Schizophrenia on boat people II


The Aquino administration has yet another policy schizophrenia on what to do with the Rohingya boat people crisis. Last Monday, newspaper reports quoted Presidential Spokesman Herminio Coloma saying that the Rohingya boat people will be “pushed back to sea.” Coloma made this remark in the context that today’s modern boat people do not possess travel documents. Under existing immigration laws, the country can ordinarily refuse entry to undocumented aliens or those without travel documents.

Then yesterday, another alter ego of the President, Justice Secretary Leila De Lima suggested sending rescue boats to the distraught boat people. According to her, “it would be a good gesture if we send a rescue ship or two along with other Asean neighbors and it should be a concerted effort, a regional action.”   She clarified, however, that this was only a “suggestion” as the issue should be decided by “government officials at the highest level.”

Meanwhile, the Department of Foreign Affairs has issued a statement stating that we have to balance our obligations under our treaty obligations with “our interests, economy and security.” This sounds suspiciously similar to the position of Thailand and Malaysia in refusing entry to today’s boat people.

There should never have been conflicting positions, to begin with. As a party to the 1951 Convention on the Rights of Refugees, we are duty bound to accept and provide humanitarian assistance to those who have crossed national boundaries owing to a well-founded fear of persecution in their homelands. Our duty is to accept them  and we cannot turn them away even if they are illegal refugees. Further, under the  Palermo Convention  and its protocols, we also have the duty to provide for the protection of trafficked persons.

According to the United Nations, the Rohingya Muslims are today among the most “persecuted” minorities in the world. Largely based in Myanmar, the estimated 1.3 million Rohingya Muslims are considered as illegal settlers in the predominantly Buddhist country. Recently, one of the biggest scandals that rocked Thailand was an expose that members of the group are being employed there literally as slaves made to work in exchange for food and lodging.

The problem today is that countries such as Australia and the states constituting the EU have insisted that they cannot afford the material and political costs of admitting modern-day boat people in their territory. Australia has consistently refused entry to boat people opting to process and detain them in an offshore island. The EU, despite its proven commitment to human rights, has also tightened its border controls and has also refused entry to boat people from Africa. The EU now has to contend with the fall-out arising from a sinking of one such boat with at least 700 casualties. Increasingly, more and more countries, Thailand and Malaysia included, have refused entry to refugees precisely on the same grounds mentioned by our DFA, to wit: “national interests, economy and security.”

In fairness to De Lima, she was clear that her opinion to render humanitarian assistance to the modern-day boat people was only a recommendation. This has not prevented UN officials from praising our country for making what in reality, is a non-offer. And while the Justice Secretary appears to be rather influential in this administration since she defied the Supreme Court’s temporary restraining order barring the Executive Branch from preventing the departure of former President Gloria Macapagal-Arroyo early on in PNoy’s term; her recommendations, like her opinion that the CA TRO on the ouster of Mayor Jun Jun Binay as Mayor of Makati, is, to quote her, “merely recommendatory.” In short, we still have to come up with an   official policy on whether we will assist Southeast Asia’s modern boat people.

The Philippines opened its territory in the 1970s to the hordes of Vietnamese people fleeing the repressive communist regime in Hanoi. We did so then out of compliance with our treaty commitments and out of compassion. While we could not accept the Vietnamese as refugees into our territory, we agreed to process them until other countries could accept them as refugees. If we did it then, I see no reason why we cannot do this anew for the Rohingya Muslims.

It’s a cardinal principle under international law that in default of further legal basis, mankind shall continue to be protected by public international law, the dictates of conscience and the laws of humanity. To Asia’s only Christian nation, admitting today’s boat people is to walk the talk that Christians will give   homes to the homeless.

Let’s hope PNoy finds the heart to walk the talk.

Binay and the P600-million hoax


You have to give it to Vice President’s Jejomar Binay’s detractors. Not content with the unprecedented 21 Senate hearings against him, they have succeeded this time in freezing the assets of at least 33 individuals allegedly because they benefited from the overpriced buildings in Makati. This is a PR coup for the handlers of Mar Roxas who until today, must believe that the best defense is offense. I’m sure, though, that history will prove that politicians who aspire for higher office at the expense of simply destroying the reputation of their competitors,  rather than standing on their own merits, will not be rewarded by the people. As the surveys show, those at the forefront of destroying the Vice-President have remained in Dante’s inferno as far as  public acceptance is  concerned.

So how should we react to the freeze of P600-million worth of assets? Well, it should be viewed as yet another political propaganda against the acknowledged presidential front-runner in 2016. Consider:

One, the amount of P600 million is insignificant if we consider the number of persons involved. The Inquirer reported that the P600 million constituted the assets of no less than 33 persons. At the average therefore, that amounts to only 18 million pesos per person. That’s no big deal given  the declared net worth of our public officials. PNoy himself declared at least P50 million in net worth, while VP Binay himself declared no less than P60 million. If we were to deduct the VP’s declared net worth from the P600 million, that’s only an average of only 16 million per person. Given that some of those in the list include Ten Outstanding Young Men awardee and Xavier Alumnus Antonio Tiu, I’m sure the P600 million in frozen assets is insignificant since Tiu alone should be worth at least P600 million.

But the damage has been done. To the unthinking mind, VP Binay could not have amassed P600 million from his 25 years in public office. Ergo, many more ordinary persons may be convinced not to vote for Binay in 2016.

But the detractors of Binay are wrong. The people will eventually  conclude that the P600 million in frozen assets is just that: frozen. Unless the courts declare that the sum is actually fruits of a predicate crime under the Anti-Money Laundering Act, they enjoy the presumption of being clean money frozen due to political maneuverings.

