Everything about last Tuesday was dramatic. First, there was his refusal to take the stand. He then relented and agreed to testify after the Ombudsman had detailed Anti-Money Laundering Council documents indicating that the chief justice had at least $12 million in various accounts. Prior to last Tuesday, his counsels and talking heads assured the public that Corona would “tell all” and would expose the malice of the individuals who falsely testified against him.

On the day itself, there was a meticulous script acted out by “B” actors, who now deserve acting awards. There was the traditional mass officiated by religious leaders closely identified with former President Gloria Arroyo, the usual illegal mass action by court officials and employees, and even a hero’s send-off for the embattled Corona.

At the Senate itself, the script was literally visible: a couple of pages of a monologue read out by Corona himself, a major deviation from ordinary court proceedings where witnesses are never allowed to deliver opening statements. This was a very carefully written script. Its writers knew that the opus would be allowed by a court that has repeatedly declared that it would respect the magistrate if and when he takes the stand. More importantly, its writers knew that the people would be watching.

And boy, what a show it turned out to be!

The scripted monologue itself was pathetic. Not only was it very poorly written, it was also bereft of the truth that Corona promised the nation. Half of it was mud thrown at the President, Ronald Llamas, and even Franklin Drilon. The other half was about the dirty laundry of the Basas.  Was Corona unmindful that his own children and wife were members of the same clan? The Senate President repeatedly asked him if he was finished, but he went on with his litany on matters, which were irrelevant and immaterial. And when he finally addressed the issue leveled against him by the Ombudsman, he resorted to a negative pregnant: the Ombudsman was lying but he admits having dollar deposits which according to him, are absolutely confidential and need not be declared in his SALN.

Prior to his appearance, a little known employee of the BIR, of all agencies, which the chief justice himself quoted in his monologue, opined that dollar deposits do not have to be disclosed in the SALN.

After which, he resorted to a conditional waiver of the secrecy of his dollar and pesos deposits, which takes effect only if and when the 188 congressmen who voted to impeach him and Franklin Drilon sign similar waivers. Talk of a cheap trick!

And after an excruciating two hours of vilification and self-pontification, he states that he is the chief justice of the Republic and leaves the stand.

I still can’t decide which was more offensive: his litany of mud or his walkout. I ask this because he is not just a very high official sought to be removed from his office. He is the chief justice if the land and as such, should personify the prestige and dignity of the legal profession. By resorting to mudslinging at the stand, Corona broke all rules of evidence that were developed over time to ascertain precisely the truth of controverted matters. And by walking out, he has shown contempt not only for the Senate sitting as an impeachment court, but to the rule of law itself, which as chief justice, he should be the first to uphold. If his departure were really for medical reasons, why did he not ask for leave of court? That would have been easy and would certainly have been granted on humanitarian grounds. It does not help that he was captured on camera clearly intent on leaving the Senate on cue. Clearly, what he and his advisers did not anticipate was that the Senate President would order the lock-out of the Senate to prevent him from leaving.

As I write this, it has become apparent that the chief justice will not return to the Senate as he is reportedly in the intensive care unit. I do not question his state of health as that is now between him and his creator. What I condemn is his performance that degraded the legal profession and eroded the people’s trust in the rule of law.

At the very least, Corona has proven to all that he does not deserve to remain as chief justice!

What on earth was the defense thinking when it called on the Ombudsman as its own witness? Perhaps they thought that the Ombudsman would not honor the subpoena sent to her to testify in the Senate. But why would she ignore such a subpoena when as a retired Supreme Court magistrate, she knows all too well that unlike contempt issued by the courts, a contempt imposed by the legislature may be for a lifetime. Did they think that the Ombudsman would not disclose details of her ongoing investigation, or at least not the documents tending to show the existence of the CJ’s dollar deposits, because to disclose these would be to violate the existing law protecting the confidentiality of dollar deposits without a court order?

But why would the Ombudsman not disclose this? To begin with, the secrecy of dollar deposits is only provided for by a law, while the duty of the Ombudsman to “investigate public official” for “illegal, unjust, improper, or inefficient” acts and its power to “request any government agency for assistance and information necessary  x x x  and to examine, if necessary, pertinent records and documents” are both provided for by the Constitution. Pursuant to the principle of hierarchy of laws, the Constitutional provisions on the Ombudsman prevail over the prohibition of the FCDU law.

