VP Binay’s refusal to attend Senate hearing is not an Impeachable Offense


Ref: Professor H. Harry L. Roque, Jr. 09175398096

In an interview last October 10, 2014, Sen. Miriam Defensor – Santiago said that Vice President Jejomar Binay’s obstinate refusal to appear before the Senate Blue Ribbon Subcommittee constituted betrayal of public trust, an impeachable offense. While we respect the wisdom and experience of the learned Senator, we believe that this statement will just sow confusion and, in turn, affect the public’s perception of the entire impeachment process.

It is our view that the VP’s failure to attend the Senate inquiries is not an impeachable offense.

Article XI, Section 2 of the 1987 Constitution provides that; “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.” In the words of Justice Estela Perlas – Bernabe, the phrase “betrayal of public trust” refers to acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.

 

The Constitution is clear. The Senate does not possess the power to compel the Vice-president to attend its inquiries because of the principle of separation of powers between co-equal branches of government. To compel him would be to assert the Senate’s supremacy over the Executive, which is frowned upon by the Constitution. , To claim otherwise would be to go beyond what is spelled out in the Constitution. To claim that it is an impeachable offense is therefore an error.

ISIS and International Humanitarian Law


The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.

Martial law in the ‘land of the free’


It was ironic that on the very same day my column on martial appeared last week, I had first hand experience on the pernicious face of martial law, albeit in Thailand.

The occasion was an international conference on “Southeast Asian Views on the Convention Against Torture (CAT) and its Optional Protocol”. Apparently, the forum was organized long before the declaration of martial law. Originally, the focus was only on Thailand’s compliance with the said Convention. Fortunately, the Hanss Seidel Foundation provided funding that enabled participants from the Philippines, Indonesia, and Malaysia to attend the forum.

My talk itself should have been uncontroversial in Thailand. While the Philippines has ratified the (CAT) way back in 1986, it took us almost 30 years to comply with our treaty commitment to pass domestic law punishing torture as a distinct crime. Moreover, I presented the results of a multi-stakeholder meeting on the challenges to the Philippines compliance with the convention. These include the fact that pretrial detentions, which breed torture continue, failure to investigate torture cases adequately, and failure to readily provide free medical assistance to torture victims. Moreover, there is the persistent problem in our rules on criminal procedure, which makes it the burden of the victims to establish prima facie evidence for the crime of torture for the purpose of filing Information in court. Under the Convention, it is the State, and not the victims, that have the obligation to investigate, prosecute and punish torture even in the absence of a formal complaint.

The otherwise innocuous presentation proved controversial because the ruling Thai military junta sent censors with a clear warning that none of the speakers should talk about Thai domestic matters, including the prevailing martial law in that country. The warning was given to me thrice: by the academic from Thammasat University that sponsored the event; the German expat from Seidel foundation, that paid for the event, and the event organizer. I sensed that they specifically had to remind me about the presence of censors from the country’s “ National Council for Law and Order” because my last engagement in Thailand a couple of months back, also in Thamassat, dealt with the very sensitive topic of Lese Majeste, or the Thai law that prescribes up to 20 years of imprisonment for anyone criticizing their King. The organizers knew too that I am the counsel for Thai nationals behind bars for Lese Majeste, which includes Thailand’s counterpart of our own Ninoy Aquino, Somyot Prueksakasemsuk. Centerlaw, an advocacy group that files public interest cases of which I am the Chair, appears as counsel of record for Thai activists before international bodies in actions that seek to declare Lese Majeste, and incarcerations because of the law, as contrary to freedom of expression and hence, a form of arbitrary detention.

So I found myself in a bind. Neither Marcos, Arroyo nor PNoy have been successful in shutting my otherwise big mouth particularly in my advocacy to promote freedom of expression. Even my most outspoken critic in Facebook, an ex-envelopmental journalist who is suspected of having killed his common law wife and his two children in an act of arson, and his pagan cabals, has not succeeded in shutting me up. Should I allow the Thai junta to shut me up for once?

Certainly not. But to placate my hosts, I did not speak specifically about Thailand’s martial law. Instead I spoke about the Philippines experience with Martial Law and why despots like Marcos, resort to them.

I explained to my audience that despots declare martial law because of their unmoderated greed for power and money. Marcos, like other despots, resort to military rule because they have lost democratic legitimacy. Marcos then was already disqualified from seeking a new term. And so, the solution was to do away with the 1935 Constitution prescribing for term limits and declaring himself as leader of a martial law regime. This enabled him to rule as an absolute dictator for in excess of 20 years without a popular mandate. And why do despots seek to be in power? Simple. It’s because of their unmoderated greed for wealth. Marcos of course today has had at least 150 billion pesos of his ill-gotten wealth already sequestered by government. My guess is that this is probably just the tip of the iceberg. Certainly, unless the rest of his assets are found, none of his descendants would have to ever worry about financial survival.