Second, they are wrong in assuming that they could freeze the assets of a sitting vice president. While I have long advocated that impeachable officials should only be immune from suits arising from sovereign acts pursuant to the rulings in In Re Pinochet by the UK House of Lords and the US Supreme Court case of Clinton vs. Jones, the Philippine Supreme Court has repeatedly refused my pleas to charge then President Gloria Macapagal- Arroyo for corruption and for crimes against humanity. In at least two cases that I filed, the first in connection with the botched and anomalous NBN –ZTE contract and in the case of David vs. Arroyo, the Court has refused to follow the route of the UK and US in narrowing the scope of immunity of impeachable officers. In other words, the AMLA petition to freeze the assets of the VP, including the action of  the Regional Trial Court to declare these funds as proceeds of predicate crimes under the law, violate Binay’s immunity from suits. It is only a matter of time before the Supreme Court declares the freezing of the VP’s assets as being unconstitutional.

But to the VP’s detractors, the unconstitutionality of their acts simply does not matter. In typical Machiavellian manner, the task is to prevent, by hook or by crook, the commoner Binay, the dark Vader, a common Tao, from occupying the highest office of the land. These caciques clearly believe that the presidency should remain in the hands of one of their own.

But times have indeed changed. The public is no longer as gullible as the elite believe them to be.  Because of a thriving free marketplace of ideas, falsities, although welcome, have enabled the masses to discern the truth for themselves. And what is the truth? The reality is that none of Binay’s detractors can play the game of “holier than thou”. None of them can come to court, because they themselves have unclean hands. And consequently, none of their charges can stand up in a court of law. This is the reason why despite being in government for more than 25 years, VP Binay has not been found guilty even once of corruption in a proper court of law. And yes, the truth is that the frozen P600 million is only the fruit of a hoax.

Perhaps, a few words should also be devoted to the propriety of reporting on the freeze order, which according to the law should remain confidential. Here, the secrecy is for at least two reasons: one, to prevent the account holders from concealing their assets. Two, and more importantly, it is to protect the reputation of the account holders since the freeze order is not tantamount to a finding of guilt.

As we have learned from this incident, media ought to be more vigilant in upholding the law. Even public figures, after all, are entitled to the presumption of innocence; more so where a law itself requires everyone to treat information as confidential. Now more than ever, I have learned that freedoms should be balanced with responsibility and the pressing need for the media to comply with the law.

This post first appeared in http://manilastandardtoday.com/2015/05/14/binay-and-the-p600-million-hoax/

The divide on freedom of expression


An interesting development in media law is the widening gap between American and European jurisdiction on three areas of  freedom of expression: privacy, hate speech and liabilities for Internet service providers.

On the issue of privacy, American jurisprudence insists that public persons, or celebrities, have given the public a right to inquire even into their private lives. The Europeans, on the other hand,  insist that celebrities such as Princess Caroline of Monaco and supermodel Naomi Campbell are entitled to some sort of privacy, particularly where aspects of their private lives do not contribute to any debate on public issues.

On hate speech, American jurisdiction, adopted  by us, maintains that because of the primacy that we have accorded to freedom of expression, the only limitation on free speech is where there is a clear and present danger that the state has a right to prevent. European jurisprudence, on the other hand, has been less tolerant of hate speech. In Wingrove vs. UK, the European Court upheld a decision of a local court to order the removal of an anti-Muslim tarpaulin. In another case,  Otto-Preminger Institute v. Austria, the same human rights court banned the showing of a film that appeared to be anti-Christian although it allowed the public reading of its script.  In both cases, the European Court of Human Rights did not use the clear and present test. Instead, it opted for a less strict test, the so-called three-pronged test, that is, speech may be infringed on if there is a law, if it has a legitimate governmental purpose, and if it is proportional to the purpose sought to be promoted.

The third area of divergence is on whether Internet Service Providers should incur liability for matters “published” on their sites. The Americans, maybe because almost all ISPs are based in the US, want full immunity, while Europe, and apparently the rest of the world -as evidenced by the “Manila Declaration”, opt for conditional liability. This means ISPs should have liability if they have notice of illegality of their content and they failed to remove it.

There does not appear to be an end to the increasing divergence between the continent and the new world. Of late, the United States opted for the rule on “net neutrality”, or the rule that content providers should not be allowed to pay for faster access to the Internet. There is no such  zeal in defending this neutrality in Europe.

While these divergences are indeed healthy as indicative of diversity in views, what is worries me is that these European jurisprudence may be invoked by despots to limit the scope of freedom of expression.   To illustrate, European countries, when they were negotiating the Genocide Convention, succeeded in criminalizing the mere incitement to genocide arguing that in order to prevent genocide, the international community should already prohibit mere incitement.  To wait for an actual genocide to happen would be too late.

The US disagreed and said that only incitements, where clear and present danger could arise, should be prohibited.

An ordinary person inciting the mass destruction of people should not be penalized for the mere utterance of the words. But if members of armed security forces or an armed group uttered the same words, then it could be prohibited and penalized. The rationale is freedom of expression protects, precisely, unpopular speech. This,  in turn is premised on the assumption that all speech forms part of the free marketplace of ideas that people turn to discern the truth and form their opinions.

Conceivably, authoritarian regimes may penalize incitement to terrorism, even absent a definition,  in the same manner that incitement to genocide was provided in the convention. If these regime were to do this, only despots can define what terrorism is and the criminalization of both incitement and acts of terrorism may be used to curtail civil and political rights.

A consequence of the divergence in the area of hate speech is the nature of the prohibition. The three-pronged test of the Europeans appears to prohibit hate speech as if they were in the nature of malum prohibitum, or that mere utterances of hate speech should be penalized. The danger here of course is if liability is based solely on the utterances made, then people may not speak freely about their thoughts, which would then limit what we seek to have: a robust and free discussion of issues.

The saving grace appears to be in the test of proportionality applied by the Europeans. While they tend to legitimize prior subsequent punishment, the penalties imposed range only from fines to suspension of the right to practice journalism as a profession. Under no circumstance has the European Court of Human Rights sanctioned a subsequent punishment in the form of imprisonment. This is still confirmation that the Europeans still value freedom of expression as it has not deemed incarceration as a proportional means to promote racial harmony.

