Laude: No deal!


I was shocked when Noli De Castro woke me up last Monday to inquire if there was truth to a newspaper report that the Laude family had asked for P36 million and six US visas as settlement for the murder case against Joseph Scott Pemberton. Pemberton had rested his case last Tuesday with the presentation of his third and last witness, Dr. Raquel Fortun. The defense asked and was granted time to file their written offer of evidence and the prosecution was give an even time to comment thereto. Thereafter, the court granted what really is an optional oral summation on  September 14  and set the promulgation of the case on December 14.

I was shocked because with the defense resting their case, it is now a legal impossibility for the family to accept a settlement, even if it wants to. Unlike the previous case of “Nicole” for rape, which could legally be settled, the case versus Pemberton is for murder and can no longer be settled after plea-bargaining because murder is a felony committed against the state.

I do concede that the practice in reality is different from the theory. Criminal cases are settled all the time with private complainants executing affidavits of desistance claiming that the filing of the case was due to a “misunderstanding”. Such was the case with “Nicole” who even belied the fact that she was raped. Naturally, the prosecutors would be compelled to move for dismissal, but not because of the settlement. The ground would be in the absence of a complainant; there would be an impossibility to prosecute. The exceptions to the prohibition on settlement in criminal cases are private crimes such as rape, which can even be settled if the accused should marry the offended party; and “quasi-crimes”, because they are felonies committed not because of criminal intent but because of recklessness or negligence.

Murder, I reiterate, cannot be settled beyond the plea bargain stage.

Even the Rules of Court provision on plea bargain is new. It was not in existence 25 years ago when I was in law school. The rule against compromising criminal cases was absolute when I took up my criminal procedure under the late Justice Serafin Cuevas. I supposed it was introduced as a means of facilitating settlements but subject to the concurrence of two conditions: one, the private complainant must consent, and two, there must be a plea to a lesser offense. The latter condition means that the accused must be convicted of a crime despite the extinguishment of the civil liability.

I am not unmindful that as a private prosecutor, I could suffer the same fate as my law school classmate Evalyn Ursua, private prosecutor for “Nicole”. One fine day, Evalyn found herself fired by Nicole and substituted by another lawyer who signed the affidavit of desistance together with “Nicole”. The possibility is even more pronounced since we have the same City Prosecutor as in the Nicole case; and worse, the counsel of Smith is now Undersecretary of Justice designated as in-charge of the Laude prosecution. The difference though is Jennifer is dead and cannot sign an affidavit of desistance. Moreover, unlike Evalyn who, as our class valedictorian, is far more reserved and academic in her actuations than me; I will be very clear: I will move for the disbarment for any lawyer, private or public, who will talk directly to my clients for any compromise of the Laude case. If Evalyn was more reserved in the manner by which she dealt with the counsels of Smith, expect no such reservations for me. I will scream and kick and will give any such unethical lawyer what they truly deserve: to be purged from the roll of attorneys.

***

On another issue, I was not surprised that the Iglesia ni Cristo ended their five days of mass protest after “they have come to terms with government”. I was vocal against what I saw was a violation of their freedom of religion precisely because I was sure that a terribly unpopular administration would have to strong-arm the Iglesia into supporting its slate in the upcoming 2016 elections. I am sure that Mar Roxas and Leila De Lima got what they wanted.

I do not take this decision against the INC. I completely understand their predicament. The guarantee against state interference in church affairs exists precisely because governments will always attempt to infringe on it. I am only hoping that after 2016, the INC can call it quits with PNoy and his cohorts and can join the nation in henceforth demanding accountability and good governance from the future government.

Had PNoy’s cohorts allowed the legal system to work, the issue that should have been resolved by the Court is whether the internal disciplinary procedures of the INC was consented to by one of its high-ranking ministers and hence, covered by the principle of benevolent neutrality. As it stands, PNoy’s machinations deprived us of what could have been another important INC contribution to our jurisprudence on freedom of religion.

This post first appeared in http://manilastandardtoday.com/2015/09/03/laude-no-deal-/

CANCELLATION NOTICE: Filing of Motion for Preventive Suspension of BOC Lina at Ombudsman


References: Atty H. Harry L. Roque Jr 09175398096 and Atty Joel R. Butuyan 09175229613

Due to unforeseen circumstances, the scheduled filing of the “Motion for Preventive Suspension against BOC Lina” by Omniprime ​at the Ombudsman today, Tuesday, 1 September 2015, at 1:30 pm will not proceed.

Apologies to everyone for the inconvenience this has caused.

Omniprime to file Motion for Preventive Suspension against BOC Lina at the Ombudsman on 1 Sep 2015 at 1:30 pm


Press Release
References:  Atty. H. Harry L. Roque Jr. 09175398096 and Atty. Joel R. Butuyan 09175229613

 

Omniprime Marketing Inc, the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system,  will file a Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina at the Office of the Ombudsman on 1 September 2015, Tuesday, 1:30 pm.

 

Omniprime officials will be accompanied by their lead counsels,  Atty. Harry L. Roque Jr and Atty Joel R. Butuyan.

 

Date:  Tuesday, 1 September 2015

Time: 1:30 pm

Venue: Office of the Ombudsman

Centerlaw warns DOJ against overreaching in INC case


Centerlaw release
Reference: Prof. Harry L. Roque, Jr. 09175398096

 

The Center for International Law (Centerlaw) cautioned the Department of Justice yesterday against overreaching in its investigation on the allegations of an expelled minister of the Iglesia Ni Cristo against the influential indigenous Filipino church.

 

“The freedom of expression and of religion occupy the highest rungs of our constitutional values,” said Prof. Harry L. Roque, Jr., chair of the free expression advocacy group. “In fact, the people’s right to freedom of religion is stymied if they are denied their right to express such freedom.”

 

Prof. Roque stated, “In a modern society, the state and the church must recognize the principle of differentiated responsibility. In this case, the state recognizes that it has no competence to rule on theological or doctrinal disputes. But at the same time, the church must also see that it is the legitimate interest of the state to investigate where a crime has been committed.”

 

The idea of differentiated responsibility – or the recognition of the sovereignty of each sphere of society within its own orbit – is crucial to the survival of a pluralistic and just society.

 

Prof. Roque said the DOJ cannot prevent members of the church from practicing their faith, unless it is shown that “there is a clear and present danger” that what they are doing is already injurious to the life, liberty and property of others.”

 

“Freedom of expression is central to our communal quest for the truths that animate who and what we are as a society,” he said. “We deny such freedom, we tell ourselves we are afraid of these central truths and find no relevance for them in our daily lives, and to the meaning of our existence.”

Enrile and the laws of humanity


I have never been a supporter of Juan Ponce Enrile. He was the strong arm of martial law and he got away with it. While Marcos and his cronies had to flee the country after 1986, he stayed as a hero and managed to keep his loot intact. Even at the height of his popularity as Senate President and Presiding Officer during the impeachment trial of former Chief Justice Renato Corona, I was disappointed to find out that his seemingly erudite handling of the proceedings was because he was getting dictations from his junior associates through an ear piece. Simply put: I am not and have never been a fan of JPE.

But when media asked me a year ago about my opinion on the plunder charges filed against him, I opined that the evidence against him was very weak. Consider: neither Janet Lim Napoles nor any of her associates, ever testified that they had directly talked or dealt with JPE. Furthermore, JPE did not sign any document that would prove any illegal transaction that could qualify for plunder. At most, the evidence pointed to the culpability of his former Chief of Staff, lawyer Gigi Gonzales. Even then,   I find it hard to believe that Gigi would profit from the public coffers or would leave evidence that would incriminate her. So my guess is that even the evidence against Gigi will not hold water.

I was therefore not surprised when the Supreme Court granted JPE bail. As a human rights advocate, I believe the right to liberty is such a cherished right that it can only be denied in capital offenses where the evidence of guilt is strong. Ergo, the presumption is that all accused are entitled to bail except when the evidence of guilt is strong.

While I have not followed closely this latest trial of JPE, I surmised that JPE’s position is that since the information filed against him is unclear as to how he allegedly broke the law, the Ombudsman should be compelled to specify the basis for his culpability. This is why he filed a “bill of particulars”, or a motion to compel the Ombudsman to be more specific in her allegations.

Apparently, the Supreme Court agreed with JPE with the additional reasoning that being 91 years old, he is not a flight risk and should be released on humanitarian grounds.

Critics of this decision, Associate Justice Marvic Leonen included, criticized the decision as deviating from the law and jurisprudence and amounted to special treatment for JPE.

