Republic of the Philippines does not seek to bar the Republic of Indonesia from enforcing its criminal law. However, it contends that the competent authorities of the Republic of Indonesia must enforce its criminal law by means that comport with the obligations it has undertaken to fulfill in the Vienna Convention and in the CEDAW.
  1. Convention Violations by Indonesia
  1. The Vienna Convention requires authorities of the receiving State to inform any foreign national of the sending State “in prison, custody or detention” (Vienna Convention, Art. 36 (1) (c)), “without delay of his rights” to contact his consulate (ibid., Art. 36 (1) (b)). Then, if the detained foreign national so requests, the Vienna Convention requires the competent authorities of the receiving State to inform the national’s consulate without delay (ibid.). By arresting, detaining, trying, convicting, and sentencing Ms. Veloso without advising her of her Article 36 rights, Indonesia has violated its obligations under the Vienna Convention.
  1. The Vienna Convention mandates that the laws of each State party enable “full effect to be given to the purposes for which” the rights set forth in Article 36 of the Vienna Convention “are intended” (Vienna Convention, Art. 36 (2)). By failing to “enable full effect to be given” to the Philippine’s rights and those of its nationals under Article 36 of the Vienna Convention and by refusing to provide a meaningful mechanism for review and reconsideration as well as a meaningful remedy at law of the convictions and sentences imposed on Filipino nationals in proceedings that failed to respect those rights, Indonesia has violated, and continues to violate, its obligations under the Vienna Convention.
  • The Vienna Convention on the Law of Treaties (done on 23 May 1963), which codifies the customary international law of treaties, sets forth two axiomatic principles: First, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (ibid., Art. 26). Second, “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (ibid., Art. 27). The Republic of Indonesia, by failing to perform its obligations under Article 36 of the Vienna Convention, and by invoking the provisions of its internal law to defeat rights granted to the Republic of the Philippines and its nationals by the Vienna Convention, has violated, and continues to violate, both of these principles.
  1. Competent authorities of Indonesia failed timely to notify Ms. Veloso of her right to consular assistance under the Vienna Convention. This failure deprived a Philippine national of her rights and precluded the Philippines from exercising its rights and performing its consular functions pursuant to Articles5 and 36, respectively, of the Convention. As emphasized, consular assistance almost invariably affects the result of criminal proceedings brought against its nationals, particularly in cases in which prosecutors seek to impose a sentence of death. By violating Article 36 of the Vienna Convention, the Republic of Indonesia prevented the Republic of the Philippines from rendering consular assistance that could have prevented the convictions and death sentences.
  1. Restitutio in integrum requires the Republic of Indonesia to immediately re-establish the situation which existed before the violations to Article 36 of the Vienna Convention were committed. The Republic of the Philippines believes that restitutio in integrum in these cases is materially possible and does not involve a burden out of all proportion to Indonesia, taking into account the fundamental importance of human life.
  1. Moreover, Article 6 of the CEDAW provides that:

States Parties shall take all appropriate measures, including legislation,    to suppress all forms of traffic in women and exploitation of    prostitution of women.

  1. These measures, with respect to the Republic of Indonesia, include ensuring that victims of human trafficking are protected and are not doubly victimized through prosecution as offenders, and affording judicial protection to women who, while in a position of vulnerability, are recruited by fraud or deception, with promises of payments or benefits, for the purpose of exploitation. Finally, these also include an enabling environment for trafficking victims to comfortably access assistance and services, and where trafficking victims are treated with respect and dignity and are provided with the services they require.
  1. The Republic of Indonesia violated Article 6 of the CEDAW in its treatment of Ms. Veloso’s case, by treating her as an offender rather than as a victim of human trafficking , and failing to afford her the judicial, legislative and executive protections she is entitled to under the CEDAW.
  1. The Claims of the Philippine Government
  1. In accordance with Article 36, subparagraph 1 (b), of the Vienna Convention, the Republic of Indonesia is under the international legal obligation to the Republic of the Philippinesto inform “without delay” any Filipino national who is “arrested or committed to prison or to custody pending trial or is detained in any other manner” of his rights under that subparagraph (La Grand, Judgment of 27 June 2001, para. 77). These rights include:
  • The right, if the national arrested or detained so requests, to have the competent authorities of the receiving State inform the local consular post of the sending State that that State’s national has been so arrested or committed to prison or to custody pending trial or detained in any other manner;
  • The right to have the competent authorities of the receiving State forward any communication “addressed to the consular post from the person arrested, in prison, custody or detention . . . without delay”.
  1. The Republic of Indonesia has violated these obligations with respect to Ms. Veloso who is currently on death row.
  1. Pursuant to Article 36 of the Vienna Convention, the Republic of Indonesia is under an international legal obligation to ensure that the Republic of the Philippines can communicate with and assist an arrested national prior to trial. By failing to notify Ms. Veloso of her rights under Article36, subparagraph 1 (b), of the Vienna Convention, Indonesia has prevented the Philippines from exercising its right to carry out consular functions pursuant to Articles 5 and 36 of the Convention. Indonesia therefore has violated this obligation.
  1. Pursuant to Article 36, paragraph 2, of the Vienna Convention and Article 26 of the Vienna Convention on the Law of Treaties (done on 23 May 1969), which codifies customary international law, the Republic of Indonesia is under an international legal obligation to ensure that its municipal law and regulations enable “full effect [to be given] to the purposes for which the rights accorded under [Article 36] are intended”. (See also Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 4.)
  • Pursuant to Article 6 of the CEDAW, the Republic of Indonesia is under an international legal obligation to ensure that Ms. Veloso, as a victim of human trafficking is given effective protection and assistance through the necessary judicial, legislative and executive mechanisms, so that she suffers no further victimization.
  1. For the reasons set forth in this Application, the municipal law of the Republic of Indonesia fails to give full effect to the rights afforded by Article 36 of the Vienna Convention and precludes the Republic of the Philippines and its nationals from vindicating those rights by law in any meaningful way, as well as to the rights afforded by Article 6 of the CEDAW. The Republic of Indonesia therefore has violated, and continues to violate, the above-mentioned international legal obligations it owed to the Republic of the Philippines.

VII.  Judgment Requested

  1. The Government of the Republic of the Philippines therefore asks the Court to adjudge and declare:
  • That the Republic of Indonesia, in arresting, detaining, trying, convicting, and sentencing Ms. Veloso to death row described in this Application, violated its international legal obligations to the Republic of the Philippines, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;
  • that the Republic of the Philippines is therefore entitled to restitutio in integrum and to reparations for the breach by the Republic of Indonesia of its obligations under international law;
  • that the Republic of Indonesia is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;
  • that the Republic of Indonesia is under an international legal obligation not to carry out the sentence of death by musketry on Ms. Veloso, pursuant to Article 6 of the CEDAW, which provides judicial protection to a victim of human trafficking from further victimization through criminal prosecution, and to annul and reverse her conviction, and to forthwith cause her repatriation to the Republic of the Philippines;
  • that the Republic of Indonesia is under an international legal obligation not to carry out, in conformity with the foregoing international legal obligations, any future detention of or criminal proceedings against Ms. Veloso on death row or any other Philippine national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the Republic of Indonesia, and whether that power’s functions are international or internal in character;
  • That the right to consular notification under the Vienna Convention is a human right;

and that, pursuant to the foregoing international legal obligations,

  • The Republic of Indonesia must restore the status quo ante, that is, re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Ms. Veloso in violation of the its international legal obligations;
  • The Republic of Indonesia must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;
  • The Republic of Indonesia must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to the Philippines and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure to timely raise a claim or defense based on the Vienna Convention where competent authorities of the Indonesia breached their obligation to advise the national of his or her rights under the Convention; and
  • The Republic of Indonesia must take the steps necessary and sufficient to afford all the protections that Ms. Mary Jane Fiesa Veloso is entitled to under Article 6 of the CEDAW, including, but not limited to, her immediate release from prison and the annulment of her conviction for drug trafficking, as well as her repatriation to the Republic of the Philippines.
  • The Republic of Indonesia in light of the pattern and practice of violations set forth in this Application, must provide the Republic of the Philippines with satisfaction by way of a full guarantee of the non-repetition of the illegal acts mentioned.

VIII. The Appointment of a Judge Ad Hoc

  1. In accordance with the provisions of Article 31 (2), of the Statute and Article 35, paragraph 1, of the Rules, the Government of the Republic of the Philippines declares its intention to exercise its right to choose a judge ad hoc.
  1. Reservation of Rights

 

  1. The Government of the Republic of the Philippines reserves the right to modify and extend the terms of this Application and Request, as well as the grounds invoked.

 

  1. Provisional Measures
  1. The Government of the Republic of the Philippines requests that the Court indicate interim measures of protection, such as an injunction against the execution of Ms. Mary Jane F. Veloso.
  1. At the heart of any claim to human rights is the centrality and sanctity of an individual human life; indeed, every human being has the inherent right to life and this right shall be protected by law, as Article 6 of the International Covenant on Civil and Political Rights provides. All other rights proceed from this core human right.
  1. The grave and exceptional circumstances of this case, and given the paramount interest of the Republic of the Philippines in the life and liberty of its nationals, provisional measures are urgently needed to protect the life of Filipino national, Ms. Mary Jane Fiesta Veloso as well as the ability of this esteemed Court to order the relief to which the Republic of the Philippines is entitled to, in particular, the restoration of the status quo ante.
  1. Without the provisional measures requested, the Republic of Indonesia will execute Ms. Veloso before this Court can consider the merits of the claims propounded by the Republic of the Philippines; if the execution of the Death Sentence pronounced upon Ms. Veloso by the Republic of Indonesia is not stayed, the Republic of the Philippines will be forever deprived of the opportunity to have the status quo ante restored in the event of a judgment in its favor.
  1. On behalf of the Government of the Republic of the Philippines, I therefore respectfully request that, pending final judgment in this case, the Court indicate that:

The Republic of Indonesia shall take all measures at its disposal to              ensure that Ms. Mary Jane Fiesta Veloso is not executed pending               the final decision in these proceedings, and should inform the Court of           all the      measures which it has taken in implementation of that Order.

  • Given the extreme gravity and immediacy of the threat that authorities in the Republic of Indonesia will execute a Filipino citizen in violation of obligations it owes to the Republic of the Philippines, the Republic of the Philippines respectfully asks the Court to treat this request as a matter of the greatest urgency.
  1. The Government of the Republic of the Philippines has authorized the undersigned to appear before the Court in any proceedings or hearings relating to this Application and Request that the Court may convene in accordance with the Rules of the Court, with reservations to appoint co-agents and co-counsels as may soon be practicable under the circumstances.

The Hague, 28 April 2015.

                              Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For the soft copy, please click Application.PHvIndonesiav2

Laude Petition for Media Coverage filed at SC


Marilou Laude, sister of Jennifer Laude, filed a Petition on April 24, 2015 at the Supreme Court to Allow the Members of the Media to enter the Courtroom and to Attend the On-going Trial of L/Corporal Joseph Scott Pemberton before the Olongapo RTC.

Please click SC_ Petition for Media Coverage (Laude) for the copy of the petition.

Has our Commission on Human Rights made a difference?


Hanoi, Vietnam—I am in the capital of Vietnam as a resource person in a seminar on “National Human Rights Commissions: Experiences from the Region” sponsored by the Konrad Adenauer Stiftung. I accepted the invitation because of a long desire to evaluate the affectivity of our own Commission of Human Rights since its establishment through the 1987 Constitution 28 years ago. This invitation finally gave me to the opportunity to finally conduct this long-delayed study.

The starting point has to be the very high expectations of the people that the CHR will help promote and protect human rights in the country when they created it in the Constitution itself. Its first head, Chairperson Mary Bautista, should be credited for safeguarding the independence of the constitutional body from political interference. Congress then took the appointment of the Chair and the Commissioners of the Commission should be submitted for conformation to the Commission on Appointments. Rightfully so, the Supreme Court ruled that Chairperson Bautista and her commissioners were not among those public officers whose appointments needed confirmation by Congress. This insulated the chair and members of the Commission from political interference.

The Constitution enumerates the powers of the Commission. These include the power to investigate, the power to issue summons, cite in contempt and power to ask assistance from any branch of government. Here, we have a serious obstacle in the task of evaluating the performance of the Commission. For while the courts and the DOJ whose performance may be measured in terms of case disposal and/ or its conviction rate, the CHR can only investigate but has no power to prosecute.

In the case of Carino vs. Commission of Human Rights, the Supreme Court defined the full extent of the Commissions’ investigative powers: “The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have.”

