Raging Legal issues in the United States


WASHINGTON DC — Americans too have been focused on at least two court proceedings. The first is a challenge to President Barack Obama’s flagship initiative on heath care reforms, which 26 states argue is unconstitutional.  The second is the killing of 17-year-old Trayvon Martin in a gated community in Florida.

The first is a challenge to President Obama’s primary election promise: To reform the US health care system. This initiative could perhaps be compared to President Noynoy Aquino’s Truth Commission – Pnoy’s flagship promise while he was campaigning for the presidency.

The urgency of health care reforms is well known to almost all Americans. Because health care here is privatized and is run as a private business, the cost of medical care has now proven to be beyond the reach of ordinary people. We’re dealing with two symbiotic industries which are now on the verge of collapse: Health providers that have raked in profits from a profession that was not intended to be run as a business and a medical insurance industry that has thrived as a guarantee against a contingency that otherwise would be beyond the reach of normal people.  The result is the current state of health care in the US: technologically sound but in a state of financial collapse.

The dilemma now is this: With health care so expensive, what happens to those who do not have the insurance coverage required to pay for these sky-high costs?

Obama’s proposal is simple. Because those who do not have medical insurance have opted to pay the cost of their health care themselves or to pass them on to be paid by hospitals, other patients, or the government; they are actually engaged in an economic activity which Congress can legislate on. This is the so-called inter-commerce clause of the US Constitution.  Opponents of the initiative, mostly conservative Republics, argue that those who do not have insurance do not participate in any economic activity and hence, should not be the subject of legislation. They argue that Congress cannot compel individuals to buy coverage so that they can participate in an economic activity that Congress can regulate.

Under Obama’s proposal, all Americans must procure medical insurance by 2014. Otherwise, they are liable to pay a penalty in their 2015 income tax return.

The US Supreme Court has scheduled this issue for a two-hour argument today. It is expected that the US Solicitor-General will argue that the initiative is a legitimate exercise of police power to uphold the public good. With health care expenditure amounting to 18 percent of the entire American economy, the Obama administration argued in its pleading that “as a class, the uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually x x x That cost shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

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The case of 17-year-old Trayvon Martin has also caught the attention of the American public. Trayvon was allegedly killed by a white community volunteer, George Zimmerman. Trayvon’s family claimed he was killed simply because he happened to be black. Zimmerman, though, claims that it was an act of self-defense after Trayvon punched and slammed him into the sidewalk.

A month after Trayvon’s killing, Zimmerman has not been apprehended nor charged for the killing. This has led to widespread protest in the US. The debate has culminated recently with no less than President Barrack Obama declaring: “My main message is to the parents of Trayvon Martin. You know, if I had a son he’d look like Trayvon. And I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves and get to the bottom of exactly what happened.”

Conservatives have of course pounced on the opportunity to hit at Obama with former US Speaker Newt Gingrich declaring that the President’s remark was “disgraceful.” He added: “Is the president suggesting that if it had been a white who had been shot, that would be ok because it didn’t look like him?”

These two cases highlight what we do not have in common with the US despite having the same constitutional tradition. One, there is the trust here that the Supreme Court, despite the fact that majority of its members were appointed by Republic presidents, will resolve constitutional issues according to the letter and intent of the fundamental law of the land.

Furthermore, the outrage stirred by Trayvon’s killing, one which we no longer find in the Philippines with more than a thousand Trayvons in our midst, show a belief, now lacking in the Philippines, that a society under a rule of law should not countenance these killings.

UNITED NATIONS: PHILIPPINE LIBEL LAW ILLEGAL


Savioli: Committee should have asked RP to repeal its libel law

The Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights”, or freedom of expression. This was the View expressed by the Human Rights Committee in a View adopted during the 103rd session of the UN Body. The Committee is a treaty monitoring body created by the Optional Protocol of the International Covenant on Civil and Political Rights. It has power to declare that a State party to the Convention is in breach of its obligations as provided in the Covenant.

The View was expressed in a complaint filed by Davao based Alexander Adonis who was jailed for more than two years pursuant to a conviction for libel . In his radio broadcast, Adonis read and dramatized a newspaper report that then Congressman and former Speaker Prospero Nograles was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night with. Davaoenos  have since referred to this as the “burlesque” king incident. In a decision rendered by the Regional Trial Court of Davao, Adonis was sentenced to imprisonment from 5 months and one day to four years, six days and one day imprisonment. In the said decision, the local court decided that Adonis was guilty of “malicious, arbitrary, abusive, irresponsible act of maligning the honor, reputation and good name of Congressman Nograles”.

