Deadly Malampaya funds

Doctor Gerry Ortega, the 142nd journalist killed since 1986, was not just a critic of local mining in Palawan. In fact, I met him more than eight years ago because of his involvement in a civil society group, Kilusan Love Malampaya. The group advocates that the people of Palawan should have an “equitable share” in the wealth generated by the Malampaya natural gas and oil field and in the percentage identified by the Local Government Code: 40 percent of all such income generated by Malampaya. This initiative led to the filing of a case, which was finally the subject of oral arguments by the Supreme Court last year. On the basis of the court hearings, it is clear that the Malampaya issue is a three cornered fight: between civil society of Dr. Gerry and Bishop Pedro Arigo who want to enforce the literal provisions of the Constitution and the Local Government Code, the local government that entered into an illegal provisional sharing agreement which Justice Antonio Carpio described during oral arguments as effectively “ an amendment of the law”, and the national government of former President Arroyo that sought to spend the Malampaya funds as its pork barrel.
It is unfortunate that Doc Gerry did not live long to see the outcome of the case that he has lived for. Meanwhile, it is my duty as a friend and as his counsel to correct the mistake of national media speculating that his death may be related to his opposition to three on-going mining projects in Palawan.

The truth is that prior to his death, Doc Gerry was in constant contact with me concerning Commission on Audit reports which detail how Palawan’s local government officials have misused sums given to Palawan as part of the provisional sharing agreements. He was the one who furnished me with a copy of just one of the many COA reports that involved ghost projects, inferior projects and crass misappropriation of public funds. Some of the recommendations of the COA were: “ Refund of P49 million representing excessive cost of projects, disallowance of a P25 million consultancy project, refund of P6 million representing deficiencies, file appropriate charges against (then) Governor Joel T .Reyes, Vice-Governor David Ponce-De Leon, members of the Sangguniang Panlalawigan and the Provincial Administrator x x x”.

While Dr. Gerry’s dedication to the preservation of the environment was in fact notable, police authorities should not discount the involvement of these local officials as masterminds in his murder. I, together with many Palawenos, believe that ultimately, it is these local elected officials of Palawan who may have the motive to silence Dr Gerry.

As of the writing of this column, it has been reported that the gun used for the murder is registered in the name of the former provincial administrator of former Governor Reyes.

Dr. Gerry was first and foremost, one of my closest friends. I will miss him. Already, I miss his weekly phone patch during his daily broadcast in the local affiliate of RMN in Palawan. Ironically, Doc Gerry took over the slot of another broadcaster, Dong Batul, who himself was murdered.

Perhaps it is high time that President Noynoy Aquino once and for all take back his earlier pronouncement and marching orders to Secretary Leila De Lima to run after tax cheats and smugglers as a matter of his highest priority. Please, please: it’s high time that this administration, swept into power on a platform of change, should now accord the highest priority to investigating, prosecuting and punishing the killers in our society.

The Center for International Law, of which I am the chairman, that stood as counsel for Doc Gerry and KLM, and as an advocacy group that seeks to promote freedom of expression, condemns in the strongest possible terms the recent murder of Doc Gerry as yet another affront on freedom of the press. We call upon President Aquino to spearhead an investigation into his death, even if some of those who may want to see Doc Gerry dead happen to be his party mates.


The bomb attack on a passenger bus along EDSA has highlighted anew the country’s inability to deal with modern-day terrorism. Part of the problem is not that we do not have sufficient legal infrastructure to deal with terrorism, as in fact we do, including the dreaded Human Security Act that I have consistently criticized as being inconsistent with our human rights obligations; but that we do not have a working justice system to effectively investigate and punish terrorist.

Recall that when world class bomber, Al Ghozi, was apprehended and detained in Camp Crame, the notorious bomber, probably not liking his food ration, simply walked out of his detention cell. Ironically, it has also been reported that our government created the dreaded Abu Sayaff terrorist group and that the past dispensation allowed our territory to be used as a training ground by the Jemiah Islamiah and other terrorist groups.

In like manner that a working criminal justice system is the panacea to the malaise of extralegal killings, the same is also the panacea to the problem of terrorism. Absent a working legal system, what we will continue to have is more of what we see every day: the streets of Manila and the Philippines reduced into a jungle where lawlessness and terrorism prevail. Will anyone please tell me: who’s in charge here?

