Philippines should push Canada on toxic wastes


For reference:
Atty. Harry L. Roque, Jr. 09175398096
Chairperson, Center for International Law

 

 

The Philippines should vigorously pursue the liability of Canada under international environmental law – in particular under the Basel Convention – for exporting to the country without the latter’s consent 50 40-footer container vans of hazardous wastes, according to a UP professor of international law.

“It’s a shame Canada, which fashions itself to be a world leader in the promotion of the Rule of Law, is acting as if it does not know what its duties are as a party to the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal,” said Prof. Harry L. Roque Jr., who teaches international law at the UP College of Law and chairperson of the Center for International Law, a non-profit dedicated to promoting binding international legal norms in the domestic setting.

To begin with, Canada is acting deviously on the controversy as it violated the Basel Convention requirement that to begin with, it cannot export to the Philippines any hazardous waste without the latter’s written consent, said Prof. Roque.

Like Canada, the Philippines is a party to the multi-lateral treaty.

The issue has become a sore point between the two countries, with Canada eschewing responsibility over the shipment and passing it on to Ontario-based Canadian firm Chronic Inc., and its Philippine partner. Chronic allegedly shipped the vans to the Philippines in 2013 as recyclables. But the Bureau of Customs, upon inspection, found these to be filled with “toxic” wastes.

Prof. Roque said Canada is responsible for the repatriation of the wastes back to its own shores under the terms of the Basel Convention.

And while the shipment was mis-declared by its Canadian exporter and its Philippine partner as that of “recyclable plastics,” Canada cannot claim it did not know the contents of the container vans because as the state of origin, it had the obligation to inspect the contents of the shipment, according to Prof. Roque.

“In addition, under the Basel Convention, if the shipment cannot be completed under the authorized terms or within the provisions of the Convention, the state of export – Canada – must re-import the shipment unless an alternative arrangement for proper disposal can be made within ninety days of notification by the state of import,” he said.

“Thus even assuming that the Philippines legally consented to receive the shipment, by the terms of the Convention, Canada remains responsible for the waste up until its disposal, and may be entirely liable for costs if fulfillment of the contract becomes impossible,” said Prof. Roque.

The Canadian embassy in the Philippines insists it is not liable for anything.

He said that if Canada refuses to accept responsibility for the wastes, the Philippines may take the issue up to an international arbitral panel or to the International Court of Justice.

“This not a question of cost but of principle,” he said. “The cost will be recovered later on, but Canada should be made to face up to its obligations under international law not just to the Philippines but to all the parties to the Basel Convention.”

A lousy speech


That was the lousiest State-of-the-Nation Address I have ever heard. To begin with, the President showed disrespect to his listeners by speaking for more than two hours. The duty to report on the state of the nation is mandated by the Constitution itself. In the discharge of this obligation, the President should have been more considerate to the Filipino people struggling to survive on a day-to-day basis. Simply put, it was gross disrespect for the people- whom he described as his bosses- when he took more than two hours of their time largely for matters that should not have been included in a SONA in the first place.

After five years, the people have earned the right to expect that the President will summarize his accomplishments thus far in the SONA. He instead wasted the first 50 minutes of his speech engaging in his favorite pastime: bashing everyone for the mess that he found when he assumed office. This would be fine had this been his first and second SONA in order to lay the basis for the Herculean task of rebuilding. But five years later, this is wholly unacceptable. Yes, there were obstacles in the beginning of his term which could be attributed to his predecessor. But after five years in office, he should have been able to address these challenges had he only governed well. The reality is that PNoy spent a lot of time condemning the past regime because he has failed to govern.   In other words, he continues to rant about the past because he did nothing to clear the mess that he found at the beginning of his term. Ironically, his never-ending tirades against PGMA are also a strong condemnation of his own malfeasance and misfeasance.

Then he enumerated his alleged accomplishments. He began by singling out his appointees for their integrity. But shouldn’t the accomplishments of these appointees be attributed to them and not to the appointing power? He cited Ombudsman Conchita Carpio-Morales, Supreme Court Chief Justice Maria Lourdes Sereno, former Commission on Audit Chairperson Grace Pulido-Tan, and Bureau of Interval Revenue Chief Kim Henares as examples of his appointees with integrity.

