A MOOT WITH REAL VICTIMS


A MOOT WITH REAL VICTIMS

It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.

For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.

But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.

I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.

Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include  both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he  will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.

I also commend the Philippine Association of Law Schools Deans under the able leadership of its  President,  Dean,Amado Valdez and its Chairman, Dean Perry Pe,  for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the  best in the history of Jessup in the Philippines.

Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction

Rape and probable cause against Del Castillo


Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.

Corona’s (not so) secret account


 

The crown's dollars

 

I expected Annabelle Tiongson, manager of the Katipunan Branch of PSBank, to do as she did. Why shouldn’t she? As Niñez Cacho-Olivarez reported, the bank document that formed the basis for the prosecutors to subpoena Chief Justice Renato Corona’s dollar account at PS Bank came from Tiongson herself. Had the Senate ignored the court ruling enjoining the opening of this dollar account, Tiongson would have been the Clarissa Ocampo of this impeachment trial. But because the Senate honored the Court ruling, the best course of action for her was to deny its authenticity.But should the nation believe her hook, line and sinker?

Of course not. To begin with, no less than Corona, by seeking an order from his colleagues at the Supreme Court to restrain the opening of his dollar account, has himself admitted that the said exists. If it is but a figment of the prosecution’s imagination, as the defense would want us to believe, what is there to be restrained by the Court? Any which way, the mysterious dollar deposit works in favor of the prosecution, and courtesy of the CJ’s actuations at that.

There is  a presumption in our rules of evidence that he who suppresses the presentation of evidence does so because it is against him. Here, the chief justice’s insistence on secrecy can only be because the existence of the dollar account will prove anew that he failed to declare his dollar deposit in his SALN.

In any case, the PSBank dollar account is only icing for the prosecution. What is undeniable now is that Corona did not declare a total amount of P31 million cash in his SALN. The defense insists that SALNs are subject to correction. Cuevas should tell that to the court interpreter in a Regional Trial Court in Davao who was fired because he failed to declare in his SALN a market stall. Said the Court “We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the Judiciary x x x Personnel in the Judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency.”

I guess Corona believes that the high ethical standards can only be demanded from lowly court employees and not from the Chief Justice himself.  It is obvious that in Corona’s mind, being primus inter pares, or the first amongst equals, is tantamount to a shield of immunity even for criminal acts.

And lest we forget, the undeclared 31 million in cash is over and above the real estate property that he also failed to declare in his SALN. There were at least three pieces of real estate property that he failed to declare: a condominium unit in Spanish Bay Tower, another unit in Makati at the Columns, and a lot in McKinley Hills. There too is the undervaluation of the Bellagio unit by at least 24 million pesos. Altogether, Corona, the Honorable magistrate, did not declare a total of at least P65 million worth of property.

The question is why. Well, the sage and statesman Jovito Salonga, when he wrote the law requiring the filing of truthful SALNs, knew that property which is not proportional to a public official’s salary is presumed ill-gotten under another statute, the unexplained wealth act. Need we say more?

Perhaps Corona should heed the ruling of his own Court. In another ruling ordering the dismissal of a regional revenue officer for failing to disclose two cars in his SALN, the court said: “(T)he SSAL (sworn statement of assets and liabilities) is not a mere scrap of paper. The law requires that the SSAL must be accomplished as truthfully, as detailed and as accurately as possible  x x x  It serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government.”

 

Top

Impunity for Nazi crimes


Forced Labor during WW IIThe International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II.  While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ  applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”

Top

Probity and discounts


Sometimes, a fumble can lead to a win. This was what happened two days ago at the Senate in the impeachment hearing of Chief Justice Renato Corona. On Monday, we were enthralled by a declaration that the chief justice was given a whopping 40-percent discount amounting to P10 million by Megaworld. I was then an invited commentator at DZMM. Just out of curiosity, I went online on my iPad and typed “Megaworld and Corona” in Google search. Lo and behold, there it was: Megaworld vs. Judge Cobarde, a decision penned by no less than then Associate Justice Corona which was a P25 million win for the company.The case of Cobarde arose from a complaint filed at the regional trial court for almost P30 million in unpaid brokers fee for the sale of a resort beside Shangri-La hotel in Mactan Island. In the course of the proceeding, the parties entered into a compromise agreement whereby Megaworld agreed to pay the complainant almost P30 million. There was in fact a partial payment of about P5 million, leaving a balance of about P25 million. Later, Megaworld commenced proceedings to vacate such a judgment based on a compromise agreement. This kind of  a judgment is normally immediately final and executory. Megaworld lost in both the RTC and in the Court of Appeals. In the Supreme Court, Justice Corona penned the decision reversing the CA and declaring the judgment on a compromise as null and void. It spared Megaworld from paying the balance of P25 million.The year of promulgation of the Cobarde judgment was 2004. Construction of the Bellagio started in 2003 and was finished in 2008. I asked the question: is the P25 million victory related to the P10 million discount? If it is, both Megaworld and Corona could be liable for  violating the anti-graft and corrupt practices act. Bribery is the giving of any consideration in exchange for a favor. Unlike other laws, our anti-graft laws punish both the giver and the receiver.

I was hence not surprised when the following day, the Megaworld marketing director stated that what the company had given the Corona’s was a P5-million price reduction because of water damage sustained by the unit as a result of a typhoon; a further P3 million discount since the consideration was paid within one year, and a further P2 million discount. Now it can be told, it was not a P10-million discount. Just a 5 million discount over and above another 5 million price reduction.

I am of course not concluding anything as of yet. Senator Serge Osmena rightfully demanded from Megaworld evidence of the alleged water damage, as well as evidence of insurance coverage since almost all buildings, finished or otherwise, have insurance against water damage. These will prove if the damage to the unit was in fact commensurate to the price reduction. Anent the discount, I think Megaworld has for all intents and purposes admitted that it gave the Coronas an extraordinary discount since it has previously admitted that normal discounts for cash transactions is only 15 percent of the selling price. If the normal selling price is P24 million, as it claimed, the maximum discount should only have been P3.6 million. Why did Megaworld officials give the Coronas P5 million in discount?

In any case, the material point already proven by the prosecution is that the Coronas grossly understated the value of the Bellagio property since it was only declared as having a value of P6 million. Worse, there was a complete omission of the P14 million cash that they used to purchase the property. Previously, the prosecutors also proved that two other properties, a lot in McKinley Hill and another unit at the Spanish Bay Tower at the Fort, were also not declared in the SALN. Again the reason all public officers are required to file their SALNs annually is to enable the public to inquire whether there has been an increase in a public officer’s assets on a year-to-year basis given that their incomes are fixed by law. If a public officer could not adequately explain how he acquired the additional assets, the law presumes it  to have been ill-gotten.

I am distraught too at Megaworld’s spin in its releases. It claimed that it have lost two cases and won only one case from the Supreme Court. It is always silent on the fact that its victory was worth P25 million and that the decision was penned by Corona himself. It highlights a loss where it failed to collect P5 million, omitting the fact that this involved the same losing party in Cobardo. It also highlights a loss in the case of Tanseco vs. Megaworld where Corona was a member of the division that rendered the judgment.

The point, though, is that a magistrate should be purer than Caesar’s wife. No upright and becoming magistrate should have accepted an extraordinary discount specially from a winning litigant in his own court, moreso if he himself penned the winning decision.

True, the prosecution failed to introduce what it characterized as a 40-percent discount into the records. But that doesn’t matter. What matters is that the people now know the kind of magistrate Corona is.