Being the anti-Enrile person that I am, I submit the dissenting Justices are wrong.

The dissent substantially is that the grant of bail is because JPE is rich and powerful. Wrong. The majority decision, assuming that it is even solely on the ground of humanitarian reason, does not violate the equal protection clause. Simply put, this clause is a constitutional guarantee that persons similarly situated should be treated alike. Leonen et al say that the basis of distinction is because Enrile is a Senator and is rich. I submit that the correct basis of distinction is that he is 91 years old. To violate the equal protection clause, Justice Leonen et al should show that there are other 91-year-old individuals being prosecuted for a capital offense and denied bail. I am sure that no one as old as Enrile is detained for a non-bailable offense, or is in jail by reason of a final and executory conviction. Why? Because our penal system recognizes that senior citizens, and those who are sick, should be the first to be released from detention on humanitarian grounds. Every year, the DOJ’s Board of Pardon and Parole prepares a list of convicted felons for release on humanitarian grounds. Again, I am so sure that there is no 91-year-old felon that continues to be behind bars. So if convicted felons could be released because of their senior years as a humanitarian gesture, why should not a mere accused —enjoying the presumption of innocence—who is also a senior citizen, not be released from custody on humanitarian grounds?

Secondly, the minority is wrong when they opined that his release on humanitarian grounds is bereft of legal basis. Under our Revised Penal Code, a trial judge may recommend that a person 70 years of age or older should no longer serve the sentence of imprisonment on humanitarian grounds. Again, this has to do with convicted felons. So why can’t the Supreme Court, by analogy, the collegiate boss of individual lower court judges, release a senior citizen also on humanitarian grounds?

Perhaps, the minority’s error is in failing to recognize that all civilized societies recognize the laws of humanity as binding on all states. This finds articulation in the so-called “Martens clause.” This provides that in default of a specific legal basis, humanity shall continue to be protected by public international law, the dictates of conscience, and the laws of humanity.

I rest my case.

“HOLLOW BLOCK FACED” LINA: SUFFERS SECOND REBUFF BY MANILA COURT


Please click here for a copy of the omnibus order

Lawyer Harry Roque, Jr. called on Bureau of Customs Commissioner Alberto Lina to resign from his post, calling him hollow block faced. “Commissioner Lina should resign immediately. He has been rebuff by both the Executive and Judicial Departments, unless he is hollow block faced in his lack of self respect.”

A day after President Ninoy Aquino reversed   his order to open and tax balikbayan boxes, Customs Commissioner Alberto Lina suffered a   second rebuff when the Regional Trial Court of Manila reversed his decision to cancel a P650 million bidding contract aimed at curbing corruption and smuggling activities at the Bureau of Customs.

The contract cancelled by Lina   is   alleged to be the long sought-after solution to rampant smuggling in the Philippines. It aims to implement a fully electronic, paperless and human contact-free system of recording and monitoring   of   Bureau of Customs transactions. At the same time, the project will link the Philippines with   the other ASEAN countries customs systems in time for the implementation of the ASEAN   free trade in December 2015

In its Order dated August 24, 2015,   the Regional Trial Court ordered Lina to stop the cancellation of the project and   was directed to continue with the signing of the contract and to issue the winning bidder a notice to proceed with the implementation of the project.

In its August 24, 2015 Omnibus Order, the Court enjoined Commissioner Lina and his co-respondents from implementing both the 6 May 2015 Letter of Lina aborting the competitive bidding of the PNSW 2 Project and the 7 May 2015 Cancellation Notice of Jose Tomas Syquia in the meantime that the case is heard upon its merit.

The Bureau of Customs and the Balikbayan Box


Press Release
References: Atty. H. Harry L. Roque Jr. and Atty. Joel R. Butuyan

The public is invited to attend our press conference this Tuesday, 25 August 2015, at 11:30 am, regarding Bureau of Customs Commissioner Alberto Lina’s move to inspect/tax balikbayan boxes and to cancel a PhP 650-million contract to establish an integrated customs.  The contract would have armed the BOC with a modern system to catch fake, tampered, and reused documents, and other devious schemes resorted to by big time smugglers.
 
Date:  Tuesday, 25 August 2015
Time: 11:30 am
Venue: 3/F Conference Room, Bocobo Hall, UP Law Center, College of Law, UP Diliman

The Iglesia’s religious freedom


I’m perplexed and disturbed by Justice Secretary Leila de Lima’s continuing investigation against the Iglesia ni Cristo for an alleged incident of abduction. To begin with, the National Bureau of Investigation, the investigative arm of the DOJ, had already conducted an investigation and has concluded that there was no abduction. According to Atty. Manuel Eduarte, head of the NBI’s Anti-Organized Transnational Crime Division, the case of the alleged abduction is “case closed.” Despite this, De Lima has declared that she will continue her investigation.

Doe this mean that De Lima des not trust her own investigative branch? Or does this mean that as an election lawyer prior to her entry into government 7 years ago, that she is better qualified to conduct the investigation even if she has absolutely no experience as a crime investigator?

The fact that she is a sitting Secretary of Justice insisting on the investigation of a closed case and despite the absence of a complainant brings to mind the act of   former secretary of Justice, Raul Gonzalez, threatening telecommunication and broadcast companies against the playing of the “hello Garci” tape. According to the Supreme Court, such a threat, albeit said verbally and not reduced into writing, constitute a violation of freedom of expression: “In resolving  this  issue,  we hold that  it  is  not  decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions.   x x x  Any act done, such as a speech uttered, for and on behalf of the government in an official  capacity  is covered by the rule on prior restraint.  The concept of an act does not limit itself to acts already converted to a formal order or official circular.  Otherwise, the non-formalization of an act into an official order or circular  will result in the easy circumvention of the prohibition on prior restraint.”  Ergo, mere utterances made by De Lima may be sufficient to violate protected rights.

While I concede that freedom of speech is not involved in De Lima’s continuing resolve to investigate the INC, the reality is that freedom of religion is as important as freedom of expression. Under the Constitution, freedom of religion is a guarantee that the state will not interfere with the freedom to believe, referred to as the “free exercise clause”; and that the state will not favor a religion, referred to as the “establishment clause.” Under the latter, the duty includes the obligation not to interfere with the affairs of a church.

Perhaps, De Lima’s action may be justified had there been no prior investigation conducted by competent authorities. But the best investigative arm of the government has precisely declared the matter as “case closed.” This, then, makes De Lima’s acts suspect for violating the INC’s freedom of religion. It is tantamount to interference with what clearly is an internal strife within the INC, assuming that there indeed is an ongoing one.

What makes matters worse is that like me, De Lima is also mulling a run for the Senate. It is no secret that the INC is politically influential because it resorts to bloc voting in elections. Her act therefore, aside from constituting unjustified interference with church affairs, appears to be politically motivated. But unlike ordinary politicians who will court the INC, she is resorting to a modified form of “hulidap”: political blackmail. Her act could be construed as “support me and my party or I file charges against you in court.”

All public officials, and even ordinary citizens, have the duty to uphold our penal laws. That is why even ordinary citizens are empowered to resort to citizen’s arrest when a crime is committed in their presence. So did De Lima witness such a crime or is she inventing one given the NBI’s earlier terminated investigation?

The INC has had invaluable contribution to our jurisprudence on freedom of religion. In one case, our Supreme Court nullified a law that recognized a “closed-shop” policy that prohibits the hiring of non-union members. Jovito Salonga, my grand uncle, successfully argued that the law violates the religious freedom of the INC since it prohibits its members from joining unions. In another case, which is one of my favorites, the Supreme Court declared that the broadcast of the INC’s attacks against the catholic church is protected speech: “The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

To be sure, the INC is no stranger to government’s persistent bullying. What De Lima and her party mates should learn from history is that the INC has never given in to such bullying and will go to court to assert its freedom of religion.

Kudos to the INC!

De Lima: Respect Freedom of Religion


Centerlaw release
Reference Prof. H. Harry L. Roque, Jr.

UP College of Law Professor Harry L. Roque today called on Justice Secretary Leila M. De Lima to respect the freedom of religion of Iglesia ni Cristo. “Sec. De Lima should cease and desist from her witch hunt of Iglesia ni Cristo. In the absence of a complainant, she should not investigate the alleged intramurals within the Iglesia ni Cristo. To persist in investigating the local church would be to violate the constitutional right of freedom of religion which includes both a guarantee of freedom to believe and non-intervention with church affairs.”