It is this lack of prosecutorial powers that leads to the perception that the CHR has not lived up to the public’s expectations. In fact, while the Commission’s mandate to investigate is provided in the Constitution itself, its findings are not binding on the prosecutor whose functions are only spelled out in the Administrative Code. This means that despite the constitutional mandate of the commission, the prosecutor can completely ignore the findings of the commission. Current practice is to treat complaints filed by the CHR only as complaints similar to those filed by police agencies or the victims directly. Prosecutors do not even accord the Constitutional Commission any presumption of regularity in their findings that there is a violation of human rights in a given case.

I have personal experience in this regard. I filed  complaints of multiple murders for the so-called Tanauan massacre, a CHR investigation, where police agents killed a Barangay Captain and his family allegedly because the victims were the suspects in the RCBC Tanauan robbery who allegedly engaged police authorities in a gun fight. The forensic evidence showed that all the shots fired came from outside the house and directed at the victims who were inside the house. The conclusion thus is that there was no gunfight: only a police massacre. And yet despite this forensics evidence,  the public prosecutor refused to file the information against the police. Ironically, the case happened when DOJ’s Leila De Lima was CHR chairperson. To date, the Petition for Review to compel the filing of the information for murder has gathered dust in the office of Secretary De Lima.

The CHR’s lack of prosecutorial powers means that its effectiveness cannot be measured in terms of number of convictions arising from its investigations. Instead, we can only measure how many investigations it has conducted from the complaints that it had received from the public. Moreover, the only other measure possible is how many of the cases it has investigated have actually resulted in cases filed in court.

My initial findings are startling. It appears that while the CHR’s visibility depends on the news worthiness of its Chair, which peaked when De Lima was its Chair, this public perception has no relation whatsoever in the agencies effectiveness. Note the statistics: From 1999-2004 the number investigations averaged approximately 81 percent of complaints filed, with a record high of approximately 99 percent in 2001.

Recently, however, the percentage of complaints investigated has considerably decreased. From 2007-2013, the average is only approximately 38 percent of complaints filed with the CHR, with a record low of 16 percent in 2012.

Out of the complaints investigated, however, the percentage of cases filed for prosecution or administrative action has remained consistent, albeit hovering around an average of 41.75 percent through the years 1997-2013, reaching 88 percent in 2012, the highest yet.

Simply put, while De Lima gained national attention during her stint at CHR, the Commission’s performance substantially declined during her term. Fortunately, the CHR recovered reaching the highest percentage of their investigations resulting in administrative cases or cases  filed in court under its current Chair, my very good friend Etta Rosales.

What conclusion can we derive from the statistics? Well, apparently, the CHR did very well when led by either criminal litigators or by human rights advocates. The CHR’s prime were during the leadership of Mary Bautista, a criminal litigator, Aurora Recina, a former Judge and Prosecutor, Dr. Purificacion Quisumbing, an internationally recognized expert in human rights, and and Etta Rosales, a veteran human rights activist.

It was at its worst when led by an election lawyer.

This post first appeared in http://manilastandardtoday.com/2015/04/23/has-our-commission-on-human-rights-made-a-difference-/

The US and the Spratlys


President Barack Obama’s latest declaration that China is bullying smaller countries, including the Philippines and Vietnam, on the West Philippines Sea issue is the strongest American expression of concern over China’s expansionist conduct in the disputed area.  While Philippine and Vietnamese authorities are euphoric with Obama’s latest statement, it still has to be seen if the US is able and ready to counter Chinese imperialism in the West Philippine Sea.

The US policy now appears to be more cautious in dealing with China on this issue. But unlike its unequivocal policy that it will come to the assistance of Japan if China were to attack Senkaku Island, America’s current policy of taking a neutral position on the unresolved territorial disputes in the area appears unchanged.

The US position is because its national policy and interest in the West Philippine Sea remains unchanged. Since it “purchased” the Philippine Archipelago in 1899 from Spain, it has maintained that the metes and bounds of the Treaty of Paris refer only to land territories. This of course is inaccurate given that what was allegedly ceded by Spain to it was an archipelago, or a unity of land and water forming a united whole. Obviously, the Treaty of Paris is a Treaty of cession over both land and water territory.

In any case, the US has never advanced a claim either to any island or waters in the disputed Spratlys group of islands. In fact, in 1933, when France publicly laid a claim to the disputed area, only Japan, China, and even the United Kingdom issued formal protests, the latter on the ground that the islands were discovered by a British national and hence, its English name. This means that the US, since the inception of the controversy, has only been concerned about the freedom of navigation in the area, which today, is the second busiest sea-lane in the world. Almost all of the oil supply of China, Japan and the US coming from the Middle East passes through the area from the Gulf of Aden. This is why the latest expression of concern emanating from Obama should only be read in the context of the US national interest in the region, that is, to maintain freedom of navigation in the disputed and dangerous waters of the West Philippine Sea.

Related to the Obama expression of concern is the report by veteran journalists from Vera Files that through a note verbale, the Aquino administration has offered to drop the Philippines claim to Sabah in exchange for Malaysia’s support for the Philippines in its on-going spat with China on the West Philippines Sea.

To begin with, such a policy is wrong. This is because whether or not Malaysia wants to stand up to China, it simply has to. Recently, China has also been claiming areas very proximate to Malaysia as forming part of its territory. In any case, Malaysia is also among the five country claimants to the Spratlys group of islands. In other words, the Philippine government need not offer a quid pro quo for Malaysia’s support because the latter also has a legal interest in the controversy.

But the bigger legal issue arising from the note verbale is whether President Aquino, or any President for that matter, could renounce our claim to Sabah.

I am of the belief, since the proceeding of the Constitutional Commission is clear that Art 1 Section 1 of the 1987 Constitution contemplates that we continue to have title over Sabah. Through a referendum, we can surrender this claim. The President has no legal authority to do this alone. This is a high crime since it cedes part of the national territory to a foreign power.

The other troubling aspect that arose from the incident is a statement form Justice Secretary Leila De Lima who, for all intents and purposes, threatened Vera Files with criminal action since the publication of the note verabale was allegedly illegal. In this regard, I am reproducing a portion of the statement of the Center for International Law, which I chair, relevant to press freedom:

“We take exception to the veiled threat in the statement made yesterday by Secretary Leila De Lima that the Vera Files special report on a recent Note Verbale given by the Philippines to Malaysia over the Spratlys islands concerned a confidential matter that should have been kept as it is.

“In the first place, our Justice Secretary should be first to know that such a threat is in the nature of prior restraint with a chilling effect on speech, as held by the Supreme Court in the case filed by the late former Solicitor General Francisco Chavez against a predecessor of hers at the DOJ, the late Raul Gonzales.

“A mere press statement of a threat of prosecution coming from a government functionary, according to this 2008 Supreme Court decision, is unconstitutional precisely for that reason.

“As a former head of the Commission on Human Rights, we expect her to understand that Vera Files is simply doing what journalists ought to do well: report on matters of public interest, especially one where the integrity of the national territory of the Philippines is at stake, so that the citizens are properly apprised of the issues involved.”

Binay prevails


Kudos to Makati City Mayor Jun-Jun Binay for winning his legal battle against DILG’s Mar Roxas and the Office of the Ombudsman. Just last Monday, the Court of Appeals made permanent its earlier temporary restraining order which seeks to maintain the status quo. This time, the Appeals Court clarified that the status quo meant the situation prior to the service of the Ombudsman’s suspension order on the Mayor. This removes any and all doubts that the CA intended to maintain Mayor Binay in office despite the Ombudsman’s suspension order. This hence debunks the view of Justice Secretary Leila De Lima, who earlier opined that the CA’s TRO was moot and academic because meanwhile, the suspension order had allegedly already been served.

 I admittedly am not a big fan of the Philippine legal system. There’s the dismal 1-percent conviction rate for extra-legal killings before Philippine courts. There is the longest period of time in the world by which cases are heard by the courts, an average of five to seven years. There too is the perception of corruption amongst the ranks of public prosecutors and judges. But all told, the decision of the CA granting Mayor Binay injunctive relief was well-reasoned and consistent with jurisprudence. In brief, the CA ruled that since Mayor Binay had already been re-elected after the so-called City Hall Annex scam, all of his administrative liability, if any, is deemed extinguished by reason of his re-election. This is the principle of “condonation” and is premised on the fact that the people are sovereign. This is not a novel theory having been first recognized by the Supreme Court in the case of former Cagayan Governor Aguinaldo, and reiterated in the cases involving Governors Garcia and Salalima, all of whom were sought to be suspended similarly as Binay. This is why the principle is referred to as the “Aguinaldo rule”. The logic of the principle is that since the electorate decides who will serve them in an elective capacity, an erring official who has been re-elected is deemed “forgiven” by his constituents when despite the administrative lapse, he is re-elected. The Ombudsman’s position, mirrored by De Lima, is that the office has plenary powers to suspend officials which according to its legislative charter, is immediately executory and not subject to injunction. Here, the CA reasoned that there’s a difference between a suspension by way of penalty meted by the Ombudsman, and a preventive suspension preparatory to an administrative investigation. The former is immediately executory and not subject to injunctive relief. The latter though, and this is the suspension meted on Binay, is subject to judicial review. I find myself in accord with the line of reasoning adopted by the CA. In fact, in a case that I personally argued before the Supreme Court which sought to restraint the House leadership from filing an impeachment complaint against then-Chief Justice Hilario Davide, the Supreme Court, through the incumbent Ombudsman, ruled that our Court’s certiorari powers under the 1987 Constitution have  “cut the umbilical cord” between Philippine and  American jurisprudence. While American courts can opt to exercise judicial restraint, Philippine courts, under the 1987 Constitution, must decide cases involving alleged grave abuse of discretion amounting to lack of jurisdiction. This means that our courts must always exercise jurisdiction where there is an allegation of grave abuse of discretion. This was the allegation of Mayor Binay and hence, the duty of the Court of Appeals to decide. The victory is temporary. In fact, the Supreme Court has already scheduled oral arguments on the petition of the Ombudsman against the CA’s order. What appears to be going in favor of Mayor Binay is the fact that the Ombudsman sought but was denied injunctive relief to restraint the CA from restraining the office from suspending Mayor Binay. The Court’s refusal to issue a TRO, although not a ruling on the merit, nonetheless is tantamount to recognizing the validity of the CA’s actions thus far. While the odds are still against Mayor Binay since the Ombudsman was a former colleague of the incumbent Justices of the Supreme Court, the latters denial of the former’s prayer for TRO is recognition that there is no urgency nor an irreparable injury in the event the CA is not restrained. Congratulations are this in order to Mayor Binay and his legal team! ** ** Congratulations too to the UP Law’s Moot Court team that won the world championship in the recently concluded Freedom of Expression Moot competition in Oxford University. The team bested over a hundred teams worldwide that competed in Oxford and in various regional championship rounds around the world. The problem of the moot is of extreme relevance to freedom of expression in today’s Internet age. Could states limit the freedom to curtail hate speech that has led to a riot that injured over a hundred individuals? At issue, too, was whether Internet service providers should incur liability for materials posted through them. The winning team is composed of Pauline Gairanod (adjudged the best speaker), who hails from Zamboanga City, Modesta Chungalao from Baguio City, Gil Anthony Aquino, Raphael “Apa” Pangalangan, Rachel Miranda, and Gemmo Fernandez. A testimonial in their honor will be held on Monday 10AM with no less than Chancellor  Micheal Tan in attendance. Good job, team!

Centerlaw twits De Lima veiled threat on Vera Files report


vera files

Statement of Prof. Harry L. Roque Jr., chair of the Center for International Law (Centerlaw), an NGO dedicated to the promotion of binding international legal norms in the Philippines and Asia:

“We take exception to the veiled threat in the statement made yesterday by Secretary Leila De Lima that the Vera Files special report on a recent Note Verbale given by the Philippines to Malaysia over the Spratlys islands concerned a confidential matter that should have been kept as it is.

“In the first place, our Justice Secretary should be first to know that such a threat is in the nature of prior restraint with a chilling effect on speech, as held by the Supreme Court in the case filed by the late former Solicitor General Francisco Chavez against a predecessor of hers at the DOJ, the late Raul Gonzales.

“A mere press statement of a threat of prosecution coming from a government functionary, according to this 2008 Supreme Court decision, is unconstitutional precisely for that reason.

“As a former head of the Commission on Human Rights, we expect her to understand that Vera Files is simply doing what journalists ought to do well: report on matters of public interest, especially one where the integrity of the national territory of the Philippines is at stake, so that the citizens are properly apprised of the issues involved.

“The documents unearthed by Verafiles in its journalistic sleuthing are clear enough and also belie Secretary De Lima’s claim of disinformation.

“Note Verbale No. 15-1979 sent to Malaysia, the basis of VERA Files’ story, stated that it is offering a review of the Aug. 4, 2009 protest (No. 000819) it filed with the United Nations. The Philippines’ August 2009 protest, contained in two pages, singles out North Borneo or the old name of Sabah.

