Lessons from three executions


It’s easy to apprehend the outburst of public sympathy for the three death convicts executed yesterday in China: Ramon Credo, 42; Sally Villanueva, 32; and Elizabeth Batain, 38. They were, like many of us, our relatives and our friends, overseas Filipino workers, forced by poverty to venture into foreign lands to support their families in the Philippines. Like the rest of the Filipino diaspora, they have been making both ends meet and enduring the loneliness of working in foreign lands, including in China with the formidable language barrier, to feed and support their loved ones in the country. And while lack of knowledge is not a defense generally for possession of large quantities of prohibited drugs anywhere, we cannot help but feel sympathy for those who were unwittingly used as drug mules just to earn the extra buck because modern day slave wages are simply not enough.
But while their deaths should indeed be a reason for national mourning, the fact remains that unless we learn from this latest painful experience, it will happen over and over again given the sheer number of our countrymen working as cheap laborers in foreign lands. What are these lessons?

First, while the Marcos policy to aggressively pursue the export of manpower as a tool of economic development has proven to be hugely successful, at least in terms of increasing our gross national product; the time has come for the nation to reevaluate the wisdom of this policy. The export of labor as an economic strategy was formulated at a time when the country’s economy was in shambles owing to the lack of business confidence under conditions of martial law. I submit that this is no longer the case. With a population of almost a hundred million, ours is now a market that can be self-sufficient, albeit the export market, specially the Asean common market, is still an attractive destination for our goods and services. The time, in other words, has come to provide jobs domestically so that Filipinos no longer have to endure slave like conditions in foreign lands. Of course, there are some of us who have been luckier and have been working as professionals and skilled workers enjoying very high living standards in developed economies. These individuals should stay where they are. What I am advocating is for Filipinos earning measly salaries even by Philippine standards; the domestic helpers in particular, should now be provided jobs in this country. If Laos, Vietnam, and Cambodia have attracted more foreign investors compared to us, the time has come to ask ourselves why foreign investors are averse to investing in the Philippines. Here, the lack of predictability arising from a weak rule of law, lack of consistency in economic policies, and the illegal taking of alien property rights as in the case of NAIA Terminal 3, are some of the major reasons behind this aversion.

Two, the country should pursue the protection and promotion of fundamental human rights as the cornerstone of our foreign policy. Ultimately, these rights will provide the much-needed protection for our countrymen wherever they may be. Not too long ago, the Aquino administration decided to snub the Nobel awards rites honoring a Chinese activist purportedly because we wanted to please China in an effort to spare the three from the lethal injection. Yesterday proved that the decision to snub the Nobel was a fatal mistake. Not only did we abdicate our traditional role as a leading advocate for the protection and promotion of fundamental human rights, such as the freedom of expression; but as yesterday proved, also for naught.

Ultimately, what is at issue with these executions is not just Philippine-Chinese relations, but also the legality of the death penalty itself as being inconsistent with the right to life. What is so abhorrent with this latest experience is the fact that while there exists the possibility of mistake committed by Chinese courts, the imposition of the death penalty, on the other hand, is irrevocable. Furthermore, the views expressed by the Human Rights Committee on the right to life is that this right is absolute and that countries that are still imposing the death penalty should take steps to abolish the same.

Domestically, it is hence important for our legislators to resist the temptation to re-impose the death penalty. Here the arguments against it are just too many: the lack of empirical evidence to show that it has a deterrent effect and the fact that courts are more often than not, incompetent in their appreciation of law and evidence. While the Philippines under the past dispensation has signed the second optional protocol to the International Covenant on Civil and Political Rights which would mandate us never to re-impose the death penalty, this may not have been concurred in yet by the Senate. Hopefully, the tragedy that befell our countrymen in China will hasten this process of Senate concurrence.

Three, there is an imperative need to undertake major revamp of personnel and systems in our airports and in the Bureau of Immigration, as well as the Bureau of Customs. How kilos and kilos of heroine could pass through our airports is just deplorable. Better jail these mules in the Philippines for a lifetime rather than witness many more of them put to death in foreign countries for drug trafficking.