Roque further added that Philippine jurisprudence has respected the Iglesia ni Cristo’s religious tenets including its right not to allow its members to join labor unions. In another case, the Philippine Supreme Court upheld the stinging attacks of the Iglesia ni Cristo against the Catholic Church in a television program. In that case the Supreme Court ruled that “the bedrock of freedom of religion is freedom of expression. The antidote to bad theology is more theology.”

Roque also express dismay that De Lima’s witch hunt will lead to a chilling effect on the exercise of freedom of belief. “If there indeed was a crime committed, let the complaint be filed with the police, the fiscal’s office and eventually the court. Unless such a complaint is filed the Justice Secretary should leave the Iglesia ni Cristo alone.”

State universities


Two issues have hounded two state universities lately. The first was why, according to Malacanang, the Cavite State University required its students to watch Vice President Jejomar Binay’s True State of the Nation Address.

The other is the lack of dormitories in my university, UP Diliman.

I have previously written that the Vice-President’s TSONA was simply terrific since it outlined the not- so-good state of the nation. Predictably, Malacanang dismissed it as “charot”, or gay lingo for non-sense (I think).

Strangely though, while the palace belittled the message of the Vice-President, it engaged in witch-hunt against the officials of the state university where the address was made. This was reminiscent of Malacanang’s attempts to infringe on freedom of speech and academic freedom in UP Diliman.

I remember that at one point during the Ramos administration, then President Ramos attempted to scuttle the talk of freedom fighter and Nobel prize awardee Jose Ramos-Horta of East Timor. This was to placate Indonesia’s protest since it was then in military occupation of East Timor. But pursuant to the tradition of UP Diliman, the University resisted the Malacanang intervention and even went to court to question the palace intervention. While the University won the litigation, the ruling came a bit late since meanwhile, the Horta talk had been cancelled. Years later, Horta would make a heroes welcome to the University as the founder of the newly independent state of East Timor. UP, on the other hand, also celebrated the return of Horta as its way of asserting both freedoms of speech and academic freedom.

One thing that despots in Malacanang seem to have forgotten is that freedom of though is the bedrock of universities. Ergo, not only is freedom of thought cherished in universities, it the freedom that enables freedom of thought and freedom to engage in the search for the truth. Infringe on these rights and you make a mockery of the concept of a university as a community engaged in the search for both truth and excellence.

Cleary, Malacanang’s witch-hunt of the university officials who allowed the VP to speak at the Cavite State University is because they were adverse to the truth. Fearing that the people would believe that economic development has so far benefitted only the rich, they now seek to sow fear in the hearts of academicians with the message that the truth must not be allowed to be articulated in hallowed university grounds. But did they succeed? Well, I would say no if only because the studentry has taken the cudgels for the university- highlighting the right of the studentry to information and the truth.

The other controversy that hounded another state university was a television news report that showed freshman students of UP Diliman sleeping on the sunken garden of the university. I’m happy at the condemnation that arose form the news report. It only shows that despite government’s policy of “bahala kayo sa mga buhay nyo at buhay naman kayo.” Many citizens are still of the conviction that education is a right particularly at the premier state university. While University officials were quick to dismiss the story as featuring radical students out to make a story, the truth though is there are nonetheless real students currently sleeping at the UP Union office for lack of dormitory space.

I did hear Diliman Chancellor Michael Tan admitting in a radio interview that it was lack of foresight that led to the current dormitory crisis at the state university. While the student population has grown tremendously in the past years, the University has built only two semi-private dormitories and a new dormitory for law students where monthly fees cost 3 thousand per month. Contrast this with the 400 pesos that the regular dormitories charge the lucky students who have qualified to stay at the existing dormitories.

The bigger problem is the P oy’s administration’s apparent propensity to cut the budget requests made by state universities such as UP.

My personal suspicion is this is because many in this administration are not from UP, either because they were not smart enough to pass the entrance test or because they were born with silver spoons that studying in a school like UP would be extended “slumming”. The data would speak for themselves. In 2015, UP’s budget request was slashed by P2 billion. UP has since been given a budget of P13 billion, almost P2 billion of which is earmarked for the Philippine General Hospital, the biggest teaching hospital in the country that caters to indigent patients.

Of the remaining P11 billion, P6 billion went to salaries, P3 billion went to programs, and P4 billion went to capital outlays such as new academic buildings. There was no money allotted for new dormitories. The end result of course is while the University continues to attract the brightest amongst the poor students, lack of affordable housing would mean they couldn’t afford the cost living in Diliman.

Fortunately, the end is near for this administration. I could only hope that the people would elect a new President who had the experience of being a true iskolar ng bayan: meaning bright but poor. A cacique or a princess would mean more of the bad thing: bad news for the iskolar ng bayan.

This post first appeared in http://manilastandardtoday.com/2015/08/13/state-universities/

A terrific speech


In stark contrast to P Noy’s State of the Nations Address, VP Jojo Binay’s True State of the Nation Address was simply terrific.

To begin with, it was short, concise and straight to the point. It took no more than 50 minutes, which is the right length of a major speech. It was based on data and figures on the economy, and it thanked the proper individuals: those who sacrificed their lives for the nation, the SAF 44 and not just hair dressers and yayas — with no offense meant to the latter.

It was a speech that articulated the unspoken views of a clear majority of our people: that is, from the very beginning of his term, P Noy’s administration was both palpak and manhid. VP Binay rightfully focused on three of the people’s woes: MRT, Luneta, and Mamasapano.

I would be lying if I were to say that I take the MRT and LRT regularly. I don’t. But because I deliver regular lectures, too, at Fr. Rannie Aquino’s San Beda Graduate School of Law, I would always take the LRT2 from Katipunan and get off at Legarda. One time, I was very late for one such lecture that I opted to try the MRT line from SM North near UP to Caloocan and from there, the LRT to Manila. I was shocked! The LRT was jam-packed with people, the driver obviously callous and kept on stepping at the brakes making people fall forward and backwards. It was simply hell!

The only consolation for me was that I do not take the trains regularly, unlike the ordinary person.

Yesterday, after I guested at UNTV, I saw the line at SM North. It literally should be no less than 2 kilometers long snaking through a covered walkway that crossed EDSA. How can this administration promise the straight path when people are literally stuck in the MRT queue!

The fact that Binay emphasized this administration’s neglect of the MRT and LRT was to articulate the everyday curse experiences by the train-riding common tao against daang matuwid.

VP Binay then detailed the kapalpakan of Luneta, Tacloban, Zamboanga and Mamasapano. The Luneta hostage incident illustrated early on not only the incompetence of P Noy, but his callousness as well. It so happens that P Noy and I have the same favorite restaurant for siopao along Roxas Boulevard. The friendly waiters there confirmed that as the PNP proved incompetent in dealing with the lone hostage taker, PNoy, meanwhile, had a grand time consuming our favorite siopao.

Tacloban illustrated Mar Roxas’s penchant for prioritizing partisan politics over the need to provide humanitarian assistance to the devastated city of Tacloban. People will never forget the image and words of Roxas telling Mayor Alfred Romualdez that unless he signed a sheet of paper, Tacloban should not expect assistance form the national government simply because he was a Romualdez.

That was enough for me to forever dismiss Mar Roxas from all my lists.  That incident resulted in our common conviction that we will have nothing to do with Mar since he failed to heed the dictates of humanity and pursued instead the dirty ends of partisan politics.

Anent Mamasapano, it should be clear to one and all that the SAF 44 were martyred because of PNoy’s insistence to have his trusted Alan Purisima lead an ill-planned police operation. It is also clear to one and all that PNoy allowed them to be martyred to please Ging Deles and their common friends at the MILF.

Binay also articulated what is on the mind of every Filipino on the BBL. He said that any peace agreement must conform with the Constitution, must be inclusive, and must not be rammed through Congress.

Perhaps the most noteworthy portion of the TSONA was the true state of the economy. According to Binay, economic indicators cited in the SONA were somehow deceiving because increases in economic indicators did not translate to better live for the poor. Citing the recent survey conducted by the SWS where five out of 10 Filipinos claimed to be in poverty, Binay concluded, “After five years, many are still poor”.

Binay also said that while country’s foreign direct investments (FDIs) exceeded P6 billion ($131.24 million) in 2014 this is still he lowest FDI among countries in Southeast Asia. He also decried: ““Kahit na totoong record-breaking ang foreign direct investments noong 2014, hindi rin naman ito nagresulta sa trabaho para sa nakararami,”

He said that 21 percent of the FDIs went to financial and insurance activities, which did not generate enough jobs.