“In this Protest, the Philippines took issue with an earlier joint submission by Vietnam and Malaysia for the extended continental shelf because it “lays claims on areas that are disputed not only because they overlap with that of the Philippines, but also because of the controversy arising from the territorial claims on some of the islands in the area including North Borneo.

“The 2009 Protest clearly disputed Malaysia’s use of North Borneo (the old name of Sabah subject of the Philippine territorial claim), as reference points for its baselines in determining the reach of its claim to an extended continental shelf.

“Had the Philippines kept silent on this joint submission, it would have meant that the Philippines has implicitly consented to the use of Sabah as a reference point for  Malaysia’s extended continental shelf claim, which is another way of saying that we are recognizing Malaysia’s ownership over Sabah.

The Note Verbale offers a Philippine review of its 2009 Protest if Malaysia agrees to two requests related to the South China Sea conflicting territorial claims.

The first request is for Malaysia to “confirm” that its claim of an extended continental shelf is “entirely from the mainland coast of Malaysia, and not from any of the maritime features in the Spratly islands.”

The DFA also requested Malaysia to confirm that it “does not claim entitlement to maritime areas beyond 12 nautical miles from any of the maritime features in the Spratly islands it claims.”

The offer by the Philippines of a review of its 2009 Protest is diplomatese for a quid pro quo arrangement. It appears to intimate that if Malaysia agreed to the proposal, the Philippines will withdraw or at least revise its Protest to the joint submission. In either case, it will clearly amount to a dilution, as Vera Files would put it, of our claim to Sabah.

This is without doubt a matter of the public interest. As the Vera Files story underlines, a matter as important as a big part of the Philippine national territory enshrined in the 1987 Constitution should not be bargained away by a mere Note Verbale without so much as a public discussion on its implications.”

Law of the jungle


Now it can be said. Despite being one of the world’s mega-cities, Metro Manila appears to be governed by the law of the jungle. It is a unique jurisdiction where the police, normally tasked with implementing judicial orders, are the first to defy them. It is unique since it’s possibly the only jurisdiction where cabinet members tasked with the promotion of justice consistently advocate disobedience of judicial orders.  This is why it is also the only place on earth where a suspended Police Chief can take orders from no less than the President himself.

What kind of insanity has come to our land?

I’m not at all familiar with the details of the suspension of Mayor Jun-Jun Binay. My knowledge of the incident is limited to what we read in the newspapers. I know that the Ombudsman recently decided to initiate preliminary investigation for plunder against the Mayor for the allegedly overpriced Makati City Hall Annex. This means that the Ombudsman HAS ONLY STARTED the process of finding if there is probable cause against the Mayor. Ergo, he remains absolutely innocent of the allegations against him and not just presumed to be innocent.

I also read that in connection with the administrative complaint against him filed together with the criminal complaint; the Ombudsman ordered the six-month temporary suspension of Mayor Binay. Here, the suspension is not by way of a penalty since the investigation process has only begun, but intended only to prevent the respondent from tampering with evidence. But like all orders, such suspension can only take effect if served on the respondent. Because this is an Order that affects the exercise of a popular mandate, the Mayor being an elective post, this Order must be served personally on the Mayor. This, I believe was never done partly because the process server of the Ombudsman could not penetrate the mass of people that gathered in City Hall who protested the temporary ouster. In lieu of personal service of the Order, the same was “posted” in the vicinity of the City Hall.

Again, while being a lawyer, I cannot claim to be an expert on all fields of law. Nonetheless, my knowledge of service of summons and notices, and more so, orders of suspension, is that they should be served personally on the respondent. The only instances where notice other than personal service is allowed is in actions against real property, so-called actions in rem, where the proceeding is against realty such as foreclosure of mortgages. Here, posting of notices in the property itself or summons by publication is allowed. The only other exception to personal service is in personal actions affecting persons and family relations where the respondent is outside of the country. In which case, summons to his last known address and summons by publication is allowed. I am not aware that an Order that would subvert the will of the sovereign people could be served by mere “posting”.

In any case, I also know as a lawyer that regardless of the merits of the case against Mayor Binay, the fact is the Court of Appeals, as part of the judiciary, a co-equal branch of government, issues an Order temporarily restraining the suspension of the Mayor, the co-equal Executive branch of government must not only comply with the Order but must also implement it. While the Courts have sheriffs to serve its Orders, the Courts nonetheless rely on the Executive, the latter mandated by the Constitution to implement our laws, to enforce its lawful orders. This is because while the Courts can issue Orders, it does not have a police force to implement its orders.

But in this megacity, the police apparently are the first to defy court orders. That is why without a doubt; this megacity is governed by the law of the jungle.

The Executive branch better think twice about the repercussion of its decision to defy the lawful Order of the Court of Appeals. Law forms part of a normative system because we want disputes settled peacefully and pursuant to the rule of law. We may not agree with Court Orders, but we should never openly defy them. The remedy for government is to question the TRO in the proper forum: in the CA itself or in the Supreme Court. It does not bode well that those tasked with the implementation of Court orders are the first to defy them.

Ironically, this is why the Philippines resorted to the rule of law in settling its dispute over the West Philippines Sea with the super-power China. We did so after mature contemplation that we are not in a position to resolve it using the law of the jungle: the sheer use of force. But when the same members of the Executive Branch resort to this same rule of the jungle domestically, not only do we send the message to our people that it is all right to take the law into their own hands. We also send the message to countries like China that we do not adhere to the rule of law, debunking the high moral grounds that we have taken in resolving our dispute in the West Philippines Sea.

Goodness gracious! Lets round up these beasts and lock them in cages come 2016!

This post first appeared on http://manilastandardtoday.com/2015/03/19/law-of-the-jungle/

Treason?


It was interesting that former Assemblyman and Governor Homobono Adaza recently filed a criminal complaint for treason against PNoy and the members of the Philippine peace panel. Treason is defined as the “act of levying war against the Philippines or adhering to its enemies, giving them aid or comfort within the Philippine Islands or elsewhere”. According to Bono, the fact that the President and the members of the peace panel entered into an agreement with the Moro Islamic Liberation Front which would for all instances, create a sub-state in violation of the ponencia of now Ombudsman Conchita Carpio-Morales in the case of North Cotobato vs Peace Panel, is an act of treason.

While I agree that the Bangsamoro Basic Law is contrary to the Constitution and that its proponents are traitors to the Republic, I do not think the complaint for treason will prosper. This is because treason, in jurisprudence, is a crime committed in times only of an international armed conflict. The act of levying war must be against the Republic of the Philippines at a time when it is at war with a foreign enemy. This is why the only convictions we have for this crime were against those who fought with or collaborated with the Japanese during World War two.

Does this mean though that P Noy and the rest of the proponents of the BBL have no criminal culpability?

Certainly not. The MILF as a domestic armed group is guilty of rebellion for “rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof”. Certainly, their use of arms for the purpose of establishing an independent state is the classic crime of rebellion. What is the criminal liability of those who will aid or abet those engaged in the crime of rebellion? Well, the Revised Penal Code punishes not only those who lead and directly participate in the rebellion, but also those who conspire to commit the crime. Moreover, the law also punishes public officers or employees who have failed to resist a rebellion by all the means in their power. Perhaps, this is how we can hold Ging Deles et al responsible for their loyalty to the MILF.

And while I think that Bono’s complaint for treason will not stand, it is still my hope that the Ombudsman will nonetheless file the correct charges against those who have betrayed the Republic.

In this regard, the Ombudsman could act against Deles et al motu propio and without a formal complaint. This becomes more imperative given her ponencia of the Supreme Court decision that struck down the MOA-AD, precursor of the BBL, as unconstitutional. Certainly, the executive’s insistence on the BBL, which restates provisions already declared unconstitutional by the court, also amounts to the felony of insubordination to judicial orders.

What did the Ombudsman say in her ponencia against the MOA-AD, which were disregarded by those pushing for the BBL?

Well, the Ombudsman was clear that neither the President nor her negotiators could commit that neither the Constitution nor our laws will be amended to accommodate the peace agreement. As ruled by then Justice Carpio- Morales: “Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested”.

The parliamentary form of government provided in the BBL already requires an amendment of the Constitution. This is because what is currently provided by our Charter is that “Congress shall enact an organic act for each autonomous region…. consisting of the executive and legislative assembly, both of which shall be elective”. There is no Executive in a parliamentary form of government and its Chief Minister is not elected by the people but by members of the parliament.

In any case, the fact that the BBL establishes a sub-state in breach of the Constitution and of the decision of the Supreme Court, is apparent in its provisions granting the entity its own maritime zones, its own bill of rights, police force, Civil Service Commission, Commission on Audit, and Commission of Human Rights. All these are clear indicia of a sovereign state, which cannot exist in our current unitary form of government. In one case, our Supreme Court said that in a unitary state, “local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government”.

What is very clear is that the BBL will establish an independent state within the Republic of the Philippines.

The bottom line is this: Bono may be wrong in filing treason against P Noy, Deles et al. He is however, infinitely correct in wanting that all those who have proven to be disloyal to the Republic should be punished for their acts. Let’s hope the Ombudsman agrees with him as well.

This post first appeared on http://manilastandardtoday.com/2015/03/12/treason-2/

VP Binay should succeed


Now that the clamor for P Noy to resign because of the Mamasapano fiasco has found steam, the question asked by many is: who should succeed him? Unfortunately, while the Constitution is very clear that he should be succeeded by Vice-President Jejomar Binay, many muddle the issue by insisting on the unconstitutional option that a council of sorts should succeed.

I add my voice to the many that have warned against an unconstitutional succession. The people, and that includes me, voted for Noy-Bi in the last elections cognizant that should P Noy be unable to serve his full term of office for any reason, then he should be succeeded by VP Binay. While I do not pretend to speak for the millions that installed this Noy-Bi leadership, it was certainly my intention that should the son of democracy scion be unable to discharge the functions of his office- and his incompetence in dealing with the Mamasapano incident and its aftermath have made this very clear- then Binay should succeed. Other than that his succession is etched in the Constitution, why should Binay succeed?

Well, the people, by electing him into the Vice-Presidency, said so. And they said so for many reason. To me, it was because of his proven managerial experience in running Makati for almost three decades and his dedication to the cause of human rights, which he proved as a Mabini lawyer during the dark days of martial law. Sure, there have been talk of corruption against him, including the many things that his former vice mayor has said against him. But the cynical truth is that in this country, corruption has become systemic. This is why despite the fact that his accusers have devoted record legislative hours in their witch hunt against him, people have taken the attacks against VP Binay in stride coming, as they were, from polluted sources themselves. The reality is outside of Ping Lacson who refused to accept his pork barrel (and possibly Joker Arroyo, as well), any senator who received his pork barrel and his DAP are not just presumptively but proven to be corrupt by two Supreme Court decisions invalidating both the PDAF and the DAP as being contrary to the Constitution and as forms of misappropriation of public funds.

Clearly, the botched witch hunt against VP Binay is proof of what our rules of evidence already provides: that evidence to be believed, must not only be believable but must come from believable sources as well. Certainly, talk of corruption from those with proven unclean hands cannot bring a good man down.

But outside of managerial experience and dedication to the protection and promotion of human rights, VP Binay’s profession as a lawyer now comes in handy. Again, while the Constitution does not prescribe any minimum qualification for the Presidency other than being a natural born Filipino, we now know, particularly from the failed PNoy administration, that a President, as chief enforcer of the law, must know the law. Here I cannot help but wonder if a lawyer would have made the same mistake as implementing the DAP or asking a suspended PNP Chief to implement a police operation against a high value target. A lawyer is trained to follow the law. This is why Butch Abad would have the stigma hence of having breached the constitutional separation of powers when as a lawyer, he should have known what the power of the purse meant.

This is why the Ombudsman has said that former PNP Chief Alan Purisima may have usurped authority when he participated in a police action at a time when he was suspended from office. A President who is a lawyer would not have made such basic mistakes. But PNoy, a non-lawyer, did; this despite his battery of lawyers including the Secretary of Justice, the Presidential Legal Counsel and the Solicitor General. Binay, by contrast, as a lawyer should know better.

But perhaps, the best reason for VP Binay to take over now is because he has become a seasoned and astute politician. Again the curse in having what Joker Arroyo described as a “student council” leadership is the lack of savvy to unite conflicting interests towards a common direction beneficial to the country. I myself have never been a politician and cannot see myself working with the likes of those in the close circle of P Noy. But Binay can and he can do so while working at the same time with the Erap camp, FVR’s camp, GMA’s camp and even the far left. Perhaps, it is this quality that we now need the most in a leader. One who like Mao, can make “a thousand flowers bloom” and harness them to a common direction: a strong, prosperous, respected Philippines in the 21st century, rather than a pathetic third world country with lackluster and mediocre political leadership, prone to mendicancy.

