Statement of Professor Harry L. Roque, Jr. and the Center for International Law (Centerlaw) Philippines on allegation of bribery


CENTERLAW PRESS STATEMENT
Reference: Professor Harry L. Roque, Jr. 09175398096

This current scandal has the sole purpose of destroying the prosecution and derailing the conviction of the Ampatuans. I will not fall into it. I will not allow myself to be used as a tool in this attempt to derail.

In this fight to bring justice to the 58 victims of the Ampatuan massacre, we are up against somebody who has all the resources to do everything to derail the case and prevent the conviction of the Ampatuans. We will not be derailed.

Since they came up with this story about bribes, I ask the police, the NBI, the Ombudsman, and the AMLA and all the proper authorities to resolve these accusations because this should not get in the way of our mission. Our mission is to bring justice to the massacred journalist and the other Ampatuan victims.

While investigation is being done, I will continue prosecuting the cases against the Ampatuans. This is for the cause of press freedom, this is for the mission. I want justice for the victims.

Our mission is to give the Ampatuan victims swift justice. People say that the trial will take more than 10 years to finish. We want justice now. This is our mission for the fallen journalists and the civilian victims of the massacre.

I expect more ploys to derail us, but I assure the victims that we will be steadfast in our mission and we will deliver the justice that the victims deserve. To the victims, we have a strong case, we will obtain convictions against the perpetrators of these dastardly crimes.

Statement of the Center for International Law on the alleged bribery of public prosecutors in the Maguindanao Massacre


The Center for International Law (Centerlaw) is firm in our goal to achieve justice for the victims of the Maguindanao Massacre.

As counsel for the heirs of 15 victims of the massacre, we lament unsubstantiated allegations of bribery that serve no purpose other than to derail the goal of effective and expeditious prosecution.

The publicity lamentably generated by Attorneys Nena Santos and Prima Quinsayas in making grave allegations against the public prosecutors unfairly taint the integrity of the entire work of the prosecution considering that the allegations hurled remain bare, naked, and reckless even.

If Attorneys Santos and Quinsayas have good faith belief in the worth of their cause, we are the first to encourage them to correctly ventilate them in the proper forum of IBP administrative and judicial criminal proceedings, where they should present real, concrete and substantiated evidence.

As to their claim that they still have many witnesses crucial to the case to present,
we have been hearing about this claim for so long – in fact, long before this controversy came up – and we regret to say that, to the best of our knowledge and after waiting for so long, there is not much that can be staked on such a claim.

For the record, it was Centerlaw that first proposed the First-in-First-Out Rule (FIFO). Simply, under FIFO, the court may already render judgment on the case of any accused over whom all evidence – for or against – has already been heard.

The rationale is that the families of victims and the accused do not have to wait for the evidence concerning 194 Accused to be heard by the court to achieve justice, which could take a long, long, long time.

This is the fair rule respecting due process for both the families of the victim and the Accused.

The regional trial court hearing the case rejected the proposal, but the Supreme Court subsequently adopted our proposal by issuing a circular to institutionalize it and to direct the trial court to implement it.

This is the legal background against which the decision of the public prosecutors to rest the case on the first batch of 28 Accused must be understood.
We actively participated in the presentation of the case against these 28 Accused. With the public prosecutors, we believe there is more than enough evidence presented in court to satisfy the demands of justice.

This is why for lawyers of the Center, without evidence of bribery presented before the proper forum, the charges raised by Santos and Quinsayas do not make any sense.

Sadly – whether Santos and Quinsayas wittingly or unwittingly realize it — the parties that will benefit most from their baseless allegations and senseless intrigues are the Ampatuans.

