To get a copy of the original complaint filed on November 22, 2011 by the families of the Maguindanao massacre victims, please click here Salaysay,etal vs PGMA_COMPLAINT22Nov2011
Please click here for a copy of the Sherrif’s Return of Alias Summons in the Salaysay, et al. vs Arroyo
The court has previously granted the petition of the widows to file as pauper litigants in the class suit against the former president.
Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.
In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.
Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.
My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.
The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.
But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.
Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”
Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”
Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”
Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”
She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.
Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.
While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.
We have Judge Xue to thank for this.
Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roque’s presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”
For the 4th year commemoration of the Maguindanao massacre, the Center for International Law (Centerlaw) will hold/attend the following activities:
FRIDAY, NOVEMBER 22
10:00 AM Mass, Fr. Robert Reyes, celebrant
Soliven Room, G/F Malcolm Hall, College of Law, UP Diliman
11:30 AM Families of the victims of the Maguindanao massacre will file petition at the United Nations Human Rights Committee (immediately after the mass)
12 NOON With the UP Community : Maskom Vigil and March around UP Diliman Academic Oval
4:00 PM With NUJP: Human Chain Protest along Roxas Boulevard
SATURDAY, NOVEMBER 23
10:00 AM “Kumusta na ang mga naulila?”, a press conference with the families of the victims of the Maguindanao massacre
CMC Auditorium, College of Mass Communication, UP Diliman
Note : Centerlaw’s Mindanao based clients will be in Manila from November 21 to 24. Requests for interviews are welcome. Kindly contact Atty. Harry L. Roque, Jr. (09175398096) or Centerlaw (750-3847 to 48).
Credit should be given where it is due. President Noynoy Aquino should be commended for rejecting the option of exercising dictatorial powers. At a time when his popularity has gone on a free fall, courtesy partly of the bad mouths in charge of his communications, the President still rejected suggestions for him to be a dictator by imposing Martial Law in Tacloban. Lesser mortals would have taken advantage of the situation.
There is no doubt that the humanitarian crisis resulting from the strongest typhoon ever has caused complete breakdown of law and order in Tacloban. Media have reported rampant lootings and the perpetration of other crimes, including murder, in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, I am happy that PNoy rejected the temptation to exercise powers of a dictator.
Under our Constitution, the President has three extraordinary powers as Commander-in-Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. In cases of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.
PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege of the writ of habeas corpus or the declaration of martial law should be exercised with caution. This is because freedoms are protected by the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.
Moreover, the correct response to the crisis, in addition to his calling out power, is the declaration of a state of calamity. Legally, such a declaration would authorize local governments to spend their calamity funds even without local ordinances. While I am not certain about the legal effect of what was actually declared, that of a “state of national calamity”, I suppose that such a declaration was a fusion of the calling out power and authority for local governments involved in the ravaged areas to spend their calamity funds.
Of course, the perpetrators of the unconstitutional Disbursement Program will, like Napoles and PGMA, capitalize on the Yolanda disaster to justify the DAP anew. But what we do know is: one, there’s still funds left in the appropriation for calamity funds; and two, if the funds are insufficient, the remedy would be to pass a special appropriation to address the crisis. Of course, the use of savings, provided it complies with Demetria vs. Alba, that is, it comes from savings in the executive to be used in connection with an existing line item, is still an option. The controversy over DAP is not whether the President can do this, but whether the use of savings to add further programs which are not provided in the budget law and /or whether the President can use savings from the executive and disburse them to another branch of government such as the Senate. This was of course what Senator Jinggoy Estrada revealed: that each Senator who voted to remove former Chief Justice Corona was given P100 million each from savings of the executive.
PNoy, for all his other shortcomings, should be commended. Recall that his predecessor, the “evil one”, exercised the calling out power thrice and declared martial law twice, albeit the first one, declared to be unconstitutional in David vs. Arroyo, was undeclared . It is no small feat hence for a President to resist the temptation to trample upon civil liberties. Certainly, the Marcos dictatorship was proof of this. All freedom-loving Filipinos should hence commend PNoy for rising up to the challenge and rejecting the allure and temptation of dictatorial powers.
(Published in the Manila Standard Today on November 14, 2013)
(Posted in http://manilastandardtoday.com on November 6, 2013)
I am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Initiative.
The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.
Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.
The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is even at this time and age, many of the regimes in the region lack popular mandate. When they do enjoy the mandate, like PNoy, they are allergic to criticism.
Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.
The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
The “safety valve” function, finally, was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”
The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.
Remembering my mother on her first All Saints’ Day
Prof. H. Harry L. Roque, Jr. is an Associate Professor at the UP College of Law and the Chairperson of the Center For International Law. This piece originally appeared in his website on October 31. We are re-posting it here with his permission.
(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on September 19, 2013) http://manilastandardtoday.com/2013/09/19/obama-and-the-future-of-the-un/
While all our attention was divided between the Priority Development Assistance Fund scam and the war in Zamboanga, we failed to give sufficient attention to an important development that could change the course of history. I am referring to President Barrack Obama’s seeming resolve to resort to unilateral use force in Syria.
I cannot help but be sympathetic to Obama’s cause. We have observed for the last two and a half years how innocent civilians have been fired upon by armed elements of the Syrian security force. While the shootings have become regular, the fact that there has not been an organized armed group opposing the Assad regime does not even make the laws and customs of warfare applicable to the conflict. The shootings have been so widespread that the UN now estimates the death toll to have reached 100,000 since 2011, when demonstrators were first upon by the ruling Ba‘ath government.
Now, the US President claims that in addition to conventional weapons, the Assad regime has resorted to the use of chemical weapons against its people. This was the last straw for the US President.
Unfortunately, the issue on the unilateral use of force goes beyond whether a state can intervene on humanitarian grounds. The issue in fact, is the very survival of the United Nations system, imperfect as it may be.
When countries of the world signed the UN Charter after the second World War, it was their intention to spare mankind form the “scourge” of yet another world war. The means that to achieve this was to prohibit the use of force save for two well-defined exceptions: by way of self defense, where a state is attacked and the use of force to repel it is necessary and proportional; and two, when the use of force is authorized by the United Nations Security Council as a collective security measure under Chapter 7 of its Charter.
What is material to Obama’s threat of resort to unilateral force is not the exception of self-defense, as the US has not been the object of a military attack. It is whether the use of unilateral force may be resorted to. I say unilateral the US action contemplated does not have the sanction of the Security Council.
Truth to tell, this has not been the first time that the Security Council failed to authorize the use of force. At the height of the internal chaos in Congo, it was the General Assembly, through the “uniting for peace resolution” and not the Security Council, that authorized the sending of peace-keeping forces in the Central African state to restore peace and order. Russia then vetoed or threatened to veto any resolution in the Security Council authorizing such a deployment. When the UN sought to collect from Russia its proportional contribution to the effort, Russia refused to pay, arguing that the peacekeeping force was contrary to the UN Charter since it was created sans a Security Council resolution. The International Court of Justice ruled that Russia must pay because while the Security Council has primary jurisdiction in the maintenance of international peace, it does not have a monopoly over this.
The issue in Syria today is more serious than what happened in Congo because even the closest allies of the US, the UK in particular, have refused to resort to the use of force in contravention of the UN Charter, The issue is not whether there is a humanitarian reason to intervene, as there has been since 2011, but whether we can do away with the UN Charter today and the means envisioned by it to maintain international peace.
We do not doubt for a second that Assad and his men should be held criminally for their acts. This is why the international community has created the International Criminal Court. Neither do we deny the urgency of the humanitarian crisis at the moment. At issue, however, is this: If countries were to use force on their own, contrary to the UN charter, what would be a better alternative to the current system?
It is wrong the Russia has been blocking efforts to authorize the use of force in the Security Council against the Assad regime. But even so, the risk of countries resorting to unilateral force at their discretion is even more frightful. It may result in worse humanitarian disasters compared to those already happening on the streets of Damascus.
Moreover, if humanitarian intervention has already crystallized in international law as a further exception to the prohibition on the use of force, there is a mechanism in the UN Charter itself that may be resorted to amend its provisions on the use of force. Absent such an amendment, any unilateral use of force would constitute an even worse threat to international peace.
BE THERE AND LET THE MESSAGE BE HEARD: NO TO ALL FORMS OF PORK!
The Center for International Law (Centerlaw), counsel for Palawan Civil Society that questioned the constitutionality of P.D. 910 and E.O. 683 providing for an interim sharing agreement between the national government and Palawan provincial government granting Palawan only 20% net of the earnings of Malampaya – welcome the Supreme Court’s issuance of a TRO on the further release of Malampaya fund.
Prof. Harry Roque, Chair of Centerlaw and Counsel for Palawan Civil Society said, “Better late than never”.
Roque added, “We filed to declare that the Malampaya Fund cannot be spent as a discretionary fund or pork barrel of the President as early as 2002 when government first earned royalties from the Malampaya fund. It took the court eleven years to restrain the illegal spending and only after Napoles and her cohorts allegedly malversed 900 Million of it.”
A further 23.6 Billion of Malampaya Funds is being audited by COA on suspicion that the sum has also been malversed. The Petition against the spending of the Malampaya fund as pork barrel was filed by Kilusan Love Malampaya (KLM) led by Bishop Pedro Arigo, the late Gerry Ortega, Ceasar Ventura and former DILG Secretary Cesar Sarino.
This post was published in the Oxford Human Rights Hub at http://ohrh.law.ox.ac.uk/?p=2764
On November 23, 1944, Japanese troops descended on the town of Mapanique in the Philippines. The troops gathered men and boys in the town and proceeded to castrate them. Afterwards, the men were forced to put their severed sexual organs in their mouths before they were burned to death en masse. Women and girls were marched to what is known today as “Bahay na Pula” (red house) in San Ildenfonso, Bulacan. There, they were interred and repeatedly raped.
Members of the Malaya Lolas rallying outside the Philippine Supreme Court
The magnitude of the Japanese cruelty in Mapanique can be attributed to several causes. The town was known to be a hotbed of resistance to Japanese rule. It was in Central Luzon where the guerilla movement, HUKBALAHAP, was formed only months before the siege. One of the movement’s most respected leaders Commander Dayang Dayang was a native of Mapanique. The Japanese troops were also growing desperate because they knew they had already lost the war.
Fifty years later, inspired by the revelations of South Korean women who publicly admitted that they were victims of the Japanese comfort women system, about 60 victims of war crimes from Mapanique formed the group known as Malaya Lola’s, or liberated grandmothers. While primarily an organization of women who were raped by the Japanese during the Mapanique siege, it also includes in its roster women whose husbands, sons and other male loved ones became victims of Japanese war atrocities.
In 2004, the Malaya Lolas filed suit in the Philippine Supreme Court to compel the Philippine government to espouse, or sponsor, their claims for compensation from the Japanese government. Prior to this suit, the Malaya Lolas had a suit for reparations dismissed by Japanese courts on the ground that the women do not have personality to sue under international law. The Japanese courts opined that the Philippine government must sponsor their claims. Hence, the case Vinuya et. al. versus Executive Secretary.
The position raised three points: one, mass rapes against civilian populations have always been subject of a non-derogable prohibition in times of war; two, it is also subject of a duty for all states to investigate, prosecute and punish the perpetrators thereof. And three, the commission of mass rape will not only entail the duty of a state to pay compensation as a consequence of the doing an internationally wrongful act, it is also the basis for individuals to incur individual criminal responsibility.
To counter the Philippine Government’s position that further reparations are barred by a waiver which the Republic had signed, the women argued that the waiver is null and void for being contrary to public policy and also that the state cannot waive a right that inures to its nationals.
6 years after the filing of the Vinuya case, and after 20 of the original petitioners had died, the Philippine Supreme Court unanimously dismissed the Malaya Lola’s petition. In its 33 page decision, the Court said that the claims for compensation are barred because of the San Francisco Peace Pact. In exchange for nominal war reparations, the government was said to have waived any and further claims for compensation from Japan, a view consistently espoused by the Department of Foreign Affairs. Furthermore, the court ruled that while it commiserates with the sufferings of the women of Mapanique, this, allegedly, is one instance where there is a violation of right but bereft of a legal remedy. The Court also said that while rape is prohibited, there is no non-derogable obligation to investigate, prosecute and punish those who committed mass rape as a war crime. This decision is the second siege of the women of Mapanique.
Fortunately, the women of Mapanique have found new allies in their continuing search for justice. Pending resolution of their motion for reconsideration, the Korean Constitutional Court, ruling on a petition with the same issues as those in the Philippine Supreme Court, ruled that the Korean government must espouse the claim of the Korean comfort women. Further, the European Center for Constitutional and Human Rights filed intervention in the Philippine Supreme Court to argue that pacta sundt servanda cannot prevail over the jus cogens prohibition on rape. The intervention of the ECCHR in the case was facilitated by a non-profit organization, the Bertha Foundation, which has been funding young lawyers in both the ECCHR and Centerlaw, and counsel of the comfort women in the Philippine case.