But the real highlight of the speech was something that I did not expect. After castigating PNoy for thanking everyone but the martyrs of the SAF 44, Binay read individually the names of the fallen heroes. I would say that even for this alone, a recognition to the heroes made by the second highest official of the land, Binay’s TSONA would go down in history as one of the best public addresses in Philippine history.

I am happy too that some broadcast outfits carried the TSONA live. This allowed the people to make their own opinions free from the bias hurled against the speech by many commentators, disguised as journalists. As for the Malacanang reaction to the speech, Lacierda’s bad mouth was very scarce probably for the first time. This may be because it really is difficult to argue against the truth.

I do not know if the TSONA would be enough to restore VP Binay as the leading presidential candidates come September, when the pollsters go to the people anew. One thing is certain though: ordinary people who heard the TSONA can now find satisfaction in that Binay articulated their views. In a democracy, this is priceless.

Philippines should push Canada on toxic wastes


For reference:
Atty. Harry L. Roque, Jr. 09175398096
Chairperson, Center for International Law

 

 

The Philippines should vigorously pursue the liability of Canada under international environmental law – in particular under the Basel Convention – for exporting to the country without the latter’s consent 50 40-footer container vans of hazardous wastes, according to a UP professor of international law.

“It’s a shame Canada, which fashions itself to be a world leader in the promotion of the Rule of Law, is acting as if it does not know what its duties are as a party to the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal,” said Prof. Harry L. Roque Jr., who teaches international law at the UP College of Law and chairperson of the Center for International Law, a non-profit dedicated to promoting binding international legal norms in the domestic setting.

To begin with, Canada is acting deviously on the controversy as it violated the Basel Convention requirement that to begin with, it cannot export to the Philippines any hazardous waste without the latter’s written consent, said Prof. Roque.

Like Canada, the Philippines is a party to the multi-lateral treaty.

The issue has become a sore point between the two countries, with Canada eschewing responsibility over the shipment and passing it on to Ontario-based Canadian firm Chronic Inc., and its Philippine partner. Chronic allegedly shipped the vans to the Philippines in 2013 as recyclables. But the Bureau of Customs, upon inspection, found these to be filled with “toxic” wastes.

Prof. Roque said Canada is responsible for the repatriation of the wastes back to its own shores under the terms of the Basel Convention.

And while the shipment was mis-declared by its Canadian exporter and its Philippine partner as that of “recyclable plastics,” Canada cannot claim it did not know the contents of the container vans because as the state of origin, it had the obligation to inspect the contents of the shipment, according to Prof. Roque.

“In addition, under the Basel Convention, if the shipment cannot be completed under the authorized terms or within the provisions of the Convention, the state of export – Canada – must re-import the shipment unless an alternative arrangement for proper disposal can be made within ninety days of notification by the state of import,” he said.

“Thus even assuming that the Philippines legally consented to receive the shipment, by the terms of the Convention, Canada remains responsible for the waste up until its disposal, and may be entirely liable for costs if fulfillment of the contract becomes impossible,” said Prof. Roque.

The Canadian embassy in the Philippines insists it is not liable for anything.

He said that if Canada refuses to accept responsibility for the wastes, the Philippines may take the issue up to an international arbitral panel or to the International Court of Justice.

“This not a question of cost but of principle,” he said. “The cost will be recovered later on, but Canada should be made to face up to its obligations under international law not just to the Philippines but to all the parties to the Basel Convention.”

A lousy speech


That was the lousiest State-of-the-Nation Address I have ever heard. To begin with, the President showed disrespect to his listeners by speaking for more than two hours. The duty to report on the state of the nation is mandated by the Constitution itself. In the discharge of this obligation, the President should have been more considerate to the Filipino people struggling to survive on a day-to-day basis. Simply put, it was gross disrespect for the people- whom he described as his bosses- when he took more than two hours of their time largely for matters that should not have been included in a SONA in the first place.

After five years, the people have earned the right to expect that the President will summarize his accomplishments thus far in the SONA. He instead wasted the first 50 minutes of his speech engaging in his favorite pastime: bashing everyone for the mess that he found when he assumed office. This would be fine had this been his first and second SONA in order to lay the basis for the Herculean task of rebuilding. But five years later, this is wholly unacceptable. Yes, there were obstacles in the beginning of his term which could be attributed to his predecessor. But after five years in office, he should have been able to address these challenges had he only governed well. The reality is that PNoy spent a lot of time condemning the past regime because he has failed to govern.   In other words, he continues to rant about the past because he did nothing to clear the mess that he found at the beginning of his term. Ironically, his never-ending tirades against PGMA are also a strong condemnation of his own malfeasance and misfeasance.

Then he enumerated his alleged accomplishments. He began by singling out his appointees for their integrity. But shouldn’t the accomplishments of these appointees be attributed to them and not to the appointing power? He cited Ombudsman Conchita Carpio-Morales, Supreme Court Chief Justice Maria Lourdes Sereno, former Commission on Audit Chairperson Grace Pulido-Tan, and Bureau of Interval Revenue Chief Kim Henares as examples of his appointees with integrity.

But what about the scoundrels such as former Philippine National Police chief Alan Purisima, Agriculture Secretary Proceso Alcala, Technical Education and Skills Development Authority Secretary Joel Villanueva, Transportation and Communication Secretary Joseph Abaya, former Health Secretary Enrique Ona, Budget Secretary Butch Abad, Moro Islamic Liberation Front collaborator Teresita Deles, PEACE bond scam mastermind Corazon Soliman, all of whom have been embroiled in one scandal after another?

It seems clear that while PNoy cited four gems among his appointees, they simply were outnumbered by rotten appointees embroiled in never ending scandals.

He cited alleged gains in the economic front including unprecedented GNP and GDP growth, increase in foreign direct investments, and supposed increase in employment. While all these economic indicators may have indeed increased, the question is: did it benefit the poor among us? The answer is a resounding NO! Bayan Muna Party-List Rep Neri Colmenares cites that the wealth of Filipino billionaires listed by Forbes magazine increased by 250 percent from 2010 to 2015. Compare this to the increase in the minimum wage for the same period, which increased by a measly 3.5 percent. This means that while economic indicators indeed increased, it did not translate to inclusive growth. Hence, the rich became even richer and the poor became poorer.

He then enumerated one infrastructure project after another. Goodness! This should not have been included in a SONA simply because any government, provided there is a national budget, could have built the infrastructure. He also boasted about the Conditional Cash Transfer. How can he claim credit for a program started and implemented by his predecessor?

If at all, PNoy could only claim credit for legislation such as the RH Law, the Competition Law and the Cabotage Law. The problem here is that credit should go to Congress for these laws and not to the President. Moreover, for every law passed, there was a bill not enacted to law. The FOI bill is one such bill.

The worst part of the speech was the never-ending expression of gratitude to his family, hairdresser and Yaya. At one point, I thought PNoy had to thank his yaya and hair dresser because they were true members of his Cabinet, responsible for his lousy policies. Levity aside, when the Constitution required the State-of-the-Nation Address, it was not so that the President could thank everyone in his life, both private and public. He can do that as he leaves Malacanang before  noon  on  June 30, 2016.

So what did he not say? Plenty.

There was nothing on his promise to protect and promote human rights. This is consistent with his policy to completely ignore human rights, including the fight against extra-legal killings, enforced disappearances and torture.

There was no mention of what he intends to do to the SAF 44. Maybe this too is consistent with his position that the SAF 44 had to be sacrificed to appease his new BFF, the MILF.

There was no mention of how he would oversee clean and peaceful elections. Maybe because he could not care less and simply wants to end his term. Maybe because his anointed one, who is currently lagging in the polls, intends to cheat? Who knows!

Despite all the shortcomings in the last SONA, the best news is that it was indeed his last! This was the good news in the SONA.

Good riddance, PNoy, and may the nation never choose a college council President ever again, particularly one who was also a foreigner for 13 years.

This post first appeared in http://manilastandardtoday.com/2015/07/30/a-lousy-speech/

The true state of the nation


In fairness to this administration, it would be difficult to discuss the true state of a nation in a 700-word commentary. So instead of discussing all aspects of our lives under PNoy, I will focus on two particular areas, to wit: the promised anti-corruption drive of the administration under the slogan of “daang matuwid,” and the promise to uphold and protect human rights.

