Please click here for a copy of the Letter of the Laude family to DOJ Secretary Leila De Lima dated March 23, 2015.
Now it can be said. Despite being one of the world’s mega-cities, Metro Manila appears to be governed by the law of the jungle. It is a unique jurisdiction where the police, normally tasked with implementing judicial orders, are the first to defy them. It is unique since it’s possibly the only jurisdiction where cabinet members tasked with the promotion of justice consistently advocate disobedience of judicial orders. This is why it is also the only place on earth where a suspended Police Chief can take orders from no less than the President himself.
What kind of insanity has come to our land?
I’m not at all familiar with the details of the suspension of Mayor Jun-Jun Binay. My knowledge of the incident is limited to what we read in the newspapers. I know that the Ombudsman recently decided to initiate preliminary investigation for plunder against the Mayor for the allegedly overpriced Makati City Hall Annex. This means that the Ombudsman HAS ONLY STARTED the process of finding if there is probable cause against the Mayor. Ergo, he remains absolutely innocent of the allegations against him and not just presumed to be innocent.
I also read that in connection with the administrative complaint against him filed together with the criminal complaint; the Ombudsman ordered the six-month temporary suspension of Mayor Binay. Here, the suspension is not by way of a penalty since the investigation process has only begun, but intended only to prevent the respondent from tampering with evidence. But like all orders, such suspension can only take effect if served on the respondent. Because this is an Order that affects the exercise of a popular mandate, the Mayor being an elective post, this Order must be served personally on the Mayor. This, I believe was never done partly because the process server of the Ombudsman could not penetrate the mass of people that gathered in City Hall who protested the temporary ouster. In lieu of personal service of the Order, the same was “posted” in the vicinity of the City Hall.
Again, while being a lawyer, I cannot claim to be an expert on all fields of law. Nonetheless, my knowledge of service of summons and notices, and more so, orders of suspension, is that they should be served personally on the respondent. The only instances where notice other than personal service is allowed is in actions against real property, so-called actions in rem, where the proceeding is against realty such as foreclosure of mortgages. Here, posting of notices in the property itself or summons by publication is allowed. The only other exception to personal service is in personal actions affecting persons and family relations where the respondent is outside of the country. In which case, summons to his last known address and summons by publication is allowed. I am not aware that an Order that would subvert the will of the sovereign people could be served by mere “posting”.
In any case, I also know as a lawyer that regardless of the merits of the case against Mayor Binay, the fact is the Court of Appeals, as part of the judiciary, a co-equal branch of government, issues an Order temporarily restraining the suspension of the Mayor, the co-equal Executive branch of government must not only comply with the Order but must also implement it. While the Courts have sheriffs to serve its Orders, the Courts nonetheless rely on the Executive, the latter mandated by the Constitution to implement our laws, to enforce its lawful orders. This is because while the Courts can issue Orders, it does not have a police force to implement its orders.
But in this megacity, the police apparently are the first to defy court orders. That is why without a doubt; this megacity is governed by the law of the jungle.
The Executive branch better think twice about the repercussion of its decision to defy the lawful Order of the Court of Appeals. Law forms part of a normative system because we want disputes settled peacefully and pursuant to the rule of law. We may not agree with Court Orders, but we should never openly defy them. The remedy for government is to question the TRO in the proper forum: in the CA itself or in the Supreme Court. It does not bode well that those tasked with the implementation of Court orders are the first to defy them.
Ironically, this is why the Philippines resorted to the rule of law in settling its dispute over the West Philippines Sea with the super-power China. We did so after mature contemplation that we are not in a position to resolve it using the law of the jungle: the sheer use of force. But when the same members of the Executive Branch resort to this same rule of the jungle domestically, not only do we send the message to our people that it is all right to take the law into their own hands. We also send the message to countries like China that we do not adhere to the rule of law, debunking the high moral grounds that we have taken in resolving our dispute in the West Philippines Sea.
Goodness gracious! Lets round up these beasts and lock them in cages come 2016!
This post first appeared on http://manilastandardtoday.com/2015/03/19/law-of-the-jungle/
It was interesting that former Assemblyman and Governor Homobono Adaza recently filed a criminal complaint for treason against PNoy and the members of the Philippine peace panel. Treason is defined as the “act of levying war against the Philippines or adhering to its enemies, giving them aid or comfort within the Philippine Islands or elsewhere”. According to Bono, the fact that the President and the members of the peace panel entered into an agreement with the Moro Islamic Liberation Front which would for all instances, create a sub-state in violation of the ponencia of now Ombudsman Conchita Carpio-Morales in the case of North Cotobato vs Peace Panel, is an act of treason.
While I agree that the Bangsamoro Basic Law is contrary to the Constitution and that its proponents are traitors to the Republic, I do not think the complaint for treason will prosper. This is because treason, in jurisprudence, is a crime committed in times only of an international armed conflict. The act of levying war must be against the Republic of the Philippines at a time when it is at war with a foreign enemy. This is why the only convictions we have for this crime were against those who fought with or collaborated with the Japanese during World War two.
Does this mean though that P Noy and the rest of the proponents of the BBL have no criminal culpability?
Certainly not. The MILF as a domestic armed group is guilty of rebellion for “rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof”. Certainly, their use of arms for the purpose of establishing an independent state is the classic crime of rebellion. What is the criminal liability of those who will aid or abet those engaged in the crime of rebellion? Well, the Revised Penal Code punishes not only those who lead and directly participate in the rebellion, but also those who conspire to commit the crime. Moreover, the law also punishes public officers or employees who have failed to resist a rebellion by all the means in their power. Perhaps, this is how we can hold Ging Deles et al responsible for their loyalty to the MILF.
And while I think that Bono’s complaint for treason will not stand, it is still my hope that the Ombudsman will nonetheless file the correct charges against those who have betrayed the Republic.
In this regard, the Ombudsman could act against Deles et al motu propio and without a formal complaint. This becomes more imperative given her ponencia of the Supreme Court decision that struck down the MOA-AD, precursor of the BBL, as unconstitutional. Certainly, the executive’s insistence on the BBL, which restates provisions already declared unconstitutional by the court, also amounts to the felony of insubordination to judicial orders.
What did the Ombudsman say in her ponencia against the MOA-AD, which were disregarded by those pushing for the BBL?
Well, the Ombudsman was clear that neither the President nor her negotiators could commit that neither the Constitution nor our laws will be amended to accommodate the peace agreement. As ruled by then Justice Carpio- Morales: “Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested”.
The parliamentary form of government provided in the BBL already requires an amendment of the Constitution. This is because what is currently provided by our Charter is that “Congress shall enact an organic act for each autonomous region…. consisting of the executive and legislative assembly, both of which shall be elective”. There is no Executive in a parliamentary form of government and its Chief Minister is not elected by the people but by members of the parliament.
In any case, the fact that the BBL establishes a sub-state in breach of the Constitution and of the decision of the Supreme Court, is apparent in its provisions granting the entity its own maritime zones, its own bill of rights, police force, Civil Service Commission, Commission on Audit, and Commission of Human Rights. All these are clear indicia of a sovereign state, which cannot exist in our current unitary form of government. In one case, our Supreme Court said that in a unitary state, “local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government”.
What is very clear is that the BBL will establish an independent state within the Republic of the Philippines.
The bottom line is this: Bono may be wrong in filing treason against P Noy, Deles et al. He is however, infinitely correct in wanting that all those who have proven to be disloyal to the Republic should be punished for their acts. Let’s hope the Ombudsman agrees with him as well.
This post first appeared on http://manilastandardtoday.com/2015/03/12/treason-2/
Now that the clamor for P Noy to resign because of the Mamasapano fiasco has found steam, the question asked by many is: who should succeed him? Unfortunately, while the Constitution is very clear that he should be succeeded by Vice-President Jejomar Binay, many muddle the issue by insisting on the unconstitutional option that a council of sorts should succeed.
I add my voice to the many that have warned against an unconstitutional succession. The people, and that includes me, voted for Noy-Bi in the last elections cognizant that should P Noy be unable to serve his full term of office for any reason, then he should be succeeded by VP Binay. While I do not pretend to speak for the millions that installed this Noy-Bi leadership, it was certainly my intention that should the son of democracy scion be unable to discharge the functions of his office- and his incompetence in dealing with the Mamasapano incident and its aftermath have made this very clear- then Binay should succeed. Other than that his succession is etched in the Constitution, why should Binay succeed?
Well, the people, by electing him into the Vice-Presidency, said so. And they said so for many reason. To me, it was because of his proven managerial experience in running Makati for almost three decades and his dedication to the cause of human rights, which he proved as a Mabini lawyer during the dark days of martial law. Sure, there have been talk of corruption against him, including the many things that his former vice mayor has said against him. But the cynical truth is that in this country, corruption has become systemic. This is why despite the fact that his accusers have devoted record legislative hours in their witch hunt against him, people have taken the attacks against VP Binay in stride coming, as they were, from polluted sources themselves. The reality is outside of Ping Lacson who refused to accept his pork barrel (and possibly Joker Arroyo, as well), any senator who received his pork barrel and his DAP are not just presumptively but proven to be corrupt by two Supreme Court decisions invalidating both the PDAF and the DAP as being contrary to the Constitution and as forms of misappropriation of public funds.
Clearly, the botched witch hunt against VP Binay is proof of what our rules of evidence already provides: that evidence to be believed, must not only be believable but must come from believable sources as well. Certainly, talk of corruption from those with proven unclean hands cannot bring a good man down.
But outside of managerial experience and dedication to the protection and promotion of human rights, VP Binay’s profession as a lawyer now comes in handy. Again, while the Constitution does not prescribe any minimum qualification for the Presidency other than being a natural born Filipino, we now know, particularly from the failed PNoy administration, that a President, as chief enforcer of the law, must know the law. Here I cannot help but wonder if a lawyer would have made the same mistake as implementing the DAP or asking a suspended PNP Chief to implement a police operation against a high value target. A lawyer is trained to follow the law. This is why Butch Abad would have the stigma hence of having breached the constitutional separation of powers when as a lawyer, he should have known what the power of the purse meant.
This is why the Ombudsman has said that former PNP Chief Alan Purisima may have usurped authority when he participated in a police action at a time when he was suspended from office. A President who is a lawyer would not have made such basic mistakes. But PNoy, a non-lawyer, did; this despite his battery of lawyers including the Secretary of Justice, the Presidential Legal Counsel and the Solicitor General. Binay, by contrast, as a lawyer should know better.
But perhaps, the best reason for VP Binay to take over now is because he has become a seasoned and astute politician. Again the curse in having what Joker Arroyo described as a “student council” leadership is the lack of savvy to unite conflicting interests towards a common direction beneficial to the country. I myself have never been a politician and cannot see myself working with the likes of those in the close circle of P Noy. But Binay can and he can do so while working at the same time with the Erap camp, FVR’s camp, GMA’s camp and even the far left. Perhaps, it is this quality that we now need the most in a leader. One who like Mao, can make “a thousand flowers bloom” and harness them to a common direction: a strong, prosperous, respected Philippines in the 21st century, rather than a pathetic third world country with lackluster and mediocre political leadership, prone to mendicancy.
Yes, I confess: I can’t wait for 2016 to see Binay as president. Lets make him president now.
References: Atty. Harry L. Roque Jr. (firstname.lastname@example.org) and
Atty. Romel R. Bagares 09328798422
Lawyers for the family of the transgender murder victim Jennifer Laude blasted today Angeles City Chief Prosecutor Emilie Fe M. De Los Santos for blocking in open court their efforts to introduce evidence in the prosecution of an American marine tagged for the killing.
“We cannot understand why she should do that,” said lawyer Romel Regalado Bagares, one of the lawyers representing the Laude family. “As the public prosecutor, she should cooperate with the private prosecutors in ensuring that justice is served in this case.”
At the continuation of the pre-trial of the case, the lawyer, with co-counsel lawyer Virgie Suarez and Charlaine Latorre, asked the Court to include in the list of prosecution witnesses the commanding officer of the unit the Accused, Lance Corporal John Scott Pemberton, belonged to at the time of the Oct. 11, 2014 murder.
He also wanted to add to the list of prosecution witnesses the American officer who has custody of Lance Corporal’s service records and the officer in charge of training at the Marine boot camp that Pemberton attended.
De Los Santos however, opposed this. “We wanted to have all corners covered,” said Atty. Suarez. “We did not expect that to come from her, since we are supposed to be on the same side.”
Lawyer Harry Roque, the Laude family’s lead counsel, was not in court today because of a prior commitment to attend a conference on the West Philippine Sea dispute at the Harvard Law School, where he was invited, along with Supreme Court Associate Justice Francis Jardeleza, to speak at a panel.
However, during the arraignment of the Accused on February 23, in the presence of the lawyer, the Angeles City Public Prosecutor tried to prevent him from speaking in court. But the presiding judge, Roline Jabalde, recognized his bona fides in open court as a private prosecutor.
When reached for comment on the latest antics of the public prosecutor, Roque revealed that the private prosecutors have tried several times to reach an agreement with her on how they can work together on the case. “She has refused to talk to us in the most unprofessional way imaginable. She is making it easier for the Defense by doing the latter’s work.”
De Los Santos has publicly declared that she will not allow private prosecutors any lee way in the presentation of the evidence for the criminal aspect of the case. Today however was the first time that she actually prevented the private prosecutors from introducing evidence in court.
“We are constrained to bring this matter to the public’s attention because the public prosecutor herself is blocking cooperative efforts between us to obtain justice for the victim,” said Roque.
Last Wednesday, 1500 people led by Juana Change were prevented from forming their human chain from Crame to EDSA shrine. Talk about irony. The son of democracy icons doing a Marcosian tactic on the day we celebrate the end of a dictatorship.
What happened to PNoy? He clearly is not the person that millions of Filipinos thought he was when he was given an unprecedented mandate to lead. Mea culpa, as well as culpa of the millions of others who voted for him and ensured his victory in the 2010 elections.
