MH17 and war crimes


The shooting down of Malaysian Airlines 17 over the territory of Ukraine should indeed be a source of great alarm. To begin with, airline travel has toady become the primary mode of transportation for passengers. I log in no less than 50,000 miles per year because I am engaged in the practice of International Law. The 11 million Filipino diaspora worldwide rely on air travel to reach their place of work and to return to their loved ones here in the Philippines. In fact, the three Filipinos based in the Netherlands who perished in the ill-fated flight were part of that diaspora. The concern is if a civilian airliner could accidentally be fired upon by a surface to air missile in an area with an armed conflict, no air passenger is in fact safe today.

The incident, under existing air travel conventions, should primarily be investigated by Ukrainian authorities. This is because Ukraine remains sovereign over its airspace. This is part of its territory. But even if this is the case, the shooting down of a civilian airliner is a concern for the entire international community. This is because the shooting incident is a grave breach of the non-derogable norms of the laws and customs of armed conflict, International Humanitarian Law. Under this law, combatants and fighters must at all times distinguish between civilians, as protected individuals, and other combatants and fighters. The rules say that civilians must not be the object of attack. This is in line with the avowed purpose of the law, which is to spare civilians and other protected persons, of the adverse consequences of an armed conflict. This is why the Geneva Conventions, the treaty that restates the norms of International Humanitarian Law, remains today to be the only universally ratified convention in our planet.

Why is International Humanitarian Law (IHL) applicable to the incident?

It is applicable since there is an armed conflict in parts of Ukraine where pro-Russian separatists have taken up arms with the goal of either creating a new state, or to be reunified with Russia. IHL is applicable to both international and non-international armed conflicts. Here, the rules applicable appear to be those for non-international armed conflicts since it is uncertain if the support given by Russia to the separatists is sufficient to ‘internationalize” the conflict. Thus far, it appears that the separatists, while armed and financed by Russia, do not appear to be under either the effective or over-all control of Russia. In any case, the duty to distinguish between combatants and civilians is a positive obligation of all fighters regardless of the type of conflict.

So how does the application of IHL affect the incident?

In many ways. To begin with, the investigation, apprehension, prosecution and punishment of all those behind the shooting become the concern not only of Ukraine, but the entire international community. In fact, their apprehension and punishment under the doctrine of au dudire au adjudicare are an obligation of all states. Russia hence, must take steps, as do Ukrainian authorities, to investigate the incident and ensure their prosecution and punishment. In default of this duty, Russia is under a positive obligation to surrender the suspected perpetrators to the jurisdiction of a third state that is able and willing to prosecute them.

International precedents have also treated attacks on civilians also as threats to international peace. IHL, or jus in belo, is distinct form the law that determines the legality of the use of force, Jud ad bellum. Under the latter the UN Charter provides that the use of force is illegal save in instances of self-defense or when authorized by the UN Security Council itself. The Security Council, in turn, has characterized the duty of states to turn over suspected perpetrators of attacks against civilian airlines as a binding obligation of UN member states. This was why Libya had to later create a fund to indemnify victims of the Lockerbie incident where a Pan-American airline 747 was shot down in the airspace of Lockerbie, Scotland. Libya initially invoked the provisions of the Montréal convention to argue that it should exercise jurisdiction over the suspected Libyan bombers, but the Security Council, weary of a moro-moro, said that Libya should turn over the suspects to United States authorities, the flag state of Pan Am. Libya’s initial refusal to turn over the suspects became the grounds for the imposition of economic sanctions against it for a very long time. In fact, the sanctions were only lifted shortly before the ouster of Khadafy and after it agreed to put up the fund to indemnify the victims.

Apart from the duty to investigate and prosecute, can Russia incur additional responsibility for the incident?

This would depend on whether evidence can be presented to prove that the separatists are in fact acting for and on its behalf. In the case of the contras that were financed and used by the Americans in attempting to topple the then Sandinista regime in Nicaragua, the International Court of Justice said that the mere training and funding do not make the acts of the contras attributable to the United States, The Court said that it must be shown that the contras were under the effective control of the Americans so that their acts could be attributed to the latter; this means that all the acts of the contras should be shown as undertaken upon orders of the American. This is a very high threshold.

This is probably why the International War Crimes Tribunal for the former Yugoslavia formulated an alternative test known as the Over-all Control test. Under this test it need only be shown that the third state shared the same military objectives as the armed insurgents, even if the daily course of battle is not dictated by the third state. The problem is that the ICJ in a later case of Bosnia vs., Serbia ruled that the correct test should still be the higher Effective Control test. Currently, it is uncertain which test should apply. Maybe the ill-fated MH17 incident will provide the answer.

Petitioners file Motion for Partial Reconsideration of SC decision on DAP


P-Noy cannot augment funds for approved government projects, activities and programs (PAPs) in the annual General Appropriations Act (GAA) through his controversial Disbursement Acceleration Program (DAP) beyond what he had originally recommended to Congress.

To allow him to do so violates the mechanisms for checks and balances provided in the Constitution and opens the budget process to abuse, according to   defeated senatorial candidate Greco Antonious Beda Belgica, one of the main petitioners in the case.

Belgica, through his lawyers Harry L. Roque, Jr., Joel Ruiz Butuyan and Roger R. Rayel of the Roque and Butuyan Law Offices, filed yesterday a Motion for Partial Reconsideration of the Supreme Court’s earlier ruling striking down cross-border transfers of funds made by the Office of the President through the DAP.

He said there is a need for a definitive ruling from the Supreme Court on the power of the President to augment the funds to cover a deficit in a program for which public funds had been earmarked under the annual appropriations law.

He said that under the DAP, President Aquino in many occasions augmented or added funds from government savings for projects in amounts that exceeded many times the originally funding for them under the GAA.

“To do so would mean giving the President more money for a project that he failed to properly assess and evaluate how much it would cost to implement,” he said in his 23-page motion. “ To allow him to use more money than he initially determined would be required for a certain project would be to disregard the process of budgeting required to be observed under the law.” As proof of this, he cited the following:

 

  • The DREAM Project of the Department of Science and Technology under the 2011 budget (R.A. No. 10147) with an augmentation of One Billion Six Hundred Million Pesos (P1,600,000,000.00).[1] A check with Republic Act No. 10147 disclosed that the project referred to by the Office of the President only had a total appropriation of Five Hundred Thirty Seven Million, Nine Hundred Ten Thousand Pesos (P537,910,000.00) under the category of Maintenance and Other Operating Expenses (MOOE). How could a P537,910,000.00 appropriation be augmented by almost three times such amount, that is, P1.6 Billion for a total expenditure of P2.137 Billion?
  • The same thing is true with respect to the second item wherein the total appropriation under R.A. No. 10147, p. 711, under Section A.II.a is P8,003,000.00 comprising of P5,975,000.00 for Personal Services and P2,028,000.00 for MOOE. Yet, this was “augmented by P300 Million, an amount more than twenty six (26) times the original appropriation.
  • The Repair/Rehabilitation of the PNP Crime Laboratory under R.A. No. 10147, p. 502 under Section A.III.a.1.a on “Conduct of operation and other related confidential activities against dissidents, subversives, lawless elements and organized crime syndicates and campaign against kidnapping, trafficking of women and minors, smuggling, carnapping, gunrunning, illegal fishing and trafficking of illegal drugs.” Clearly, the activity to be funded is a operational activity and not a capital outlay. However, the “augmentation” expense of P3,255,837,000.00 is one for capital outlay for the “Repair/Rehabilitation of the PNP Crime Laboratory.” What is worse is that out of the P48,152,488,000.00 total appropriation for the item under Sec. A.III.a.1.a, P47,476,814,000.00 was for Personal Services while only P675,674,000.00 was for MOOE. There is no appropriation for capital outlay. Thus, there existed no appropriation that the Office of the President could latch on to for this particular “augmentation.”

 

He also attacked recent proposals made by some sectors sympathetic to the President on the issue that the DAP expenditure by the President may be justified under Section 49 of Book VI of the Administrative Code of 1987. The provision reads in part thus:

Section 49. Authority to Use Savings for Certain Purposes. – Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President:

xxx

(9) Priority activities that will promote the economic well-being of the entire, including food production, agrarian reform, energy development, disaster relief, and rehabilitation;

(10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities;

xxx (Emphasis supplied)

 

However, Belgica said through his lawyers that the very same provision requires that the obligations being funded from savings be “incurred during a current fiscal year or previous fiscal years.”

 

This, it can only refer to PAPs with existing appropriation covers and to those unpaid obligations of the previous years, especially contingent obligations that became due and demandable only during the current fiscal year as borne by the enumeration in the cited provision, he said.