Finally, perhaps the time has come to create the post of legal aid officer in all of our diplomatic and consular missions abroad. While these lawyers cannot practice law in foreign jurisdictions, these lawyers could at least study what the local laws. Moreover, they could liaison with foreign lawyers and hence, provide better consular assistance to many of our migrant workers who have kept our economy afloat all these years. Surely, these workers have already earned the right to have this additional service even if it means granting the Department of Foreign Affairs additional budget for this purpose.

Is the resolution on Libya a lawful use of force?


IThe media reported recently that 110 missiles were fired by the United States and its allies against unspecified targets in Libya. These missiles were presumably fired pursuant to United Nations Security Council Resolution 1973 which, among others, gave member-nations of the United Nations a mandate to “to take all necessary measures x x x to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi”; and further, “to take all necessary measures to enforce compliance with the ban on flights”. These measures were enacted by the Security Council pursuant to Chapter 7 of the UN Charter. They are aimed at addressing a “threat to international peace” and are legally enforceable. Resolution 1973, although an unusual way of enforcing international humanitarian and human rights law, is far from being novel. It has been the technique of the Security Council, commencing with the humanitarian crisis that struck the former Yugoslavia and Rwanda in the mid-1980’s, to characterize gross and systematic violations of human rights as threats to international peace to justify the imposition of sanctions. This includes military sanctions of the type that we are currently witnessing in Libya. But commendable as the practice has been, resort to coercive sanctions even for the most noble of purposes has been legally controversial, if not actually fraught with infirmities.When member-nations of the UN vowed to end wars by making them illegal, it was also their intention that in an effort to promote international peace, the UN itself, in addition to the long established right of states to resort to self-defense, would have a monopoly on the lawful use of force.

This was the contemplation behind these provisions under Chapter 7 of the Charter, which has been referred to as “collective security measures”. Again, intent-wise, the drafters of the Charter envisioned this to be implemented through a UN Force under the collective leadership of the Chiefs of Staff of the 5 permanent member-nations of the United Nations Security Council. The Charter also specified that the UN Force would be manned pursuant to an “agreement” to be entered into by UN member nations. Unfortunately, history would prove that the UN Force—its collective leadership, and the manner it would be manned—would prove elusive. In fact, since the establishment of the UN, there has only been one instance when the UN Force functioned as contemplated. This was during the Korea conflict in the 1950s. Since then, all resort to collective security measures have been done either through UN “peacekeeping forces” whose existence and composition have not been pursuant to the language of Chapter 7 itself. The legal justification is that these forces were activated pursuant to resolutions which authorized “all necessary means” to compel a state to cease and desist from its breach of an international law norm. Likewise, it has been argued that these forces, albeit not pursuant to the language of the Charter, are nonetheless not prohibited by the Charter, and hence are permissible.

As we witness the continuing military engagement by US and its allied forces in Libya, I cannot help feel a bit uneasy over the fact that military action conducted by individual sovereign states may be conducted coincidentally because of Security Council authorization; but also on the basis of a country’s oftentimes selfish national interest. This is why the drafters of the UN Charter wanted a formation of a UN Force outside the influence of a single country.

Moreover, if it is the case that the literal provisions of the Charter have proven to be unrealistic, there exists a procedure by which the Charter itself may be amended. Unless and until it is in fact amended, the reality remains that while collective security measures are the subject of existing state practice, the fact that it is not in compliance with the language of the charter itself may weaken, rather than strengthen the normative value of the prohibition on the use of force. This, in turn, will cause irreparable injury to world peace.

The last Jurassic Bar examinations


Congratulations to the barristers who passed this year’s Bar examinations. While the Supreme Court still has to promulgate the passing percentage for this year’s examination as I am writing this column, already it is apparent that this year’s successful batch passed what should be one of the toughest bar exams ever.