I thought PNoy would stand for good governance and democracy because I had the opportunity to work with him up close in the attempts to impeach PGMA. Of course we expected him to be part of the moral indignation against the bastardization of democracy as evident by the notorious “Hello Garci” tape. His involvement against the cheating, stealing and lying PGMA regime was expected of him because his father died fighting for the restoration of democracy, while his mother ushered in democracy. Clearly, it would have been unforgivable for the son of our icons of democracy to be indifferent to systematic electoral cheating.
PNoy also stood his ground against corruption in the country. The anomalous Chinese-funded projects that became the consideration for PGMA’s sale of our patrimony to the Chinese- initially through the joint seismic exploration with China. This SURVEY enabled China to confirm its suspicions that the disputed Spratlys islands and even the undisputed territory of Recto bank contained vast deposits of oil. China has since been unrelenting and outright aggressive in defending its claims to the disputed and undisputed territories. An energy-starved country with the highest population density in the world is bound to lust after the resources of others. PNoy also stood against this sell-out by opposing the anomalous Chinese projects both in the impeachment complaint against PGMA and when he became Senator in 2007.
With such clear track record, the question now is: what on earth happened to him ? Yesterday he was a true blue democrat. Today, he would not even allow a crowd -whom he has dismissed as insignificant in number- from doing a human chain on the day we celebrate EDSA 1!
PNoy successfully dispersed and prevented the human chain by ensuring that no one would be able to congregate on EDSA. As early as 5 AM, police blocked off EDSA from all cars and people! This was worse compared to what PGMA did also on a February 25 when she declared a state of national emergency that led to THE ARREST OF Randy David et al while marching along EDSA. This is because PGMA at least allowed everyone else to march along EDSA except for those who were arrested.
PNoy in this year’s EDSA commemoration prevented the people from marching altogether!
Of course I’m shocked. Of course I’m indignant. How dare the scion of democracy destroy that which his own father died for! The same democracy that his own mother defended from putschists. How dare PNoy be the same evil that we stood against in EDSA. And like millions of other Filipinos, I feel utterly betrayed by him and indignant that he has become himself an enemy of democracy.
What was PNoy afraid of? We already know the truth! We know that the blame for the Mamasapano massacre lies with him not only for authorizing his suspended henchman implement a bad plan, but also for refusing to order the military to provide assistance to the beleaguered policemen to ensure the sell-out of Mindanao through the BBL, the handiwork of Black and White movement’s Ging Deles and the rest of the MILF spokespersons.
We know already the truth that he is simply unable to lead- abdicating the functions of his most powerful office to his kaibigans, kaklase, and kabarilan. We already know that other than blaming the previous administration for all the woes of our nation, he was devoid of a platform of government that led literally to a lack of governance under his term. We also know the truth that he does not care for Philippine sovereignty as he has in fact surrendered the custody of a vicious killer who murdered one of us to please mother America. We know too that his eagerness to please Uncle Sam also led to his support to the one-sided EDCA and the death of the SAF 44 even if it is clear that their martyrdom is not worth achieving the US objective in capturing its enemy coddled by the MILF.
So what else is PNoy hiding when he infringed on our rights to speak out? Clearly, the truth has already set the people free! While he may have succeeded in preventing the human chain using the same techniques of both Marcos and PGMA, he will not be able to restrain the people’s anger altogether. In this regard, he should learn from the experiences of Marcos and PGMA. Soon, he will be booted out and made to pay for his crimes against the people.
To our comrades on the streets: we may have failed to capture EDSA last Wednesday. But like Don Quixote, we simply need “to rise, brush off the mud and CONTINUE the fight!” Soon, PNoy will suffer the fate of Marcos and PGMA. Only I hope it will be worse. Because unlike Marcos and PGMA, it was only PNoy who betrayed so many of us.
Its highly unlikely that attention-starved congressmen will agree to scrap the House of Representatives hearing of the Mamasapano massacre on their own.
To begin with, while the hearings in the bigger House were less composed when compared to the hearings in the Senate, more information came out of the lone House investigation.
Rep. Neri Colmenares singled out some of these new information, to wit: “a) the text message of Gen. Rustico Guerrero confirming that Pres. Aquino knew about the Mamasapano incident earlier on January 25, (b) the admission by Gen. Napeñas that Pres. Aquino knew about the time on target coordination and approved it which means Aquino agreed not to coordinate with the AFP beforehand, (c) the claim to executive privilege of Gen. Purisima, (d) the Medico Legal report emotionally described by Gen. Espina; and (e) the admission by Gen. Catapang that he did not inform Pres. Aquino even if they were together in Zamboanga that day”.
So why did the House suspend its hearing? The official reason is to avoid “prejudicial conclusions” since the official Board of Inquiry findings still have to be written.
But that reasoning is crap. Congress is never bound by the findings of any other investigative body. When Congress conducts an inquiry in aid of legislation, it is in the exercise of a plenary power that cannot be limited by any other branch of government. What is a legislative in purpose is also within the powers of Congress to define.
Moreover, Congress may also conduct investigations in the discharge of its power of oversight, that is, as holder of the power of the purse, it should ensure that government agencies are doing their job pursuant to the budget allotted to them. Hence, it was but proper that Congress inquire on whether the PNP, the AFP and the DILG spent tax payers wisely and correctly in this bloody police operation.
So why did the House suspend it proceedings? I think the truth is obvious. The PNoy administration, including its allies in the House of Representatives, are now afraid of the truth. Already, the subsequent Senate hearings on the matter indicate that the President clearly knew about the plan to capture Marwan et al in Mamasapano, that he continued to utilize the services of the suspended PNP Chief Alan Purisima in connection therewith, and that confidentiality was required because they knew that even the AFP, with its leadership committed to the Peace talks with the MILF, might leak information that may prove detrimental to the capture of the high value targets.
Questions are now being asked on when the President knew that the SAF 44 were under siege. The question which has not been asked is why the President did not order the AFP to provide reinforcement to the besieged 55th Company of the SAF and why? Many, including I, surmise that the President, like AFP Chief of Staff Catapang, played God and decided to sacrifice the lives of the SAF 44 in order to protect the ceasefire with the MILF.
There too is the question of why US operatives were involved in the operation beyond the giving of the $6 million bounty for Marwan, dead or alive. While many shrug off the American involvement as necessary since we do not have the technology to acquire the proper intelligence information required by the operation, the reality is that the 1987 Constitution prohibits even just the presence of foreign troops, bases and facilities in the country after the termination of the US-Philippine Bases Agreement in 1991. The only way these foreign troops can be in the country is through a treaty duly concurred not by a mere majority of the members of our Senate , but by 2/3 of all its members, and even ratified by the plebiscite by the people themselves, when so required by the Senate. And these stringent requirements is only for the purpose of allowing foreign troops, bases and facilities in our territory. Compliance with the imperative requirements is not even sufficient to allow foreigners to be engaged in actual police or battle operations in our country. Such is absolutely prohibited because such an involvement would simply violate both Philippine sovereignty and jurisdiction. Full stop.
So what now? The House has suspended its hearing and the senators, on the other hand, appear complicit in hiding the truth from the people by holding its hearings in “executive sessions”. Clearly, the Senate, in doing so, although clearly more independent than the House, appears to be susceptible nonetheless to palace cajoling to keep the truth from the people.
I have said from the beginning that where political considerations, both of the selfish and the policy types, i.e., the necessity of proceeding with the peace talks, come into the way of the fight against impunity, the country must utilize the full benefits its membership in the International Criminal Court. The Court was established, and we joined the Court, precisely because those who violate the most important norms of international law, such as those who commit war crimes, should be prosecuted, no matter what. The ICC prosecutor, would moreover, have the proven expertise to investigate these possible war crimes when compared to the DOJ Prosecutors that has zero experience in this regard. Besides, with the Maguindanao massacre prosecution in limbo after almost six years, coupled with the DOJ’s 1-percent conviction rate in the prosecution of extra-legal killings, its clear that our legal system is simply both unable and unwilling to investigate the leadership and men of the MILF for the possible war crimes committed against the SAF44 and the Filipino people.
Time to seek aid from the international community. Lets refer the Mamasapano massacre to the ICC!
Its now apparent that in an effort to shield President Aquino from blame in the death of the SAF 44, administration spin doctors have been pinning the blame for the fiasco on both former PNP Chief Alan Purisima and SAF Chief Getulio Napenas. Of course the two, undoubtedly, have lots to answer for. But palace spin masters would now want us to believe that only the two should be held responsible for the fiasco.
This cannot be the case. While palace supporters belabor the point that both allegedly “broke the chain of command” when they did not inform DILG Secretary Mar Roxas and PNP OIC Leonardo Espina about Oplan Exodus, the reality is the two did not have to. To begin with, Mar Roxas is not part of the chain of command. As DILG Secretary, his involvement with the PNP is only as Chairman of the National Police Commission. This means he has supervision over the PNP only to the extent that he should ensure that the police are doing their job. He does not have control, operational or otherwise, because this clearly belongs to the Chief PNP and the other officers in the PNP hierarchy. In law, control means the power to substitute a superior’s discretion to those of his subordinates.
Anent OIC Espina, the truth is that there cannot also be a breach of the chain of command there precisely because rightfully or not, General Purisima was reporting to the President, the ultimate Commander-in-Chief. Moreover, although he was suspended, the reality is that he remained the Chief of the PNP and the highest-ranking officer of the police force.
What does this mean? Simply put, the buck stops with the President. Perhaps, we can fault both Purisima and Napenas for failing to comply with the President’s directive to coordinate with the Armed Forces. This can amount to insubordination and gross negligence. But because the President himself authorized the mission on a “time-on-target” basis, this means that liability for the fiasco rests on the President himself.
Time-on-target is military jargon when the means and methods of a mission have been agreed upon even if the actual date of implementation is not known. This also means that others on the field will be informed when the mission is implemented. Make no mistake about it. The decision to invade the MILF lair to capture two high-level terrorists on a time-on-target basis as implemented by the SAF was a decision of the President himself. Full stop.
In any case, the on-going Senate investigation has also confirmed many of our worst fears. To begin with, there is the fact that the Armed Forces should and could have sent in reinforcements but did not. So far, the justification of AFP Chief of Staff Gregorio Pio Catapang, whom I want jailed for indirect contempt of Court, is because “the PNP did not ask for reinforcement”. Ergo, the Chief of Staff, who has not been shy about his Senate aspirations- wants, in the words of one senator, “ a drowning man to cry for help”. In reality, when one is drowning, one is already unable to utter a word and hence the failure to seek assistance.
The situation was no different from when the Maguindanao massacre took place. In 2009, the AFP leadership in the same area turned down the request of the murdered journalists for military assistance in covering the ill-fated filing of Esmael Mangudadatu’s certificate of candidacy. Moreover, even after knowing about the build-up of Ampatuan supporters in the intersection where the victims of the massacre where rounded up, the same military leadership did not do anything even as to inquire why there was a build up consisting of heavily armed men in an area where there is an on-going armed conflict. In other words, the AFP did nothing- then and now- because they opted to turn blind eyes and deaf ears to their colleagues from the PNP.
The more interesting question now is: “Why?” Well, on the basis of the Senate hearing, Senate wannabe Catapang said that it was because of the peace process. And pray tell me: who told the Chief of Staff that he could play God to determine that the SAF 44 should die so that Ging Deles and Miriam Ferrer could gloat that they were responsible for peace in Mindanao? Utterly ridiculous, absurd, and even insane!
So what now? Well, in ancient times this was an instance that would merit the rolling out of the guillotine. Fortunately for all the misfits responsible for the untimely heroism of the SAF44, public indignation appears more painful today than the guillotine. And yes, they deserve it!
I’m happy that Senator Miriam Defensor-Santiago, the best President that we never had, agreed with my view that International Humanitarian Law (IHL) is applicable to the Mamasapano massacre that led to the heroism of the SAF 44. The good senator concurred with our view when she opined that President Aquino may be held liable on the basis of command responsibility.
IHL is the law applicable in times of armed conflict. It exists to protect civilians and other non-combatants from the adverse consequences of armed conflict. It achieves this goal by according non-combatants protection and by limiting the means and methods of warfare open to all combatants and fighters.
“Command responsibility” is a principle in IHL developed in the Philippines as a result of the trial of Yamashita, the highest-ranking Japanese officer in Southeast Asia at the end of World War II. When Yamashita was accused of war crimes, he put forth the defense, among others, that he did not know and did not order the atrocities complained about. The Philippine Supreme Court rejected this argument ruling that Yamashita willfully turned a blind eye to these atrocities. According to the Court, Yamashita should have developed a sound system where he could ensure that his troops knew the law and that they were in compliance with it.
On appeal to the US Supreme Court, a separate opinion formulated what today would be the principle of command responsibility. This is that a commander should be liable for the atrocities committed by his subordinates when he knew or should have known about the authorities, and he failed to take steps to prevent the crimes from happening, and fails to take steps to investigate, prosecute and punish them for these crimes.
Where I differ though from Senator Santiago is in her opinion that PNoy could be held liable for command responsibility.
My disagreement with the senator is not because I think the President should be absolved completely of command responsibility . In fact, on the occasion of the 5th anniversary of the Maguindanao massacre, I submitted the view, which was supported by the current UN Special Rapporteur on Freedom of Expression, that the 1-percent conviction rate our prosecutors have in convicting perpetrators of extra-legal killings may be a basis for holding the President liable under command responsibility since he has failed to prosecute and punish the perpetrators of the extra-legal killings in this country. Instead, my view is that PNoy should probably be held responsible for the massacre of the SAF 44 since he is Commander-in-Chief of the Armed Forces of the Philippines and the PNP, but not under the principle of command responsibility.