Pray for you lives and be safe

The recent death and burning of used car dealers Emerson Lozano and Venzon Evangelista highlight anew President Noynoy Aquino’s most pressing challenge: the restoration of the rule of law. I have said it before and will say it again: these killings are happening because of a lack of political will to make the criminal justice system work. Unless P-Noy recognizes the gravity of the problem and take bold and decisive moves to overhaul the system, no Filipino will be safe.
There should be no difference if the victim is killed because he is a political activist, journalist, or everyday folk. These killings are happening because their perpetrators are not apprehended, prosecuted and punished. Already, the reasons for this impunity are very clear: all the pillars in our criminal justice system are defective and require through overhauls.

First, our police apparently do not know how to investigate. A recent newspaper report indicated that 8 out of 10 of our policemen handling police investigations lack formal training and skills. Even prior to the release of this report, doctor Raquel Fortun, in her lectures on the investigation and prosecution of extralegal killings sponsored by the Center for International Law, complained that existing PNP investigation protocols ask police investigators to identify the suspect first before they are asked to gather evidence. In other jurisdiction that are able to punish killers, the procedure would be to gather evidence first, particularly physical evidence, or the type that does not lie, before they identify the suspect. Worse, in addition to lack of skill, our police of late have become notorious for being criminals themselves instead of being their pursuers. The 62 policemen indicted for the Ampatuan massacre, Sr. Inspector Jose Binuyag and his colleagues at the Asuncion Community Police precinct of the torture video notoriety, and PO 3 Antonio Bautista, who was accused of raping a detainee for vagrancy at the police station itself, are only some of the notorious policemen who have spurned public indignation.

Two, there is the National Prosecution Service with its 19-percent conviction rate. Part of the problem is that cases are lost due to sloppy police investigations. And yet, despite the knowledge that this is partly to blame for its dismal conviction rate, public prosecutors are altogether averse to involving themselves in police investigations despite existing executive orders compelling them to do so. One would think that if inept investigation is the problem, then the involvement of lawyers should be the solution. But no, our prosecutors will continuously invoke their alleged status as quasi-judicial posts as justification for their refusal to be involved in police investigations. One former American federal prosecutor, Christine Chung, also formerly a prosecutor at the International Criminal Court, did not mince her words. In her view, the problem is that Filipino prosecutors are lazy. Full stop.

Three, there is the Judiciary. While our judges today could no longer complain of being underpaid, as in fact, their salaries today, courtesy of recent legislation and allowances from the local government units, are now almost at par with lawyers from the private sector; still, their pay hikes have not been accompanied by a corresponding improvement in their overall efficiency. Judges continue to hear cases at snail pace oblivious to the state obligation to finish the trial of cases involving extralegal killings with dispatch.

Finally, there is the citizenry who have either become jaded and hopeless, on one hand; or have completely lost all belief on the rule of law, turning instead to vigilante killing as the preferred means to maintain peace and order. This is prevalent in areas where vigilante killings are more of the norm rather than the exception. Davao City is one such place where ordinary folks have learned not only to accept the death squads. More alarming is the fact that they have become supportive of such groups.

How should P Noy deal with this single most pressing challenge? Well, he can begin by acknowledging that there is in fact a problem. After which, he should redefine his priorities in the justice front from running after tax cheats and smugglers, as he has asked Justice Secretary Leila De Lima to do; to making the investigation, prosecution and punishment of perpetrators of these killings as his absolute priority. Anything short of this would only strengthen the culture of impunity that already exists in our land.

Meanwhile, dear readers : pray for your lives and try to be safe.

Cha-cha, anyone?

Former Chief Justice Reynato Puno had very controversial submissions the other day. The occasion was the conferment on him of the Doctor of Laws Degree, Honoris Causa, which was yesterday’s highlight of the centennial celebration of the country’s and Asia’s premier law school, The College of Law of the University of the Philippines. According to the respected former magistrate, now, in P-Noy’s new administration, is the time for Charter change. He disagreed that change should come only when democracy is already at “ICU”. He then submitted seven proposals for amendments, all of which focused on three areas of constitutional reforms: one, further measures to promote popular representative democracy, or the need to break the hold of the elite on political power in this country; two, an analysis of the relative strength of the parliamentary form of government vis-à-vis the presidential form of government; and three, the need to promote fully the autonomy and the independence of our courts.
No one can argue against any of the areas identified by Puno as warranting reforms. What may be disputed though is whether these reforms actually require amendments to the Constitution and the wisdom of dancing to the cha-cha now.