 

Belgica took issue with the Supreme Court’s characterization of the government’s budget process as descriptive rather than normative, charging that to do so ignores the constitutional requirement found in            Section 15 (1), Article VI of the 1987 Constitution requiring that the “form, content, and manner of preparation of the budget shall be prescribed by law.”

 

“Thus, and with due respect, to characterize the budget process as merely ‘descriptive, not normative’ and to propose a different ‘treatment of departments and offices granted fiscal autonomy’ is to demean the legal significance thereof as if the process described is merely directory and not mandatory,” he said.

 

[1] Consolidated Comment, par. 33.

The President as a bully


I could not believe my ears. There he was- the President of the Republic—acting like the head of the Sputnik gang, with apologies to the gang.

Sure, no one likes to lose. But when you want to reconsider a loss, you should argue on the basis of law and reasons- at least if its the highest court that you need to convince. But no, the President threw both reason and law and instead acted like a bully telling the members of the Court that if they do not reverse themselves on the DAP, he will ask the Legislature to remove them from office. He even taunted them to a fight, as if the Justices, because of their sheer physical age, could stand up to him.

And why did he think the Court was wrong on the DAP? He identified at least two points, both of which do not hold water. One, the administrative code purportedly empowers him to realign funds even on a cross-border basis. The problem with this submission is the elementary principle of hierarchy of laws. Even assuming that the administrative code authorizes him to resort the DAP, all laws must still conform to the Constitution, the latter being the supreme law of the land. Those that do not are declared by the courts as null and void ab initio, or without legal effect from the beginning.

Second, he argued that at most, the DAP is akin to parking at a no parking zone in order to bring a dying patient to a hospital. Really? Since when did a culpable breach of the Constitution become akin to a breach of a minor local ordinance? Moreover, the Court identified a major breach of the Constitution as basis for invalidating the DAP; that is, that it usurped the exclusive power of Congress over the purse. The DAP involved more than a violation of an ordinance that could result in a parking ticket. The DAP was about the very essence of representative democracy: that there will be no taxation without representation and its corollary, that there can be no spending of public funds without the consent of the people acting through their representatives. That was the full impact of the ruling of the Supreme Court when it reiterated the doctrine in Demetria vs. Alba that the Executive could only realign savings to augment an existing line item and only within the executive or that branch of government that incurred the saving. To sanction what the DAP purported to do, which was to replace projects identified by Congress with other projects identified by the Executive would infringe on the power of Congress to pass the appropriations law which incidentally, is also an important part of the system of checks and balances institutionalized by the Constitution by having three co-equal branches of government.

Well, we ourselves will file a partial motion for reconsideration but find no need in bullying the Court to accede to our arguments. We will rely on the tried and tested formula of arguing through law and reason.

What are our grounds for reconsideration?

Two points.

First, the Court was not clear how much the executive could augment for existing line appropriation items using savings. On the basis of the Court decision itself, we identified at least three projects that were augmented by at least doubling the amount originally appropriated and even up to 51 times of the appropriated amount. Take for instance the national highway project for the President’s home province of Tarlac. The original budget was P1 billion. This was augmented by P900 million, or almost double the initial amount., This, we will argue, is no longer augmentation but a new budget allocation which again, infringes on the power of the purse that properly pertains to Congress. Similar “augmentations” mentioned in the Court’s decision include a P6 million budget for research and development of the DOST which was augmented 51 times with 300M and the billions and billions by way of augmentation to senatoriables Ging Deles and peace bond queen alias “when we hold on together” Dinky Soliman’s departments.

A second ground for reconsideration is that the lump sump for contingencies and natural calamities should also be declared unconstitutional. This is pursuant to the earlier Belgica decision on PDAF which declared all lumps sums, except for these two items, as being unconstitutional. We will argue that even these two should be declared unconstitutional since the remedy for the executive in case of extraordinary expense is to go to Congress for a supplemental budget. This was done for Yolanda. Why shouldn’t it be done anew for similar unexpected expenses?

In any case, what appeared more troublesome with the President’s desperate effort to defend the patently constitutional infirmed program that is the DAP is the reality that while he has the Constitutional mandate to enforce the Constitution and the laws of the land, he is the first to breach both the Constitution and the laws of the land. And in so breaching his constitutional oath, he resorts to bullying the Judicial branch of government into sustaining his unconstitutional acts. This is troubling because this would have been unthinkable in the administration of both my idols, Ninoy and Cory. The parents must now be turning in their graves with the acts of their unico hijo.

Petitioners to seek partial reconsideration of SC decision on DAP


Centerlaw Press Release
Reference: Prof. Harry L. Roque, Jr. 09175398096

A group of Petitioners against the Disbursement Acceleration Program (DAP) will seek a partial reconsideration of the DAP Decision to force the Supreme Court to implement the laws that require that savings can only be used for augmentation of deficient appropriations according to lawyer Harry Roque, counsel of Petitioners Greco Belgica, et al. This is necessitated by the fact that while the Decision categorically said that “an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings,” in the dispositive portion of the Decision, the Court declared as unconstitutional only “The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.” Thus, the Court did not actually give life to the constitutional requirement for valid augmentation and did not implement the provisions of the General Appropriations Act for 2011, 2012 and 2013 and the second paragraph of Section 44 of Presidential Decree 1177 which required that for any augmentation to be valid, there must be an actual deficiency in an existing appropriation and not merely the existence of an appropriation cover.

Roque said that this is a disturbing part of the Decision as it seems that the discussion and examples cited by the Supreme Court on the subject focused only on the lack of appropriation cover. For example, the Court cited the Disaster Risk, Exposure, Assessment and Mitigation (DREAM) Project of the Department of Science and Technology (DOST) with the following expenditures under the DAP: Personnel Services – P43.5 Million; MOOE – P1.164 Billion; and Capital Outlays – P391.9 Million. However, the original appropriations under the General Appropriations Act for 2011 are: Personnel Services – P0.00; MOOE – P537.9 Million; and Capital Outlays – P0.00. If the Supreme Court Decision as it now stands is followed, the only questionable augmentations in the above example as pointed out by the Supreme Court itself are those relating to Personnel Services and Capital Outlays which amount to only P435 Million out of the P1.6 Billion spent for the Dream Project. However, the money spent for MOOE under the DREAM-DAP is P1.164 Billion or almost three times (3X) the amount spent for Personnel Services and Capital Outlays (P435 Million) under the DREAM-DAP. More importantly, the P1.164 Billion spent on MOOE is more than twice the P537 Million originally appropriated for MOOE.

It is clear that on the items for Personnel Services and Capital Outlays, there was no valid augmentation as there were no appropriations to be augmented. What is not so clear is whether there was actual deficiency for the MOOE that required augmentation. In the example cited by the Supreme Court, the augmentation was more than twice the original appropriation. Roque asked: “Can this be reasonably called a deficiency considering that the augmentation is more than two times the original budget? Would the additional P1.164 Billion be considered as the actual deficiency in the original appropriation? What would prevent the President to add P1 Billion, P10 Billion or P100 Billion more and claim that it is a valid augmentation?”

He cited other examples:

1. The “National Road Project in the Province of Tarlac” where the original appropriation was only P1.1Billion was given an additional P900 Million which is almost (P200 Million less) the same amount as the original appropriation. Would an augmentation in an amount equal to or less than the original appropriation automatically qualify as a valid augmentation?
2. The DOST original appropriation of P5.975 Million was augmented by P300 Million or almost fifty (50) times the original appropriation. Is fifty times the original amount be reasonably called a deficit so as to qualify for augmentation?
3. The budget for the Office of the Presidential Assistant for the Peace Process (OPAPP) for 2011, 2012 and 2013 totaled P700 Million, more or less, including the budget for the program called Payapa at Masaganang Pamayanan or PAMANA. However, the money given under the DAP for this program granted to the Cordillera People’s Liberation Army (CPLA) amounted to P1.5 Billion while the money given to the Moro National Liberation Front (MNLF) was P1.8 Billion. How can this be called an augmentation of an actual deficiency when the amounts used to augment is more than two times (2X) the budget of the implementing agency for the past three years?
4. The P700 Million in DAP assistance to the Province of Quezon under the Local Government Support Fund (LGSF). The appropriation for years 2011, 2012 and 2013 for LGSF was P200 Million for each year. How can P700 Million be characterized as augmentation when it is more than the budget of the program for the past three (3) years?