Pulse Asia in its Ulat sa Bayan had grim findings on how the public perceives PNoy’s promise to pursue the straight path. In brief, the public thought this was a promise terribly broken, In fact, only 29 percent of the people agreed that PNoy pursued the path that was promised. Thirty-six percent disagreed while 34 percent were undecided. Ana Maria Tabunda posited that the people perceived Daang Matuwid as a broken promise because of the discovery of the Priority Development Assistance Fund scam which involved all politicians, whether those with the administration or the opposition. The fact that charges were filed against three opposition senators only made matters worse since the people perceived these cases as evidence of selective justice. Indeed, the fact that no one from the administration has been charged for what is clearly an institutional form of corruption for Senatongs and Tongressmen contributed to the people’s perception. According to Tabunda, 53 percent of the people thought that it was unfair for the administration to prosecute only members of the opposition, while only 30 percent thought that this recourse was fair.

In truth and in fact, the people’s perceptions must have also been affected by the fact that the President has been playing deaf and dumb to the misfeasance and malfeasance of his KKK:   kaibigan, kaklase and kabarilan. There is the Agriculture Secretary Proceso Alcala who has figured in one scam after another. He continues to have the trust and confidence of PNoy. There too is former PNP Chief Alan Purisima, who despite SAF 44, continued to have the trust and confidence of the President. There is also Technology Education and Skills Development Authority chief Joel Villanueva and Former Customs chief Ruffy Biazon, both implicated in the PDAF scam. There is DBM Secretary Butch Abad who remains among the most trusted by PNoy despite the Supreme Court’s rulings invalidating both PDAF and DAP, both of which were implemented by Abad. Former Senator Panfilo Lacson recently claimed that Abad had resurrected both anomalies through the so-called unified accounts codified system.

Then there was his   promise to protect and promote human rights, in general, and specifically, to pursue justice for the victims of the notorious Maguindanao massacre that claimed 58 lives. This was dubbed as the single most murderous attack against journalists in the world. Under PNoy, the killings went unabated. He has utterly failed to investigate, prosecute and punish the perpetrators of these killings. Karapatan claims that there have been 262 cases of extralegal killings in the country under PNoy. Meanwhile, there has only been one conviction for these killings, the case of the hired gun man in the killing of environmentalist and broadcaster Gerry Ortega, who confessed to the killing. In any case, Justice Secretary Leila De Lima admitted in a UN Meeting in Strasberg that the conviction rate for extralegal killings in the country remains at a pathetic 1 percent.

Aquino reneged on his promise to accord justice to   the victims of the notorious Maguindanao massacre. To date, the quest for justice against the patriarch of the Ampatuan clan has been mooted with the recent death of Andal Ampatuan Sr. Meanwhile, no less than 90 of the 197 accused remain at large, while the trial is still at the bail proceedings. It took the Supreme Court to order the implementation of our suggested “First in- first out” policy, which would enable the trial judge to render partial promulgation of judgment against some of the accused, to provide hope that some of the accused, but definitely not all, could be held liable for the massacre. This too appears to be speculative given that De Lima and her classmate representing some of the victims have objected to a partial offer of evidence by the public prosecutors.

Meanwhile, PNoy has also reneged on his promise to repeal EO 546 that gave legitimacy to the private armies of political warlords, including the Ampatuans. Immediately after his election, he made a complete turn-around on this promise and justified the use of these private armies as “force multipliers” in the fight against insurgents.

So what is the true state of the nation as far as “daang matuwid”, extra-legal killings and human rights are concerned? Well, the state is dismal with the corruption and killings becoming even more rampant under PNoy. Why? Simple. For as long as the corrupt and the killers are jailed, and fear brought back into their hearts, the culture of impunity remains. The corruption and the killings will continue.

Meanwhile, we can only pray that we will not become the next victims. This, sadly, is the true state of the nation.

This post first appeared in http://manilastandardtoday.com/2015/07/23/the-true-state-of-the-nation/

Statement of Atty Harry Roque Jr,  Chairman of the Center for International Law (Centerlaw) and lead counsel for 15 victims of the Maguindanao massacre :


Centerlaw believes that justice would have been better served for both our clients and the defendants if a decision were reached before Andal Ampatuan Sr passed away. We know that the search for justice continues and we will persevere on behalf of our clients.

Making a mockery of Supreme Court decisions


We knew they would resurrect the Priority Development Assistance Fund and Disbursement Acceleration Program eventually. What we did not expect is that they would do so immediately after the Supreme Court had declared both the PDAF and DAP as being unconstitutional. Talk of being brazen. Talk of being shameless. Talk of being contemptuous.

In a talk before accountants, former Senator Panfilo Lacson unveiled the resurrection of both PDAF and the DAP. First, he mentioned that he had found no less than P428 billion in lump-sum appropriations which took the place of either PDAF or DAP. He cited the example of the budget of the Department of Agriculture amounting to P39 billion pesos. The senator then identified within this budget P6.25 billion for farm-to-market roads, which in reality would be farm-to-pocket roads of the Tongressmen.

Lacson also identified the resurrection of PDAF in the form of the so-called Unified Accounts Code Structure or UACS. According to Lacson: “Recently, the government rolled out reforms in our public financial management. The government adopted, starting last year, the so-called Unified Accounts Code Structure or the UACS, a single classification system for all our government financial processes—from budgeting to cash management to accounting and audit. UACS calls for transparency and accountability, or so they claim. As my team and I randomly analyze this coding system, say, of the National Irrigation Administration, we discovered that there were some codes missing. To our surprise, such ‘missing codes’ were utilized to insert some projects during the budget deliberation in the House of Representatives. We likewise discovered that, in the budget of the said agency alone, there is a total lump sum amounting to 11.3 billion pesos.”

Lacson further argued that “after the PDAF, we also discovered the obvious reincarnation of the SC unconstitutionally declared Budget Circular 541 which earlier gave the DBM the authority to pool and declare as savings unobligated, unutilized, and unreleased appropriations, not at the end of the fiscal year but the second quarter. We found it in Sec 70 and Sec 73 under the General Provisions of the 2015 General Appropriations Act”. This, according to Lacson, is the rebirth of the DAP.

In any case, it can be told that just as in the case of the defunct Countryside Development Fund which, due to its unpopularity as being an institutionalized  source of corruption, was renamed Priority Development Assistance Fund, it can now be told that PNoy defied the Supreme Court anew by renaming both the DAP and the PDAF as UACS. What else is new?

***

It has been reported by the media that Andal Ampatuan Sr is now comatose at the National Kidney Institute. I was able to confirm his illness because the mother of one of my best friends was confined next door to the Ampatuan patriarch.

At this point, we can only decry the snail pace of the on-going trial that may now deprive both the accused and the victims a judicial finding of his guilt or innocence. While we have not objected to the requested furlough of the Ampatuan children who are currently detained in Bicutan to enable them to visit their father, we ask the PNP and the NBI to exercise extraordinary diligence in preventing their possible escape.

Atty. Roque Cautions Against Ampatuan Escape


Centerlaw release
Reference: Atty. Harry L. Roque, Jr. 09175398096

Atty. Harry Roque Jr, lead counsel for 13 media and two civilian victims of the Maguindanao Massacre, asked police authorities yesterday to ensure security in the premises of the National Kidney Transplant Institute (NKTI), where principal massacre suspect Andal Ampatuan Sr has lapsed into a coma.

Atty. Roque said that for humanitarian reasons, his clients will not oppose the Ampatuan family’s visit to the clan patriarch, who was accused of ordering the gruesome crime nearly six years ago.

“We are not opposing the Ampatuans’ visit to their father for humanitarian reasons, but we strongly caution the PNP, the NBI and other national law enforcement bodies to ensure that none of the accused can escape,” Atty. Roque said in a statement.

Zaldy, Datu Anwar Sr., Datu Ahmad, and Datu Andal ”Ipi” Jr., all surnamed Ampatuan, were allowed yesterday to visit their ailing father, Maguindanao Governor Andal Ampatuan Sr, at the NKTI. Andal has fell into a coma after suffering from a heart attack.

The request to visit their ailing father was granted by Quezon City Regional Trial Court Branch presiding judge Jocelyn Solis Reyes, on consideration of the Ampatuan patriarch’s grave health condition.

Junket to The Hague


Oral arguments on the issue of jurisdiction in our arbitral claim against China should be on-going as I write this column. In a testimonial tendered in honor of former UP Law Dean Raul Pangalangan who was recently elected Judge at the International Criminal Court, Solicitor-General Florin Hilbay told me that he will open the arguments by introducing the members of the delegation. He will then cede the podium to Foreign Affairs Secretary Albert Del Rosario who will discuss why the Philippines resorted to the arbitration. After which, our American lawyer, Paul Reichler will take the podium to discuss the issue of jurisdiction.   Hilbay will then deliver his closing remarks.

