INCOMPETENCE AND TRAGEDY IN LUNETA


9 months ago, at least 62 policemen participated in the worse massacre in Philippines history: the Maguindanao massacre. Then last week, at least 9 of them, although their numbers should swell as more evidence are uncovered, were also involved in a torture witnessed in every living room in the country courtesy of a cell phone video broadcasted by one of the country’s television giants. Two days ago, there was yet another action packed event- only like the torture- it was not a production of a television company. It was for real, and yes, it involved again policemen- one with gripes, and many others who were simply incompetent. With policemen like this, who will protect us?

I do confess having missed much of action at Luneta as it was televised live by Philippine media organizations. . Thanks to the digital age though, I learned about the hostage taking incident almost as soon as it happened through twitter on my blackberry. While checking in at T-3 headed for Bacolod City, I did manage to read further accounts about the incident on the Internet in my blackberry. I boarded my flight thinking that like a similar “bus jacking” incident in Manila that involved a school bus, this too would pass since apparently, the hostage taker has agreed to wait it out for authorities to heed his demand for reinstatement into the service. I arrived in my hotel in Bacolod at about 5PM and was pleased to have seen on cable that as I predicted, both hostage taker and the police have agreed to wait it out. I then went to my dinner meeting confident that although we would be embarrassed tremendously because the incident involved foreigners, it would nonetheless come to pass.

At about 7PM and well into my meeting, I received a tweet that shooting had commenced. Subsequent tweets erroneously reported that all hostages and the gunmen have been killed. I announced this in my meeting and the responses ranged from shock to anger, and even to despair. Many thought that this was the last thing that the country needed even with a brand new reform oriented leader. There was an overwhelming consensus amongst Negrenses that PNoy would find it very difficult to recover from this incident.

On hindsight, two factors made the incident a real tragedy. First, there was the obvious incompetence of the policemen who decided to arrest the brother of the hostage taker in full view of the cameras. While both the police and media may not have known it, there apparently was a television on board the bus that enabled the hostage taker to know what was happening in his environment. Certainly, the more prudent thing to do should have been to quietly apprehend the brother assuming they had basis in apprehending him in the first place. But no, they had to make a spectacle out of it.

That was not the only evidence of incompetence. By 7PM, the police had already decided to assault the bus as in fact; they came near it replete with dramatic footages of one of them seeking to gain entry into the bus forcibly. Strangely, after using a giant mallet to break open the door of the bus, the police froze and waited! Meanwhile, the lone gunman has violently responded and killed at least 9 of his victims. It took a whole hour for the police to use teargas and bring the hostage taker down.

The point to underscore is that this incompetence on the part of our security force is not isolated. It was this same incompetence that led 62 of them to be involved in the Maguindanao massacre and at least 9 of them to be involved in that highly publicized case of torture. The question is: why such incompetence?

Perhaps a clue may be had in the recruitment process that is being implemented in the PNP. For instance, in Maguindanao before the massacre, PNP insiders told me that recruitment into the ARMM PNP was on the basis of “3 for1”. That meant 3 recruits for 1 million pesos. In other words, those desirous of entering the PNP had to buy their position. This is also apparently the case in other governmental agencies such as the Bureau of Immigration, the Bureau of Internal Revenue and the Bureau of Customs. With public servants having bought their appointments, little wonder that they would give priority to return on their investments over discharge of public service. This would explain why incompetence in the PNP is more of the rule rather than the exception.

The second factor that made Luneta such a tragedy was the manner by which media handled the situation. Make no mistake about it: I have always been an advocate of freedom of expression and of free press primarily because I have been tactless and possess a big mouth. But when you have the media broadcasting for the hostage taker everything happening around him, even the arrest of his brother, in real time, which in turn provoked him to be violent after waiting it out for 11 hours; one cannot help but conclude that police incompetence notwithstanding, the media should accept part of the blame for this tragedy.

Again to be absolutely clear, I am not in favor of any act of the state restricting the activities of the media. That to me would be tantamount to prior restraint and hence, unconstitutional. What I am in favor of is the exercise of voluntary restraint on the part of the media, particularly in incidents such as this, where their coverage could literally mean the difference between life and death.