Yes, I confess: I can’t wait for 2016 to see Binay as president. Lets make him president now.

Angeles chief prosecutor block evidence of Laude family


Centerlaw Release
References: Atty. Harry L. Roque Jr. (hroque@roquebutuyan.com) and
Atty. Romel R. Bagares 09328798422

Lawyers for the family of the transgender murder victim Jennifer Laude blasted today Angeles City Chief Prosecutor Emilie Fe M. De Los Santos for blocking in open court their efforts to introduce evidence in the prosecution of an American marine tagged for the killing.

“We cannot understand why she should do that,” said lawyer Romel Regalado Bagares, one of the lawyers representing the Laude family. “As the public prosecutor, she should cooperate with the private prosecutors in ensuring that justice is served in this case.”

At the continuation of the pre-trial of the case, the lawyer, with co-counsel lawyer Virgie Suarez and Charlaine Latorre, asked the Court to include in the list of prosecution witnesses the commanding officer of the unit the Accused, Lance Corporal John Scott Pemberton, belonged to at the time of the Oct. 11, 2014 murder.

He also wanted to add to the list of prosecution witnesses the American officer who has custody of Lance Corporal’s service records and the officer in charge of training at the Marine boot camp that Pemberton attended.

De Los Santos however, opposed this. “We wanted to have all corners covered,” said Atty. Suarez. “We did not expect that to come from her, since we are supposed to be on the same side.”

Lawyer Harry Roque, the Laude family’s lead counsel, was not in court today because of a prior commitment to attend a conference on the West Philippine Sea dispute at the Harvard Law School, where he was invited, along with Supreme Court Associate Justice Francis Jardeleza, to speak at a panel.

However, during the arraignment of the Accused on February 23, in the presence of the lawyer, the Angeles City Public Prosecutor tried to prevent him from speaking in court. But the presiding judge, Roline Jabalde, recognized his bona fides in open court as a private prosecutor.

When reached for comment on the latest antics of the public prosecutor, Roque revealed that the private prosecutors have tried several times to reach an agreement with her on how they can work together on the case. “She has refused to talk to us in the most unprofessional way imaginable. She is making it easier for the Defense by doing the latter’s work.”

De Los Santos has publicly declared that she will not allow private prosecutors any lee way in the presentation of the evidence for the criminal aspect of the case. Today however was the first time that she actually prevented the private prosecutors from introducing evidence in court.

“We are constrained to bring this matter to the public’s attention because the public prosecutor herself is blocking cooperative efforts between us to obtain justice for the victim,” said Roque.

Marcosian PNoy


Last Wednesday, 1500 people led by Juana Change were prevented from forming their human chain from Crame to EDSA shrine. Talk about irony. The son of democracy icons doing a Marcosian tactic on the day we celebrate the end of a dictatorship.

What happened to PNoy? He clearly is not the person that millions of Filipinos thought he was when he was given an unprecedented mandate to lead. Mea culpa, as well as culpa of the millions of others who voted for him and ensured his victory in the 2010 elections.

I thought PNoy would stand for good governance and democracy because I had the opportunity to work with him up close in the attempts to impeach PGMA. Of course we expected him to be part of the moral indignation against the bastardization of democracy as evident by the notorious “Hello Garci” tape. His involvement against the cheating, stealing and lying PGMA regime was expected of him because his father died fighting for the restoration of democracy, while his mother ushered in democracy. Clearly, it would have been unforgivable for the son of our icons of democracy to be indifferent to systematic electoral cheating.

PNoy also stood his ground against corruption in the country. The anomalous Chinese-funded projects that became the consideration for PGMA’s sale of our patrimony to the Chinese- initially through the joint seismic exploration with China. This SURVEY  enabled China to confirm its  suspicions that the disputed Spratlys islands and even the undisputed territory of Recto bank contained vast deposits of oil. China has since  been unrelenting and outright aggressive in defending its claims to the disputed and undisputed territories. An energy-starved country with the highest population density in the world is bound to lust after the resources of others. PNoy also stood against this sell-out by opposing the anomalous Chinese projects both in the impeachment complaint against PGMA and when he became Senator in 2007.

With such clear track record, the question now is:  what on earth happened to him ? Yesterday he was a true blue democrat. Today, he would not even allow a crowd -whom he has dismissed as insignificant in number- from doing a human chain on the day we celebrate EDSA 1!

PNoy successfully dispersed and prevented the human chain by ensuring that no one would be able to congregate on EDSA. As early as 5 AM, police blocked off EDSA from all cars and people! This was worse compared to what PGMA did also on a February 25 when she declared a state of national emergency that led to THE ARREST OF Randy David et al while marching along EDSA. This is because PGMA at least allowed everyone else to march along EDSA except for those who were arrested.

PNoy in this year’s EDSA commemoration prevented the people from marching altogether!

Of course I’m shocked. Of course I’m indignant. How dare the scion of democracy destroy that which his own father died for! The same democracy that his own mother defended from putschists. How dare PNoy be the same evil that we stood against in EDSA. And like millions of other Filipinos, I feel utterly betrayed by him and indignant that he has become himself an enemy of democracy.

What was PNoy afraid of? We already know the truth! We know that the blame for the Mamasapano massacre lies with him not only for authorizing his suspended henchman implement a bad plan, but also for refusing to order the military to provide assistance to the beleaguered policemen to ensure the sell-out of Mindanao through the BBL, the handiwork of Black and White movement’s Ging Deles and the rest of the MILF spokespersons.

We know already the truth that he is simply unable to lead- abdicating the functions of his most powerful office to his kaibigans, kaklase, and kabarilan. We already know that other than blaming the previous administration for all the woes of our nation, he was devoid of a platform of government that led literally to a lack of governance under his term. We also know the truth that he does not care for Philippine sovereignty as he has in fact surrendered the custody of a vicious killer who murdered one of us to please mother America. We know too that his eagerness to please Uncle Sam also led to his support to the one-sided EDCA and the death of the SAF 44 even if it is clear that their martyrdom is not worth achieving the US objective in capturing its enemy coddled by the MILF.

So what else is PNoy hiding when he infringed on our rights to speak out? Clearly, the truth has already set the people free!  While he may have succeeded in preventing the human chain  using the same techniques of both Marcos and PGMA, he will not be able to restrain the people’s anger altogether. In this regard, he should learn from the experiences of Marcos and PGMA. Soon, he will be booted out and made to pay for his crimes against the people.

To our comrades on the streets: we may have failed to capture EDSA last Wednesday. But like Don Quixote, we simply need “to rise, brush off the mud and CONTINUE the fight!” Soon, PNoy will suffer the fate of Marcos and PGMA. Only I hope it will be worse. Because unlike Marcos and PGMA, it was only PNoy who betrayed so many of us.

Whitewash and the need for the ICC


Its highly unlikely that attention-starved congressmen will agree to scrap the House of Representatives hearing of the Mamasapano massacre on their own.

To begin with, while the hearings in the bigger House were less composed when compared to the hearings in the Senate, more information came out of the lone House investigation.

Rep. Neri Colmenares singled out some of these new information, to wit: “a) the text message of Gen. Rustico Guerrero confirming that Pres. Aquino knew about the Mamasapano incident earlier on January 25, (b) the admission by Gen. Napeñas that Pres. Aquino knew about the time on target coordination and approved it which means Aquino agreed not to coordinate with the AFP beforehand, (c) the claim to executive privilege of Gen. Purisima, (d) the Medico Legal report emotionally described by Gen. Espina; and (e) the admission by Gen. Catapang that he did not inform Pres. Aquino even if they were together in Zamboanga that day”.

So why did the House suspend its hearing? The official reason is to avoid “prejudicial conclusions” since the official Board of Inquiry findings still have to be written.

But that reasoning is crap. Congress is never bound by the findings of any other investigative body. When Congress conducts an inquiry in aid of legislation, it is in the exercise of a plenary power that cannot be limited by any other branch of government. What is a legislative in purpose is also within the powers of Congress to define.

Moreover, Congress may also conduct investigations in the discharge of its power of oversight, that is, as holder of the power of the purse, it should ensure that government agencies are doing their job pursuant to the budget allotted to them. Hence, it was but proper that Congress inquire on whether the PNP, the AFP and the DILG spent tax payers wisely and correctly in this bloody police operation.

So why did the House suspend it proceedings? I think the truth is obvious. The PNoy administration, including its allies in the House of Representatives, are now afraid of the truth. Already, the subsequent Senate hearings on the matter indicate that the President clearly knew about the plan to capture Marwan et al in Mamasapano, that he continued to utilize the services of the suspended PNP Chief Alan Purisima in connection therewith, and that confidentiality was required because they knew that even the AFP, with its leadership committed to the Peace talks with the MILF, might leak information that may prove detrimental to the capture of the high value targets.

Questions are now being asked on when the President knew that the SAF 44 were under siege. The question which has not been asked is why the President did not order the AFP to provide reinforcement to the besieged 55th Company of the SAF and why? Many, including I, surmise that the President, like AFP Chief of Staff Catapang, played God and decided to sacrifice the lives of the SAF 44 in order to protect the ceasefire with the MILF.

There too is the question of why US operatives were involved in the operation beyond the giving of the $6 million bounty for Marwan, dead or alive. While many shrug off the American involvement as necessary since we do not have the technology to acquire the proper intelligence information required by the operation, the reality is that the 1987 Constitution prohibits even just the presence of foreign troops, bases and facilities in the country after the termination of the US-Philippine Bases Agreement in 1991. The only way these foreign troops can be in the country is through a treaty duly concurred not by a mere majority of the members of our Senate , but by 2/3 of all its members, and even ratified by the plebiscite by the people themselves, when so required by the Senate. And these stringent requirements is only for the purpose of allowing foreign troops, bases and facilities in our territory. Compliance with the imperative requirements is not even sufficient to allow foreigners to be engaged in actual police or battle operations in our country. Such is absolutely prohibited because such an involvement would simply violate both Philippine sovereignty and jurisdiction. Full stop.

So what now? The House has suspended its hearing and the senators, on the other hand, appear complicit in hiding the truth from the people by holding its hearings in “executive sessions”. Clearly, the Senate, in doing so, although clearly more independent than the House, appears to be susceptible nonetheless to palace cajoling to keep the truth from the people.

I have said from the beginning that where political considerations, both of the selfish and the policy types, i.e., the necessity of proceeding with the peace talks, come into the way of the fight against impunity, the country must utilize the full benefits its membership in the International Criminal Court. The Court was established, and we joined the Court, precisely because those who violate the most important norms of international law, such as those who commit war crimes, should be prosecuted, no matter what. The ICC prosecutor, would moreover, have the proven expertise to investigate these possible war crimes when compared to the DOJ Prosecutors that has zero experience in this regard. Besides, with the Maguindanao massacre prosecution in limbo after almost six years, coupled with the DOJ’s 1-percent conviction rate in the prosecution of extra-legal killings, its clear that our legal system is simply both unable and unwilling to investigate the leadership and men of the MILF for the possible war crimes committed against the SAF44 and the Filipino people.

Time to seek aid from the international community. Lets refer the Mamasapano massacre to the ICC!

Breach of chain of command?


Its now apparent that in an effort to shield President Aquino from blame in the death of the SAF 44, administration spin doctors have been pinning the blame for the fiasco on both former PNP Chief Alan Purisima and SAF Chief Getulio Napenas. Of course the two, undoubtedly, have lots to answer for. But palace spin masters would now want us to believe that only the two should be held responsible for the fiasco.

This cannot be the case. While palace supporters belabor the point that both allegedly “broke the chain of command” when they did not inform DILG Secretary Mar Roxas and PNP OIC Leonardo Espina about Oplan Exodus, the reality is the two did not have to. To begin with, Mar Roxas is not part of the chain of command. As DILG Secretary, his involvement with the PNP is only as Chairman of the National Police Commission. This means he has supervision over the PNP only to the extent that he should ensure that the police are doing their job. He does not have control, operational or otherwise, because this clearly belongs to the Chief PNP and the other officers in the PNP hierarchy. In law, control means the power to substitute a superior’s discretion to those of his subordinates.

Anent OIC Espina, the truth is that there cannot also be a breach of the chain of command there precisely because rightfully or not, General Purisima was reporting to the President, the ultimate Commander-in-Chief. Moreover, although he was suspended, the reality is that he remained the Chief of the PNP and the highest-ranking officer of the police force.

What does this mean? Simply put, the buck stops with the President. Perhaps, we can fault both Purisima and Napenas for failing to comply with the President’s directive to coordinate with the Armed Forces. This can amount to insubordination and gross negligence. But because the President himself authorized the mission on a “time-on-target” basis, this means that liability for the fiasco rests on the President himself.