Where do we go from here? The Philippines has been faithfully adhering to  American jurisprudence, and  for good reason. If the Americans were able to persuade us to adopt their jurisprudence on freedom of expression, perhaps it can convince other jurisdictions, including the European Court, to do so. Lets hope so.

This post first appeared in  http://manilastandardtoday.com/2015/05/07/the-divide-on-freedom-of-expression/

She’s alive!


The nation is in celebration mode. Who ever thought that one woman would have such a uniting effect on our people? Mary Jane Veloso, formerly part of the faceless and nameless Filipino diaspora, is now in the hearts and minds of every Filipino. And for good reason. She represents the modern-day Filipino who was forced by economic hardship to seek employment abroad, was apparently duped, made into a drug mule, and has landed in Indonesian death row for it. And to those who have doubts on the power of prayers- think again. For in the final analysis, it could only have been the prayers of the nation that saved her from the firing squad.

But the reprieve is just that—temporary. What should make it permanent for Mary Jane is to apprehend the people behind the drug syndicate preying on the hardships of others in making them modern-day drug mules. Unless we can prove that Mary Jane’s only fault was to agree to carry that suit case to alleviate her hardship, she may find herself back again before the firing squad.

Government should hopefully also learn from this experience. Despite Flor Contemplacion and the other drug mules already put to death in China, government apparently has not learned it lessons.

First, we need to modernize and rejuvenate our consular personnel. Our humble contribution in saving Mary Jane was an Application with prayer for provisional measures, which we hope would be filed with the International Court of Justice. The ground for it is rather unique—breach of the Vienna Convention on Consular Relations. Under this Treaty, the nearest Philippine consular official should have been informed of the arrest and investigation of Veloso at the outset, and not when the case was already in Court. Although seemingly trite, it was this reason that prompted the International Court of Justice to issue provisional measures directing the United States not to proceed with the implementation of the death penalty against Mexican and German nationals in the case of Mexico and Germany vs. United States, that is referred to as the “Avena” case.

Here, the government should learn that with a diaspora of 11 million Filipinos working overseas, we should have a dynamic and well-funded consular service in every state where there is an OFW. If only because the sweat, blood and tears of our OFWs have kept us economically afloat, we owe it to them that our consuls should have the resources to invoke violations of the Vienna Convention as a ground for vacating judgments against our nationals. Moreover, it is absolutely unacceptable that Mary Jane faced trial being defended by pro-bono counsel. The DFA must have sufficient legal funds to retain the best possible lawyers in foreign jurisdictions to defend our OFWs. This is   investing on the goose that has been laying the golden eggs for us. No ifs, no buts. It was wrong that our embassy paid for Mary Jane’s counsel only after she had been found guilty.

With other nationals also facing the death penalty worldwide, we should also now be at the forefront of the struggle to abolish the death penalty worldwide. We are in the best position for this since we too had the death penalty until recently. Perhaps we should focus on the drug syndicates preying on the hardship of our people and using them as drug mules as the theme for our campaign.  Perhaps we should highlight that the drug syndicates are the real criminals, and not the drug mules.

Perhaps the biggest lesson that government should heed is: DO NOT WAIT FOR THE ABSOLUTE LAST MINUTE. If you’re going to call in favors and spend goodwill, you might as well do it as early as possible. We might not be as lucky the next time.

Babes Romualdes and I appeared in Malou Tiquia’s new debate program on CNN Philippines. The topic was whether the Philippines’ diplomatic efforts have been sufficient in resolving the West Philippines Sea dispute. I didn’t feel that I was in debate since Babes appears to be in agreement with me on every point that I raised. For instance, I said the problem was not whether diplomatic initiatives have been exhausted. Instead, I argued that the problem is we do not have a concrete policy on the West Philippine Sea, to begin with. I recalled the time when the DFA was split on whether we should resort to arbitration. The policy group thought that arbitration was mutually exclusive with diplomatic initiatives since China, culturally, allegedly does not want to be sued. The maritime group, which prevailed, thought that arbitration was the lone remedy since we cannot continue to negotiate with a superpower that has a gun pointed at our heads. In reality, a concrete policy on how to deal with China should have told us that the Chinese antipathy against all sorts of litigation is a farce given the many cases that it has filed to date with the World Trade Organization. Likewise, a coherent policy would have made us realize that running to Uncle Sam at every opportunity has only further muddled the issue since China today does not eve recognize us as a party to the dispute. In their minds, we are nothing but stooges for the Americans.

Babes wrote about a reader allegedly complaining about persons like me who will talk against the Americans but seemingly oblivious against China. Babes: tell your friend that I am not such a person. All he has to do is to check out my many writings against the Chinese on this issue.

I am a Filipino and will of course only espouse the Filipino interest.

Draft copy of the Veloso petition to the ICJ


I gave this to Vice President Jejomar Binay so that the VP can get the concurrence of President Benigno Aquino. To date, there is no news if the VP has obtained PNoy’s concurrence.

INTERNATIONAL COURT OF JUSTICE

APPLICATION

INSTITUTING PROCEEDINGS

filed in the Registry of the Court on 28 April 2015

VELOSO CASE

(Republic of the Philippines v. Republic of Indonesia)

____________________________________

  1. THE AMBASSADOR OF THE REPUBLIC OF THE PHILIPPINES TO THE NETHERLANDS, FOR THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

The Hague, 28 April 2015

Following instructions of my Government, I am most pleased to submit to the esteemed Court an Application as well as an Urgent Request for Provisional Measures of the Republic of the Philippines pursuant to Articles 40 and 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court against the Republic of Indonesia for violations of the Vienna Convention on Consular Relations and the Convention on the Elimination of All Forms of Discrimination against Women.

The request for provisional measures is extremely urgent, as the execution of 30-year old Philippine national Ms. Mary Jane Fiesta Veloso, mother of two children, set to take place today on or around 1800 hours (Manila time) at Nusakambangan – known as Indonesia’s execution island – would deprive both this Court and the Republic of the Philippines of the opportunity to have the case decided on its merits.

(Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For: Mr. Philippe Couvreur

Registrar

International Court of Justice

Peace Palace, The Hague

The Netherlands

Sir:

On behalf of the Republic of the Philippines and pursuant to Article 40 (1) of the Statute of the International Court of Justice, and Article 38 of the Rules of Court of the ICJ, may I respectfully submit this Application instituting proceedings in the name of the Government of the Republic of the Philippines against the Government of the Republic of Indonesia for violations of the Vienna Convention on Consular Relations of 1963 (hereinafter the “Vienna Convention”) as well as of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).

  1. Preliminary Statement
  1. A national of the Republic of the Philippines was arrested, detained, tried and sentenced to die by musketry following criminal proceedings in the Republic of Indonesia involving alleged drug trafficking. The sentencing of the Philippine national was conducted in violation of Article 36 (1) (b) of the Vienna Convention, when the Indonesian authorities failed to notify the Philippine government of the arrest and detention of the latter’s national.
  1. Moreover, the death convict, Ms. Mary Jane Fiesta Veloso, a 30-year old Filipina mother of two children, was by any account, a victim of human trafficking; this however, was not taken into consideration by the courts of the Republic of Indonesia, despite its obligations under Article 6 of the CEDAW to ensure that victims of human trafficking, are not doubly victimized by being made to suffer as offenders when in truth and in fact, because of their vulnerable condition, they were merely tricked by others into committing the offense through false pretenses or false promises of economic gain.
  1. The Republic of Indonesia’s violation of the Vienna Convention prevented the Republic of the Philippines from exercising its rights and from accordingly performing its consular functions and duties to its distressed national pursuant to the Vienna Convention. The Republic of the Philippines suffered injuries both from that of its national, and on its own capacity.
  1. Moreover, the failure of the Republic of Indonesia to abide by its obligations under Article 6 of the CEDAW has deprived a national of the Republic of the Philippines of entitlements and protections under the same Convention.
  1. The Philippine national on death row is scheduled for execution just around midnight today at The Hague– a fact which makes this Application and Request for Provisional Measures all the more urgent. The Republic of the Philippines has requested for clemency, following repeated diplomatic representations by it and others – including the UN Secretary General Ban-Ki Moon –with the Indonesian government.
  1. In addition, just a few days ago – at the intervention of Philippine authorities and civil society groups – a second appeal was filed on behalf of Ms. Veloso, this time indicating mitigating circumstances, including her being a victim of human trafficking. Notwithstanding these efforts, authorities of the Republic of Indonesia have consistently refused to provide her remedy or relief.
  1. The Philippine government’s diplomatic protests deal for the most part with cases in which its nationals face capital punishment. This is due, in part, to Philippine’s strong interest in protecting the lives of its nationals and its belief that those countries that apply the death penalty must rigorously adhere to due process. In addition, as noted above, it is the Philippine’s experience that the involvement of consular officers can make the difference between life and death for a Filipino national facing capital offense charges.
  1. The Republic of the Philippines respectfully requests that the Court order provisionally, an injunction against the execution of Philippine national Ms. Mary Jane Fiesta Veloso, while this case is being heard by the Court.
  1. The Republic of the Philippines also respectfully requests that the Court order restitutio in integrum, or a “re-establishment of the situation which would, in all probability, have existed if the violations had not been committed” (Factory at Chorzów (Claim for Indemnity), Merits, Judgment of 13 September 1928, P.C.I.J., Series A, No. 17, p. 47).
  • Further, the Republic of the Philippines requests that the Court order prospective relief necessary and sufficient to ensure that the pattern and practice of violations of Article 36 of the Vienna Convention by the Republic of Indonesia ceases.
  1. Jurisdiction of the Court
  1. Under Article 36, paragraph 1, of the Statute of the Court provides that, “[t]he jurisdiction of the Court comprises . . . all matters specially provided for . . . in treaties and conventions in force”.
  • As Members of the United Nations, the Republic of the Philippines and the Republic of Indonesia are parties to the Statute. They are also parties to the Vienna Convention. The Republic of the Philippines is also a party to the Optional Protocol concerning the Compulsory Settlement of Disputes. Article I of the Optional Protocol provides: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
  • Moreover, both the Republic of the Philippines and the Republic of Indonesia are parties to the CEDAW. In this connection, the Republic of Indonesia itself has made a declaration in respect of the provisions of the CEDAW that it “does not consider itself bound by the provisions of article 29, paragraph 1 of this Convention and takes the position that any dispute relating to the interpretation or application of the Convention may only be submitted to arbitration or to the International Court of Justice with the agreement of all the parties to the dispute.”
  • Upon the filing of the present application, the matters in dispute between the Republic of the Philippines and the Republic of Indonesia concerning the Vienna Convention and the CEDAW therefore lie within the compulsory jurisdiction of the Court.
  • Facts of the Case
  • Veloso was born to a poor family in Nueva Ecija, a province some 200 kilometers northeast of Manila. The youngest of five children, she barely had an education, making it only to first year high school. She married at the age of 17 and had two children by her husband. Her marriage however did not last long.
  • Wanting to help her family rise from abject poverty, she decided to work abroad as a domestic helper on a promise of assistance by an acquaintance, a certain Ma. Kristina Sergio. Ms. Sergio’s partner, Mr. Julius Lacanilao, is said to be friend to Ms. Veloso’s family.
  1. In April 2010, Ms. Sergio and Mr. Juliano promised Ms. Veloso a job as a domestic helper in Malaysia in exchange for her payment of a tricycle, a mobile phone and 7,000 Philippine pesos.
  • That same month, Ms. Sergio and Ms. Veloso flew to Kuala Lumpur. There, they met a certain Ike, an African of a yet unidentified nationality and an acquaintance of Ms. Sergio’s partner.
  1. Sergio and Ike asked Ms. Veloso to make a side trip to Indonesia to meet with someone, with a promise that she will get her job as a domestic helper upon her return to Kuala Lumpur.
  1. On 24 April 2010, she and Ms. Sergio met with Ike, who handed Ms. Veloso a traveling bag. When Ms. Veloso remarked that the bag, though empty, appeared to be heavy, Ms. Sergio told her it was merely because the bag was new.
  • Sergio also gave her 500 US dollars and a number to call upon arriving in Indonesia.
  1. On 25 April 2015, Ms. Veloso flew to Yogyakarta’s Adisucipto airport. At a security check at the airport, she was arrested by Indonesian airport police after 2.6 kilograms of heroin were found in her luggage. At the time of her arrest, Ms. Veloso was 25 years old.
  1. During initial interrogation by the police, Ms. Veloso was identified to be a Filipino citizen. Despite this clear indication of foreign nationality, competent authorities failed to inform her of her rights to consular assistance under Article 36, subparagraph 1 (b), of the Vienna Convention. Not having been apprised of these rights, Ms. Veloso could not and did not exercise them before his trial and sentencing.
  1. During the trial from April 25, 2010 to October 2010, Ms. Veloso was denied her right to due process and a fair trial.
  1. First, during her interrogation conducted by Indonesian police in Bahasa Indonesia, a language she neither spoke nor understood at that time, she was not afforded a lawyer or a translator. She was left to her own devices to understand and answer the questions propounded to her by Indonesian police investigators.
  1. Second, at trial, the court-provided interpreter – only a student at a foreign language school in Yogyakarta who was not licensed by the Association of Indonesian Translators – translated the proceedings from Bahasa Indonesia to English, a language with which Ms. Veloso was not conversant.
  1. Third, because of the failure of Indonesian authorities to inform Philippine consular authorities of her situation, Ms. Veloso did not have access to a Philippine-nominated lawyer who could give her proper legal advice in regard to her case. All that she had to defend her was a public defender provided by the police, who failed to raise any Convention-based arguments in direct appeal and state post-judgment proceedings on her behalf.
  1. On October 2010, after only six months of trial, Ms. Veloso was convicted and sentenced to die by firing squad. Ms. Veloso’s appeals of the conviction and sentence were denied.
  1. Having been uninformed until that time of Ms. Veloso’s situation, the Republic of the Philippines was unable to exercise its right to provide consular assistance to her at the trial and direct appeal levels. However, upon belatedly learning of his situation, Filipino consular authorities began rendering assistance, legal and otherwise, to Ms. Veloso.
  1. Efforts of the Republic of the Philippines to Prevent the Carrying Out of the Death     Sentence on Ms. Veloso