Joint Statement of the Center for International Law (Centerlaw) and Concerned Citizens Movement (CCM) on Napoles surrender to PNoy
The Center for International Law and Concerned Citizens Movement express their concern that the President’s decision to allow Napoles to surrender to him, while legal, may have been unwise.
Certainly, Napoles could have surrendered herself to any SPO1 or to the nearest police station. She did not have to surrender to the President himself. The fact that the President allowed her to surrender to him may send a message that administrative allies may be spared from the ongoing investigation of irregularities on the spending of the PDAF.
“People expect Napoles to sing. The fact that she surrendered to the President may be viewed by the people as a signal that she will only implicate those in the opposition,” said Prof. Harry L. Roque, Chair of Centerlaw and co-convenor of Concerned Citizens Movement.
Roque stated that the investigation into the pork barrel should include everyone most especially those in the administration. Roque further added, “The kind of abuses that were committed by Napoles could only have been done by those in the
political majority. Everyone involved should be investigated regardless of their political affiliation.”
The President’s announcement of the alleged abolition of the PDAF or the pork barrel is proof that no government can ignore public opinion. Nonetheless, Centerlaw and the Concerned Citizens Movement express concern that what the President may have announced is only a change of name. PDAF used to be known as the CDF or the Countryside Development Fund. It was named PDAF after investigative journalists exposed the CDF as pork barrel. It may be that this alleged abolition of PDAF is yet to be another renaming.
To completely do away with pork barrel, what is required is to abolish all lump sum appropriations. Under the scheme announced by the President, legislators will continue to identify projects. This may mean that legislator’s discretion on project identification and implementation may remain.
Moreover, all forms of pork barrel must be abolished. Specifically, the Malampaya fund must be spent pursuant to the Local Government Code.This means putting an end to presidential discretion on spending this multi-billion fund. Likewise, the judiciary must once and for all also be transparent on its spending of the judiciary development fund. It must also make public and do away with the discretionary fund of all justices.
The President’s announcement today is proof that public anger cannot be ignored. We must not, however, be deceived. The pork barrel will continue despite this latest presidential pronouncement. WE STILL NEED TO OCCUPY LUNETA ON MONDAY, AUGUST 26, 2013, STARTING 9:00AM.
In February of 2004, civil society led by Bishop Pedro Dulay Arigo of Palawan, Cesar Sarino, the late Dr Gerry Ortega, the late Dr. Jose Antonio Socrates, Prof. Oscar Evangelista and Cesar R. Ventura and I filed suit before the Supreme Court questioning the legality of President Gloria Macapagal Arroyo’s use of the government proceeds from the Malampaya natural gas field. Petitioners, before going to the Supreme Court, had previously filed suit in the RTC of Palawan and the Court of Appeals, pursuant the hierarchy of Courts.
The petitioners’ complaint was simple. Under the 1987 Constitution, local governments were given a fair and equitable share in the revenues derived from natural resources found in their area. Under the Local Government Code, this share was defined as 40 percent of all gross government receipts from these resources. Palawan civil society then argued that a provisional sharing agreement entered into by Mrs. Arroyo and the then-local leadership of the province providing that Palawan shall be entitled to 20 percent net of all government revenues was unconstitutional.
This was on at least four grounds: First, the interim sharing agreement amended the legal provision on how much the entitlement should be: from 40 percent of gross to 20 percent net; Second, it amended the local government code in the manner by which it was to be shared by the barangay, municipality and province where the resources are found. Under the law, the province shall have 20 percent of such revenues, while the municipality and the barangay are to have the lion’s share of the revenues: 35 percent and 45 percent, respectively. The sharing agreement called for projects to be identified by the two representatives of the province, its governor, and the mayor of Palawan. Third, the Code provides the manner by which the money was to be spent: 80 percent of all sums should be applied to lower the cost of electricity in the province, while the remaining 20 percent should go to local government projects and for livelihood. The Interim sharing agreement made the fund additional pork barrel for the two representatives of the province and its other local officials. The fourth argument of the petitioners would prove to be perhaps the most important argument in promoting good governance. Petitioners argued that the manner by which Mrs. Arroyo entered into the agreement was unconstitutional because she spent the funds without congressional authorization.
In entering into the questioned sharing agreement, PGMA invoked the provision of a little known Marcos Presidential Decree 910, section 8 of which reads: “—Section 8. x x x production share on service contracts and similar payments on the exploration, development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.” Petitioners argued that this violates the rule that no money shall be paid out of the national treasury without appropriation by law.
PGMA, on the other hand, argued that because of the foregoing PD, all government revenues earned from Malampaya are in the nature of a special fund which can be disbursed at the pleasure of the President.
It was this argument that later led COA to conclude that at least P2.3 billion of the Malampaya funds were misused by local government officials of Palawan including its fugitive ex-governor Joel Reyes and the defeated Baham Mitra. Unfortunately, it was this interpretation that also led to the disbursement of the first tranche of P900 million Malampaya release that COA now says were plundered by Napoles and her cohorts. Ironically, the first tranche released to Napoles was authorized only two days after our oral argument in the Supreme Court on November 24, 2009. Worse, it is this interpretation that led to the release of a further P26.3 billion of Malampaya funds which early reports now say may have been released and malversed by Arroyo shortly before the 2010 elections.
It comes hence as no surprise that much of the scandal unearthed by the Napoles revelations involve the Malampaya funds. To begin with, the popular clamor that there “shall be no taxation without representation” was based on the idea that the people’s representatives should authorize all public spending and shall exercise oversight on the manner the sums are spent. Because the Malampaya funds were spent without congressional authorization, and hence without oversight, it was spent for any and all purpose that the President desired, And when you have a kleptomaniac for a president, that meant spending the money all for naught.
I cannot help but also blame the Court for this fiasco. The Malampaya petition has been pending in our courts since 2004. It reached the Supreme Court in 2009 after passing through the hierarchy of courts, Until today, it has not been resolved. Had the court acted on the petition seasonably, we may have prevented Napoles from squandering P900 million worth of public funds that could have gone to livelihood and lowering the cost of electricity in Palawan. We may even have prevented the further plunder of P26.3 billion worth of Malampaya revenues and applied the same not just for national defense, but also for education and heath purposes. As the saying goes, “justice delayed is justice denied.”
I rest my case.
Please see attached a motion we will file tomorrow with the Supreme Court on the Malampaya fund mess. For background, we also attach a copy of the petition we filed with the High Court in February 2009.
In February 2009, a group of petitioners led by Bishop Pedro N. Arigo, filed a petition with the Supreme Court questioning what they said was the illegal and unconstitutional use by the national government of the multi-billion dollar Malampaya fund through the issuance by President Gloria Macapagal Arroyo of EO 683 which authorized the “use of fees, revenues and receipts from service contract no. 38 for the implementation of development projects for the people of Palawan.”
About ten months after the case was filed, on November 24, 2009, the Supreme Court heard oral arguments on the issue raised by the case.
Nearly FOUR YEARS have come and gone since the oral arguments in this case were heard by this Honorable Court; within that time frame, the systematic plunder of the Malampaya Funds – the very reason this case was brought to the Supreme Court by Petitioners – have apparently gone on unabated, as seen in the Janet Napoles pork barrel scam; Napoles is alleged to have begun raiding the fund just two days after the oral arguments at the High Court, eventually making off with P900 million from the fund.
Meanwhile, one of the original petitioners when this case was still with the trial court level– Dr. Gerry Ortega, has died in the hail of assassin’s bullets – apparently because of the exposes he had made as a radio broadcaster on the massive corruption involved in the government’s handling of the fund.
With due respect to the Supreme Court , the Petitioners, the people of Palawan, and the people of the Republic of the Philippines have waited long enough for this Honorable Court to write finis to this plunder of public coffers.
Prof. Harry Roque, counsel for petitioners declared: “Had the Court decided the case immediately after oral arguments almost 4 years ago, we would not have just prevented Napoles from squandering 900 million of government money. We would probably have been able to prevent PGMA’s plunder of 26.3 Billion of taxpayers money to benefit her lying, cheating, and stealing regime”.
(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on Aug. 08, 2013)
China has made three reservations to the compulsory and binding dispute settlement procedure of the UN Convention on the Law of the Sea. Of these, only two appear to be relevant to the Philippine arbitral submission against China involving the West Philippine Sea.
The first, a reservation on maritime delimitation, does not appear to be relevant because none of the prayers of the Philippines calls for delimitation. Instead, the Philippines asked the Tribunal to declare that China’s nine-dash lines do not have any legal basis under the UNCLOS. The Philippines also sought for a declaration that certain low-tide elevations—geographical features that are only visible during low tide, where China has built permanent structures—cannot be the subject of title and hence, should be declared as part of the Philippine continental shelf. The Philippines also asked that the waters outside of the 12-nautical-mile territorial sea of the Panatag shoal be declared as part of the Philippine Exclusive Economic Zone since these waters are within 200 nautical miles of the Philippines.
The latter two declarations though, will have to be closely scrutinized by the tribunal, not because they appear to be an obvious hindrance to the its jurisdiction, but because China has been conducting itself to ensure that these reservations become relevant.
First, there is the reservation on any military and law enforcement activities in connection with the exercise of sovereign rights. Under this reservation, China seeks to exclude all disputes arising from the acts of its navy or coast guard enforcing China’s sovereign right to exclusively explore and exploit the natural resources in its exclusive economic zone. This covers acts of Chinese state agents arresting foreign poachers in waters that it has perceived to be within its EEZ, or to exclude them from operating thereat. This appears to be why China has driven Philippine troops away from the Panatag shoal. This also appears to be why and its warships, for the first time, to escort an armada of at least 30 fishing vessels in the disputed waters of the Spratlys. Fortunately for the Philippines, the tribunal will inevitably ignore all these acts under the technique used in international law known as the “critical date”. Under this technique, the tribunal should ignore all acts of claimant countries to disputed territory after joinder of issues because these are self-serving. In the case of the Spratlys, the critical date is 1933 when China, Japan and the UK protested the French claim to the islands. For Panatag, this was in 1906 when the Philippines Supreme Court ruled on a case involving a maritime collision at Scarborough.
Furthermore, while they may exclude law enforcement activities intending to assert sovereign rights, the reality is such conduct will be evaluated in relation to the nature of the waters where it is being exercised. In other words, despite the literal reservation, the tribunal will and should still evaluate if these law-enforcement activities are in fact being exercised in China’s EEZ. This is an issue of interpretation or applicability of the Convention and within the jurisdiction of the tribunal.
The last reservation, those involving “historic bays” and waters appear to be the most contentious. This is because China will conceivably assert that the entirety of the West Philippine Sea forms part of its “historic bay”. A “bay”, under the UNCLOS, is a body of water surrounded by land whose mouth should not exceed 24 nautical miles. Furthermore, the UNCLOS requires that to be a bay, the mouth of the bay should satisfy the semi-circle test. This test involves drawing a half circle into the mouth of the bay. If the semi-circle falls within the mouth of the bay, then the waters qualify as a bay. The waters within the bay are internal waters, which is subject to the absolute sovereignty and jurisdiction of the coastal state. And because it forms part of internal waters, foreign vessels do not have the right to innocent passage therein. They must always seek the consent of the coastal state.
This is contentious not because the South China sea is in fact a bay, but because China may insist that it is one. Note that the area being claimed by China as falling within her sovereignty and jurisdiction is delineated within the nine-dash lines which has been referred to by Dean Raul Pangalangan as the “Chinese condom” because its configuration resembles a condom. Conceivably, although this is uncertain since China has not expounded on the nature of its nine-dash lines, China would insist that the top portion of the “condom” is the mouth of its historic bay, while the rest would be the waters comprising the bay. And although this constitutes almost 600 nautical miles of waters, China may argue that its entitlement to the bay, outside of it being treated historically as a bay, is because certain land features generate the maritime zones it is claiming.
Again, to claim that it is a historic bay is different from the waters actually being a historical bay. In this regard, the International Court of Justice has recognized one body of water, the Gulf of Fonseca, as being a historical bay. This gulf was disputed between El Salvador, Honduras and Nicaragua. There, the Court ruled that the waters were historically owned in common by the three states when they were mere provinces during Spanish colonial rule. In this context, the Court ruled that the Gulf of Fonseca was a historic bay and owned in common by the three states.