At issue in the oral arguments is whether the ad hoc arbitral tribunal has jurisdiction over our arbitral claims. Here, we need to convince the five-man tribunal that our prayers constitute issues of interpretation and application of the Untied Nations Convention on the Law of the Sea. We also need to convince the erudite body that our claims do not fall within the reservations of China which includes issues of maritime delimitation and military and law enforcement activities relating to the exercise of sovereign rights.

We have three principal prayers: one, that the Chinese nine-dash lines be declared bereft of legal basis under the UNCLOS; two, that the artificial islands recently expanded by China are low tide elevations which cannot be the subject of title by any sovereign states since they should form part of the continental shelf; and three, that the waters outside of the 12 nautical miles off Panatag should be declared as part of the country’s Exclusive Economic Zone.

I have consistently opined that all of our three major prayers constitute issues of interpretation and application of UNCLOS. They will entail interpretations of the Convention’s provisions on internal waters, territorial sea, exclusive economic zone, and the regime of islands.

The Chinese defense is that: first, it has not agreed to litigate the issue and cannot be compelled to participate in the proceedings. Second, they argue that the tribunal lacks jurisdiction because the validity of its claims to the waters within the nine-dash lines will depend on the validity of its claim to title over islands that generate the maritime zones. According to the Chinese Judge of the ICJ, our claim “muddles issues of jurisdiction with the merits” since our prayer cannot be resolved without tackling both jurisdictional issues and the merit of the case.

While the oral arguments are scheduled until the 13th  of the month, Hilbay is confident that we could conclude our arguments   by  Friday   this week.

The whole international community is glued to developments in our case. At stake in our submissions is the very future of UNCLOS itself. If small countries like us cannot rely on the Convention to resolve maritime disputes with regional superpowers, then the Convention will prove useless. China, on the other hand, by threatening to ignore rulings of the Tribunal, and even threatening to withdraw from the Convention should there be a decision against it, has sent the message to the Tribunal that an adverse decision to China might also lead to the end of the agreement.

What is my prognosis? Well, I’m 100-percent sure that the validity of China’s nine-dash lines involves a declaration interpreting pertinent provisions of the Convention. I predict that the Tribunal would declare the nine-dash lines as bereft of legal basis. In so doing, it will have the opportunity to rule on the nature of claims to historical waters, contrary to the literal provisions of the UNCLOS. Justice Carpio in his ponencia in Merlin Magalona vs. Executive Secretary implies that such claims have ceased to have legal basis. The Chinese Judge maintains their continued validity under the doctrine that what is not prohibited in international law is allowed.

I have less confidence in our two other prayers, which I believe should not have been included at all. I will write about this in due time.

Meanwhile, with only three oralists scheduled to make submissions before the Tribunal, why is it that we have a delegation of at least 35? I say at least because the number does not include our foreign counsels and their staff. I believe the correct number of our delegation should be at least 50. That’s 50 business class tickets and 50 de luxe rooms at five-star hotels in very expensive The Hague!

I am currently in Pangasinan documenting how fishermen have been deprived of livelihood by the Chinese who have taken over their traditional fishing grounds in Panatag shoal. You don’t need a degree from the Kennedy School of Government to conclude that the money spent for the  mirons  in The Hague should have been used to assist the displaced fisher folks of Panatag instead. Oh well, only in this administration do you have policy makers fleecing off the people’s misery! Talk of the ultimate junket at The Hague! All told, our delegation should not have exceeded 10 given that we have a full-fledged diplomatic mission there headed by our   very capable Ambassador Jet Ledda and ably assisted by Atty Peachy Defensor, youngest sister of Inday Miriam. I would understand why the Office of the Solicitor General, the Supreme Court Justices and the Department of Foreign Affairs should be there. But 35 in addition to our foreign counsels? Come on!

Thank God 2016 is just around the corner! Out with the junketeers!

Malacanang is Kabado sa Paliwanag on The Hague junket


Media release
For reference: Atty. Harry L. Roque, Jr.   09175398096

 

What we want to know is how much the Palace is spending on a delegation of 35 people at the Hague in the Netherlands to the oral arguments in the Philippine arbitral case against China over the West Philippine Sea.

 

Calling me KSP or Kulang sa Pansin simply avoids the issue altogether.  Press Secretary Edwin Lacierda’s  response shows the Palace is Kabado sa Paliwanag because they really cannot justify this big junket when only two in the government will actually argue before the Tribunal.

 

I’m sure the money being spent on the Philippine delegation for at least a week will go a long way in helping fisherfolks from Zambales displaced by the Chinese takeover of the Panatag shoal.

 

Has the government even thought of assisting the thousands of fisherfolks who are now without any steady and adequate source of livelihood because of its inept handling of the Panatag shoal stand-off?

 

It is sad that they had been so consumed by junket fever that they couldn’t think of anything else.

 

Until now, Malacanang has not provided any steady and adequate livelihood assistance to the families of the displaced fisher folks.

Prof. Roque : China an Agressor Under International Law


MANILA, PHILIPPINES— “China is an aggressor under international law.”

That was how Professor Roque characterized China based on its actions regarding the West Philippine Sea dispute in a speech on “Borders and Cross-Border Enforcement” at a forum at Harvard Law School.

“China has resorted to unlawful use of force to advance its claims to vast amount of waters in the West Philippine Sea and has shunned a peaceful means to settle its territorial dispute with the Philippines,” stated Roque.

Roque is a professor at the UP College of Law and the Director of the Institute for International Legal Studies. Other notable speakers in the forum include Associate Justice Francis Jardeleza, who was Solicitor General of the Philippines and UP College of Law professor before assuming his role in the Philippine Supreme Court.

The actions by the Chinese government, including the employment of Chinese ships to patrol the area and the building of artificial islands in low-tide elevations, are said to be part of China’s Blue Naval Strategy in its bid to become a world sea power. Claiming that these acts are transgressions on national maritime territory, the Philippine government initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS).

However, China has snubbed proceedings, and while having commissioned the submission of a de facto counter- memorial, insists that it will not be bound by the outcome of the arbitration.

Acts of China Illegal under International Law

Prof. Roque has long been outspoken against China’s refusal to arbitrate, as well as its illegal acts of encroachment on Philippine maritime territory.

“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’,” Roque stated. “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.”

In his speech, he listed down acts which constituted the use of force, in violation of the UN Charter prohibiting the threat or use of force against the territorial integrity or political independence of any state. This included China using its Navy in forcibly taking possession of Mischief Reef, and its Armed Coast Guard in wrestling possession of Scarborough Shoal from
the Philippines. It has also been driving away Filipino fishermen from the area, using water cannons.

Some of these fishermen have since appealed to United Nations Commission on Human Rights against China for violations of human rights, particularly right to livelihood, right to life, and their right to the places of refuge for ships in distress, in accordance with the right to life.

In addition, Prof. Roque stated that China’s actions in regularly warning military action against all other claimants to the disputed Spratlys and Paracels group of islands, its Navy boats escorting armadas of Chinese vessels fishing in the disputed waters, and accosting survey vessels even in the undisputed waters of Recto Bank all consist of threats, similarly violative of international code of maritime conduct.

He also attacked Chinese installations of artificial islands on low tide elevations.

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

Discrediting China’s Defenses

Despite claiming that it will not be bound by the arbitration proceedings, China outlined its defences in a de facto counter-memorial submitted to the UNCLOS body.

China claims that the 9-dash line based on ancient title.

But Prof. Roque said that there is no truth to the ancient claim, as China was silent on its 9-dash lines for more than 50 years.

“The 9-dash lines, while initially articulated by Taiwanese academics in the 50’s, was only resurrected in 2009 as part of China’s opposition to joint application of Vietnam and Malaysia for an extended continental shelf,” Roque explained.

But even if ancient claims exist, Prof. Roque stated that it was insufficient basis to hold that the disputed maritime territories belong to China.

“Under international law, ancient maps and other ancient evidence are unreliable,” Prof. Roque emphasized. “There exists no decision awarding disputed territory on the basis of ‘ancient title’.”

“Furthermore, recognition of historic waters is limited to fishing rights and not settling territorial disputes,” he added.

“China’s resort to the use of force in lieu of peaceful arbitration,” Prof. Roque concluded, “proves that it is today the same hegemonic and colonial state that Mao and the rest of China rejected in their People’s Revolution.”

