Treason?


It was interesting that former Assemblyman and Governor Homobono Adaza recently filed a criminal complaint for treason against PNoy and the members of the Philippine peace panel. Treason is defined as the “act of levying war against the Philippines or adhering to its enemies, giving them aid or comfort within the Philippine Islands or elsewhere”. According to Bono, the fact that the President and the members of the peace panel entered into an agreement with the Moro Islamic Liberation Front which would for all instances, create a sub-state in violation of the ponencia of now Ombudsman Conchita Carpio-Morales in the case of North Cotobato vs Peace Panel, is an act of treason.

While I agree that the Bangsamoro Basic Law is contrary to the Constitution and that its proponents are traitors to the Republic, I do not think the complaint for treason will prosper. This is because treason, in jurisprudence, is a crime committed in times only of an international armed conflict. The act of levying war must be against the Republic of the Philippines at a time when it is at war with a foreign enemy. This is why the only convictions we have for this crime were against those who fought with or collaborated with the Japanese during World War two.

Does this mean though that P Noy and the rest of the proponents of the BBL have no criminal culpability?

Certainly not. The MILF as a domestic armed group is guilty of rebellion for “rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof”. Certainly, their use of arms for the purpose of establishing an independent state is the classic crime of rebellion. What is the criminal liability of those who will aid or abet those engaged in the crime of rebellion? Well, the Revised Penal Code punishes not only those who lead and directly participate in the rebellion, but also those who conspire to commit the crime. Moreover, the law also punishes public officers or employees who have failed to resist a rebellion by all the means in their power. Perhaps, this is how we can hold Ging Deles et al responsible for their loyalty to the MILF.

And while I think that Bono’s complaint for treason will not stand, it is still my hope that the Ombudsman will nonetheless file the correct charges against those who have betrayed the Republic.

In this regard, the Ombudsman could act against Deles et al motu propio and without a formal complaint. This becomes more imperative given her ponencia of the Supreme Court decision that struck down the MOA-AD, precursor of the BBL, as unconstitutional. Certainly, the executive’s insistence on the BBL, which restates provisions already declared unconstitutional by the court, also amounts to the felony of insubordination to judicial orders.

What did the Ombudsman say in her ponencia against the MOA-AD, which were disregarded by those pushing for the BBL?

Well, the Ombudsman was clear that neither the President nor her negotiators could commit that neither the Constitution nor our laws will be amended to accommodate the peace agreement. As ruled by then Justice Carpio- Morales: “Given the limited nature of the President’s authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested”.

The parliamentary form of government provided in the BBL already requires an amendment of the Constitution. This is because what is currently provided by our Charter is that “Congress shall enact an organic act for each autonomous region…. consisting of the executive and legislative assembly, both of which shall be elective”. There is no Executive in a parliamentary form of government and its Chief Minister is not elected by the people but by members of the parliament.

In any case, the fact that the BBL establishes a sub-state in breach of the Constitution and of the decision of the Supreme Court, is apparent in its provisions granting the entity its own maritime zones, its own bill of rights, police force, Civil Service Commission, Commission on Audit, and Commission of Human Rights. All these are clear indicia of a sovereign state, which cannot exist in our current unitary form of government. In one case, our Supreme Court said that in a unitary state, “local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government”.

What is very clear is that the BBL will establish an independent state within the Republic of the Philippines.

The bottom line is this: Bono may be wrong in filing treason against P Noy, Deles et al. He is however, infinitely correct in wanting that all those who have proven to be disloyal to the Republic should be punished for their acts. Let’s hope the Ombudsman agrees with him as well.

This post first appeared on http://manilastandardtoday.com/2015/03/12/treason-2/

Marcosian PNoy


Last Wednesday, 1500 people led by Juana Change were prevented from forming their human chain from Crame to EDSA shrine. Talk about irony. The son of democracy icons doing a Marcosian tactic on the day we celebrate the end of a dictatorship.

What happened to PNoy? He clearly is not the person that millions of Filipinos thought he was when he was given an unprecedented mandate to lead. Mea culpa, as well as culpa of the millions of others who voted for him and ensured his victory in the 2010 elections.