What makes the defense act even more perplexing is that from the declarations of the Ombudsman herself, she apparently had no intention of taking the stand in the ongoing trial. When asked by Senator Miriam Defensor Santiago to what purpose the Ombudsman could investigate an impeachable officer such as the CJ, the Ombudsman responded that is was only for the purpose of “recommending to Congress the filing of an impeachment complaint after the one-year ban in December of this year.” Ergo, her investigation, if warranted, would have resulted only in a letter to the Speaker of the House perhaps recommending a second impeachment proceeding against the chief justice. This implies that she did not see taking the stand as an option.

So the question is: Why did they do it?

Lawyer Jose Roy III said it was upon the express order of Corona himself, to know what the Ombudsman has. I guess the defense achieved its purpose—except that in the process, they crucified their client.

The defense, after realizing that the Ombudsman dropped a bomb shell against the chief justice, is now saying that the information divulged are: one, not accurate, because the amounts were not verified by the Ombudsman herself; and two, in any case, illegally obtained and hence inadmissible.

Such are admirable attempts to contain the consequences of their self-inflicted damage. But these are utterly bereft of merit. To begin with, the Ombudsman divulged the documents only insofar as it forms part of her ongoing investigation about an alleged dollar deposit undeclared by the chief justice in his SALN. Certainly, this was what complainants Rissa Hontiveros-Baraquel et al alleged in their complaint. Moreover, although she has not personally verified the accuracy of the accounts, she is still entitled to presume that a very specialized agency such as the Anti-Money Laundering Council would be discharging its functions regularly. If at all, the AMLC cannot be faulted for heeding the constitutionally mandated power of the Ombudsman to solicit its assistance. Instead, it should perhaps be faulted for not conducting its own investigation even before the impeachment trial.

Moreover, the chief justice himself, in the form prescribed for the SALN,  has expressly authorized the “ obtain and secure from all appropriate government agencies, x x x such documents that may show my assets, liabilities, net worth, business interests and financial connections.” How can he now complain about the acts of the Ombudsman?

With the testimony of the Ombudsman,  Corona has put the last nail in his own coffin. Ironically, we have the defense to thank for this.

The promise though appeared to have a condition: that is, that the Complainants against the CJ in a pending complaint in the Ombudsman, to wit, former Akbayan Representative Risa Hontiveros-Baraquel and Rep. Walden Bello, together with Harvey Keh, and no less than Ombudsman Conchita Carpio-Morales; should be subpoenaed by the Senate to appear purportedly as hostile witnesses in the impeachment trial. After which, the CJ’s counsel promised that his client will take the stand to rebut what these witnesses may say. This is interesting. While the nation has been left wondering about an alleged 700,0000 dollar account with PS Bank allegedly belonging to the CJ and yet undeclared in his SALN,  the nation gasped with horror at the possibility that the CJ may have a lot more in his  dollar accounts. In fact, the amount is mind-boggling: 10 Million or at least 420 Million pesos at today’s exchange rate.

There’s an obvious difference between the circumstances behind the 700,000-dollar placement and this later 10 Million deposit. In the case of the smaller amount, it was the Prosecution that asked the Court to subpoena PS bank to bring and present to the Court the documentary evidence for such an account. When asked by the Court where the Prosecution obtained its information about the account, the Prosecution panel claimed that a “small lady” in the gallery of the Senate gave it to Rep. Reynaldo Umali. It would later turn out that Rep. Jorge Banal of Quezon City had previously gone to the Katipunan branch of PS Bank to inquire about this 700,000-dollar account. Rep. Banal in turn, claimed that an unknown person left the documents at his residence.

The Supreme Court then came to the rescue of the embattled CJ when in a petition filed by PS Bank, the Court issued an indefinite temporary restraining order which effectively stopped the impeachment court from compelling the bank to produce all relevant documents relative to the $700,000 account. This time, the $10 Million dollar deposit was not even by reason of any document, even information, provided by the Prosecutors. Instead, what is  clear on the basis of newspaper reports are: One, as alleged by veteran Journalist Ellen Tordesillas in a story published by Vera files, the Ombudsman allegedly had asked the Anti-Money Laundering Council to provide her with a copy of the documents establishing that the CJ has an undisclosed amount in  dollar deposits in  undisclosed banks. This, according to Tordesillas, the Ombudsman did in response to the complaint filed by Hontiveros et al.