China has thus the difficult onus to prove that the West Philippine Sea constitutes either its historic bay or waters. In this regard, it is not only the Chinese view that will matter, She would have to show that outside of its sell-serving claim, that its neighbors and the rest of the world accepted her view that the waters of the South China sea is her historic bay or water.
(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on August 1, 2013) http://manilastandardtoday.com/2013/08/01/how-baboy-the-pig/
I’m hoping that the Napoles affair would create sufficient public outrage to warrant the outright abolition of the pork barrel system. In fairness to other media groups such as the Philippine Center for Investigative Journalism, the public already knew as early as the 1990s how the pork barrel works. During those days though, the fat in the pork only had to do with infrastructure projects. We knew, courtesy of PCIJ, that our congressmen and senators would make anywhere from 20 percent to 50 percent of the total cost of infrastructure projects funded through their Priority Development Assistance Fund. It was unheard of then to launder taxpayers’ money through Non-Governmental Organizations. It was only later, through the fertilizer and the swine scams, that we knew how taxpayer’s money landed in private pockets using non-government organizations as conduits.
I guess what makes the Napoles affair even more reprehensible is the fact that unlike before when the public would somehow benefit from infrastructure projects that made the SOP kickbacks possible, the public no longer derives any benefit when the PDAF is laundered through NGOs. This is because, as the whistleblowers testified, many of these NGOs were either inactive or non-existent. Their reason for being is only their separate legal personality on the basis of which they are able to open bank accounts used to launder public money. Under this scheme, it is only third parties like Napoles and the legislators who benefit from the PDAF. What gall!
The PDAF is of fairly recent origin. It was implemented during the presidency of Cory Aquino. The official justification for it was that it puts all legislative districts, regardless of their size and income, on equal footing as far as congressional projects are concerned. This is because since its inception, all members of Congress get the same amount of budget for the PDAF. Today, it is P70 million per annum for every Congressman and P200 million for every senator.
They say too that the PDAF is intended to equalize the playing field for all politicians. Again, the justification is where the governor and the congressman are politically at odds, without the PDAF, the congressman is bound to die a political death since the local budget will never fund projects that would benefit the Congressman. But because of the PDAF, Mr. Congressman, despite his relationship with his mayor and/or his governor, will have projects to his credit.
The Supreme Court upheld the legitimacy of the PDAF but only because petitioners did not offer evidence that the PDAF was in fact misused. Said the Court in LAMP vs. Secretary of DBM and the National Treasurer: “No convincing proof was presented showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them according to their sole discretion. Not even a documentation of the disbursement of funds by the DBM in favor of the Members of Congress was presented by the petitioner to convince the Court to probe into the truth of their claims. Devoid of any pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous Members of Congress, the Court cannot indulge the petitioner’s request for rejection of a law, which is outwardly legal and capable of lawful enforcement.”
But with the minority in the House promising the nation a full-blown investigation of the Napoles affair, we can be sure that the evidence that the Court was demanding should be forthcoming soon. In this regard, I have no doubts that the integrity and legal brilliance of House Minority Leader Ronaldo Zamora would unearth the necessary evidence.
Meanwhile, let’s hope that even before the investigation, that Congress on its own would heed the demand of the Catholic Bishops Conference of the Philippines to put an end to this practice of the PDAF. Legislators are elected by the people to craft policies in the form of laws. They were not elected to bring projects into their districts. Their involvement should be limited to passing the annual budget law. Project identification and implementation are properly within the realm of the executive, which is tasked by our constitution to implement the law. It is only in this manner that we can break the cycle of vote buying in elections and corruption while in office.
If legislators now will be elected for the reason provided in our Constitution, even normal mortals could aspire to be elected in the August halls of Congress. Without the expected gains from the PDAF, it is unlikely for any congressional aspirant to buy votes to be elected. And when a candidate can win without having to buy votes, there would be need in turn for him to be corrupt while in office. The reality is that congressional candidates are willing to spend up to P50 million in buying votes during elections because that they expect to earn that sum once they are elected. Do the math: 20 percent to 50 percent of 70 million annually is P14 million to P35 million annually in kickbacks. That’s why they are willing to spend up to P50 million, knowing that the return could be up to P105 million after three years. That’s not the kind of interest that anyone could make in any time deposit!
Meanwhile, let us continue to be indignant about the pork barrel. Politicians, being who they are, know only too well that they cannot be oblivious to public indignation all the time. As a colegiala once said: How baboy the pig!
Key members of AES-Watch and civil society files PETITION-IN-INTERVENTION with a very urgent motion at the Supreme Court today.
Full text of the Motion available HERE
I wondered what P Noy would say in this year’s SONA about the Maguindanao massacre and other cases of extralegal killings in the country. Since becoming President, he has consistently said something about this malaise. This may be because when he still seeking the people’s mandate, he sought an audience with our clients and promised that the prosecution of the perpetrators of the massacre would be on top of his priorities. This was why one of our clients, Myrna Reblando, wife of slain Manila Bulletin journalist, “Bong” Reblando, the only full time journalist of a national broad sheet to perish in the massacre, agreed to publicly endorse him in a television advertisement broadcasted at the tail end of the campaign period in 2010. That endorsement earned Myrna front seat sitting in P Noy’s inauguration at Luneta.
In 2010, while not expressly mentioning the Maguindanao massacre, P Noy did promise that he would “punish” the perpetrators of extrajudicial killings. In 2011, he expressed confidence that the Department of Justice will go after those behind these extrajudicial killings. In 2012, he expressly promised that he would accord the victims of the massacre justice. Earlier this year, the Secretary of Justice declared that the prosecution of the case would be finished within the term of P Noy.
I then expected that the President would reiterate De Lima’s promise to finish the prosecution of the case before 2016. Alternatively, I was hoping that our recent expose that about 14 of the victims almost entered into a settlement with the accused would prompt the government to discharge its duty to pay compensation to the victims as a consequence of the Philippine state’s breach of its obligation to protect and promote the right to life of the victims. While Deputy Presidential mouth Valte exhibited her gross ignorance of human rights law when she said that this administration will not pay compensation to the victims since it was not responsible for the massacre; I was hoping that those with brains in the administration, such as Secretary Leila De Lima or Secretary Ronald Llamas, maybe upon the prodding’s of CHR Chair Etta Rosales, would already correct the mistake of the mouth named Valte.
So for 1 hour 45 minutes, I, with millions of other Filipinos, eagerly awaited the Presidential pronouncement on how he would protect and promote the most important right of all rights, the right to life.
My heart was hence tattered into pieces when after an hour and forty-five minutes of waiting, the President concluded his SONA without mentioning a single word on either extrajudicial killings or the Maguindanao massacre. My immediate reaction was one of panic. Oh my God, I said, the President is not even sure that the trial of the century could be concluded during his term! If it could not be done during the term of one who had not benefitted from the Ampatuans of Maguindanao, what would happen to the case should the President to be elected in 2016 be indebted anew to the family of the accused? It would certainly be hopeless for the victims.
The fact that I felt this sense of despair is actually to commend P Noy. I have always acknowledged that he is one of the few politicians who did not benefit from the Ampatuans of Maguindanao. On the contrary, he was one of those who allegedly got zero votes in the province in the 2007 elections. This is reason to be confident that there would be a level playing field in the prosecution of the massacre during his administration. But the reality is outside of P Noy, almost all of the contenders in 2016, unless the likes of Grace Poe, Chiz Escudero, or Allan Cayetano make a go for the Presidency, have had some ties with the Ampatuans of Maguindanao. This means that the possibility of a conviction, at least during my lifetime, has dimmed. This is because P Noy’s silence on the massacre is an implied admission that no one is certain when the prosecution of the country’s worse massacre will conclude.
It was also worrisome that despite the fact that there have already been 15 cases of extrajudicial killings of journalists in P Noy’s three-year-old administration, the President was equally silent on what he intends to do with the perpetrators of these killings. This prompted the Human Rights Watch to declare, “We are dismayed that President Aquino, in his State of the Nation Address today, chose not to talk about the continuing culture of impunity in the Philippines. We are disappointed that he did not take the opportunity to communicate to the military and the police that they will be held accountable for human rights violations. President Aquino’s failure to denounce abuses against outspoken activists, environmentalists, clergy and journalists sends the wrong message to abusive security forces and corrupt politicians”. The Center for International Law, for its part declared: “The President’s failure to state how he intend to finish the prosecution of the massacre case points to a lack of political will to punish those who will violate freedom of the press and the right to life”.
As for the victims, three of them, Monette Salaysay, Editha Tiamzon, and Cipriana Gatchalian tearfully asked on the occasion of the 44th month commemoration of the massacre held only a day after the SONA: “why have thou forsaken us?”
Click HERE for a copy of a manifestation and motion filed by Marinduque Rep. Regina Reyes withdrawing her petition filed with the Supreme Court questioning her disqualification by the COMELEC.
Marinduque Representative Regina Reyes formally withdrew today her petition before the Supreme Court questioning her disqualification on citizenship grounds by the Commission on Elections (COMELEC).
This after she took her oath office at the opening of the 16th Congress yesterday before re-elected House Speaker Feliciano Belmonte Jr.
“After the Speaker’s election, the Members of the House of Representatives of the 16th Congress of the Republic of the Philippines formally took their oath of office before the Speaker in open session,” she said in a two-page manifestation and notice of withdrawal filed on her behalf by her lawyers, the Roque and Butuyan Law Offices. “With the Petitioner’s admission and recognition in the House of Representatives, and the official opening and organization of the House of Representatives, all controversies regarding Petitioner’s qualifications and election to office are now within the jurisdiction of the House of Representatives Electoral Tribunal (HRET).”
She said she was among the legislators who attended the opening session and was officially and formally recognized as the duly elected representative of lone congressional district of Marinduque by the leadership of the House of Representatives.
She said the HRET is now the proper forum for all questions on her qualifications as a legislator representing Marinduque.
It was very sad that President Noynoy Aquino, for the first time in his SONA, did not have anything to say about the Maguindanao Massacre. As Chief Executive, it is still his duty to prosecute and cause the punishment of the perpetrators of the massacre.
We are also hoping that with recent information that some of the victims almost entered into a compromise with the Ampatuan, the President will squarely address the issue of compensation to be given to the victims of the single most murderous attack against journalists in history.
The President’s failure to state how he intend to finish the prosecution of the massacre case points to a lack of political will to punish those who will violate freedom of the press and the right to life.
Atty. Harry L. Roque, Jr.
Chairman of Centerlaw and counsel for the families of 15 victims
Request for Coverage
Ampatuan Massacre commemoration today, July 23, 2013, at 6 pm to 7 pm in front of UP Law Center, College of Law, UP Diliman. Mrs. Cipriana Gatchalian, Mrs. Ramonita Salaysay & Mrs. Editha Tiamzon, widows of three of the 32 journalists killed in the massacre, will participate in the program.
Regina Reyes beat the son of Associate Justice Presbitero J. Velasco, Jr. by almost 4,000 votes in the last concluded elections for the post of representative for the lone district of Marinduque. Pursuant to established jurisprudence, all controversy concerning her qualification to sit as a member of the House of Representatives should be resolved exclusively by the House of Representatives Electoral Tribunal. For still unknown reasons, the Supreme Court departed from jurisprudence and ruled that the Certificate of Candidacy of Rep. Reyes was null and void allegedly because she is an American citizen. I yield my space today to print portions of the dissenting opinion of Justice Arturo D. Brion. He was joined by Justice Antonio T. Carpio, Justice Martin S. Villarama, Jr. and Justice Marvic Mario Victor F. Leonen.
No basis exists to dismiss the petition
Section 6 of Rule 64 of the Rules of Court merely requires that the petition be sufficient in form and substance to justify an order from the Court to act on the petition and to require the respondents to file their comments. The same rule also provides that the Court may dismiss the petition outright (as the majority did in the present case) if it was filed manifestly for delay or if the questions raised are too unsubstantial to warrant further proceedings.
In the present case, the petition is indisputably sufficient in form and substance… Thus, the question before the Court… is whether the issues raised by Reyes were too unsubstantial to warrant further proceedings.
…the issues raised cannot be unsubstantial as they involve crucial issues of jurisdiction and due process. …the Court cannot simply go through the motions of evaluation and then simply strike out the petitioner’s positions. The Court’s role as adjudicator and the demands of basic fairness require that we should fully hear the parties and rule based on our appreciation of the merits of their positions in light of what the law and established jurisprudence require.
HRET has jurisdiction
…the matter of jurisdiction between the Comelec and the HRET has always constituted a dichotomy; the relationship between the Comelec and the HRET in terms of jurisdiction is not an appellate one but is mutually exclusive.
