The tale of two envoys


 

Two Ambassadors figured in the news recently. The first is the Ambassador of the Czech Republic to the country. Josef Rychtar, who claims that MRT General Manager Vitangcol and others attempted to extract a 30 Million dollar bribe from a Czech company for the supply of additional rolling cars for the MRT. This supposed bribery became even more controversial because earlier reports claimed that Presidential sister Balsy Cruz was part of the company that attempted to extort the bribe. The Ambassador has since clarified that Balsy was not involved although he stood firm about Vitangcol and Company.

The other is Italian Ambassador to Turkmenistan Daniele Bosio. He was nabbed by police authorities in Laguna allegedly for child trafficking, In both these cases, issues of immunity have arisen. In the case of Rychtar, the issue is if he can be summoned to appear before a Committee of Congress investigating the bribery try; while in the case of Bosio, it is whether he can be investigated, prosecuted and convicting for child trafficking.

A diplomat’s sovereign immunity from local jurisdiction has been amongst the earliest cornerstone of diplomacy. While this immunity is now codified in the Vienna Convention of Diplomatic Relations, which the Philippines has ratified, it has also been recognized under customary international law. This means that this immunity is not just a matter of treaty obligation. It is recognized and complied even by countries that have not ratified the Convention. This is because without this immunity, Ambassadors, who serve as alter-ego’s of sovereigns and heads of states, will not be able to perform their functions in the territory of receiving states. More often than not, Ambassadors function to protect the interest of their states in the receiving state and even to gather information which otherwise would be considered as espionage.

This immunity exists immediately upon a diplomat’s presentation of his credentials in his station and subsists for a reasonable time upon expiration of his tour of duty. This immunity is accorded him while he is posted in his station and subsists for all of his official acts even after he leaves his post.

Under the current state of international law, the Czech Ambassador’s immunity includes the immunity to heed a subpoena that may be issued for him to appear before any committee hearing of Congress. And when he does appear, which is a waiver of his immunity, it will include additionally, immunity for all matters that he states in the official proceedings, including prosecution for false testimony, unless he again waives his sovereign immunity. The latter though, being contrary to human experience, would be highly unlikely.

Ambassador Bosio himself would be entitled to full immunity from local jurisdiction had he been apprehended in his station in Turkmenistan, or when he was officially en route to his official post. But because he was apprehended in the company of very young boys while vacationing in the Philippines, his predicament has figured repeatedly in many bar exam questions in political law: he is not entitled and should not be accorded immunity from our power to investigate, prosecute him and punish him for child trafficking.

The rationale for Bosio’s predicament is immunity is not indispensible to a vacationing envoy since he is not in the discharge of his official functions.

But beyond the issue of immunity for both envoys, there is also the issue of how our officials have been responding to the issues created by these envoys.

In the case of Rychtar, Presidential bad mouth Lacierda has shown his usual foul character by bashing the credibility of the Ambassador saying that the enjoy was merely” sour grapping since the Czechs lost the bid” for additional rolling cars to a Chinese company. Huh? As my students would say: WTF!

All Ambassadors because of their immunities and function are normally the best civil servants of the sending state. Their characters hence are beyond question, Furthermore, the fact that the Philippines as the receiving state had consented to the appointment of Rychter through an agreement (not wrong spelling) means that we have recognized that he is fit for the post which commands utmost respect in all civilized societies. By bashing the character of the Czech envoy, Lacierda shows anew his ignorance of international law and highlights what many foreign investors have been complaining about this country: rampant systemic corruption conducted with impunity.

Any sane spokesperson would not question the character of an Ambassador. instead, where there is an allegation of bribery, a responsible competent authority would promise a transparent and earnest investigation of the matter. This is how a state inspires confidence amongst foreign investors. Lacierda’s ways is why we might be hailed to court for the third time by a foreign investor. The first two instances, ironically, also involved allegations of bribery: the T3 controversy with Fraport and the Belgian dredging contract in Laguna Lake.

