Lina, Parayno and Aguas charged for graft and plunder at Ombudsman


Press Release
For Reference: Atty. Harry L. Roque Jr. 09175398096

Click here to download a copy of the Omniprime vs Lina, Parayno and Aguas complaint filed at the Ofice of the Ombudsman today.

Customs Commissioner Alberto D. Lina, former Customs Commissioner Guillermo Parayno Jr. and former Customs Deputy Commissioner Primo Aguas face graft and plunder charges before the Office of the Ombudsman in connection with a cancelled Php 650 million contract to integrate a modern integrated customs processing system at the Bureau of Customs.

Lina and Aguas also face charges for violating the new government procurement law provisions prohibiting delays in the implementation of a government project.

The integrated system, along with a national single window, is seen as the long-sought after solution to rampant smuggling in the Philippines. It establishes a central database system that tracks in real time all customs procedures nationwide. It aims to be a fully electronic, paperless and human contact-free system of recording and monitoring customs transactions.

Meanwhile, the national single window consolidates relevant services from all government agencies involved in customs procedures using international standards.
The bidding for the project opened in October last year.

In November 2014, five prospective bidders – including E-Konek Pilipinas headed by Parayno and the winning bidder, OMI-Intrasoft Joint Venture(OMI-Intrasoft JV)– submitted eligibility documents for the integrated system.

E-Konek Pilipinas, is a company where Lina has a 96.48 percent stake.

In addition, the corporation behind the now antiquated systems used by the Bureau of Customs – the foreign computer systems company Unisys, subcontracted the implementation of the E2M to partners Webb Fontaine – and E-konek Pilipinas when it developed the existing computer system at the BoC.

By December 2014, with the exception of the OMI-Intrasoft JV – all of the prospective bidders had been disqualified for one reason or another by the DBM Bids and Awards Committee and TWG. Subsequently, the joint venture was invited to formally bid for the project and in February this year, it submitted its technical and financial proposals for the project

However, Deputy Commissioner Aguas, although he was not part of the Bids and Awards Committee, stepped in, trying to influence the BAC, and TWG. He required the DBM BAC and TWG to re-evaluate the results of the eligibility hoping to accommodate his favoured bidders asking them to relax the procurement law, while negatively criticizing the JV of OMI-Intrasoft during the BAC meetings that he attended. To further delay the award of the project, he also required the JV’s project team members to undergo series of interviews, in violation of Republic Act 9184, the new law governing government procurement procedures.

And while the interview process he required to be made was ongoing, he made public announcements preempting that in the event the bidding process fails, there would be a rebidding, or an updated version of the current system would be adopted.

This undue imposition by Aguas delayed the selection of the Highest Rated Bid (HRB) for more than two months.

On April 13 this year, the joint venture Omniprime Marketing Incorporated and Intrasoft International was finally declared winner of the seven-month long public bid. Ten days later, on April 23, the contract was finalized and it was scheduled to be signed by the end of the same month.

However, on April 24, Lina replaced reformist Commissioner John Sevilla under controversial circumstances. It took him only two weeks to cancel a contract that has undergone two biddings: on May 6, he issued a notice to the Department of Budget and Management (DBM) cancelling the contract on the flimsy ground that he needed to review all the projects in the pipeline entered by the Commissioner before he assumed office and also said that the project was not needed anymore.

In her 30-page Complaint-Affidavit, Ms. Margaroli, representative of Omniprime Marketing, charged that Lina’s decision to unceremoniously cancel the contract was a clear case of conflict of interest. He and his conspirators are thus liable for graft.

“The cancellation by Respondent Lina was a grave instance of a criminal conflict of interest, manifest illegal partiality and malevolent bad faith because it benefited E-Konek Pilipinas, Respondent Parayno and ultimately, Respondent Lina himself and his family, as he has a 96.48 percent stake in the said company headed by Parayno – which same company also bid but was disqualified from the NSW 2 project bid, “ said Margaroli, in her complaint for graft.

She was assisted in the filing by her counsel, Atty. Harry Roque of the Roque and Butuyan Law Offices.

Margaroli said Aguas, who resigned shortly after Lina took office, was behind “the manufactured and pre-meditated delay accomplished and obtained the planned-for opportunity for Respondent Lina to effect the cancellation of the project.”