To be fair to the media, the public at large too is partly to be blamed. The “usisero” syndrome is such a Filipino trait that one can understand the media’s desire pander to the gallery. Perhaps, this could be one of the lessons learned from this tragedy. That in our desire to be at the center of things that are happening, our curiosity could contribute to the death of others. #30#

Third author plagiarized by SC justice complains (from Newsbreak)


Tams – Letter to Supreme CourtMANILA, Philippines—The third of the foreign legal authorities whose works were plagiarized by Supreme Court Justice Mariano del Castillo has written the tribunal to officially express his “concern.”

In a letter addressed to the court en banc, Christian J. Tams, a professor of international law at the University of Glasgow, expressed concern over “the use of one of my publications” in the Vinuya case (GR No. 162230).

In Vinuya et al vs the Executive Secretary, the Filipino women who were turned into sex slaves by Japanese soldiers during World War II wanted to force the Philippine government to demand from Japan an apology and compensation for the atrocities. The Supreme Court denied their petition.

In denying the petition of the Filipino “comfort women,” the Supreme Court, in a decision written by Justice Del Castillo, used arguments that, it turned out, were copied without attribution from the works of three foreign legal experts.

Newsbreak reported that Del Castillo lifted quotes and footnotes from:

“A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law.
“Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law.
“Enforcing Erga Omnes Obligations in International Law” by Christian Tams, published in 2005.
Del Castillo plagiarized 31 parts of Criddle and Fox-Descent’s article; 24 of Ellis’s; and 4 of Tams’s.

Criddle and Ellis had written the Philippine Supreme Court separately over the incident.

In his letter dated August 18, Tams said sentences on page 30 of the decision were “taken almost word by word from the introductory chapter of my book, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005).”

Tams noted that “there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.”

The letter has an annex showing a comparison of the passages from Tams’ book and the Supreme Court’s decision, which Newsbreak published earlier.

“I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law,” Tams continued.

“With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support—as it seemingly has—the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s judgment has drawn on scholarly work without properly acknowledging it,” the professor continued.

Tams ended his letter by saying he would “appreciate a prompt response” from the court on the matter.

This act of plagiarism has been strongly criticized by professor and students of law in the Philippines. Some quarters have even called on Del Castillo to resign.

The Supreme Court has formed an ethics committee to investigate the matter. (Newsbreak)

Torture


It was not the ideal image to wake-up to. There he was: naked, emaciated and cringing from pain whenever his torturer would pull the rope attached apparently to his sex organ. He was hog-tied like a beast lying on a cold floor. His torturer, on the other hand, was stocky, full of energy, and apparently, god-like in the belief that he had in his hands—literally and figuratively- the decision on whether his victim was to live or die. Only a beast would not be moved by the said image. And yes, being the squeamish person that I am, I could not help but shed a tear or two after seeing that disturbing image.
Perhaps, the only good thing that came out of this image of torture is the public indignation that it created. It was indignation over the fact that these barbaric acts are still happening in this country at this time and age. It was also indignation at the fact that contrary to public perception that torture is practiced in remote areas of the country, here was proof that it is also happening at the heart of the metropolis, even in Tondo, Manila. We probably needed to see that image to remind us that regardless of who occupies Malacañang, torture persists and with impunity at that. The helpless victim, and the brave soul who publicized the video, have reminded us that unless and until we successfully put torturers behind bar, more of us may fall victims to this barbaric and heinous act.

Torture is defined as the infliction of physical, mental, or psychological pain either for the purpose of exacting information such as a confession to the commission of a crime; or as a form of punishment. It has been prohibited since ancient times principally because of the dictates of natural law and humanity, that is, human beings should not be intentionally harmed. Why? Simply because it should not be done to human beings. This explains hence why torture is prohibited in both times of war and in times of peace.

The prohibition and the criminal nature of torture is described as “jus cogens”, or non-derogable. This means that unlike rights such as freedom of expression and freedom of the press which may be derogated upon in some instances, the prohibition on torture is absolute. It cannot be justified on any ground including that of public emergencies or grounds of national security. Moreover, the duty to investigate, prosecute and punish those who may commit torture is itself non-derogable, and further subject of what is known as “erga omnes obligation”. This means that any state, and not just those with material interest, may sue another for the violation of the duty prohibiting the commission of torture.