 

  1. Thus in August 2011, Philippine President Benigno S. Aquino III submitted an appeal for clemency on behalf of Ms. Veloso to then Indonesian President Susilo Bambang Yudhoyono. At the time however, as Indonesia had a moratorium on executions, the clemency request was not acted upon.
  • In October 2014, a new Indonesian president, Jokowi Widodo, was sworn into office. President Widodo however, was not inclined to grant requests for clemency for drug traffickers on death row, noting the serious illegal drug situation in Indonesia.
  1. In January 2015, President Widodo rejected a new round of clemency appeals including that made for Ms. Veloso.
  1. Last Friday, 24 April 2015, a second appeal was filed with the Sieman District Court in the Republic of Indonesia, arguing that Ms. Veloso was a victim of human trafficking who should not have been prosecuted for a crime she knew nothing about.
  1. The second appeal pointed to evidence recently provided by the Philippine Drug Enforcement Agency that Ms. Veloso had fallen victim to an international criminal drug syndicate, unwittingly becoming a “drug mule”.
  1. Yesterday, 27 April 2015, the Sieman District Court rejected the second appeal.
  1. Also yesterday morning, President Aquino met for a few minutes with President Widodo on the sidelines of the 26th Association of Southeast Asian Nations in Kuala Lumpur to discuss Ms. Veloso’s case. Media reports said the Indonesian President promised his Philippine counterpart that he will look again into Ms. Veloso’s case.
  1. However, time is running out on Ms. Veloso, with little or no hope that President Widodo will grant her clemency.
  1. The Republic of the Philippines does not seek to bar the Republic of Indonesia from enforcing its criminal law. However, it contends that the competent authorities of the Republic of Indonesia must enforce its criminal law by means that comport with the obligations it has undertaken to fulfill in the Vienna Convention and in the CEDAW.
  1. Convention Violations by Indonesia
  1. The Vienna Convention requires authorities of the receiving State to inform any foreign national of the sending State “in prison, custody or detention” (Vienna Convention, Art. 36 (1) (c)), “without delay of his rights” to contact his consulate (ibid., Art. 36 (1) (b)). Then, if the detained foreign national so requests, the Vienna Convention requires the competent authorities of the receiving State to inform the national’s consulate without delay (ibid.). By arresting, detaining, trying, convicting, and sentencing Ms. Veloso without advising her of her Article 36 rights, Indonesia has violated its obligations under the Vienna Convention.
  1. The Vienna Convention mandates that the laws of each State party enable “full effect to be given to the purposes for which” the rights set forth in Article 36 of the Vienna Convention “are intended” (Vienna Convention, Art. 36 (2)). By failing to “enable full effect to be given” to the Philippine’s rights and those of its nationals under Article 36 of the Vienna Convention and by refusing to provide a meaningful mechanism for review and reconsideration as well as a meaningful remedy at law of the convictions and sentences imposed on Filipino nationals in proceedings that failed to respect those rights, Indonesia has violated, and continues to violate, its obligations under the Vienna Convention.
  • The Vienna Convention on the Law of Treaties (done on 23 May 1963), which codifies the customary international law of treaties, sets forth two axiomatic principles: First, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (ibid., Art. 26). Second, “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (ibid., Art. 27). The Republic of Indonesia, by failing to perform its obligations under Article 36 of the Vienna Convention, and by invoking the provisions of its internal law to defeat rights granted to the Republic of the Philippines and its nationals by the Vienna Convention, has violated, and continues to violate, both of these principles.
  1. Competent authorities of Indonesia failed timely to notify Ms. Veloso of her right to consular assistance under the Vienna Convention. This failure deprived a Philippine national of her rights and precluded the Philippines from exercising its rights and performing its consular functions pursuant to Articles5 and 36, respectively, of the Convention. As emphasized, consular assistance almost invariably affects the result of criminal proceedings brought against its nationals, particularly in cases in which prosecutors seek to impose a sentence of death. By violating Article 36 of the Vienna Convention, the Republic of Indonesia prevented the Republic of the Philippines from rendering consular assistance that could have prevented the convictions and death sentences.
  1. Restitutio in integrum requires the Republic of Indonesia to immediately re-establish the situation which existed before the violations to Article 36 of the Vienna Convention were committed. The Republic of the Philippines believes that restitutio in integrum in these cases is materially possible and does not involve a burden out of all proportion to Indonesia, taking into account the fundamental importance of human life.
  1. Moreover, Article 6 of the CEDAW provides that:

States Parties shall take all appropriate measures, including legislation,    to suppress all forms of traffic in women and exploitation of    prostitution of women.

  1. These measures, with respect to the Republic of Indonesia, include ensuring that victims of human trafficking are protected and are not doubly victimized through prosecution as offenders, and affording judicial protection to women who, while in a position of vulnerability, are recruited by fraud or deception, with promises of payments or benefits, for the purpose of exploitation. Finally, these also include an enabling environment for trafficking victims to comfortably access assistance and services, and where trafficking victims are treated with respect and dignity and are provided with the services they require.
  1. The Republic of Indonesia violated Article 6 of the CEDAW in its treatment of Ms. Veloso’s case, by treating her as an offender rather than as a victim of human trafficking , and failing to afford her the judicial, legislative and executive protections she is entitled to under the CEDAW.
  1. The Claims of the Philippine Government
  1. In accordance with Article 36, subparagraph 1 (b), of the Vienna Convention, the Republic of Indonesia is under the international legal obligation to the Republic of the Philippinesto inform “without delay” any Filipino national who is “arrested or committed to prison or to custody pending trial or is detained in any other manner” of his rights under that subparagraph (La Grand, Judgment of 27 June 2001, para. 77). These rights include:
  • The right, if the national arrested or detained so requests, to have the competent authorities of the receiving State inform the local consular post of the sending State that that State’s national has been so arrested or committed to prison or to custody pending trial or detained in any other manner;
  • The right to have the competent authorities of the receiving State forward any communication “addressed to the consular post from the person arrested, in prison, custody or detention . . . without delay”.
  1. The Republic of Indonesia has violated these obligations with respect to Ms. Veloso who is currently on death row.
  1. Pursuant to Article 36 of the Vienna Convention, the Republic of Indonesia is under an international legal obligation to ensure that the Republic of the Philippines can communicate with and assist an arrested national prior to trial. By failing to notify Ms. Veloso of her rights under Article36, subparagraph 1 (b), of the Vienna Convention, Indonesia has prevented the Philippines from exercising its right to carry out consular functions pursuant to Articles 5 and 36 of the Convention. Indonesia therefore has violated this obligation.
  1. Pursuant to Article 36, paragraph 2, of the Vienna Convention and Article 26 of the Vienna Convention on the Law of Treaties (done on 23 May 1969), which codifies customary international law, the Republic of Indonesia is under an international legal obligation to ensure that its municipal law and regulations enable “full effect [to be given] to the purposes for which the rights accorded under [Article 36] are intended”. (See also Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 4.)
  • Pursuant to Article 6 of the CEDAW, the Republic of Indonesia is under an international legal obligation to ensure that Ms. Veloso, as a victim of human trafficking is given effective protection and assistance through the necessary judicial, legislative and executive mechanisms, so that she suffers no further victimization.
  1. For the reasons set forth in this Application, the municipal law of the Republic of Indonesia fails to give full effect to the rights afforded by Article 36 of the Vienna Convention and precludes the Republic of the Philippines and its nationals from vindicating those rights by law in any meaningful way, as well as to the rights afforded by Article 6 of the CEDAW. The Republic of Indonesia therefore has violated, and continues to violate, the above-mentioned international legal obligations it owed to the Republic of the Philippines.

VII.  Judgment Requested

  1. The Government of the Republic of the Philippines therefore asks the Court to adjudge and declare:
  • That the Republic of Indonesia, in arresting, detaining, trying, convicting, and sentencing Ms. Veloso to death row described in this Application, violated its international legal obligations to the Republic of the Philippines, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;
  • that the Republic of the Philippines is therefore entitled to restitutio in integrum and to reparations for the breach by the Republic of Indonesia of its obligations under international law;
  • that the Republic of Indonesia is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;
  • that the Republic of Indonesia is under an international legal obligation not to carry out the sentence of death by musketry on Ms. Veloso, pursuant to Article 6 of the CEDAW, which provides judicial protection to a victim of human trafficking from further victimization through criminal prosecution, and to annul and reverse her conviction, and to forthwith cause her repatriation to the Republic of the Philippines;
  • that the Republic of Indonesia is under an international legal obligation not to carry out, in conformity with the foregoing international legal obligations, any future detention of or criminal proceedings against Ms. Veloso on death row or any other Philippine national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the Republic of Indonesia, and whether that power’s functions are international or internal in character;
  • That the right to consular notification under the Vienna Convention is a human right;

and that, pursuant to the foregoing international legal obligations,

  • The Republic of Indonesia must restore the status quo ante, that is, re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Ms. Veloso in violation of the its international legal obligations;
  • The Republic of Indonesia must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;
  • The Republic of Indonesia must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to the Philippines and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure to timely raise a claim or defense based on the Vienna Convention where competent authorities of the Indonesia breached their obligation to advise the national of his or her rights under the Convention; and
  • The Republic of Indonesia must take the steps necessary and sufficient to afford all the protections that Ms. Mary Jane Fiesa Veloso is entitled to under Article 6 of the CEDAW, including, but not limited to, her immediate release from prison and the annulment of her conviction for drug trafficking, as well as her repatriation to the Republic of the Philippines.
  • The Republic of Indonesia in light of the pattern and practice of violations set forth in this Application, must provide the Republic of the Philippines with satisfaction by way of a full guarantee of the non-repetition of the illegal acts mentioned.