After having served two years in prison, Adonis questioned the compatibility of libel with freedom of expression under Art 19 of the ICCPR. He argued that the  sanction of imprisonment for libel meets fails to meet the standard of necessity and reasonableness. Imprisonment is unnecessary since there are other effective means available for protection for the rights of others. He also argued that it was not a reasonable restriction because it does not admit proof of truth as a complete defense but only allows it under very restricted conditions..

In ruling in favor of Adonis, the UN Body ruled that Philippine criminal libel law was inconsistent with freedom of expression, the Committee recalled its General Comment No. 34 which reads: “Defamations laws should not   x x x stifle freedom of expression. … Penal defamation laws should include defense of truth.  x x” comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without ,malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel”

As counsel for Adonis in the UN, I believe that the  Committee’s view is  a very big win for freedom of expression. It’s a step towards the right direction where no person should be held criminally responsible for the exercise of a cherished freedom. Hopefully, President Noynoy Aquino’s administration  will comply with the Committee’s view and proceed to decriminalize libel and to provide reparations to Adonis for time he spent in prison. No one should be imprisoned for expressing his or her views, full stop.

The Committee ordered the Philippine government to “provide the author with an effective remedy, including adequate compensation for time served in prison, The State is also under obligation to take steps to prevent similar violations occurring in the future”.

Two Committee members dissented only insofar as the Committee did not expressly order the Philippine government to decriminalize libel. Fabian Omar Salvioli argued that pursuant to Art 2.2 of the Covenant, the State party undertakes to take all necessary steps, in accordance with constitutional processes, to give effect to right recognized in the Convention”. Hence, by not ordering the repeal of Philippine libel laws, Salvioli argued that  “ the Committee has missed a clear opportunity expressly and unambiguously to indicate to the State party that it must change its criminal law.

The Adonis View is the first view of the UN Committee on Human Rights that criminal liable infringes on freedom of expression.

Testimonies and human experience


 

  

Yes, Demetrio Vicente, the first substantive witness for Chief Justice Renato Corona, appeared to be credible. He answered questions candidly and his demeanor suggested he was telling the truth. The problem though is his actuations notwithstanding, his testimony runs contrary to both logic and human experience.

Defense lawyers presented the testimony of Vicente to prove that at least one property, real estate in Marikina which until today is registered in the name of the chief justice and/or his wife – was not declared in the Corona’s Statement of Assets, Liabilities and Net Worth and Liability because it no longer belonged to the chief magistrate. He testified that he purchased the property from the wife of the chief justice way back in 1990. He claims too that he has lived in his property as in fact, no less than Ombudsman Conchita Carpio-Morales can allegedly attest to this. He then explained that he has not transferred the property to his name because he did not have the money to pay for transfer taxes.


Huh? Vicente can afford to pay for the property, which cost more than a million pesos, and yet, he cannot afford to pay transfer fees in the amount of P2,500? Come on!


Add to this the fact that while he claims to have consistently paid for the real estate taxes on the property, records indicate that all such payments were still in the name of Mrs. Corona. Likewise, Vicente took no steps to annotate the sale in the title of the property itself. This, and not the Deed of Sale allegedly executed by Mrs. Corona, is the best guarantee against a double sale pursuant to the rule that buyers of real estate need not go beyond what appears on the title of the property.


Worse, and I commend Senator Ralph Recto for his insight in this regard, is the fact that while the Coronas allegedly sold the property in 1990, it was still declared in Corona’s SALN in 1992! Under the rule on estoppel, Corona cannot wiggle his way out of this admission that the alleged 1990 sale notwithstanding, he remained the owner of the property.


In any case, the law on SALN requires all officials to declare all property in their names, including all those held in trust by them for others. Chief Justice Corona should know this.


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It’s a case of answered prayers. I’m referring to the filing of murder charges against former Governor Joel Reyes for the murder of Palawan broadcaster Dr. Gerry Ortega.


Department of Justice prosecutors originally dismissed charges against the former governor for alleged lack of evidence. The first panel that investigated Reyes insisted that the testimony of Rodolfo Edrad, Jr. that it was the ex-governor who paid him to plot the killing of Ortega required corroboration.


This time around, the second panel of prosecutors, considering additional evidence submitted, such as text messages between Edrad and Reyes, as well as recorded broadcasts of Doc Gerry accusing Reyes of malversation of the Malampaya funds, determined the existence of probable cause. According to the second panel, the text messages between Reyes and Edrad belie the claim of Reyes that he did not know the latter. Furthermore, the panel ruled that the radio tirades of Doc Gerry against Reyes were sufficient motive for the broadcaster’s murder.