This mutually exclusive jurisdictional relationship is, as a rule, sequential. …the Comelec’s jurisdiction ends when the HRET’s jurisdiction begins. …there is no point in time, when a vacuum in jurisdiction would exist… This jurisdiction …refers to jurisdiction over the subject matter …Under Section 17, Article VI, the subject matter of HRET’s jurisdiction is the “election, returns, and qualifications of Members of the House of Representatives.”
I submit … that the proclamation of the winning candidate is the operative fact that triggers the jurisdiction of the HRET…the proclamation of a winning candidate divests the Comelec of its jurisdiction over matters pending before it at the time of the proclamation and the party questioning the qualifications of the winning candidate should now present his or her case in a proper proceeding (i.e. quo warranto) before the HRET who, by constitutional mandate, has the sole jurisdiction to hear and decide cases involving the election, returns and qualification of members of the House of Representatives. …as far as the HRET is concerned, the proclamation of the winner in the congressional elections serves as the reckoning point as well as the trigger that brings any contests relating to his or her election, return and qualifications within its sole and exclusive jurisdiction.
…by holding that the Comelec retained jurisdiction … the majority effectively emasculates the HRET of its jurisdiction as it allows the filing of an election protest or a petition for quo warranto only after the assumption to office by the candidate (i.e, on June 30 in the usual case).
Comelec gravely abused its discretion
… common sense and the minimum sense of fairness dictate that an article in the internet cannot simply be taken to be evidence of the truth of what it says, nor can photocopies of documents not shown to be genuine be taken as proof of the “truth.” To accept these materials as statements of “truth” is to be partisan and to deny the petitioner her right to both procedural and substantive due process.
It is also basic in the law of evidence that one who alleges a fact has the burden of proving it. …Reyes’ view is not without its merits and should not simply be dismissively set aside.
First, Tan submitted an article published online … stated that the author had obtained records from the BID stating that Reyes is an American citizen; that she is the holder of a US passport and that she has been using the same since 2005.
How the law on evidence would characterize Obligacion’s blog article …is not hard for a law student answering the Bar exam to tackle: the article is double hearsay or hearsay evidence that is twice removed from being admissible as it was offered to prove its contents (that Reyes is an American citizen) without any other competent and credible evidence to corroborate them.
Second, Tan also submitted a photocopy of a “certification” issued by … the BID showing the travel records of Reyes …and that she is a holder of US Passport No. 306278853.
Contributory to the possible answer is the ruling of this Court that a “certification” is not a certified copy and is not a document that proves that a party is not a Filipino citizen.
…in the absence of sufficient proof (i.e, other than a photocopy of a “certification”) that she is not a natural born Filipino citizen, no burden of evidence shifts to her to prove anything, particularly the fact that she is not an American citizen. Considering that Tan might have also failed to prove by substantial evidence his allegation that Reyes is an American citizen, the burden of evidence also cannot be shifted to the latter to prove that she had availed of the privileges of RA 9225 in order to re-acquire her status as a natural born Filipino citizen.
…in the absence of sufficient proof that Reyes lost her Filipino citizenship, the twin requirements under RA 9225 for re-acquisition of Filipino citizenship should not apply to her.
All told, the Comelec does not appear to have an airtight case based on substantial evidence on the citizenship and residence issues and much less a similar case on the jurisdictional issue, to justify A VERY PROMPT OUTRIGHT DISMISSAL ACTION from this Court.
If this Court is indeed SERIOUS IN ADMINISTERING JUSTICE or at least to BE SEEN TO BE ADMINISTERING JUSTICE in the way described in the speeches of many Justice of this Court, it should not deliver the kind of hasty and imprudent action it did in this case.
For Media Release:
Regina Reyes, who was proclaimed as Marinduque’s congressional representative, filed a Motion for Reconsideration with Motion for Inhibition of Justice Jose P. Perez at the Supreme Court yesterday.
To read the full text of the MR, please click HERE
As expected, the pro-lifers stuck to their mantra in their challenge to the RH law. They cited that since the constitutional drafters contemplated “fertilization” as the beginning of life, the RH law, insofar as it mandates the widespread use of the pills and IUD’s, which according to them prevent the implantation of the fertilized zygote into the womb of a mother, are abortifacient and hence, unconstitutional.
All could have been well in their argument had it not been for the fact that nowhere in the language of the Constitution is the word “fertilization” used. As initially observed by Senior Associate Antonio Carpio, the 1987 Constitution speaks of “conception’ as the beginning of life. He further underscored that while it us undeniable that at least 4 members of the Constitutional Commission talked of “fertilization” as the beginning of life, the over-all intent, nonetheless, was to ensure that the US Supreme Court decision of Roe v. Wade, the decision that legalized abortion, will never be adopted by the Philippine Supreme Court. There was nothing, said Carpio, that would indicate that the framers intended to prohibit Congress from passing any law that would promote the use of contraceptives as part of the people’s right to heath.
But it was Justice Diosdado Peralta who went to the crux of the matter. Where there is a conflict between the alleged intention of the framers of the organic law and the will of the people that ratified the Constitution, should not the court also ascertain the intent of the people? Justice Peralta was emphasizing the point that since the word “fertilization” was not used in the language of the Constitution, the people could only have intended to define the beginning of life at conception, the latter being the term used in the Constitution. And because conception was not defined in the Constitution, the people must have intended not to provide for such a definition in the Constitution. This maybe be, among others, because the people intended to leave such a definition to the realm of science.
The UP tandem of Chief Justice Maria Lourdes Serreno and Justice Marvic MVM Leonen then underscored that the Court has limited jurisdiction to interpret the Constitution. It cannot make laws. Justice Leonen, reminiscent of the thoughts expressed by our common law professor, former Justice Vicente V. Mendoza, elucidated that the thresholds to justiciabiity was intended to limit the exercise of judicial functions to” actual disputes or controversies” amongst parties with” standing”, or those who have shown to have suffered a material injury as a result of a decision by a judicial or quasi-judicial body. Justice Leonen then pondered whether petitioners should first go to FDA and complaint there that certain pills and IUD’s are abortifacients before going to the Supreme Court. The technical points expressed by J. Leonen and the Chief Justice underscore the fact that the Court is composed of unelected members who must give utmost deference to the acts of duly elected representatives of the people in Congress.
Of course the petitioners against the RH laws had very strong supporters in the Court. Justice Roberto Abad expressed strong objections against any artificial intervention in the reproductive system of human beings. This was supported by Justice Teresita De Castro who expressed the opinion that a zygote cannot otherwise be implanted in the womb if it not a living thing. While the Justices appear to have expressed their opinions on the raging controversy involving the role of contraceptives and religion in our society, the truth is that my own experience has taught me that the interrogations of the Justices are not reliable indication of how they will vote in the case.
Although there have only been two speakers representing the petitioners, what was achieved yesterday was a clear joiner of issues. In my mind, it is clear that if the court decides that life begins at fertilization, all contraceptives that go beyond preventing fertilization are prohibited. The use of these devices may consequently even be declared as criminal. If, however, the Court should decide that the Constitution only said that life begins at conception without defining when this takes place, then the use of contraceptives that have the effect – even if it is not exclusively- for preventing implantation, may not automatically be illegal. The FDA though may, by law, ban their use for public consumption.
Corollary to the issue of when life begins is the issue of how to interpret the constitution. Is it pursuant to the intent of the framers? Or should it be using the ordinary meaning of words used in the Constitution. Finally, there too is the issue of should the Court, because they are not physicians or scientists, dare venture an answer to the issue of when life begins?
These are, as admitted by CJ Sereno, very complicated issues. However the Court decides them, we will know soon enough.
Notice for Coverage:
Marinduque Rep. Gina Reyes will bring to the Filipino people the issue of her Filipino citizenship tomorrow at 12 noon Max’s restaurant, Orosa St. Ermita, Manila.
For background reading, please see a recent column piece of Fr. J. Bernas: http://opinion.inquirer.net/56101/us-access-to-bases-sc-rushed-but-rebuffed
Click for the full text in word format: Issuance of the Writ of Habeas Data
Former Comelec Commissioner and IT expert Augusto “Gus” Lagman, Comelec Whistleblower and former Legal consultant Melchor Magdamo, IT system expert Engr. Nelson Celis, cybercrime resource person Lito Averia, NBN ZTE Whistleblower Jun Lozada, IT certification standards head Marikor Akol, source code and programming expert Dr. Pablo Manalastas, AES Watch conveners Bishop Broderick Pabillo, chair of NASSA-CBCP, Mother Superior Mary John Mananzan, OSB, human rights lawyer Greg Fabros of the NUPL, CenPEG Executive Director Evita Jimenez and International law expert, Harry Roque filed a PETITION FOR HABEAS DATA before the Supreme Court today, Wednesday, July 3, 2013.
The Petition involves the P30 Million Intelligence Funds and threats from the Comelec led by Chairman Sixto Brillantes against critics of the defective Smartmatic PCOS technology used in the 2010 and 2013 elections.
REPUBLIC OF THE PHILIPPINES
AUGUSTO “GUS” LAGMAN, NELSON CELIS, DR. PABLO R. MANALASTAS, JR., BISHOP BRODERICK PABILLO, D.D., SR. MARY JOHN, MANANZAN, O.S.B., FR. JOSE DIZON, ENGR. RODOLFO LOZADA, JR., MA. CORAZON AKOL, EVITA JIMENEZ, ANGEL S. AVERIA, JR., MELCHOR MAGDAMO, GREG FABROS, ANALEAH ESCRESA-COLINA, H. HARRY L. ROQUE, JR.
-versus- G.R. No. _______
For: Issuance of the Writ of Habeas Data
COMELEC CHAIRPERSON SIXTO SERRANO BRILLANTES; COMELEC COMMISSIONER LUCENITO NOLASCO TAGLE; COMELEC COMMISSIONER ELIAS R. YUSOPH; COMELEC COMMISSIONER CHRISTIAN ROBERT S. LIM; COMELEC COMMISSIONER LUIE TITO F. GUIA; COMELEC COMMISIONER MA. GRACIA CIELO M. PADACA; COMELEC COMMISSIONER AL A. PARREÑO; COMELEC FINANCE DIRECTOR EDUARDO DULAY MEJOS, EXECUTIVE SECRETARY PAQUITO OCHOA JR., and DEPUTY PRESIDENTIAL SPOKESPERSON ABIGAIL VALTE,
PETITION FOR THE ISSUANCE OF THE WRIT OF HABEAS DATA
AGGRIEVED PARTIES, through counsel, and unto this Honorable Court, respectfully state that:
This petition for the issuance of a writ of habeas data is of first impression, inasmuch as it seeks this Honorable Court’s protection over well-oiled program by key members of a constitutional body – the Commission on Elections (COMELEC) – to place under surveillance or spy on, its perceived “enemies,” who are actually no more than ordinary citizens concerned about electoral reforms in the country.
Such a program, by their own admission supported by a P30-million intelligence fund, is not only unconstitutional because it stems from a misalignment of public funds by the Office of the President to a supposedly independent constitutional commission, but above all because it violates the right of citizens to free expression and the right of citizens to privacy.