Given the above examples, there is a need to clearly define what constitutes actual deficit so as to be able to make valid augmentations as this may be exploited by those responsible for the DAP as their escape mechanism to avoid criminal and administrative liability. Further, this may be relied upon as authority in the future to provide for measly funding for many items in the GAA just for the purpose of providing “appropriations cover” where “savings” may be used.

Roque concluded that what is paramount is the Constitution which requires that “Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget.” If Congress (whose role is to authorize the maximum amounts that Government may spend for any appropriation for any given year) cannot increase the amounts submitted by the President, then all the more reason that the President (whose role is limited to the execution of the budget) cannot go beyond the amounts authorized by Congress unless there is actual deficiency to be augmented.

The problem that is Lacierda


“You seem to equate constitutionality with criminality, those are two different things the basic question is nawaldas ba yung pera?” These were the words of Presidential bad mouth Edwin Lacierda.

This is the problem with PNoy. He has opted to trust misfits like Lacierda.

Lacierda was obviously asleep when his teachers in Constitutional Law and Criminal Law taught the sanctity of the Constitution and the Law on Public Officers. Had he been awake, he would have known that it is always criminal for a public officer, more so a President, to violate the oath to “support the Constitution and all the laws of the land”. This oath of office is not just provided in the Administrative Code, which has the effect of law. It is contained in the Constitution itself. This means that where a public officer willfully violates the Constitution, he violates his oath of office. Even for a sitting President, this is an impeachable offense. It is a ground to remove him form office.

Perhaps, what caused Lacierda’s confusion is that unlike in the United States where a violation of an oath of office is a federal crime, no such statute exists here in the Philippines.

This in turn is why Lacierda should not have slept through his class in Criminal Law and/or Public Officers. Art. 220 of the Revised penal code entitled “Malversation of Public Funds” provides: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which fund or property were appropriated by law x x x shall suffer the penalty of prision correctional its minimum period or fine ranging from one-half of the total sum misapplied x x x”.

Clearly, when the Supreme Court ruled that DAP was unconstitutional, it ruled that public funds were not spent pursuant to the appropriation law enacted by Congress. In fact, the Court enumerated at least three ways by which the crime of misappropriation were committed: one: realigned funds were not savings as defined by law; two, when realigned funds were given to offices outside of the executive, which the Court described as the “cross-border use of funds”; and three, for items not otherwise provided in the appropriations law. Truth to tell is that those behind the DAP could be held liable for a total of at least 3 counts of malversation of public funds. And given the amount involved, hundreds of billions of pesos, the administration officials behind the program could lose even their underwear since the fine for the offense is at least half of the amount misappropriated.

Note too that the criminal prosecution for malversation of public funds is separate and distinct from two further prosecutions for breach of the Anti-Graft and Corrupt practice Acts; specifically, the offense of causing damage to the government and entering into contracts disadvantageous contract to the government, both of which do not require that the public officer benefited from the public funds.

So do I think the President should be impeached?

Well, the grounds are certainly present. By committing malversation of public funds, the President committed a culpable violation of the Constitution, and even bribery -if it can be proven that the DAP distributed to the senators were in fact paid to influence their vote in the impeachment trial of removed CJ Renato Corona. But as a veteran of three impeachment complaints against GMA, I can claim some wisdom borne out of experience. First, the people, with only two years left in PNoy’s presidency, will not be too supportive of any move to remove him. The people’s thinking is that since two years is too short in politics, we might as well let him finish his term. But a more fundamental reason I am not supportive of impeachment is it will only enrich our Tongressmen and Senatongs further. Our experience against Gloria Arroyo was that Malacañang would again use the people’s money to buy the loyalty of Congress. To the movers behind the impeachment: please spare our people further acts of misappropriation which will certainly happen again in case of impeachment. Our hope is whatever is left from our coffers should be spent on our people. Meanwhile, let us initiate criminal action against those without immunity and after two years, against the soon to be-ex-President himself.

Criminal liability for DAP


This is one of our biggest wins. On Tuesday, the Court voting almost unanimously (because J. Teresita De Castro took no part) declared all the features of DAP which we impugned as being unconstitutional as illegal. Specifically, newspapers reported Budget Circular 541 issued by the Department of Budget and Management allowing it to withdraw “unobligated allotments of agencies with low levels of obligations as of June 20, 2012 to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget was declared unconstitutional.

The Court also annulled the following:

“1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. The use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAA”.

The Constitutional provision declared to have been violated by the DAP is Section 25 (5) Article VI of the 1987 Constitution which reads: “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Now that the Court has declared the DAP as invalid, what happens to those who implemented it?

Here, a distinction should be made between those who implemented them allegedly as a “stimulus measure’, and those who gave them to the senators to influence their votes for the ouster of former Chief Justice Renato Corona. In any case, for both types of government officials, they are liable for graft and corruption.

For those who implemented the DAP in good faith, believing that this would stimulate the economy, RA 3019 penalizes those who “caused any undue injury to any party, including the Government, x x x in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”Certainly, violating the Constitution through illegal disbursements of public funds constitute a damage to the government whether or not the public officer actually benefitted from the disbursement.

For those who disbursed it and accepted it to influence the outcome of the impeachment trial of former Chief Justice Corona, the anti-graft law states that penalizes this as bribery, or “directly or indirectly requesting or receiving any gift, present, x x x or benefit, for himself or for any other person, in connection with any x x x transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.”

While the proceeds of DAP were allegedly for government projects, the reality is the benefit for the legislators will be the “tongpats”, or the commissions, which respected journalists Yvonne Chua and Ellen Tordesillas wrote could range anywhere from 10-50% of the total cost of the project. The element of the transaction wherein the public officer has to intervene in his official capacity is the removal of the former Chief Justice.

I have said it before and will say it again: resort to bribery to remove the former Chief Justice was wholly unnecessary. It was Corona himself that called attention to his own culpability of betrayal of public trust when he himself acknowledged not having declared the entirety of his assets in his SALN. Moreover, the Ombudsman had the goods on him: AMLAC records proving the bank deposits which the removed Chief Justice did not declare. As a Private Prosecutor in that impeachment trial, it angers me that the not-so-bright boys and girls of Malacanang had to taint the process with fraud when in truth and in fact, no Senator could have turned a blind eye to the evidence against Corona.

So what now? Well, we’ve started the cleansing when we charged three senators for plunder. Time now to charge more senior officials, including Cabinet members, and the senators who benefitted from DAP for graft. Anent the President—well, the wait won’t be too long. His immunity is only for the next two years. Hopefully by then, we’ve done away with hospital arrests for former presidents!

This column appeared in Manila Standard Today on July 3, 2014 http://manilastandardtoday.com/2014/07/03/criminal-liability-for-dap/

Notice of Coverage


Request for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096

Today, July 2, 2014, 1:30 pm at Max’s Restaurant (1123 M.Y. Orosa Street, corner U.N. Avenue, Ermita, Manila), Centerlaw and the Roque & Butuyan Law offices will hold a press conference on the recent court decisions on the following cases:

1) Rev Magnolia Mendoza vs Cebu Pacific – where the court ordered CebuPac to pay 2M in damages to Rev Mendoza.
2) On the Declaration of Unconstitutionality of the Disbursement Acceleration Program (DAP)

Media coverage is requested.

ON THE DECLARATION OF UNCONSTITUTIONALITY OF THE DISBURSEMENT ACCELERATION PROGRAM (DAP)


The Supreme Court today struck down key provisions of the government’s Disbursement Acceleration Program (DAP). The declaration of unconstitutionality of the DAP is a great victory for the Constitution and the Rule of Law. The applicable constitutional and statutory provisions on the matter of use of savings and augmentation are very clear – savings can come only from existing appropriations within the department of the government, including constitutional commissions and augmentations may only be effected if the original appropriation is found to be deficient. Thus, the Supreme Court rightly declared cross-border augmentations and augmentations of inexistent programs as unconstitutional and the withdrawal of the unobligated allotments before the end of the fiscal year for programs or projects not abandoned as unconstitutional transfer of appropriations.

Centerlaw, which filed one of the Petitions questioning the DAP before the High Court is elated at the decision of the Court. In the meantime, the Petitioners wait, as in the case of the Priority Development Assistance Fund (PDAF), the criminal prosecution of those responsible for the DAP.

The unconstitutional transfer of appropriations was one of the principal causes for the unmitigated raid of the government’s coffers during the Marcos regime under Presidential Decree No. 1177 that allowed Marcos to plunder the government in the Billions of Dollars. Unlike the PDAF where previous decisions of the Supreme Court upheld its validity, the case of unconstitutional transfers of appropriation was decided as early as 1987 in the case of Demetria vs. Alba.The present administration cannot therefore claim good faith for its unconstitutional transgression. The declaration of unconstitutionality, is therefore, not enough. Aside from criminal prosecution for technical malversation, heads must roll for the illegal expenditures as is required under Section 43, Chapter 5, Book IV of the Administrative Code of 1987.