Time-on-target is military jargon when the means and methods of a mission have been agreed upon even if the actual date of implementation is not known. This also means that others on the field will be informed when the mission is implemented. Make no mistake about it. The decision to invade the MILF lair to capture two high-level terrorists on a time-on-target basis as implemented by the SAF was a decision of the President himself. Full stop.

In any case, the on-going Senate investigation has also confirmed many of our worst fears. To begin with, there is the fact that the Armed Forces should and could have sent in reinforcements but did not. So far, the justification of AFP Chief of Staff Gregorio Pio Catapang, whom I want jailed for indirect contempt of Court, is because “the PNP did not ask for reinforcement”. Ergo, the Chief of Staff, who has not been shy about his Senate aspirations- wants, in the words of one senator, “ a drowning man to cry for help”. In reality, when one is drowning, one is already unable to utter a word and hence the failure to seek assistance.

The situation was no different from when the Maguindanao massacre took place. In 2009, the AFP leadership in the same area  turned down the request of the murdered journalists for military assistance in covering the ill-fated filing of Esmael Mangudadatu’s certificate of candidacy. Moreover, even after knowing about the build-up of Ampatuan supporters in the intersection where the victims of the massacre where rounded up, the same military leadership did not do anything even as to inquire why there was a build up consisting of heavily armed men in an area where there is an  on-going armed conflict. In other words, the AFP did nothing- then and now-  because they opted to turn blind eyes and deaf ears to their colleagues from the PNP.

The more interesting question now is: “Why?” Well, on the basis of the Senate hearing, Senate wannabe Catapang said that it was because of the peace process. And pray tell me: who told the Chief of Staff that he could play God to determine that the SAF 44 should die so that Ging Deles and Miriam Ferrer could gloat that they were responsible for peace in Mindanao? Utterly ridiculous, absurd, and even insane!

So what now? Well, in ancient times this was an instance that would merit the rolling out of the guillotine. Fortunately for all the misfits responsible for the untimely heroism of the SAF44, public indignation appears more painful today than the guillotine. And yes, they deserve it!

P Noy: Not command responsibility but gross incompetence


I’m happy that Senator Miriam Defensor-Santiago, the best President that we never had, agreed with my view that International Humanitarian Law (IHL) is applicable to the Mamasapano massacre that led to the heroism of the SAF 44. The good senator concurred with our view when she opined that President Aquino may be held liable on the basis of command responsibility.

IHL is the law applicable in times of armed conflict. It exists to protect civilians and other non-combatants from the adverse consequences of armed conflict. It achieves this goal by according non-combatants protection and by limiting the means and methods of warfare open to all combatants and fighters.

“Command responsibility” is a principle in IHL developed in the Philippines as a result of the trial of Yamashita, the highest-ranking Japanese officer in Southeast Asia at the end of World War II. When Yamashita was accused of war crimes, he put forth the defense, among others, that he did not know and did not order the atrocities complained about. The Philippine Supreme Court rejected this argument ruling that Yamashita willfully turned a blind eye to these atrocities. According to the Court, Yamashita should have developed a sound system where he could ensure that his troops knew the law and that they were in compliance with it.

On appeal to the US Supreme Court, a separate opinion formulated what today would be the principle of command responsibility. This is that a commander should be liable for the atrocities committed by his subordinates when he knew or should have known about the authorities, and he failed to take steps to prevent the crimes from happening, and fails to take steps to investigate, prosecute and punish them for these crimes.

Where I differ though from Senator Santiago is in her opinion that PNoy could be held liable for command responsibility.

My disagreement with the senator is not because I think the President should be absolved completely of command responsibility . In fact, on the occasion of the 5th anniversary of the Maguindanao massacre, I submitted the view, which was supported by the current UN Special Rapporteur on Freedom of Expression, that the 1-percent conviction rate our prosecutors have in convicting perpetrators of extra-legal killings may be a basis for holding the President liable under command responsibility since he has failed to prosecute and punish the perpetrators of the extra-legal killings in this country. Instead, my view is that PNoy should probably be held responsible for the massacre of the SAF 44 since he is Commander-in-Chief of the Armed Forces of the Philippines and the PNP, but not under the principle of command responsibility.

Why? Simply put, command responsibility under IHL may be used only against commanders and superiors of troops that may have committed grave breaches of IHL, the laws and customs of warfare. In the Mamasapano massacre, the sheer discrepancy in terms of the body count indicate that the SAF 44 may not have been engaged in battle; instead, what may have happened was a slaughter. What made matters worse is the fact that the slaughter must have resulted from our policemen’s wrong assumption that even if they are fighters in the territory of a domestic armed group, they will not be attacked because of an on-going ceasefire between our government and the MILF. This is the crime of perfidy or inviting the confidence of fighters that they have protected status and proceeding to attack them anyway. Moreover, the death count suggests that the MILF may have issued the order not to leave any survivors as in fact, there was only one who managed to escape the carnage. This again is a war crime since giving such an order is expressly prohibited by IHL and is furthermore contrary to the concept of military necessity and military objective.  The object of warfare is the compete submission of the enemy and not to kill all of the adversaries. The inhumanity done to the corpses of our heroes is yet another war crime—that of cruel, degrading and humiliating treatment.

Simply put, it is the leadership of the MILF that should be held criminally liable under command responsibility since their troops probably committed the war crimes. To reiterate, PNoy could not be held responsible under the principle because it is neither the PNP nor the AFP that committed the crimes.  If at all, his liability is that of a commander-in-chief who must take responsibility for a police manhunt that turned awry.

This should not at all absolve PNoy from liability for the death of the SAF 44. If in the past, the ineptitude and inexperience of this government have led to bad policies, his lapse in governance this time around should not go unpunished.

It’s time for his bosses to make their decision. I say we fire him for gross incompetence, a valid ground for loss of trust and confidence.

New SC resolution on DAP a shocking reversal


Statement of Prof. Harry L. Roque and Atty. Roger R. Rayel, counsel for Grecor Belgica, et al, on the Supreme Court’s new resolution on DAP:

“The new resolution of the High Court on the Disbursement Acceleration Fund (DAP) is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval on the de facto appropriation by the Executive without the benefit of congressional review.

While preserving two main holdings in its original ruling, the High Court’s decision to reverse itself on the third point – the funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act” – just about restores a wide swath of un-appropriated and not legislatively considered expenditures to the sole discretion of the Chief Executive.

This defeats the whole purpose of giving the power of the purse to the legislature. Precisely, a wide array of expenditures under the DAP have been made outside the General Appropriations Act. For all intents and purposes, the reversal by the Supreme Court reinstates and legitimizes the Presidential Pork Barrel System without benefit of congressional approval and oversight.

It is also surprising that the High Court appears to have made a new distinction between authors on the one hand, and proponents and implementers on the other hand, and in addition making criminal liability prospective as regards the latter. This is as if the constitutional provision stating that no money shall be paid out of the treasury without an appropriation made by law is not clear enough. This cannot be prospective.

We will file a Motion for Reconsideration of this Resolution within the period provided by the Rules.”

Manifestation with Urgent Motion to set Arraignment


Click here for the pdf copy of the Manifestation with Urgent Motion to set Arraignment filed by Marilou Laude, via counsel, on Janury 29, 2015 at the Olongapo RTC.

Republic of the Philippines
THIRD JUDICIAL REGION
REGIONAL TRIAL COURT
Branch 74, Olongapo City

PEOPLE OF THE PHILIPPINES,
Plaintiff,

Criminal Case No. 865-14
For: Murder

– versus –

L/CPL JOSEPH SCOTT PEMBERTON,
Accused.
X—————————————–X

MANIFESTATION with
URGENT MOTION TO SET ARRAIGNMENT

PRIVATE COMPLAINANT MARILOU S. LAUDE, by counsel, respectfully files this Manifestation with Urgent Motion to Set Arraignment, and states that:

1. Accused Pemberton filed a Motion to Defer Proceedings dated 18 December 2014

2. Thereafter, the Honorable Court acquired jurisdiction over accused L/CPL Joseph Scott Pemberton (accused Pemberton) when he personally appeared before the Honorable Court on 19 December 2014 pursuant to a warrant of arrest.

3. On 23 December 2014, the Honorable Court issued an Order granting accused Pemberton’s Motion to Defer Proceedings, the dispositive portion of which reads as follows:

“IN VIEW THEREOF, the Motion to Defer Proceedings is hereby GRANTED, and the proceedings are suspended for a period of sixty (60) days, or until such time that this court is furnished with a copy of the resolution of appeal by petition for review filed by the accused with the Department of Justice, whichever is earlier.

SO ORDERED.” (Emphasis supplied)

4. On 6 January 2015, Private Complainant Laude filed her Comment/Opposition to the Petition for Review filed by accused Pemberton before the Department of Justice.

5. On 27 January 2015, the Department of Justice issued a Resolution DENYING the Petition for Review filed by Accused Pemberton, the dispositive portion of which reads as follows:

“WHEREFORE, premises considered, the instant petition for review is hereby DENIED.

SO ORDERED.”

6. Therefore, the order of this Honorable Court suspending the proceedings in the instant case should be lifted pursuant to the Order, dated 23 December 2014, which states that the proceedings in the instant case are suspended until such time that the Honorable Court is furnished with a copy of the resolution with respect to the Petition for Review filed by Accused Pemberton.

7. On 29 January 2015, Private Complainant Laude, through counsel, received a copy of the Manifestation with Omnibus Motion, dated 28 January 2015, filed by the Honorable Public Prosecutors praying for the lifting of the Honorable Court’s Order for the deferment of the proceedings, dated 23 December 2014, and immediate arraignment of the Accused Pemberton on 05 February 2015, among other things.

8. In view of the foregoing, Private Complainant Laude respectfully joins the request of the Honorable Public Prosecutors and respectfully prays that the Honorable Court lift the order suspending the proceedings in view of the dismissal of the Petition for Review filed by Accused Pemberton.

9. Furthermore, Private Complainant Laude further prays that Honorable Court set the arraignment of Accused Pemberton on 5 February 2015 at 2:00 pm, or at the earliest possible date and time in accordance with Section 1(g) of Rule 116 of the Revised Rules of Criminal Procedure.

PRAYER

WHEREFORE, premises considered, Private Complainant respectfully prays that the Honorable Court lift the Order, dated 23 December 2014, suspending the proceedings in the instant case and set the arraignment of Accused Pemberton on 5 February 2015 at 2:00 pm, or at the earliest possible date and time.

All other reliefs as are just and deemed equitable are also prayed for.

Makati City for the Olongapo City. 29 January 2015.

By the Counsel for Private Complainant:

ROQUE & BUTUYAN LAW OFFICES
1904 Antel 2000 Corporate Center
121 Valero Street, Salcedo Village
Makati City 1200
Email: mail@roquebutuyan.com
Tel. Nos. 887-4445/887-3894; Fax No: 887-3

By:

H. HARRY L. ROQUE, JR.
Roll No. 36976
PTR No. 4264493|Jan. 04, 2011|Makati City
IBP No. 01749|Lifetime
MCLE Exemption No. IV-000513
(issued on Feb. 15, 2013 )

GILBERT T. ANDRES
Roll No. 56911
PTR No.4264862|Jan. 30, 2014|Makati City
IBP No. 961460|Jan. 29, 2014|Negros Occ.
MCLE Compliance No. IV-0011824
(issued on Jan. 25, 2013)

CHARLAINE E. LATORRE
Roll No. 62890
PTR No. 4386325|May 23, 2014|Makati City
IBP No. 968977|April 22, 2014| Cavite
Admitted to the Bar: 06 May 2014•

By:

VIRGINIA LACSA SUAREZ
Collaborating Counsel for Private Complainant
LABOR ADVOCATES FOR WORKERS’
SERVICES (LAWS INC.)
Roll No. 41145
Lifetime IBP Member-LRN 05283
PTR No. 4232794|Jan. 7, 2014|Makati City
MCLE Compliance NO. IV-0022951
(issued on July 6, 2013)
3rd Floor MKP Bldg., No. 22 Libertad St.
Mandaluyong City 1550
CP/Tel. NO. 09088159923/531-07-86/87

REQUEST FOR AND NOTICE OF HEARING

The Honorable Clerk of Court
Regional Trial Court
Branch 74, Olongapo City

Atty. Rowena Garcia Flores and
Atty. Benjamin Tolosa, Jr.
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila

Please take notice that undersigned Counsel will submit the foregoing Manifestation with Motion for the consideration and approval of the Honorable Court immediately upon receipt without further argument from counsel.

Also, this Manifestation with Motion is served on the opposing party by registered mail in accordance with Section 11, Rule 13 of the Rules of Court due to distance, time constraint, and lack of messengerial services.