This second ruling would not have come about had it not been for Secretary Leila de Lima’s decision to re-open the preliminary investigation of the case. This she ordered despite her repeated insistence to recuse herself from the case because she acted in the past as election lawyer of Joel Reyes.


I could imagine that the decision to re-open the case was particularly difficult for the Justice Secretary because of her close ties with the respondent. But to her credit, the re-opening of the case led to the introduction of new evidence that proved sufficient to file the charge of murder against Reyes. Indeed, Secretary De Lima is the personification of political will in the fight against impunity.


Kudos too to the late NBI agent Atty. Rosauro “Ross” Bautista. Ross passed away last January. It was he who directed the investigation of the Ortega murder. During the investigation, I was in constant communication with him almost on an hourly basis. I was a witness to his integrity and competence which in my mind, should be the standard observed by all investigators of cases involving extralegal killings. Without the proven dedication of Ross, I doubt if this second decision of the DOJ prosecutors would have been possible.


The next challenge is to convict the suspects at the soonest time possible.


PNOY’S HUMAN RIGHTS RECORD


 

NOY’S HUMAN RIGHTS RECORD

Geneva, Switzerland. The Philippines will be the object of the Universal Periodic Review (UPR) in May of this year by the United Nations Human Rights Council. The Council is a body composed of 47 states tasked with the protection and promotion of human rights. The Council seeks to achieve its purpose through this periodic review, where states are asked by other states on the level of their compliance with human rights norms. This in turn is premised on the assumption that no state would want to be declared to be in breach of its human rights obligations. It also works through expert rapporteurs, both thematic and country specific, whose function is to conduct investigations to determine states’ compliance with their obligations.

As an adherent of humanitarian law that utilizes penology as an enforcement mechanism, I have been critical of how the UN implements human rights through this shaming machinery. But I had a different insight into the human rights mechanism when I saw it up close. To begin with, the world’s civil society is active here to ensure that non-compliant states are in fact shamed to the fullest. Further, one certainly gets the sense that with all states dutifully attending the many meeting of the UN here in Geneva, states do abhor the prospect of being branded as a violator. Judge Rosalynn Higgins said it succinctly: while violations of the rights of human beings are rampant, states will opt to deny that their conduct violate these rights and will instead argue that their conduct is either compliant or justified. She cited the case of torture. Amnesty International, who together with the German Action Network Human Rights-Philippines, are my hosts here- has once declared that almost all states commit torture. And yet, not one state will acknowledge this and all will still maintain that torture is illegal.
Why am I here? To participate in a side event to discuss human rights under P Noy and to lobby states to question the Philippines why extralegal killings (ELK’s), torture, and enforced disappearances (ED’s) persist.

I argued that extralegal killings, torture and enforced disappearances continue even now because their perpetrators have not been investigated, prosecuted and punished for their acts. Here, I traced the problem to a breakdown in the country’s pillars of its criminal justice system. First, the police do not know how to investigate. A recent study revealed that 8 out of 10 policemen are not trained and are hence incompetent to investigate crimes. There too is the PNP procedure that seeks first to identify the perpetrator of a crime before gathering and processing of physical evidence. Worse, in almost all the heinous crimes that I have been involved as a private prosecutor: the Maguindanao massacre, the Evangelista torture case, the Tanauan massacre, the Bicutan siege, to name only a few, policemen are the perpetrators of these crimes. How can they investigate themselves?

Second, the National Prosecution Service has failed to prosecute. The Perreño report commissioned by the Asia Foundation revealed that their conviction rate for Elk’s and ED’s is a measly  1% . Over-all, no less than the President has said that their conviction is a low of 14%. There may be many reasons for this -including lack of resources and manpower. But what appears to be obvious for now is their adamant refusal to be involved in the investigation of these crimes is responsible for their low conviction rate. Under human rights law, it is the state, acting through the police and the prosecutors, who must investigate and hence gather the evidence to meet the minimum threshold of evidence.

The Courts have at least, through former Chief Justice Reynato Puno, acknowledged that it is also in breach of their duty to protect and promote the right to life. This is due to the perennial problem of court delays and even the incompetence and lack of integrity of some of our Judges.

The decision to make the presentation here was not easy to make. I have been supportive of the administration of P Noy and make no apologies for it. But I opted to attend and am currently even lobbying the international community to confront the Philippines with the issues of ELK’s, torture, and ED’s for two reasons: one, a belief that true friend of an administration should not just sing odes of praise.  A friend should commend when it is deserved, and should criticize, when necessary. This is   not to overthrow it, but for it to become better. Secondly, I am here because you and I could be the next victims of these crimes.