To get a copy of the original complaint filed on November 22, 2011 by the families of the Maguindanao massacre victims, please click here Salaysay,etal vs PGMA_COMPLAINT22Nov2011
Please click here for a copy of the Sherrif’s Return of Alias Summons in the Salaysay, et al. vs Arroyo
The court has previously granted the petition of the widows to file as pauper litigants in the class suit against the former president.
In response to my Blog entry on the Chinese view on the Philippine arbitral claim on the West Philippine Sea, Judge Xue asked that I post the following disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roque’s presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position of China on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”
Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.
In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.
Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.
My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.
The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.
But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.
Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”
Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”
Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”
Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”
She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.
Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.
While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.
We have Judge Xue to thank for this.
Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roque’s presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”
For the 4th year commemoration of the Maguindanao massacre, the Center for International Law (Centerlaw) will hold/attend the following activities:
FRIDAY, NOVEMBER 22
10:00 AM Mass, Fr. Robert Reyes, celebrant
Soliven Room, G/F Malcolm Hall, College of Law, UP Diliman
11:30 AM Families of the victims of the Maguindanao massacre will file petition at the United Nations Human Rights Committee (immediately after the mass)
12 NOON With the UP Community : Maskom Vigil and March around UP Diliman Academic Oval
4:00 PM With NUJP: Human Chain Protest along Roxas Boulevard
SATURDAY, NOVEMBER 23
10:00 AM “Kumusta na ang mga naulila?”, a press conference with the families of the victims of the Maguindanao massacre
CMC Auditorium, College of Mass Communication, UP Diliman
Note : Centerlaw’s Mindanao based clients will be in Manila from November 21 to 24. Requests for interviews are welcome. Kindly contact Atty. Harry L. Roque, Jr. (09175398096) or Centerlaw (750-3847 to 48).
Credit should be given where it is due. President Noynoy Aquino should be commended for rejecting the option of exercising dictatorial powers. At a time when his popularity has gone on a free fall, courtesy partly of the bad mouths in charge of his communications, the President still rejected suggestions for him to be a dictator by imposing Martial Law in Tacloban. Lesser mortals would have taken advantage of the situation.
There is no doubt that the humanitarian crisis resulting from the strongest typhoon ever has caused complete breakdown of law and order in Tacloban. Media have reported rampant lootings and the perpetration of other crimes, including murder, in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, I am happy that PNoy rejected the temptation to exercise powers of a dictator.
Under our Constitution, the President has three extraordinary powers as Commander-in-Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. In cases of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.
PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege of the writ of habeas corpus or the declaration of martial law should be exercised with caution. This is because freedoms are protected by the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.
Moreover, the correct response to the crisis, in addition to his calling out power, is the declaration of a state of calamity. Legally, such a declaration would authorize local governments to spend their calamity funds even without local ordinances. While I am not certain about the legal effect of what was actually declared, that of a “state of national calamity”, I suppose that such a declaration was a fusion of the calling out power and authority for local governments involved in the ravaged areas to spend their calamity funds.
Of course, the perpetrators of the unconstitutional Disbursement Program will, like Napoles and PGMA, capitalize on the Yolanda disaster to justify the DAP anew. But what we do know is: one, there’s still funds left in the appropriation for calamity funds; and two, if the funds are insufficient, the remedy would be to pass a special appropriation to address the crisis. Of course, the use of savings, provided it complies with Demetria vs. Alba, that is, it comes from savings in the executive to be used in connection with an existing line item, is still an option. The controversy over DAP is not whether the President can do this, but whether the use of savings to add further programs which are not provided in the budget law and /or whether the President can use savings from the executive and disburse them to another branch of government such as the Senate. This was of course what Senator Jinggoy Estrada revealed: that each Senator who voted to remove former Chief Justice Corona was given P100 million each from savings of the executive.
PNoy, for all his other shortcomings, should be commended. Recall that his predecessor, the “evil one”, exercised the calling out power thrice and declared martial law twice, albeit the first one, declared to be unconstitutional in David vs. Arroyo, was undeclared . It is no small feat hence for a President to resist the temptation to trample upon civil liberties. Certainly, the Marcos dictatorship was proof of this. All freedom-loving Filipinos should hence commend PNoy for rising up to the challenge and rejecting the allure and temptation of dictatorial powers.
(Published in the Manila Standard Today on November 14, 2013)
Ref: Prof. H. Harry L. Roque, jr
Centerlaw agrees with P Noy ‘s decision not to impose Martial Law in Tacloban. Factually, it was reported that there has been a breakdown of law and order with looting and other crimes now rampant in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, including the suspension of the privilege of the of the writ of habeas corpus, which would mean non-recourse to the courts to question a person’s detention, I am happy that P Noy rejected the temptation to exercise powers of a dictator.
Under our Constitution, the President has three extra-ordinary powers as Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. Further in cases of n case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.
PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege or the declaration of martial law should be exercised with caution. This is because freedoms are protected the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.
Centerlaw, a Civil Society Group that seeks to strengthen the applicability of human rights norms in the country, then supports P Noy’s decision to call in the armed forces to restore and order in Tacloban. We commend him for rightfully rejecting the exercise of dictatorial powers.