I thought PNoy would stand for good governance and democracy because I had the opportunity to work with him up close in the attempts to impeach PGMA. Of course we expected him to be part of the moral indignation against the bastardization of democracy as evident by the notorious “Hello Garci” tape. His involvement against the cheating, stealing and lying PGMA regime was expected of him because his father died fighting for the restoration of democracy, while his mother ushered in democracy. Clearly, it would have been unforgivable for the son of our icons of democracy to be indifferent to systematic electoral cheating.

PNoy also stood his ground against corruption in the country. The anomalous Chinese-funded projects that became the consideration for PGMA’s sale of our patrimony to the Chinese- initially through the joint seismic exploration with China. This SURVEY  enabled China to confirm its  suspicions that the disputed Spratlys islands and even the undisputed territory of Recto bank contained vast deposits of oil. China has since  been unrelenting and outright aggressive in defending its claims to the disputed and undisputed territories. An energy-starved country with the highest population density in the world is bound to lust after the resources of others. PNoy also stood against this sell-out by opposing the anomalous Chinese projects both in the impeachment complaint against PGMA and when he became Senator in 2007.

With such clear track record, the question now is:  what on earth happened to him ? Yesterday he was a true blue democrat. Today, he would not even allow a crowd -whom he has dismissed as insignificant in number- from doing a human chain on the day we celebrate EDSA 1!

PNoy successfully dispersed and prevented the human chain by ensuring that no one would be able to congregate on EDSA. As early as 5 AM, police blocked off EDSA from all cars and people! This was worse compared to what PGMA did also on a February 25 when she declared a state of national emergency that led to THE ARREST OF Randy David et al while marching along EDSA. This is because PGMA at least allowed everyone else to march along EDSA except for those who were arrested.

PNoy in this year’s EDSA commemoration prevented the people from marching altogether!

Of course I’m shocked. Of course I’m indignant. How dare the scion of democracy destroy that which his own father died for! The same democracy that his own mother defended from putschists. How dare PNoy be the same evil that we stood against in EDSA. And like millions of other Filipinos, I feel utterly betrayed by him and indignant that he has become himself an enemy of democracy.

What was PNoy afraid of? We already know the truth! We know that the blame for the Mamasapano massacre lies with him not only for authorizing his suspended henchman implement a bad plan, but also for refusing to order the military to provide assistance to the beleaguered policemen to ensure the sell-out of Mindanao through the BBL, the handiwork of Black and White movement’s Ging Deles and the rest of the MILF spokespersons.

We know already the truth that he is simply unable to lead- abdicating the functions of his most powerful office to his kaibigans, kaklase, and kabarilan. We already know that other than blaming the previous administration for all the woes of our nation, he was devoid of a platform of government that led literally to a lack of governance under his term. We also know the truth that he does not care for Philippine sovereignty as he has in fact surrendered the custody of a vicious killer who murdered one of us to please mother America. We know too that his eagerness to please Uncle Sam also led to his support to the one-sided EDCA and the death of the SAF 44 even if it is clear that their martyrdom is not worth achieving the US objective in capturing its enemy coddled by the MILF.

So what else is PNoy hiding when he infringed on our rights to speak out? Clearly, the truth has already set the people free!  While he may have succeeded in preventing the human chain  using the same techniques of both Marcos and PGMA, he will not be able to restrain the people’s anger altogether. In this regard, he should learn from the experiences of Marcos and PGMA. Soon, he will be booted out and made to pay for his crimes against the people.

To our comrades on the streets: we may have failed to capture EDSA last Wednesday. But like Don Quixote, we simply need “to rise, brush off the mud and CONTINUE the fight!” Soon, PNoy will suffer the fate of Marcos and PGMA. Only I hope it will be worse. Because unlike Marcos and PGMA, it was only PNoy who betrayed so many of us.

Whitewash and the need for the ICC


Its highly unlikely that attention-starved congressmen will agree to scrap the House of Representatives hearing of the Mamasapano massacre on their own.