For instance, no Filipino will argue against reforms intended to break the monopoly of the rich over political power in this country. The roster of the members of Congress, and even of P-Noy’s Cabinet and other appointees, resonate with names which have been known as belonging to the very rich in this country. But how will amending the Constitution break this monopoly? As currently worded, the 1987 Constitution already introduced reforms intended to make democracy here more representative. There is the provisions for party-list groups intended to provide marginalized sectors of society representation in Congress, and the system of initiatives and recall, where ordinary people, and not just members of Congress, can make and repeal laws. From our recent experience, though, where the likes of ex-presidential son Mikey Arroyo who has been elected as a representative of security guards, no amendment to the 1987 Constitution can bar efforts to abuse the Constitution where there are those who exists to do only such things. Instead of a constitutional amendment, what our party list requires are amendments to its implementing legislation that allows non-members of a marginalized group to sit as representative of these groups. Furthermore, there is a need to amend the existing law to prevent regional groups, such as the no. 1 party list group in the last elections, AKO Bicol, from participating in the party list elections despite the fact that Bicol is already represented in Congress, by its elected district congressmen and women.

Then there is the issue of autonomy and independence of our courts. Here, Puno highlighted two areas of reforms: first, the need to end the Judiciary’s annual mendicancy (my choice of word) on the Department of Budget and Management to release its annual measly budget; and the need to insulate appointments to the judiciary from partisan politics. The former Chief Justice identified the membership of the Secretary of Justice and the representatives from the Senate and the House of Representatives to the Judicial Bar Council, the constitutional body that vets nominees to judicial posts, as a “virus” ( his choice of word) which pollutes the process of judicial appointment with partisan politics.

On his claim of poverty, well this apparently is relative. While the Chief claimed poverty of our courts, Senator Franklin Drilon, citing COA reports, belie this with the fact that annually, our Judiciary has been reporting savings of at least a billion pesos. Where is judicial poverty, the senator asked. Furthermore, there is the matter of the Judicial Development Fund which almost led to the impeachment of former Chief Justice Hilarion Davide. Until today, it appears that it is only the Chief Justice and his court administrator who know how much this fund is and how it is being spent. Anent the need to insulate judges from politics, I am of the view that the Judicial Bar Council created under the 1987 constitution already offers a compromise between those who, on the one hand, want some kind of political influence over the courts; and those who want complete independence. I believe that the current system is a healthy compromise because judges, since they do not have a popular mandate, should not be completely beyond the influence of the people’s representatives. At the same time, they should not be at the beck and call of the people’s representatives since this is a sure way for the people to lose their trust in the judicial system.

In the final analysis, the ultimate issue to be addressed by cha-cha is the issue of parliamentary versus presidential form of government. Yes, I concede that even the Commission that drafted the 1987 constitution was divided almost evenly on the issue. And yes, one could not turn a blind eye to the weakness of the presidential type of government particularly now – where initiatives of a reformist President with an overwhelming mandate from the people appear to be hindered by a court, which in the words of the CJ , “can be packed by a President” which “rightfully or wrongfully”, may be loyal to its appointing power”. But the issue is: should cha-cha be now? Certainly not when talks are rife that the past dispensation appears bent on returning to Malacañang as prime minister and with no term limits at that! Maybe when she and her cohorts have moved on, then we could then learn to dance the cha-cha. But for goodness’ sake, NOT NOW.