A. Aggrieved Parties
1) The Aggrieved Parties in this case are various individuals from policy research, concerned citizens, academic, religious and professional organizations that make up the umbrella organization, Automated Election System Watch or AES Watch. The Aggrieved Parties, who may all be served with the processes of this Honorable Court through their counsel, the Roque and Butuyan Law Offices, with address at Unit 1904, Antel Corporate Center, 121 Valero Street, Salcedo Village, Makati City Metro Manila 1277, are the following:
i. AGGRIEVED PARTY AUGUSTO “GUS” LAGMAN is of legal age, Filipino, a former Commissioner of the COMELEC, a well-known information technology executive who was one of the founders of STI College and a four-termer President of the Philippine Computer Society, lead convenor of TransparentElections.org.ph, and for many years head of the Systems Committee of the National Movement for Free Elections (NAMFREL) Operation Quick Count;
ii. AGGRIEVED PARTY NELSON CELIS is of legal age, Filipino, spokesperson of AES Watch and past President of the Philippine Computer Society;
iii. AGGRIEVED PARTY DR. PABLO R. MANALASTAS JR., is of legal age, Filipino, a lecturer at the Ateneo De Manila University Department of Information Systems and Computer Science and at the University of the Philippines Department of Computer Science, and IT Fellow for automated elections of the Center for People Empowerment in Governance (CenPEG);
iv. AGGRIEVED PARTY BISHOP BRODERICK PABILLO, D.D., is Filipino, of legal age, an Auxiliary Bishop of the Roman Catholic Archdiocese of Manila, co-chairperson of the Bishop and Businessmen’s Conference Committee on Social Justice, and Chairperson of the Catholic Bishop’s Conference of the Philippines (CBCP)-Episcopal Commission on Social Action– Justice and Peace;
v. AGGRIEVED PARTY SR. MARY JOHN MANANZAN, O.S.B., is of legal age, Filipino, former President of St. Scholastica’s College, Prioress of the Missionary Benedictine Sisters in the Manila Priory and a member of the AES Watch;
vi. AGGRIEVED PARTY FR. JOSE DIZON is of legal age, Filipino, an ordained Roman Catholic priest, director of the labor ministry of the Diocese of Cavite, spokesperson of the election reforms group KONTRA DAYA and a member of AES Watch;
vii. AGGRIEVED PARTY ANGEL S. AVERIA, JR., is of legal age, Filipino, and a convenor of AES Watch and IT security consultant for the European Union-CenPEG Project 3030;
viii. AGGRIEVED PARTY MA. CORAZON AKOL, is of legal age, Filipino, President of the Philippine National Information Technology Standards Foundation (PHILNITS) and a co-convenor of Tansparentelections.org.ph and of AES Watch;
ix. AGGRIEVED PARTY ENGR. RODOLFO “JUN” LOZADA JR, is of legal age, Filipino an electronic communications engineer, past President and CEO of PhilFOREST and a member of AES Watch;
x. AGGRIEVED PARTY EVITA JIMENEZ is of legal age, Filipino, Convenor of AES Watch and Executive Director of CenPEG;
xi. viii. AGGRIEVED PARTY MELCHOR MAGDAMO, is of legal age, Filipino, a lawyer, former legal consultant to the COMELEC and a member of AES Watch;
xii. AGGRIEVED PARTY GREG FABROS, is of legal age, Filipino, a lawyer and member of the National Union of Peoples’ Lawyers (NUPL) and a convenor of AES Watch;
xiii. AGGRIEVED PARTY ANALEAH ESCRESA-COLINA, is Filipino, of legal age, Executive Director of the Ecumenical Institute for Labor Education and Research (EILER), and a member of AES Watch;
xiv. AGGRIEVED PARTY H. HARRY L. ROQUE JR., is of legal age, Filipino, a professor of international law and constitutional law at the University of the Philippines College of Law, convenor of the Concerned Citizens Movement and of AES Watch;
2) The Respondents are the following:
A. COMELEC Commissioners and Officers, with address at the COMELEC’s national office at Palacio del Gobernador Bldg., Gen. Luna St. cor. Andres Soriano Jr. Ave, Intramuros, Manila 1002, where they may be served with processes of this Honorable Court:
i. RESPONDENT SIXTO SERRANO BRILLANTES is the incumbent COMELEC Chairperson;
ii. RESPONDENT LUCENITO NOLASCO TAGLE is an incumbent COMELEC COMMISSIONER;
iii. RESPONDENT ELIAS R. YUSOPH is an incumbent COMELEC COMMISSIONER;
iv. RESPONDENT CHRISTIAN ROBERT S. LIM is an incumbent COMELEC COMISSIONER;
v. RESPONDENT LUIE TITO F. GUIA is an incumbent COMELEC COMMISSIONER;
vi. RESPONDENT MA. GRACIA CIELO PADACA is an incumbent COMELEC COMMISSIONER;
vii. RESPONDENT AL PARREÑO is an incumbent COMELEC COMMISSIONER;
viii. RESPONDENT DIRECTOR EDUARDO DULAY MEJOS, is the incumbent Finance Director of the COMELEC.
B. RESPONDENT PAQUITO OCHOA JR, is an incumbent EXECUTIVE SECRETARY, representing the Office of the President, with address at Malacanang Palace, 1000 Jose P Laurel Sr., San Miguel, where he may be served with processes of this Court;
C. RESPONDENT ABIGAIL VALTE, is an incumbent DEPUTY PRESIDENTIAL SPOKESPERSON, with address at 1000 Jose P Laurel Sr., San Miguel, Manila, where he may be served with processes of this Court.
STATEMENT OF MATERIAL FACTS
3) On 22 December 1997, the Philippine Congress enacted Republic Act No. 8436 (RA 8436) which authorizes COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. RA 8436 also directed the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral reforms and printing materials.
4) On 23 January 2007, Congress passed Republic Act No. 9369, amending RA 8436. The pertinent provisions of RA 9369 provides:
SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:
“SEC. 5 Authority to Use an Automated Election System. – To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide.”
SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to read as follow:
“SEC.12. Procurement of Equipment and Materials. – To achieve the purpose of this Act, the Commission is authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other service, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulation. With respect to the May 10, 2010 election and
succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or board. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness.
“In determining the amount of any bid from a technology, software or equipment supplier, the cost to the government of its deployment and implementation shall be added to the bid price as integral thereto. The value of any alternative use to which such technology, software or equipment can be put for public use shall not be deducted from the original face value of the said bid.”
5) On 07 January 2009, COMELEC submitted to the Department of Budget and Management a P13.9 Billion-budget for the automation of the 2010 elections.
6) On 05 March 2009, the Philippine Senate passed the P11.3 Billion supplemental budget for the automation of the 2010 elections.
7) On 19 March 2009, eleven (11) prospective bidders obtained bid documents from COMELEC for the automation of the 2010 elections. Only seven (7) bidders passed the bidding requirements.
8) On 24 March 2009, then Pres. Gloria Macapagal-Arroyo signed into law Republic Act No. 9525 which allocates funds for the automation of the 2010 elections.
9) On 30 March 2009, COMELEC held a pre-bidding conference.
10) On 04 May 2009, COMELEC conducted the public bidding, originally set on April 27. The bidding was moved to another date due to the request of four bidders which needed additional time to modify their respective proposals.
11) COMELEC-SBAC disqualified Avante and Indra Systems Consortium for failure to comply with bid requirements. IndraSistemas S.A, Hart Intercivic and Strategic Alliance Holdings Inc. did not submit an ISO certification. Avante was stricken out of the list after it failed to submit documents proving that it has engaged in three similar projects.
12) On 08 May 2009, COMELEC disqualified all seven (7) bidders for failing to meet bid requirements.
13) On 14 May 2009, COMELEC-SBAC reconsidered four bidders: IndraSistemas (Strategic Holdings, Inc./Hart Intercivic); Smartmatic/Total Information Management Corp.(Smartmatic-TIM); AMA group of companies/Election System and Software and Gilat/F.F. Cruz and Company, Inc./Filipinas Systems.
14) On 9 June 2009, the COMELEC approved Resolution No. 8608 which resolved to:
1. Approve the report/recommendation of the SBAC dated June 3, 2009, confirming TIM/Smartmatic as the bidder with the “Lowest Calculated Bid” and to award the contract for the automation of the elections on May 10, 2010 to said joint venture;
2. To direct the SBAC to issue the Notice of Award to TIM/Smartmatic, with instructions to post a performance security in an amount no less than five percent (5%) of the contract price and to issue the Notice to Proceed after the posting of said performance security and approval of the contract; and,
3. To authorize Chairman Jose A.R. Melo, as Head of the procuring agency to sign the contract with TIM/Smartmatic.
15) On 10 June 2009, COMELEC awarded the contract to Smartmatic-TIM to supply the 82,000 precinct count optical scan (PCOS) machines to be used in the 2010 elections with its bid offer of P7.2 Billion.
16) Meanwhile, about the same time as the COMELECwas preparing to automate the 2010 National and Localelections,key personalities, including some of the Aggrieved Parties in this case, and under the auspices of the Center for People Empowerment in Governance (CenPEG) as a lead convenor, banded themselves together to form the Automated Election System Watch or AES Watch, for the following purposes:
a. studying the automated election system chosen by the COMELEC;
b. watching, monitoring, and assessing the preparations being undertaken by the COMELEC for the 2010 National and Local Elections;
c. watching, monitoring, and assessing the actual conduct of the 2010 National and Local Elections;
17) AES Watchbrought together many groups and individuals from various backgrounds – academics, IT experts and professionals, activists, policy think-tanks, clergy and the like – under a common advocacy for electoral reforms and electoral integrity.
18) They include the following:
a. The University of the Philippines Alumni Association (UPAA);
b. The National Secretariat for Social Action –Catholic Bishops Conference of the Philippines (Nassa-CBCP)
c. The Ecumenical Bishops Forum
d. The Association of Schools of Public Administrators
e. The Concerned Citizens Movement
f. The De La Salle University –College of Computer Studies- Caucus
g. The Transparentelections.org.ph
h. The Movement for Good Governance
i. The Solidarity Philippines
j. The Coordinating Council for People’s Development
k. The Sisters in Mindanao (SAMIN)
l. The Agri-Watch
m. The Computer Professionals Union
n. The Association of Major Religious Superiors in the Philippines
o. The Philippine Computer Society Foundation
p. The Philippine Computer Emergency Response Team
q. The Council for Health & Development
r. Its Honorary Convenor and President Emeritus, Hon. Teofisto Guingona, Jr,, former Vice President of the Republic of the Philippines
s. Various individual IT and social science academics from leading Philippine universities, including the Ateneo De Manila University, the De la Salle University, and the University of the Philippines.
(For more information on AES Watch, see its 2010 promotional brochure, attached as ANNEX A)
19) In fact, AES Watch member organizations and individuals are also free to issue their own declarations and opinions about the automated election system, although they may also sign on to a common research agenda for the protection of the citizens’ right to vote.
20) From the time an automated electoral systemfor the 2010 elections was proposed, AES Watch and its member organizations had been active in research and advocacy work for electoral reforms.
21) For instance, on 26 May 2009, an -member group, its lead convenor, the CenPEG, sent a request letter to COMELEC, specifically requesting a copy of the source code of the following:
(a) Precinct Count Optical Scan (PCOS) programs;
(b) the Board of Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass;
(c) the COMELEC server programs; and
(d) the source code of the in-house COMELEC programs called the Data Capturing System (DCS) utilities.
22) In sending its request letter to COMELEC, CenPEG invoked the following pertinent portion of Section 12 of RA 9369:
Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.
23) On 24 June 2009, COMELEC granted CenPEG’s request for the source code of the PCOS and the CCS. Nevertheless, COMELEC denied CenPEG’s request for the source code of the DCS. COMELEC reasoned that the DCS was a “system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369.”
24) Further, COMELEC said that if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties.
25) Subsequent to this however, the COMELEC would refuse access to the PCOS Source Code as well, for a variety of unjustifiable reasons.
26) Meanwhile, on 9 July 2009, a group of Petitioners, namely H. Harry L. Roque, Jr., Joel R. Butuyan, Romel R. Bagares, Gilbert T. Andres, Allan Jones F. Lardizabal, Immaculada D. Garcia, Erlinda T. Mercado, Ma. Azucena P. Maceda, Alvin A. Peters and Francisco A. Alcuaz, who are members of the civil society group Concerned Citizens Movement, and five (5) other persons — filed before this Honorable Court a “Petition for Certiorari, Prohibition and Mandamus,” versus the Philippine Commission on Elections (COMELEC), the Commission on Elections-Special Bids and Awards Committee (COMELEC-SBAC), the Department of Budget and Management, Smartmatic, and TIM. Their case was docketed as G.R. No. 188456, and was entitled “Roque, Jr. et al. vs. COMELECCOMELEC, et al.”
27) Some of thePetitioners in the saidcase, among them lawyers Roque, Butuyan, Bagares, Andres and Lardizabal, are also associated with AES Watch, providing the latter with legal advice on electoral reform issues.
28) The aim of their Supreme Court petition was to enjoin the signing and/or the implementation of the contract for the first ever nationwide automation of a Philippine election. This automated election was to be conducted during the 10 May 2010 national and local elections. Roque, et al. argued that the automation contract violated Philippine laws, and jurisprudence.
29) On 10 September 2009, the Supreme Court promulgated its Decision in “Roque, Jr. et al. vs. COMELEC, et al.,” docketed as G.R. No. 188456, denying the petition of Complainants Roque et al.
30) On 28 September 2009, Complainants Roque et al. filed a Motion for Reconsideration to the 10 September 2009 Decision of the Supreme Court in G.R. No. 188456.
31) On 5 October 2009, CenPEG filed before the Philippine Supreme Court a petition for Mandamus against COMELEC, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties. CenPEG’s petition was docketed as G.R. No. 189546 and entitled “CenPEG v. COMELEC.”
32) On 10 February 2010, the Philippine Supreme Court promulgated its Resolution denying Complainants Roque et al.’s Motion for Reconsideration to the 10 September 2009 Decision in “Roque, et al. v. COMELEC, et al.”
33) Meanwhile, for its part, CenPEG on 5 October 200filed before the Philippine Supreme Court a “Petition for Mandamus” against COMELEC, seeking to compel COMELEC to immediately make the source codes to be used in the May 2010 automated Philippine elections available to CenPEG and other interested parties. CenPEG’s petition was docketed as G.R. No. 189546 and entitled “CenPEG v. COMELEC.”