Why? Simply put, command responsibility under IHL may be used only against commanders and superiors of troops that may have committed grave breaches of IHL, the laws and customs of warfare. In the Mamasapano massacre, the sheer discrepancy in terms of the body count indicate that the SAF 44 may not have been engaged in battle; instead, what may have happened was a slaughter. What made matters worse is the fact that the slaughter must have resulted from our policemen’s wrong assumption that even if they are fighters in the territory of a domestic armed group, they will not be attacked because of an on-going ceasefire between our government and the MILF. This is the crime of perfidy or inviting the confidence of fighters that they have protected status and proceeding to attack them anyway. Moreover, the death count suggests that the MILF may have issued the order not to leave any survivors as in fact, there was only one who managed to escape the carnage. This again is a war crime since giving such an order is expressly prohibited by IHL and is furthermore contrary to the concept of military necessity and military objective. The object of warfare is the compete submission of the enemy and not to kill all of the adversaries. The inhumanity done to the corpses of our heroes is yet another war crime—that of cruel, degrading and humiliating treatment.
Simply put, it is the leadership of the MILF that should be held criminally liable under command responsibility since their troops probably committed the war crimes. To reiterate, PNoy could not be held responsible under the principle because it is neither the PNP nor the AFP that committed the crimes. If at all, his liability is that of a commander-in-chief who must take responsibility for a police manhunt that turned awry.
This should not at all absolve PNoy from liability for the death of the SAF 44. If in the past, the ineptitude and inexperience of this government have led to bad policies, his lapse in governance this time around should not go unpunished.
It’s time for his bosses to make their decision. I say we fire him for gross incompetence, a valid ground for loss of trust and confidence.
Statement of Prof. Harry L. Roque and Atty. Roger R. Rayel, counsel for Grecor Belgica, et al, on the Supreme Court’s new resolution on DAP:
“The new resolution of the High Court on the Disbursement Acceleration Fund (DAP) is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval on the de facto appropriation by the Executive without the benefit of congressional review.
While preserving two main holdings in its original ruling, the High Court’s decision to reverse itself on the third point – the funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act” – just about restores a wide swath of un-appropriated and not legislatively considered expenditures to the sole discretion of the Chief Executive.
This defeats the whole purpose of giving the power of the purse to the legislature. Precisely, a wide array of expenditures under the DAP have been made outside the General Appropriations Act. For all intents and purposes, the reversal by the Supreme Court reinstates and legitimizes the Presidential Pork Barrel System without benefit of congressional approval and oversight.
It is also surprising that the High Court appears to have made a new distinction between authors on the one hand, and proponents and implementers on the other hand, and in addition making criminal liability prospective as regards the latter. This is as if the constitutional provision stating that no money shall be paid out of the treasury without an appropriation made by law is not clear enough. This cannot be prospective.
We will file a Motion for Reconsideration of this Resolution within the period provided by the Rules.”
Click here for the pdf copy of the Manifestation with Urgent Motion to set Arraignment filed by Marilou Laude, via counsel, on Janury 29, 2015 at the Olongapo RTC.
Republic of the Philippines
THIRD JUDICIAL REGION
REGIONAL TRIAL COURT
Branch 74, Olongapo City
PEOPLE OF THE PHILIPPINES,
Criminal Case No. 865-14
– versus –
L/CPL JOSEPH SCOTT PEMBERTON,
URGENT MOTION TO SET ARRAIGNMENT
PRIVATE COMPLAINANT MARILOU S. LAUDE, by counsel, respectfully files this Manifestation with Urgent Motion to Set Arraignment, and states that:
1. Accused Pemberton filed a Motion to Defer Proceedings dated 18 December 2014
2. Thereafter, the Honorable Court acquired jurisdiction over accused L/CPL Joseph Scott Pemberton (accused Pemberton) when he personally appeared before the Honorable Court on 19 December 2014 pursuant to a warrant of arrest.
3. On 23 December 2014, the Honorable Court issued an Order granting accused Pemberton’s Motion to Defer Proceedings, the dispositive portion of which reads as follows:
“IN VIEW THEREOF, the Motion to Defer Proceedings is hereby GRANTED, and the proceedings are suspended for a period of sixty (60) days, or until such time that this court is furnished with a copy of the resolution of appeal by petition for review filed by the accused with the Department of Justice, whichever is earlier.
SO ORDERED.” (Emphasis supplied)
4. On 6 January 2015, Private Complainant Laude filed her Comment/Opposition to the Petition for Review filed by accused Pemberton before the Department of Justice.
5. On 27 January 2015, the Department of Justice issued a Resolution DENYING the Petition for Review filed by Accused Pemberton, the dispositive portion of which reads as follows:
“WHEREFORE, premises considered, the instant petition for review is hereby DENIED.
6. Therefore, the order of this Honorable Court suspending the proceedings in the instant case should be lifted pursuant to the Order, dated 23 December 2014, which states that the proceedings in the instant case are suspended until such time that the Honorable Court is furnished with a copy of the resolution with respect to the Petition for Review filed by Accused Pemberton.
7. On 29 January 2015, Private Complainant Laude, through counsel, received a copy of the Manifestation with Omnibus Motion, dated 28 January 2015, filed by the Honorable Public Prosecutors praying for the lifting of the Honorable Court’s Order for the deferment of the proceedings, dated 23 December 2014, and immediate arraignment of the Accused Pemberton on 05 February 2015, among other things.
8. In view of the foregoing, Private Complainant Laude respectfully joins the request of the Honorable Public Prosecutors and respectfully prays that the Honorable Court lift the order suspending the proceedings in view of the dismissal of the Petition for Review filed by Accused Pemberton.
9. Furthermore, Private Complainant Laude further prays that Honorable Court set the arraignment of Accused Pemberton on 5 February 2015 at 2:00 pm, or at the earliest possible date and time in accordance with Section 1(g) of Rule 116 of the Revised Rules of Criminal Procedure.
WHEREFORE, premises considered, Private Complainant respectfully prays that the Honorable Court lift the Order, dated 23 December 2014, suspending the proceedings in the instant case and set the arraignment of Accused Pemberton on 5 February 2015 at 2:00 pm, or at the earliest possible date and time.
All other reliefs as are just and deemed equitable are also prayed for.
Makati City for the Olongapo City. 29 January 2015.
By the Counsel for Private Complainant:
ROQUE & BUTUYAN LAW OFFICES
1904 Antel 2000 Corporate Center
121 Valero Street, Salcedo Village
Makati City 1200
Tel. Nos. 887-4445/887-3894; Fax No: 887-3
H. HARRY L. ROQUE, JR.
Roll No. 36976
PTR No. 4264493|Jan. 04, 2011|Makati City
IBP No. 01749|Lifetime
MCLE Exemption No. IV-000513
(issued on Feb. 15, 2013 )
GILBERT T. ANDRES
Roll No. 56911
PTR No.4264862|Jan. 30, 2014|Makati City
IBP No. 961460|Jan. 29, 2014|Negros Occ.
MCLE Compliance No. IV-0011824
(issued on Jan. 25, 2013)
CHARLAINE E. LATORRE
Roll No. 62890
PTR No. 4386325|May 23, 2014|Makati City
IBP No. 968977|April 22, 2014| Cavite
Admitted to the Bar: 06 May 2014•
VIRGINIA LACSA SUAREZ
Collaborating Counsel for Private Complainant
LABOR ADVOCATES FOR WORKERS’
SERVICES (LAWS INC.)
Roll No. 41145
Lifetime IBP Member-LRN 05283
PTR No. 4232794|Jan. 7, 2014|Makati City
MCLE Compliance NO. IV-0022951
(issued on July 6, 2013)
3rd Floor MKP Bldg., No. 22 Libertad St.
Mandaluyong City 1550
CP/Tel. NO. 09088159923/531-07-86/87
REQUEST FOR AND NOTICE OF HEARING
The Honorable Clerk of Court
Regional Trial Court
Branch 74, Olongapo City
Atty. Rowena Garcia Flores and
Atty. Benjamin Tolosa, Jr.
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila
Please take notice that undersigned Counsel will submit the foregoing Manifestation with Motion for the consideration and approval of the Honorable Court immediately upon receipt without further argument from counsel.
Also, this Manifestation with Motion is served on the opposing party by registered mail in accordance with Section 11, Rule 13 of the Rules of Court due to distance, time constraint, and lack of messengerial services.
CHARLAINE E. LATORRE
Pros. Emilie Fe M. Delos Santos
Counsel for the People
Office of the City Prosecutor
Atty. Rowena Garcia Flores and
Atty. Benjamin Tolosa, Jr.
9K The Fort Residences
30th Street corner 2nd Avenue
Burgos Circle, Bonifacio Global City
Taguig, Metro Manila
The Senate order to arrest Mayor Junjun Binay comes at a time when the country is in deep national mourning over the massacre of so many of our police heroes. It comes at a time when the people await complete and transparent explanation from its leaders on the true circumstances why our bravest and most patriotic sons in the police force were recklessly sent to the slaughterhouse and murdered like animals. It comes at a time when the highest officials of our nation face accounting of their active participation and liability in these tragic loss of so many young and promising lives.
At a time when the investigative resources and powers of the government should be rightfully summoned and devoted to uncovering what happened in this massacre, it saddens me to notice the deafening silence of the Senate leadership on the need for a Senate investigation, even after the President himself and police generals have admitted reckless lapses committed in sending our police martyrs to certain death.
At a time when the undivided attention of the people should be left concentrated on this national tragedy because it crucially comes in the midst of pending deliberations on the Bangsamoro Basic Law — this tragedy is presenting itself as the litmus test for the Senate to investigate the MILF’s true commitment to real peace — the Senate has chosen to divert the people’s attention to an overly-drawn and extended investigation on Mayor Binay.
By ordering the arrest of Mayor Binay at this time, the Senate has inevitably chosen to divide the people’s crucial attention and deflect full public scrutiny and accountability of our leaders and the MILF on the national tragedy that has left grieving parents, anguished widows, and wretched orphans.
In choosing to divert public attention on an arrested Mayor Binay, the Senate has even disregarded basic rules and has chosen to ignore Supreme Court admonitions on the indispensability of a quorum. With only three Senators out of a total membership of 20 Senators in the Senate Blue Ribbon Committee, the mere three-members declared that they had the quorum to unilaterally act for the 20-member Blue Ribbon Committee and issue an arrest order on Mayor Binay. This is a blatant violation of the most basic tenet of legislative bodies. How low can the Senate get in twisting the definition of a quorum just to deflect attention from the most pressing issue of the day? If the Senate can redefine quorum to merely require three members out of a total of 20, what will prevent them from declaring that a mere single Senator will constitute a quorum who can order the arrest of any Juan, Pedro, or Mario?
As the accusations against Mayor Binay have repeatedly been branded as criminal anomalies by the Senators themselves, the accusations should be rightfully ventilated in the judicial branch of government, and not used as a circus for media mileage and political assassination in the Senate.
I call upon the Senate to submit to the judiciary all the evidence it has against Mayor Binay and let the judiciary perform it rightful duty to assess responsibility, find liability and impose penalties. Unlike the judiciary which is mandated to find guilt or innocence, no matter how long drawn the Senate conducts any investigation, the Senate has no power to impose sanctions and penalties resulting from its findings.
I call upon the Senate to correctly make use of its “investigation in aid of legislation” powers by summoning the leaders of the executive and military branches of government, and even the MILF, who were involved — regardless of their standing as allies of the Senate leadership — in the Mamapasano massacre. This will be the correct use of the investigative powers of the senate “in aid of legislation” in connection with the pending Bangsamoro Basic Law.
We can count on my kumadre, star reporter Christine “Mamu” Herrera of this newspaper, to scoop all other broadsheets and news outfits for the truth particularly on sensational stories such as the Mamasapano massacre that claimed the lives of no less than 40 members of the Special Action Force of the Philippine National Police. Now we know that the blame for the carnage lies with PNoy himself who was only too willing to please his American master to apprehend two of the most wanted terrorists in the list of the US State Department. It appears from Mamu’s report that the President authorized the mission and for all intents and purposes, only he, his most trusted PNP Chief Allan Purisima, and the Americans knew about the mission.
In fairness, blame for the carnage should not be put on PNoy alone. His partner in peace, or should we say in violence, the MILF, is equally to blame. PNoy wrongfully thought that because of the prevailing ceasefire, his newfound comrades would not engage and more so, massacre our men. He thought wrong.
And because PNoy was out to please his American benefactors to whom he has surrendered Philippine sovereignty through the Enhanced Defense Cooperation Agreement, it is only but logical that four American GIs were sighted in the area. Obviously, since the Americans so badly wanted to capture the suspected terrorist as in fact, they offered a bounty of no less than two hundred sixty million pesos for their capture, it is but logical that Uncle Sam be on the ground to supervise the manhunt. And like PNoy, the Americans also did not anticipate that the MILF, because it has been receiving almost all of its Official Development Assistance intended for the country, would turn against the men that it has enticed to capture their enemy.
Clearly, the Mamasapano massacre has brought out a number of crucial policy issues that we, PNoy’s bosses, would now have to resolve. Foremost of these is the extent that we would go to serve America’s interests in the region. I have quite frankly, not heard of the two terrorists most wanted by the Americans until the massacre. Were the lives of more than 40 of our fellow Filipinos worth the botched effort to capture these alleged terrorists? I do not think so.
Another policy issues is: what were America’s most wanted terrorists doing in the territory controlled by the MILF? Why did we sign a peace agreement with a group known for harboring world-class terrorists? Long before this incident, veteran reporter Maria Ressa reported that the MILF has been allowing the terrorist group Jemaah Islamiyah to train and use its camps in Mindanao. Why did Ging Deles agree to channel billions of taxpayer’s money and to surrender Philippine sovereignty to a group that has long been notorious for harboring world-class terrorists?
There too is the issue of the Bangsamoro Juridical Entity. I have to disclose that I have been engaged by two groups to question this agreement as soon as Congress legislate the required enabling legislation. But outside the constitutional issues arising from the agreement, the even bigger obstacle now is the ability of the MILF to comply with its obligations under the peace agreement. At a time when both the PNoy administration and the MILF are courting both the support of Congress and the sovereign people to support this unconstitutional accord, the MILF, with no rhyme or reason, proceed to massacre our men. Can you imagine what they are capable of doing when they have already gotten their sub-state, legitimized their armed forces, and after they could legitimately receive funding from their Muslim supporters abroad? They have proven themselves capable of committing the worst atrocities when they are craving for support. Clearly, they have also proven themselves capable of worst barbarity after we have given in to their demands and legitimized their existence. It is very sad that more than 40 of our men had to be martyred for us to accept the reality that the MILF simply cannot be trusted to maintain the peace.