Anent Bosio, while I commend our authorities for upholding our sovereignty when they arrested the Italian envoy for child trafficking, I’m afraid it’s too early to tell if they will continue to do so. Chances are, in the same manner that the murderers behind the Ampatuan massacre, and the suspects behind the killings of Gerry Ortega and the many murdered journalists continue to roam free, my bet is that his Excellency Mr. Bosio may soon be allowed to roam free again. Hopefully though, he would no longer be in pursuit of Filipino boys.

 

Centerlaw re: SC decision on RH Law


The Supreme Court of the Philippines today upheld the constitutionality of Republic Act No. 10354, or the Reproductive Health (RH) Law.

Center for International Law (Centerlaw), represented Senator Pia Cayetano and former Secretaries of Health Esperanza Cabral and Jaime Galvez-Tan who filed Petitions in Intervention with respect to the petitions brought before the Supreme Court asking for  the law’s nullification. Centerlaw also represented former Health Secretary Alberto Romualdez, Jr. who passed away in October 2013.

The multiple petitions asking for the nullification of the law stemmed mostly from groups allied with the Catholic Church as well as the Catholic Bishops Conference of the Philippines.

The Supreme Court, which heard arguments on the petitions for and against the RH Law until August last year, struck down eight provisions mostly focusing on those that penalize RH providers who refuse to provide RH procedures or who refuse to refer a patient to another provider due to religion. The core provisions of the law, however, were upheld by the Court.

Centerlaw Chairperson Harry Roque says, “This is a big victory for equality and the right of the Filipino people to health. To have the law declared unconstitutional based on the objections of the Catholic Church would have been a violation of the non-establishment clause in the Philippine Constitution. Despite whatever religious protestations there may be from different quarters, our government ought to observe neutrality with respect to all religions.”

Ethel Avisado, Bertha Fellow with Centerlaw adds, “The RH law has been a dream for Filipino women. It means access to contraception and health care for mothers who continue to get pregnant and have no idea how feed the children they already have. It means lesser preventable deaths due to childbirth.”

Bertha Fellow Geepee Gonzales adds, “This is great news for our country. While we are disappointed that some provisions were struck down, majority of the law stands. This means that the Court recognizes the right of every Filipino to health. It is also a step towards our nation’s continued development.”

Andal “Unsay” Ampatuan vs Harry Roque


The Quezon City regional trial court has dismissed an indirect contempt charge against human rights lawyer Harry L. Roque, Jr.  filed in 2011 by a principal accused in the Maguindanao massacre case – Andal “Datu Unsay” Ampatuan Jr. – over a History Channel interview the lawyer gave a year before on the celebrated case.

Branch 220 presiding judge Jose G. Paneda, who tried the case, said Datu Unsay failed to show in court that the lawyer’s cable television interview aired on September 26, 2010 on what is now known as the worst attack on press freedom in known history gave rise to a “clear and present danger” to the multiple murder trial.

In so ruling, the judge upheld an established precedent in Philippine jurisprudence that “the advocacy of ideas cannot constitutionally be abridged unless there is clear and present danger that such advocacy will harm the administration of justice.”

The judge said thus: “Under the clear and present danger test, petitioner failed to prove that there exists a substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt.”

“This is a big victory for free expression in  relation to a celebrated case where the very right to free expression of 32 journalists and media workers who perished in the massacre were forever denied them,” said  Center for International Law (Centerlaw) Executive Director Romel Regalado Bagares, who headed a team of lawyers who defended Roque in court. Centerlaw is a non-profit organization dedicated to the promotion and protection of free expression in the Philippines and Asia.

Datu Unsay, along with other members of his political clan, is alleged to have masterminded with key members of his political clan the murder of 58 persons, including 32 journalists and media workers, on November 23, 2009 in a town in Maguindanao bearing his clan’s name.

He had charged that Roque violated the sub judice rule in cases being heard in court when he told History Channel that key members of the Ampatuan clan were responsible for the massacre and used public funds to perpetuate themselves in power. Under the sub judice rule, litigants in a case are prohibited from discussing in public the merits of the case.