Centerlaw Chairperson Harry Roque states, “It is a great victory for the constitution and the rule of law. Our next task is to hold those responsible for DAP criminally responsible as well as those behind the PDAF scam.”

Provisional measures


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

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

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

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

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

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

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

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

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

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

China is challenging UNCLOS


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

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

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

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

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

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

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

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

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

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

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

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

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

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

4

UP PROF: “CHINA CHALLENGING UNCLOS”


REF. Atty Romel Bagares 09166679802

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


 

REF. Prof. Harry Roque 09175398096

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

 

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

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

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

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

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

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

Allan and Chiz : Walk the Talk


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

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

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

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

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

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

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

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

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

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

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

Is all lost for these two young beacons of hope?

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

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

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

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

Butch Abad


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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Scenarios for the accused


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

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

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

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

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

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

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

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

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

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

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

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

***

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

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

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

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

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

Pigs all


Now it can be told: they were all pigs.

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

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

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

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

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

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

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

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

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

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

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

35

World Press Freedom day


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

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

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

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

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

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

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

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

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

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

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

The EDCA: What’s in it for us?


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

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

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

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

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

Why was this so?

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

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

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

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

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

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

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

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

6

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


 

Ref. Prof. Harry Roque 09175398096

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

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

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

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

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

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

 

 

The Cybercrime Law: What’s next?


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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

 

#30#

 

The tale of two envoys


 

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

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

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

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

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

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

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

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

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

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

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

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

 

Centerlaw re: SC decision on RH Law


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

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

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

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

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

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

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

Andal “Unsay” Ampatuan vs Harry Roque


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

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

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

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

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

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

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

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

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

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

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

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

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

 

Click here for a copy of the decision_Unsay vs Roque

 

On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

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

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

What happens now to JPE et al?


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

Not quite.

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

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

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

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

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

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

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

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

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

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

 

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

 

 

China’s retaliation?


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

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

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

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

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

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

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

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

 

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


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

Our obsession with Bar topnotchers


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

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

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

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

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

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

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

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

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

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


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

Reference Prof. Harry L. Roque 09175398096

 

 

Why the invasion of Ukraine concerns us


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

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

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

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

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

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

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

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

High court on libel: Lost in overbreadth


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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

Read more: http://opinion.inquirer.net/72119/high-court-on-libel-lost-in-overbreadth#ixzz2uoBnkkAX 
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Rejoice for Edsa 28?


We commemorated the 28th anniversary of the first People Power Revolution this week. As is customary, we ask the question: are we better off today, 28 years after the dictatorship?

In fairness to everybody, we are definitely better off living in today’s nominal democracy compared to the absolute dictatorship of the past. For one, we have at least a semblance of freedom of expression which was the first liberty infringed upon by the dictatorship.

Of course, despots despise free speech. This is because they fear the truth. Once people know what the truth is, they can form their own opinion. When taken collectively, public opinion can make or unmake governments, even dictatorships. This is exactly what happened to the Marcos dictatorship.

I was fortunate to have been raised in a family of activists. In my grandfather’s farmhouse, noted journalists would gather and whisper at the latest misdeed of the dictatorship. They would talk about Imelda’s avarice, Dovie Beams, Alfie Anido, and other taboos that the dictatorship kept from the public. Their informants were other journalists in the know but could not write the truth. Later in the day, an obscure publication, known as the “mosquito press” would surface. This was the WE forum. My Grandpa’s group would then converge late at night to read with eagerness back and current issues of the outlawed tabloid.

Peaceful assemblies were also prohibited. One of my fondest memories is how as children, we would defy the ban by walking and chanting anti-Marcos slogans in the rice fields behind my grandfather’s subversive farm house. That experience, needless to say, shaped the kind of person that I became today.

The dictatorship of course suppressed freedom of expression because it had closets upon closets full of skeletons. There was the fact that the dictatorship was downright corrupt. There was the fact that Marcos, the despot was megalomaniac and the wife, delusional. There too was the fact that despite systematic violations of human rights, the dictatorship survived because of Uncle Sam’s support in a region which became a battleground for the Cold War. There too was the fact that bereft of a popular mandate, Marcos had to invent himself as some kind of a demi-God with a divine mandate to rule. These were some of the reasons why he was averse to freedom of expression. Simply put, behind the lyrics of the “Bagong Lipunan” propaganda song lies the ugly truth that the dictatorship was in power only for itself.

Twenty-eight years later, we find that many of the ailments that afflicted our society during Martial Law are still prevalent. There’s still the ever-widening gap between the rich and the poor. And while President Aquino has not himself forced our children to sing his counterpart of the “Bagong Lipunan”, he has been peddling an equally pernicious lie that we’re now on the “Daang Matuwid”. Worse, while we have a thriving media industry that will not be cowed by the presidential bad mouths, we have a worse form of censorship that we did not see during martial law: the systematic and pernicious killing of journalists. In fact, the impunity against journalists has earned us the notoriety of being either the most or the second-most murderous country for journalists worldwide.

So are we better off today?

I submit that yes, we are better off today. While our journalists continue to die heroes’ deaths, at least our media has been persistent and untiring in exposing the scams in government that led to the public contempt and indignation for the PDAF, the DAP and the Malampaya scams. While the presidential bad mouths of Edwin Lacierda and Abigail Valte continue to wreak havoc, PNoy at least has taken steps to have a more palatable spokesman in the person of Sonny Coloma. And while scandals continue to hound the administration with the likes of Dinky “when he hold on together” Soliman’s election fund raising dubbed as poverty alleviation, Ging Deles’s bloody peace pact with the MILF, and Butch Abad’s DAP, the reality is PNoy himself remains untainted with corruption. Thus he continues to honor the memory of his parents.

Yes, we’re not in heaven. But because we’ve been to hell during the days of the dictatorship, we would be damned if we allowed it to happen again. This is why PNoy and his cohorts better watch out. For unless they do better in the next two years, he may not have a legacy to speak of and may very well be equally notorious—if not because of kleptocracy, then because of sheer incompetence.

Shape up, PNoy!

Request for Coverage: Activities to Mark the Relaunch of the Philippine Society of International Law


THE MEDIA IS REQUESTED TO COVER THE FOLLOWING EVENTS AT THE UP LAW CENTER TO MARK THE REVIVAL OF THE PHILIPPINE SOCIETY OF INTERNATIONAL LAW:

Round Table on the West Philippine Sea Arbitration
Solicitor -General Francis Jardeleza: Keynote Speaker
Reactors:
Dean Merlin Magallona
Dean Raul Pangalangan
Prof. H., Harry L. Roque
February 27, 1PM at the 2nd floor conference room, UP Law Center, Bocobo Hall, UP Diliman
Focused Group Discussion on the ASEAN Common Market
February 28, 2014
9AM, 2nd flr. conference room, UP Law Center, Bocobo Hall, UP Diliman
Please confirm attendance with Au Tolentino, 9293654

The fight versus cyberlibel continues


The Supreme Court on Tuesday upheld the constitutionality of libel in the Cybercrimes Prevention Act of 2012. This is both unfortunate and disturbing. Our Supreme Court, as early as Angara vs. Electoral Tribunal, is recognized as a co-equal branch of government despite its lack of political and military power because its task is to uphold the supremacy of the Constitution. But with this unfortunate decision, the Court has clearly abdicated its role to uphold fundamental freedoms.

I represented journalists in this constitutional challenge led by Alexander Adonis. Adonis spent a year behind bars for libel courtesy of former Speaker Prospero “Burlesque King” Nograles. He went to the UN Committee on Human Rights for a view that criminal libel here is contrary to freedom of expression enshrined in the International Covenant on Civil and Political Rights. He succeeded and the Committee declared, for the first time, that criminal libel is unnecessary and disproportional for the protection of privacy of private individuals. The Committee ruled that the alternative to achieve this aim is civil damages and not incarceration.

The rationale for why criminal libel infringes on the right to free expression is because of a principle known as “overbreadth”. Under this, legislation so broadly tailored should be annulled on its face since its enforcement may cover even protected speech. This is why many states in the United States have stricken down much criminal libel legislation as being unconstitutional. Specifically, it may criminalize criticisms against public officials, which even if untrue, were nonetheless said without knowledge of falsity or in utter disregard thereof. The rationale for this in turn was summarized in the case of New York Times vs. Sullivan: “debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Garrison v. Louisiana then said why speech motivated even by hatred and ill-will should not be penalized: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth”.