CHARLAINE E. LATORRE

Copy Furnished:

Pros. Emilie Fe M. Delos Santos
Counsel for the People
Office of the City Prosecutor
Olongapo City

Atty. Rowena Garcia Flores and
Atty. Benjamin Tolosa, Jr.
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila

Professor H. Harry L. Roque’s statement on the arrest of Mayor Binay:


The Senate order to arrest Mayor Junjun Binay comes at a time when the country is in deep national mourning over the massacre of so many of our police heroes. It comes at a time when the people await complete and transparent explanation from its leaders on the true circumstances why our bravest and most patriotic sons in the police force were recklessly sent to the slaughterhouse and murdered like animals. It comes at a time when the highest officials of our nation face accounting of their   active participation and liability in these tragic loss of so many young and promising lives.

At a time when the investigative resources and powers of the government should be rightfully summoned and devoted to uncovering what happened in this massacre, it saddens me to notice   the deafening silence of the Senate leadership on the   need for a Senate investigation, even after the President   himself and police generals   have admitted reckless lapses committed in sending   our police martyrs to   certain death.

At a time when the undivided attention of the people should be left concentrated on   this national tragedy   because it crucially comes in the midst of pending   deliberations on the Bangsamoro Basic Law — this tragedy is presenting itself as the litmus test   for the Senate to investigate the MILF’s true commitment to   real peace — the Senate has chosen to divert   the people’s attention to an overly-drawn and extended investigation on Mayor Binay.

By ordering the arrest of Mayor Binay at this time, the Senate has inevitably chosen to divide the people’s   crucial attention and deflect full public scrutiny and accountability of our leaders and the MILF on the national tragedy that has left grieving parents, anguished widows, and wretched orphans.

In choosing to divert public attention on an arrested Mayor Binay,   the Senate has even   disregarded basic rules and has chosen to ignore Supreme Court admonitions on the indispensability of a quorum. With only three Senators out of a total membership of   20 Senators in the Senate Blue Ribbon Committee,   the   mere three-members declared that they had the quorum to unilaterally act   for the 20-member Blue Ribbon Committee and issue an arrest order on Mayor Binay. This is   a blatant   violation of the most basic tenet of legislative bodies. How low can the Senate get in   twisting the definition of a quorum just to deflect attention from the most pressing issue of the day? If the Senate can redefine quorum to merely require   three members out of a total of 20,   what will prevent them from   declaring that a mere single Senator will constitute a quorum   who can order the arrest of any Juan, Pedro, or Mario?

As the accusations against Mayor Binay have repeatedly been branded as criminal anomalies by the Senators themselves, the accusations   should be rightfully ventilated in the judicial branch of government, and not used as a circus for media mileage and political assassination in the Senate.

I call upon the Senate to submit to the judiciary all the evidence it has against Mayor Binay and let the judiciary perform it rightful duty to assess responsibility,   find liability and   impose penalties. Unlike the judiciary which is mandated to find guilt or innocence, no matter how long drawn the Senate conducts any investigation, the Senate has no power to impose sanctions and penalties resulting from its findings.

I call upon the Senate to correctly make use of its   “investigation in aid of legislation” powers by summoning the leaders of the executive and military branches of government, and even the MILF, who were involved — regardless of   their   standing as   allies of the Senate leadership — in the Mamapasano massacre. This will be the correct use of the investigative powers of the senate “in aid of legislation” in connection with the pending Bangsamoro Basic Law.

War crime in Mamasapano


We can count on my kumadre, star reporter Christine “Mamu” Herrera of this newspaper, to scoop all other broadsheets and news outfits for the truth particularly on sensational stories such as the Mamasapano massacre that claimed the lives of no less than 40 members of the Special Action Force of the Philippine National Police. Now we know that the blame for the carnage lies with PNoy himself who was only too willing to please his American master to apprehend two of the most wanted terrorists in the list of the US State Department. It appears from Mamu’s report that the President authorized the mission and for all intents and purposes, only he, his most trusted PNP Chief Allan Purisima, and the Americans knew about the mission.

In fairness, blame for the carnage should not be put on PNoy alone. His partner in peace, or should we say in violence, the MILF, is equally to blame. PNoy wrongfully thought that because of the prevailing ceasefire, his newfound comrades would not engage and more so, massacre our men. He thought wrong.

And because PNoy was out to please his American benefactors to whom he has surrendered Philippine sovereignty through the Enhanced Defense Cooperation Agreement, it is only but logical that four American GIs were sighted in the area. Obviously, since the Americans so badly wanted to capture the suspected terrorist as in fact, they offered a bounty of no less than two hundred sixty million pesos for their capture, it is but logical that Uncle Sam be on the ground to supervise the manhunt. And like PNoy, the Americans also did not anticipate that the MILF, because it has been receiving almost all of its Official Development Assistance intended for the country, would turn against the men that it has enticed to capture their enemy.

Clearly, the Mamasapano massacre has brought out a number of crucial policy issues that we, PNoy’s bosses, would now have to resolve. Foremost of these is the extent that we would go to serve America’s interests in the region. I have quite frankly, not heard of the two terrorists most wanted by the Americans until the massacre. Were the lives of more than 40 of our fellow Filipinos worth the botched effort to capture these alleged terrorists? I do not think so.

Another policy issues is: what were America’s most wanted terrorists doing in the territory controlled by the MILF? Why did we sign a peace agreement with a group known for harboring world-class terrorists? Long before this incident, veteran reporter Maria Ressa reported that the MILF has been allowing the terrorist group Jemaah Islamiyah to train and use its camps in Mindanao. Why did Ging Deles agree to channel billions of taxpayer’s money and to surrender Philippine sovereignty to a group that has long been notorious for harboring world-class terrorists?

There too is the issue of the Bangsamoro Juridical Entity. I have to disclose that I have been engaged by two groups to question this agreement as soon as Congress legislate the required enabling legislation. But outside the constitutional issues arising from the agreement, the even bigger obstacle now is the ability of the MILF to comply with its obligations under the peace agreement. At a time when both the PNoy administration and the MILF are courting both the support of Congress and the sovereign people to support this unconstitutional accord, the MILF, with no rhyme or reason, proceed to massacre our men. Can you imagine what they are capable of doing when they have already gotten their sub-state, legitimized their armed forces, and after they could legitimately receive funding from their Muslim supporters abroad? They have proven themselves capable of committing the worst atrocities when they are craving for support. Clearly, they have also proven themselves capable of worst barbarity after we have given in to their demands and legitimized their existence. It is very sad that more than 40 of our men had to be martyred for us to accept the reality that the MILF simply cannot be trusted to maintain the peace.

It is now a foregone conclusion that any member of Congress who would still dare to support the proposed Bangsamoro law after the massacre is doomed. So the more pressing issue now is that of accountability. While we do not know yet the details of the massacre, it appears from the disproportionate number of casualties from both sides: 40 dead in the PNP as against only 8 casualties for the MILF, that what happened to our men was not a military encounter, but a trap that led to the massacre. And because there was a prevailing ceasefire, it could be argued that the MILF must have employed perfidy, a war crime, since the MILF must have invited the confidence of our men that the peace pact means that they will not be attacked in their territory. So the question n everyone’s mind now, including our Chief Justice who called on everyone to adhere to the rule of law, is whether the MILF and its men will be prosecuted for the war crime of perfidy punishable under International Humanitarian Law ?

Certainly, Ging Deles and Miriam Ferrer would both object to such prosecution while the peace accord is still in place. If so, then perhaps we should make our first country referral to the Office of the Prosecutor of the International Criminal Court.

Let us honor the memories of our fallen heroes by enjoining the public to utilize the rule of law against the MILF and prosecute its leadership for war crimes.

Enough is enough.

This post first appeared in http://manilastandardtoday.com/2015/01/29/war-crime-in-mamasapano/.

Falling on deaf ears


Pope Francis proved himself to be the biggest “rock star” who invaded our country. With an estimated 6 to 7 million braving the rain to hear his final mass at Luneta, the Pontiff has clearly proven that he is the single most loved person in this country. The closest who could rival his drawing power was Tita Cory shortly after the despot cheated her and the people also flocked to Luneta. But make no mistake about it, even Tita Cory was no match to the charm and enigma of the current Pope.

In a way it was sad that many of us ignored the Churchs’ call not to focus on the Pope as a personality, but as a symbol of Christ. I’m sure those who lined up for a glimpse of the pope did so because they were captivated by the smile of the Argentinian, rather than the fact that he stands as a symbol of Christ. Perhaps, what we should be aiming for, now that our favorite “rock star” has left, is that his message should at least not fall on deaf ears.

And boy, did we need his message. Addressing the nation for the first time in Malacañang, the Holy Father did not mince words when in the presence of our corrupt politicians from all branches of government, as well as personalities who belong to the 1 percent that owns 40 percent of all the wealth of the country, the Pope demanded from his audience to “end scandalous social inequalities.”

The Pope continued: “ it is now more than ever, necessary that political leaders be outstanding for honesty, integrity and commitment to the common good”. The pontiff must have known that present in Malacañang then were the biggest thieves in this country. He then enjoined the elite to “ensure social justice and respect human dignity”. Then he demanded what surely will be ignored by our political and economic elite: “to reject every form of corruption, which diverts resources from the poor”.

Certainly, the pontiff must have been briefed about the PDAF and DAP scandals that are proof that almost every senatong, tongressman, president and members of the cabinet are corrupt to the core. In fact, he had even harsher words to say to the thick-faced goody-goodies in the cabinet who are building their election kitties from the miseries of the victims of typhoon Yolanda in Leyte: “but you have seen, in the profiteering and failed responses to this great human drama, so many tragic signs of the evil from which Christ came to save us”. He urged the faithful to pray that “everyone be more sensitive to the cry of our brothers and sisters in need. Let us pray that it will lead to a rejection of all forms of injustice and corruption which, by stealing from then poor poison the very roots of society”.

Then the pope clearly took sides against the rich and in favor of the poor: “I ask that the poor of this country be treated fairly- that their dignity be respected, that political and economic policies be just and inclusive xxx and that obstacles to the delivery of social services be removed”. I do not know about you, but if I were PNoy or a member of his cabinet, this should be read as a big slap on the face coming at a time when even the Commission on Audit reported that the controversial policy of dole-outs known as CCT has been tainted with widespread corruption, ranging from ghost beneficiaries and over-reporting of benefits received by its beneficiaries.

At the UST, the pope could not help but weep when a child asked: “why does God allow the children to suffer?” Earlier, Father Shay Cullen reported that Dinky Soliman’s DSWD caged no less than 400 children to clean up the streets of Metro-Manila for the pope’s visit.

Now that the pontiff has left, what will happen to the message he has imparted?

Well, the President was quick to say that the Pope could not have been referring to his administration when he asked that the government treat the poor with respect. He must still be blaming the past administration, as in fact he did in his address in Malacañang, for the poverty that the Pope decried. Taking the cue from PNoy, Dinky Soliman followed suit and again assured the nation that in the same way that the COA report on the corruption in CCT was erroneous, that Father Cullen’s report about caged street children was also wrong. I take it that both the President and Soliman are saying that the pope received the wrong advice?

Fortunately, the pope did not have to be advised to see the real score in this country. He was so moved by the miseries of the typhoon victims that he was reported to have said that he needed the experience. I’m sure he knew that the reason why the victims suffered even more was because of PNoy’s adoption of the Roxas policy to spare their political enemies relief that government should have given on humanitarian grounds.

And yes, he himself must have seen the plight of the street children in both Tacloban and Manila. Yes, he saw the children the we have been seeing every day but unlike our leaders, took a humane view that the children should not be where they are.

So will our leaders heed the message? Honestly, I doubt it. They will forever gloat about the blessing they received from the Pope having seen him up close at the airport, in Malacañang, and from their front row seats at Luneta.

Yup, we’re back to normal.

This post first appeared on http://manilastandardtoday.com/2015/01/22/falling-on-deaf-ears-2/.

Motion Hearing for Laude Case


Request for Coverage
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

The Motion hearing for the “Motion for Reconsideration” to the December 23, 2014 Order filed by Marilou S. Laude, via counsel, is set tomorrow, Wednesday, 14 January 2015 at 10:00 AM at the Olongapo Regional Trial Court.

Please click here for the full text of the MR.

Laude files Motion for Reconsideration to the December 23 Order


Please click here for a copy of the Motion for Reconsideration filed on January 9, 2014 by Marilou Laude, by counsel, to the December 23, 2014 Order of the Olongapo Regional Trial Court based on the following legal grounds:

I. The 3-day notice rule is not absolute. Its rationale is satisfied when there is an opportunity to be heard– which was clearly present in the hearing for these two motions. The collaborating counsel (Atty. Felimon Ray l. Javier) for the accused, and the public prosecutor (city prosecutor Emilie Fe M. Delos Santos) were present during the 22 December 2014 hearing day for the two motions, and they even made their oral comments.