Two, in a story carried exclusively by the Philippine Daily Inquirer, the CJ was allegedly asked by the Ombudsman to explain in writing within 72 hours how he acquired several peso and dollar accounts, described as  “grossly disproportionate” to his salary. Quoting from Carpio’s order, the PDI reported that the CJ was allegedly asked to explain, among others, how he acquired dollar deposits with an “aggregate amount of at least US$10,000,000”.

It was because of this second story that Senators Miriam Defensor-Santiago opined that the Ombudsman could conduct a parallel investigation with the impeachment court on the CJ’s concealed dollar deposits. Senator  Edgardo Angara , for his part, said that the impeachment court could accept evidence emanating from the Ombudsman in this regard. The legal basis for both Senators’ opinions is found in the Ombudsman law, which provides that the said office may investigate even impeachable officers for the purpose of recommending to Congress the initiation of impeachment against them.

Apparently, this was the game changer. While the CJ, through his lawyers, lawyers ignored the show cause letter of the Ombudsman arguing that the said office has no jurisdiction over an impeachable officer such as the Chief Justice, the results of such an investigation was nonetheless, the reason why the CJ will now take the stand. According to his counsel last Tuesday evening, this was to “rebut the testimonies” of Hontiveros and the Ombudsman et al, which presumably, will be adverse to the CJ. Obviously the nation will be glued to the proceedings specially when the Ombudsman takes the stand, which she has said she will. And the obvious question will no longer be whether such a huge deposit exists, which for all intents and purposes, appear to be admitted. The issue now is why he did not declare such an amount and how he acquired this huge sum.

The plot thickens. It’s definitely more fun in the Philippines!

The answer lies in the dispute settlement procedure of the United Nations Convention on the Law of the Seas (UNCLOS). These provisions are not only very long, but are recognized by scholars as amongst the most complicated provisions of the convention.

In a nutshell, the provisions on dispute settlement were made part of the “package deal” that state parties agreed to be bound when they became parties to the UNCLOS. In an effort to make all of the provisions of the UNCLOS a restatement of customary international law, each and every provision of the convention were agreed upon by states on the basis of consensus, and not just by a vote of the majority. Consequently, not only did the UNCLOS become the longest treaty to negotiate, it also became unique because of the rule that parties thereto may not make reservations on any of its provisions, including those dealing with dispute resolution.

The ITLOS jurisdiction was made compulsory and mandatory on all state parties in all disputes arising from the “”interpretation or application of any provision in the Convention”. Because state parties to the Convention, including the Philippines and China, have already referred to the ITLOS these types of disputes, China need not give its consent anew if we were to bring the issue of the exercise of sovereign rights in Scarborough shoal, Recto Bank and even parts of the Spratly’s to the tribunal.

Notice though that while Scarborough dispute, because it is one over fishing rights in maritime territory may- be brought to the ITLOS even without the consent of China, the Spratly’s controversy, on the other hand, would still require China’s consent. The reason is simple: because the Scarborough issue is purely a dispute involving water, it may be resolved wholly under the UNCLOS and as such, is an issue arising from an “interpretation” of the Convention’s provisions on sovereign rights. By definition, sovereign rights refer to the exclusive right of a state to explore and exploit all natural resources found in the waters of its Exclusive Economic Zone (EEZ), which is 200 nautical miles from the baseline of a country.

The issue in Scarborough is whether fishing by Chinese nationals there violates the sovereign right of the Philippines to exclusively engage in fishing in the area. A resolution of this issue would require the ITLOS to make a factual determination if the shoal is within the country’s EEZ and whether the shoal, as China claims, is an island. If it were indeed an island, yet an issue to be resolved would be whether it is entitled to other maritime zones or just a 12 nautical mile territorial sea. In either case, the primordial issue would be which nation should be allowed to fish in the area of the disputed shoal.