I was an examiner for this year’s examinations in the subject of Remedial Law. This is the “heaviest” subject in the Bar exams since it is given the heaviest weight of all eight subjects of examinations. With me as co-examiner was lawyer Rodrigo Lope “Reggie” Quimbo, who was valedictorian of the batch ahead of me at the UP College of Law. The amiable Bar Confidant, Atty. Cristina Layusa, told me that Remedial Law had the second highest passing rate. This is welcome news since at the onset, I had decided that in checking the exam papers, I will apply the same standards that I had for my students at UP. It cannot hence be said that I am guilty of grade inflation.

Considering that my grading was apparently even more liberal compared to the other examiners, I reckon that unless the Court lowers the passing rate from the current 75 percent, the passing percentage for this year should be lower than the average. I am confident though that as in the past, the Court will again do this. As a practitioner myself, I submit that we need a lot more lawyers in the market right now.

This year also marked the end of a very long tradition. Since the Bar examination was first administered by the Supreme Court, it has always been in the form of essay questions. In the beginning and with only a handful of candidates, the task of checking these papers used to be manageable. But over the years, the numbers of barristers increased tremendously such that in recent years, we have had an average of 5000 barristers taking the Bar exams annually. This prompted the Court to make the task of correcting these papers more “humane” by appointing two instead of just one examiner per subject. Beginning next year though, the Court will do away with the traditional bar examiners, whose identities are amongst the best kept secrets until the announcement of the bar examination results. Instead, the Court will administer, for the first time, an automated multiple choice bar examination. For what its worth, I am certainly happy that I became part of history: I was among the last “archaic” bar examiners in the last jurrasic bar exam.

Another examiner in civil law is my fellow Manila Standard columnist, Linda Jimeno. This is also history since this is a first time that two columnists from one newspaper had the honor of being bar examiners at the same time.

My gratitude to Supreme Court Senior Associate Justice Conchita Carpio-Morales, Chair of this year’s Bar Examination Committee, for the trust reposed in me.

* * *

Banco Filipino, an all too familiar institution to my generation since many of us were members of its Junior Savers Club, is in peril. Media reports have said that many of its branches have closed. This comes as a result of the Monetary Board’s refusal to extend to the thrift bank an emergency loan of at least P1 billion to cover the recent rush of withdrawals following what appears to be a smear on the bank. Instead, the Board voted to grant BF a loan of only P130 million. This despite the fact that the amount sought to be borrowed by Banco Filipino was fully covered by collaterals.

The bank won in 1994 a final and executory Supreme Court judgment ruling that its earlier closure led by then Central Bank Governor Jobo Fernandez, whose minions are still at the Bangko Sentral, was illegal. Consequently, the Court ordered that the bank be reopened and for the then-Central Bank to do everything necessary to enable the bank to resume its operations. This, presumably, includes implementing a rehabilitation plan. Recently, the bank was also granted an injunction by the Makati Regional Trial Court enjoining the Bangko Sentral from doing “any acts prejudicial to the bank”. This was appealed by the BSP to the Court of Appeals.

Recently, and despite the BSP’s approval of a rehabilitation plan for Banco Filipino, the Monetary Board has refused to implement the rehabilitation plan unless Banco Filipino waives all its damage claims against the BSP. This is unusual given the BSP’s defense in the pending damage case that it is not the successor-in-interest of the Central Bank. If this is indeed the case, why should it demand for this waiver?

Many have criticized Banco Filipino for being mismanaged by polo-playing Albert “Bobby” Aguirre. Officially and in fact, Aguirre is not involved in the day-to-day management of the bank. Moreover, the bank has been under Central Bank comptrollership since it’s reopening. This means that if there is indeed mismanagement, then it is ultimately the BSP that is responsible for this.

Banco Filipino’s woes come amidst the economic uncertainties resulting from the Libyan situation and the tragedy that struck Japan. I could only hope the BSP Governor Amando M. Tetangco Jr. made the correct assessment that the BSP can contain the closure of Banco Filipino even despite these uncertainties.