H. Harry L. Roque, Jr. Joel Ruiz Butuyan Romel Regalado Bagares Gilbert Andres Ethel Avisado Geepee Gonzales

No conflict between Public and Private Prosecutors in Ampatuan Massacre Case: It’s a conflict between Attys Nena Santos ,Prima Quinsayas and everyone else Ref. Prof. H. Harry L. Roque, Jr. 09175398096


“There’s no conflict between the public and private prosecutors in the Ampatuan massacre case. The conflict is between Attys Nena Santos and Prima Quinsayas and everyone else”, this was the reaction of Prof. H. Harry L. Roque, Jr., private prosecutor for 15 media victims in the massacre.

Roque was reacting to the statement of Atty Nena Santos, counsel for Governor Toto Mangundadatu, that a conflict exists between the public and private prosecutors.

Atty Santos has been objecting to the action of the Public Prosecutors in resting its evidence versus 28 of the accused, including Andal Ampatuan Jr aka “Unsay “. Roque added: “We cannot join her in this objection because it was upon our instance that the Supreme Court allowed the system of “First in-First Out” that allows the prosecution to rest its case against some of the 194 accused without waiting for the presentation of the evidence against all of the accused. It was pursuant to this that the prosecutors partially rested its evidence against 28 of the accused.

Roque explained that this is without prejudice to the prosecution resting their evidence against Andal Sr and Gov. Zaldy Ampatuan when all pending incidents in the appellate courts are finally decided upon.

Roque explained that they moved the Regional Trial Court to adopt the “First in First out policy” so that there can be partial promulgation of judgment against some of the accused , hopefully including the Ampatuan patriarch and his two sons, before the end of the administration of President Noynoy Aquino. Roque declared: “for all the President’s fault, we know that he does not owe any debt of gratitude to the Ampatuans. We’re not sure the next President can claim this much”.

Roque, Chair of the Center for International Law (Centerlaw) filed a motion before the Regional Trial Court to adopt the :”First in First Out Policy’. This was denied by the Trial Court but later provided by the Supreme Court in its guidelines for the Trial of Ampatuan Massacre Case.

A Decent SONA


I would have wanted to hear his policy directions for the last two years of his term, which he had nothing to say about. Still, PNoy’s latest State of the Nation Address the other day was decent.

To begin with, four years into his term, PNoy finally ceased passing the buck to anyone. Gone were his annual complaints that much of the problems that his administration faced were created by his predecessor. While he still had stinging rebuke for his critics- as if he deserves only praises, at least, this time, he did not say that the problems of his administration were the creation of other people.

There too was a tacit acceptance of defeat as far as the controversial DAP is concerned. We discern this from two of his statements: one, that he will ask Congress to pass a supplemental budget for items covered by DAP; and two, he will ask Congress for a definition of “savings”. It would appear that after taking flak even from his own allies and the yellow PR machinery itself, the President has finally admitted, albeit impliedly, that the DAP is flawed. As a counsel for Petitioner Belgica in the case where the Court ruled DAP to be unconstitutional, we have always argued that in lieu of DAP, the Executive should have gone to Congress for a supplemental budget to fund the projects funded by it. We pointed out that in the case of Yolanda, all that the President required was two weeks to pass a supplemental budget. This after is the fringe benefit of controlling both Houses of Congress.

Anent the definition of “savings”, the President’s desire for a legislated definition certainly confirms that as currently defined by law, savings pertains to leftover sums after a project has been competed or abandoned. This does not currently cover the administration’s substitution of its judgment for what projects should proceed outside of what is provided in the appropriations law. Dean Raul Pangalangan observed on national television that the President’s second remark on DAP mirrors the administration’s position in its Motion for Reconsideration that “savings” is defined by law and not by the Constitution. Be that as it may, the fact is that his declaration that he would ask Congress for a definition is an admission that its own definition of “savings” as nullified by the Court lacks legal basis. Why else would he ask Congress for a definition anew?

It helped too that the President became magnanimous in the case of “Tanda”, “Sexy” and “Pogi.” He could have claimed their incarceration as a victory for his administration but rightfully desisted from doing so. First, because it is uncertain whether the prosecution of the three will actually warrant a conviction on the basis of evidence gathered by the Executive department through the Department of Justice; and two, whether the proceedings will conclude seasonably, or at least during his lifetime, even if it is certain that it is not going to be in the lifetime of all the accused. To claim the prosecution of the three would also have been wrong since until proven guilty, they enjoy the presumption of innocence.