The Spratly’s dispute, on the other hand, is one that involves conflicting claims to both land and water territory. As such. UNCLOS cannot be the sole applicable law for the obvious reason that it deals only with maritime territories. The territorial dispute to the islands are subject to the rule they should pertain to the state that can prove a superior claim in terms of effectivities, or the exercise of the rights and obligations borne out of the exercise of sovereignty over disputed land territory. As such, disputes over islands are disputes beyond the “interpretation” of the UNCLOS rules on maritime territory. This is why China must consent anew to the exercise of jurisdiction by ITLOS in resolving the Spratly’s dispute. It is because conflicting claims to land territory do not involve issues of interpretation of the UNCLOS and are hence, are not subject to the mandatory and compulsory jurisdiction of the ITLOS.

Recent events have proven that we are no match to China in terms of military firepower. It was fool hardy for Filipino policy makers to think that BRP Gregorio Del Pilar, our one and only battleship, can drive Chinese fishermen away from the area. In any case, resort to the use of force to settle international disputes are prohibited by both the UN Charter and the UNCLOS. I am happy that Secretary Del Rosario has finally declared that instead of a military solution, we have opted for a peaceful and legal resolution of the dispute. In this manner, we may yet repeat the feat of a boy named David that slew a giant named Goliath.

(Published in the Manila Standard Today newspaper on /2012/April/19)

The team consists of Christopher Louis Ocampo, Michelle Go, Danilo Corpus, Neil Nucup, and Margarita Lim. It also has Cuayo Juico as its manager, and Atty. Maricel Seno as my assistant coach.

The UP team finished third in the world’s biggest and most prestigious moot court competition, the Jessup Cup.  This year’s competition drew as participants an unprecedented 137 teams from all over the world, from an original 600 schools that competed in the different national and regional rounds held worldwide. While the UP Law team yielded in the semi- final round to the Russian team from the Moscow State University, the same team that would later beat Columbia University to emerge as this year’s champion,  the UP feat was nonetheless sweet if only because the stories of those who constituted the team  tell the world what a UP education is all about.

Each member of the team represents a section of UP’s student body. It is this kind of a student body, not just financial resources, that will ensure the preeminence of the National University in the years to come.

Two members of the team, Chris and Neil, are children of overseas Filipino workers: a mariner and a Rome-based housekeeper, respectively. They are portraits of the many other young Filipinos who have become a sociological reality in a country with a diaspora of at least 14 million. Their story has become all too familiar: they grew up with one parent and have had to content themselves with the occasional phone calls from the other parent laboring  abroad to finance their education in this country.

A third member, of the team, “DS”, is a portrait of a young Filipino who had the option to reside in the United States —his parents had provided him with the coveted “green card.” Nonetheless, he opted to stay because he “could not see a future outside of the Philippines.

Michelle Go, the cerebral heavy weight in the group and perhaps, in the entire competition, risked the title of being the class valedictorian because of the many hours she devoted preparing for the Jessup Cup. While we all hope that she will still graduate on top of her class, “Mitch” claims that the Jessup experience of having to argue issues relevant to the world today—the use of force to prevent humanitarian disasters and remedies to victims of war crimes —has enriched her education far beyond any  title to being class valedictorian.

Margie, on the other hand, is a child of a Filipino professional who once worked as an expatriate in the Middle East. She is a portrait of one who finished her first degree at the Ateneo but opted to do her law in UP to be  “great lawyer”, to quote from the words of the great American jurist Oliver Wendell Holmes etched in stone in Malcolm Hall.

This is of course not the best showing for the UP Law team at the Jessup cup. In 1995, the UP Law team with Undersecretary Chito Gascon was the first Filipino team to emerge as world champion at the Jessup. This feat was followed by an Ateneo team that emerged as champion in 2004, the same year when UP Law’s Diane Desierto, Neil Silva, and Ruben Acebedo emerged as co-champions with Cambridge University in the equally prestigious Jean Pictet International Humanitarian Law Competition held in France.

