What cost reprieve?

FOREIGN relations is not for the weak. In promoting their national interest, states employ their best poker players as diplomats to bluff, cajole, and threaten if need be. It is not for the faint hearted. Because in asserting what is best for a country, diplomats will employ ruse, lies and gimmickry to achieve what is best for their sending state.
And yes, because foreign policy is a nasty game played by diplomats everyday, states must have a clear view of what comprises its national interest so that in the course of this intricate game of deceit known as diplomacy, diplomats would have a clear picture of what should be done to suit their national interests.

When news came out that Vice-President Jejomar Binay earned a temporary stay on the execution of the three Filipino drug mules in China, the question that came to my mind was: at what cost?

The official line, of course, was that it cost us nothing. Had it not been for my new found respect for the Marines that joined Sen. Sonny Trillanes in standing up to the evil one, I would have quickly said: tell that to the Marines.

In truth and in fact, no country, especially China, would grant a diplomatic concession without a price. What does seem more likely is that there was a cost, but our leaders are unwilling to tell us exactly how much it was.

The possibilities on how much it cost us to procure the stay are endless. There is the Northrail contract which, according to Sen. Franklin Drilon, should make it to the Guinness Book of World Records for being “the most expensive railway project on earth.” With a project cost of almost a billion dollars, it is almost as expensive as the Shanghai magnetic bullet trains, with the difference being that while the Shanghai train is levitating and runs at 300 kilometers per hour, our Northrail runs on diesel at 60 kilometers an hour. And were not even sure, in the absence of a detailed bill of materials, if it is brand new or junk. It could even be the precursor of those ultra modern Shanghai bullet trains.

Despite the change in government, and despite the fact that Northrail has always been a banner issue of the Liberal Party, I am surprised, to say the least, that this administration has not put an end to the Northrail scam. Surely, this could be one possible cost of the stay?

Then there is the Joint Maritime Seismic Exploration Agreement that had recently expired. Why the past dispensation entered into a joint exploration of our mineral resources with a foreign county despite an expressed constitutional provision reserving such exploration to Filipinos is just beyond comprehension. But with Chinas insatiable demand for oil, and the proven oil and natural gas reserves located in the South China Sea, the renewal of this agreement could yet be a convincing cost for the stay.

Forget oil for one moment. What about gold? One of the documents that I made public as evidence of GMAs many sins was one signed by Peter Favila granting ZTE Corp. of China the botched National Broadband Network deal plus the famed Diwalwal and North Davao mining concessions.

Initially, the likes of former Environment Secretary Lito Atienza denied the existence of that contract. Favila would later admit the physical existence of the contract but insisted that the Memorandum of Agreement was far from a perfected contract. Legalese defense notwithstanding, the MOA clearly granted ZTE the right to extract gold from Diwalwal and North Davao.

The latest from the grapevine is despite PNoys new administration, this grant to ZTE may still be may be honored indirectly: bid out Diwalwal and North Davao to a dummy Filipino corporation which in turn, will turn over the contract to ZTE. Lots and lots of gold for three stays of execution? Why not?

Then there are the disputed Spratlys islands in the South China Sea. With former solicitor general Estelito Mendoza advising the Philippine Senate in the last Congress that adopting the disputed Spratlys Islands as part of our archipelago might trigger a military confrontation with China, obviously one that we cannot win, it is still possible that the cost of the reprieve may be some of the disputed islands. After all, didn’t China simply shoo off our soldiers from Mischief Shoal in order to lay claim to it? So why not islands for reprieve?

The point is that policy makers should realize that nothing comes for free in the field of foreign relations. While saving Filipino lives, even those found guilty of large scale drug trafficking, is important for a Catholic country like ours, policy decisions such as winning a reprieve for three Filipinos from the death penalty, should be made with a clear understanding of what it will cost the country.

In the absence of a holistic picture of what our national interest are in relations to a powerful country like China, the possibility of an “uneven” deal becomes a very real possibility. And lest we forget, they were not apprehended with inconsequential amount of drugs, they were caught with a whole lot of them.