To begin with, while the hearings in the bigger House were less composed when compared to the hearings in the Senate, more information came out of the lone House investigation.

Rep. Neri Colmenares singled out some of these new information, to wit: “a) the text message of Gen. Rustico Guerrero confirming that Pres. Aquino knew about the Mamasapano incident earlier on January 25, (b) the admission by Gen. Napeñas that Pres. Aquino knew about the time on target coordination and approved it which means Aquino agreed not to coordinate with the AFP beforehand, (c) the claim to executive privilege of Gen. Purisima, (d) the Medico Legal report emotionally described by Gen. Espina; and (e) the admission by Gen. Catapang that he did not inform Pres. Aquino even if they were together in Zamboanga that day”.

So why did the House suspend its hearing? The official reason is to avoid “prejudicial conclusions” since the official Board of Inquiry findings still have to be written.

But that reasoning is crap. Congress is never bound by the findings of any other investigative body. When Congress conducts an inquiry in aid of legislation, it is in the exercise of a plenary power that cannot be limited by any other branch of government. What is a legislative in purpose is also within the powers of Congress to define.

Moreover, Congress may also conduct investigations in the discharge of its power of oversight, that is, as holder of the power of the purse, it should ensure that government agencies are doing their job pursuant to the budget allotted to them. Hence, it was but proper that Congress inquire on whether the PNP, the AFP and the DILG spent tax payers wisely and correctly in this bloody police operation.

So why did the House suspend it proceedings? I think the truth is obvious. The PNoy administration, including its allies in the House of Representatives, are now afraid of the truth. Already, the subsequent Senate hearings on the matter indicate that the President clearly knew about the plan to capture Marwan et al in Mamasapano, that he continued to utilize the services of the suspended PNP Chief Alan Purisima in connection therewith, and that confidentiality was required because they knew that even the AFP, with its leadership committed to the Peace talks with the MILF, might leak information that may prove detrimental to the capture of the high value targets.

Questions are now being asked on when the President knew that the SAF 44 were under siege. The question which has not been asked is why the President did not order the AFP to provide reinforcement to the besieged 55th Company of the SAF and why? Many, including I, surmise that the President, like AFP Chief of Staff Catapang, played God and decided to sacrifice the lives of the SAF 44 in order to protect the ceasefire with the MILF.

There too is the question of why US operatives were involved in the operation beyond the giving of the $6 million bounty for Marwan, dead or alive. While many shrug off the American involvement as necessary since we do not have the technology to acquire the proper intelligence information required by the operation, the reality is that the 1987 Constitution prohibits even just the presence of foreign troops, bases and facilities in the country after the termination of the US-Philippine Bases Agreement in 1991. The only way these foreign troops can be in the country is through a treaty duly concurred not by a mere majority of the members of our Senate , but by 2/3 of all its members, and even ratified by the plebiscite by the people themselves, when so required by the Senate. And these stringent requirements is only for the purpose of allowing foreign troops, bases and facilities in our territory. Compliance with the imperative requirements is not even sufficient to allow foreigners to be engaged in actual police or battle operations in our country. Such is absolutely prohibited because such an involvement would simply violate both Philippine sovereignty and jurisdiction. Full stop.

So what now? The House has suspended its hearing and the senators, on the other hand, appear complicit in hiding the truth from the people by holding its hearings in “executive sessions”. Clearly, the Senate, in doing so, although clearly more independent than the House, appears to be susceptible nonetheless to palace cajoling to keep the truth from the people.

I have said from the beginning that where political considerations, both of the selfish and the policy types, i.e., the necessity of proceeding with the peace talks, come into the way of the fight against impunity, the country must utilize the full benefits its membership in the International Criminal Court. The Court was established, and we joined the Court, precisely because those who violate the most important norms of international law, such as those who commit war crimes, should be prosecuted, no matter what. The ICC prosecutor, would moreover, have the proven expertise to investigate these possible war crimes when compared to the DOJ Prosecutors that has zero experience in this regard. Besides, with the Maguindanao massacre prosecution in limbo after almost six years, coupled with the DOJ’s 1-percent conviction rate in the prosecution of extra-legal killings, its clear that our legal system is simply both unable and unwilling to investigate the leadership and men of the MILF for the possible war crimes committed against the SAF44 and the Filipino people.