She added:
“E-Konek Pilipinas, as an existing Service Provider of the BOC, stands to continue reaping benefits from the perpetuation of the current inefficient and dysfunctional system that had been intended for elimination by the implementation of Phase 2 of the PNSW with Enhanced Customs Processing System. Being the President of E-Konek Pilipinas, Respondent Parayno is an inevitable beneficiary of the criminal acts of Respondents Lina and Aguas, and an indispensable party/conspirator who is now calling the shots at the BOC’s MISTG or ICT Dept., as Lina’s I.T. adviser, while sitting as President of E-KONEK”.

“Having access to all the data of the importers/exporters entered into their VASP system, E-KONEK being the only VASP who’s other sister companies in the Lina Group of companies are involve in other Customs related services, i.e., brokerage, forwarding, logistics and bonded warehouse rental and management to name a few, is therefore able to corner all of these other related services to importers of BOC other than the icing on the cake earnings, charging P50.00 per transaction fee they get, per transaction entry. The BOC Website shows that there are at least 3 Million transactions per year or equivalent to 150M Pesos per year.”

For his part, Roque said the Ombudsman should investigate Lina and Parayno for plunder, charging that
Lina, Aguas and Parayno conspired in a series of overt criminal acts to delay and to eventually cancel the contract in which OMI-Intrasoft JV had the highest rated bid, so that E-Konek Pilipinas may continue its lucrative but highly-inefficient and corruption-prone business with the BOC valued at between Php 100 million and Php 500 million or more annually.

Moreover, he pointed to two additional overt acts committed by Respondent Lina which accentuate his liability for plunder, as follows:
a. the clearance he gave to the release of broadcasting equipment belonging to the GMA Network handled by two of his corporations –2100 CB and U-Freight – using allegedly fake import permits, and;
b. Lina’s refusal to act on charges that U-Freight and another of his companies, the Nague Malic Magnawa & Associates Customs Brokers and U-Freight–linked to missing 771 shipments of airplane parts for the airline company Zest Air worth at least Php 1.5 billion.

“The above-mentioned last two cases,” according to Roque, “further underline the financial benefits Respondent Lina and Respondent Parayno stand to lose if the new systems won by OMI-Intrasoft JV in competitive bidding and which Respondent Lina cancelled is actually implemented and the series of acts of plunder Respondents have committed.”

ASEAN member-states have agreed on a common window system to fast-track cargo clearance as they move towards regional integration. The system complies international open communication standards while ensuring that each of country can exchange data securely and reliably with any trading partners that use international open standards. Its hallmarks are a simpler and faster processing time, and a more transparent way of doing business.

Said to be already ten years in the making, the national single window is a key component of the country’s goal to join a single ASEAN Market by the end of this year.

But Lina’s decision to cancel the contract for the two consolidated projects is said to delay the country’s integration into the single ASEAN Market, and insisted on having the ASYCUDA SYSTEM to be implemented while knowing too well that the re-bid alone will take more than 6 months to happen already.

Also, even without any factual basis at the time of the cancellation, he said that using the ASYCUDA system would cost the government only 50% of the cost of the 650 Million approved budget, which was actually already reduced by 300 Million from its original budget of 950Million Pesos by then Commissioner Sevilla.
Lina knows for a fact, that even at this time, there has been no formal proposal yet coming from UNCTAD for the same terms of reference provided to the bidders of the PNSW project. Where then did Lina get his figures to state that he is saving the country the said amount? In fact, from information gathered, UNCTAD representatives requires the BOC to even pay for all their airfare and hotel expenses just to be able to make an evaluation of the requirement of the BOC when asked to provide a proposal based on the same Terms of Reference provided to the winning bidder.

“While our clients spent so much time, money and effort to be able to comply with all the bid requirements using their own resources, Mr. Lina does not even care about these sacrifices that the bidder invested to comply in this bidding,” said Roque. ” And when it is finally due for final award, Lina just canceled the contract without any consultations from any of the BOC authorized representatives to the BAC and/or the Technical Working Group, who knows more what the BOC needs as they are chosen to be so, having no known conflict of interest in any CUSTOMS business.”