II. Moreover, there were exigent circumstances as to the filing of the two motions that, consequently, called for a liberal application of the 3-day notice rule.

III. Private complainant filed her two motions in accordance with her “right to access to justice” under international human rights law. Hence, the conforme of the public prosecutors is not necessary to the two motions.

IV. It was not possible to get the conforme of the public prosecutors to the “urgent motion to compel the armed forces of the Philippines to surrender custody of accused to the olongapo city jail” since the head of the panel of public prosecutors, city prosecutor Emilie Fe M. Delos Santos, refused to sign it — in contradiction to the official position of the justice secretary. The city prosecutor also refused to sign the “motion to allow media coverage.”

V. The issues raised in the two motions are issues of transcendental importance and of primordial public interest. Hence, it is essential that the honorable court resolve the two motions on its substantive merits.

Further, private complainant reiterates its prayer that the honorable court allow the media to enter the court room and cover the hearings in this case.

Christmas holiday


It was tough to celebrate Christmas this year. For the first time in many years, I failed to give even my closest friends and ninong and ninangs presents because of my very hectic litigation calendar. Literally, I left Olongapo on the 23rd of December to ensure that I was in the loop in the latest order of the judge hearing the Laude murder case. Of course, as it is in the nature of ironies, I left a few hours before the judge issued her last orders for the year granting Joseph Scott Pemberton a stay of two months while his petition for review with the Department of Justice was pending, and two others which denied our motions to transfer the marine to a local jail and to allow media coverage. Given the nature of this Order, I was answering calls form journalists until about 8 pm of Christmas Eve!

It was great, hence, that the Mrs. had long scheduled a private time with the family after Christmas in nearby Hanoi.

It was not my first time to Hanoi. On my first, I delivered a lecture before Vietnamese government lawyers on the International Criminal Court. On that occasion, my friend, Le Dinh, also a human rights defender, had just been imprisoned and charged with violation of national security laws. In the presence of the Vietnamese Secretary of Justice, I then warned the Vietnamese that membership in the ICC entails a domestic legal system that would protect and promote fundamental rights, such as freedom of expression. This piqued the Justice secretary who in turn, lectured me about the nature of the grave offenses committed by Le Dinh.

What shocked the audience was after the Minister’s outburst, I took back the microphone to debunk his statements one by one. In essence, what I said was that “threats to national security” has long been used by despotic regimes to infringe on freedom of expression, and that the real reason for the suppression was simply that they want to suppress the truth from their people.

I did not return to Vietnam for at least three years since immediately after my lecture, the German Mission (I was invited by the European Union), had to ensure that I board my flight back to Manila. So it was a pleasant surprise that despite this incident, my visit to Hanoi with my family was absolutely hassle- free.

Like any other Southeast Asian country, Vietnam also has what we have an abundance of. The attraction in Hanoi is Ha Log Bay, which literally, is a copy of Coron bay in Palawan. But the difference is like the Thais; the Vietnamese know how to extract every single centavo from visiting tourists. And in fairness to them, the tourists would spend with a sense that the visit was worth the money.

What they have in Ha Long that we do not have in Palawan are at least a hundred cruise liners sailing through the bay and bringing the cruisers to a cave and an hour of kayaking, The cruises included all meals and had sleeping quarters which I have not seen on board any ship in the Philippines.

Yes, the vacation was not perfect. My wife, who booked the cruise, was shocked when she was informed by our guide that the ship looked differently from the promotional pictures because the latter was photo shopped. My wife also was shocked that she paid for a certain quality of rooms, which differed substantially from what we got. And yes, there too were the fumes that kept us awake until the wee hours of the morning. This in addition to the guide’s bad joke that the Vietnamese are thankful to us because we would be devastated first by typhoons that head later for Vietnam.

But by and large, Hanoi remains one of the most charming destinations in Southeast Asia. The city is colorful and vibrant, with lakes scattered all over the city. The old quarters of the city stand in stark contrast to its colonial parts . Certainly, Ha Long Bay deserves to be in the company of our underground river as one of the new seven wonders of the world. But to reiterate, the comparative advantage of our Vietnamese neighbors is that despite their communist background, they appear to have a better developed tourism infrastructure intended to maximize their earnings from any arriving tourist. This can be irritating to some tourists, but definitely good policy for government. When will our Department of Tourism aim to be at par even with Vietnam? We know of course that it is now impossible to be at par with Thailand and Malaysia in this regard!

In addition to our three-night stay in Hanoi, I motored to Baguio for an overnight stay. The Mrs. does not like the long drive to the North and hence, I drove up all by my lonesome self. My mission was to see how much of a difference the newly constructed TPLEX in the trip to Baguio made. And yes, I was very pleased to find out that the new expressway constructed by corporate genius Ramon Ang had cut short the travel by at least half. For while it took us about seven hours to get to Baguio before, the highway had cut travel time to only three and a half hours. Now I only have to persuade the Mrs. that the travel time to the mountain city is abbot the same as any plane ride to any Southeast Asia destination.

Because of the Hanoi and Baguio trips, I feel absolutely refreshed and ready to face the task at hand. Yesterday, we filed our opposition to Pembertons’s Petition for Review at the Department of Justice. Today, we have our first trial date for the Maguindanao massacre. Fortunately, in just about eight days, the Pope has given us another five days of holiday.

Maybe then I can persuade the wife to go up to Baguio? Sana!

Kin of Laude opposes Pemberton’s petition for review


Reference: Atty Harry Roque 09175398096

The family of murdered Jennifer Laude today filed a 34-page opposition to Pemberton’s petition for review with the Department of Justice. According to Marilou Laude, sister of Jennifer, Pemberton’s petition is bereft of merit. Pemberton decried and alleged violation of due process when the panel of prosecutors decided that there exists probable cause on the basis, among others, a report made by the NCIS. “We should be one aggrieved by the NCIS report because until today Olongapo City Prosecutor Emily Delos Santos has refused to give us a copy of the same. Pemberton was given a copy of the report. What is he complaining about now?” Laude asked.

Furthermore, Laude emphasized that Pemberton waived his right to rebut any and all evidence when he opted not to submit his counter affidavit. “Pemberton forfeited his right to be heard, he did so voluntarily with assistance of counsel. He cannot now complain that his right to due process is violated,” added Prof Harry Roque, one of the private prosecutors representing the Laude family.

Bertha fellow Charlaine Latorre further added that charge of murder was proper given that the many bruises sustained by Jennifer are all evidence of treachery and cruelty.

Zharmai Garcia, also a Bertha fellow, observed that there is abuse of superior strength because Pemberton underwent combat training and qualified as private first class in the U.S. Marine. The Laude camp also announced that they will file motion for reconsideration of the orders of the RTC suspending the proceedings, and denying their motion to transfer Pemberton to another jail and for media coverage.

Click here for a copy of the comment/opposition filed today.


pfcpembertonphoto US Marine Pfc. Joseph Scott Pemberton during his booking at the Olongapo Regional Trial Court (RTC) Branch 74 this morning, 19 Dec 2014

Marilou Laude, thru counsel, filed the following motions today at the Olongapo Regional Trial Court:

1) MOTION TO ALLOW MEDIA COVERAGE

2) MOTION TO COMPEL AFP TO SURRENDER CUSTODY TO CITY JAIL

Please click the above links for the full text of the two motion.

Take custody of Pemberton now


With the issuance of the warrant of arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude, it is now incumbent on the Philippine government to insist on custody over the person of Pemberton. At this juncture, all law enforcement agencies should ensure that the warrant is served on the accused. This means that the Philippine National Police and the Armed Forces of the Philippines should physically take custody of Pemberton and deliver him to Branch 74 of the Regional Trial Court, which issued the warrant of arrest.

It is our position as private prosecutors that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.

According to the provisions of the Visiting Forces Agreement, in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request in “extraordinary cases” such as murder. This was the interpretation of no less than our Senate when it concurred with the Visiting Forces Agreement.

This interpretation is also in accord with Department of Justice Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cuevas, himself a retired Supreme Court Justice, stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.

We as private prosecutors demand therefore  that that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now.  It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.

Anent our still unresolved motion to disqualify Olongapo City Prosecutor Emilie De Los Santos from the prosecution panel, we expect the said motion to be initially resolved by her without prejudice to appealing whatever order she may issue to the Department of Justice.

It bears stressing that while all criminal prosecutions are carried out on behalf of the state, the reality is that private prosecutors, as a matter of practice, are delegated the prosecution of the case subject to the “direct control and supervision of the public prosecutor”. This control and supervision is proof that where a private complainant retains a lawyer for the civil aspect of the case, private prosecutors are allowed to actively prosecute the case for and in behalf of the state. It is only in high profile cases that public prosecutors opt to directly participate in the prosecution for obvious reasons.

While it is our position that we are amenable to working with public prosecutors in the Laude case, my experience in the Maguindanao massacre case that it has taught me the importance of having a united prosecution team consisting of both public an private prosecutors. Already, I have shown my track record when I openly sided with the public prosecutors in the Maguindanao case when a fellow private prosecutor accused them of corruption. This proves that I have proven my professionalism in working with public prosecutors. I will not refuse to work with any of them for any other reason than the welfare of my client. My problem with Chief De Los Santos is from Day One, she has been antagonistic towards us because of her alleged prior unpleasant experience with the private prosecutor in the Smith rape case. But despite this, I tried all the tricks I knew to convinced e los Santos that I am not a carbon copy of the private prosecutor that she had disagreements with. I finally gave up when I learned that in my absence, she has not stopped her public tirades against me.

For the record, it is not just the inter-personal strains that led my co-counsel, Virgie Suarez-Pinlac and I to move to disqualify De los Santos in the case, although that would be suffice by itself. It was also because of the city prosecutor’s refusal to furnish us with a copy of the NCIS report, which had a heavy weight in the resolution of the criminal complaint, which we filed. While the De Los Santos did rule in our favor, this does not detract from the fact that she deprived us of a vital piece of evidence by the panel in their finding of probable cause. This is akin to the procedure declared unconstitutional by the Supreme Court at least thrice where then President George Bush sought to deprive respondents in Guantanamo Bay access to evidence adduced against them. According to the US Supreme Court, this kind of a procedure that deprives either of the parties to a proceeding vital evidence does not comply with minimum standards of fair play recognized by civilized nations on earth.

Worse, De los Santos made an issue when after discussion with the Laude family, we made public pictures of Jennifer at the crime scene. Yes, that was in bad taste. But the family and the legal team nonetheless decided to go public with the pictures so that the public may be informed that contrary to Pemberton’s defense, his killing of Jennifer was murder and not just homicide. Besides, that picture formed part of our filing with the Olongapo Fiscal’s office. It was not as if we did not have the said photograph from the inception of our filing.

And yet, when it came to the evidence that the DNA from the used condom found in the crime scene was not that of Pemberton, De los Santos held a special hearing, despite the fact that the case had been submitted for resolution, just to announce the adverse finding against the complainants. De Los Santos was fuming mad when we released evidence favorable to the complainant. At the same time, she had no hesitation to go public that crucial evidence, the semen, was not from Pemberton. Where is the logic in this?

In any case, while public prosecutors represent the State in the criminal case, the Supreme Court has repeatedly ruled that all lawyers in court are equal since they are all officers of the court. Certainly, the fact that private complainants have lost trust in a Public Prosecutor should be considered by the Department of Justice. As officers of the court, fiscals still have a fiduciary relationship with the victims.

I invite the city prosecutor to respond to my allegations and I will yield this space next week  for her response.

URGENT EX-PARTE MOTION FOR CORRECTION OF THE ARREST WARRANT for Accused Joseph Scott Pemberton


Marilou S. Laude, thru counsel, filed today at the Regional Trial Court in Olongapo, an URGENT EX-PARTE MOTION FOR CORRECTION OF THE ARREST WARRANT for Accused Joseph Scott Pemberton.

Click here for the full text of the EX PARTE MOTION TO CORRECT WARRANT OF ARREST.


Take Custody of Pemberton Now

Centerlaw welcomes the issuance of the Warrant of Arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude. Centerlaw represents the family of Jennifer Laude.

According to Ethel Avisado, lawyer and Bertha Foundation Fellow with Centerlaw, “We are closely monitoring what actions that the government will take, in particular the Department of Foreign Affairs, to ensure that the Warrant of Arrest is served and we get custody of Pemberton at the soonest possible time.”

Centerlaw’s position is that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.

According to the provisions of the Visiting Forces Agreement (VFA), in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request. This is clear from the Senate deliberations on the VFA and the text of the VFA itself.