Time to seek aid from the international community. Lets refer the Mamasapano massacre to the ICC!

Breach of chain of command?


Its now apparent that in an effort to shield President Aquino from blame in the death of the SAF 44, administration spin doctors have been pinning the blame for the fiasco on both former PNP Chief Alan Purisima and SAF Chief Getulio Napenas. Of course the two, undoubtedly, have lots to answer for. But palace spin masters would now want us to believe that only the two should be held responsible for the fiasco.

This cannot be the case. While palace supporters belabor the point that both allegedly “broke the chain of command” when they did not inform DILG Secretary Mar Roxas and PNP OIC Leonardo Espina about Oplan Exodus, the reality is the two did not have to. To begin with, Mar Roxas is not part of the chain of command. As DILG Secretary, his involvement with the PNP is only as Chairman of the National Police Commission. This means he has supervision over the PNP only to the extent that he should ensure that the police are doing their job. He does not have control, operational or otherwise, because this clearly belongs to the Chief PNP and the other officers in the PNP hierarchy. In law, control means the power to substitute a superior’s discretion to those of his subordinates.

Anent OIC Espina, the truth is that there cannot also be a breach of the chain of command there precisely because rightfully or not, General Purisima was reporting to the President, the ultimate Commander-in-Chief. Moreover, although he was suspended, the reality is that he remained the Chief of the PNP and the highest-ranking officer of the police force.

What does this mean? Simply put, the buck stops with the President. Perhaps, we can fault both Purisima and Napenas for failing to comply with the President’s directive to coordinate with the Armed Forces. This can amount to insubordination and gross negligence. But because the President himself authorized the mission on a “time-on-target” basis, this means that liability for the fiasco rests on the President himself.

Time-on-target is military jargon when the means and methods of a mission have been agreed upon even if the actual date of implementation is not known. This also means that others on the field will be informed when the mission is implemented. Make no mistake about it. The decision to invade the MILF lair to capture two high-level terrorists on a time-on-target basis as implemented by the SAF was a decision of the President himself. Full stop.

In any case, the on-going Senate investigation has also confirmed many of our worst fears. To begin with, there is the fact that the Armed Forces should and could have sent in reinforcements but did not. So far, the justification of AFP Chief of Staff Gregorio Pio Catapang, whom I want jailed for indirect contempt of Court, is because “the PNP did not ask for reinforcement”. Ergo, the Chief of Staff, who has not been shy about his Senate aspirations- wants, in the words of one senator, “ a drowning man to cry for help”. In reality, when one is drowning, one is already unable to utter a word and hence the failure to seek assistance.

The situation was no different from when the Maguindanao massacre took place. In 2009, the AFP leadership in the same area  turned down the request of the murdered journalists for military assistance in covering the ill-fated filing of Esmael Mangudadatu’s certificate of candidacy. Moreover, even after knowing about the build-up of Ampatuan supporters in the intersection where the victims of the massacre where rounded up, the same military leadership did not do anything even as to inquire why there was a build up consisting of heavily armed men in an area where there is an  on-going armed conflict. In other words, the AFP did nothing- then and now-  because they opted to turn blind eyes and deaf ears to their colleagues from the PNP.

The more interesting question now is: “Why?” Well, on the basis of the Senate hearing, Senate wannabe Catapang said that it was because of the peace process. And pray tell me: who told the Chief of Staff that he could play God to determine that the SAF 44 should die so that Ging Deles and Miriam Ferrer could gloat that they were responsible for peace in Mindanao? Utterly ridiculous, absurd, and even insane!

So what now? Well, in ancient times this was an instance that would merit the rolling out of the guillotine. Fortunately for all the misfits responsible for the untimely heroism of the SAF44, public indignation appears more painful today than the guillotine. And yes, they deserve it!