In the 2007 ASEAN Economic Community (AEC) Blueprint the ASEAN Single Window is crucial to the free circulation of goods in the envisioned single market, single production base integrated economic community.
In his May 6 notice, Lina said that upon his assumption into office, he initiated a comprehensive review of all the BOC projects already in the pipeline. According to him, because of the immense scale of the PNSW2 project, it has to be abandoned.

Acting on his directive, the very next day, DBM Executive Director, lawyer Jose Tomas Syquia sent the winning bidder a notice of cancellation.

Subsequently, Lina announced that he intends to re-bid the project, with an eye on the ASYCUDA system, which he claimed, has won the endorsement of the World Bank, and by a committee at the BOC before he was even appointed for the position. These were all lies and we kindly advise Comm Lina to stop using the name of our Lord in his chain of lies, Atty. Roque added. In reality, he prefers to use ASYCUDA because it is the same system that E-KONEK uses for his provided services as VASP (Value Added Service Provider)at BOC. The VASPs serves as gateway in the import and export entries for the stakeholders to enter their transactions first before it is sent to enter and be processed by the BOC E2M system. In fact, in the World Bank, JASTPRO and the 2014 COA summary reports, it was evaluated and suggested for the VASP services to be eliminated already and allow the direct entry of all transaction to BOC’s system when the new 2Interact Customs system is installed.

They said that it is where the manipulations of documents take place before it is entered into the system that gives way to corruption and billions of pesos in losses in the government coffers.

In a motion for reconsideration submitted in late May this year, Roque told the offices of both Lina and Syquia that the cancellation was without any “justifiable and reasonable” legal basis.

“As a matter of fact, Commissioner Lina’s supposed need to merely review the project constitute a most unjust and unreasonable ground to order DBM-PS to abandon the project,” said Roque in his five-page Motion for Reconsideration. “On the contrary, the cancellation constitutes a capricious and arbitrary basis, and amounts to an outright grave abuse of discretion. If at all, the reason invoked for the cancellation of the project proves that there is the utter absence of a pre-existing factual and legal bases to abruptly cancel the contract.”

Lina did not respond to the Motion for Reconsideration yet sent to his office by the Roque and Butuyan law office in behalf of their client.

Syquia replied to the Motion, saying that he was merely following Lina’s instructions and was not in a position to rescind the cancellation ordered by the latter.

However, the current system used by the BOC and developed by Webb Fontaine cannot be integrated with the NSW Phase 1 done by Crown Agents. The World Bank itself has bewailed its many inefficiencies, as well as its susceptibility to rampant corruption.

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Poe’s citizenship and residency


I am not as bold as either Former Chief Justice Panganiban or Dean Antonio La Vina to say that Grace Poe is definitely a natural born Filipino. Both posit that the so-called incorporation clause which states that generally accepted principles of international law is the legal basis for the so-called “presumption” that the senator is a natural born Filipino. Offhand, I find this odd since as a student and teacher of international law for the past 25 years, there is no definition of who a “natural-born” Filipino is under international law. It is the Philippine Constitution that defines a natural born Filipino as one who does not have to do any act to perfect his Filipino citizenship. This is sufficient basis to conclude that international law is irrelevant to the issue of whether the Senator is a natural born Filipino.

In any case, what international law provides is the presumption against statelessness and the right of a child to have a citizenship. While we are not yet a party to the first convention, I do agree that there is already widespread and virtually uniform state practice and opinion juris, the belief that it is the law, that no person shall be stateless. The Convention on the Rights of the Child in  turn provides that all children should have a nationality. Hence, the presumption that children have the nationality of their parents. But this is different from a presumption that one is a natural-born Filipino. Again I reiterate, only natural born Filipinos can aspire to be members of Congress and the Presidency. All other Filipinos can seek only local elective posts.

Is there a valid constitutional interest to be achieved by this outright discrimination? Certainly. When one is a natural-born Filipino, one cannot have any other nationality. This is why the Constitution presumes that such a Filipino will exclusively love this country to the fullest. That is why the same Constitution says that dual citizenship is inimical to the national interest and shall be dealt with by law. After all, multiplicity of citizenship means multiple allegiances. In case of a war with the United States and the Philippines, do you expect dual-citizen Filipino Americans to support the Philippines? Probably not.