The fact that the cyber prevention act criminalizes libel in the Internet, a different medium form print or broadcast, also adds to the confusion. For instance, the Revised Penal Code provision on libel says: “Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same”. The issue now is who else, besides the author, should be held liable for libel. Should the ISP and the intermediary, whose facility is indispensible for Internet publication, also be held liable? Are cybercafé owners, because bulk of our netizens goes to these cafes, also liable?

The Court attempted to narrow the scope of application of the cyberlibel law by ruling that only original posts may be penalized. This reflects that the court does not fully appreciate the nature of the Internet as a technology. Netizens today not only repost Facebook entries, they also reproduce them through cut and paste. So in the case of cut and paste, who are the original authors? Moreover, the court spokesperson said that comments are not liable for persecution. But how can these be when comments, by their very nature are in fact original posts distinct to the Web page or the Facebook entry that they seek to propagate?

Ultimately, the objection to the cybercrime law is that it seeks to penalize individual space on the Internet, which is recognized as the realization of the free market place of ideas. The theory of free speech is right or wrong; information should be made available to everyone, as ultimately, people will use their own intelligence in distilling the truth from falsity.

Karen Davila in her show yesterday was correct. The Internet is the medium of communication of the future. This is why they now seek to regulate it. For unless they instill fear in the hearts of those who criticize government, the possibility exists that government will cease to be a business and be  a means to serve the public. This is what they seek to prevent by legislating the draconian cybercrime prevention act.

But make no mistake about it: the fight shall continue. There shall be a motion for reconsideration in due course and a new petition in the future, for the alternative that of having the draconian law in force is simply unacceptable.

The high court should not abdicate its duty to protect freedom of expression


After the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

After the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

“The high court should not abdicate its duty to protect freedom of expression. No less than the U.N. Human Rights Committee has already declared that Philippine Criminal Libel Law is contrary to Freedom of Expression. The Court’s decision failing to declare libel as unconstitutional is therefore contrary to Human Rights Law.

“Centerlaw and our client, Alexander Adonis, welcome the other provisions of the Act such as the Take Down clause and the decision to strike down the real time gathering of information. This is indeed a major victory for privacy and the right of the people
to be secure in their communication.

“We will continue the fight to nullify criminal libel. Cyber libel is an infringement on free speech.”

Centerlaw issued this statement following today’s announcement that the Philippine Supreme Court ruled that online libel is constitutional.

Centerlaw, through Harry Roque, argued before the Supreme Court on January 15, 2013 that Republic Act 10175 or the anti-cybercrime law is against the law. Four other lawyers argued, representing 15 groups that petitioned against the law.#

The Centerlaw team after the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

The Centerlaw team after the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

Ruby Tuason and the WPP: Some criminals are luckier than others


ImageThe recent admission of pork barrel scam co-conspirator Ruby Tuason highlights anew the political nature  of the Witness Protection Program. Contrary to popular thinking, the WPP and the discharge of a witness as a state witness are two different things. The first is an executive act which, for all intents and purposes, is under the control and supervision of the Secretary of Justice, The latter is a judicial act and will require that the person sought to be discharged as a state witness first be charged in court.

The Witness Protection Program was created by an act of Congress, RA 6981. Under this statute, a person may either apply to the program if:

a) the offense in which his testimony will be used is a GRAVE FELONY as defined under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially CORROBORATED in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony.

As a consequence of being admitted into the program, a protected witness may be granted immunity for the crime for which he is testifying, be granted protection and a safe house, and may even keep his loot. This is because according to the web page of the DOJ, a person admitted into the program “may not be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents or writings produced.”

A discharge as state witness, on the other hand, is pursuant to Section 7, Rule 119 of the Revised Rules of Court. Unlike the WPP, the Rules of Court require that a state witness should have already been charged for a crime in court. A person then can be discharged as a State witness if the court is satisfied that:

(a)   There is ABSOLUTE NECESSITY for the testimony of the accused whose discharge is requested;

(b)   There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper prosecution of the offense committed, except the testimony of said accused;

(c)   The   testimony   of said   accused   can   be   substantially CORROBORATED  in its material points;

(d)   Said accused does NOT appear to be the MOST GUILTY; and

(e)   Said accused has NOT at any time been CONVICTED of any offense involving moral turpitude.”

While both provide for testimonial immunity for the accused who will testify for the state, it is clear that the WPP provides for more benefits. This  includes protection,  a safe house,  and even the right to keep his loot. Moreover, unlike the discharge of a state witness, a person may be admitted into the WPP and be accorded all benefits of the program, including immunity form prosecution, on a very low threshold, that the testimony may be corroborated on its material points. It does not matter hence if the testimony is redundant nor that the testimony will not involve new matters that only the witness can testify on.

Simply put, admission into the WPP -which is tantamount to impunity for one’s criminal acts – is a highly political act. Unlike discharge of a state witness in court, all that is required is that there must be an alleged threat on the life of the witness and that the testimony is subject to corroboration. This is why many are aghast at the possibility that Ruby Tuason, who should be equally be prosecuted as Enrile, Estrada et al, appears to be off the hook. Just because the Secretary of Justice now admits that the cases she filed in connection with the PDAF scam does not have her “slam dunk” testimony, she now wants an equally corrupt character to be off the hook.

I have always believed in good governance and that all corrupt people in government should be thrown behind bars. In this regard, we must ensure that all those who stole from the public coffers should all spend the rest of their lives behind bars, Certainly, the admission to the WPP of Ruby Tuason, including her right now  to keep part of her loot, as I think she has said that she will only return a measly P 40 million, is more reason for decent citizens to be aghast at the manner by which the WPP is being implemented.

The WPP, including the Rules of Court provision on state witnesses, exists to ensure that those who breach the law should be punished for their acts. It certainly should not be implemented in a manner to make some criminals appear luckier than others.

The Massacre Victims of Luneta and Maguindanao


The victims of the Luneta massacre —Chinese tourists from Hong Kong —and the victims of the Maguindanao massacre have much in common. Both were victims of multiple murders at the hands of state agents. The Luneta Hong tourists died in the hands of Rolando Mendoza and the inept PNP members, many of whom also shot and killed them. The Maguindanao massacre victims were killed by suspects, all of whom are government agents—from elected officials to state multipliers such as the civilan volunteer organizations (CVOs) and the Citizen Armed Force Geographical Unit (CAFGUs).

Both sets of victims have been waiting for a long time for justice. In the case of the Luneta hostages, their plight is slightly worse off because no one at all has been charged for the killings. The Maguindanao victims, on the other hand, stand to wait hundred sof years for justice given that four years later, more than 80 of the suspected perpetrators still have to be arrested.

Further, while all of them are victims of violations of the right to life, not one of them has received satisfaction in the form of an apology from the state. Neither has any of them received compensation from the state.

President Aquino and his cohorts have offered identical reasons why the Philippine government has not and will not apologize nor pay compensation to them. In the case of the Luneta victims, its is because Mendoza—not Mendoza – was solely at fault. In the case of the Maguinadanao massacre, it is because it was former President Gloria Arroyo and her allies at fault, and not the Aquino administration.

The President’s refusal to both apologize and pay compensation to all victims of the violation of the right to life is a continuing breach of international human rights law. Under the articles of state responsibility, a state incurs responsibility for an internationally wrongful act when it breaches a norm of international law and when it is committed by a person whose acts may be attributable to the state. Both of these elements are found in the Luneta and the Maguindanao massacres.

Under the International Covenant on Civil and Political Rights, states have the duty to protect and promote, among others, the right to life of their people. This is a guarantee against the arbitrary taking of life. But since the Philippines no longer has the death penalty, all killings are hence unlawful in the Philippines. The only question to invoke international responsibility for these killings is this: Who perpetrated them? If it is through a state agent or a private person acting upon orders or control of the state, then the state will be in breach of the obligation anent the right to life.

It is crystal clear that the killers in both massacres are state agents. Mendoza was with the PNP, albeit then suspended, while the rest of the bullets were “friendly fire” from other PNP officers. Meanwhile, the fiasco that led to the firefight, including the decision not to take down Mendoza earlier and to use force belatedly were formulated by other state agents. For this decision, a committee headed by Justice Secretary Leila De Lima recommended that criminal charges be filed against those who formulated the botched policy. Those recommended to be charged included then-Mayor Alfredo Lim, then-PNP General Jesus Versoza, and then-DILG Undersecretary Rico Puno. Strangely enough, until today, none of these individuals have been charged for anything.