The Thai audience was very much amused by my discussion. Although an open forum was not encouraged, I am sure that the audience saw the parallels between Marcos martial law and the current situation in Thailand. There is of course a subtle difference. In Thailand, the struggle is between a revered King bereft of a popular mandate and a popular Thaksin. Whenever the sovereign people install the popular Thaksin in power, the Thai military, ever loyal to the King, will depose the Thaksin administration. This latest coup is already the second against Thaksin.

Make no mistake, though. Thaksin is no Ninoy Aquino. He’s probably akin to the Marcos cronies who relied on a system that breeds crony capitalism to enable them to amass their tremendous fortunes. The Problem started when Thaksin thought that his wealth was sufficient to challenge the supremacy of the King in Thai society. Recent Thai history has proven him false.

For the record hence, the Thai martial law regime attempted to censor me but did not succeed. They of course resort to censorship to hide the truth from the public. Guess what, try as they do, the truth always has a way of getting out.

Meanwhile, all freedom-loving Filipinos should condemn the lack of legitimacy of the Thai junta and express our solidarity with genuine peoples’ organizations seeking to restore democracy ironically, in the so-called “land of the free”.

My Lolo and martial law


By Atty. Harry Roque Jr. | Sep. 25, 2014 at 12:01am
3
I was too young to be an activist during martial law. I was fortunate though to have been raised in a family whose religious convictions include that of taking a stand for the poor and oppressed. This is why even if I did not venture to the streets to protest the Marcos dictatorship until I was a freshman high school student in UPIS, specifically in the infamous march along Liwasan Bonifacio to protest against the Education Act, I had my political education rather early in life.

Born in 1966, I, as a young child, could only remember being roused from my sleep with the commotion in our ancestral Pasay residence. My Lolo, Hipolito De Leon Lopez, announced that Martial law had been declared by Marcos. Lolo was a lawyer by training, but opted to work, together with “King” Doromal, for an American multinational company and became one of its pioneer Filipino executives. He himself was a founding councilor in Quezon City having been appointed to the post by then President Manuel Quezon. Owing though to an edict issued by of my Lola, who valued the family’s privacy, he was forced to retire early from politics. This is why among others, they moved from Quezon City to Pasay.

Lolo, despite having retired very from politics, was nonetheless still tremendously immersed in it. Lola, on the other hand, was a cousin of a rising star whom every one knew as “Mr. Clean,” Jovito Salonga. It was through this family relations that my political education began.

Lolo’s immediate concern upon declaration of martial law was an uncle, now a protestant Pastor, Uncle Rey, who was then a law student at the UP College of Law. Uncle Rey lived through the first quarter storm in UP and was a true blue activist when martial law was declared. Lolo knew that over and above our relations to Salonga, my uncle, whom he knew was active in the soon-to-be-declared illegal Kabataan Makabayan, was most at risk. Years later, the Protestant Church, through the Reverend Cirilo Rigos, would arrange for Uncle Rey to seek asylum in many monasteries in Europe where he evolved from a student activist to a seafarer’s advocate, which he remains today.

My political education was one of extreme contradiction. While my entire family was anti-Marcos, and not just because of Jovy Salonga, but primarily because Marcos trashed the 1935 Constitution and was engaged in widespread kleptocracy, my Lolo would nonetheless berate my Uncle for his student activism. Lolo himself had his share of cabal activities against the martial law regime, including late night sessions in his farmhouse in Parañaque, with journalists then residing in Fourth Estate subdivision, including its developer, a journalist who was a former diplomat whose first name I cannot now recall, Mr. Rodriguez. They would congregate for many nights reading the banned editions of the mosquito press and would take turns condemning, even cursing the excesses of the conjugal dictatorship. Meanwhile, my Ate and I would lead the siblings and cousins to our own march in the rice paddies chanting “Ninoy!” and other slogans against the dictatorship. But maybe owing to his corporate background, Lolo could not accept my uncle’s activism as if it were enough to condemn the dictatorships in secret meetings. Perhaps, it was fact that my uncle’s activism caused him to drop out of law school. To this date, I do not know if Lolo disliked my uncle’s activism because of the risk that it caused, or because it kept my uncle from becoming a lawyer. Maybe it was both.