But what about the scoundrels such as former Philippine National Police chief Alan Purisima, Agriculture Secretary Proceso Alcala, Technical Education and Skills Development Authority Secretary Joel Villanueva, Transportation and Communication Secretary Joseph Abaya, former Health Secretary Enrique Ona, Budget Secretary Butch Abad, Moro Islamic Liberation Front collaborator Teresita Deles, PEACE bond scam mastermind Corazon Soliman, all of whom have been embroiled in one scandal after another?

It seems clear that while PNoy cited four gems among his appointees, they simply were outnumbered by rotten appointees embroiled in never ending scandals.

He cited alleged gains in the economic front including unprecedented GNP and GDP growth, increase in foreign direct investments, and supposed increase in employment. While all these economic indicators may have indeed increased, the question is: did it benefit the poor among us? The answer is a resounding NO! Bayan Muna Party-List Rep Neri Colmenares cites that the wealth of Filipino billionaires listed by Forbes magazine increased by 250 percent from 2010 to 2015. Compare this to the increase in the minimum wage for the same period, which increased by a measly 3.5 percent. This means that while economic indicators indeed increased, it did not translate to inclusive growth. Hence, the rich became even richer and the poor became poorer.

He then enumerated one infrastructure project after another. Goodness! This should not have been included in a SONA simply because any government, provided there is a national budget, could have built the infrastructure. He also boasted about the Conditional Cash Transfer. How can he claim credit for a program started and implemented by his predecessor?

If at all, PNoy could only claim credit for legislation such as the RH Law, the Competition Law and the Cabotage Law. The problem here is that credit should go to Congress for these laws and not to the President. Moreover, for every law passed, there was a bill not enacted to law. The FOI bill is one such bill.

The worst part of the speech was the never-ending expression of gratitude to his family, hairdresser and Yaya. At one point, I thought PNoy had to thank his yaya and hair dresser because they were true members of his Cabinet, responsible for his lousy policies. Levity aside, when the Constitution required the State-of-the-Nation Address, it was not so that the President could thank everyone in his life, both private and public. He can do that as he leaves Malacanang before  noon  on  June 30, 2016.

So what did he not say? Plenty.

There was nothing on his promise to protect and promote human rights. This is consistent with his policy to completely ignore human rights, including the fight against extra-legal killings, enforced disappearances and torture.

There was no mention of what he intends to do to the SAF 44. Maybe this too is consistent with his position that the SAF 44 had to be sacrificed to appease his new BFF, the MILF.

There was no mention of how he would oversee clean and peaceful elections. Maybe because he could not care less and simply wants to end his term. Maybe because his anointed one, who is currently lagging in the polls, intends to cheat? Who knows!

Despite all the shortcomings in the last SONA, the best news is that it was indeed his last! This was the good news in the SONA.

Good riddance, PNoy, and may the nation never choose a college council President ever again, particularly one who was also a foreigner for 13 years.

This post first appeared in http://manilastandardtoday.com/2015/07/30/a-lousy-speech/

The true state of the nation


In fairness to this administration, it would be difficult to discuss the true state of a nation in a 700-word commentary. So instead of discussing all aspects of our lives under PNoy, I will focus on two particular areas, to wit: the promised anti-corruption drive of the administration under the slogan of “daang matuwid,” and the promise to uphold and protect human rights.

Pulse Asia in its Ulat sa Bayan had grim findings on how the public perceives PNoy’s promise to pursue the straight path. In brief, the public thought this was a promise terribly broken, In fact, only 29 percent of the people agreed that PNoy pursued the path that was promised. Thirty-six percent disagreed while 34 percent were undecided. Ana Maria Tabunda posited that the people perceived Daang Matuwid as a broken promise because of the discovery of the Priority Development Assistance Fund scam which involved all politicians, whether those with the administration or the opposition. The fact that charges were filed against three opposition senators only made matters worse since the people perceived these cases as evidence of selective justice. Indeed, the fact that no one from the administration has been charged for what is clearly an institutional form of corruption for Senatongs and Tongressmen contributed to the people’s perception. According to Tabunda, 53 percent of the people thought that it was unfair for the administration to prosecute only members of the opposition, while only 30 percent thought that this recourse was fair.