Bagares said the court’s decision is an important contribution to the advancement of free expression in the country.

At the trial, Datu Unsay’s only witness was a technician at his lawyer’s office –Fortun & Narvasa –who recorded the History Channel episode in question.  The technician admitted on cross-examination conducted by Centerlaw lawyer Ethel Avisado that Roque did not specifically name anyone in the Ampatuan clan as a massacre suspect. He also admitted that the copy of the video of the History Channel interview he presented in court was not authenticated by the cable television channel.

Judge Paneda said Datu Unsay had the burden to show that Roque’s comments “must really appear that such does impede, interfere with and embarrass the administration of justice.” In this case, all that the petitioner could show was an “abstract accusation” that only resulted in “barren legal questions”.

Under the indirect contempt charge against Roque – a criminal case – a conviction would have meant a fine or a jail term, or both.

“Lawyers occupy an integral role in the administration of justice. Such position justifies the rules and regulations imposed on their conduct because membership in the Bar is a privilege burdened with conditions,” said Judge Paneda in his  12-page decision dated March 11, 2014 but released only yesterday. However, freedom of expression is also secured to them; in this jurisdiction they, like all the others, are given the right to comment on the administration of justice provided their criticisms do not border on disrespect to the authority of the court.”

Roque is also facing two similar indirect contempt charges filed with the Quezon City Regional Trial Court  by two other accused in the Ampatuan massacre, the clan patriarch Datu Andal Ampatuan Sr. and a certain Datukan Malang Salibo.

 

Click here for a copy of the decision_Unsay vs Roque

 

On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

Even if China were to remove the Sierra Madre from Ayungin shoal and build yet another artificial island there, it will never acquire title over the area. The reason: International Law has long outlawed the acquisition of territory through conquest.

China also better rethink whether it should tow-awau a commissioned naval vessel. Derelicit as it may be, it is subject to full sovereign immunity and any attempt to tow it away from Ayungin may finally trigger the applicability of the US-Phil Mutual Defence Treaty. Thus far the US has said that the Treaty may not be triggered by fighting in the West Philippine Sea becauae it does not recognize Philippine title to the area. But an attack against a Philippine comissioned naval vessel may be sufficient for the purpose. The result: the West Philippine Sea, unless China backs off, may trigger the biggest armed conflict in the region since the Vietnam and Indo-China conflict.

What happens now to JPE et al?


Now that the Ombudsman has found probable cause against three senators, Janet Napoles and Dennis Cunanan for plunder and violations of the anti-graft law, what happens next? Will they immediately be put behind bars and tried in the same manner that former President Erap Estrada was?

Not quite.

All indicted accused have the statutory right to move for reconsideration on the finding of probable cause. There is probable cause when on the basis of the evidence, the Prosecutor or the Ombudsman concludes that there is likelihood that a crime was committed and that the respondents are probably liable for these crimes. It’s a very low standard because ultimately, the determination of guilt beyond reasonable doubt is a judicial function. Nonetheless, when the indictment is for a capital offense where bail is not a matter of right when the evidence of the accused is strong, a finding of probable cause is almost always a guarantee of the temporary deprivation of the right to liberty.

So, because of their right to move for reconsideration, no information is immediately forthcoming. Consequently, there will also be no warrant of arrest that will be issued soon.

I was correct in my assessment that the finding itself of probable cause will be marred with delay. The Ombudsman resolution came eight months after newspaper reported the details of the scam. This is still relatively quick given that the Ombudsman, unlike the regular Prosecutors, do not comply with the requirement that they conclude their preliminary investigations on or before 90 days from submission of the case. Clearly, it was the public indignation of the PDAF scam that compelled the Ombudsman to act more quickly than usual.

Outside of the motion for reconsideration, the accused may also proceed to the Court of Appeals to challenge the determination of probable cause. Although this is no longer a statutory right, it is nonetheless a constitutional right since the 1987 Constitution provides that judicial power includes the power to annul acts of government which are done in utter grave abuse of discretion amounting to lack of or in excess of jurisdiction. There is grave abuse of discretion where there is a violation of the Constitution or any existing law. Already, Senator Bong Revilla has a pending petition describing the Ombudsman’s refusal to act on his complaints against Luy et al as acts indicating grave abuse of discretion The Supreme Court has already scheduled his petition for oral arguments.