Perhaps, it is high time that we realize that unlike our legal system, some countries do enforce their laws as a matter of course. Dura lex, sed lex. The law may be harsh, but such is the law.


The good news is that after five or so years, we may finally impeach Merceditas Gutierrez. This is because of the Supreme Court’s ruling yesterday dismissing her petition to restraint the House of Representatives from hearing two impeachment complaints against her. The Ombudsman complained that since two petitions were filed against her; to wit, one from Akbayan and another by Bayan, then there is a violation of the constitutional prohibition on the filing of multiple impeachment complaints within one year.

With a slim majority, the Supreme Court upheld our earlier position in Martinez vs. House of Representatives where we argued that the prohibition is against multiple impeachment proceedings and not multiple complaints. In Martinez , the House of Representatives, taking the cue from Congressman Edsel Lagman’s “prejudicial questions”, ruled that a subsequent amended impeachment complaint, which superseded the original Lozano complaint against GMA, was barred as a prohibited second complaint. On certiorari, we argued that since the decision of the Supreme Court in Roque vs. De Venecia was that commencement of an impeachment complaint was the filing of an impeachment complaint and its referral to the Justice Committee, there is no violation of the constitution where both the original and the amended complaints were referred to the Justice Committee at the same time. The only weakness in our position then was articulated by Fr. Joaquin Bernas who agreed with our position, but doubted if the court can compel the Committee on Justice to consolidate all complaints into one committee report which is the usual recourse in legislation. With this latest ruling in the Gutierrez case, it is now clear that impeachment, as the constitutional mode to promote accountability of very high impeachable officers, is not a race amongst rats. It can no longer be that an impeachable officer can have a year free of impeachment through the filing of an earlier sham complaint that could be dismissed by congress for insufficiency in form and substance. At least, it is now clear that the one impeachment bar should apply only after the Committee on Justice had already deliberated on all complaints referred to it on the same date and not just on the basis of which complaint was filed first.

The practical consequence of the ruling is that finally, we can hold the Ombudsman liable for her non-action in complaints involving GMA and her cohorts. It also involves her snail pace investigation in the 15 year unsolved murder case of Navy Ensign Philip Pestano whose killers continue to be at large until today. It must be a source of solace to the parents of Philip that while the killers have not yet been punished, a woman who was instrumental in their impunity could at least be held liable.

I hasten to warn though the House Committee on Justice from entertaining further charges not included in the twin complaints of Akbayan and Bayan Muna. I have read Deputy Speaker Erin Tanada’s opinion that they are studying including the additional charge of the Gen. Garcia plea bargaining agreement as a further charge against the Ombudsman. With all due respect to Rep. Tanada who should be Senator soon, this may give the Ombudsman further armament to go up anew to the Supreme Court to question the validity of the extra charge. The fact is, regardless of the specific charges against her, what we need now is the political will to muster the numbers to remove the Ombudsman. While the Garcia plea bargain deal is equally deplorable, let’s not risk yet another stay order from the high court . Let’s concentrate on getting the numbers and getting it as soon as possible.

Still on the issue of accountability of public officers, while our local customs and traditions value honoring the dead, I am nonetheless of the belief that the recent burial of former AFP Chief of Staff Angelo Reyes should mark the commencement anew of our continuing search for the truth and accountability. Without meaning to be disrespectful, the decision to end his life was one made by Gen. Reyes alone. This should not be a reason for us to detract from the genuine issue at hand, which is systemic corruption in the military. While I condole fully with the Reyes family, I agree still with the opinion of Senator Miriam Defensor-Santiago that the estate of Gen. Reyes should still be held responsible if it is proven that the departed General really partook of the pabaon system. That system is illegal, full stop. Moreover, regardless of how one may have viewed the actuation of Senator Sonny Trillanes in questioning Gen. Reyes, the fact remains that the good Senator was only articulating what should be the correct position of every decent human being: absolute intolerance to corruption. I submit that part of why corruption has become systemic in this country is that we put too much emphasis on “civility” over principles. The correct conduct should be to shame those who have plundered the public coffers so that they may not enjoy the fruits of their criminal acts as if they are civilized people. In other words, we should consider thievery as the worse form of conduct and deal with them accordingly: with absolute contempt. This is what is meant by zero tolerance to corruption. And this is what we must do to end corruption in this country.