In truth and in fact, the people’s perceptions must have also been affected by the fact that the President has been playing deaf and dumb to the misfeasance and malfeasance of his KKK:   kaibigan, kaklase and kabarilan. There is the Agriculture Secretary Proceso Alcala who has figured in one scam after another. He continues to have the trust and confidence of PNoy. There too is former PNP Chief Alan Purisima, who despite SAF 44, continued to have the trust and confidence of the President. There is also Technology Education and Skills Development Authority chief Joel Villanueva and Former Customs chief Ruffy Biazon, both implicated in the PDAF scam. There is DBM Secretary Butch Abad who remains among the most trusted by PNoy despite the Supreme Court’s rulings invalidating both PDAF and DAP, both of which were implemented by Abad. Former Senator Panfilo Lacson recently claimed that Abad had resurrected both anomalies through the so-called unified accounts codified system.

Then there was his   promise to protect and promote human rights, in general, and specifically, to pursue justice for the victims of the notorious Maguindanao massacre that claimed 58 lives. This was dubbed as the single most murderous attack against journalists in the world. Under PNoy, the killings went unabated. He has utterly failed to investigate, prosecute and punish the perpetrators of these killings. Karapatan claims that there have been 262 cases of extralegal killings in the country under PNoy. Meanwhile, there has only been one conviction for these killings, the case of the hired gun man in the killing of environmentalist and broadcaster Gerry Ortega, who confessed to the killing. In any case, Justice Secretary Leila De Lima admitted in a UN Meeting in Strasberg that the conviction rate for extralegal killings in the country remains at a pathetic 1 percent.

Aquino reneged on his promise to accord justice to   the victims of the notorious Maguindanao massacre. To date, the quest for justice against the patriarch of the Ampatuan clan has been mooted with the recent death of Andal Ampatuan Sr. Meanwhile, no less than 90 of the 197 accused remain at large, while the trial is still at the bail proceedings. It took the Supreme Court to order the implementation of our suggested “First in- first out” policy, which would enable the trial judge to render partial promulgation of judgment against some of the accused, to provide hope that some of the accused, but definitely not all, could be held liable for the massacre. This too appears to be speculative given that De Lima and her classmate representing some of the victims have objected to a partial offer of evidence by the public prosecutors.

Meanwhile, PNoy has also reneged on his promise to repeal EO 546 that gave legitimacy to the private armies of political warlords, including the Ampatuans. Immediately after his election, he made a complete turn-around on this promise and justified the use of these private armies as “force multipliers” in the fight against insurgents.

So what is the true state of the nation as far as “daang matuwid”, extra-legal killings and human rights are concerned? Well, the state is dismal with the corruption and killings becoming even more rampant under PNoy. Why? Simple. For as long as the corrupt and the killers are jailed, and fear brought back into their hearts, the culture of impunity remains. The corruption and the killings will continue.

Meanwhile, we can only pray that we will not become the next victims. This, sadly, is the true state of the nation.

This post first appeared in http://manilastandardtoday.com/2015/07/23/the-true-state-of-the-nation/

Statement of Atty Harry Roque Jr,  Chairman of the Center for International Law (Centerlaw) and lead counsel for 15 victims of the Maguindanao massacre :


Centerlaw believes that justice would have been better served for both our clients and the defendants if a decision were reached before Andal Ampatuan Sr passed away. We know that the search for justice continues and we will persevere on behalf of our clients.

Making a mockery of Supreme Court decisions


We knew they would resurrect the Priority Development Assistance Fund and Disbursement Acceleration Program eventually. What we did not expect is that they would do so immediately after the Supreme Court had declared both the PDAF and DAP as being unconstitutional. Talk of being brazen. Talk of being shameless. Talk of being contemptuous.