It is only after the resolution of the motion for reconsideration and if the higher courts do not restrain the Ombudsman that the information is filed with the Sandiganbayan. Unless the information is filed, the special anti-graft court cannot issue warrants of arrest.

Is it for certain that the accused will be apprehended and detained?

Yes, insofar as their actual arrest is the manner by which the Court can acquire jurisdiction over their persons. Fortunately for the respondents, they can now invoke the new rules of the Supreme Court on the speedy grant of bail to secure provisional release even for capital offenses. Under A.M. No. 12-11-2- or the SC “GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL”, the respondents, when they are charged in court can file a petition for bail. The procedure now is on the basis of affidavits or direct testimonies, the prosecutor has the burden to prove that the evidence of guilt is strong. Thereafter the Judge, including the Sandiganbayan, only has 48 hours to summarize the evidence presented and determine whether or not the evidence of guilt is strong. If so, the accused will be denied bail. Otherwise, he will be allowed to post bail to secure his provisional liberty.

This new guidelines is long delayed. The predisposition of Courts is to allow the prosecution to prove that the evidence of guilt is strong in a manner that would reproduce the evidence presented for bail as evidence on the merits. In this manner, the accused is for all intents and purposes, denied the right to bail because the determination of guilt is made part and parcel of the presentation of the evidence on the merits.

Senator Juan Ponce Enrile as an octogenarian will probably be given special consideration given his age. So will the two incumbent senators. While pickpockets and others committing petty crimes have to endure torturous conditions in our local jails, the three senators, because of precedents—will inevitably detained in special detention facilities. Already, Janet Lim Napoles is on hospital arrest. I foresee that Enrile and the two other senators may also seek hospital or house arrest. Note that being an octogenarian will not exempt Enrile from criminal prosecution or from being arrested. This is how the Sandiganbayan can acquire jurisdiction over his person. But when he is convicted, the Sandiganbayan has the option of recommending his release on humanitarian grounds.

What happens to Ruby Tuason and Cunanan? To begin with, I’m surprised that they were even indicted. Under the Witness Protection Law, those admitted into the program should not be included in the charge sheet. Perhaps the Ombudsman will later move that they be dropped. Otherwise, it could already be an indication that the Ombudsman does not consider their testimonies to be indispensable in proving the averments in the Information. Personally, I hope this is in fact the case. Let Tuason be the queen of socialites in jail.

 

(View from Malcolm, Manila Standard Today, 4 April 2014)

 

 

China’s retaliation?


Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)

 

Forum on “Philippine Legal Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges


The UP Institute of International Legal Studies (IILS), in cooperation with the School of Economics, is inviting everyone to a forum entitled “Philippine Legal  Compliance to the 2015 ASEAN Economic Community: Solutions to Legal Challenges” on Tuesday, March 25, 2014,  at 8:00 a.m. – 5:00 p.m. at the Malcolm Theater, University of the Philippines College of Law, Diliman, Quezon City.

Our obsession with Bar topnotchers


UnknownUnknown-1The UP College of Law topped anew the 2014 Bar examinations with my student, Nielsen Pangan, placing first. His schoolmate, Mark Oyales, bagged the second place. Three other students from UP Law landed in the top 10: Eden Mopia was fourth, Michael Tiu was eighth and Cyril Arnesto was tenth.

This was the first time for UP Law to top the Bar Examinations since Joanne de Venecia placed first in 2005. In 2011, no one from UP placed in the top 10 of the Bar.

I am, of course, together with the entire UP community, ecstatic about the results. This is not just because I am a product and a professor of UP Law. It is more because every UP graduate’s success is a toast to the poor and the middle class in this country. The UP dream is the stuff that is written about in telenovelas: poor children dreaming of climbing the economic ladder through a world-class education.