34) On 21 June 2010, CenPEG filed a manifestation and omnibus motion before the Supreme Court, and reiterated its prayer for the issuance of a writ of mandamus in their case despite the fact that the May 10, 2010 Philippine elections for which the subject source code was to be used had already been held. CenPEG claimed that the source code remained important and relevant “not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud.”
35) On 21 September 2010—or four (4) months after the May 10, 2010 automated Philippine elections, this Honorable Court issued a Resolution in “CenPEG v. COMELEC,” directing the COMELEC to make the source codes, for the AES technologies selected, immediately available to CenPEGand all other interested political parties or groups for independent review. As held by the Supreme Court in its 21 September 2010 Resolution:
The pertinent portion of Section 12 of R.A. 9369 is clear in that “once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.” The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, “under a controlled environment.” The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review.
36) On 23 April 2010, another personality associated with AES Watch, TeofistoGuingona, Jr., former Vice-President of the Philippines and its President Emeritus, filed before the Philippine Supreme Court, AES Watcha “Petition for Mandamus” against COMELEC. He was joined in this suit by five other personalities, some of whom are also AES Watch members
37) The said petition was entitled “Guingona, Jr., et al. v. COMELEC,” and docketed as G.R. No. 191846. Author Guingona asked the Philippine Supreme Court to compel COMELEC to explain fully the complete details of its preparations for the 10 May 2010 automated Philippine elections. Guingona’s petition was due to the unraveling of alarming events leading to the May 2010 automated Philippine elections.
38) On 06 May 2010, or four (4) days before the 10 May 2010 automated Philippine elections, the Supreme Court promulgated its Decision in “Guingona, Jr., et al. vs. COMELEC” granting Guingona, et al.’s petition for mandamus. The dispositive portion of the 06 May 2010 Supreme Court Decision states:
WHEREFORE, we GRANT the petition in part. Respondent Commission on Elections is ORDERED, within two (2) days from receipt of this Resolution, to disclose to petitioners and the public the following:
1. The nature and security of all equipment and devices, including their hardware and software components, to be used in the 10 May 2010 automated elections, as provided for in Section 7 of Republic Act No. 9369;
2. The source code for review by interested parties as mandated by Section 12 of Republic Act No. 9369;
3. The terms and protocols of the random manual audit, as mandated by Section 24 of Republic Act No. 9369;
4. A certification from the Technical Evaluation Committee that the entire Automated Election System is fully functional and that a continuity plan is already in place, as mandated by Sections 9 and 11 of Republic Act No. 9369; and
5. The certification protocol and the actual certification issued by the Department of Science and Technology that the 240,000 Board of Election Inspectors all over the country are trained to use the Automated Election System, as required by Section 3 of Republic Act No. 9369.
This Resolution is immediately executory.
39) Further, the Philippine Supreme Court in “Guingona, Jr. v. COMELEC,” noted that just days before the 10 May 2010 automated Philippine elections, COMELEC still failed to disclose the source code for the PCOS to interested parties as mandated by Section 12, of R.A. 9369. As noted by the Supreme Court:
Petitioners in Roque v. COMELEC11 in fact pressed COMELEC for a source code review. To this day, however, COMELEC has yet to disclose the source code as mandated by law. In any case, considering the lack of material time, the Court in the exercise of its equity jurisdiction may even dispense with the requirement of proof of a prior demand in this case. (Emphasis and underscoring supplied)
40) Too, in “Guingona, Jr. v. COMELEC,” the Supreme Court took judicial notice of an alarming event specifically the recall of 76,000 compact flash cards, to wit:
The Court further takes judicial notice of the fact, as widely reported in print and broadcast media, that with just six days to go before the 10 May 2010 elections, COMELEC recalled 76,000 compact flash cards following widespread failure of the PCOS machines to read and tally the votes during the machine test conducted by COMELEC and Smartmatic. COMELEC spokesman James Jimenez was quoted as saying, “Right now we are assuming that all of the machines were affected. We have stopped the testing and are pulling out all memory cards for reconfiguration.”
41) On 10 May 2010, a National and Local Elections were conducted using PCOS machines for the very first time, and without the benefit of an honest-to-goodness Source Code review.as required by law.
42) Shortly after the elections, an AES Watch assessment of its conduct found that the automated election system selected and implemented by COMELEC and used in the 2010 National and Local Elections alarmingly did not comply with the requirements for ballot security mandated under RA9369.
43) The study, among other things, established that the COMELEC and SMARTMATIC-TIM removed many safeguards against electoral fraud in the PCOS, including voter verifiability, secure digital signatures, ultraviolet scanners, satellite transmission facilities, source code review, ballot reading accuracy.
44) AES Watchpublished its extensive assessment of the 10 May 2010 elections, which it then disseminated to the public, including to members of the Committee on Suffrage and Electoral Reforms, House of Representatives and the Joint Congressional Oversight Committee (JCOC) tasked to assess the automated election system, and the Commission on Elections, the Office of the President and other state and non-state election stakeholders.
45) The study is also available online through CenPEG’s website. (See the attached copy of the comprehensive assessment, attached as ANNEX B of the Petition)
46) AES Watch continued to pursue its objectives after the 2010 National and Local Elections and committed itself to monitoring and assessing the preparations for and the conduct of the 2013 Midterm Elections as well as monitoring the performance and assessing the automated election systems.
Moreover, since June 2010, AES Watch and CenPEG had been calling on the JCOC to convene to assess the May 2010 automated elections as mandated, and also sat with the Technical Working Group of the Senate Committee on Suffrage to address the problems of the automated election system. AES Watch had also submitted to Congress a list of 20 proposed legislations and amendments to enhance RA 9369 and its implementation.
47) Following the appointment of Respondent Brillantes to the COMELEC, AESWatch communicated its concerns about the automated election systems used in the 2010 National and Local elections to COMELEC and submitted a copy of its findings to the Chairman.
48) However on March 30, 2012 , under the leadership of Respondent Brillantes exercised the “Option to Purchase” the PCOS machines used in the 2010 National and Local Elections.
49) As COMELEC prepared for the 2013 Midterm Elections, and its member organizations continued to pursue their objectives and attended hearings conducted at the House of Representatives and the Senate and aired their concerns, pointing out the deficiencies and problems encountered with the PCOS machine, in particular, and the whole automated election system, in general.
50) Respondent Brillantes has not taken kindly to the critique AES Watch and allied groups had been raising against the PCOS automated poll technology.
51) Consider the following:
(a) In a hearing conducted at the Senate in early February this year, Respondent Brillantes nearly walked out after stating that he was tired of listening to the issues raised by AES Watch since he has heard the same issues over a hundred times.
(See ANNEX C)
(b) Respondent Brillantes, without fail, sought to discredit his critics by resorting to name-calling; saying that the questions on PCOS are no longer technical but purely legal, critics who are non-lawyers have no business speaking out against the technology, because they are ignorant of the legal issues involved. He singled out herein Aggrieved Parties Akol and Jimenez in the process.
(See ANNEX D)
(c) On his own twitter account, Respondent Brillantes has likewise attacked AES Watch, saying the organization was out to “sow public mistrust & sabotage the upcoming elections.”
(See ANNEX E)
(d) This was after AES Watch questioned COMELEC’s decision to re-use the PCOS technology in the mid-term elections, saying it was now using a “pirated “ technology following a proprietary dispute between SMARTMATIC and the technology’s owner DOMINION VOTING SYSTEMS, which has revoked the license it earlier gave to the former to sell the technology to interested parties.
(See ANNEX F)
52) Just before the 13 May 2013 mid-term elections, or on February 13, 2013, AES Watch issued an evaluation of the over-all readiness and worthiness of the PCOS technology, using its STAR Card (System Trustworthiness, Accountability, and Readiness Card), which it had first deployed to evaluate the 10 May 2010 National and Local Elections.
53) The STAR CARD is the framework for assessing the AES’ adherence to key technical and management requirements which AES Watch considers as crucial in making the system credible and reliable.
54) These requirements were based mainly on the amended election automation law (RA 9369) and related laws, and the COMELEC calendar of activities. They were also grounded on established standards and best practices for system implementation.
55) The second STAR Card listed 27 items of concerns according to the following key requirements:
1) System set-up (will the AES be ready for full implementation?);
2) Internal security (will the AES have the necessary safeguards to prevent fraud?);
3) Personnel training and voters’ education (will the teachers and the voters know exactly what to do on election day?); and
4) Contingency planning (will COMELEC and other involved personnel know what to do when things go wrong?)
56) The items of concerns were rated as: PASS (4 points), QUALIFIED PASS (3), WARNING (2); DANGER (1); and FAIL (0).
57) As before, AES Watch convened a committee to conduct the assessment and come up with the appropriate ratings. The committee was composed of IT practitioners (experts and specialists in programming and security) coming from the multi-disciplinary fields of IT, mathematics, business management, public administration, and social sciences.
58) Based on the parameters set in the STAR CARD, AES Watch gave the COMELEC a failing rate of only 0.29 percent
(See ANNEX G, the Executive Summary of the STAR CARD Report 2013).
9) Again, this did not sit well with Respondent Brillantes, who repeatedly his claim that critics of the SMARTMATIC-TIM-peddled PCOS machines are “election saboteurs;” he also threatened to sue the individuals behind the organizations that make up AES Watch.
59) On May 18, 2013 AES Watch issued its initial assessment of the 2013 mid-term elections based on its nationwide monitoring and poll watch from May 2 – 17.
60) According to the AES Watch assessment, it was COMELEC in 2013 committing unpardonable blunder in a scale bigger than 2010’s: safeguards set in law providing for voter verifiability, source code review, valid digital signature, secured CF cards, and other minimum protections summarily set aside without an apology.
(See ANNEX G-1)
61) Indeed, from the point of view of the AES Watch assessment, the biggest casualty in the stubborn and inexplicable insistence by Respondents – impeachable COMELEC Commissioners and non-impeachable COMELEC officers – to use the highly-problematic PCOS technology in the May 13, 2013 mid-term elections is the sanctity and integrity of the ballot.
62) On or around 23 May 2013, a former COMELEC Commissioner, an IT practitioner, herein AGGRIEVED PARTY Gus Lagman, bared that during his time at the Commission, he had returned to the COMELEC the P1.25-million fund Respondent Brillantes gave him a few months before, purportedly for “intelligence” purposes.
(See ANNEX H)
63) Respondent Brillantes not only admitted to the existence of the intelligence fund; he even confirmed that he received the P30-million fund from the Office of the President and justified it by saying the fund was needed to monitor the activities of alleged elections saboteurs.
(See ANNEXES I and J)
64) He admitted himself receiving P30 million in February this year, and distributed half of it to commissioners: P5 million to his office, P2 million to each of the four senior commissioners, and P1 million each to the new commissioners.
65) Respondent Brillantes broadly hinted that groups like AES Watch are under surveillance, saying:” Bakit sila matatakot kung wala silang ginawang masama? Talaga namang ginagamit ang intel fund sa mga nagsasabotahe ng election” or only to those out to sabotage the polls. “Kapag natatakot sila, ibig sabihin meron sila sigurong ginagawang masama.”
66) In another news item, Respondent Brillantes was quoted in the press as threatening his critics with these words:“They made our life difficult. Now, they should watch out how I get payback.”
(See ANNEX K)
67) Not to be outdone, the Office of the President, through Respondent, Deputy Presidential Spokesperson Abigail Valte, confirmed what Respondent Brillantes said, remarking thus: “The justification is supposed to be utilized for intelligence, counter intelligence activities and gathering of information relative to the activities of certain groups, individuals and technology experts suspected of conducting overt and covert operations to sabotage the results of the elections”
(See ANNEX L)
68) All the threats unleashed by Respondents Brillantes and Valte against it is a surprise to AES Watch.
69) The records bear the fact that AES Watch has been transparent in its engagements with COMELEC and other concerned government instrumentalities – publicizing and circulating its studies, critiques and observations of electoral processes for a reasoned exchange of views and opinions.
70) Indeed AES Watch was not only an issue or problem-identifier but also a solutions-seeker and policy proponent, with a publicly-circulated list of proposed legislative measures for electoral reforms.
71) In engaging with COMELEC, it has gone through the institutional procedures of official letters, communications (duly received by Comelec) anddialogues; where it became necessary, AES Watch took the legal tact and filed various suits in court,
72) At no point has AES Watch resorted to personal attacks against COMELEC officials or engaged them in unprincipled debates.