In 2005, the UP Law team made history in the Red Cross  IHL Moot Competition in Hong Kong when both its Applicant team with Dr. Celia Torres-Villanueva and now Assistant Secretary William Varias; and its Respondent team with Mark Rabe and Marlon Marquez -landed first and second, respectively, with an all-UP team slugging it out in the final round. In 2006, my first time ever to coach the Philippine team at Jessup, Abraham Acosta, Mark Perrete, Charles Allaine Veloso, and Mark Rabe landed as quarterfinalists . Previously, in 1989, the UP Law Team with former PCGG Commissioner Ruben Carranza , soon to be Ambassador King Sorreta, with legal eagles Leni Villareal and Evalyn Ursua, also emerged as semi-finalist in the Jessup.

But this is not just about a record of winning moot competitions. It’s about being poor or middle class -getting a top-notch education at UP paid for by Filipino taxpayers, and emerging world-class. This is the UP story.

This is why a UP victory is always sweeter. This is why the students who competed in Washington DC this year sang “UP Naming Mahal” before every match: because UP is beloved not only because it is a revered institution; more importantly, it is, for all its graduates, the stuff that dreams are made of, and the story of magical beginnings and finishes.

Here’s an inspiring story for everyone. Happy Easter!

The first is a challenge to President Obama’s primary election promise: To reform the US health care system. This initiative could perhaps be compared to President Noynoy Aquino’s Truth Commission – Pnoy’s flagship promise while he was campaigning for the presidency.

The urgency of health care reforms is well known to almost all Americans. Because health care here is privatized and is run as a private business, the cost of medical care has now proven to be beyond the reach of ordinary people. We’re dealing with two symbiotic industries which are now on the verge of collapse: Health providers that have raked in profits from a profession that was not intended to be run as a business and a medical insurance industry that has thrived as a guarantee against a contingency that otherwise would be beyond the reach of normal people.  The result is the current state of health care in the US: technologically sound but in a state of financial collapse.

The dilemma now is this: With health care so expensive, what happens to those who do not have the insurance coverage required to pay for these sky-high costs?

Obama’s proposal is simple. Because those who do not have medical insurance have opted to pay the cost of their health care themselves or to pass them on to be paid by hospitals, other patients, or the government; they are actually engaged in an economic activity which Congress can legislate on. This is the so-called inter-commerce clause of the US Constitution.  Opponents of the initiative, mostly conservative Republics, argue that those who do not have insurance do not participate in any economic activity and hence, should not be the subject of legislation. They argue that Congress cannot compel individuals to buy coverage so that they can participate in an economic activity that Congress can regulate.

Under Obama’s proposal, all Americans must procure medical insurance by 2014. Otherwise, they are liable to pay a penalty in their 2015 income tax return.

The US Supreme Court has scheduled this issue for a two-hour argument today. It is expected that the US Solicitor-General will argue that the initiative is a legitimate exercise of police power to uphold the public good. With health care expenditure amounting to 18 percent of the entire American economy, the Obama administration argued in its pleading that “as a class, the uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually x x x That cost shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

***

The case of 17-year-old Trayvon Martin has also caught the attention of the American public. Trayvon was allegedly killed by a white community volunteer, George Zimmerman. Trayvon’s family claimed he was killed simply because he happened to be black. Zimmerman, though, claims that it was an act of self-defense after Trayvon punched and slammed him into the sidewalk.

A month after Trayvon’s killing, Zimmerman has not been apprehended nor charged for the killing. This has led to widespread protest in the US. The debate has culminated recently with no less than President Barrack Obama declaring: “My main message is to the parents of Trayvon Martin. You know, if I had a son he’d look like Trayvon. And I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves and get to the bottom of exactly what happened.”

Conservatives have of course pounced on the opportunity to hit at Obama with former US Speaker Newt Gingrich declaring that the President’s remark was “disgraceful.” He added: “Is the president suggesting that if it had been a white who had been shot, that would be ok because it didn’t look like him?”

These two cases highlight what we do not have in common with the US despite having the same constitutional tradition. One, there is the trust here that the Supreme Court, despite the fact that majority of its members were appointed by Republic presidents, will resolve constitutional issues according to the letter and intent of the fundamental law of the land.

Furthermore, the outrage stirred by Trayvon’s killing, one which we no longer find in the Philippines with more than a thousand Trayvons in our midst, show a belief, now lacking in the Philippines, that a society under a rule of law should not countenance these killings.