Meeting of two presidents


I was witness to a historic meeting between two presidents: President Noynoy Aquino and Judge Sang-Hyun Song, President of the International Criminal Court, last Monday at Malacañang’s “yellow room”.
Since the year 2000, the Philippines, under then-President Joseph Estrada, signed the Rome Statute of the International Criminal Court. This is the first permanent international tribunal created to prosecute the most serious crimes that can be committed against the international community: war crimes, crimes against humanity and genocide.

The problem was that under former President Gloria Arroyo, the country shied away from membership in the court for various reasons. The most important among which were the opposition of the United States to the Court, and the Mrs. Arroyo’s own fear of being prosecuted before the Court.

“You do not even have to persuade me to join the Court”, a beaming P-Noy told Judge Song. “In fact, I have already sent the Rome Statute to our Senate for its concurrence.”

Under our constitution, no treaty may become valid and binding unless it is concurred in by two-thirds of all the members of the Senate. As early as 2005, we sought to effect that transmittal even through a petition that we filed in the Supreme Court in the case of Pimentel versus Executive Secretary. But with one signature, P-Noy achieved what we have been trying to do for nine long years: the transmittal of the statute to the Senate preparatory to our membership in the ICC.

Song, as diplomats often do, read from a prepared statement. He spoke about mankind’s painful experience with impunity and the need to ensure that individuals who may commit the most serious crimes should be brought to justice. He spoke about the 114 countries that have already become members of the Court, and his wish to see the Philippine as its newest member.

On hindsight, while Song’s statement was both officious and moving, it was not even necessary. The President, himself a victim of the extra-legal killing of his father, committed to make such killings a crime against humanity as part of state policy. He recognizes the need to effect an end to impunity through penology. Indeed, President Aquino needed no persuasion at all.

***

With the President was his entire legal staff: the Justice Secretary, the Solicitor General, and the Presidential Legal Counsel. There too was the Defense Secretary and some officials from the Department of Foreign Affairs. Before leaving the Palace, we were told by the President’s protocol officer, Ambassador Miguel Perez Rubio, that the President was leaving for Indonesia in about six hours and was taking a budget airline at that.

That, too, was historical. It was the first time for a sitting Philippine president to take a budget airline for an official trip abroad. I was so happy to hear this and could not help comparing the humility and prudence of P-Noy to the extravagance of his predecessor who spared no expense in her foreign trips. It was yet another reason to be proud of P-Noy.

Prior to the meeting with P Noy, President Song was in the Senate where he was assured by Senator Loren Legarda, chairman of the Senate committee on foreign affairs, of the chamber’s prompt action on the Rome Statute. She promised that the Senate concurrence would come before the Senate goes on recess on 9 June of this year.

Later in the day, the Philippine Coalition for the International Criminal Court and Centerlaw, a civil society organization which I chair, tendered a dinner to honor President Song at the Club Filipino. As host and moderator, I recalled how five years ago, Judge Song came on an unofficial meeting to lobby for our membership in the ICC.

Because his first visit was a purely civil society initiative, I recalled, to the audience’s delight, how we billeted Judge Song then in a motel in Quezon City. What a difference an official visit could make; this time around, he was billeted at one of our posh hotels.

Judge Song then spent the following morning addressing a standing-room-only crowd at the Malcolm Theater of the UP College of Law. He left yesterday afternoon for Malaysia. He left a community of admirers and a country hopeful that the ICC could end impunity in our land.

While saying goodbye to Judge Song in Diliman, the House committee on justice made history when they found probable cause for impeachment against Ombudsman Merceditas Gutierrez. Almost at the same time, the festive mood at the UP College of Law was shattered by the news that the Supreme Court had voted to admonish 36 of my colleagues for their statement “Restoring Integrity”, an official statement of the faculty of the UP College of Law deploring an act of plagiarism at the Supreme Court. Then I heard a radio report that Rep. Rodolfo Fariñas of Ilocos Norte was inquiring from the secretary of the House committee on justice about the status of the impeachment complaint against Justice Mariano Del Castillo.

