In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II.  While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ  applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”

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The View was expressed in a complaint filed by Davao based broadcaster Alex Adonis who was jailed for more than two years pursuant to a conviction for libel in a complaint filed by former Speaker Prospero Nograles. In his radio broadcast, Adonis read and dramatized a newspaper report that then Congressman Nograles was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night with. Residents of Davao have since referred to the Nograles incident as the “burlesque king” incident. In a decision rendered by the Regional Trial Court of Davao, Adonis was sentenced to imprisonment from 5 months and one day to four years, six days and one day imprisonment. In the said decision, the local court concluded: “ the evidence was sufficient to prove the authors guilt beyond a reasonable doubt for a “malicious, arbitrary, abusive, irresponsible act of maligning the honor, reputation and good name of Congressman Nograles”.

After having served two years in prison, Adonis questioned the compatibility of libel with freedom of expression under Art 19 of the ICCPR. He argued, “the sanction of imprisonment for libel  fails to meet the standard of necessity and reasonableness. Imprisonment is unnecessary since there are other effective means available for protection for the rights of others. He also argued that it was not a reasonable restriction because it does not admit proof of truth as a complete defense but only allows it under very restricted conditions.” He also questioned his conviction becasue he was tried  absentia when his counsel of record at the RTC withdrew from the case without informing him accordingly.

In ruling in favor of Adonis, the UN Body ruled that Adonis rights were violated when one; he was tried in absentia without proof that the court of his lawyer’s withdrawal notified him. Said the Committee: … the State party does not provide evidence showing that the Court sought to notify the author of the withdrawal of his lawyer, and the decision is unclear whether another counsel was appointed to represent the author”. Moreover, in ruling that Philippine criminal libel law was inconsistent with freedom of expression, the Committee recalled its General Comment No. 34 which reads: “Defamations laws should not   x x x stifle freedom of expression. … Penal defamation laws should include defense of truth.  x x” comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without ,malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel”

“This a very big win for freedom of expression”, remarked Prof. Harry Roque of the UP College of Law and the Center of international law who acted as counsel for Adonis in the UN. “We expect the Philippine government under PNOY to comply with the Committee’s view and proceed to decriminalize libel and to provide reparations to Adonis for time he spent in prison. No one should be imprisoned for expressing his or her views, full stop”.

The Committee ordered the Philippine government to “provide the author with an effective remedy, including adequate compensation for time served in prison, The State is also under obligation to take steps to prevent similar violations occurring in the future”.

Two Committee members dissented only insofar as the Committee did not expressly order the Philippine government to decriminalize libel. Fabian Omar Salvioli argued that pursuant to Art 2.2 of the Covenant, the “State party undertakes to take all necessary steps, in accordance with constitutional processes, to give effect to right recognized in the Convention”. Hence, by not ordering the repeal of Philippine libel laws, “ the Committee has missed a clear opportunity expressly and unambiguously to indicate to the State party that it must change its criminal law.

The Adonis View is the first view of the UN Committee on H

Alex Adonis (in blue) in court

uman Rights that criminal liable infringes on freedom of expression

Hence, it is wrong for our senators to be donning judicial robes which—in all jurisdictions worldwide—are worn only by judges from the judicial branch of government. The practice in the United States, from which we patterned our rules on impeachment, does not include the donning of such robes. On the contrary, senators treat such impeachment proceedings as part of the daily chores of the Senate. And typical of jurisdictions with strong party systems, American senators almost always vote along party lines.

When the Senate thus decides the fate of these impeachable officers, its decision would not be judicial in nature. It will be a policy decision. Senator Antonio Trillanes hit the nail on the head when he declared that the Senate will decide the fate of Chief Justice Renato Corona on the basis of what is best for the country. Certainly, evidence presented by the parties cannot be ignored. But in the appreciation of this evidence, the rules of court, precisely because it is the Senate and not a court, is applicable only on a suppletory basis. It is still the interest of the country that should be the primordial consideration of the senators.

This is why I am alarmed that this early, the Senate leadership appears bent on conducting the impeachment proceeding as if it were a real court. For instance, it has said that it will gag the parties to the proceedings from commenting on the proceedings pursuant to the sub judice rule. This is glaring error. To begin with, the sub judice rule was developed as a tool to protect the objectivity of jurors in court proceedings. In jurisdiction where the guilt of the accused is adjudged by a jury of his peers consisting of ordinary individuals with no training on the rules of evidence, it was originally thought important to protect them from any and all information that may affect their appreciation of facts. Its application to jurisdictions with no jury systems such as ours, have been tempered. Judges after all, unlike ordinary individuals, are trained in both law and evidence. Judges hence are less likely to be affected by extraneous information. As held by a UK Court in Ref v. Duffy: “…A judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This, indeed, happens daily to judges on assize.”

But even in jurisdictions that still rely on the jury system, the constitutional dedication to freedom of expression as a human right has drastically affected the application of the sub judice rule. One decision of the European Court of Human Rights held: ‘Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. This is all the more so where a public figure is involved, such as, in the present case, a former member of the Government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large. “

Moreover, our own Supreme Court has ruled that contempt for violating the sub judice rule is now subject to the clear and present danger test: In Chavez v. Gonzalez, the Court ruled: “Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed  in  adjudging  whether  to restrain  freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing  violations  of law.  By all means, violations  of  law  should  be  vigorously  prosecuted  by  the State  for  they  breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free  speech  and  free  press,  a preferred right whose breach can lead  to  greater evils”(emphasis supplied).