In any case, the deliberations in the House of Representatives would clearly show that the issue of whether a natural-born citizen who lost it through naturalization and acquires a dual citizenship hence revert to the status of a natural born Filipino is still to be defined by the courts. As Teddy Boy Locsin, author of the dual citizenship law,  said in the floor of Congress: “Your guess is as good as mine”. My position is that this is a lacunae in the law which just be addressed by legislation.

The Lapid bill in this regard is the right remedy. Grace Poe should ensure passage of this bill into law prior to the 2016 elections.

Anent the issue of residency, much weight has been given to the case of Imelda Marcos who was declared by the Court as not having lost her domicile in Leyte solely by reason of her marriage to the late President. But the Marcos case cannot be applicable if only because Imelda Marcos, for all her faults, was never a foreigner. Likewise, our entire jurisprudence on domicile is necessary if we are to have a Congress. This is because 95 percent of all members of our House of Representatives are actually residents of Metro Manila. The intent to return – the so-called animus revertendi – has enabled Manila residents to be elected as residents of their home provinces. But it should be inapplicable to one who has opted to be a foreigner, or one with multiple loyalties.

In Jalosjos vs Comelec , the Supreme Court ruled that the abandonment of a home in Australia, renunciation of Australian citizenship, reacquisition of Philippine citizenship and settling down in Zamboanga Sibugay show an “intent to change domicile for good.” Applied to Poe, this would mean that she only acquired residency in 2010 when she renounced her American citizenship. It is unclear what the effect would be of the fact that under American law, she was only deemed to have actually lost her US citizenship in 2012. In any case, as I have written previously, the ruling in Maquiling requires both the oath and renunciation as twin requirements for those with dual citizenship to occupy public posts. The implication is that the law’s requirements are satisfied only on the date the dual citizen does both acts: the oath of allegiance and the renunciation.

In any case, the political question is how a former American can be President of the country. I restate the oath of allegiance taken by Grace Poe when she became an American:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

President Grace of the Philippines? Maybe of the USA!

 

 

First published at http://manilastandardtoday.com/2015/07/02/poe-s-citizenship-and-residency/

Filing of graft and plunder charges against BOC Commissioner Lina


Notice for Coverage
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Romel R. Bagares 09328798422

Omniprime Marketing Inc. will have a press conference at Serye Quezon City Memorial Circle tomorrow, July 2, 2015, Thursday at 9:30 AM.

Filing of graft and and plunder charges against BOC Commissioner Lina at the Office of the Ombudsman will follow at 11:30AM.

Omniprime will be accompanied by their legal counsels headed by Atty. Harry L. Roque Jr. and Atty. Romel R. Bagares.

ATTY ROQUE: JOURNALIST KILLINGS ARE VIOLATIONS OF INTERNATIONAL LAW


Media Release
Reference: Prof. Harry L. Roque Jr. 09175398096

 

The Center for International Law (Centerlaw), a civil society group aiming to strengthen the binding nature of international law in the country, condemned the shooting of CNN cameraman Jonathan Olden at 5:15am Thursday.

 

29-year old Olden, who worked as an assistant cameraman for CNN, was on his way to work when he was gunned down in Imus, Cavite. Police have yet to identify his assailants.

 

Atty. Harry Roque, Jr, a University of the Philippines law professor and chair of Centerlaw, says that in addition to the shooting being a violation of both the constitutional right to life and the right to freedom of expression, this extrajudicial killing also constitutes another breach of a state obligation to protect and promote human rights under international law.

 

“The mere killing of one journalist is the ultimate violation of the right to freedom of expression under Article 19 of the ICCPR and Article 19 of the UDHR– since it is permanent censorship,” according to Prof. Roque, citing the International Covenant of Civil and Political Rights and the Universal Declaration of Human Rights.

 

In the 2014 UN Conference on the Safety of Journalists sponsored by the European Council and UNESCO, Secretary Leila de Lima admitted that the country’s conviction rate for extralegal killings remains at 1%. The United Nations’ Alston Report on Extrajudicial, Summary or Arbitrary Executions in the Philippines, notes that the Aquino government has continued this gross irresponsibility, in breach of the duty to protect and promote the right to life, because of a lack of political will to prosecute those behind these killings.