73) But COMELEC avoided responding to AES Watch’s studies and critiques and instead resorted to threats and offensive remarks – highly unprofessional and even degrading to nationally-known IT professionals and academics.)
(See ANNEX M, a public statement dated February 19, 2013 issued by AES Watch on COMELEC’s unresponsiveness to the issues raised against the PCOS technology)
74) Too, to clear matters up in regard to the surveillance question , AES Watch issued a public statement asking Respondent Brillantes to publicly declare that the P30-million intelligence fund was not meant to spy on critics of the PCOS technology.
(See attached as ANNEX M-1, a copy of the said public statement dated May 25, 2013).
75) Respondent Brillantes however chose to keep silent on the challenge to come clean on the issue foisted at him by AES Watch.
76) Respondents Brillantes and Valte are being impleaded in this suit because from their public statements, it would appear that they are the most informed about the information-gathering and/or surveillance activities being conducted by intelligence assets tapped by the COMELEC and funded through the P30-million largesse from the Office of the President against Aggrieved Parties and other members of AES Watch.
77) They have also issued public statements assailing or at least hinting that, the Aggrieved Parties and other members of AES Watch and/or critics of the PCOS technology are among the targets of information-gathering and/or surveillance activities on suspicions of election sabotage.
78) The other incumbent COMELEC Commissioners are also being impleaded in this suit because, by Respondent Brillantes’ admission, they are in part, also recipients of the P30-million intelligence fund intended to be used to spy on alleged election saboteurs, including the Aggrieved Parties and other members of AES Watch and their allied organizations.
79) RESPONDENT MEJOS is being impleaded in this suit because as FINANCE DIRECTOR of the COMELEC, he would be in the position to know who the recipients are of the intelligence funds and how these funds were disbursed/are being disbursed and for whatever purpose.
80) RESPONDENT EXECUTIVE SECRETARY OCHOA is being impleaded as a representative of the Office of the President, which is the source of the P30 million intelligence fund provided to the COMELEC to spy on or otherwise place under surveillance, and gather information from, critics of the PCOS automated elections technology suite.
GROUNDS FOR THE ISSUANCE OF THE WRIT OF HABEAS DATA
81) Evidently, there are serious grounds for the issuance of the Writ of Habeas Data in favor of the Aggrieved Parties in this case because of violations by Respondents of their right to privacy in life, liberty and or security through the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved parties.
DESPITE ITS PATENT ILLEGALITY AND UNCONSTITUTIONALITY, RESPONDENTS FROM COMELECOBTAINED P30 MILLION IN INTELLIGENCE FUNDS FROM THE OFFICE OF THE CHIEF EXECUTIVE WITH WHICH THEY NOW THREATEN AGGRIEVED PARTIES WITH SURVEILLANCE AND THE EVENTUAL FILING OF CHARGES FOR ALLEGED ELECTION SABOTAGE.
82) To begin with, Respondent COMELEC Commissioners violated the Constitution when they granted themselves P30 million in “intelligence funds,” purportedly realigned from the COMELEC’s 2012 savings, and intended for ,among other things, spying on civil society election watchdogs whom he called “troublemakers.”
83) The realignment violates the express provisions of the General Appropriations Act (GAA) of 2012, which specifically prohibits the Commission from having or otherwise using intelligence funds.
84) It also violates the Constitution’s Article VI (The Legislative Department), Section 25-(5), which states: “No law shall be passed authorizing the transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”
85) This is because no law has been passed allowing the COMELEC chairperson to augment the intelligence budgeting of his constitutional commission.
86) In fact in 2011, Senator Franklin Drilon then, chairperson of the Senate finance committee, explained that under the proposed 2012 budget intelligence funds will only be made available to military and law enforcement agencies.
87) He said that agencies like the Presidential Commission on Good Government (PCGG), Office of Solicitor General (OSG), Public Attorney’s Office (PAO), National Security Council (NSC), National Telecommunications Commission (NTC), Commission on Elections (Comelec), and Office of the Presidential Adviser on the Peace Process, and the judiciary would not be granted intelligence funds in 2012.
88) This, according to him, is consistent with the policy that intelligence funds should be limited only to agencies involved in intelligence gathering for security and law enforcement purposes.
(See the attached ANNEX N).
89) Worse, Respondent COMELEC Commissioners have utilized the same unconstitutionally-obtained public funds to place under surveillance, gather information about, or otherwise threaten the, including the Aggrieved parties, with prosecution for allegedly sabotaging the 13 May 2013 elections.
RESPONDENTS’ THREATS OF AND/OR ACTUAL SURVEILLANCE, INFORMATION-GATHERING AND PROSECUTION FOR ALLEGED ELECTION SABOTAGE OF CRITICS OF THE DEEPLY-FLAWED PCOS TECHNOLOGY USED BY THE COMELEC IN THE LAST TWO ELECTIONS SMACK OF PRIOR RESTRAINT, WHICH THREATENS THEIR RIGHT TO PRIVACY AND TO BE SECURE IN THEIR PERSONS, AND TO FREELY EXPRESS THEIR OPINION ON AN URGENT MATTER OF GRAVE PUBLIC INTEREST – THE SANCTITY OF THE BALLOT AND ELECTORAL REFORMS.
90) Public Respondents’ admissions about an on-going surveillance by their assets and/or personnel of critics of the COMELEC’s handling of the automation of the last two nationwide elections coupled with the threats of prosecution they issued against the same critics –including herein Aggrieved Parties – constitute acts held to be in prior restraint with chilling effect on free speech and free expression under the Constitution.
91) In Chavez v. Gonzales, the Supreme Court ruled that even mere press statements made by government officials in their official functions constitute “content-based prior restrained” that violates the constitutional protection granted to free speech and expression.
92) In this case, the Supreme Court held the following acts of Justice Secretary Gonzales as unconstitutional:
3. On June 8, 2005, Defendant Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being commit-ted in their presence.
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape” of an alleged wire-tapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I [have] asked the NBI to conduct a tactical interrogation of all concerned.”
93) In the case of the NTC, the Supreme Court struck down as prior restraint a press statement issued by the Commission on June 11, 2005, which reads at length in this wise:
NTC GIVES FAIR WARNING TO RADIO AND TELEVI-SION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are products of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded there-in, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that “all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition.” The foregoing directive had been re-iterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.
94) That what were primarily at issue in Chavez v. Gonzales were mere press statements did not stop the Supreme Court from holding that such acts constituted content-based prior restraint. It declared thus:
in resolving this issue, we hold that it is not decisive that the press statements made by Defendants-Appellees were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by Defendants-Appellees while in the exercise of their official functions. Undoubtedly, Defendant Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media.
95) Also, an important point is that the Supreme Court laid down a criterion to determine whether the act of an Executive official is tantamount to prior restraint: “Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint.”
96) The Supreme Court arrived at this holding without seeing the need to thresh out the factual and legal contexts involved in the assailed acts of Sec. Gonzales and of the NTC. As Justice Dante Tinga’s separate opinion would put it:
It should be stressed that there are critical differences between the factual and legal milieu of the assailed act of the DOJ Secretary, on one hand, and that of the questioned conduct of the NTC, on the other. The act complained of the NTC consists in the issuance of a Press Release, while that of the DOJ Secretary is not encapsulated in a piece of paper but comprised in utterances which nonetheless were well documented by the news reports at that time. There is an element of caution raised in the Press Release in that it does not precisely sanction or threaten to immediately sanction the broad-cast media for airing the Garci tapes, but it raises that possibility on the condition that “it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation.” No such suspensive condition is embodied in the assailed acts of the DOJ Secretary.
And most critical in my view is the distinction between the NTC and the DOJ Secretary with respect to the breadth and reach of their ability to infringe upon the right to free expression. The NTC is a quasi-judicial regulatory body attached to the Department of Transportation and Communications exercising regulatory jurisdiction over a limited set of subjects: the broadcast media, telecommunications companies, etc. In the scope of its regulatory jurisdiction, it concededly has some capacity to impose sanctions or otherwise perform acts that could impinge on the right of its subjects of regulation to free expression, although the precise parameters of its legal authority to exercise such actions have not yet been fully defined by this Court.
In contrast, the ability of the DOJ Secretary and the office that he heads to infringe on the right to free expression is quite capacious. Unlike the NTC whose power of injunction and sanction is limited to its subjects of regulation, the DOJ Secretary heads the department of government which has the premier faculty to initiate and litigate the prosecution of just about anybody.
97) The majority opinion now proffered an expanded understanding of an “act” as a legal concept in relation to free speech and free press issues:
The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.
98) Why is this so? The import of the majority’s rationale comes to sharper focus when viewed in relation to this finding that the assailed acts of the public officials actually created a chilling effect on media:
There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less than the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.
99) The questioned acts in the instant case are no different from those invalidated by the Supreme Court in Chavez v. Gonzales. The pronouncements by Respondent Brillantes and Respondent Valte about an on-going surveillance program aimed at alleged election saboteurs –supported no less by the Office of the President of the Philippines –were clearly meant to intimidate, cow and muzzle critics of the deeply-flawed PCOS technology used in the last two nationwide elections.
100) The sanctity of the ballot and electoral reforms are matters of grave public interest because they are at the heart of what it means to be a democratic state founded on Republican principles.
101) How the government discharges with its duties to safeguard and enhance the sanctity of the ballot through electoral process and electoral reforms is best served by robust public discussion and participation, without which democratic governance and deliberative democracy lose their very meaning.
102) Without such discussion and participation or when such democratic practices are stifled by the very government itself, public trust – the foundation of a free, honest and virtuous elections, is lost.
103) Moreover, the use of the intelligence funds for the purpose of spying on critics of the PCOS technology violates the right to privacy of Aggrieved Parties.
104) 107) Obviously, the surveillance is being done without the requisite court order, thus subjecting them to unreasonable searches and seizures in violation of Sec 2, Art. III of the 1987 charter, which states that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.”
105) This also violates Section 3(1) of Art. III of the 1987 Charter which states that the “privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”
106) It is for this constitutionally-enshrined right that the Supreme Court enacted the Rule on the Writ of Habeas Data. As explained by Chief Justice Puno, “the writ of habeas data finds its justification on the right to privacy,” adding that “the writ of habeas data was promulgated to protect the right to informational privacy.”
107) By the pronouncements of Respondents Brillantes and Valte, it appears that COMELEC has been given carte blanche authority to sneak into the private lives of Aggrieved Parties, other members of AES Watch and its allied organizations.
108) This cannot be countenanced by our constitutional system, founded as it is on a deep respect for such a fundamental right as the right to privacy and to be secure in one’s person against any undue threats.
109) Aggrieved Parties, while they do not have personal knowledge about the repository of information gathered by COMELEC and its cohorts about them, considering that intelligence funds are being used to run the surveillance program, they nevertheless believe the admissions made by Respondents Brillantes and Valte are more than enough to establish the existence of such program, and the fact that it has been running since the P30-million fund was released by the Office of the President to the COMELEC in February this year.
RELIEF PRAYED FOR
WHEREFORE, PREMISES CONSIDERED, Aggrieved Parties pray that this Honorable Court issue a Writ of Habeas Data against Respondents and after due hearing:
(a) Issue an Order directing Respondents to permanently cease and desist from further gathering information about the Aggrieved Parties, other members of AES Watch and its allied organization using the P30-million intelligence fund provided by the Office of the President and by other sources to the COMELEC;
(b) Issue an Order directing Respondents to disclose to the Court and to the AGGRIEVED PARTIES whatever information has already been gathered about Aggrieved Parties and other members of AES Watch and its allied organizations, and to subsequently permanently suppress, destroy or permanent seal the same information to protect the right to privacy of Aggrieved Parties and other members of AES Watch and its allied organizations and to prevent COMELEC from using these illegally-gathered information to prosecute critics of the PCOS automated elections technology suite for election sabotage and other applicable offenses or crimes;
(c) Issue an Order directing Respondents Brillantes and Valte to permanently cease and desist from issuing any further threats of surveillance, information-gathering or prosecution against herein Aggrieved Parties, members of AES Watch and allied organizations, as such constitute prior restraint with chilling effect to the right of free expression and free speech;
(d) Issue an Order directing the Office of the President, through the Executive Secretary, to permanently cease and desist from providing the COMELEC with intelligence funds, considering the rank unconstitutionality and illegality of such provision of funds and the questionable use of such funds to stifle free speech and free expression as well as threaten the right of citizens to be secure in their persons;
(e) Issue an order directing Respondents who are Commissioners or Officers of the COMELEC (i) to disclose who among them received the proceeds from the intelligence fund in question and in what amounts for which periods (ii) to account in detail for the intelligence funds used in spying on or otherwise placing under surveillance AES Watch and its partner individuals and organizations, and disclose the same to the public.