To the thieves in this country: beware. We shall shame you and in a manner that would make the conduct of Trillianes look genteel.

Victims and reparations

Sigfrid Fortun referred to it as a “breach of discipline”. I referred to it as “continuing trauma”. We were referring to the outburst of Myrna Reblando in the last hearing of the Ampatuan massacre case in Branch 221 of the Regional Trial Court in Quezon City. On the basis of newspaper reports, Myrna, while listening to the testimony of a medico-legal officer on the injuries sustained by some of the Mangudadatu kin, apparently left the court room distressed and, as one newspaper put it, “lost it”. She shouted invectives directed at Fortun and another defense counsel, Andres Manuel, who in a previous hearing asked another medico-legal officer if some of the fatal wounds of the victims could have been self-inflicted. Myrna has been controlling her temper ever since that question about the possibility of suicide. To her and the other victims, that question added insult to their grief.
In response to a letter filed by Fortun describing the incident as a security issue, we filed a motion for the court to order the Department of Health, the Department of Social Work and Development and the Department of Interior and Local government to provide all 14 of our female clients with psychosocial support.

We argued in our motion that the incident last 03 February 2011 “highlights their dire and urgent need for psychosocial support and other counseling facilities, so they can endure the tragic loss of their family members killed in the 23 November 2009 Maguindanao massacre”. Consequently, we sought for the ancillary remedy by way of support pendent lite in the form of “psychosocial” services to be provided to them during the pendency of this case. This, we said, was in accordance with the doctrine of the State as parens patriae, a doctrine long established in jurisprudence. This, in the case of Government of the Philippine Islands v. Monte de Piedad, citing foreign jurisprudence, was defined as the right of the state “to enforce all charities of public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it. “

We argued likewise that the duty to provide health and social services especially to women is enshrined in no less than the Philippine Constitution, and existing laws. Specifically, we invoked Republic Act No. 9710, otherwise known as the “The Magna Carta of Women” :

Section 10. Women Affected by Disasters, Calamities, and Other Crisis Situations. – Women have the right to protection and security in times of disasters, calamities, and other crisis situations especially in all phases of relief, recovery, rehabilitation, and construction efforts. The State shall provide for immediate humanitarian assistance, allocation of resources, and early resettlement, if necessary. It shall also address the particular needs of women from a gender perspective to ensure their full protection from sexual exploitation and other sexual and gender- based violence committed against them. Responses to disaster situations shall include the provision of services, such as psychosocial support, livelihood support, education, psychological health, and comprehensive health services, including protection during pregnancy.

Finally, we argued that RA 9710 especially mandates local government units—which are under the general supervision of the Department of the Interior and Local Government—to deliver necessary services and interventions to “women in especially difficult circumstances” :

Section 30. Women in Especially Difficult Circumstances. – For purposes of this Act, “Women in Especially Difficult Circumstances” (WEDC) shall refer to victims and survivors of sexual and physical abuse, illegal recruitment, prostitution, trafficking, armed conflict, women in detention, victims and survivors of rape and incest, and such other related circumstances which have incapacitated them functionally. Local government units are therefore mandated to deliver the necessary services and interventions to WEDC under their respective jurisdictions. (Emphasis and underscoring supplied)

Under International Human Rights law, victims are entitled not just to monetary compensation for civil damages sustained, but also to reparations. This latter principle is a broader concept compared to compensation since it also includes the restoration of the status quo ante, including the psychosocial condition of the victims. Hence, the duty of the state to provide psychosocial support.