 

“This is why impunity persists in the country,” Prof. Roque said. “And that is also why it is all the more important for the next administration to stop this cycle of continuous violence against our journalists.”

Centerlaw statement on the election of Dean Raul C. Pangalangan to the International Criminal Court (ICC)


Media Release
Reference: Prof. H. Harry L. Roque, Jr. 09175398096

The Center for International Law (Centerlaw) extends its congratulations to Dean Raul C. Pangalangan on his recent election as judge of the International Criminal Court.

Dean Pangalangan, who is a trustee of Centerlaw, brings with him to the world’s first permanent court designated to try the most heinous crimes a keen academic intellect and practical wisdom from his years of engaging with relevant issues as a leading member of the Philippine civil society.

Prof. Roque said, “We trust that with his presence in the ICC, our own people and our own government will have greater confidence in pursuing impartial justice before the international tribunal for egregious human rights violations committed in the Philippines that have remained unresolved.”

Scarborough Shoal and the violation of human rights


Center Law Philippines yesterday (June 24) submitted an urgent appeal to the United Nations Commission on Human Rights to call attention to the human rights violations which took place on the fishing grounds of the Scarborough Shoal (locally known as “Panatag Shoal” or “Bajo de Masinloc”).

Scarborough Shoal is 18 hours away from the coastal towns of Masinloc and Subic yet the fisherfolk still seek out the area because of its rich marine resource. Aside from giving them their livelihood, the area also provides safe refuge when storms occur in the West Philippine Sea. Filipinos refer to it as “Panatag Shoal,” with the word “panatag” meaning tranquil. There is more reason for the Filipino fishermen to seek refuge in Scarborough Shoal as it is within the 200 nautical miles-exclusive economic zone of the Philippines.

However, from April 2012, members of the Chinese Coast Guard and other Chinese maritime agencies have been physically harassing these Filipino fisherfolk when they visit the shoal. Several of them have been approached while they were conducting their usual business as fisherfolk. They were either told to leave, or were intimidated to the point that they were forced to leave.

Macario Forones encountered Chinese personnel carrying AK47 rifles and was told to “Go away.” Intimidated by the weapons they carried, he and his group left the area. As they were leaving, Chinese helicopters followed them out of the area and even past it. After this encounter, Forones chose not to go back Scarborough Shoal as he was traumatized by the experience.

The rights violated include: right to a livelihood, right to life, and their right to the places of refuge for ships in distress in accordance with the right to life. This is according to several United Nations issuances, specifically the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and other international customary norms.

China and its state agents violated the right to an adequate standard of living of the Filipino fisherfolk —provided under Article 11 of the ICESCR and under Article 25 of the UDHR—by preventing these Filipino fisherfolk from fishing in the traditional and marine resource rich lagoon of Scarborough Shoal.

Article 11 of the ICESCR provides: 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Further, the actions of China’s state agents in forcing the Filipino fishermen to leave the traditional and rich fishing grounds of Scarborough Shoal and in preventing them from fishing in the shoal constitutes a violation of the Filipino fishermen’s right to an adequate standard of living under Article 25 of the Universal Declaration of Human Rights: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, xxx.

The actions of China’s state agents in preventing Filipino fishermen from seeking refuge in Scarborough Shoal in times of inclement and bad weather pose serious threats to the lives of these fishermen, and constitutes a violation of the Filipino fishermen’s right to life under Article 3 of the Universal Declaration on Human Rights: Everyone has the right to life, liberty and security of person.

China is a signatory to both the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR). As a signatory, it has an international obligation to uphold its contents and to prevent any violations from worsening.

The petitioners urgently appeal the United Nations to urgently intervene and investigate the human rights violations committed by China and its state agents against Filipino fisherfolk in Scarborough Shoal; to express grave concern on the human rights violations committed by China and its state agents against Filipino fisherfolk in Scarborough Shoal.

The appeal asks the United Nations Commission on Human Rights to remind, declare and direct China to cease and desist from committing these violations and from interfering with the rights of the Filipinos fisherfolk, and to remind declare and direct China to provide effective remedies and compensation following the violations committed by its state agents.

This post first appeared in http://manilastandardtoday.com/2015/06/25/scarborough-shoal-and-the-violation-of-human-rights/