In the meantime that this case is being heard, Aggrieved Parties pray that this Honorable Court issue an Order against Respondents, directing them to:
(f) Refrain from any further information-gathering or surveillance activities against Aggrieved Parties and other members of AES Watch and its allied organizations;
(g) Refrain from making any further statements that threaten Aggrieved Parties and other members of AES Watchand its allied organizations with surveillance as well as prosecution for alleged election sabotage;
(h) Refrain from further disbursements of the intelligence funds for purposes of placing under surveillance or otherwise threatening the right to privacy of Aggrieved Parties and other members of AES Watch and its allied organizations;
Other relief just and equitable are also prayed for.
Makati City for the City of Manila, 2 July 2013.
By the counsel for Aggrieved Parties:
ROQUE & BUTUYAN LAW OFFICES 1904 ANTEL CORPORATE CENTER 121 VALERO STREET, SALCEDO VILLAGE MAKATI CITY 1200 EMAIL: MAIL@ROQUEBUTUYAN.COM TEL. NOS. 887-4445/887-3894; FAX NO: 887- 3893
H. HARRY L. ROQUE, JR PTR NO. 369262/JAN 18, 2013/MAKATI CITY IBP NO. 500459/LIFETIME ROLL NO. 36976 MCLE COMPLIANCE NO. IV-000513 (ISSUED ON FEBRUARY 15, 2013)
ROMEL REGALADO BAGARES PTR NO. 3692460/JAN 18, 2013/MAKATI CITY IBP NO. 924439/JAN 10, 2013/SOCSARGEN ROLL NO. 49518 MCLE COMPLIANCE NO. IV-001822 (ISSUED ON JANUARY 25, 2013)
GEEPEE ACERON GONZALES
Roll No. 59686
PTR No. 3692464/Jan. 18, 2013/
IBP No. 924436 /Jan. 10, 2013/Oriental Mindoro
MCLE Compliance No. IV-0005346
(issued on 28 March 2012)
A. By registered mail, to each of the following,
at the COMELEC headquarters, Palacio del Gobernador Bldg., Gen. Luna St. cor. Andres Soriano Jr. Ave, Intramuros, Manila 1002
RESPONDENT SIXTO SERRANO BRILLANTES
RESPONDENT LUCENITO NOLASTO TAGLE
RESPONDENT ELIAS R. YUSOPH
RESPONDENT CHRISTIAN ROBERT S. LIM
RESPONDENT LUIE TITOF. GUIA
RESPONDENT MA. GRACIA CIELO PADACA
RESPONDENT AL A. PARREÑO
RESPONDENT DIRECTOR EDUARDO DULAY MEJOS
B. By registered mail, to each of the following,
at the Malacanang Palace, 1000 Jose P Laurel Sr, San Miguel, Manila
EXECUTIVE SECRETARY PAQUITO OCHOA JR.,
OFFICE OF THE EXECUTIVE SECRETARY
DEPUTY PRESIDENTIAL SPOKESPERSON ABIGAIl VALTE
OFFICE OF THE PRESIDENTIAL SPOKESPERSON
C. By Registered mail to:
The Office of the Solicitor General
134 Amorsolo St., Lagaspi Vill. 1229
Due to the shortage of messengerial services and lack of material time, this Petition is being served by registered mail, in accordance with Section 11, Rule 13 of the Revised Rules of Court.
GEEPEE ACERON GONZALES
26June 2013, Manila – Media Defense Southeast Asia (MD-SEA) expressed dismay at the Philippine government’s statement that it is not obligated to pay compensation to the relatives of the Maguindanao massacre victims. MD-SEA referred to deputy Palace spokesperson Abigail Valte’s Tuesday radio interview statement over state-run Radyong Bayan where she said “We don’t agree with the interpretation because in any criminal case, it is understood that the civil aspect (compensation) will be determined by the court.”
Ms. Valte was referring to the statement of lawyer Harry Roque who said that “Unless the Philippine government complies with its duty to pay compensation, the victims will continuously be tempted with schemes that may eventually cause a miscarriage of justice.”
“The Philippine government obviously has the obligation under international law to compensate the relatives of the Maguindanao massacre — this is a basic principle in international law,” according to MD-SEA Director H R Dipendra.
“The Philippine government’s obligation to compensate is urgent, since the 58 victims were brutally killed, including 32 journalists and media workers. The Philippine government failed to ensure the victims’ right to life. The victims’ deformed bodies from photos I saw still come to mind, every time one say Maguindanao massacre,” added Dipendra.
Noted MD-SEA Board Member Alfred Dodwell — a Senior lawyer in Singapore and a member of the International Media Lawyers Association, “The Philippine government’s statement, expressed thru Ms. Valte, shows a lack of legal understanding. The civil aspect refers to a defendant’s liability to his victims. This is true in all jurisdictions such as in Singapore. On the other hand, compensation refers to the Philippine government’s separate obligation to the Maguindanao victims.”
“Obviously, civil aspect is totally different from compensation,” added Mr. Dodwell.
Note: MEDIA DEFENCE SOUTHEAST ASIA (MD-SEA) is a regional non-governmental organization of lawyers defending and promoting freedom of expression across Southeast Asia. In line with its mandate, MD-SEA sends trial observation teams across Southeast Asia to ensure that accused journalists, bloggers, and media workers are accorded their right to a fair trial under international and domestic law.
As stated in Article 36 of the Responsibility of States for Internationally Wrongful Acts “1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. 2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.”
TIRED of the slow pace of justice, relatives of 14 of the 58 fatalities in the November 2009 Ampatuan massacre had signed an agreement with an “emissary” of the accused to negotiate the settlement of the murder case for P50 million.
But no settlement has been reached to date: The “emissary,” identified as Jun Chan, was killed in an ambush en route to his farm in Barangay Sulit in General Santos City a month after the agreement was signed.
The agreement with Chan was reached the third week of February, and Chan was killed on March 25. But the proposed settlement surfaced only recently when an heir of one of the victims decided to provide the details to highlight how precarious their situation is—financially and security-wise—as victims living in Mindanao.
Lawyer Harry Roque confirmed in radio interviews that four of the 14 heirs who signed the agreement with Chan are his clients.
The source, who attended the two meetings with Chan but ended up not signing the agreement, said the meetings were held in a mosque in General Santos on the second and third weeks of February. Chan was accompanied by a man they called “Prof,” but the heirs came without their lawyers, the source said.
In the first meeting, Chan asked the heirs to sign a document authorizing him to negotiate a financial settlement on their behalf in return for 15 percent of the amount. “We said we would not entertain any offer lower than P50 million, and the emissary said he would talk to his principal,” according to the source.
In the second meeting, Chan told the heirs that his principal was amenable to the amount but asked for two affidavits in return, the source said.
One would be an affidavit of desistance. The other would be an affidavit stating that then gubernatorial candidate Esmael “Toto” Mangudadatu had promised each journalist P30,000 as payment for accompanying his wife Genalyn to the Commission on Elections office in Shariff Aguak to file his certificate of candidacy (COC).
“Akala namin nung una, affidavit of desistance lang OK na, pero sabi nila wala na daw magiging epekto yun sa kaso dahil pwede pa ding mag-prosecute ang gobyerno kahit bumitaw kami (We initially thought that they just wanted an affidavit of desistance, which was all right with us. But they said this would have no effect on the case because government can still prosecute the case),” the source said.
The heirs were asked to state in their affidavit that Mangudadatu promised to pay the victims P5,000 as downpayment and the balance of P25,000 after the COC had been filed, the source added.
Said the source: “Gusto nila na idiin si Toto, na alam nya na ipinapain nya ang buhay ng mga media para makapag-file siya ng COC (They wanted to implicate Mangudadatu by showing that he knew he was putting the journalists’ lives in danger).”
The source also said Chan repeatedly warned them “not to talk to anybody about the negotiations for our own safety.” Hence their silence when he was killed a month later.
At the time, police did not know the motive for killing Chan, who was in a car with his wife. Chan’s wife survived.
Chan had stressed in both meetings that it was in the heirs’ best interest to settle the case because the trial would only linger because the government’s evidence against the accused was weak, the source recalled.
“Kung manalo man daw kami, malaki na daw na makakuha kami ng P5 million (Even if we win, the most we’d get is P5 million),” the source said.
Reacting to the agreement reached between the victims’ heirs and Chan, National Union of Journalists of the Philippines president Rowena Paraan said, “We have an environment that encourages the victims to settle. If the victims feel they will get justice, the temptation to settle will not be there.”
On Monday, the NUJP and the Franciscan Sisters commemorated the 43rd month of the Ampatuan killing with a mass at the St. Joseph’s College in Quezon City.
Lawyer Prima Quinsayas, one of the private prosecutors in the ongoing Ampatuan trial at the Quezon City Regional Trial Court, said she heard about the meetings between Chan and the heirs but that “none of (her) clients discussed it with her.”
Roque, said he will ask the United Nations Human Rights Committee to look into government’s failure to accord adequate remedy to the victims under domestic laws and compensation.
The UNHRC has called the Philippine government’s attention on two cases, that of Navy ensign Philip Pestano and Eden Marcellana, both victims of extrajudicial killings.
Roque said the government’s duty to pay compensation to the victims of the Ampatuan killing is “separate and distinct from the civil damages that the court may order the accused to pay to private complainants.”
By MYLAH REYES-ROQUE
AMPATUAN VICTIMS TO SEEK REDRESS WITH UN COMMITTEE ON HUMAN RIGHTS. 14 Victims signed authority to negotiate a settlement with Ampatuans
On the occasion of the 43rd month commemoration of the Ampatuan massacre, Prof. Harry Roque, Chairman of the Center for International Law and Private Prosecutor of 17 media victims of the massacre, announced that their clients will resort to a filing of a communication with the United Nations Human Rights Committee for the Philippine government’s failure to accord the victims their rights to an adequate remedy under domestic law and compensation.
In at least 2 Views made by the UN Human Rights Committee where the Philippines was found guilty of breaching its obligation to protect and promote the right to life (the Pestano and Marcellana cases) for its failure to seasonable investigate and prosecute the killings of Navy Ensign Philip Pestano and Eden Marcellana, the Committee already declared that the Philippine government owes victims of extralegal killings these two obligations. “Thus far, it’s been almost 4 years and there is still no end in sight to the criminal prosecution of the Ampatuans. In fact, the Philippine government took almost 4 years just to file the information for the 58th victim, Reynaldo Momay. This should give us a clue on how long the criminal proceedings will take,” Roque added
Furthermore, Roque explained that the duty to pay compensation to the victims of the massacre is separate and distinct from the civil damages that the Court may order the accused to pay to the private complainants as part of the judgment in the criminal cases for murders. “The compensation that is due to the victims is because it is the state itself that breached its obligation to protect and promote the right of the victims to live. This includes not just monetary compensation, but also all that may be required tor restore the emotional and psychological well being of the victims. “We still have a pending motion for the Court to order government agencies to provide psycho-social support to the victims. This has not been acted upon but has strangely, given rise to a petition filed by the accused to cite us in contempt allegedly for “prejudging” the merits of the case”, Roque declared.
The need of the victims for compensation has been highlighted by the fact that 14 media victims, including 4 represented by Centerlaw, signed a written authority in February of this for a close associate of the Ampatuans to negotiate a settlement with the accused. Under this scheme, the victims were to sign not just a waiver and quitclaim, but also an affidavit pinning the blame for the massacre to Governor Toto Mangundadatu.
“Unless the Philippine government complies with its duty to pay compensation, the victims will continuously be tempted with schemes that may eventually cause a miscarriage of justice”, Roque said.
Roque asked all media groups and all those adhering to the rule of law to support the communication by filing their own interventions and briefs in due course
In response to my Blog entry on the Chinese view on the Philippine arbitral claim on the West Philippine Sea, Judge Xue asked that I post the following disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roque’s presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position of China on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”
Ref: Prof. H. Harry L. Roque, jr
Centerlaw agrees with P Noy ‘s decision not to impose Martial Law in Tacloban. Factually, it was reported that there has been a breakdown of law and order with looting and other crimes now rampant in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, including the suspension of the privilege of the of the writ of habeas corpus, which would mean non-recourse to the courts to question a person’s detention, I am happy that P Noy rejected the temptation to exercise powers of a dictator.
Under our Constitution, the President has three extra-ordinary powers as Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. Further in cases of n case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.
PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege or the declaration of martial law should be exercised with caution. This is because freedoms are protected the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.
Centerlaw, a Civil Society Group that seeks to strengthen the applicability of human rights norms in the country, then supports P Noy’s decision to call in the armed forces to restore and order in Tacloban. We commend him for rightfully rejecting the exercise of dictatorial powers.