One battle at a time. That was what I told myself before succumbing to a long and well-deserved sleep.

The United Nations and the International Criminal Court


The recent decision of the United Nations Security Council to impose sanctions and an asset freeze on Libya for its violent dispersal of protesters is the latest instance where systematic breaches of human rights were made subject to collective security measures under Chapter 7 of the UN Charter. Members of the UN envisioned that wars could be avoided if the use of force was made illegal and subject only to well-defined exceptions, including when it is authorized by the UN Security Council itself. Traditionally, these forms of collective security measures took the form of UN forces sent to trouble spots. Examples of these were the UN forces sent to Korea, Congo, and recently, to the Ivory Coast, and even operation Desert Storm where the UN sanctioned the use of “all means necessary” to compel Iraq to end its invasion of Kuwait.
Pursuant to the language of the UN Charter, UN collective security measures were aimed at dealing with “threats to international peace”. They weretraditionally aimed at acts of aggression which are committed when a state sends its regular armed forces into the territory of another state. All these changed though in the 80’s when as a result of great strides in mass communication, the world saw images of the worse humanitarian disasters and genocide broadcast in their television screens worldwide. These broadcasts resulted in a worldwide outrage which in turn, resulted in a decision by the UN to resort to collective security measures not just against acts of aggression, but also against those who will commit systematic and widespread violations of human rights and humanitarian law. The technique that enabled this development was for the UN to characterize widespread human rights violations as threats to international peace. Thus far, results have been profound and far reaching: while sanctions used to be limited to economic andmilitary sanctions, it now includes the use of penology, or international criminal prosecutions for those who will commit these egregious violations.

While the international tribunals for the former Yugoslavia and Rwanda were the first criminal tribunals created as a form of collective security measures under Chapter 7 of the UN Charter, we have today other tribunals which have also been created under the auspices of the UN, but not necessarily bythe Security Council. Hence, we now have special tribunals in Kosovo, Sierra Leone, and the Hariri Tribunal in Lebanon, and even a hybrid tribunal such as the Extraordinary Chamber for Cambodia.

So when the Security Council this week imposed not just economic sanctions against Libya, but also a referral of the killing of civilian protesters as a crime against humanity to the International Criminal Court, the UN Security Councilinstitutionalized the resort to penology in dealing with systematic human rights violations as threats to international peace. This is a most welcome development in a world where human rights have oftentimes taken a back seat and viewed with less importance compared, for instance,to economic development.

This latest referral of the killings in Libya to the ICC was also only the second instance where the Security Council referred a situation to the Court. This too bodes well for the ICC since it has been criticized by three of the permanent members of the UN Security Council, China, the United States and Russia; as an affront to national sovereignty. At the very least, this second referral is indicative of these countries recognition for the need to have an international and permanent criminal tribunal to prosecute individuals who may commit the worse crimes against the international community. It is our hope that notwithstanding the continuing refusal of these three countries to become members of the Court, that these second referral would mark a major change in their policies towards the court. It is hoped that their latest decision will eventually result in the universal ratification of the Rome Statute of the Court soon.

Speaking of the ICC still, it is with pleasure that I announce that President Noynoy Aquino has finally sent the Rome Statute of the International Criminal Court to the Senate for the latter’s concurrence. This means that the President, subject to the concurrence of the Senate, has opted for membership in the ICC, a clear reversal of Mrs. Gloria Arroyo’s policy against it. This is a welcome development particularly at this time when so many of our countrymen may become victims of crimes against humanity being perpetrated by Moammar Gadhafi in Libya. With almost 13 million Filipinos constituting the diaspora, our membership in the ICC would ensure our countrymen of an effective legal remedy should they become victims of an international crime. Kudos for P-Noy for this historic decision.

The public is invited to a lecture of Judge SANG-HYUN SONG, President of the International Criminal Court on March 8, 9 to 11 AM at the Malcolm Hall Theater of the UP College of Law, Diliman Quezon City.