Here’s hoping that Myrna’s outburst will usher in much needed reforms in the promotion of victims rights in this country.

Woman sues RP for gender discrimination before United Nations treaty body CEDAW

Ms. Mariquit E. Soriano files her Communication to the United Nations CEDAW Committee today, represented by Atty. H. Harry L. Roque Jr. of CenterLaw Philippines, alleging violation by the highest court of the land – the Philippine Supreme Court – of her right not to be discriminated against by reason of her gender.

The complaint stems from a labor case she had filed against her employer at the Digitel Telecommunications Philippines, Johnson Robert L. Go, the company’s Executive Vice President and Chief Operating Officer, in connection with an alleged sexual harassment she suffered in their hands.

She complained of professional harassment from Eric J. Severino (Senior Vice President and Head of Business Division), and sexual harassment perpetrated by Johnson Robert L. Go (Senior Executive Vice-President and Chief Operating Officer of Digitel).

Her case went all the way to the Supreme Court, who rejected her claims as unbelievable when compared to their understanding of ‘human experience’. Her communication to the CEDAW Committee assails this Supreme Court judgment as discriminatory on account of her gender, contrary to the Convention on the Elimination of All Forms of Discrimination Against Women.

Ms. Soriano was employed by Digitel Telecommunications Philippines, Inc. from August 1998 until June 2000. Ms. Soriano held the position of Director of Market and Communications Department during her tenure.

From the earliest stages of her employment, Ms. Soriano achieved high performance ratings of over 90%. However, following a series of incidents comprising sexual and professional harassment Ms. Soriano handed in her resignation in June 2000.

Ms. Soriano commenced Labor and Criminal proceedings against the company and her harassers. However, her criminal charges were only brought against Johnson Robert L. Go for Acts of Lasciviousness, and then the entire complaint was dropped following Go’s death in December 2004.

In the Labor proceedings, Ms. Soriano was successful in the Court of Appeals, only to have the decision overturned by the Supreme Court in 2006.[1]

The decision of the Supreme Court provides the basis for the petition to the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)[2] Committee.

The Philippines was recently lambasted by the CEDAW Committee for its Supreme Court decision in Karen Vertido’s rape case.[3] The complaint brought by Ms. Soriano alleges similar breaches of the CEDAW Convention: discriminatory judicial treatment through the use of gender myths and stereotypes in assessing the victim’s credibility.

The Supreme Court Decision suggested that Ms. Soriano’s account of sexual molestation by Go at a company function was unbelievable due to its ‘non-conformity with human experience’, saying:

“Mariquit went on to claim that Go crept his hand under a throw pillow and “poked” her vagina several times. She justified her failure to flee by claiming that she was “hemmed in by the arm of the sofa.” But if indeed Go did such condemnable act, could she not have slapped him or stood up and/or left?

Yet still, by her claim, Mariquit danced on the same occasion with Go, albeit allegedly thru force, during which he pressed her close to him and moved his hand across her back to feel her body. Any woman in her right mind, whose vagina had earlier been “poked” several times without her consent and against her will, would, after liberating herself from the clutches of the person who offended her, raise hell. But Mariquit did not.”

This stereotypical reasoning that women should behave in a certain manner in response to sexual violence is contrary to CEDAW article 5 (a) which requires State parties to take all appropriate measures to:

“..modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;” (emphasis supplied)

The current Communication alleges related breaches of CEDAW articles 2 and 11 in conjunction with article 5 above.

Through her petition, Ms. Soriano hopes to obtain compensation from the Philippine state, should the CEDAW Committee find in her favor and recommend financial reparation for the violation of her rights (as was the case for Karen Vertido).