VIII. The Appointment of a Judge Ad Hoc

  1. In accordance with the provisions of Article 31 (2), of the Statute and Article 35, paragraph 1, of the Rules, the Government of the Republic of the Philippines declares its intention to exercise its right to choose a judge ad hoc.
  1. Reservation of Rights

 

  1. The Government of the Republic of the Philippines reserves the right to modify and extend the terms of this Application and Request, as well as the grounds invoked.

 

  1. Provisional Measures
  1. The Government of the Republic of the Philippines requests that the Court indicate interim measures of protection, such as an injunction against the execution of Ms. Mary Jane F. Veloso.
  1. At the heart of any claim to human rights is the centrality and sanctity of an individual human life; indeed, every human being has the inherent right to life and this right shall be protected by law, as Article 6 of the International Covenant on Civil and Political Rights provides. All other rights proceed from this core human right.
  1. The grave and exceptional circumstances of this case, and given the paramount interest of the Republic of the Philippines in the life and liberty of its nationals, provisional measures are urgently needed to protect the life of Filipino national, Ms. Mary Jane Fiesta Veloso as well as the ability of this esteemed Court to order the relief to which the Republic of the Philippines is entitled to, in particular, the restoration of the status quo ante.
  1. Without the provisional measures requested, the Republic of Indonesia will execute Ms. Veloso before this Court can consider the merits of the claims propounded by the Republic of the Philippines; if the execution of the Death Sentence pronounced upon Ms. Veloso by the Republic of Indonesia is not stayed, the Republic of the Philippines will be forever deprived of the opportunity to have the status quo ante restored in the event of a judgment in its favor.
  1. On behalf of the Government of the Republic of the Philippines, I therefore respectfully request that, pending final judgment in this case, the Court indicate that:

The Republic of Indonesia shall take all measures at its disposal to              ensure that Ms. Mary Jane Fiesta Veloso is not executed pending               the final decision in these proceedings, and should inform the Court of           all the      measures which it has taken in implementation of that Order.

  • Given the extreme gravity and immediacy of the threat that authorities in the Republic of Indonesia will execute a Filipino citizen in violation of obligations it owes to the Republic of the Philippines, the Republic of the Philippines respectfully asks the Court to treat this request as a matter of the greatest urgency.
  1. The Government of the Republic of the Philippines has authorized the undersigned to appear before the Court in any proceedings or hearings relating to this Application and Request that the Court may convene in accordance with the Rules of the Court, with reservations to appoint co-agents and co-counsels as may soon be practicable under the circumstances.

The Hague, 28 April 2015.

                              Sgd.) JAIME VICTOR B. LEDDA

Ambassador Extraordinary and Plenipontentiary

Republic of the Philippines

For the soft copy, please click Application.PHvIndonesiav2

Has our Commission on Human Rights made a difference?


Hanoi, Vietnam—I am in the capital of Vietnam as a resource person in a seminar on “National Human Rights Commissions: Experiences from the Region” sponsored by the Konrad Adenauer Stiftung. I accepted the invitation because of a long desire to evaluate the affectivity of our own Commission of Human Rights since its establishment through the 1987 Constitution 28 years ago. This invitation finally gave me to the opportunity to finally conduct this long-delayed study.

The starting point has to be the very high expectations of the people that the CHR will help promote and protect human rights in the country when they created it in the Constitution itself. Its first head, Chairperson Mary Bautista, should be credited for safeguarding the independence of the constitutional body from political interference. Congress then took the appointment of the Chair and the Commissioners of the Commission should be submitted for conformation to the Commission on Appointments. Rightfully so, the Supreme Court ruled that Chairperson Bautista and her commissioners were not among those public officers whose appointments needed confirmation by Congress. This insulated the chair and members of the Commission from political interference.

The Constitution enumerates the powers of the Commission. These include the power to investigate, the power to issue summons, cite in contempt and power to ask assistance from any branch of government. Here, we have a serious obstacle in the task of evaluating the performance of the Commission. For while the courts and the DOJ whose performance may be measured in terms of case disposal and/ or its conviction rate, the CHR can only investigate but has no power to prosecute.

In the case of Carino vs. Commission of Human Rights, the Supreme Court defined the full extent of the Commissions’ investigative powers: “The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have.”

It is this lack of prosecutorial powers that leads to the perception that the CHR has not lived up to the public’s expectations. In fact, while the Commission’s mandate to investigate is provided in the Constitution itself, its findings are not binding on the prosecutor whose functions are only spelled out in the Administrative Code. This means that despite the constitutional mandate of the commission, the prosecutor can completely ignore the findings of the commission. Current practice is to treat complaints filed by the CHR only as complaints similar to those filed by police agencies or the victims directly. Prosecutors do not even accord the Constitutional Commission any presumption of regularity in their findings that there is a violation of human rights in a given case.

I have personal experience in this regard. I filed  complaints of multiple murders for the so-called Tanauan massacre, a CHR investigation, where police agents killed a Barangay Captain and his family allegedly because the victims were the suspects in the RCBC Tanauan robbery who allegedly engaged police authorities in a gun fight. The forensic evidence showed that all the shots fired came from outside the house and directed at the victims who were inside the house. The conclusion thus is that there was no gunfight: only a police massacre. And yet despite this forensics evidence,  the public prosecutor refused to file the information against the police. Ironically, the case happened when DOJ’s Leila De Lima was CHR chairperson. To date, the Petition for Review to compel the filing of the information for murder has gathered dust in the office of Secretary De Lima.