Lina, Parayno and Aguas charged for graft and plunder at Ombudsman


Press Release
For Reference: Atty. Harry L. Roque Jr. 09175398096

Click here to download a copy of the Omniprime vs Lina, Parayno and Aguas complaint filed at the Ofice of the Ombudsman today.

Customs Commissioner Alberto D. Lina, former Customs Commissioner Guillermo Parayno Jr. and former Customs Deputy Commissioner Primo Aguas face graft and plunder charges before the Office of the Ombudsman in connection with a cancelled Php 650 million contract to integrate a modern integrated customs processing system at the Bureau of Customs.

Lina and Aguas also face charges for violating the new government procurement law provisions prohibiting delays in the implementation of a government project.

The integrated system, along with a national single window, is seen as the long-sought after solution to rampant smuggling in the Philippines. It establishes a central database system that tracks in real time all customs procedures nationwide. It aims to be a fully electronic, paperless and human contact-free system of recording and monitoring customs transactions.

Meanwhile, the national single window consolidates relevant services from all government agencies involved in customs procedures using international standards.
The bidding for the project opened in October last year.

In November 2014, five prospective bidders – including E-Konek Pilipinas headed by Parayno and the winning bidder, OMI-Intrasoft Joint Venture(OMI-Intrasoft JV)– submitted eligibility documents for the integrated system.

E-Konek Pilipinas, is a company where Lina has a 96.48 percent stake.

In addition, the corporation behind the now antiquated systems used by the Bureau of Customs – the foreign computer systems company Unisys, subcontracted the implementation of the E2M to partners Webb Fontaine – and E-konek Pilipinas when it developed the existing computer system at the BoC.

By December 2014, with the exception of the OMI-Intrasoft JV – all of the prospective bidders had been disqualified for one reason or another by the DBM Bids and Awards Committee and TWG. Subsequently, the joint venture was invited to formally bid for the project and in February this year, it submitted its technical and financial proposals for the project

However, Deputy Commissioner Aguas, although he was not part of the Bids and Awards Committee, stepped in, trying to influence the BAC, and TWG. He required the DBM BAC and TWG to re-evaluate the results of the eligibility hoping to accommodate his favoured bidders asking them to relax the procurement law, while negatively criticizing the JV of OMI-Intrasoft during the BAC meetings that he attended. To further delay the award of the project, he also required the JV’s project team members to undergo series of interviews, in violation of Republic Act 9184, the new law governing government procurement procedures.

And while the interview process he required to be made was ongoing, he made public announcements preempting that in the event the bidding process fails, there would be a rebidding, or an updated version of the current system would be adopted.

This undue imposition by Aguas delayed the selection of the Highest Rated Bid (HRB) for more than two months.

On April 13 this year, the joint venture Omniprime Marketing Incorporated and Intrasoft International was finally declared winner of the seven-month long public bid. Ten days later, on April 23, the contract was finalized and it was scheduled to be signed by the end of the same month.

However, on April 24, Lina replaced reformist Commissioner John Sevilla under controversial circumstances. It took him only two weeks to cancel a contract that has undergone two biddings: on May 6, he issued a notice to the Department of Budget and Management (DBM) cancelling the contract on the flimsy ground that he needed to review all the projects in the pipeline entered by the Commissioner before he assumed office and also said that the project was not needed anymore.

In her 30-page Complaint-Affidavit, Ms. Margaroli, representative of Omniprime Marketing, charged that Lina’s decision to unceremoniously cancel the contract was a clear case of conflict of interest. He and his conspirators are thus liable for graft.

“The cancellation by Respondent Lina was a grave instance of a criminal conflict of interest, manifest illegal partiality and malevolent bad faith because it benefited E-Konek Pilipinas, Respondent Parayno and ultimately, Respondent Lina himself and his family, as he has a 96.48 percent stake in the said company headed by Parayno – which same company also bid but was disqualified from the NSW 2 project bid, “ said Margaroli, in her complaint for graft.

She was assisted in the filing by her counsel, Atty. Harry Roque of the Roque and Butuyan Law Offices.

Margaroli said Aguas, who resigned shortly after Lina took office, was behind “the manufactured and pre-meditated delay accomplished and obtained the planned-for opportunity for Respondent Lina to effect the cancellation of the project.”

She added:
“E-Konek Pilipinas, as an existing Service Provider of the BOC, stands to continue reaping benefits from the perpetuation of the current inefficient and dysfunctional system that had been intended for elimination by the implementation of Phase 2 of the PNSW with Enhanced Customs Processing System. Being the President of E-Konek Pilipinas, Respondent Parayno is an inevitable beneficiary of the criminal acts of Respondents Lina and Aguas, and an indispensable party/conspirator who is now calling the shots at the BOC’s MISTG or ICT Dept., as Lina’s I.T. adviser, while sitting as President of E-KONEK”.

“Having access to all the data of the importers/exporters entered into their VASP system, E-KONEK being the only VASP who’s other sister companies in the Lina Group of companies are involve in other Customs related services, i.e., brokerage, forwarding, logistics and bonded warehouse rental and management to name a few, is therefore able to corner all of these other related services to importers of BOC other than the icing on the cake earnings, charging P50.00 per transaction fee they get, per transaction entry. The BOC Website shows that there are at least 3 Million transactions per year or equivalent to 150M Pesos per year.”

For his part, Roque said the Ombudsman should investigate Lina and Parayno for plunder, charging that
Lina, Aguas and Parayno conspired in a series of overt criminal acts to delay and to eventually cancel the contract in which OMI-Intrasoft JV had the highest rated bid, so that E-Konek Pilipinas may continue its lucrative but highly-inefficient and corruption-prone business with the BOC valued at between Php 100 million and Php 500 million or more annually.

Moreover, he pointed to two additional overt acts committed by Respondent Lina which accentuate his liability for plunder, as follows:
a. the clearance he gave to the release of broadcasting equipment belonging to the GMA Network handled by two of his corporations –2100 CB and U-Freight – using allegedly fake import permits, and;
b. Lina’s refusal to act on charges that U-Freight and another of his companies, the Nague Malic Magnawa & Associates Customs Brokers and U-Freight–linked to missing 771 shipments of airplane parts for the airline company Zest Air worth at least Php 1.5 billion.

“The above-mentioned last two cases,” according to Roque, “further underline the financial benefits Respondent Lina and Respondent Parayno stand to lose if the new systems won by OMI-Intrasoft JV in competitive bidding and which Respondent Lina cancelled is actually implemented and the series of acts of plunder Respondents have committed.”

ASEAN member-states have agreed on a common window system to fast-track cargo clearance as they move towards regional integration. The system complies international open communication standards while ensuring that each of country can exchange data securely and reliably with any trading partners that use international open standards. Its hallmarks are a simpler and faster processing time, and a more transparent way of doing business.

Said to be already ten years in the making, the national single window is a key component of the country’s goal to join a single ASEAN Market by the end of this year.

But Lina’s decision to cancel the contract for the two consolidated projects is said to delay the country’s integration into the single ASEAN Market, and insisted on having the ASYCUDA SYSTEM to be implemented while knowing too well that the re-bid alone will take more than 6 months to happen already.

Also, even without any factual basis at the time of the cancellation, he said that using the ASYCUDA system would cost the government only 50% of the cost of the 650 Million approved budget, which was actually already reduced by 300 Million from its original budget of 950Million Pesos by then Commissioner Sevilla.
Lina knows for a fact, that even at this time, there has been no formal proposal yet coming from UNCTAD for the same terms of reference provided to the bidders of the PNSW project. Where then did Lina get his figures to state that he is saving the country the said amount? In fact, from information gathered, UNCTAD representatives requires the BOC to even pay for all their airfare and hotel expenses just to be able to make an evaluation of the requirement of the BOC when asked to provide a proposal based on the same Terms of Reference provided to the winning bidder.

“While our clients spent so much time, money and effort to be able to comply with all the bid requirements using their own resources, Mr. Lina does not even care about these sacrifices that the bidder invested to comply in this bidding,” said Roque. ” And when it is finally due for final award, Lina just canceled the contract without any consultations from any of the BOC authorized representatives to the BAC and/or the Technical Working Group, who knows more what the BOC needs as they are chosen to be so, having no known conflict of interest in any CUSTOMS business.”

In the 2007 ASEAN Economic Community (AEC) Blueprint the ASEAN Single Window is crucial to the free circulation of goods in the envisioned single market, single production base integrated economic community.
In his May 6 notice, Lina said that upon his assumption into office, he initiated a comprehensive review of all the BOC projects already in the pipeline. According to him, because of the immense scale of the PNSW2 project, it has to be abandoned.