For further information from CenterLaw Philippines regarding this case, or for electronic copies of the communication / press statement / primer, please contact Atty. H. Harry L. Roque Jr. athroque@roquebutuyan.com or Romel R. Bagares at rbagares@roquebutuyan.com

[1] Case reference G.R. No. 166039 June 26, 2006

[2] Please see attached ‘Primer on the CEDAW Committee and its Individual Communication Procedure’

[3] Case reference CEDAW/C/46/D/18/2008, found at: http://www2.ohchr.org/english/law/jurisprudence.htm

Philippines Get Poor Marks in Rule of Law Index

The Philippines received very poor to poor marks in the World Justice Project’s “Rule of Law Index”. The Index, according to the report, is “a new quantitative assessment tool designed to offer a comprehensive picture of the extent to which countries adhere to the rule of law in practice”.

According to the report, the Philippines scored very poorly and placed last or seventh out of seven Southeast Asian countries surveyed in the areas of law and security (.57), fundamental rights (.50), and effective criminal justice (.53). It was sixth, or second to the last in the region in the areas of Limited Government Power (.57), Absence of Corruption (.45), Clear, Publicized and Stable laws (.43), Regulatory Enforcement (.52) and Access to Civil Justice (.48). The Philippines ranked fifth in only one category: Open Government (.38).

In its Executive Summary, the World Justice Project defined the rule of law as rules-based system where four universal principles are upheld: The government and its officials and agents are accountable under the laws; The laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; The process by which laws are enacted, administered and enforced is accessible, fair and efficient; and Access to Justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient numbers, have adequate resources, and reflect the make-up of the community they serve.

In its “Regional Highlight”, the report observed that in East Asia and Pacific “Wealthier countries such as Japan , Australia , Singapore and South Korea score high in most dimensions. In contrast, Indonesia , the Philippines and Thailand generally rank significantly lower than the wealthier countries in the region”. Relative to the world, the report concluded: “The Philippines falls within the bottom half of the rankings, even when compared to similarly situated countries, particularly in the areas of stable laws, access to justice and corruption.

The report also reported that as experienced by the people, 87% of 1000 respondents from Manila, Cebu and Davao said that they have not experienced a burglary within the last three years. Out of the 13% that responded that they have in fact experienced burglary, 51% reported the crime to the police, while 49% did not. On mechanisms to enforce a contract or to recover a debt, only 5% of the respondents went to court and expected the process to last 1 to 3 years, while 27% of the respondents resorted to direct renegotiation and 23% took not action. These figures can be read as indicative of a lack of trust in the Philippians judicial system by the individuals who took part in the survey.

The study defined government powers as “the means by which the powers of the government are limited and by which they are held accountable under the law”. In its study on corruption, the report considered three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of entrusted public resources.

In measuring the rule of law, the report first developed the conceptual framework summarized in the Index’s ten factors in consultation with academics, practitioners and community leaders around the world. A questionnaire was then developed based on the conceptual framework and administered by experts and reputable polling entities. A team then collected and mapped the data into 49 sub-factors. A final ranking was made using a five step process. The data was then subjected to several tests to identify possible biases and errors. The findings were then subjected to a sensitivity analysis by the European Commission’s Joint Research Centre.

The report indicated the following individuals as Honorary Chairs of the project: Madelaine Albright, James Baker III, Stephen Breyer, Jimmy Carter, Warren Christopher, Hilario Davide Jr, William Gates Sr, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’ Connor, Desmund Tutu, Paul A. Volker, among others.

Ninety billion motives

Now it can be told: there are at least 90 billion reasons behind the murder of Dr. Gerry Ortega, the 142nd journalists to be killed in this country since 1986. The 90 billion represents the “financial assistance” granted to Palawan purportedly pursuant to an interim sharing agreement between the provincial and the national governments over the proceeds of the Malampaya natural gas deposits.
The late Ortega and his colleagues at the Kilusan Love Malampaya have opposed this agreement for being both unconstitutional and contrary to the Local Government Code. A case to annul the agreement—entered into during the Arroyo administration—remains pending with the Supreme Court.