P Noy: Not command responsibility but gross incompetence


I’m happy that Senator Miriam Defensor-Santiago, the best President that we never had, agreed with my view that International Humanitarian Law (IHL) is applicable to the Mamasapano massacre that led to the heroism of the SAF 44. The good senator concurred with our view when she opined that President Aquino may be held liable on the basis of command responsibility.

IHL is the law applicable in times of armed conflict. It exists to protect civilians and other non-combatants from the adverse consequences of armed conflict. It achieves this goal by according non-combatants protection and by limiting the means and methods of warfare open to all combatants and fighters.

“Command responsibility” is a principle in IHL developed in the Philippines as a result of the trial of Yamashita, the highest-ranking Japanese officer in Southeast Asia at the end of World War II. When Yamashita was accused of war crimes, he put forth the defense, among others, that he did not know and did not order the atrocities complained about. The Philippine Supreme Court rejected this argument ruling that Yamashita willfully turned a blind eye to these atrocities. According to the Court, Yamashita should have developed a sound system where he could ensure that his troops knew the law and that they were in compliance with it.

On appeal to the US Supreme Court, a separate opinion formulated what today would be the principle of command responsibility. This is that a commander should be liable for the atrocities committed by his subordinates when he knew or should have known about the authorities, and he failed to take steps to prevent the crimes from happening, and fails to take steps to investigate, prosecute and punish them for these crimes.

Where I differ though from Senator Santiago is in her opinion that PNoy could be held liable for command responsibility.

My disagreement with the senator is not because I think the President should be absolved completely of command responsibility . In fact, on the occasion of the 5th anniversary of the Maguindanao massacre, I submitted the view, which was supported by the current UN Special Rapporteur on Freedom of Expression, that the 1-percent conviction rate our prosecutors have in convicting perpetrators of extra-legal killings may be a basis for holding the President liable under command responsibility since he has failed to prosecute and punish the perpetrators of the extra-legal killings in this country. Instead, my view is that PNoy should probably be held responsible for the massacre of the SAF 44 since he is Commander-in-Chief of the Armed Forces of the Philippines and the PNP, but not under the principle of command responsibility.

Why? Simply put, command responsibility under IHL may be used only against commanders and superiors of troops that may have committed grave breaches of IHL, the laws and customs of warfare. In the Mamasapano massacre, the sheer discrepancy in terms of the body count indicate that the SAF 44 may not have been engaged in battle; instead, what may have happened was a slaughter. What made matters worse is the fact that the slaughter must have resulted from our policemen’s wrong assumption that even if they are fighters in the territory of a domestic armed group, they will not be attacked because of an on-going ceasefire between our government and the MILF. This is the crime of perfidy or inviting the confidence of fighters that they have protected status and proceeding to attack them anyway. Moreover, the death count suggests that the MILF may have issued the order not to leave any survivors as in fact, there was only one who managed to escape the carnage. This again is a war crime since giving such an order is expressly prohibited by IHL and is furthermore contrary to the concept of military necessity and military objective.  The object of warfare is the compete submission of the enemy and not to kill all of the adversaries. The inhumanity done to the corpses of our heroes is yet another war crime—that of cruel, degrading and humiliating treatment.

Simply put, it is the leadership of the MILF that should be held criminally liable under command responsibility since their troops probably committed the war crimes. To reiterate, PNoy could not be held responsible under the principle because it is neither the PNP nor the AFP that committed the crimes.  If at all, his liability is that of a commander-in-chief who must take responsibility for a police manhunt that turned awry.

This should not at all absolve PNoy from liability for the death of the SAF 44. If in the past, the ineptitude and inexperience of this government have led to bad policies, his lapse in governance this time around should not go unpunished.

It’s time for his bosses to make their decision. I say we fire him for gross incompetence, a valid ground for loss of trust and confidence.

New SC resolution on DAP a shocking reversal


Statement of Prof. Harry L. Roque and Atty. Roger R. Rayel, counsel for Grecor Belgica, et al, on the Supreme Court’s new resolution on DAP:

“The new resolution of the High Court on the Disbursement Acceleration Fund (DAP) is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval on the de facto appropriation by the Executive without the benefit of congressional review.