In a talk before accountants, former Senator Panfilo Lacson unveiled the resurrection of both PDAF and the DAP. First, he mentioned that he had found no less than P428 billion in lump-sum appropriations which took the place of either PDAF or DAP. He cited the example of the budget of the Department of Agriculture amounting to P39 billion pesos. The senator then identified within this budget P6.25 billion for farm-to-market roads, which in reality would be farm-to-pocket roads of the Tongressmen.

Lacson also identified the resurrection of PDAF in the form of the so-called Unified Accounts Code Structure or UACS. According to Lacson: “Recently, the government rolled out reforms in our public financial management. The government adopted, starting last year, the so-called Unified Accounts Code Structure or the UACS, a single classification system for all our government financial processes—from budgeting to cash management to accounting and audit. UACS calls for transparency and accountability, or so they claim. As my team and I randomly analyze this coding system, say, of the National Irrigation Administration, we discovered that there were some codes missing. To our surprise, such ‘missing codes’ were utilized to insert some projects during the budget deliberation in the House of Representatives. We likewise discovered that, in the budget of the said agency alone, there is a total lump sum amounting to 11.3 billion pesos.”

Lacson further argued that “after the PDAF, we also discovered the obvious reincarnation of the SC unconstitutionally declared Budget Circular 541 which earlier gave the DBM the authority to pool and declare as savings unobligated, unutilized, and unreleased appropriations, not at the end of the fiscal year but the second quarter. We found it in Sec 70 and Sec 73 under the General Provisions of the 2015 General Appropriations Act”. This, according to Lacson, is the rebirth of the DAP.

In any case, it can be told that just as in the case of the defunct Countryside Development Fund which, due to its unpopularity as being an institutionalized  source of corruption, was renamed Priority Development Assistance Fund, it can now be told that PNoy defied the Supreme Court anew by renaming both the DAP and the PDAF as UACS. What else is new?

***

It has been reported by the media that Andal Ampatuan Sr is now comatose at the National Kidney Institute. I was able to confirm his illness because the mother of one of my best friends was confined next door to the Ampatuan patriarch.

At this point, we can only decry the snail pace of the on-going trial that may now deprive both the accused and the victims a judicial finding of his guilt or innocence. While we have not objected to the requested furlough of the Ampatuan children who are currently detained in Bicutan to enable them to visit their father, we ask the PNP and the NBI to exercise extraordinary diligence in preventing their possible escape.

Atty. Roque Cautions Against Ampatuan Escape


Centerlaw release
Reference: Atty. Harry L. Roque, Jr. 09175398096

Atty. Harry Roque Jr, lead counsel for 13 media and two civilian victims of the Maguindanao Massacre, asked police authorities yesterday to ensure security in the premises of the National Kidney Transplant Institute (NKTI), where principal massacre suspect Andal Ampatuan Sr has lapsed into a coma.

Atty. Roque said that for humanitarian reasons, his clients will not oppose the Ampatuan family’s visit to the clan patriarch, who was accused of ordering the gruesome crime nearly six years ago.

“We are not opposing the Ampatuans’ visit to their father for humanitarian reasons, but we strongly caution the PNP, the NBI and other national law enforcement bodies to ensure that none of the accused can escape,” Atty. Roque said in a statement.

Zaldy, Datu Anwar Sr., Datu Ahmad, and Datu Andal ”Ipi” Jr., all surnamed Ampatuan, were allowed yesterday to visit their ailing father, Maguindanao Governor Andal Ampatuan Sr, at the NKTI. Andal has fell into a coma after suffering from a heart attack.

The request to visit their ailing father was granted by Quezon City Regional Trial Court Branch presiding judge Jocelyn Solis Reyes, on consideration of the Ampatuan patriarch’s grave health condition.

Junket to The Hague


Oral arguments on the issue of jurisdiction in our arbitral claim against China should be on-going as I write this column. In a testimonial tendered in honor of former UP Law Dean Raul Pangalangan who was recently elected Judge at the International Criminal Court, Solicitor-General Florin Hilbay told me that he will open the arguments by introducing the members of the delegation. He will then cede the podium to Foreign Affairs Secretary Albert Del Rosario who will discuss why the Philippines resorted to the arbitration. After which, our American lawyer, Paul Reichler will take the podium to discuss the issue of jurisdiction.   Hilbay will then deliver his closing remarks.