In Corona’s motion to cite the public prosecutors in contempt, the question is: what clear and danger arose from the disclosure of the Chief Justice’s condominium units? Absolutely none.

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The Bernas Connection with GMA: Niece-in-law Luli

Last Monday, Fr. Joaquin Bernas posited questions for the Senate to answer in connection with the impeachment of Chief Justice Renato Corona. Reading his questions closely, I realized that what he raised were, in reality, grounds why he believes the Senate should dismiss the Articles of Impeachment. It becomes imperative thus, for believers in the rule of law, to address each of the questions raised by the Jesuit.

Article 1 (on partiality and subservience to Gloria Macapagal Arroyo)

a. May the Senate review the Court’s decision (in De Castro v JBC)?

Answer: Yes, insofar as it may impact on the resolution of the chief justice’s fitness to remain in office for accepting an appointment which is contrary to the language and intent of the constitution and hence, immoral and unjust. This much Bernas has previously written: “Any person who accepted the post of Chief Justice from Mrs. Arroyo would open himself or herself to impeachment by the next Congress.”

b. Is it illegitimate to assume that the votes of Corona represented independent judgment?

Answer: Yes. Given his voting record in favor of Arroyo and his very close personal and professional relationship with her, it is indeed illegitimate to assume that his decisions represented independent judgment.

Article 2 (on the non-disclosure of the Statement of Assets, Liabilities and Net Worth):

a. The command on making assets and liabilities public is qualified by the clause “in the manner provided by law.” Is there a law providing the manner and did Corona violate it?

Answer: Yes, the manner is provided in Republic Act 6713. The law provides: that it shall be “made available for inspection at reasonable hours” and “shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law”. Corona, furthermore, had the duty as Chief Justice, to establish compliance procedures for the SALN requirement.

c. What evidence will be presented on the alleged illegally acquired property?

Answer: A picture of one such property was published in the newspapers.

Article 3 (on lack of competence, probity and integrity)

a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flip-flop?

b. Is the Court prohibited from modifying prior decisions or doctrines?

Answer: The real question as stated in the House Reply is this: Did he do anything, as the constitutional and moral leader of the Supreme Court, to prevent or even discourage the never-ending change in the purportedly final decisions of the Supreme Court?  No, the Court can change its prior decisions. But this requires changed circumstances -which were lacking in the cases of flip-flopping identified in the impeachment complaint.

c. When and by whom was Mrs. Corona appointed to John Hay Management Corporation? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife?

d. Can a husband be made answerable for acts of the wife?

Answer: Under the circumstances mentioned in the Complaint, the appointment of Mrs. Corona was inappropriate. Best proof of this was when she herself resigned after Corona became Chief Justice. Why should an appointment be appropriate when the spouse was an Associate Justice and why should it become inappropriate after he has become CJ? Truth is, it was inappropriate full stop. It was inappropriate because  the appointment of a spouse of a Justice to a government-owned and -controlled corporation as a form of a political  dole is wrong .

e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases?

Answer: I would hope to. Truth will set the nation free

Article 4 ( on the disregard for separation of powers in the Gutierrez case)

What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order?

Article 5 (on wanton arbitrariness and disregard of the principle of res judicata)

a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as “master” as against the greed of the League of Cities?

b. Was not the Fasap (Flight Attendants and Stewards Association of the Philippines) decision also collegial?

Common Answer: Again, what is being impugned as betrayal of public trust are the individual actions of the Chief Justice in these cases. As emphasized in the Reply, it is, however, without prejudice to impeaching the other justices who disregarded the principle of res judicata.

c. Is the Supreme Court powerless to look into the activities of its members (e.g., plagiarism) especially if it involves things that might affect the reputation of the Court?

Answer: No, when the matter falls within the original jurisdiction of the Court such as bar and other administrative matters. It has, however, no jurisdiction to deal with impeachable offenses, such as plagiarism, and certainly not in a manner that would preclude Congress from exercising its powers to initiate and decide on impeachment cases.

d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people?

Answer: Yes, but what is being questioned is the individual vote of the Chief Justice in the case which impugned precisely the constitutionality and legality of the law creating a new district to favor a presidential son.

e. Who decides the application of the principle of proportionality (or “one man, one vote”) in the size of districts?

Answer: It is  law that defines proportionality. Aquino in his case argued that the legal requirements were not met.

Article 7 (on the temporary restraining order allowing Mrs. Arroyo and her husband Mike to escape prosecution)

a. The constitutionality of the restriction on the right to travel through a Department of Justice circular on hold-departure orders is pending before the Court, with the decision expected after New Year. Should the Senate preempt the Supreme Court decision?

Answer: The questioned TRO almost made the issue moot. It was hence the Arroyo Court itself that preempted its own decision on the merits when it issued the restraining order.

b. What is the import, if any, of the existence of a House bill and a Senate bill disempowering the DOJ?

Answer: None whatsoever. They are mere pending bills and have not become law

c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it?

Answer: It is relevant on the issue of partiality of the Chief Justice in favor of Mrs. Arroyo. Certainly, the dissenting opinions of Justices Lourdes Sereno and Antonio Carpio prove anomalies and irregularities in the promulgation of the questioned restraining order.

Article 8 (on the refusal to account for the Judicial Development Fund).

a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?

Answer: No branch or agency of government is immune from fiscal accountability. Fiscal accountability is not synonymous with impunity for malversation of public funds.