It is now a foregone conclusion that any member of Congress who would still dare to support the proposed Bangsamoro law after the massacre is doomed. So the more pressing issue now is that of accountability. While we do not know yet the details of the massacre, it appears from the disproportionate number of casualties from both sides: 40 dead in the PNP as against only 8 casualties for the MILF, that what happened to our men was not a military encounter, but a trap that led to the massacre. And because there was a prevailing ceasefire, it could be argued that the MILF must have employed perfidy, a war crime, since the MILF must have invited the confidence of our men that the peace pact means that they will not be attacked in their territory. So the question n everyone’s mind now, including our Chief Justice who called on everyone to adhere to the rule of law, is whether the MILF and its men will be prosecuted for the war crime of perfidy punishable under International Humanitarian Law ?
Certainly, Ging Deles and Miriam Ferrer would both object to such prosecution while the peace accord is still in place. If so, then perhaps we should make our first country referral to the Office of the Prosecutor of the International Criminal Court.
Let us honor the memories of our fallen heroes by enjoining the public to utilize the rule of law against the MILF and prosecute its leadership for war crimes.
Enough is enough.
This post first appeared in http://manilastandardtoday.com/2015/01/29/war-crime-in-mamasapano/.
The dismissal of Pemberton’s Petition is very good news. We commend the Department of Justice (DOJ) for its prompt action and for frustrating Pemberton’s delaying tactics. We can now proceed to prove his guilt. The nation deserves to know the truth, while the victim deserves justice.
Pope Francis proved himself to be the biggest “rock star” who invaded our country. With an estimated 6 to 7 million braving the rain to hear his final mass at Luneta, the Pontiff has clearly proven that he is the single most loved person in this country. The closest who could rival his drawing power was Tita Cory shortly after the despot cheated her and the people also flocked to Luneta. But make no mistake about it, even Tita Cory was no match to the charm and enigma of the current Pope.
In a way it was sad that many of us ignored the Churchs’ call not to focus on the Pope as a personality, but as a symbol of Christ. I’m sure those who lined up for a glimpse of the pope did so because they were captivated by the smile of the Argentinian, rather than the fact that he stands as a symbol of Christ. Perhaps, what we should be aiming for, now that our favorite “rock star” has left, is that his message should at least not fall on deaf ears.
And boy, did we need his message. Addressing the nation for the first time in Malacañang, the Holy Father did not mince words when in the presence of our corrupt politicians from all branches of government, as well as personalities who belong to the 1 percent that owns 40 percent of all the wealth of the country, the Pope demanded from his audience to “end scandalous social inequalities.”
The Pope continued: “ it is now more than ever, necessary that political leaders be outstanding for honesty, integrity and commitment to the common good”. The pontiff must have known that present in Malacañang then were the biggest thieves in this country. He then enjoined the elite to “ensure social justice and respect human dignity”. Then he demanded what surely will be ignored by our political and economic elite: “to reject every form of corruption, which diverts resources from the poor”.
Certainly, the pontiff must have been briefed about the PDAF and DAP scandals that are proof that almost every senatong, tongressman, president and members of the cabinet are corrupt to the core. In fact, he had even harsher words to say to the thick-faced goody-goodies in the cabinet who are building their election kitties from the miseries of the victims of typhoon Yolanda in Leyte: “but you have seen, in the profiteering and failed responses to this great human drama, so many tragic signs of the evil from which Christ came to save us”. He urged the faithful to pray that “everyone be more sensitive to the cry of our brothers and sisters in need. Let us pray that it will lead to a rejection of all forms of injustice and corruption which, by stealing from then poor poison the very roots of society”.
Then the pope clearly took sides against the rich and in favor of the poor: “I ask that the poor of this country be treated fairly- that their dignity be respected, that political and economic policies be just and inclusive xxx and that obstacles to the delivery of social services be removed”. I do not know about you, but if I were PNoy or a member of his cabinet, this should be read as a big slap on the face coming at a time when even the Commission on Audit reported that the controversial policy of dole-outs known as CCT has been tainted with widespread corruption, ranging from ghost beneficiaries and over-reporting of benefits received by its beneficiaries.
At the UST, the pope could not help but weep when a child asked: “why does God allow the children to suffer?” Earlier, Father Shay Cullen reported that Dinky Soliman’s DSWD caged no less than 400 children to clean up the streets of Metro-Manila for the pope’s visit.
Now that the pontiff has left, what will happen to the message he has imparted?
Well, the President was quick to say that the Pope could not have been referring to his administration when he asked that the government treat the poor with respect. He must still be blaming the past administration, as in fact he did in his address in Malacañang, for the poverty that the Pope decried. Taking the cue from PNoy, Dinky Soliman followed suit and again assured the nation that in the same way that the COA report on the corruption in CCT was erroneous, that Father Cullen’s report about caged street children was also wrong. I take it that both the President and Soliman are saying that the pope received the wrong advice?
Fortunately, the pope did not have to be advised to see the real score in this country. He was so moved by the miseries of the typhoon victims that he was reported to have said that he needed the experience. I’m sure he knew that the reason why the victims suffered even more was because of PNoy’s adoption of the Roxas policy to spare their political enemies relief that government should have given on humanitarian grounds.
And yes, he himself must have seen the plight of the street children in both Tacloban and Manila. Yes, he saw the children the we have been seeing every day but unlike our leaders, took a humane view that the children should not be where they are.
So will our leaders heed the message? Honestly, I doubt it. They will forever gloat about the blessing they received from the Pope having seen him up close at the airport, in Malacañang, and from their front row seats at Luneta.
Yup, we’re back to normal.
This post first appeared on http://manilastandardtoday.com/2015/01/22/falling-on-deaf-ears-2/.
Request for Coverage
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111
The Motion hearing for the “Motion for Reconsideration” to the December 23, 2014 Order filed by Marilou S. Laude, via counsel, is set tomorrow, Wednesday, 14 January 2015 at 10:00 AM at the Olongapo Regional Trial Court.
Please click here for the full text of the MR.
Please click here for a copy of the Motion for Reconsideration filed on January 9, 2014 by Marilou Laude, by counsel, to the December 23, 2014 Order of the Olongapo Regional Trial Court based on the following legal grounds:
I. The 3-day notice rule is not absolute. Its rationale is satisfied when there is an opportunity to be heard– which was clearly present in the hearing for these two motions. The collaborating counsel (Atty. Felimon Ray l. Javier) for the accused, and the public prosecutor (city prosecutor Emilie Fe M. Delos Santos) were present during the 22 December 2014 hearing day for the two motions, and they even made their oral comments.
II. Moreover, there were exigent circumstances as to the filing of the two motions that, consequently, called for a liberal application of the 3-day notice rule.
III. Private complainant filed her two motions in accordance with her “right to access to justice” under international human rights law. Hence, the conforme of the public prosecutors is not necessary to the two motions.
IV. It was not possible to get the conforme of the public prosecutors to the “urgent motion to compel the armed forces of the Philippines to surrender custody of accused to the olongapo city jail” since the head of the panel of public prosecutors, city prosecutor Emilie Fe M. Delos Santos, refused to sign it — in contradiction to the official position of the justice secretary. The city prosecutor also refused to sign the “motion to allow media coverage.”
V. The issues raised in the two motions are issues of transcendental importance and of primordial public interest. Hence, it is essential that the honorable court resolve the two motions on its substantive merits.
Further, private complainant reiterates its prayer that the honorable court allow the media to enter the court room and cover the hearings in this case.
It was tough to celebrate Christmas this year. For the first time in many years, I failed to give even my closest friends and ninong and ninangs presents because of my very hectic litigation calendar. Literally, I left Olongapo on the 23rd of December to ensure that I was in the loop in the latest order of the judge hearing the Laude murder case. Of course, as it is in the nature of ironies, I left a few hours before the judge issued her last orders for the year granting Joseph Scott Pemberton a stay of two months while his petition for review with the Department of Justice was pending, and two others which denied our motions to transfer the marine to a local jail and to allow media coverage. Given the nature of this Order, I was answering calls form journalists until about 8 pm of Christmas Eve!
It was great, hence, that the Mrs. had long scheduled a private time with the family after Christmas in nearby Hanoi.
It was not my first time to Hanoi. On my first, I delivered a lecture before Vietnamese government lawyers on the International Criminal Court. On that occasion, my friend, Le Dinh, also a human rights defender, had just been imprisoned and charged with violation of national security laws. In the presence of the Vietnamese Secretary of Justice, I then warned the Vietnamese that membership in the ICC entails a domestic legal system that would protect and promote fundamental rights, such as freedom of expression. This piqued the Justice secretary who in turn, lectured me about the nature of the grave offenses committed by Le Dinh.
What shocked the audience was after the Minister’s outburst, I took back the microphone to debunk his statements one by one. In essence, what I said was that “threats to national security” has long been used by despotic regimes to infringe on freedom of expression, and that the real reason for the suppression was simply that they want to suppress the truth from their people.
I did not return to Vietnam for at least three years since immediately after my lecture, the German Mission (I was invited by the European Union), had to ensure that I board my flight back to Manila. So it was a pleasant surprise that despite this incident, my visit to Hanoi with my family was absolutely hassle- free.
Like any other Southeast Asian country, Vietnam also has what we have an abundance of. The attraction in Hanoi is Ha Log Bay, which literally, is a copy of Coron bay in Palawan. But the difference is like the Thais; the Vietnamese know how to extract every single centavo from visiting tourists. And in fairness to them, the tourists would spend with a sense that the visit was worth the money.
What they have in Ha Long that we do not have in Palawan are at least a hundred cruise liners sailing through the bay and bringing the cruisers to a cave and an hour of kayaking, The cruises included all meals and had sleeping quarters which I have not seen on board any ship in the Philippines.
Yes, the vacation was not perfect. My wife, who booked the cruise, was shocked when she was informed by our guide that the ship looked differently from the promotional pictures because the latter was photo shopped. My wife also was shocked that she paid for a certain quality of rooms, which differed substantially from what we got. And yes, there too were the fumes that kept us awake until the wee hours of the morning. This in addition to the guide’s bad joke that the Vietnamese are thankful to us because we would be devastated first by typhoons that head later for Vietnam.
But by and large, Hanoi remains one of the most charming destinations in Southeast Asia. The city is colorful and vibrant, with lakes scattered all over the city. The old quarters of the city stand in stark contrast to its colonial parts . Certainly, Ha Long Bay deserves to be in the company of our underground river as one of the new seven wonders of the world. But to reiterate, the comparative advantage of our Vietnamese neighbors is that despite their communist background, they appear to have a better developed tourism infrastructure intended to maximize their earnings from any arriving tourist. This can be irritating to some tourists, but definitely good policy for government. When will our Department of Tourism aim to be at par even with Vietnam? We know of course that it is now impossible to be at par with Thailand and Malaysia in this regard!
In addition to our three-night stay in Hanoi, I motored to Baguio for an overnight stay. The Mrs. does not like the long drive to the North and hence, I drove up all by my lonesome self. My mission was to see how much of a difference the newly constructed TPLEX in the trip to Baguio made. And yes, I was very pleased to find out that the new expressway constructed by corporate genius Ramon Ang had cut short the travel by at least half. For while it took us about seven hours to get to Baguio before, the highway had cut travel time to only three and a half hours. Now I only have to persuade the Mrs. that the travel time to the mountain city is abbot the same as any plane ride to any Southeast Asia destination.
Because of the Hanoi and Baguio trips, I feel absolutely refreshed and ready to face the task at hand. Yesterday, we filed our opposition to Pembertons’s Petition for Review at the Department of Justice. Today, we have our first trial date for the Maguindanao massacre. Fortunately, in just about eight days, the Pope has given us another five days of holiday.
Maybe then I can persuade the wife to go up to Baguio? Sana!
Reference: Atty Harry Roque 09175398096
The family of murdered Jennifer Laude today filed a 34-page opposition to Pemberton’s petition for review with the Department of Justice. According to Marilou Laude, sister of Jennifer, Pemberton’s petition is bereft of merit. Pemberton decried and alleged violation of due process when the panel of prosecutors decided that there exists probable cause on the basis, among others, a report made by the NCIS. “We should be one aggrieved by the NCIS report because until today Olongapo City Prosecutor Emily Delos Santos has refused to give us a copy of the same. Pemberton was given a copy of the report. What is he complaining about now?” Laude asked.
Furthermore, Laude emphasized that Pemberton waived his right to rebut any and all evidence when he opted not to submit his counter affidavit. “Pemberton forfeited his right to be heard, he did so voluntarily with assistance of counsel. He cannot now complain that his right to due process is violated,” added Prof Harry Roque, one of the private prosecutors representing the Laude family.
Bertha fellow Charlaine Latorre further added that charge of murder was proper given that the many bruises sustained by Jennifer are all evidence of treachery and cruelty.
Zharmai Garcia, also a Bertha fellow, observed that there is abuse of superior strength because Pemberton underwent combat training and qualified as private first class in the U.S. Marine. The Laude camp also announced that they will file motion for reconsideration of the orders of the RTC suspending the proceedings, and denying their motion to transfer Pemberton to another jail and for media coverage.
Click here for a copy of the comment/opposition filed today.
Marilou Laude, thru counsel, filed the following motions today at the Olongapo Regional Trial Court:
Please click the above links for the full text of the two motion.
With the issuance of the warrant of arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude, it is now incumbent on the Philippine government to insist on custody over the person of Pemberton. At this juncture, all law enforcement agencies should ensure that the warrant is served on the accused. This means that the Philippine National Police and the Armed Forces of the Philippines should physically take custody of Pemberton and deliver him to Branch 74 of the Regional Trial Court, which issued the warrant of arrest.
It is our position as private prosecutors that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.
According to the provisions of the Visiting Forces Agreement, in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.
Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.
While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request in “extraordinary cases” such as murder. This was the interpretation of no less than our Senate when it concurred with the Visiting Forces Agreement.