Airport robbery II: The P2-billion loss

I was dismayed that President Aquino, through his spokespersons, has turned out to be the loudest defender of his predecessor fromer President Gloria Macapagal-Arroyo on the dirty airport deal. Terminal 3 become a dirty deal for two reasons: one, if the German investors are to be believed, their Build-Operate-Transfer Contract was allegedly cancelled by the past dispensation because they refused to pay huge sums of amount that Arroyo officials attempted to extort from them. In fact, it was on this basis that the first and second impeachment complaints against Mrs. Arroyo, which P-Noy endorsed when he was still a congressman, included the Terminal 3 project as a ground for teh complaint. Two, because until and unless the builders are paid their prompt, adequate and just compensation, the continued use of Terminal 3 is unconstitutional for violating the due process clause of the Constitution. This provision provides that there shall be no taking of property without due process of law. It is furthermore, also illegal under international law for constituting an illegal taking.
These illegalities have been highlighted anew when the International Centre for Settlement of Investment Disputes ruled last December 23, 2010 to annul an earlier ICSID panel decision which dismissed the complaint by Fraport for just compensation on the basis of what in international litigation is referred to as a “preliminary objection”. This is, in layman’s terms, a dismissal on the ground of lack of jurisdiction.

Recall that Fraport first submitted the issue of illegal taking of its property rights in Terminal 3 with the ICSID in 2003, shortly after the Philippine Supreme Court promulgated the “Agan vs. PIATCO” decision which nullified the latter’s BOT contract as being “null and void ab initio”. ICSID is a facility maintained by the World Bank in order to encourage capital investment in developing economies by providing an effective and speedy disposition of investment disputes. Its existence is by reason of a treaty, the ICSID Convention, and its jurisdiction is based also on consent freely given by states when, among others, they execute Bilateral Investment Treaties which will in turn provide that investment disputes existing between the contracting states should be resolved with finality by the center.

When Fraport commenced arbitration against the Philippine government, it prayed that prompt , adequate and just compensation be paid as provided under international law. The Philippine government, like any state, would not want such a determination to be made under international law obviously because state organs, such as domestic courts, using domestic laws, would be rendering an amount more favorable to the state than the investor. Hence, as a matter of strategy, the Philippine government resisted the proceedings in ICSID opting initially to shy away from the proceedings, but later relented and belatedly argued that it had no jurisdiction.

The Philippine position was this: the jurisdiction of the ICSID was pursuant to a bilateral investment treaty between Germany and the Philippines which referred the settlement of investment disputes to the ICSID. Under Article 1(1) of the treaty, an “investment” shall mean any “kind of asset accepted in accordance with the respective laws and regulations of either contracting party”. The Philippines’ position was that only investments which complied with Philippine laws could be submitted to the ICSID. And because Fraport, by exercising acts of management, ironically in the exact same way that Smartmatic did in the conduct of the last automated elections, allegedly violated our criminal laws, specifically the Anti Dummy Law, the ICSID should not exercise jurisdiction.

The first ICSID panel gave credence to this submission by the Philippines and hence dismissed Fraport’s complaint.

From this decision, Fraport filed, also before ICSID, an action to annul its earlier decision, on the ground, among others, that the panel committed “serious departure from procedure” when it dismissed Fraport’s complaint on the basis purportedly that the latter violated the anti-dummy law. Specifically, this second ICSID panel found that the earlier panel violated Fraport’s right to be heard when after the earlier tribunal had already declared the proceedings as having been terminated, the Philippine government continued to manifest the happening of subsequent facts including a dismissal by the then Chief State Prosecutor of a complaint against Fraport for violation of the anti-dummy law but purportedly only “because the prosecutor did not have access to secret shareholders agreement which had he had access to, would have resulted in an indictment”. It was on the basis of this belated information that the earlier panel ruled to dismiss the original complaint.

To this narration of facts, the second panel annulled the earlier decision because : “ the tribunal could not… have made such a determination, (that the Prosecutor could have indicted Fraport for violating the ADL) without hearing both parties on the adequacy and effect of record before the Prosecutor and considering such further evidentiary enquiries or proceedings as may be necessary in light of the submissions”.

The ICSID highlighted that information on the dismissal was submitted after a 14 February 2007 order that the tribunal “does not wish to receive any submission from either of the parties”. This according to the tribunal was “ incompatible with the fundamental obligation… to permit both parties to present their case in relation to new material”.

So now it can be said: after all adulation and even appointments given to some members of the Philippine legal team that represented the Philippines in these international proceedings—which in the end, the Philippines lost—who will now pay the P2 billion pesos which Mrs. Arroyo paid to lawyers who lost the case for us? Obviously, it will again be the poor Filipino people. Darn this dirty airport robbery!.