That’s why more people celebrate when UP students top not just the Bar -but the other Board exams as well. While private school graduates should also be honored when they reach similar success, the joy of topping the exams for a rich kid is simply not the same when poor or middle class students achieve the same fete. This explains why when the likes of Nielsen, the son of a Meralco engineer and a housewife; and Mark, son of a security employee and a bakery worker from Tacloban, top the bar, the entire nation celebrates with them. This is because their success is the success of every middle-class and poor family in this country. Rich people, when they achieve the same feat, celebrate only amongst themselves in their gated enclaves. The poor and the middle class, on the other hand, live their dreams through students like Pangan and Oyales. This is the UP fairy tale.

Be that as it may, this country really ought to reconsider the prestige and importance that it bestows on the Bar top notchers. Having been a Bar examiner in 2010, I have probably earned the right to say that given the very limited time given to Bar examiners to check almost 6,000 booklets of essay questions, the Bar exams could not be a reliable measure of one’s preparedness to be a member of the Bar. Moreover, one’s success as a lawyer is not measured by how well one does in the Bar examinations. Here, it’s the successful barristers’ future conduct as lawyers that will determine his or her greatness as a lawyer. Case in point is that of the former dictator Ferdinand Marcos, who despite having been a bar top notcher, earned notoriety for infringing on rights protected by the Bill of Rights. Here you have an instance when a topnotcher earned notoriety because of what he did with his title later on in his life. If the bar exam results were indeed the ultimate measure of one’s preparedness to be a lawyer, then the remains of Marcos should today be at the Libingan ng mga Bayani and not in an air-conditioned crypt awaiting a funeral.

But an even more fundamental consideration is: what kind of lawyers are we producing with the obsession we have with topping the Bar examinations? Responding to the debacle of 2011 when no student from UP landed in the top 10 of the Bar, UP Law has since required its students to enroll in bar review subjects as electives instead of those that will enrich them as lawyers in an increasingly internationalized profession. For instance, I no longer teach electives on International Humanitarian Law and UNCLOS that have enabled at least two of our graduates, Raymond Sandoval and Suzette Suarez, to land appointments in the International Criminal Court and the International Tribunal on the Law of the Sea, respectively. Likewise, we have done away with the elective on International Trade Law that enabled the likes of Dr. Diane Desierto and Ana Ramos to land careers as a tenured faculty teaching trade law at the University of Hawaii and the World Trade Organization, respectively.  Likewise, we have done away with the elective on project financing which has proven to be the country’s monopoly in terms of cross border legal practice.

Worse, this giant step backward—just to satisfy the country’s obsession with Bar top notchers—is still happening when we only have a year before the borderless Asean Economic Community comes into being in 2015. This will usher in not only free cross border trade in goods, but also in services, including the practice of professions.

There is hence an apparent contradiction with UP Law’s decision to revert to being a bar review institute with the decision of the University itself, for instance, to change its academic calendar to begin in August, to be in synch with the rest of Asean. Simply put, we are retreating to the Jurassic past when we seek to produce Bar topnotchers instead of preparing grand lawyers for an increasingly interdependent world.

But what the heck: the public wants the topnotchers and for now, UP played well to the gallery. I hope though that for the country’s sake, this obsession will soon be a thing of the past. For otherwise, while we continue to heap praises on the topnotchers of an archaic exam, the country, meanwhile, may be left behind in the race for modernity.

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China’s thrust for Ayungin and Marinduque’s options


The news reported that China had recently blocked delivery of food supplies to our troops holed up in a derelict US ship in Ayungin shoal. To many, this is another first since it is the very first concrete step taken by China to take possession of the disputed shoal from us. In reality, though, this recent act is but another manifestation of China’s long-term overall maritime policy in relation to the West Philippine Sea and the rest of the world.