There too were the many individuals wanted by the dictatorship, which we gave safe haven in our home in Pasay. While I no longer recall who exactly they were, one nun stands out because she used to play the piano very well. She had two favorites: Bayan ko and If a Picture Paints a Thousand Words. It was this nun, whom I never saw in a hobbit, who would lecture me on the basics: neo-colonialism, neo-feudalism and US imperialism. Looking back, it was she who explained in a manner that a child could understand why the US, because of its security interest in the region, opted to support the Marcos dictatorship. Ironically, this nun would later seek asylum in the heart of the beast: the United States.

Meanwhile, my political education continues, but with a difference. While I continue to espouse the view that only Filipinos can safeguard the Filipino interest, I have moved from sloganeering to legal advocacy. This means that while I continue to go and speak at rallies, particularly against the pork barrel and the DAP, I have gone further and actually used the law as a tool to change society. I guess I now know why my Lolo was so frustrated that my uncle gave up on his law training. Advocacy itself is important to build awareness amongst the people, but lawyers can do more for the cause when and if they use it as a tool to promote the people’s agenda.

Years from now, in the twilight of my life and when I am asked what I have done for society, I can cite jurisprudence and not just the advocacies I engaged in: David vs. Arroyo where the Court ruled that General Order No. 5 as unconstitutional since in the absence of a statutory definition for terrorism, only the President can define what it is which she can use to stifle dissent; Roque vs. de Venecia, where the Court ruled that ordinary citizens have a standing to sue to enforce a public right; Cacho vs. Arroyo, where the Court recognized that abuse of right was a valid cause of action when then FG Mike Arroyo filed 45 libel cases against journalists, Adonis vs. RP where the UN Human Rights Committee ruled that Philippine criminal libel is against freedom of expression, and the latest, Belgica vs. Aquino, where the Court ruled that the Disbursement Acceleration Program is unconstitutional.

Looking back, my political education must be the realization of my Lolo’s aspirations: the use of the legal profession as a tool to promote democracy and to spoil the day for despots.

I do miss my Lolo.

Binay and the Senate inquisition


The Senate investigation of the alleged overpriced Makati City Hall 2 building is obviously in aid of the senators’ own election bids. Vice President Jejomar Binay’s inquisitors, Senators Alan Cayetano and Antonio Trillianes, are both great young leaders and are also my closest friends. But friendships aside, the reality is that the two of them have also publicly admitted that they’re after higher office: Alan for President and Sonny for Vice possibly under the banner of the Nacionalista Party. This does not per se make the Senate investigation on Binay spurious. It however, casts a doubt that the investigation is being conducted precisely for partisan purposes: to bring down the presidential front-runner in 2016.

 The on-going Senate smear against Binay though is not new. This is why despite the fact that the Senate’s power to conduct investigations in aid of legislation is plenary in nature, meaning that only the Senate itself can say if when its investigations are indeed pursuant to law making, the Supreme Court has recently ruled that these investigations, bereft of genuine legislative basis, is prone to abuse. This is why plenary or not, the Court has ruled that the Senate cannot investigate without a legislative purpose.

The starting point in this long line of Jurisprudence is Arnault vs Nazareno. In this case, the Supreme Court first ruled that Senate inquiries are plenary in nature and that witnesses may be cited in contempt of the Senate where they fail to appear before the investigation and when they are found to be lying before the body.  Said the Court: “The power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who possess it.”

Much later, during the administration of President Corazon Aquino, the Court ruled in the case of Bengzon vs. Blue Ribbon Committee that despite the plenary nature of legislative inquiries, the Senate could no longer pursue an investigation on a matter which was already pending in Court. This is because parties to the Senate investigation, when they are already charged in Court for the same subject matter being inquired upon, have the right against self-incrimination. In other words, the rationale behind the prohibition is because persons appearing in the legislative hearings may be held criminally responsible for matters, which they may state before Congress.

But more importantly, the Court in Bengzon highlighted that legislative inquiries must be for legislative purposes. Said the Court: The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited.   x x x Thus, as provided therein, the investigation must be “in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected.”

The Court then enjoined the Senate Blue Ribbon Committee from further proceeding with the inquiry in the absence of a legislative purpose: “Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.” I other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon committee was to find out whether or not the relatives of President Aquino, particularly Mr. Ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin “Kokoy” Romualdez to the Lopa Group. There appears to be, therefore, no intended legislation involved”.

The words used by the Court in Bengzon could very well be applied to the ongoing smear against VP Binay. What is the legislative purpose of the investigation? What possible amendments to the plunder law and/or the anti-graft and corrupt practices acts could be introduced as a result of the investigation against Binay? Could not its investigations already conducted against the PDAF and Janet Lim Napoles already facilitate these amendments? Why investigate Binay and not the DAP?