This interpretation is also in accord with Department of Justice Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cuevas, himself a retired Supreme Court Justice, stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.
We as private prosecutors demand therefore that that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now. It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.
Anent our still unresolved motion to disqualify Olongapo City Prosecutor Emilie De Los Santos from the prosecution panel, we expect the said motion to be initially resolved by her without prejudice to appealing whatever order she may issue to the Department of Justice.
It bears stressing that while all criminal prosecutions are carried out on behalf of the state, the reality is that private prosecutors, as a matter of practice, are delegated the prosecution of the case subject to the “direct control and supervision of the public prosecutor”. This control and supervision is proof that where a private complainant retains a lawyer for the civil aspect of the case, private prosecutors are allowed to actively prosecute the case for and in behalf of the state. It is only in high profile cases that public prosecutors opt to directly participate in the prosecution for obvious reasons.
While it is our position that we are amenable to working with public prosecutors in the Laude case, my experience in the Maguindanao massacre case that it has taught me the importance of having a united prosecution team consisting of both public an private prosecutors. Already, I have shown my track record when I openly sided with the public prosecutors in the Maguindanao case when a fellow private prosecutor accused them of corruption. This proves that I have proven my professionalism in working with public prosecutors. I will not refuse to work with any of them for any other reason than the welfare of my client. My problem with Chief De Los Santos is from Day One, she has been antagonistic towards us because of her alleged prior unpleasant experience with the private prosecutor in the Smith rape case. But despite this, I tried all the tricks I knew to convinced e los Santos that I am not a carbon copy of the private prosecutor that she had disagreements with. I finally gave up when I learned that in my absence, she has not stopped her public tirades against me.
For the record, it is not just the inter-personal strains that led my co-counsel, Virgie Suarez-Pinlac and I to move to disqualify De los Santos in the case, although that would be suffice by itself. It was also because of the city prosecutor’s refusal to furnish us with a copy of the NCIS report, which had a heavy weight in the resolution of the criminal complaint, which we filed. While the De Los Santos did rule in our favor, this does not detract from the fact that she deprived us of a vital piece of evidence by the panel in their finding of probable cause. This is akin to the procedure declared unconstitutional by the Supreme Court at least thrice where then President George Bush sought to deprive respondents in Guantanamo Bay access to evidence adduced against them. According to the US Supreme Court, this kind of a procedure that deprives either of the parties to a proceeding vital evidence does not comply with minimum standards of fair play recognized by civilized nations on earth.
Worse, De los Santos made an issue when after discussion with the Laude family, we made public pictures of Jennifer at the crime scene. Yes, that was in bad taste. But the family and the legal team nonetheless decided to go public with the pictures so that the public may be informed that contrary to Pemberton’s defense, his killing of Jennifer was murder and not just homicide. Besides, that picture formed part of our filing with the Olongapo Fiscal’s office. It was not as if we did not have the said photograph from the inception of our filing.
And yet, when it came to the evidence that the DNA from the used condom found in the crime scene was not that of Pemberton, De los Santos held a special hearing, despite the fact that the case had been submitted for resolution, just to announce the adverse finding against the complainants. De Los Santos was fuming mad when we released evidence favorable to the complainant. At the same time, she had no hesitation to go public that crucial evidence, the semen, was not from Pemberton. Where is the logic in this?
In any case, while public prosecutors represent the State in the criminal case, the Supreme Court has repeatedly ruled that all lawyers in court are equal since they are all officers of the court. Certainly, the fact that private complainants have lost trust in a Public Prosecutor should be considered by the Department of Justice. As officers of the court, fiscals still have a fiduciary relationship with the victims.
I invite the city prosecutor to respond to my allegations and I will yield this space next week for her response.
Marilou S. Laude, thru counsel, filed today at the Regional Trial Court in Olongapo, an URGENT EX-PARTE MOTION FOR CORRECTION OF THE ARREST WARRANT for Accused Joseph Scott Pemberton.
Click here for the full text of the EX PARTE MOTION TO CORRECT WARRANT OF ARREST.
Take Custody of Pemberton Now
Centerlaw welcomes the issuance of the Warrant of Arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude. Centerlaw represents the family of Jennifer Laude.
According to Ethel Avisado, lawyer and Bertha Foundation Fellow with Centerlaw, “We are closely monitoring what actions that the government will take, in particular the Department of Foreign Affairs, to ensure that the Warrant of Arrest is served and we get custody of Pemberton at the soonest possible time.”
Centerlaw’s position is that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.
According to the provisions of the Visiting Forces Agreement (VFA), in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.
Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.
While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request. This is clear from the Senate deliberations on the VFA and the text of the VFA itself.
The official position of the Philippine government as contained in the Department of Justice (DOJ) Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cueves stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.
Centerlaw Chair Harry Roque states, “We demand that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now. It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.”
Roque added that, “ DOJ Undersecretary Jose F. Justiniano should stay away from this case for he has a clear conflict of interest being part of the legal defense team of US soldier Lance Corporal Daniel Smith in the People of the Philippines versus Smith rape case”.
The reality is that despite his detractors having thrown the kitchen sink at him, Vice President Jejomar Binay remains the top choice of the country for the Presidency in 2016.
This hardly comes as a surprise given his proven managerial skills as chief executive of the country’s financial center, and his credentials as a lawyer, a humans rights advocate, housing czar, and as a person who genuinely came from the ranks of the poor. Binay’s very high ratings- despite the alleged overpriced Makati City Hall Annex and the so-called Hacienda Binay -is a testament that the people have clearly made up their minds on his fitness for the country’s highest post.
It is also proof of what I warned his detractors about before: it is not enough to destroy a person’s reputation. The people will demand that those who seek higher office prove their own credentials. Clearly, the negligible 3 percent received by my friend Senator Alan Cayetano indicates that the voters are casually asking him: if you are offering yourselves as the alternative to Binay, prove that you have what it takes to succeed. Judging by the single percentage support that Cayetano received from the people, he clearly has to move on to something more constructive to be more acceptable to the voters.
Despite the fact that Binay is still on top, one has to acknowledge that perhaps the biggest gainer in the recent survey is Senator Grace Poe. I have always been fond of Grace Poe. While we missed her in the fight against the cheater President Gloria Macapagal Arroyo, I was happy when she surfaced to continue the fight that her father had started. The fact that she landed first in the last elections is a testament that our voters want to make amends to the late Fernando Poe Jr. Clearly, the electorate has rewarded her for the heartbreak and the injustice that her father suffered in the hands of Garci et al.
But Grace Poe is not just a factotum of her father. Already, she has begun to prove her mettle with her Senate investigation against PNP Chief Alan Purisima, her authorship of the Freedom of Information bill, and her Senate hearings on poverty.
I had the pleasure of seeing her in action when she invited me as a resource person on a piece of legislation that would declare the anniversary of the Maguindanao massacre as Press Freedom Day. She appeared well versed in the draft legislation, astute in her perceptions, and probing in her questions. She is clearly walking the talk when she said that she has shelved any immediate plans for higher office so she can be the best in her current role as senator. I have no doubts that after 2016, Grace Poe may be destined to be the next President of the Republic.
Meanwhile, and I have long advocated for this, I hope to see “Binay na Poe for 2016”. They would be an unbeatable tandem. Let’s hope that those who cheated Poe’s father and belittled him when he was alive will not interfere with her natural political maturity and cajole her into seeking the Presidency in 2016, even before she is able to learn the ropes of governance.
If there’s a biggest winner, there’s also a biggest loser. This clearly is the administration bet, Mar Roxas. I do not know what happened to Mar. I myself was for him until former President Cory Aquino’s sudden demise and destined PNoy for the presidency. At this point, Mar should gather his old guards and have an honest assessment of where he went wrong. Let’s face it, Mar should have scored more than 6 percent after his cohorts in the Senate launched their witch hunt against Binay. Full stop.
The good Justice Ingles
I intentionally left out from my column last week the highlight of the Manila Summit on Judicial Integrity and Accountability. This was not because he was not newsworthy. On the contrary, he was the highlight of the event.
Justice Gabriel T. Ingles is one of the few magistrates that has refused to receive allowances from either the City or the Province of Cebu. This is equivalent to no less than P64,000 monthly in allowances. He has refused the allowances on the basis that it would compromise his judicial independence since the city and the province could have cases with the Court of Appeals.
Considering that a Justice’s full salary amounts to no more than P125,000 per month, this means that Justice Ingles has given up effectively a third of what he could be earning to uphold judicial independence. To the skeptic who thinks that our society is hopeless insofar as corruption, and lack of accountability on the part of our public officers, think again. Justice Ingles is indeed a beacon of hope that the struggle for integrity and accountability could still be realized.
Kudos to the truly good Justice!
This post first appeared in http://manilastandardtoday.com/2014/12/11/binay-is-still-on-top/.
Reference: Professor H. Harry L. Roque, Jr. 09175398096
Click here for a copy of the MOTION TO RECUSE filed yesterday by Marilou Laude, thru counsel, at the Office of the City Prosecutor of Olongapo City.
Marilou is the sister of slained transgender Jennifer Laude.
The Center for International Law, a civil society organization that promotes the binding nature of international law in the Philippines and in Southeast Asia, with support of the Konrad Adenauer Stiftung, has been holding a three-day Manila summit on Judicial Integrity and Accountability.
Keynote speaker was Justice Michael Kirby of the Australian High Court, the highest court there, who discussed the Bangalore principles on Judicial Integrity. These principles include, among others, independence, integrity, and probity of judges.
I then delivered a paper on lessons learned from the conviction of former Chief Justice Renato Corona. For the first time, I divulged that the decision to impeach and convict Corona was an order emanating from President Benigno Aquino III after he suffered a string of losses before the Supreme Court. This decision came after his initial position that despite Corona accepting an unconstitutional appointment as Chief Justice from President Gloria Arroyo that he would work with him in order to prevent a “constitutional crisis”.
I divulged for the first time a telephone conversation I had with PNoy in relation with the plagiarism of Justice Mariano Del Castillo when PNoy, before his string of losses, rejected my suggestion to support the impeachment of Del Castillo precisely to avoid a “constitutional crisis”. Obviously, such a concern was jettisoned a year into his administration when the Supreme Court declared the Truth Commission and other policy initiatives of PNoy as being unconstitutional. While I argued that Corona’s conviction for failure to declare $10 million was indeed a legal ground to remove him from office, the motivation for his ouster was nonetheless to undermine the independence of the Supreme Court.
DCA Raul Villanueva, for his part, announced that the Sereno Court was serious in purging misfits from the ranks of the Judiciary as exemplified by the removal of Sandiganbayan Justice Gregory Ong because of his dealings with PDAF queen Janet Lim Napoles. He underscored that this seriousness is why the Court did not require direct evidence of malfeasance before dismissing a judge.
Yesterday Marites Vitug talked about her book “Shadow of Doubt” and expressed the hope that the Supreme Court would be more transparent in its dealings with the public.
She noted that the Court has refused to disclose the SALNs of the Gods of Padre Faura, even if it has authorized the relapse of the SALNs of the Sandiganbayan justices. She also noted that there were no statistics available on the caseload of the Justices so that the public can know who among them comply with the time frames required by the Constitution to resolve pending cases before them.
After Marites, Dr Ana Maria Tabunda of Pulse Asia discussed the public perception of corruption in the Philippines. According to her, there is a slight decrease in the number of respondents saying they have had experience with corruption, from 29 percent to 14 percent from 2003 to 2009. However, 81% of those who said yes said they did nothing about it. The good news though is that 70% of the respondents said that they did not see corruption as in any way justified.
Most interesting in the Pulse Asia Survey report was the fact that PNoy’s flirting with a second term through a constitutional change was responsible for the public’s rejection of the “Daang Matuwid” slogan of this administration. According to her, the slogan would be a kiss of death in 2016 because the very floating of a second term for PNoy was seen by the public as a betrayal of the promise to pursue the right path.
Having been an academic for the past 15 years and after attending at least a hundred conferences, I have to say that this summit on Judicial Integrity and Accountability has been one of the very best conferences that I have been to. The only regret I have is that the Supreme Court rejected our invitation to be a partner of this conference. It would have greatly beneficial to our Judges and Justices to have heard he insights of the world’s most respected Jurists who also include Dato Param of Malaysia, the UN Special Rapporteur on Independence of Judges for whom the International Court of Justice rendered an advisory opinion that UN Rapporteurs enjoy functional immunity. This was an advisory opinion after Malaysian Premier Mahathir sued Dato Param for libel after he called the Malaysian judiciary “corrupt”.
Oh well, maybe soon, we will have a more transparent and more open Judiciary.
Justice Kirby took time out to do a side lecture at the UP College of Law on “marriage equality”. J. Kirby is an openly gay man who has been in a relationship with the same man for the past 45 years. It was his learned opinion that love is personal and that at some point, jurisdictions such as the Philippines and Australia, both of which do not recognize same-sex unions, would. A majority of the students present voted that the Philippines would eventually allow same-sex unions.
This post first appeared in http://manilastandardtoday.com/2014/12/05/manila-summit/.
This is the slide presentation which Prof. Harry Roque used both in the Supreme Court EDCA Oral Arguments and EDCA Senate hearing. To view click ProfHarry Roque EDCA .amended
Reference: Prof. H. Harry L. Roque 09175398096
It was Florin Hilbay’s first appearance as acting Solicitor-General last Tuesday when he defended the Enhanced Defense Cooperation Agreement before the Supreme Court. Unlike petitioners who divided the issues identified by the Court amongst five speakers, Sol-Gen Hilbay defended EDCA alone. As a former Associate of Retired Justice Vicente Mendoza, it was expected that Hilbay would highlight what he probably thought were the insurmountable hurdles to justiciability.
On top of his argument was that none of the petitioners is an incumbent member of the Senate who is complaining that their discharge of their official functions, such as giving concurrence to treaties, was violated.
Outside of technical objections, Hilbay argued that the President’s decision to enter into the EDCA was an inherent discharge of his executive powers as chief architect of foreign relations. He also said that the President entered into the EDCA as part of the Chief Executive’s power to ensure the security of the public, especially against the threat of modern-day terrorism.