In the case of the Maguindanao massacre, there can be no doubt that while the criminal cases against the suspected murderers are still on-going, all of those charged for the multiple murder are all state agents. There were two governors: of ARMMM and Maguindanao, mayors, vice-mayors, military men, and members again of the PNP. There too were CVOs and CAFGUs whose members are auxiliary members of the Armed Forces of the Philippines as force multipliers. In fact, although these paramilitary groups consist of members of a private army, they were nonetheless conferred the status of state agents by reason of an Executive Order issued by Mrs. Arroyo which, until now, remains in force.

But where do the victims differ?

Their nationalities. And boy, this makes a hell of a big difference.

The Luneta massacre victims are of course Hong Kong residents and nationals of China. The Maguindanao massacre victims are all Filipinos. This means that while the Luneta victims can expect their rights to be espoused by their state, the Maguindanao massacre victims cannot look forward to any support from their own state. True, the latter’s criminal cases have been prosecuted in the name of the Republic by public prosecutors. Big deal. Every single one of the victims has their own private prosecutors anyway. This is evidence that the victims have not relied on the state alone even for the conviction of the suspects for murder. Moreover, given the proximity of the accused to the then-administration of PGMA, many of them believe that even the manner by which the prosecution was initiated: against 197 accused and hence, guaranteed to take forever, was a means to ensure impunity for the very influential family accused of committing the murders. But meanwhile, anent their claim for satisfaction in the form of apology and compensation, the Maguindanao victims, unlike their Hong Kong counterparts, could only fend for themselves since it is their own state that has decided against issuing to them an apology and paying them compensation.

Meanwhile, the fact that Hong Kong has already taken steps to espouse the claim of their nationals against the Philippine government can only be the source of envy for the victims of the Maguindanao massacre. For while their own government has denied them their rights as victims, at least their Hong Kong counterparts can still hope to get satisfaction and compensation. Perhaps there is solace for them in this thought.

Some clearly are luckier then others. Sad.

VHONG NAVARRO IS STILL LUCKY


It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.

Navarro was also brought to the station in the company of the men who admitted to have beaten him up allegedly in defense of the woman who cried rape. The neighbors  though in the condominium unit where the alleged rape and the torture occurred have spoken to the media and said  that they did not hear any strange occurrence form the unit on the date and time involved. Of course the determination of what actually happened will still have to be threshed out in a court of law. All the actors in this real life drama are wealthy and have retained the most expensive lawyers in town. But meanwhile, and as observers, we cannot help but question the actuation of the police when Vhong was brought to their station for blotter purposes. Why for instance, did they not inquire as the reason why he sustained serious physical injuries, which on the basis of media images, could not have been missed by the police? Why was he not brought immediately to a government doctor for mandatory forensic and medical examination? Why was the woman who cried rape not referred to the woman’s desk officer so she can be counseled on the issue of whether to press charges or not? Why was the woman herself not advised to have a medical examination to document the alleged rape? But worse, given that Vhong Navarro allegedly confessed to a rape, why was he, despite his sorry physical conviction, not asked if he was voluntarily giving his statement? Why did the police not take steps to ensure that the celebrity was not a victim of torture? Torture has long been considered amongst the most serious crimes committed not only in domestic jurisdictions, but also against humanity itself. Presidents, such as Pinochet, Milosevic, Marcos, and Senegal’s Habre have been prosecuted for it despite their pleas of sovereign immunity. In Pinochet, the UK House of Lords ruled that while sovereign immunity continues to be recognized under international law, torture is an international crime and can never be a sovereign act. Hence, presidents accused of committing them should not enjoy immunity from suit. Furthermore, under the Convention Against Torture, which has been rarified by the Philippines, police authorities are under a positive obligation to investigate where information exists to suggest that torture may have been committed. Certainly, the injuries sustained by Navarro, coupled with information that he was beaten by a group of persons albeit allegedly in defense of strangers and a confession, should have prompted authorities to conclude that they are probably dealing with a case of torture. Torture is defined under both international law and our domestic law as the “infliction of physical or mental pain” for the purpose, among others, of extracting a confession.  (The Philippines has two laws with contradictory definitions of torture. RA 9851 does not require the perpetrator to be a state agent. RA  9745 does) All the elements of the international crime appear to be present in the Vhong Navarro incident. Eventually, the question is: if one of the country’s most recognizable personalities could be a victim of torture with our police oblivious to this fact; what happened to ordinary people? One can imagine the fate of the faceless and faceless detainees in our police camps why have routinely been subjected to torture by the police themselves. Already, Amnesty International and the Commission of Human Rights have declared the existence of a torture chamber in a camp intended for the Special Forces of the PNP. What these organizations have uncovered is a long-standing practice of torturing detainees, those who still have to be found guilty of the commission of any crime, for sheer fun and pleasure of our men in uniform. With this kind of a culture amongst our law enforcers, should we still be surprised that Vhong did not get any form of police assistance at a time when he actually needed it? I can only commiserate with the plight of Vhong. But still, he should still consider himself lucky. He has the support of  his fans and his television station solidly behind him. For if he were an ordinary Filipino who was tortured, he would surely have become just another anonymous number in the statistics of the number Filipinos who have been tortured and denied any and all forms of remedies.

Bloggers equally protected as journalists


 

BLOGGERS enjoy the same protection as journalists.

 

This was the recent ruling of the US Court of Appeals in  the case of Obsidian Finance Group v. Cox. In this case, Crystal Cox, a blogger, claimed that Obsidian finance company was guilty of tax fraud. The US District Court earlier found Cox guilty of defamation and awarded the finance company $ 2.5 in damages. The lower court issued its ruling anchored on the assumption that since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of” legal malice or a presumption that the defamatory statement is presumed malicious.

 

Further, Cox, as a mere blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case.  The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the US Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”

 

First Amendment refers to an amendment to the Constitution of the United States guaranteeing the right of free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the Government for a redress of grievances.

 

In ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored  x x x in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions”. Citing the US Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

 

The dilemma is precisely because of a lack of precision on who are in fact and in law – journalists. In fact, separate definition on who is a journalist indicates a lack of consensus even from those who profess to practice the profession. For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain”, a definition adopted as well by the UNESCO. This will exclude bloggers altogether from the protection of the proposed shield law. On the hand, the Human Rights Committee in its General Comment, defines  “it is a function shared by wide variety of actors, including professionals full time reporters and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere”.

 

Crystal Cox caseBut outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist”. In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily”, with the latter being given wider latitude for mistakes.

 

But all these miss the point. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of pubic issues”. If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?

 

The US Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right and not just a right of journalists.

 

In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction. In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas”. Certainly, Holmes did not write that only paid journalists could contribute to this market.

 

Tagged 

- See more at: http://verafiles.org/bloggers-equally-protected-as-journalists/#sthash.btKihsIu.dpuf

Women’s Free Speech: Centerlaw hails non-issuance of TRO vs RH Forum


24 January 2014, Manila—

Center for International Law Philippines, Inc. (CenterLaw) hails the decision of the Pasay City Regional Trial Court not to issue a temporary restraining order (TRO) against an on-going international conference on reproductive health at the Philippine International Convention Center.

The 7th Asia Pacific Conference on Reproductive and Sexual Health and Rights is from January 21-24.

According to lawyer Harry Roque, “the non-issuance of a TRO is a victory for freedom of expression and upholds our Constitutional right to discuss important issues.” Roque Jr. argued in open court against the a TRO on behalf of conference organizer Philippine NGO Council on Population Health and Welfare, Inc. (PNGOC)

RTC Judge Petronilo Sulla, Jr. denied the TRO application of Pro-Life Philippines Foundation due to lack of merit.

“It shows to the world that in the Philippines, discussion on reproductive rights is robust in the free market place of ideas,” added Roque who is also CenterLaw Chairperson.

Prior restraint, Tacloban and Corona


 

I am forced to rush the writing of this column because I have to proceed  to the Pasay Regional Trial Court. Apparently, Jo Imbong and  son filed an application for a temporary restraining order to stop the holding of a conference on Reproductive Health currently being attended by 1,500 delegates from all over the world. The hearing this afternoon is on the prayer for the TRO.

I do not know what Jo Imbong alleged in her petition in support of her prayer for a TRO. Media reports say that she seeks to restrain the management of the Philippine International Convention Center, Health Secretary Enrique Ona and the other organizers of the conference since the affair has three panels on safe abortion and access to medical abortion. Media have reported that Imbong and son argued that these panels violate the Revised Penal Code because it encourages the commission of a crime.