The senators, even with their plenary powers, are still public officials. While they may engage in inquiries for legislative purposes, they should not waste the public coffers in investigations in aid of their own elections. Lest we are misunderstood, we already have the Ombudsman as the Constitutional body tasked with the investigation of public misfeasance of public officers. Let the very able and independent Ombudsman Conchita Carpio-Morales do her job. Meanwhile, we expect our senators to do theirs as well: craft policies through laws.

A further word of advice to my good friends: Philippine history has shown that while smears have sometimes worked, it has not always resulted in poll victories. Jamby Madrigal spearheaded the smear against Manny Villar that proved to be somehow effective. Her smear though was not enough to win her a second term in the Senate. This shows that our electorate people do not appreciate individuals behind smear campaigns. They will still vote for people with positive achievements.

Beware, my friends!

Dismal rule of law in the Philippines


It’s confirmed. The Philippines does not adhere to the rule of law.

In the annual Rule of Law Index for 2014, the Philippines received dismal grades for its adherence to the rule of law. In fact, the country was a dismal failure, receiving an average score of only .5 out of 1. That’s a failing grade of 50 percent.

In the region, we ranked 11th out of 15 states, behind even Mongolia, and in the company of Vietnam, China, Myanmar and Cambodia. We were eighth out of 24 in our income rank of lower middle-income countries. Worldwide, we were in the bottom half of the world ranking 60th out of 99 countries included in the survey.

The annual Rule of Law Index is a project of the World Justice Project. While the “rule of law “ is difficult to define, the project nonetheless evaluates countries’ adherence to the rule of law through outcomes that the rule of law brings to society. This includes “ accountability, respect for fundamental rights, and access to justice”.

The annual survey is based on four universal principles on the rule of law: one, government and its officials and agents are accountable under the rule of law; two, the laws are clear, publicized, stable and just, applied evenly, and protect fundamental rights including security of persons and property; three, the process by which the laws are enacted, administered and enforced is accessible, fair and just; and four, justice is delivered by competent, ethical, independent representatives who are of sufficient numbers, have adequate resources, and reflect the make-up of communities they serve.

The rule of law project then conducted a survey on 99 countries asking respondents to comment on eight factor areas of the rule of law, to wit: constraints on government power, or the extent to which those who govern are bound by the rule of law where the Philippines received a score of 59 percent. Absence of corruption where the Philippines received a score of 50 percent%, open government where the country got a lower score of 45percent, fundamental rights with a score of 52 percent, order and security with a score of 73 percent, regulatory enforcement with a score of 46 percent, civil justice with a score of 40 percent and the lowest, criminal justice with a depressing score of 36 percent.

While the methodology of the project was through a survey of at least 300 local experts in each country jurisdiction, the findings correspond with the reality on the ground. For instance, the country’s lowest score in criminal justice jibes with the fact that almost no person has been held accountable for extralegal killings in this country. The index bolsters the Asia Foundation-funded Parreño report that showed that the country has a dismal 1 percent conviction rate for extralegal killings. The score on civil justice also corresponds with the grim reality that civil cases take forever to be resolved in our courts. Likewise, the failing grades on corruption, open governance and fundamental rights appear to be reflective of realties, what with PDAF and the DAP scandals.

The surprise is the 73 percent, which we received in the area of order and security. With the recent spate of criminal activities, including kidnappings again prevalent, I am surprised that respondents still gave our country a nearly passing grade for this category.

In its report on the Philippines, the Rule of Law Index noted favorably “the existence of a vibrant civil society and a free media” which has been “reasonably effective checks on government power”. It noted though that “civil conflict and political violence remain problematic”. It also reported that “the country also has challenges with respect to protection of fundamental rights (ranking 67th over-all), particularly in regard to violations against the right to life and security of the person, police abuses, due process violations, and harsh correctional facilities”. It also highlighted that the “civil courts system ranks poorly (82/99 globally and 12/15 regionally) due to deficient enforcement mechanisms and the lengthy duration of cases”.

Beyond the index, the report confirms that we have a barely working rule of law in this country. This means that our public officers are not held accountable for their acts; our laws are unevenly applied, depending on whether one is rich or poor or politically connected or otherwise, think of NAIA Terminal 3 which is now being used without the builder being paid for the building; laws are not effectively enforced, and justice is not delivered by competent judges with sufficient numbers and competence.

In other words, we have a failed legal system where we are one notch away from reverting to the laws of the jungle.

This is yet another reason why a lawyer like Jojo Binay should be in Malacañang come 2016.