On the crux of the controversy, Hilbay argued that EDCA was a mere executive agreement which fixes the details of the earlier signed Mutual Defense Treaty and the Visiting Forces Agreement. He emphasized that the “pivot to Asia” was not a new policy but one that merely reallocates US forces into Asia. He highlighted that the EDCA, as an Executive Agreement, does not authorize the Americans to perform acts, which have not been previously authorized by both the MDT and the VFA. In fact, according to him, unlike the earlier Military Bases Agreement where the US bases were deemed to be the “extension of the territory of the United States, the EDCA does not authorize ‘extra-territorial’ exercise of jurisdiction.” According to him, under EDCA, the military bases shall continue to be part of Philippine territory and that the Americans cannot engage in any form of activity without the consent and approval of Philippine authorities. He emphasized that “operational control” of the Americans only applied to the construction of facilities, but Philippine authorities would have full control over all “agreed locations” where the US would be allowed to preposition defense equipment and supplies, as well as deploy troops on a rotational basis.
As to be expected, the Acting Solicitor-General had his baptism of fire. Justice Marvic Leonen was unrelenting in his queries. He started by discussing Article 7 of Article XIII of the Constitution and asked the same questions he asked of me: whether there ought to be a difference between a treaty and an international agreement, both of which require the concurrence of the Senate. Then he inquired on the prohibitory nature of Section 15 of Article XVIII and elicited Hilbay’s agreement to my position that the same is lex specialis. Where he differed is his assertion that Section 15 applies only to permanent bases and not to the presence of troops and facilities. The latter, he argued, were already within the coverage of the VFA.
Justice Leonen grilled Hilbay on the fact that in the case of Medellin vs. Texas, apparently, the EDCA does not have the force and effect of law under the laws of the United States. Under the case cited by Leonen, treaties can only have the effect and force of law in the US if the treaty itself is self-executory and if a statute implements it. In this regard, Hilbay insisted that the VFA has been declared constitutional at least three times in three separate petitions filed substantially by the same parties. He also said that Leonen’s reading of Medellin was the mere dissenting view of J. Antonio Carpio.
Leonen then compared the language of the EDCA and the rejected Military Bases Agreement of 1991. He noted that contrary to the position of the Sol-Gen, it appears that even under the rejected treaty, the Philippines also had the right to approve all activities of the Americans. This, in my mind, was a very strong point against the position taken by Hilbay as a comparison of the text of EDCA and the MBA would indeed show that Philippines has always maintained its right to approve all activities of the Americans in our territory.
Justice Carpio took the same stance as he did when I argued last week. He was able to get a concession from Hilbay that while the US has always had a treaty obligation to come to our assistance in case any of our islands are attacked, it refused to come to our assistance when both the Scarborough and Mischief Reef were forcibly taken from us by China. He agreed with J. Carpio that in reality, the EDCA ad the MDT are not guarantees that the US will come to our assistance should our islands in the West Philippines Sea be attacked by China, simply because the US has always taken the stand that they “do not take sides in the on-going island disputes” in the West Philippines Sea.
Justice Teresita De Castro, for her part reiterated that Senate concurrence is necessary if we are to exercise jurisdiction over US military personnel. She noted the country’s generosity when we agreed that the US can use our facilities free of rent.
The parties were then given 20 days from Tuesday within which to file their respective memorandum. After which, the Court is expected to rule on whether the petitioners were successful in proving “grave abuse of discretion” when the President entered into the EDCA.
It’s not fun to be a columnist and an advocate. You’re dying to take sides and should not. Darn!
This post first appeared in http://manilastandardtoday.com/2014/11/28/the-sol-gen-s-defense-of-edca/.
The Supreme Court heard oral arguments yesterday on why the Enhanced Defense Cooperation Agreement is unconstitutional. There were five petitioners who argued: Former Senator Rene Saguisag, who made opening statements; Dean Pacifico Agabin who discussed issues of justiciability and standing; I discussed the crux of the petition, that is that EDCA allows the presence of foreign troops and facilities without a Treaty duly concurred n by the Senate; Rachel Pastores who argued that EDCA is for all intents and purposes, a bases agreement; and Evalyn Ursua who discussed all other issues.
The hearing took almost four hours with questions from Justices Bernabe, Leonen, Carpio, De Castro, Perez and Chief Justice Sereno.
The most asked question was whether instead of declaring the EDCA as unconstitutional, the court could order the President to transmit it instead to the Senate for concurrence. Both Dean Agabin and I did not interpose any objection to this possibility. I did underscore though that since the language of the prohibition against the presence of military bases, troops and based is prohibitory in nature, the fact that EDCA is being implemented without compliance with the imperative condition that it be pursuant to a treaty concurred in by the Senate, this means that EDCA is null and void. I suppose the Justices were concerned that an outright declaration of unconstitutionality would affect our bilateral relations with the US and may prejudice the President’s power to deal with security threats in the country. I personally think that a referral of the EDCA to the Senate would mean a victory for the petitioners. This is because it is precisely our submission that foreign troops, bases and facilities could only be allowed pursuant to a treaty duly concurred in by the Senate.
Justice Carpio made a very interesting point. He said that while collective security treaties, such as the Mutual Defense Treaty, are legal, the US has breached its obligation to come to our defense twice : when China took from our possession both Mischief Reef and the Scarborough Shoal. He then asked me what advice I would give to the President relative to the west Philippine Sea dispute: I said, build our own defense capability, build alliances with out neighbors, or strengthen our ties with the US, among others. I answered all of the options except for strengthening our ties with the US since China already views us as a mere lackey of the US, I explained that with the billions of pesos that we have lost in PDAF and DAP, we could already afford the cost of modernizing our navy. I am unsure though until now what Justice Carpio was leading to since he ended his interpellation by observing that China has also been aggressive against Vietnam despite the latter’s staunch independent foreign policy.
Justice De Castro, a former State Counsel in the DOJ and former chair of the task force on jurisdiction when the US- Philippines bases agreement was still in force, asked why treaties have the force and effect of law. I responded that it was precisely because the legislature, through the Senate, gave its concurrence. She concurred and observed that the Senate needs to concur because the presence of foreign troops in our country normally requires a treaty to ensure that we can exercise criminal jurisdiction for non-service related offenses.
For his part, Justice Leonen inquired on the textual provision of section 21, Art. 8, which requires that treaties and international agreements require Senate concurrence. He asked me if I could make an alternative argument that EDCA is an international agreement that also requires Senate concurrence. I believe my answer to the question was that EDCA cannot be an international agreement because Sec. 25 of Art 18 applies specially to the presence of troops, facilities and bases in the country. Accordingly, the requirement is that the EDCA be in the form of a treaty. I’m not sure if I was correct in this assertion but the language of the Constitution appears to support my submission.
Atty Rachel Pastores, the most junior of the lawyers who argued for the petitioners, took a beating particularly from the Chief Justice who argued that we should give EDCA a try given that the AFP itself admits to short-term operation difficulties. In any case, Atty Pastores, despite the barrage of questions, stood her ground and invoked the duty of Filipinos to defend national sovereignty.
Asked by the media later if the questioning of the Justices was reflective of how they would rule, I had no problems in declaring that my experience has been that there is no correlation between the questions of the Justices and how they vote. I cited the example of the Chief Justice whose questioning in the oral arguments against the Cybercrimes Prevention Act appeared adverse to the petitioners. She later dissented and wrote an opinion declaring the law as unconstitutional.
Invitation for Media Coverage
Center for International Law (CenterLaw)
For Reference: Harry Roque, Jr: 09175398096
Prof. David Kaye, the new UN Special Rapporteur on Freedom of Opinion and Expression, will hold a dialogue by video link with widows of the Maguindanao Massacre today at 1:30 pm at the Sta. Ana Room, 3/F of the University of the Philippines College of Law.
The dialogue will be moderated by Prof. Harry Roque, Jr. chair of the Center for International Law and lead counsel for the families of 15 victims of the massacre.
As Special Rapporteur, Prof. Kaye seeks to bring to the attention of the UN key issues on free expression around the world, including the safety of journalists, internet censorship, electronic surveillance, hate speech and incitement to violence.
The video-link is therefore both significant and historic as an activity to commemorate the 5th anniversary of the Maguindanao Massacre, which has been described by international groups as the single worst attack on a free press in recorded history.
For a background on Prof. Kaye, click http://www.law.uci.edu/faculty/full-time/kaye/.
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111
Julita S. Laude, the mother of Jennifer Laude, along with Marilou and Michelle Laude, Jennifer’s sisters, will file a “Petition-In-Intervention” against the Enhanced Defense Cooperation Agreement (EDCA) at the Supreme Court today, 17 November 2014, at 1:30 pm.
Jennifer, a 26-year old Filipino transgender, was brutally murdered on October 11, 2014 in Olongapo City. The murder suspect is US Marine PFC Joseph Scott Pemberton, a participant in the joint Philippine-US training exercises in the country under the Visiting Forces Agreement.
The Supreme Court scheduled oral arguments on the constitutionality of the Expanded Defense Cooperation Agreement on Tuesday, 18 November. The core issue for determination by the Court is whether the EDCA is a treaty, which allows the presence of foreign bases, troops or facilities in the country. If so, Sec 25, Art VIII of the 1987 Constitution requires that it be in the form of a treaty, duly concurred in by a 2/3 vote of all the members of the Senate; duly recognized by the other contracting party as such; and when so required by the Senate, duly ratified by a majority vote of the people in a referendum called for the purpose.
The controversy, on the basis of the pleadings submitted by the parties, is not whether the EDCA allows the presence of troops and facilities in the country as it clearly does. What is at issue is whether as claimed by the government, the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951, which was duly concurred in by the Senate, and by the Visiting Forces Agreement, whose constitutionality has been upheld twice by the Supreme Court.
Similar to what I have done prior to the oral arguments on the constitutionality of the Cybercrimes Prevention Act which resulted in a draw decision with both petitioners and the state claiming partial victory, I will detail the thrust and parry of the parties on the seminal issue of whether EDCA requires Senate concurrence.
Petitioners submit that it does because EDCA implements a new national policy. In the case of Commissioner of Customs vs. Eastern Shipping, the Court ruled that treaties that need to be submitted for concurrence by the Senate are those that formulate a new policy. Those that merely implement existing ones or fix the details of existing ones do not require concurrence.
Why do petitioners claim that EDCA is a new policy? Because it makes the Philippines a partner of the United States in a new defense policy that has since rendered permanent US bases outside of its mainland unnecessary. This policy represents a radical departure from previous US defense policy anchored on the existence of permanent US bases in strategic parts of the world. Under this new policy, US Defense Undersecretary for Policy Douglas J Feith explained, “We are not talking only about basing, we’re talking about the ability of our forces to operate when and where they are needed.”
This policy is based not just on a major shift in strategic priorities, but also on economics. Simply put, the new policy is because the US can no longer afford the economic and political costs of permanent bases.
Moreover, it also forms part of a new US policy that has been described as a “pivot to Asia”. Under this scheme, the US will redeploy most of its naval resources into Asia. Currently, its existing naval presence is evenly split between the Pacific and Atlantic oceans.
Government, on the other hand, argues that Senate concurrence is not required because the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement. Specifically, Acting Solicitor General Florin Hilbay argued that the EDCA, insofar as it authorizes temporary rotational presence of troops and pre-deployment of military supplies and facilities, merely implements the duty of the Philippines to improve its capacity and readiness under the Mutual Defense Treaty. The activities of US troops, on the other hand, according to the OSG, are mere restatements of the “activities” authorized to be undertaken by the Americans under the Visiting Forces Agreement.
Other issues up for argumentation include the issue of whether the EDCA authorizes the establishment of permanent US bases in the country. Petitioners will argue that given the scope and breadth of what the Americans can do outside of Philippine jurisdiction as specified in the EDCA, coupled with the fact that the agreement maybe be permanent since it is automatically renewed every ten years, that is its tantamount to permanent basing. Government will argue that it is temporary and falls under the scope of the VFA.
Other issues such as whether petitioners have the standing to sue (since none of them is an incumbent senator) and whether there is an actual case or controversy will also be discussed. Additionally, the dispute settlement procedure of the agreement is also up for discussion since Petitioner alleges that this infringes on the exercise of judicial powers, which falls within the exclusive jurisdiction of our courts.
The oral arguments will happen amidst the controversy created by the murder of the Filipino transgender, Jennifer Laude allegedly perpetrated by a US serviceman, Joseph Pemberton. Already, the murder case has put into serious doubt the compatibility of all existing agreements that we have authorizing the presence of foreign troops and facilities in the country with Philippine sovereignty. At the core of the controversy in the Laude case is the apparent failure of the Philippines to exercise jurisdiction over the person of the suspected murderer who remains continuously under US custody.
Clearly, the arguments to be heard this coming Thursday will go beyond whether the Senate concurrence is required for the EDCA. Unwritten yet in bold script is the issue of whether any such agreement violates the exclusive exercise of Philippines sovereignty and jurisdiction, and whether these limitations, if any, redound to the national interest.
Clearly, the issues for determination are of transcendental importance to every Filipino. Be there if you can.
This post first appeared on http://manilastandardtoday.com/2014/11/13/thrust-and-parry-on-edca/
Reference: Professor Harry L. Roque Jr. 09175398096
Atty Harry L. Roque, lead counsel of Jennifer Laude family, filed today a Petition for Indirect Contempt against AFP officials before the Supreme Court.
Please click here for a copy of the petition contempt.AFP
Reference: Professor Harry L. Roque, Jr. 09175398096
Atty. Harry Roque, lead counsel of the family of Jennifer Laude, will file a complaint against military officials before the Supreme Court, tomorrow at 1pm.
The AFP’s filing of disbarment charges against me yesterday is anti-climactic to their repeated threats that they would do so for the past ten days. I welcome it and will answer it in due course. I hope that with its filing, the AFP can now concentrate on running after the Abu Sayyaf and defending our territory in the West Philippine Sea. I am flattered that the AFP gave me so much attention in the face of the many concerns that it faces.