Furthermore, owing to the normative character behind the prohibition of torture, states which, for any reason, could not investigate, prosecute or punish torturers are also duty-bound to extradite the person of a suspected torturer to another jurisdiction that is able and willing to prosecute and punish him. Corollary to this is the duty of states to refrain from rendering individuals to a jurisdiction that is known to practice this barbaric act.

The Philippines has been a party to the Convention Against Torture for over 25 years already. Sadly, it was only last year when we finally fulfilled our treaty obligation under the same to criminalize torture as a grave offense under our domestic laws. Prior to the passage of RA 9745 which finally criminalized torture as an offense and RA 9851 which also criminalized torture when committed in the context of an armed conflict or in a widespread or systematic manner, torture was only penalized as physical injuries or maltreatment of prisoners. This was condemned rightfully so by human rights advocates because our treaty obligation was to criminalize torture specifically as a grave offense under our domestic law.

The public discussion provoked by the video aired by ABS-CBN on whether the said video of torture would suffice for purposes of criminal prosecution further attests to the lack of understanding of our treaty obligations under the anti-torture convention. In fact, the entirety of our rules on criminal procedure constitutes a breach of our treaty obligation to investigate and prosecute suspected instances of torture whether or not there is a formal complainant against it. This is because under existing rules of the National Prosecution Service, a preliminary investigation into the commission of any crime is pursuant only to the filing of a formal complaint. This is in breach of the treaty because such a complaint should not required. A state is under a positive duty to investigate when there is information that torture was probably committed. This means that authenticated or not, such a video clip is sufficient to trigger our duty to investigate regardless

of whether such would be sufficient to convict anyone in court.

There are pending issues arising from what appears to be differing definitions of torture under RA 9745 and RA 9851. This is on the matter of who may commit torture. Our special law adopted the definition under the anti-torture convention that it could only be committed by state agents. The IHL law, on the other hand, adopts the progressive definition that it can be committed by anyone in the custody of another. This debate, fortunately, does not figure in the controversy stirred by this video clip if only because without a doubt, it was committed in the heart of the City of Manila, an area without an armed conflict, and presumptively by state agents given circumstantial evidence that it was in fact committed in the premises of a Manila police station.

We hope that the identity of the victim who has apparently also become a victim of extralegal killings is soon ascertained. This is a humanitarian concern because his family after all, regardless of who he was in his lifetime, have a right to grieve for his demise and under such painful circumstances at that. More than this, we hope that with no less than two laws now prohibiting torture as grave offenses in our statute books, that torture would soon be a thing of the past. We are hoping that given the promise of P-Noy that he will usher the winds of change, that amongst these changes will be the effective investigation, prosecution and punishment of torturers. Only then could that poor victim in that video, and the many others before him, truly rest in peace.
See video at http://www.abs-cbnnews.com/video/nation/metro-manila/08/17/10/alleged-cop-torture-caught-cell-phone-video”>

International Humanitarian Law on IHL Day


When a fighter from the Moro Islamic Liberation Front beheads a soldier or a civilian, or resorts to cutting off ears and other body parts, he will be subject to an obligation of all states to investigate, prosecute and punish him for a serious breach of International Humanitarian Law. In like manner, a soldier from the Armed Forces of the Philippines who targets a civilian or causes the dislocation of civilian populations as a result of an armed conflict is equally liable for prosecution for serious violation of IHL.
This fact alone—criminal prosecution for all those who will breach the law—is why this body of law has been adhered to by all states as being binding on them on a non-derogable manner. Human rights law, on the other hand, is a system of minimum standards by which states must treat individuals found in their territory. Unlike IHL, it is subject to derogations in times of national emergencies. Despots will even argue, albeit erroneously, that human rights is subject to cultural relativity.

IHL is that branch of public international law that seeks to limit human suffering in times of armed conflicts. It does so by according protection to non-combatants such as civilians, prisoners of wars, humanitarian and religious workers. Additionally, it seeks to protect non-combatants by limiting the means and methods that combatants and fighters may resort to in times of hostilities. Thus, any method that does not distinguish between civilians and combatants, and weapons that cause superfluous injuries and unnecessary suffering, are declared illegal by the law.