This post first appeared in http://manilastandardtoday.com/2014/09/11/dismal-rule-of-law-in-the-philippines/ on September 11, 2014.

The future of the Internet


I am in Istanbul, Turkey to attend the 9th Internet Governance Forum (IGF). This is an initiative of the United Nations General Assembly to bring together stakeholders to discuss the future of the Internet.

On top of the agenda is how governments should treat the net. The majority view still is what is referred to as the “multi-stakeholderism approach”, which believes that as the Internet is the technological realization of a free market place of ideas, it should be allowed to flourish with minimal governmental interference. On the other end of the spectrum is the view that the Internet should be subject to the full exercise of state sovereignty and jurisdiction exemplified perhaps by China’s decision to build the counterpart of its great wall on the Internet.

But beyond the debate on how much control government should exercise over the net, the conference also deals with a host of other controversial topics. I would think that given the archipelagic nature of the Philippines and the fact that we have one of the slowest and most expensive Internet service in the world — a topic that should have prompted our government to at least send an official delegate to the forum would be the issue of access to the Internet. But reflective of the lack of political will and/ or lack of appreciation that access to the internet is fast developing into a human right, the Philippines did not bother to send anyone, even a third secretary from our embassy in Ankara, to the forum. A fellow Filipino civil society delegate, Liza Garcia of Gender and ICT, cynically observed that if the international community put a price tag on the Internet, our government would most definitely have sent an official delegate to the forum.

In any case, it is strange that the Philippines, as the country that has most recently implemented a draconian law that infringes on freedom of expression on the net through the Cybercrimes Prevention Act, would choose to ignore the UN-sponsored forum on the future of the Internet.

Other interesting topics for discussion include: content creation, dissemination and use, the Internet as an engine for growth, enhancing digital security, human rights and other emerging issues.

I have thus far attended two interesting panels. The first is on the future of the data privacy in a post-Snowden world. The other is on human rights principles and the Internet.

Apparently, the concern today arising from the Snowden incident is the privacy of data, which governments have been accessing. This is why most governments insist on “in-country data storage”, referred in techie language as “localization”, which many Internet servers object to as being uneconomical and violate their clients’ rights to privacy. Unfortunately, a theme that arose from the panel discussion is that it is start-up companies that have the balls to stand up to government in resisting localization. The big guys, apparently driven by potential loss of revenues, have been more than happy to comply with both localization and requests for data. All that Big Brother has to do is to ask.

Closer to my interest are human rights principles, which have been codified into the Charter of Human Rights for the Internet. While this remains lex ferenda, meaning this is still aspirational; the panel observed that countries have been moving, albeit slowly, to enact enabling legislation to transform the Charter into lex lata, or what the law is. New Zealand and Brazil are two such countries. I do recall that Sen. Miriam Defensor Santiago has a pending bill, the Magna Carta for the Internet, which I hope will be enacted into law soon so that the Philippines can help in making the aspirational Charter into law. Some of the rights included in the Charter include the right to access and the right against government surveillance without due process of law. Thank goodness that while we lost in our challenge against cyber libel and cybersex in the Cyberprevention Act, we at least succeeded in nullifying real time data gathering without a court warrant and the take-down clause which would have enabled the Justice Secretary to act as investigator, prosecutor, judge and executioner in taking down Internet sites.

Today, my hosts, Freedom House and the American Bar Association, have arranged a series of bilateral meetings with donors and tech companies. In a few minutes there will be a bilateral meeting with the European Commission, followed by bilateral meetings with the State Department, the Director for Advocacy of Human Rights Watch, and meetings with companies such as Twitter and Facebook. At issue with the techie companies is the procedure by which they comply with government requests to take down materials. Early in our pre-conference planning, we agreed that we would attempt to persuade these companies to adapt an administrative procedure by which civil society and other interested parties may challenge any such request to take down content. Prima facie, these requests constitute prior restraint and infringe on freedom of expression.

It’s my first time to attend the IGF. I do concede that three days can make a world of a difference. I started on Day 1 when I was still pessimistic that a forum where nothing is adopted might be a waste of time. Today, and because I have been teaching international law for 15 years, I realize that a forum such as this facilitates the formation of customary norms. This is because civil society and other stakeholders are allowed to persuade governments to adopt uniform state practice on the basis that these practices have become law.

It’s not such a waste of time after all.

My profuse thanks to the American Bar Association for sponsoring me to this event, and to Freedom House for including me in their delegation. This means I win the prize for social media, right?

This post first appeared in http://manilastandardtoday.com/2014/09/04/the-future-of-the-internet/