Acting on his directive, the very next day, DBM Executive Director, lawyer Jose Tomas Syquia sent the winning bidder a notice of cancellation.

Subsequently, Lina announced that he intends to re-bid the project, with an eye on the ASYCUDA system, which he claimed, has won the endorsement of the World Bank, and by a committee at the BOC before he was even appointed for the position. These were all lies and we kindly advise Comm Lina to stop using the name of our Lord in his chain of lies, Atty. Roque added. In reality, he prefers to use ASYCUDA because it is the same system that E-KONEK uses for his provided services as VASP (Value Added Service Provider)at BOC. The VASPs serves as gateway in the import and export entries for the stakeholders to enter their transactions first before it is sent to enter and be processed by the BOC E2M system. In fact, in the World Bank, JASTPRO and the 2014 COA summary reports, it was evaluated and suggested for the VASP services to be eliminated already and allow the direct entry of all transaction to BOC’s system when the new 2Interact Customs system is installed.

They said that it is where the manipulations of documents take place before it is entered into the system that gives way to corruption and billions of pesos in losses in the government coffers.

In a motion for reconsideration submitted in late May this year, Roque told the offices of both Lina and Syquia that the cancellation was without any “justifiable and reasonable” legal basis.

“As a matter of fact, Commissioner Lina’s supposed need to merely review the project constitute a most unjust and unreasonable ground to order DBM-PS to abandon the project,” said Roque in his five-page Motion for Reconsideration. “On the contrary, the cancellation constitutes a capricious and arbitrary basis, and amounts to an outright grave abuse of discretion. If at all, the reason invoked for the cancellation of the project proves that there is the utter absence of a pre-existing factual and legal bases to abruptly cancel the contract.”

Lina did not respond to the Motion for Reconsideration yet sent to his office by the Roque and Butuyan law office in behalf of their client.

Syquia replied to the Motion, saying that he was merely following Lina’s instructions and was not in a position to rescind the cancellation ordered by the latter.

However, the current system used by the BOC and developed by Webb Fontaine cannot be integrated with the NSW Phase 1 done by Crown Agents. The World Bank itself has bewailed its many inefficiencies, as well as its susceptibility to rampant corruption.

-30-

Poe’s citizenship and residency


I am not as bold as either Former Chief Justice Panganiban or Dean Antonio La Vina to say that Grace Poe is definitely a natural born Filipino. Both posit that the so-called incorporation clause which states that generally accepted principles of international law is the legal basis for the so-called “presumption” that the senator is a natural born Filipino. Offhand, I find this odd since as a student and teacher of international law for the past 25 years, there is no definition of who a “natural-born” Filipino is under international law. It is the Philippine Constitution that defines a natural born Filipino as one who does not have to do any act to perfect his Filipino citizenship. This is sufficient basis to conclude that international law is irrelevant to the issue of whether the Senator is a natural born Filipino.

In any case, what international law provides is the presumption against statelessness and the right of a child to have a citizenship. While we are not yet a party to the first convention, I do agree that there is already widespread and virtually uniform state practice and opinion juris, the belief that it is the law, that no person shall be stateless. The Convention on the Rights of the Child in  turn provides that all children should have a nationality. Hence, the presumption that children have the nationality of their parents. But this is different from a presumption that one is a natural-born Filipino. Again I reiterate, only natural born Filipinos can aspire to be members of Congress and the Presidency. All other Filipinos can seek only local elective posts.

Is there a valid constitutional interest to be achieved by this outright discrimination? Certainly. When one is a natural-born Filipino, one cannot have any other nationality. This is why the Constitution presumes that such a Filipino will exclusively love this country to the fullest. That is why the same Constitution says that dual citizenship is inimical to the national interest and shall be dealt with by law. After all, multiplicity of citizenship means multiple allegiances. In case of a war with the United States and the Philippines, do you expect dual-citizen Filipino Americans to support the Philippines? Probably not.

In any case, the deliberations in the House of Representatives would clearly show that the issue of whether a natural-born citizen who lost it through naturalization and acquires a dual citizenship hence revert to the status of a natural born Filipino is still to be defined by the courts. As Teddy Boy Locsin, author of the dual citizenship law,  said in the floor of Congress: “Your guess is as good as mine”. My position is that this is a lacunae in the law which just be addressed by legislation.

The Lapid bill in this regard is the right remedy. Grace Poe should ensure passage of this bill into law prior to the 2016 elections.

Anent the issue of residency, much weight has been given to the case of Imelda Marcos who was declared by the Court as not having lost her domicile in Leyte solely by reason of her marriage to the late President. But the Marcos case cannot be applicable if only because Imelda Marcos, for all her faults, was never a foreigner. Likewise, our entire jurisprudence on domicile is necessary if we are to have a Congress. This is because 95 percent of all members of our House of Representatives are actually residents of Metro Manila. The intent to return – the so-called animus revertendi – has enabled Manila residents to be elected as residents of their home provinces. But it should be inapplicable to one who has opted to be a foreigner, or one with multiple loyalties.

In Jalosjos vs Comelec , the Supreme Court ruled that the abandonment of a home in Australia, renunciation of Australian citizenship, reacquisition of Philippine citizenship and settling down in Zamboanga Sibugay show an “intent to change domicile for good.” Applied to Poe, this would mean that she only acquired residency in 2010 when she renounced her American citizenship. It is unclear what the effect would be of the fact that under American law, she was only deemed to have actually lost her US citizenship in 2012. In any case, as I have written previously, the ruling in Maquiling requires both the oath and renunciation as twin requirements for those with dual citizenship to occupy public posts. The implication is that the law’s requirements are satisfied only on the date the dual citizen does both acts: the oath of allegiance and the renunciation.

In any case, the political question is how a former American can be President of the country. I restate the oath of allegiance taken by Grace Poe when she became an American:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

President Grace of the Philippines? Maybe of the USA!

 

 

First published at http://manilastandardtoday.com/2015/07/02/poe-s-citizenship-and-residency/

Filing of graft and plunder charges against BOC Commissioner Lina


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

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

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

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

ATTY ROQUE: JOURNALIST KILLINGS ARE VIOLATIONS OF INTERNATIONAL LAW


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

 

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

 

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

 

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

 

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

 

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

 

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

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


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

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

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

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

Scarborough Shoal and the violation of human rights


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

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

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

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

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

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

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

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

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

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

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

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

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

Roque cautions against provisional remedies from ITLOS against Chinese reclamation


 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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


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

Poe: “A candidacy that will never fly?”


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

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

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

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

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

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

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

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

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

Bringing activism to the Philippine Senate


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

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

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

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

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

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

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

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

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

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

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

Questions for Poe


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

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

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

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

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

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

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

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

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

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

Good luck, Senator!

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


Press Advisory

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

Hypocrisy on the death squads


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

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

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

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

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

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

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

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

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

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

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

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

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

Schizophrenia on boat people II


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

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

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

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

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

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

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

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

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

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

She’s alive!


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

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

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

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

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

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

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

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

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

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

Draft copy of the Veloso petition to the ICJ


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

INTERNATIONAL COURT OF JUSTICE

APPLICATION

INSTITUTING PROCEEDINGS

filed in the Registry of the Court on 28 April 2015

VELOSO CASE

(Republic of the Philippines v. Republic of Indonesia)

____________________________________

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

The Hague, 28 April 2015

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

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

(Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For: Mr. Philippe Couvreur

Registrar

International Court of Justice

Peace Palace, The Hague

The Netherlands

Sir:

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

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

 

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

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

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

VII.  Judgment Requested

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

and that, pursuant to the foregoing international legal obligations,

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

VIII. The Appointment of a Judge Ad Hoc

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

 

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

 

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

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

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

The Hague, 28 April 2015.

                              Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For the soft copy, please click Application.PHvIndonesiav2

Laude Petition for Media Coverage filed at SC


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

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

Has our Commission on Human Rights made a difference?


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

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

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

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

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

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

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

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

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

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

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

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

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

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

The US and the Spratlys


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

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

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

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

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

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

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

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

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

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

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

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

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

Binay prevails


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

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

Centerlaw twits De Lima veiled threat on Vera Files report


vera files

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law of the jungle


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

What kind of insanity has come to our land?

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

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

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

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

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

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

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

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

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

Treason?


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

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

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

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

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

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

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

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

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

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

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

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

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

VP Binay should succeed


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

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

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

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

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

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

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

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

Angeles chief prosecutor block evidence of Laude family


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

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

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

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

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

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

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

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

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

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

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