I am almost sure that the Revised Penal Code does not punish any incitement to commit abortion, even if Jo imbong’s assertions are correct, but which I very much doubt. This being the case, the mere inducement or incitement is not a crime in this jurisdiction. Accordingly, what the conference will discuss should be treated by the state as protected speech. Accordingly, the prayer for the remedy of injunction will have the effect of prior restraint on the exercise of free speech. Let’s hope that the RTC of Pasay, my home city, will be true to its mandate to uphold the suprmemacy of civil rights over religious dogmatism.

* * *

I was overwhelmed by the readership of and comments on my column on graft in Tacloban. I’d like to thank the almost unanimous expression of support for my view that public international law, the dictates of conscience and the law of humanity does not discriminate on the basis of partisan political affiliations in the delivery of humanitarian assistance to the typhoon ravaged province of Leyte. By way of follow-up, I have since discovered that Dinky “If We Hold On Together” Soliman has been distributing 25 kilos of rice per week for families in Leyte. This is good but I hope not in aid of her election bid in 2016.

Apparently, this large amount of rice was sourced from the recently seized smuggled rice from Vietnam. I suppose  that distributing the fruits of the crime of smuggling to those in need is the most appropriate means of disposing of fruits of a crime. I just hope that smuggling could be curbed once and for all because in addition to depriving our farmers fair access to the market, it also deprives rice traders and allied industries a share of the market. Let’s also hope that the vultures responsible for the anomalous bunkhouses will not profit from the distribution of smuggled rice.

While we’re at it, the anomalous bunkhouses defended by Secretary Rogelio Singson as not being “overpriced” have all been blown away anew by nature. I’d like to hear the good Secretary and Malacañang say again that these bunk houses were not anomalous. Mind you, they were not blown away by a major typhoon. It was more like mere monsoon rains. Let’s refer to these golden bunkhouses as the Yolanda-gate scandal to remind us of the vultures who will make profit from the miseries of others.

* * *

Let me end by saying kind words to Malacañang.

Senator Bong Revilla was off-tangent when he claimed impropriety when the President talked to him to vote to oust Corona from the Chief Justice post. While I am of the view that PNoy certainly has a lot to answer to us, his boss, talking to the senators to rid us of a lying Chief Justice is not one of them. PNoy had nothing to do with the fact that Corona lied through his teeth o when he withheld information about his millions of dollars in dollar deposits in his Statement of Assets, Liabilities and Net Worth.

Moreover PNoy had nothing to do with the bad acting that Corona exhibited in the Senate which sealed his fate as the first Chief Justice removed through impeachment. Corona only had himself to blame for his ouster. Let’s not pass the buck to Pnoy—not on this issue, at least.

 

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Access to electricity is a human right


I was one of those who called over the weekend for Congress to declare a state of national emergency and grant the President the power to temporarily take over the running of both the power generation and distribution industries. This was in response to Meralco’s statement that the temporary restraining order issued recently by the Supreme Court against what could have been Meralco’s biggest increase in electricity cost will lead to power disruptions and brownouts.

I made this call amid testimony made by officials from the Energy Regulatory Commission in the Senate that there is now evidence of “detectable collusion” among power generators. This, they said, was because power generators are also players in the spot market where Meralco purchases its electricity:  “gaming in the spot market and shutting down without justification are clear indications of collusion.”

In response thereto, the chairman of the committee, Senator Antonio Trillanes, concluded: “It’s clear there’s conflict of interest. It appears you shut down here and then you sell there; it’s higher there”.

In the first place, the business of power generation and distribution are imbued with the public interest. This is because these industries sell an indispensible commodity, electricity, to the general public. This is why these businesses are recipients of a franchise to operate. This is a privilege bestowed on the state only to those who are deserving—this is not a right. This is also why when we privatized these industries through the Epira law, Congress still granted the ERC the power to fix rates for electricity. Simply put, these businesses are subject to close regulation because their business will affect the welfare of the general public who are the end users of their commodity.

But my call for the temporary takeover was not only because these companies have breached their obligations to provide a convenience to the general public. On the contrary, I advocated their temporary takeover because in addition to being mere recipients of a state privilege—which can hence be revoked when the interest of the public requires this—what is involved here is a human right, which a State is duty bound to take progressive steps to realize.

Perhaps the confusion over access to electricity as a human right is because there is a dearth of human rights treaties that explicitly mention that it is a human right. In fact, there is only the Convention on the Elimination on Discrimination Against Women that provides for it as a right: “States should take steps to ensure that … women … shall enjoy adequate living conditions particularly in relation to … electricity”.

Despite this paucity of literal sources for the right to access to electricity, it is accepted in the field that this right is covered by Article 11 of the International Covenant on the Economic Social and Cultural Right (ICESCR), which imposes an obligation on State Parties to the Covenant to “recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions.”  Essentially, this obligation requires every nation to provide human habitation with all the other accompanying facilities in it such as electricity. As opined by a leading NGO: “Inadequate power supply is one issue that generates feelings of helplessness, sometimes anger or outright disgust. Experience has clearly shown that the absence of electricity constitutes one single major factor impeding the full achievement of these rights.”

Thanks to an exposure trip sponsored by the Bertha Foundation to India, I have since discovered that a Mumbai High Court was the first to apply this right to access to electricity in domestic law. In ruling that informal settlers have the right to access to electricity, the High Court ruled: “access to electricity should be construed as a human right. Denial of it would amount to violation of human rights… Lack of electricity supply is one of the determinative factors, affecting education, health and a cause of economy disparity, and consequently, inequality in society leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine competing with others.”

A concurring opinion to this decision said: “Lack of electricity denies people equal opportunities in the matter of education and consequently suitable employment, health, sanitation and other socio-economic rights. Right to electricity of a person… is integral to the achievement of socio-economic rights…It is the fundamental duty of the authorities to show compassion to those who are living in huts and tenements for long. When socio and economic justice is the mandate of the Constitution, it is a travesty of justice to deny electricity to the petitioners.”

Let’ s hope that our very own Supreme Court does not only find grave abuse and discretion in this latest Meralco increase. Let’s hope it also goes further and recognizes access to electricity as a human right.

Graft in Tacloban


searchI had dinner recently with Mayor Alfred Romualdez of Tacloban City. That was a first. I have been consistently an anti-Marcos activist since my grade school days. I’ve always thought that the Philippines would be a better place without the Marcoses and their conjugal half, the Romualdezes. Like the Aquino’s, my mother’s immediate family, including the Reyes clan of Pasig that gave the country the great statesman, Jovito Salonga, were victims of the Marcos dictatorship. Scars from those days will probably never heal. And perhaps, they should never heal if only to remind us of what dictatorships can do to a democracy.

But I was touched by the tale of Mayor Romualdez.

We’ve heard over and over again the Palace line that the local government is always the first line of defense. That is true because normally, the national government will not be in the area affected by a calamity.

But this was not the case in Tacloban. Pagasa warned us about the onslaught of Yolanda. This was why P Noy sent Secretaries Mar Roxas and Voltaire Gazmin to Tacloban before the typhoon’s landfall to coordinate disaster preparedness. Ergo, this means that the mantra about the LGU’s being the first line of defense is inapplicable because Malacañang, through the closest allies of PNOY- was already in Tacloban.

Then there was the looting. According to Mayor Romualdez, they repeatedly requested from both secretaries to deploy additional soldiers or policemen immediately after the storm precisely because they anticipated the breakdown of peace and order. This fell on deaf ears and instead, the DILG deployed additional firemen. Naturally, with the people hungry and with no assistance immediately forthcoming, the worse did happen.

Then there is the reason behind the national government’s inaction.  I doubt if anyone who has access to the Internet has not yet seen the infamous video of Secretary Mar demanding the effective resignation of Romualdez as the pre-condition for assistance to Tacloban. I had of course heard about this prior to the video and could not believe it. I had to see the short version and the full version of the video before I could believe that Mar Roxas and P Noy were capable of this.

I have been an ardent advocate for humanitarian law because in times of the worse disasters, both man made or otherwise, humanity deserves humanitarian assistance pursuant to the law of nations, laws of humanity and dictates of conscience. This is otherwise known as the Martens clause. Simply put, civilized people will provide humanitarian assistance to those in need because they are human beings. This is  a right which is not subject to discrimination be it based on race, gender, or membership in a political group. Certainly, the fact that the Romualdezes are the Aquino’s political nemesis is not a reason to condemn the entire population of disaster stricken Tacloban to doom. That at least, is the standards recognized by civilized people of the world.