At issue in the oral arguments is whether the ad hoc arbitral tribunal has jurisdiction over our arbitral claims. Here, we need to convince the five-man tribunal that our prayers constitute issues of interpretation and application of the Untied Nations Convention on the Law of the Sea. We also need to convince the erudite body that our claims do not fall within the reservations of China which includes issues of maritime delimitation and military and law enforcement activities relating to the exercise of sovereign rights.

We have three principal prayers: one, that the Chinese nine-dash lines be declared bereft of legal basis under the UNCLOS; two, that the artificial islands recently expanded by China are low tide elevations which cannot be the subject of title by any sovereign states since they should form part of the continental shelf; and three, that the waters outside of the 12 nautical miles off Panatag should be declared as part of the country’s Exclusive Economic Zone.

I have consistently opined that all of our three major prayers constitute issues of interpretation and application of UNCLOS. They will entail interpretations of the Convention’s provisions on internal waters, territorial sea, exclusive economic zone, and the regime of islands.

The Chinese defense is that: first, it has not agreed to litigate the issue and cannot be compelled to participate in the proceedings. Second, they argue that the tribunal lacks jurisdiction because the validity of its claims to the waters within the nine-dash lines will depend on the validity of its claim to title over islands that generate the maritime zones. According to the Chinese Judge of the ICJ, our claim “muddles issues of jurisdiction with the merits” since our prayer cannot be resolved without tackling both jurisdictional issues and the merit of the case.

While the oral arguments are scheduled until the 13th  of the month, Hilbay is confident that we could conclude our arguments   by  Friday   this week.

The whole international community is glued to developments in our case. At stake in our submissions is the very future of UNCLOS itself. If small countries like us cannot rely on the Convention to resolve maritime disputes with regional superpowers, then the Convention will prove useless. China, on the other hand, by threatening to ignore rulings of the Tribunal, and even threatening to withdraw from the Convention should there be a decision against it, has sent the message to the Tribunal that an adverse decision to China might also lead to the end of the agreement.

What is my prognosis? Well, I’m 100-percent sure that the validity of China’s nine-dash lines involves a declaration interpreting pertinent provisions of the Convention. I predict that the Tribunal would declare the nine-dash lines as bereft of legal basis. In so doing, it will have the opportunity to rule on the nature of claims to historical waters, contrary to the literal provisions of the UNCLOS. Justice Carpio in his ponencia in Merlin Magalona vs. Executive Secretary implies that such claims have ceased to have legal basis. The Chinese Judge maintains their continued validity under the doctrine that what is not prohibited in international law is allowed.

I have less confidence in our two other prayers, which I believe should not have been included at all. I will write about this in due time.

Meanwhile, with only three oralists scheduled to make submissions before the Tribunal, why is it that we have a delegation of at least 35? I say at least because the number does not include our foreign counsels and their staff. I believe the correct number of our delegation should be at least 50. That’s 50 business class tickets and 50 de luxe rooms at five-star hotels in very expensive The Hague!

I am currently in Pangasinan documenting how fishermen have been deprived of livelihood by the Chinese who have taken over their traditional fishing grounds in Panatag shoal. You don’t need a degree from the Kennedy School of Government to conclude that the money spent for the  mirons  in The Hague should have been used to assist the displaced fisher folks of Panatag instead. Oh well, only in this administration do you have policy makers fleecing off the people’s misery! Talk of the ultimate junket at The Hague! All told, our delegation should not have exceeded 10 given that we have a full-fledged diplomatic mission there headed by our   very capable Ambassador Jet Ledda and ably assisted by Atty Peachy Defensor, youngest sister of Inday Miriam. I would understand why the Office of the Solicitor General, the Supreme Court Justices and the Department of Foreign Affairs should be there. But 35 in addition to our foreign counsels? Come on!

Thank God 2016 is just around the corner! Out with the junketeers!