The CHR’s lack of prosecutorial powers means that its effectiveness cannot be measured in terms of number of convictions arising from its investigations. Instead, we can only measure how many investigations it has conducted from the complaints that it had received from the public. Moreover, the only other measure possible is how many of the cases it has investigated have actually resulted in cases filed in court.

My initial findings are startling. It appears that while the CHR’s visibility depends on the news worthiness of its Chair, which peaked when De Lima was its Chair, this public perception has no relation whatsoever in the agencies effectiveness. Note the statistics: From 1999-2004 the number investigations averaged approximately 81 percent of complaints filed, with a record high of approximately 99 percent in 2001.

Recently, however, the percentage of complaints investigated has considerably decreased. From 2007-2013, the average is only approximately 38 percent of complaints filed with the CHR, with a record low of 16 percent in 2012.

Out of the complaints investigated, however, the percentage of cases filed for prosecution or administrative action has remained consistent, albeit hovering around an average of 41.75 percent through the years 1997-2013, reaching 88 percent in 2012, the highest yet.

Simply put, while De Lima gained national attention during her stint at CHR, the Commission’s performance substantially declined during her term. Fortunately, the CHR recovered reaching the highest percentage of their investigations resulting in administrative cases or cases  filed in court under its current Chair, my very good friend Etta Rosales.

What conclusion can we derive from the statistics? Well, apparently, the CHR did very well when led by either criminal litigators or by human rights advocates. The CHR’s prime were during the leadership of Mary Bautista, a criminal litigator, Aurora Recina, a former Judge and Prosecutor, Dr. Purificacion Quisumbing, an internationally recognized expert in human rights, and and Etta Rosales, a veteran human rights activist.

It was at its worst when led by an election lawyer.

This post first appeared in http://manilastandardtoday.com/2015/04/23/has-our-commission-on-human-rights-made-a-difference-/

The US and the Spratlys


President Barack Obama’s latest declaration that China is bullying smaller countries, including the Philippines and Vietnam, on the West Philippines Sea issue is the strongest American expression of concern over China’s expansionist conduct in the disputed area.  While Philippine and Vietnamese authorities are euphoric with Obama’s latest statement, it still has to be seen if the US is able and ready to counter Chinese imperialism in the West Philippine Sea.

The US policy now appears to be more cautious in dealing with China on this issue. But unlike its unequivocal policy that it will come to the assistance of Japan if China were to attack Senkaku Island, America’s current policy of taking a neutral position on the unresolved territorial disputes in the area appears unchanged.

The US position is because its national policy and interest in the West Philippine Sea remains unchanged. Since it “purchased” the Philippine Archipelago in 1899 from Spain, it has maintained that the metes and bounds of the Treaty of Paris refer only to land territories. This of course is inaccurate given that what was allegedly ceded by Spain to it was an archipelago, or a unity of land and water forming a united whole. Obviously, the Treaty of Paris is a Treaty of cession over both land and water territory.

In any case, the US has never advanced a claim either to any island or waters in the disputed Spratlys group of islands. In fact, in 1933, when France publicly laid a claim to the disputed area, only Japan, China, and even the United Kingdom issued formal protests, the latter on the ground that the islands were discovered by a British national and hence, its English name. This means that the US, since the inception of the controversy, has only been concerned about the freedom of navigation in the area, which today, is the second busiest sea-lane in the world. Almost all of the oil supply of China, Japan and the US coming from the Middle East passes through the area from the Gulf of Aden. This is why the latest expression of concern emanating from Obama should only be read in the context of the US national interest in the region, that is, to maintain freedom of navigation in the disputed and dangerous waters of the West Philippine Sea.

Related to the Obama expression of concern is the report by veteran journalists from Vera Files that through a note verbale, the Aquino administration has offered to drop the Philippines claim to Sabah in exchange for Malaysia’s support for the Philippines in its on-going spat with China on the West Philippines Sea.

To begin with, such a policy is wrong. This is because whether or not Malaysia wants to stand up to China, it simply has to. Recently, China has also been claiming areas very proximate to Malaysia as forming part of its territory. In any case, Malaysia is also among the five country claimants to the Spratlys group of islands. In other words, the Philippine government need not offer a quid pro quo for Malaysia’s support because the latter also has a legal interest in the controversy.

But the bigger legal issue arising from the note verbale is whether President Aquino, or any President for that matter, could renounce our claim to Sabah.

I am of the belief, since the proceeding of the Constitutional Commission is clear that Art 1 Section 1 of the 1987 Constitution contemplates that we continue to have title over Sabah. Through a referendum, we can surrender this claim. The President has no legal authority to do this alone. This is a high crime since it cedes part of the national territory to a foreign power.

The other troubling aspect that arose from the incident is a statement form Justice Secretary Leila De Lima who, for all intents and purposes, threatened Vera Files with criminal action since the publication of the note verabale was allegedly illegal. In this regard, I am reproducing a portion of the statement of the Center for International Law, which I chair, relevant to press freedom:

“We take exception to the veiled threat in the statement made yesterday by Secretary Leila De Lima that the Vera Files special report on a recent Note Verbale given by the Philippines to Malaysia over the Spratlys islands concerned a confidential matter that should have been kept as it is.

“In the first place, our Justice Secretary should be first to know that such a threat is in the nature of prior restraint with a chilling effect on speech, as held by the Supreme Court in the case filed by the late former Solicitor General Francisco Chavez against a predecessor of hers at the DOJ, the late Raul Gonzales.

“A mere press statement of a threat of prosecution coming from a government functionary, according to this 2008 Supreme Court decision, is unconstitutional precisely for that reason.

“As a former head of the Commission on Human Rights, we expect her to understand that Vera Files is simply doing what journalists ought to do well: report on matters of public interest, especially one where the integrity of the national territory of the Philippines is at stake, so that the citizens are properly apprised of the issues involved.”