It comes therefore as no surprise that the media has again reported that despite the misfortune of Tacloban, even the bunkhouses built for the victims of the strongest typhoon in the world would be the source of tongpats for some in the administration. How can these people make money out of the misery of others?

Because the PNoy administration embraced anyone and everyone singing praises to it, including many of those whose business is always to be allied with those in power unabashedly singing “when we hold on together” with the devil reincarnate; we have the mess that we find now in Tacloban.

Make no mistake about it. The fault lies not just with Mar Roxas. PNoy, in his pronouncements in Japan, ratified and adopted Mar’s actions as his own. No wonder the people of Tacloban have lost hope that Malacañang will come to their rescue. Perhaps, it was destined that the people of Tacloban will rise again- no thanks to Malacañang, but with the assistance from civil society and the private sector. Maybe in this manner, we can even spare scarce taxpayers money from benefitting  (again) the plunderers in this administration.

But the administration better watch out. For while it has condemned Tacloban to perish from the face of this earth to benefit its political allies, the law is very clear. Graft can be committed not just by stealing public funds, assuming it is true that the President has not been stealing public funds himself, which I tend to believe. It can also be committed by “(f) Neglecting or refusing,  x x x without sufficient justification, to act within a reasonable time on any matter pending before him for  x x x the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party”.

Refusing to assist calamity stricken Tacloban just to defeat a political opponent and to install political allies in the city will fall in this category of graft.

Human rights highlights in 2013


imagesThis will be an annual tradition. For as long as I have a column to write, I will devote my first column of the year to a summary of the highlights for human rights in the Philippines.

For the year 2013, here are what I consider the highlights:

1. The detention and maltreatment of Tausug Filipinos on a mission to reclaim Sabah. First on my list is the maltreatment suffered by the Filipinos as a consequence of the decision of Sultan Jamalul Kiram of the Sultanate of Sulu to reclaim Sabah. Not only is the Sultanate’s title as clear as the light of day. The arbitrary arrest of Filipinos, which really was a witch hunt, coupled with the disproportionate use of force employed by the federation of Malaysia, and the arrest of journalists from ABS-CBN, GMA and Al Jazeera covering the event, highlight the sorry state of human rights in the Southeast Asian region. I highlighted this event because it should be taken as a reason for our own state to comply with the letter and spirit of human rights law: do not do to others what you do not want to be done to your own people;

2. The challenge to the 2012 Cybercrimes Prevention Law. Not since the first quarter storm and the 1986 people power revolution have we seen the youth of this country united in their opposition against an Orwellian attempt to infringe on freedom of expression in the medium intended to institutionalize the free market place of ideas. What is noteworthy is not just the petitions filed against the law, but the use of the Internet as a medium for protest. Regardless of how the Supreme Court rules on the legality of the law, the fact is the youth have rediscovered activism in a new medium—in cyberspace.

3. The Palace position that it would not pay compensation to victims of the Ampatuan Massacre. The year 2013 was the year when the PNoy administration made clear its position that it would not pay compensation to the victims of the Ampatuan massacre. This is clearly a breach of the state obligation under human rights law to provide compensation to victims of violations of the right to life. Independent of the guilt of the accused in the pending criminal cases against the Ampatuans and their cohorts, the state has the obligation to pay compensation to those whose loved ones were killed by state agents despite the state’s obligation to protect and promote the victims right to life.

4. The Philippine position not to support UN Human Rights Council resolutions condemning the attacks against civilians in Syria. Alleging that neutrality to the ongoing systematic attacks perpetrated by the Assad regime against its civilian population was the best means to protect Filipinos in Syria, the Philippine government declined to support any UN Human Rights Council resolution condemning the attacks against civilians in Syria. In adopting this position of neutrality, Filipino policy makers assumed that bullets used by the Assad regime could distinguish between a Syrian and a Filipino worker in Syria. Clearly, the duty to protect our nationals in troubled spots like Syria requires our government to support all initiatives to uphold and promote both human rights and humanitarian law in these troubled lands. This, in fact, is the only means that we can ensure that our diaspora do not fall victim to rampant and systematic human rights violations;

5. Indiscriminate violation of International Humanitarian Law in the Zamboanga siege. Regrettably, IHL, as the law applicable in armed conflicts, found additional application as a result of the Zamboanga siege. Regrettably, both the MNLF and the AFP were noted to have committed grave breaches of the law which is accepted by all countries in this planet as being non-derogable. Both parties to the conflict were observed to have been guilty of indiscriminate attacks against civilian populations.

The AFP order to indiscriminately detain individuals who cannot recite the Lord’s Prayer as possible MNLF members deserves special mention as this violates both the right of the people to be secure in their persons and the right of the people to liberty;

6. The Supreme Court decisions invalidating the PDAF, the Presidential Social Fund and Illegal Disbursement of the Malampaya funds. The decision declaring the pork barrel expenditures as unconstitutional impacts on human rights because hopefully, government funds could now be used to discharge the state obligation to take progressive steps in the realization of economic, social, cultural and economic rights. Hopefully, the hundreds of billions in taxpayers money which used to go to the pockets of our corrupt politicians can now be used to give realization to such basic rights such as the right to food, water, housing, and public health;

7. Finally, the temporary restraining order issued by the Supreme Court on the implementation of the Reproductive Health Law. This was a big blow to the right of the people to heath, the right of privacy, the right to make very personal decisions such as the number of offsprings that spouses would want, and the right of women to non-discrimination.

I hope that 2014 will usher in both a Happy New Year to all and better compliance with human rights and humanitarian law in the Philippines.

Christmas thoughts on corruption


It cannot be denied that the nation was rocked this year with unprecedented allegations of corruption. And because it is Christmas, let me dwell on this topic in the context of what the Bible says about corruption.

Corruption undermines what God instructs us to do. In Isaiah. 58:66, God instructed the faithful: “Is this not the fast which I choose, to loosen the bonds of wickedness, to undo the bands of the yoke, and to let the oppressed go free, and break every yoke? Is it not to divide your bread with the hungry, and bring the homeless poor into the house; when you see the naked, to cover him, and not to hide yourself from your own flesh?”

Given this mandate, all those who professed to be Christians must be activists by heart. For in a country like ours- with an ever-widening gap between the rich and the poor, Christians were clearly mandated to side with the poor and the oppressed.

Corruption goes against this tenet because instead of pubic funds being spent to alleviate the plight of the poor, it goes to the pockets of those who rely on politics as their business. Instead of going to food, shelter, and education, especially to those ravaged by the recent earthquakes and typhoon Yolanda, it is squandered by those who bought their public office using ironically, public funds at that. Worse, goods given in the name of charity have not been spared by these thieves. Already, the international donor community has lambasted  this government for widespread instances of thievery involving goods intended to alleviate the sufferings of our most unfortunate.

Furthermore, corruption is a kind of injustice. A writer wrote: “after idolatry, justice is the most frequent theme in the Scriptures. God’s people are called to expose and reject false idols, and challenge society where the poor are disadvantaged. The false idol of money gives birth to corruption, and corruption disadvantages the poor. Corruption works by hiding things that should be known by secrecy and lies. To counter corruption we must ‘shine a light’; expose what is hidden and uncover the truth.”

The Bible clearly strongly opposes corruption and bribery. The Bible says: “You shall take no bribe, for a bribe blinds the clear-sighted and subverts the cause of the righteous” (Exodus 23:8). God condemns financial dishonesty again and again in the Bible: “The Lord detests the use of dishonest scales, but he delights in accurate weights.” (Prov 11:1)

“God’s intention for people is flourishing life for all. “(John 10:10)

Corruption hurts the poor the most. Christians should take this to heart because God cares for the poor. God told the Israelites to “leave a portion of their harvest for the poor and immigrants (Lev 19:9-10, Deut 24:19-22). Additionally, everyone’s tithings were collected into town to be redistributed amongst the poor, widows, orphans, and foreigners (Deut 14:28-29). Likewise, in the book of Acts, the early Christian community (Acts 2:44-45, 4:32-35) “organized to shared their possessions in common, for the common good”. Individual charity is incredibly important to Christians; however, organized redistribution through taxation is crucial to ensuring the poor are cared for.

The prophet Isaiah tells us a what things will be like when God’s king is on the throne: “His governance and reign is completely free from corruption and injustice.”(Isaiah 9:6-7)

This Christmas season, let us reflect on the true spirit of Christmas: “For to us a child is born, to us a son is given, and the government will be on his shoulders. And he will be called Wonderful Counselor, Mighty God, Everlasting Father, and Prince of Peace.”

Merry Christmas to one and all!