As I have previously stated, I will also file graft and administrative charges against the AFP for allowing Joseph Scott Pemberton to remain in US custody in Aguinaldo. This is contrary to Philippine sovereignty and hence, a breach of the oath of allegiance that officers and men of the AFP took. This is also dereliction of duty.
That the Philippines should have custody over Pemberton is pursuant to the VFA’s provision that the Philippines should have primary jurisdiction over non-service related offenses committed by American servicemen. This is also apparent in the provisions that the Americans “may request to have custody” of their servicemen “from time of the commission of an offense”, which obviously contemplates that the person of an American serviceman should be in the custody of our authorities. This is also consistent with the definition of jurisdiction, which is the legal competence to enforce and prescribe conduct. Without custody over the person of the accused, police authorities cannot conduct the requisite investigation, which forms the basis for the filing of Information in court. The AFP’s failure to have custody over Pemberton is why we do not have the fingerprints, DNA samples, and physical examination of the suspect, all of which are basic physical evidence.
I will also hold the AFP liable for contempt since to publicly announce the filing of disbarment against an officer of the court is to ridicule the administration of justice in this country. All such proceedings are supposed to be confidential. Recently, the Supreme Court fined Prima Quinsayas, collaborating counsel of Nena Santos, the Mangundadatu counsel, in the Ampatuan prosecution for making public their disbarment complaint against Atty. Sigfrid Fortun.
I assure the public that the AFP will not cow me. I will continue to fight for my clients’ interests with even more zeal knowing that Philippine state agents have sided with foreign interests. I will also continue to assert Philippine sovereignty. This is my duty as a member of the Bar and as a Filipino. My promise: I shall return to Aguinaldo should there be a need for me to personally take custody of Pemberton in order to turn him over to Philippine authorities less subservient to the United States.
I will file all my complaints against the AFP as soon as I return from Europe where I am attending Council of Europe and UNESCO meetings on the killing of journalists. Ironically, experts have identified the AFP as amongst the perpetrators of killings against our journalists.
As I write this, I have just asked three questions to Secretary Leila De Lima on the killing of journalists. First, how different is Administrative Order 35 form other Inter-agency committees created by PGMA to deal with extralegal killings which Philip Aston dismissed as insufficient to discharge state obligations to protect and promote the life to life?
Second, why has the government not complied with Ampatuan massacre victims rights, under human rights law, to satisfaction and compensation?
Third, what steps has the Philippine government taken to implement the Human Rights Committee view that criminal libel is contrary to freedom of expression?
De Lima answered as follows, to my chagrin:
One, AO 35 is different from PGMA’s Task Force Usig and Task Force 211 because it is composed of high-level cabinet members and entail cooperation between the police and the prosecutors even if she acknowledged that the current conviction rate for extralegal killings remains at 1%.
Anent the view on libel, she said that there are now pending bills in Congress decriminalizing libel.
De Lima’s answers were politely taken by an audience dominated by advocates for media rights. They were, however, dismissed as being unacceptable by all whom I talked to. One participant remarked that De Lima’s statements, particularly denying the Maguindanao victims their right to satisfaction and compensation, is why there is impunity in the Philippines. Another, a former Vice-Chairman of the Human Rights committee who admired De Lima when she appeared before the Committee, expressed surprise why a person knowledgeable in human rights could publicly claim ignorance of an apparent state obligation.
A more radical participant wanted to slam her.
All told, the Philippine government’s sending of Leila De Lima to the forum was an obvious attempt to bolster the standing of the Philippines in the eyes of the international human rights community. Unfortunately, a messenger can only do so much. The substance has to be provided by the President and his administration. Here, PNOY is clearly wanting.
This post first appeared on November 6, 2014 at http://manilastandardtoday.com/2014/11/06/the-afp-s-complaint-and-secretary-de-lima/
Ref: Prof Harry Roque 09175398096 (Viber until 11 November) The AFP’s filing of disbarment charges against me today is anti-climactic to their repeated threats that they would do so for the past ten days. I welcome it and will answer it in due course. I hope that with its filing, the AFP can now concentrate on running after the Abu Sayaff and defending our territory in the West Philippine Sea. I am flattered that the AFP gave me so much attention in the midst of the many concerns that it faces. As I have previously stated, I will also file graft and administrative charges against the AFP for allowing Pemberton to remain in US custody in Aguinaldo. This is contrary to Philippine sovereignty and hence, a breach of the oath of allegiance that the AFP took. This is also dereliction of duty. I will also hold the AFP liable for contempt since to publicly announce the filing of disbarment against an officer of the court is to ridicule the administration of justice in this country. All such proceeding are supposed to be confidential. I assure the public that I will not be cowed by the AFP. I will continue to fight for my client’s interests with even more zeal knowing that Philippine state agents have sided with foreign interests. I will also continue to assert Philippine sovereignty. This is my duty as a member of the Bar and as a Filipino. My promise: I shall return to Aguinaldo should there be a need for me to personally take custody of Pemberton in order to turn him over to Philippine authorities less subservient to the United States. I will file all my complaints against the AFP as soon as I return from Europe where I am attending a Council of Europe and UNESCO meetings on the killing of journalists. Ironically, experts have identified the AFP as amongst the perpetrators of killings against our journalists
References: Professor Harry Roque Jr. 09175398096, Atty. Romel R. Bagares 09328798422
Marc Suesebeck, Jennifer Laude’s fiance, will have a short press conference in front of NAIA Terminal 1 tomorrow, 1 November 2014, at 1:30 pm, prior to his scheduled flight.
Marc will be accompanied by members of the Laude family and his legal team.
References: Professor Harry L. Roque, Jr. 09175398096
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431
We thank the public for their support and concern for our client Marc Sueselbeck. Without it, he wouldn’t have been allowed to leave by the authorities.
The Laude family are of the mind that the charges filed against him by the military were meant to silence them and to pressure them to come to a deal in regard to the case of their slain loved one, Jeffrey “Jennifer” Laude; his voluntary departure frees them from a difficult bind.
Our client wants to spend some of the last few hours he is allowed to spend in the Philippines to visit Jennifer’s grave, to say goodbye to her; but for Marc, his return to Germany doe not mean it is the end of his fight for justice for Jennifer.
He very well understands the gravity of being placed in a blacklist of the Bureau of Immigration, as it could mean being barred from returning to the Philippines for the rest of his life. For now, our priority is to get him on a flight to Germany as soon as possible, so that he does not lose his only source of livelihood there.
[I apologize to those offended by my publication of Jennifer’s last image. This article is not a justification but intended only to explain why the family and the legal team made it public. Picture bore the caption : “Is this homicide?”, which is the defense of Pemberton. Mea culpa and lesson learned.]
I published in my blog the latest picture of Jennifer Laude when she was found dead in the toilet of the Calzone Lodge. It was grotesque, gruesome and macabre. The picture shows that Jennifer died a painful and cruel death. Her face was bloated, indicating she must have been struck repeatedly in the face, her tongue protruding, suggesting she must have struggled to breathe, and while lifeless, it was obvious that she was screaming from pain nonetheless.
After six hours, I removed it from my blog realizing that I would have to devise a way first to warn the reader that it could be one of the most horrifying images ever photographed. I promise to approach techies on how to put this warning. I will republish it as soon as I know how.
The picture, though, had to be published. Why?
Primarily because judging from the pronouncements of the Armed Forces of the Philippines and its supporters, the public obviously does not know just how gruesome her murder was. Yes, it has been reported that she was drowned in a toilet bowl. But the public does not know that prior to drowning, she was also strangled and beaten. The problem was while the public saw how Marc Sueselbeck pushed the Filipino soldier in his desire to see the man who killed his loved one, the people have only seen the picture of Jennifer when she was alive and pretty. They probably assumed that the emotions of both Marc and Marylou, Jennifer’s sister, when they climbed the fence of Aguinaldo to see Pemberton- were simple theatrics. The AFP even says I instigated it.
They are wrong, of course. The anger is not only because Pemberton is suspected to have killed Jennifer. It is also because of the absolutely barbaric and savage manner by which Pemberton may have killed her. That’s why the family wants to make sure that Pemberton is where he is supposed to be. Otherwise, he might be accorded impunity for this bestial killing simply because Philippine authorities do not have him in its custody.
The intention then of posting the picture, with the consent of the Laude family of course, is to explain the Laude family’s anger and their desire to see Pemberton in the flesh.
In any case, make no mistake about it: victims have the right to confront those who violated their rights. This forms part of the right to satisfaction and restorative justice. Here, the confrontation should lead to reparation, specifically, the restoration of the victim’s state of mind prior to the violation of their rights. This is because when allowed to confront the perpetrators of crimes, the victims can ask basic questions such as why their loved ones had to be the victims, what acts, in any, their loved ones committed to deserve their plight. Hopefully, it might even lead to the perpetrator seeking a apology which to many victims, might amount to full satisfaction.
In any case, the government’s response to the acts of Malou and Marc again indicates its ignorance of the basic rights of victims. Under human rights law, the victim’s right to reparation entitles them to trauma and psychosocial assistance to restore their emotional and mental well-being prior to the breach of their rights. Instead, Marc was branded as an undesirable alien and Malou was threatened with prosecution.
I hope the picture of Jennifer immediately after her murder will settle this issue once and for all.
In any case, its worth highlighting yet another injustice in the way the PNoy administration has been dealing with the two men in Jennifer’s life: her lover and her murderer. For while the government has done the ludicrous—preventing Marc from leaving the country as originally scheduled so he can be forced to leave through deportation—the government appears helpless in dealing with the suspected killer, Pemberton. Government has, in the process of deporting Marc, confiscated his passport. Pemberton, who perpetrated a gruesome murder, has not been asked to deposit his passport. The government seems hell bent in humiliating Marc into admitting that he is an undesirable alien. In contrast, it has not said anything to Pemberton, as if shoving a soldier in the heat of anger is more criminal than killing a person with absolutely no mercy, No wonder Jennifer’s mother already slammed PNoy in a forum at the UP Law Center last Tuesday. According to her, the President appears not to have given any attention to the gruesome murder of Jennifer simply because they are poor.
Mrs. Laude appears to be right. As correctly observed by Ellen Tordesillas, the reason why PNoy did not even condole with the family is that they are neither members of the LP, Kabarilan or Kaklase of the President. They also obviously do not belong to the same cacique class that produced P Noy.
But never mind. Even if PNoy did not bother to condole with the Laudes, thousands, if not millions of other Filipinos did. For Jennifer- to many of us- has become a symbol of a nation struggling for respect and equality from a former colonial master. Jennifer, hindi ka nag-iisa!
Request for Coverage
References: Atty. Harry L. Roque Jr. 09175398096, Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431
The family of Jennifer Laude, along with Marc Sueselbeck, will file at the Bureau of Immigration today, October 29, 2014, at 2pm, a letter asking that US Marine Private First Class Joseph Scott Pemberton be declared an undesirable alien.
October 29, 2014
The Hon. Siegfried M. Mison
Bureau of Immigration
Department of Justice
Dear Commissioner Mison:
We bring to your attention the case of US Marine Private First Class Joseph Scott Pemberton, who stands accused of killing our loved one, Jeffrey “Jennifer” Laude, on October 11, 2014.
The murder of our loved one violates Philippine law and is a gross disrespect to what we hold dear as a people. His gruesome murder of a citizen should be enough a justification to declare him an undesirable alien of the most repulsive kind.
Yet until now, we have not seen even just his shadow. Police investigators had been unable to obtain his fingerprints and buccal samples from him for DNA testing. His being placed at a facility inside Camp Aguinaldo is an arrogant flaunting of the Rule of Law; every day that he is shielded from accountability, we allow impunity to reign. Every day that he is placed beyond the pale of our criminal laws, we allow someone to abuse in the most revolting way the welcome our country has accorded him.
We pray that he be subjected to the procedures prescribed by our immigration laws pertinent to an undesirable alien, including the confiscation of his passport as well as his attendance in deportation hearings.
We hope you will give this submission your kind and immediate favorable consideration.
References: Professor Harry L. Roque 09175398096,
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431
Please click here for a .doc copy of the MOTION FOR VOLUNTARY DEPORTATION filed today by Jennifer Laude’s fiance, Marc Sueselbeck.
REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
BUREAU OF IMMIGRATION
BOARD OF SPECIAL INQUIRY
In re Deportation Charges
D.C. No. SBM-14-10/26-783
Art. 2711, Sec. 69
Watch List Order No. SBM-14-778
MOTION FOR VOLUNTARY DEPORTATION
RESPONDENT MARC SUESELBECK, through counsel, and unto this Honorable Office, respectfully states:
1. On 26 October 2014, a charge of undesirability was made against Respondent at the instance of Armed Forces of the Philippines Chief of Staff, Gen. Gregorio Pio P. Catapang, based on the events of 22 October 2014 at Camp Aguinaldo, Quezon City. Subsequently, Respondent was placed under the Bureau of Immigration Watch List No. SBM/BOC-14-778.
2. Pursuant to the Watch List, Respondent, a German national, was barred from leaving the Philippines even though he was scheduled to do so on 26 October 2014 on board Malaysian Airlines flight MH 0803, at 6:30 p.m., out of NAIA Terminal 1.
3. His German passport, with No. C689C1W4, was also confiscated.
4. Yesterday, after undersigned counsel informed him of the formal charges filed against him before this Honorable Office, he received word from his employer in Germany that he has to report for work by Monday next week, Nov. 3, 2014, or risk losing his job and paying liquidated damages for failing to perform certain provisions in his employment contract.
5. Thus, with a heavy heart – as he desires to defend himself against the charges leveled against him by Gen. Catapang – he manifests before this Honorable Office that he is seeking voluntary deportation the soonest time possible so he can attend to his only source of livelihood.
6. While he desires to leave the country immediately for that purpose and if allowed, he manifests that he will do so not later than this coming Saturday, November 1, 2014.