Of late, an interesting issue that has arisen is whether acts of modern-day terrorism are covered by IHL. George W. Bush argued that the war against terror is legal tabula rasa and hence, not governed by IHL. This is why when he apprehended 600 or so allegedly fighting side by side with the Taliban in Afghanistan, he condemned these men to indefinite incarceration in Guantanamo Bay, Cuba as “enemy combatants”. In three major decisions of the Supreme Court, the Bush assumption that IHL was irrelevant in the war against terror was effectively debunked. In Hamdie, a petition for the issuance of the privilege of the writ of habeas corpus, the US Supreme Court ruled that it is precisely IHL that provides the legal basis for the US President to detain the Guantanamo detainees. The court then partially granted the petition and ordered the District Court of Washington DC to determine whether the detainees are entitled to prisoner-of-war status and if they are, they would have the right to be immediately released upon cessation of hostilities.

In the second and third cases of Hamdan and Boumedien, respectively, the Court invalidated the creation of the Guantanamo Bay military tribunals created initially by an executive order and subsequently by law. Purportedly in compliance with the decision of the court in Hamdie, these tribunals were given jurisdiction to determine whether the detainees are entitled to POW status. Given, however, the very limited mandate of these tribunals, Bush argued that the detainees were not entitled to all the rights accorded other individuals facing similar military tribunals in the US. Specifically, because these detainees were considered “terrorists”, Bush deprived them access to evidence submitted against them on the ground that these information are “classified’ by reason of national security.

In the later decisions in Hamdan and Boumedien, the US Court expressly ruled that these tribunals were contrary to IHL, specifically, common article 3 of the Geneva Convention which prohibits the impositions of sentences without prior judicial determination that complies with minimum standards recognized by civilized nations. The Court in these decisions reiterated in clear and unequivocal language that the war against terror, where there is in fact an armed conflict, is governed by IHL. Despite the Court’s refusal to qualify the war against terror as either international or internal in character, the US Supreme Court nonetheless emphasized that Common Article Three should be complied with as a minimum regardless of the actual nature of the armed conflict.

Closer to home, today is the first International Humanitarian Law Day when the country finally has an IHL law that implements our earlier treaty obligation under the Geneva Conventions to criminalize grave breaches of IHL. Republic Act 9851 criminalizes not only grave breaches and serious violations of IHL, but also criminalizes the further crimes of genocide, crimes against humanity, torture, and enforced disappearances. It also now provides for grave penalties for these crimes, which includes life imprisonment and fines of up to one million pesos.

The new law also codifies customary norms, which in the past was applicable to us as “generally accepted principles of international law”. Today, the law expressly provides that even the President cannot invoke immunity from suit when he or she is sued for violation of the law. There can be no doubt furthermore, that the prosecutions for these international crimes are no longer subject to prescription. The law also provides that the criminal prosecution of these crimes is basis for the exercise of universal jurisdiction, or that our courts can hear and decide cases involving violations of the law regardless of where the crime was in fact committed. This new law also codifies our previous jurisprudence that a military commander or a sitting president may be criminally liable for breach of the law committed by subordinates under their control if they failed to prevent the commission of the listed crimes, and if they fail furthermore to investigate, prosecute and punish the perpetrators thereof.

It is hoped that these developments in the United States and the passage of the new law will add further protection to non-combatants in times of armed conflicts. While IHL is of critical relevance to the Philippines because of the three internal armed conflicts raging in our territory, it is still hoped that the law will cease to be relevant to us. This will only happen if all these armed conflicts become a thing of the past.

***

The Civil Society Initiatives for IHL invites the public to the IHL Day Commemoration today, 9 a.m. at the Technoportal Conference Room in Ayala Technohub, Quezon City.

The IHL Day event has two parts: 1) A Forum with the Bakwits: Internal Displacement and Updates on Mindanao; and 2) a film screening of “The Reckoning”, which presents the development of IHL.