While preserving two main holdings in its original ruling, the High Court’s decision to reverse itself on the third point – the funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act” – just about restores a wide swath of un-appropriated and not legislatively considered expenditures to the sole discretion of the Chief Executive.

This defeats the whole purpose of giving the power of the purse to the legislature. Precisely, a wide array of expenditures under the DAP have been made outside the General Appropriations Act. For all intents and purposes, the reversal by the Supreme Court reinstates and legitimizes the Presidential Pork Barrel System without benefit of congressional approval and oversight.

It is also surprising that the High Court appears to have made a new distinction between authors on the one hand, and proponents and implementers on the other hand, and in addition making criminal liability prospective as regards the latter. This is as if the constitutional provision stating that no money shall be paid out of the treasury without an appropriation made by law is not clear enough. This cannot be prospective.

We will file a Motion for Reconsideration of this Resolution within the period provided by the Rules.”

Professor H. Harry L. Roque’s statement on the arrest of Mayor Binay:


The Senate order to arrest Mayor Junjun Binay comes at a time when the country is in deep national mourning over the massacre of so many of our police heroes. It comes at a time when the people await complete and transparent explanation from its leaders on the true circumstances why our bravest and most patriotic sons in the police force were recklessly sent to the slaughterhouse and murdered like animals. It comes at a time when the highest officials of our nation face accounting of their   active participation and liability in these tragic loss of so many young and promising lives.

At a time when the investigative resources and powers of the government should be rightfully summoned and devoted to uncovering what happened in this massacre, it saddens me to notice   the deafening silence of the Senate leadership on the   need for a Senate investigation, even after the President   himself and police generals   have admitted reckless lapses committed in sending   our police martyrs to   certain death.

At a time when the undivided attention of the people should be left concentrated on   this national tragedy   because it crucially comes in the midst of pending   deliberations on the Bangsamoro Basic Law — this tragedy is presenting itself as the litmus test   for the Senate to investigate the MILF’s true commitment to   real peace — the Senate has chosen to divert   the people’s attention to an overly-drawn and extended investigation on Mayor Binay.

By ordering the arrest of Mayor Binay at this time, the Senate has inevitably chosen to divide the people’s   crucial attention and deflect full public scrutiny and accountability of our leaders and the MILF on the national tragedy that has left grieving parents, anguished widows, and wretched orphans.

In choosing to divert public attention on an arrested Mayor Binay,   the Senate has even   disregarded basic rules and has chosen to ignore Supreme Court admonitions on the indispensability of a quorum. With only three Senators out of a total membership of   20 Senators in the Senate Blue Ribbon Committee,   the   mere three-members declared that they had the quorum to unilaterally act   for the 20-member Blue Ribbon Committee and issue an arrest order on Mayor Binay. This is   a blatant   violation of the most basic tenet of legislative bodies. How low can the Senate get in   twisting the definition of a quorum just to deflect attention from the most pressing issue of the day? If the Senate can redefine quorum to merely require   three members out of a total of 20,   what will prevent them from   declaring that a mere single Senator will constitute a quorum   who can order the arrest of any Juan, Pedro, or Mario?

As the accusations against Mayor Binay have repeatedly been branded as criminal anomalies by the Senators themselves, the accusations   should be rightfully ventilated in the judicial branch of government, and not used as a circus for media mileage and political assassination in the Senate.

I call upon the Senate to submit to the judiciary all the evidence it has against Mayor Binay and let the judiciary perform it rightful duty to assess responsibility,   find liability and   impose penalties. Unlike the judiciary which is mandated to find guilt or innocence, no matter how long drawn the Senate conducts any investigation, the Senate has no power to impose sanctions and penalties resulting from its findings.

I call upon the Senate to correctly make use of its   “investigation in aid of legislation” powers by summoning the leaders of the executive and military branches of government, and even the MILF, who were involved — regardless of   their   standing as   allies of the Senate leadership — in the Mamapasano massacre. This will be the correct use of the investigative powers of the senate “in aid of legislation” in connection with the pending Bangsamoro Basic Law.