While bulk of this sum remains unspent, a colleague and neighbor of Gerry, Dr. Jose Antonio U. Socrates, a renowned UP College of Medicine graduate and a part-time geologist, filed no less than six complaints with the Office of the Ombudsman involving the misappropriation of the staggering amount of half-a-billion pesos for projects identified by President Aquino’s party mate, then-Rep. and now Governor Abraham Mitra. This humongous amount was for projects identified by Mitra for 2008 alone, representing Southern Palawan’s share of the 20 percent financial assistance derived from the Malampaya funds for that particular year.

KLM has consistently opposed this interim sharing agreement for violating the constitutional norm that Palawan is entitled to an “equitable share” in all revenues and income realized by the national government from natural resources found within the area of Palawan. The Local Government Code provides, in turn, that this share shall be 40 percent of all such wealth, which sum should first be applied towards lowering the cost of power in the province. Despite earlier verbal pronouncement that she would honor this percentage, former President Gloria Macapagal Arroyo reneged on her word (how typical of her!) and refused to give Palawan. The reason cited was that since Malampaya is 80 kilometers from the Palawan mainland, it is beyond Palawan’s “municipal waters.” Consequently, Palawan is not entitled to anything.

Doc Gerry and KLM argued in the Supreme Court that Malacañang was wrong since oil and natural gas is derived from the natural prolongation of Palawan’s land mass, called the continental shelf, and not from the municipal waters. Further,they argued that while Malacañang insisted that all wealth belonged to the national government, the “equitable share” mentioned in the constitution and the 40 percent mentioned in the local government code are still the constitutional and legal bases for Palawan’s entitlement to at least P90 billion representing the province’s 40-percent share in all revenues derived from Malampaya as of 2010. We make the disclosure that we represent the petitioners in this cause-oriented case.

While Mitra himself has not been charged in connection with this anomaly, the fact remains that under the notorious pork barrel system, members of Congress do make SOPs ranging from 10 to 30 percent of the total project costs for projects which they have identified. What made the spending of Malampaya funds in this manner more deplorable than the pork barrel system is unlike pork barrel funds, which is funded in the annual appropriations law, the “financial assistance” scheme of Madame Gloria to Mitra et al. is bereft altogether of statutory basis. Instead, it was former President Arroyo alone who arrogated unto herself legislative powers and unilaterally classified these Malampaya earnings as her own pork barrel to give away. The consolation is that as a result of Socrates and Ortega’s advocacy, the Ombudsman has at least suspended seven engineers and there more employees from the Department of Public Works and Highways for “anomalous implementation of infrastructure projects” in the district of then Rep. Mitra, either “by overpricing and/or falsification of documents”.

It is now a matter of time before these engineers and other employees start singing to tell the world who benefited from these documented cases of ghost projects and overpricing of infrastructure projects funded by Malampaya. Meanwhile, I would hope that Ms. Gina Lopez, the great lady that she truly is, should focus instead on the misappropriation of the Malampaya funds as the true motive for those who sought to silence Doc Gerry and not his advocacy for the environment. Ultimately, Doc Gerry knows from where he is right now who these powerful people who ordered his killing are. And yes, while there are murderers who would want to plunder the environment in Palawan, let us not discount the murderers who have already plundered the Malampaya funds.

In any case, kudos are also in order for P-Noy who has put an immediate halt to this anomalous sharing agreement that has enabled only a few in Palawan to benefit from the blessings of Malampaya. I am sure that Mitra’s current affiliation with the ruling party would have been a very strong basis to continue with the agreement that bred only corruption. Fortunately, P-Noy saw through political opportunism and opted to let the whole nation benefit from the Malampaya wealth instead. We hope P-Noy will go the extra mile and ensure that the brains behind Doc Gerry’s murder should be investigated, prosecuted and punished as soon as possible. This, after all, is a non-derogable obligation of the country, to protect and promote the right to life.

Meanwhile, our continuing condolences to the family of Doc Gerry and his province mates in Palawan. Doc Gerry may be gone, but his fight shall go on! Mabuhay ka, Gerry and congratulations for a life well lived!