To SC Spokesperson Midas Marquez: Take heed of the Supreme Court’s own ruling — “Courts and Justices are not sacrosanct.” by Joel Butuyan


SC spokesperson Midas Marquez uses a parochial application of the sub judice rule when he criticized the UP Faculty on the latter’s stand on the plagiarism issue. To stop embarrassing himself, he should read the constitutional right on free speech in relation to the doctrine of “fair comment on matters of public interest” and also in relation to the In Re Almacen doctrine. Under the Midas Marquez doctrine, you can demand the resignation of the President, Senators, and Congressmen. Heck, you can even demand the resignation of the Pope. But you cannot call on an SC Justice to resign??!! The gods must be going crazy on the promotion of additional gods.

In In Re Almacen, the Supreme Court itself said that “Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve.”

I also plagiarized the following relevant Supreme Court pronouncements:

“Ultimate good desired is better reached by the free trade in ideas… that the best test of truth is the power of a thought to be accepted in the competition of the market, and truth is the only ground by which their wishes can be carried out.”

My personal favorite:

“Sunshine is the best anti-septic; the maligned should answer back and let the marketplace of ideas work; when an idea is exposed to the public for debate, its merits and demerits are exposed and eventually, the public will know the truth and the false;

“The interest of society and good government demands a full discussion of public affairs. Whether the law is wisely or badly enforced is a fit subject of public comment. Public policy, welfare of society and the orderly administration of government have demanded protection for public opinion.”

“freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech x x x discussion would be futile; and that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrines; the greatest menace to freedom is inert people.”

Amen.

RESTORING INTEGRITY


A STATEMENT BY THE FACULTY OF THE UP COLLEGE OF LAW
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war. After they courageously came out with their very personal stories of abuse and suffering as “comfort women”, waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of someone else’s ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice.

A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers’ works and interspersed them into the decision as if they were his own, original work. Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the original writers’ names and the publications from which they came, the thing speaks for itself.

So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.

It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the ‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original authors’ writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary sources.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.

But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled “A Fiduciary Theory of Jus Cogens,” the main source of the plagiarized text. In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely have such opportunities to make an international impact. That the petitioners were Filipino “comfort women” who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its “power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society. Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system. And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.

With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippines College of Law that:

(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;

(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

(SGD) MARVIC M.V.F. LEONEN
Dean and Professor of Law

(SGD.) FROILAN M. BACUNGAN
Dean (1978-1983)

(SGD.) PACIFICO A. AGABIN
Dean (1989-1995)

(SGD.) MERLIN M. MAGALLONA
Dean (1995-1999)

(SGD.) SALVADOR T. CARLOTA
Dean (2005-2008)
and Professor of Law

REGULAR FACULTY

(SGD.) CARMELO V. SISON
Professor

(SGD.) PATRICIA R.P. SALVADOR DAWAY
Associate Dean and Associate Professor

(SGD.) DANTE B. GATMAYTAN
Associate Professor

(SGD.) THEODORE O. TE
Assistant Professor

(SGD.) FLORIN T. HILBAY
Assistant Professor

(SGD.) JAY L. BATONGBACAL
Assistant Professor

(SGD.) EVELYN (LEO) D. BATTAD
Assistant Professor

(SGD.) GWEN G. DE VERA
Assistant Professor

(SGD.) SOLOMON F. LUMBA
Assistant Professor

(SGD.) ROMMEL J. CASIS
Assistant Professor

LECTURERS

(SGD.) ARTHUR P. AUTEA
(SGD.) ROSA.MARIA.J..BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O. CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L. JARDELEZA
(SGD.) ANTONIO G.M. LA VIÑA
(SGD.) CARINA C. LAFORTEZA
(SGD.) JOSE C. LAURETA
(SGD.) DINA D. LUCINARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA

Airport robbery


I was a bit disappointed when I read that President Noynoy Aquino was jubilant over the government’s alleged win in the International Chamber of Commerce against the Philippine Air Terminals Corporation, builder of Ninoy Aquino International Airport Terminal 3. I was disappointed because obviously, the President was made to comment anew by his advisers on an issue that he is not completely familiar with. The arbitration is about how much the government should pay the builders of Terminal 3. It is not even about whether the Philippines should pay as the matter has already been answered affirmatively even by the Philippine Supreme Court. The only issue is how much and what law should govern the valuation of just compensation. There is no reason to be jubilant over a matter that has caused the country so much embarrassment, particularly in Europe.
The airport issue on compensation is hardly a novel issue. The matter of how much to pay a foreign investor when his investment is expropriated by a state is well settled under international law. It started with the famous Aramco arbitration where the British oil giant alleged that its exclusive concession to extract, explore and transport oil was breached when the Saudi leader of the day granted Aristotle Onassis, the oil tanker mogul, a contract likewise to transport Saudi oil. Because of an arbitration clause which said that all disputes arising from the contract should be settled with finality through arbitration, Saudi Arabia agreed to arbitrate but only to invoke the defense that the arbitration violated the country’s sovereign immunity from suits and on the merit, that the concession was in the nature of a franchise and hence, a privilege and not a right. Accordingly, it argued that it could be revoked at will.