WHEREFORE, premises considered, Respondent prays that this Honorable Office issue an Order:
(a) granting his request for Voluntary Deportation and allowing him to fly out of the country as soon as practicable;
(b) deleting his name and other personal details from Watch List Order No. SBM/BOC-14-778; and
(c) returning to his possession without delay his German Passport as described above and earlier seized by immigration authorities.
Other relief just and equitable are also prayed for.
Makati City for City of Manila ; 19 October 2014.
ROQUE& BUTUYAN LAW OFFICES
1904 Antel 2000 Corporate Centre
121 Valero Street, Salcedo Village
Makati City 1200
Tel. Nos. 887-4445/887-3894
Fax No: 887-3893
H. HARRY L. ROQUE, JR.
Roll No. 36976
PTR No. 4264493/Jan 30, 2014/Makati
IBP No. 01749/Lifetime
MCLE Exemption No. IV-000513
(issued on Feb 15, 2013)
ROMEL R. BAGARES
Roll No. 49518
PTR No. 4264492/Jan 30, 2014/Makati
IBP No. 961461/Jan 29, 2014/Socsargen
MCLE Compliance No. IV-017519
(issued on Jan 25, 2013)
ETHEL C. AVISADO
Roll No. 56254
PTR No. 4281935/Feb 12, 2014/Makati
IBP No. 961251/Jan 27, 2014/Davao
MCLE Compliance No. IV-019563
(issued on May 2, 2013)
With my conformity:
Request for Coverage
Reference: Professor Harry L. Roque 09175398096
The Laude family and Marc Sueselbeck (Jennifer’s fiancé) will talk about Jennifer and the Visiting Forces Agreement (VFA) at the “Seminar on International Law for Media Practitioners” sponsored by the UP Law Center’s Institute of International Legal Studies (UP IILS) on Tuesday, October 28, 2014, from 8:30 am to 4:00 pm at the 4th Floor, Penthouse, Bocobo Hall, UP Law Center, Diliman, Quezon City.
This letter was sent by the Laude family, thru their counsel, to the AFP today.
References: Professor Harry L. Roque 09175398096,
Atty. Romel R. Bagares 09328798422 or Atty. Ethel C. Avisado 09177055431
27 October 2014
Gen. Gregorio Pio P. Catapang, Jr.
Chief of Staff
Armed Forces of the Philippines
Office of the Chief of Staff
Camp General Emilio Aguinaldo
Dear. Gen. Catapang:
On behalf of the family and loved ones of the late Jeffrey “Jennifer” Laude, we respectfully write your good office to inform you of their request that they be given access to US Marine Private First Class Joseph Scott Pemberton who is in custody at the MDB-SEB facility inside Camp Aguinaldo.
As you know, other than reports in news media that PFC Pemberton has indeed been moved to the said facility, Jennifer’s family does not have any clear proof that he is in fact now being held at the MDB-SEB facility or that the person reported to have been placed in custody there is in fact the same PFC Pemberton who stands accused of killing the victim.
Under the applicable principles of international human rights law, they are entitled to due recognition of victimhood and effective participation in the search for legal remedies to the injury they suffered as a result of the loss of their kin and loved one; applicable principles of international human rights law have considered this due recognition, by way of satisfaction, as embracing a host of entitlements accorded to victims of human rights violations, including access to the status and disposition of the case in question, as well as to the State’s obligation to treat the victims and their family and loved ones with humanity and respect for their dignity.
We look forward to your immediate favorable response to our request. You may reach us through our stated contact details in this letter.
Atty. Romel Regalado Bagares
Atty. Ethel C. Avisado
UP Law Center’s Institute of International Legal Studies (UP IILS)
For inquiries and confirmation of attendance, please call 929-3654 or 920-5514 loc. 207.
SEMINAR ON INTERNATIONAL LAW FOR MEDIA PRACTITIONERS
The U.P. Law Center’s Institute of International Legal Studies (UP IILS) will conduct a seminar on International Law for Media Practitioners on Tuesday, October 28, 2014, from 8:30 a.m. to 4:00 p.m. at the 4th Floor, Penthouse, Bocobo Hall, U.P. Law Center, Diliman, Quezon City.
The proposed seminar is composed of a series of talks on international law for journalists and media practitioners in the Philippines. The seminar topics seeks to arm journalists and media practitioners covering international stories with essential international Law concepts and nomenclature, and to acquaint them with the most important and relevant developments in international law that deserve their focus and attention. Invited lecturers are noted international law experts.
Lecture topics include An Introduction and Overview to the International Legal System by Dean Merlin M. Magallona; Reporting on the West Philippine Sea: Key Concepts by Dr. Raul C. Pangalangan; The Implications of the UNCLOS to Philippine Territorial Claims and National Security by Prof. H. Harry L. Roque; Visiting Forces Agreement and Other Related Agreement with the United States of America also by Prof. H. Harry L. Roque; An Introduction to the Rome Statute of the International Criminal Court by Atty. Celeste Ruth L. Cembrano-Mallari; An Introduction to the World Trade Organization and the ASEAN Economic Integration: Focus on Thrusts and Commitments by DFA Executive Director Jose Victor V. Chan-Gonzaga; and The Most Common Errors Committed by Journalists in Reporting Stories with an International Law Aspect by Atty. Romel R. Bagares.
The seminar is free and open to representatives from the media, concerned government agencies, the academe, and other relevant institutions from the private sector.
For inquiries and confirmation of attendance, please call 929-3654 or 920-5514 loc. 207.
Please click here for the Media Practitioners Programme (Final)-Oct.28 (3)-2
The issue that we have been trying to address with the Jennifer Laude case is one of accountability. Will a US Marine, normally exempt from jurisdiction of the Philippines, be sent to Muntinlupa in case he is proven guilty of murder?
If we go by the Daniel Smith incident, the answer would be no. Smith, despite having been found guilty by a trial court, was absolved after the victim issued an affidavit of recantation. Nicole, Smith’s victim, is now residing in the United States. This means that outside of a possible monetary settlement, it was ultimately the US government that offered the visa in exchange for the recantation.
What is the lesson learned from the Daniel Smith incident? That the US government will simply not surrender its soldiers to any foreign government no matter what crime they may have committed.
Much of course has been said about the fact that the constitutionality of the Visiting Forces Agreement has been upheld twice by the Philippine Supreme Court, but always with strong dissent from the acknowledged heavyweights in the Court. In both instances, our Supreme Court upheld its validity because it is not for them to decide the domestic requirements in order that the VFA should have the force and effect of law in the United States. That, according to our Supreme Court, is not its concern. In so doing, they brushed away the rationale for the constitutional requirement that the presence of foreign troops, facilities and bases in the country should only be pursuant to a treaty duly recognized by the other contracting party as such.
What is this rationale?
Under International Law, the acts of foreign troops in a foreign jurisdiction are absolutely immune from local jurisdiction. The latest case in this regard is that of Germany v. Italy. There, an Italian made to work against his will in a German munitions factory during World War II sued Germany before Italian courts for damages arising from his forced labor. The Italian courts granted him damages and proceeded to execute against the Goethe Institute, the German Cultural Office. Germany filed suit in the International Court of Justice. The Court ruled in favor of Germany and ruled that acts committed by German troops during World War II are absolutely immune from Italian domestic jurisdiction. It also ruled that diplomatic assets of the Goethe are also immune from execution.
This is the reason why the Constitution requires that presence of foreign troops and bases here should only be pursuant to a treaty. This is the only way around the absolute immunity of foreign troops in our country: if the US agrees to the exercise of local jurisdiction. Theoretically, the VFA is evidence that the US government has agreed that ordinary crimes committed by its troops while in pursuit of the VFA will be subject to the primary jurisdiction of the Philippines. This is to ensure that the US cannot claim immunity for common crimes committed by its troops.
The infirmity of the VFA hence in not having been concurred in by the US Senate is that this waiver of immunity does not have the force and effect of law in the US. This is because their legislative branch of their government, through the US Senate, did not give its concurrence to the agreement.
This in turn is why the Laude family now doubt if they can hold PFC Joseph Scott Pemberton criminally liable for murder. As of now, he is still in the custody of the US and hence, beyond the reach of Philippine jurisdiction. This has very practical ramifications: without custody over Pemberton, the Philippine National Police has not been able to subject him to custodial interrogation in connection with their investigation of the murder. In fact, because he has not been made available to Philippine authorities, we do not even have the basics of physical evidence from Pemberton such as thumb prints and buccal samples for DNA. Worse, since he was never in our custody, we have not had the opportunity to conduct a physical examination of his body to see if there is any physical evidence that Jennifer attempted to defend herself when she was attacked.
But ultimately, it was the Nicole precedent that has disparaged the family. Remember that Smith was found guilty but got away as a result of a compromise, the juiciest part of which were the US visas for Nicole and her family provided by the United States government.
This was the frame of mind of the Laude family and Jennifer’s fiance, Marc, when we descended on Camp Aguinaldo last Wednesday. As a lawyer, I deemed that the family has the right to ensure that Pemberton was indeed in Aguinaldo and the right to ask him basic questions such as why he murdered their loved one. This forms part of their right to satisfaction under human rights law. The fact that the sister Malou and Marc climbed over the fence came as a complete surprise. In reality, Malou is on the verge of losing hope, what with the entire machinery of the Philippine government, with the exception of Sen. Miriam Defensor-Santiago, espousing the alleged rights of Pemberton and justifying the existence of the VFA. Marc, on the other hand, followed Malou after he was enraged to have seen the US Marines guarding the premises laughing at Malou and the family. Any other reasonable person would have felt the same rage. What is unacceptable is the kind of rage expressed by Pemberton that led to the murder of Jennifer.
Jennifer will be laid to rest today. There will be a mass and neurological service at 2 pm at Columban Church in West Pinlac, Olongapo City. Her remains will then be laid to rest in Heritage Memorial Park.
All Filipinos, including members of the AFP, should condole with the Laude family. For unless the VFA is abrogated, we could be its next victims.
This post first appeared in http://manilastandardtoday.com/2014/10/24/on-laude-the-issue-is-accountability/ on October 24, 2014.
Atty. Romel Regalado Bagares 09328798422
However, should Philippine authorities, at the behest of their American counterparts, charge and jail Mr. Sueselbeck because of what happened, certainly, the irony will not be lost on the Filipino people: here is a person seeking justice for someone he loves being placed behind bars while the very person accused of the murder remains outside the pale of Philippine law, and coddled by a government subservient to its foreign masters.
Reference: Professor Harry L. Roque, Jr. 09175398096
Please see attached Omnibus Motion we filed yesterday with the Office of the Prosecutor in Olongapo City, asking that fingerprints and DNA test samples be taken from PFC Pemberton.
Click here for a copy of the Omnibus Motion of Marilou S. Laude vs. Private First Class Joseph Scott Pemberton
I am in Olongapo City standing as lawyer for the Laude family in connection with the gruesome murder of Jennifer.
To set the record straight, I “did not volunteer” my services to the family. A couple of months back, we had a training here in Subic jointly sponsored by the American Bar Association and the defunct AustAid on victim’s rights advocacy. The said training was intended primarily for civil society organizations so that they will know what to do in case there is a case of extralegal killing or torture in their community. That training had members of the Kilusan Demokratikong Pilipino and the women’s group KAISA-KA, the same group also advocating the cause of the last remaining comfort women in Pampanga, in attendance. So when Jennifer’s killing became public in Olongapo, both civil society groups lost no time in assisting the family in taking steps that the proper investigation of the crime take place. Kudos to them, we now have at least three eyewitnesses who can testify that Jennifer was last seen in the company of Pemberton in the crime scene. It was also civil society that alerted police authorities about the occurrence of the crime, which led to the timely investigation by the SOCO of the PNP led by Maj De La Torre.
Yesterday, we filed the criminal compliant that would trigger the process of preliminary investigation to begin. We had doubts about whether the proceedings could move forward given that the Respondent, PFC Joseph Scott Pemberton, is still in the custody of his American superiors. We asked ourselves: where would the Prosecutor serve him with notices for preliminary investigation? We indicated the name of his ship. In reality, no process server from the DOJ could board the vessel since it is an American warship.
So the Laude family is now in a quandary. While their filing of the criminal complaint triggers the legal process, how could it proceed without Philippine custody over the person of the Respondent?
Apparently, the Daniel Smith precedent was different. There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes. Could it be that US authorities are contemplating of exercising jurisdiction over him since murder as a hate crime against a transgender relates as well to the discipline of its troops? If this is so, this is worrisome since unlike the case of Smith, American authorities may not have Pemberton available to Philippine authorities altogether.
For the record, we decided to still press charges as of last night since this will at least inform the entire nation that the ball is now in the hands of the Philippine government. The most that the victims can do under the circumstance is to commence with the filing of complaint to trigger the preliminary investigation. Unfortunately, the victims are powerless to compel US authorities to have their soldier available to attend the proceedings. We filed nonetheless at least to illustrate exactly how the VAF offends Philippine sovereignty and jurisdiction. For while Philippine laws were breached and despite the fact that the Victim was a Filipino killed in his own country, our legal system appears to be powerless against the person of a US serviceman.
The consolation is that at least, DFA Secretary Del Rosario, unike the Department’s spokesperson, has articulated the correct interpretation of the VFA. That is, Philippine authorities should have custody over non-service related crimes committed by US servicemen under extraordinary circumstances. I join Sec Del Rosario that a murder committed as a hate crime against a transgender, suffices to qualify as an “extraordinary” circumstance to warrant Philippine custody over Pemberton.
In any case, the brutal killing of Jennifer, a apparently from drowning in a toilet bowl, should be a wake-up call to all Filipinos that the VFA, and the EDCA will never serve the Filipino interest. Unless we abrogate the VFA and reject the EDCA, more Filipinos will suffer the fate of Jennifer: victimized my bigoted US servicemen and yet denied an adequate domestic remedy.
My promise though is when we fail to get justice for Jennifer and the nation before Philippines courts, we will pursue the killer before foreign courts wherever the bigoted killer may be. Meanwhile, we should unite as a nation and assert our sovereignty: Junk the VFA! Junk the EDCA!
Reference Atty. H. Harry L. Roque Jr.09175398096