China’s defense and maritime policies are contained in several printed policy papers beginning in 1998. This was updated in April 2013 and is entitled “The Diversified Employment of China’s Armed Forces.” According to this document, the Chinese policy is to “safeguard its border and promote its coastal security.” The document states that the role of Chinese armed forces is “to defend and exercise jurisdiction over China’s land borders and sea areas.” In the same paper, China regards the West Philippine seas as its coastal waters, the defense of which enjoys the same priority as quashing any attempt at achieving independence of Taiwan and opposing calls for the right to self-determination of Tibet.

Unlike the Philippines, China has a printed policy paper on its short-, medium- and long-term maritime policy. Its overall objective is to resurrect China’s old glory of being a world maritime power by 2050. Meanwhile, it is pursuing two short- and medium-term goals: during the first phase concluding in 2000, the People’s Liberation Army shall have acquired sea-control power within its coastal waters. During the second phase, which is from 2010-2020, the PLA shall have achieved a kind of sea-denial capability within its first island chain in the West Pacific, the West Philippine Sea. It is precisely this second goal which explains China’s recent actions in Ayungin. If the printed maritime policies are to be followed, this means in fact that China will not only take control and possession of Ayungin, it aims also to occupy all other disputed islands, shoals and reef, even the biggest island under our occupation, Kalayaan. The issue is not if, but when it will actually do so.

It is precisely this maritime defense policy that gives urgency to an early resolution of our arbitral claims now pending with the Permanent Court of Arbitration. Unless the tribunal rules on the validity of China’s nine-dash lines, China will implement its 50-year maritime policy in a manner that treats the entirety of the West Philippines Sea encompassed by these lines as its internal and territorial waters. For what it’s worth, the initiation of the arbitration will be remembered forever as PNoy’s best foreign policy initiative.

* * *

I have been to the island of Marinduque twice in a time span of a month, The reason is to explain the $20-million dollar offer made by Barrick Gold, the biggest gold mining company in the world, to settle the suit of the province filed against it in 2005 currently pending in a Federal Court of Nevada.

Since I am not qualified to practice in the United States, my participation in the lawsuit was only as an expert witness on the binding nature of international environmental law to the United States. One of the cornerstones of environmental law is the so-called “polluter pays principle”, which mandates that entities that cause pollution must pay for the clean-up.

The US Coast Guard has estimated that no less than 100 million dollars is required to clean up the 200 million tons of mine tailings dumped into the island’s rivers and waters. The problem though is that meanwhile, the Supreme Court of the United States ruled in the case of Kiobel vs., Shell that henceforth US courts should  not exercise jurisdiction over claims against foreign corporation for acts which did not take place in the territory of the United States. Kiobel was s a case under the Alien Tort Claims act that authorizes US courts to exercise extra-territorial jurisdiction against respondents found in the US for violations of International Law. This statute has been utilized since the 1980s as a means to hold despots responsible for their acts of extralegal killings, torture and enforced disappearances since the case of Filartiga involving a former Panamanian despot. This was also the cause of action of the martial law victims against the estate of Marcos.

In 2013, the US Supreme Court in Kiobel held that henceforth, US courts cannot exercise jurisdiction versus foreign corporations for torts committed overseas solely because these foreign corporations’ shares are listed in the stock market in the US or because they have a commercial presence in the US. Today, the US Supreme Court requires the following as the test for the exercise of US jurisdiction: Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application?”

Unfortunately, much as I would want a higher settlement for Marinduque, the pending case against Barrick appears to be barred by the test of Kiobel. This is because Barrick is a Canadian company and the acts that led to the environmental damage were done in the Philippines. Sad to say, the province has become of the many victims of the Kiobel test. But hey, $20 million dollars is still about a billion pesos. This is hardly a sum of money that can be considered peanuts to to a province that earns only P200 million annually.

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Request for coverage : Centerlaw, on behalf of Alexander Adonis, to file Motion for Partial Reconsideration re: Cybercrime Law at SC tomorrow


Radio broadcaster Alexander Adonis, represented by Centerlaw, will lead petitioners in filing a Motion for Partial Reconsideration at the Supreme Court, tomorrow, March 13, 2014 at 1:00 pm, re: Cybercrime Law of 2012.

Reference Prof. Harry L. Roque 09175398096