In what would become arbitration’s shining moment, the arbitral tribunal, using “general principles of law”, including the Koran and Sharia law, ruled that the concession is in the nature of a contract between a state and a foreign investor. Accordingly, its terms must be complied with faithfully and in case of breach, the innocent party may ask for specific performance, damages, or both. On the issue of sovereign immunity, the tribunal ruled that the same may be waived. When Saudi Arabia entered into the concession agreement, the tribunal ruled that it voluntarily went down to the level of an ordinary contracting party and waived its immunity. On the merits, the tribunal held that Saudi Arabia was in breach of its obligations and must pay the oil giant damages, although critics of the decision argued that the tribunal should have ordered specific performance.

The Aramco arbitration was followed by other arbitrations when other Middle Eastern states also nationalized their respective oil industries. As a result of all these arbitral awards, the rule today is that states have the sovereign right to expropriate foreign investments. It can do so even if the taking is not for a public purpose. In fact, there is now only one simple rule in international law on when a taking is legal, that is: that the foreign investor must be paid prompt, adequate and just compensation.

There is “prompt” compensation when it is paid without delay. In the case of Terminal 3, the taking took place in 2005 when the Supreme Court promulgated its decision in the Agan case and declared the Build-Operate-Transfer contract of PIATCO as illegal, but ordering the national government nonetheless to pay PIATCO just compensation. Clearly, the duty to pay the builder of the structure has been delayed by at least five years reckoned from the taking. This is hardly what is required by international law when it requires “prompt” compensation.

There have been protestations too that the building allegedly is “structurally unsound”. If this is so, why is the terminal being used today for domestic flights? Seems to me that the remedy against unsound structures is to demolish them for being dangerous nuances. The fact that it remains to be used, and will allegedly become completely operational by December of this year, is ample proof of the structural integrity of the terminal. Any claim to the contrary is only for purposes of posturing for a lower cost of just compensation.

There is “adequate” compensation, on the other hand, when the compensation is in a form and currency that is fully convertible. Foreign investors, because they are not residents of the country where they have invested, naturally would require ease in bringing back their investments to their home countries.

Finally, the crux of the matter: how much is “just “compensation? In reality, all that the Philippine succeeded in, in having Fraport’s prior arbitration in the Washington DC-based International Center for the Settlement for Investment Disputes dismissed , and the recent decision of the ICC in Singapore also dismissing both PIATCO’s and the Philippine government’s claims and counter-claims, is to have the matter of how much just compensation is be determined by local courts and pursuant to local laws. This is not a victory because unlike in the past, the Philippine law on expropriation today, the so-called Villar law, adopts the same formula in the determination of just compensation as that provided under International law. In the past, just compensation on realty for both land and improvements was on the basis of the property’s declared value, for real property tax purposes, or the so-called “ameliar”. This was but a fraction of the market value of the property. Today, the Villar law provides that just compensation for land is its zonal valuation, which in most instances is even higher than market price. Improvements, on the other hand, are valued on the basis of is reconstruction cost reckoned at time of taking. In addition, the Villar law also allows for “damages” which can also be for incorporeal assets such as foregone income, a rule also found in international law.

Terminal 3 has been a sore issue with Europe because the foreign investor in PIATCO, Fraport, is not only a publicly listed German corporation, but also owned substantially by both Frankfurt Airport Authority and the City of Frankfurt. Imagine their anger when the Philippines described their project as “substandard”. This is also why ties are strained: for unless they are paid prompt, adequate, and just compensation for a terminal that the Philippines is already using, the taking of Terminal 3 is not only illegal under international law. It is airport robbery, plain and simple.