The official position of the Philippine government as contained in the Department of Justice (DOJ) Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cueves stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.

Centerlaw Chair Harry Roque states, “We demand that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now. It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.”

Roque added that, “ DOJ Undersecretary Jose F. Justiniano should stay away from this case for he has a clear conflict of interest being part of the legal defense team of US soldier Lance Corporal Daniel Smith in the People of the Philippines versus Smith rape case”.

Binay is still on top


The reality is that despite his detractors having thrown the kitchen sink at him, Vice President Jejomar Binay remains the top choice of the country for the Presidency in 2016.

This hardly comes as a surprise given his proven managerial skills as chief executive of the country’s financial center, and his credentials as a lawyer, a humans rights advocate, housing czar, and as a person who genuinely came from the ranks of the poor. Binay’s very high ratings- despite the alleged overpriced Makati City Hall Annex and the so-called Hacienda Binay -is a testament that the people have clearly made up their minds on his fitness for the country’s highest post.

It is also proof of what I warned his detractors about before: it is not enough to destroy a person’s reputation. The people will demand that those who seek higher office prove their own credentials. Clearly, the negligible 3 percent received by my friend Senator Alan Cayetano indicates that the voters are casually asking him: if you are offering yourselves as the alternative to Binay, prove that you have what it takes to succeed. Judging by the single percentage support that Cayetano received from the people, he clearly has to move on to something more constructive to be more acceptable to the voters.

Despite the fact that Binay is still on top, one has to acknowledge that perhaps the biggest gainer in the recent survey is Senator Grace Poe. I have always been fond of Grace Poe. While we missed her in the fight against the cheater President Gloria Macapagal Arroyo, I was happy when she surfaced to continue the fight that her father had started. The fact that she landed first in the last elections is a testament that our voters want to make amends to the late Fernando Poe Jr. Clearly, the electorate has rewarded her for the heartbreak and the injustice that her father suffered in the hands of Garci et al.

But Grace Poe is not just a factotum of her father. Already, she has begun to prove her mettle with her Senate investigation against PNP Chief Alan Purisima, her authorship of the Freedom of Information bill, and her Senate hearings on poverty.

I had the pleasure of seeing her in action when she invited me as a resource person on a piece of legislation that would declare the anniversary of the Maguindanao massacre as Press Freedom Day. She appeared well versed in the draft legislation, astute in her perceptions, and probing in her questions. She is clearly walking the talk when she said that she has shelved any immediate plans for higher office so she can be the best in her current role as senator. I have no doubts that after 2016, Grace Poe may be destined to be the next President of the Republic.

Meanwhile, and I have long advocated for this, I hope to see “Binay na Poe for 2016”. They would be an unbeatable tandem. Let’s hope that those who cheated Poe’s father and belittled him when he was alive will not interfere with her natural political maturity and cajole her into seeking the Presidency in 2016, even before she is able to learn the ropes of governance.

If there’s a biggest winner, there’s also a biggest loser. This clearly is the administration bet, Mar Roxas. I do not know what happened to Mar. I myself was for him until former President Cory Aquino’s sudden demise and destined PNoy for the presidency. At this point, Mar should gather his old guards and have an honest assessment of where he went wrong. Let’s face it, Mar should have scored more than 6 percent after his cohorts in the Senate launched their witch hunt against Binay. Full stop.

The good Justice Ingles

I intentionally left out from my column last week the highlight of the Manila Summit on Judicial Integrity and Accountability. This was not because he was not newsworthy. On the contrary, he was the highlight of the event.

Justice Gabriel T. Ingles is one of the few magistrates that has refused to receive allowances from either the City or the Province of Cebu. This is equivalent to no less than P64,000 monthly in allowances. He has refused the allowances on the basis that it would compromise his judicial independence since the city and the province could have cases with the Court of Appeals.

Considering that a Justice’s full salary amounts to no more than P125,000 per month, this means that Justice Ingles has given up effectively a third of what he could be earning to uphold judicial independence. To the skeptic who thinks that our society is hopeless insofar as corruption, and lack of accountability on the part of our public officers, think again. Justice Ingles is indeed a beacon of hope that the struggle for integrity and accountability could still be realized.

Kudos to the truly good Justice!

This post first appeared in http://manilastandardtoday.com/2014/12/11/binay-is-still-on-top/.

Manila summit


The Center for International Law, a civil society organization that promotes the binding nature of international law in the Philippines and in Southeast Asia, with support of the Konrad Adenauer Stiftung, has been holding a three-day Manila summit on Judicial Integrity and Accountability.

Keynote speaker was Justice Michael Kirby of the Australian High Court, the highest court there, who discussed the Bangalore principles on Judicial Integrity. These principles include, among others, independence, integrity, and probity of judges.

I then delivered a paper on lessons learned from the conviction of former Chief Justice Renato Corona. For the first time, I divulged that the decision to impeach and convict Corona was an order emanating from President Benigno Aquino III after he suffered a string of losses before the Supreme Court. This decision came after his initial position that despite Corona accepting an unconstitutional appointment as Chief Justice from President Gloria Arroyo that he would work with him in order to prevent a “constitutional crisis”.

I divulged for the first time a telephone conversation I had with PNoy in relation with the plagiarism of Justice Mariano Del Castillo when PNoy, before his string of losses, rejected my suggestion to support the impeachment of Del Castillo precisely to avoid a “constitutional crisis”. Obviously, such a concern was jettisoned a year into his administration when the Supreme Court declared the Truth Commission and other policy initiatives of PNoy as being unconstitutional. While I argued that Corona’s conviction for failure to declare $10 million was indeed a legal ground to remove him from office, the motivation for his ouster was nonetheless to undermine the independence of the Supreme Court.

DCA Raul Villanueva, for his part, announced that the Sereno Court was serious in purging misfits from the ranks of the Judiciary as exemplified by the removal of Sandiganbayan Justice Gregory Ong because of his dealings with PDAF queen Janet Lim Napoles. He underscored that this seriousness is why the Court did not require direct evidence of malfeasance before dismissing a judge.

Yesterday Marites Vitug talked about her book “Shadow of Doubt” and expressed the hope that the Supreme Court would be more transparent in its dealings with the public.

She noted that the Court has refused to disclose the SALNs of the Gods of Padre Faura, even if it has authorized the relapse of the SALNs of the Sandiganbayan justices. She also noted that there were no statistics available on the caseload of the Justices so that the public can know who among them comply with the time frames required by the Constitution to resolve pending cases before them.

After Marites, Dr Ana Maria Tabunda of Pulse Asia discussed the public perception of corruption in the Philippines. According to her, there is a slight decrease in the number of respondents saying they have had experience with corruption, from 29 percent to 14 percent from 2003 to 2009. However, 81% of those who said yes said they did nothing about it. The good news though is that 70% of the respondents said that they did not see corruption as in any way justified.

Most interesting in the Pulse Asia Survey report was the fact that PNoy’s flirting with a second term through a constitutional change was responsible for the public’s rejection of the “Daang Matuwid” slogan of this administration. According to her, the slogan would be a kiss of death in 2016 because the very floating of a second term for PNoy was seen by the public as a betrayal of the promise to pursue the right path.

Having been an academic for the past 15 years and after attending at least a hundred conferences, I have to say that this summit on Judicial Integrity and Accountability has been one of the very best conferences that I have been to. The only regret I have is that the Supreme Court rejected our invitation to be a partner of this conference. It would have greatly beneficial to our Judges and Justices to have heard he insights of the world’s most respected Jurists who also include Dato Param of Malaysia, the UN Special Rapporteur on Independence of Judges for whom the International Court of Justice rendered an advisory opinion that UN Rapporteurs enjoy functional immunity. This was an advisory opinion after Malaysian Premier Mahathir sued Dato Param for libel after he called the Malaysian judiciary “corrupt”.

Oh well, maybe soon, we will have a more transparent and more open Judiciary.

Justice Kirby took time out to do a side lecture at the UP College of Law on “marriage equality”. J. Kirby is an openly gay man who has been in a relationship with the same man for the past 45 years. It was his learned opinion that love is personal and that at some point, jurisdictions such as the Philippines and Australia, both of which do not recognize same-sex unions, would. A majority of the students present voted that the Philippines would eventually allow same-sex unions.

This post first appeared in http://manilastandardtoday.com/2014/12/05/manila-summit/.

The Sol-Gen’s defense of EDCA


It was Florin Hilbay’s first appearance as acting Solicitor-General last Tuesday when he defended the Enhanced Defense Cooperation Agreement before the Supreme Court. Unlike petitioners who divided the issues identified by the Court amongst five speakers, Sol-Gen Hilbay defended EDCA alone. As a former Associate of Retired Justice Vicente Mendoza, it was expected that Hilbay would highlight what he probably thought were the insurmountable hurdles to justiciability.

On top of his argument was that none of the petitioners is an incumbent member of the Senate who is complaining that their discharge of their official functions, such as giving concurrence to treaties, was violated.

Outside of technical objections, Hilbay argued that the President’s decision to enter into the EDCA was an inherent discharge of his executive powers as chief architect of foreign relations. He also said that the President entered into the EDCA as part of the Chief Executive’s power to ensure the security of the public, especially against the threat of modern-day terrorism.

On the crux of the controversy, Hilbay argued that EDCA was a mere executive agreement which fixes the details of the earlier signed Mutual Defense Treaty and the Visiting Forces Agreement. He emphasized that the “pivot to Asia” was not a new policy but one that merely reallocates US forces into Asia. He highlighted that the EDCA, as an Executive Agreement, does not authorize the Americans to perform acts, which have not been previously authorized by both the MDT and the VFA. In fact, according to him, unlike the earlier Military Bases Agreement where the US bases were deemed to be the “extension of the territory of the United States, the EDCA does not authorize ‘extra-territorial’ exercise of jurisdiction.” According to him, under EDCA, the military bases shall continue to be part of Philippine territory and that the Americans cannot engage in any form of activity without the consent and approval of Philippine authorities. He emphasized that “operational control” of the Americans only applied to the construction of facilities, but Philippine authorities would have full control over all “agreed locations” where the US would be allowed to preposition defense equipment and supplies, as well as deploy troops on a rotational basis.

As to be expected, the Acting Solicitor-General had his baptism of fire. Justice Marvic Leonen was unrelenting in his queries. He started by discussing Article 7 of Article XIII of the Constitution and asked the same questions he asked of me: whether there ought to be a difference between a treaty and an international agreement, both of which require the concurrence of the Senate. Then he inquired on the prohibitory nature of Section 15 of Article XVIII and elicited Hilbay’s agreement to my position that the same is lex specialis. Where he differed is his assertion that Section 15 applies only to permanent bases and not to the presence of troops and facilities. The latter, he argued, were already within the coverage of the VFA.

Justice Leonen grilled Hilbay on the fact that in the case of Medellin vs. Texas, apparently, the EDCA does not have the force and effect of law under the laws of the United States. Under the case cited by Leonen, treaties can only have the effect and force of law in the US if the treaty itself is self-executory and if a statute implements it. In this regard, Hilbay insisted that the VFA has been declared constitutional at least three times in three separate petitions filed substantially by the same parties. He also said that Leonen’s reading of Medellin was the mere dissenting view of J. Antonio Carpio.

Leonen then compared the language of the EDCA and the rejected Military Bases Agreement of 1991. He noted that contrary to the position of the Sol-Gen, it appears that even under the rejected treaty, the Philippines also had the right to approve all activities of the Americans. This, in my mind, was a very strong point against the position taken by Hilbay as a comparison of the text of EDCA and the MBA would indeed show that Philippines has always maintained its right to approve all activities of the Americans in our territory.

Justice Carpio took the same stance as he did when I argued last week. He was able to get a concession from Hilbay that while the US has always had a treaty obligation to come to our assistance in case any of our islands are attacked, it refused to come to our assistance when both the Scarborough and Mischief Reef were forcibly taken from us by China. He agreed with J. Carpio that in reality, the EDCA ad the MDT are not guarantees that the US will come to our assistance should our islands in the West Philippines Sea be attacked by China, simply because the US has always taken the stand that they “do not take sides in the on-going island disputes” in the West Philippines Sea.

Justice Teresita De Castro, for her part reiterated that Senate concurrence is necessary if we are to exercise jurisdiction over US military personnel. She noted the country’s generosity when we agreed that the US can use our facilities free of rent.

The parties were then given 20 days from Tuesday within which to file their respective memorandum. After which, the Court is expected to rule on whether the petitioners were successful in proving “grave abuse of discretion” when the President entered into the EDCA.

It’s not fun to be a columnist and an advocate. You’re dying to take sides and should not. Darn!

This post first appeared in http://manilastandardtoday.com/2014/11/28/the-sol-gen-s-defense-of-edca/.