Yes, this Sona was decent. Still, the President did leave out a lot of things. There was no mention for a second straight year of the Ampatuan massacre case and whether he can promise its conclusion during his administration. There too was no mention of the Freedom of Information law which he promised to support when he was campaigning. Likewise, there was no promise to repeal EO 464 which prohibits the appearance of Cabinet officials before legislative inquiries without permission of the President. There too was no policy direction on why he is not supportive of efforts to extend the life of Carper, or the Comprehensive Agrarian Reform Law which expired this year. And while I am sure foreign policy prudence was behind the absence of the West Philippine Sea issue in the Sona, the President should have assured the nation that we continue to be ever vigilant in the defense of our national territory.

I twitted during the course of the Sona that when all else failed, the President invoked the name of his dearly departed parents and resorted to tried-and-tested tears. That was the highlight of the Sona. For as he parries criticisms of the DAP, the President invoked the imagery of the democracy icons – his parents. He repeated their words that “the Filipino was worth dying for”. What he omitted is the fact that Filipinos are in fact, dying: from extralegal killings, enforced disappearances, torture, war crimes, and hunger.

But heck, a speech is to inform and entertain. The tears and the croaking voice was good entertainment giving the hottest telenovelas a run for their money.

Ultimately, what was lacking in his Sona was typical PNoy: what will he do for his last two remaining years in office? His omission of any agenda for the remainder of his term sends the message henceforth, that it’s all about who will succeed him in office. But the more than 700 days remaining in his term deserves an agenda which he should have discussed in his second-to-the-last Sona. The fact that he lacked a road map for the remainder of his term is confirmation that as usual, his governance will be reactive to everyday events rather than attempting to influence how the days will go by.

Oh well, it was a decent Sona. Let’s hope for an equally decent last two years of the PNoy administration. Meanwhile, as Ellen Tordesillas suggests, let’s find ways to both survive and be amused during the last two years of this President’s term.

MH17 and war crimes


The shooting down of Malaysian Airlines 17 over the territory of Ukraine should indeed be a source of great alarm. To begin with, airline travel has toady become the primary mode of transportation for passengers. I log in no less than 50,000 miles per year because I am engaged in the practice of International Law. The 11 million Filipino diaspora worldwide rely on air travel to reach their place of work and to return to their loved ones here in the Philippines. In fact, the three Filipinos based in the Netherlands who perished in the ill-fated flight were part of that diaspora. The concern is if a civilian airliner could accidentally be fired upon by a surface to air missile in an area with an armed conflict, no air passenger is in fact safe today.

The incident, under existing air travel conventions, should primarily be investigated by Ukrainian authorities. This is because Ukraine remains sovereign over its airspace. This is part of its territory. But even if this is the case, the shooting down of a civilian airliner is a concern for the entire international community. This is because the shooting incident is a grave breach of the non-derogable norms of the laws and customs of armed conflict, International Humanitarian Law. Under this law, combatants and fighters must at all times distinguish between civilians, as protected individuals, and other combatants and fighters. The rules say that civilians must not be the object of attack. This is in line with the avowed purpose of the law, which is to spare civilians and other protected persons, of the adverse consequences of an armed conflict. This is why the Geneva Conventions, the treaty that restates the norms of International Humanitarian Law, remains today to be the only universally ratified convention in our planet.

Why is International Humanitarian Law (IHL) applicable to the incident?

It is applicable since there is an armed conflict in parts of Ukraine where pro-Russian separatists have taken up arms with the goal of either creating a new state, or to be reunified with Russia. IHL is applicable to both international and non-international armed conflicts. Here, the rules applicable appear to be those for non-international armed conflicts since it is uncertain if the support given by Russia to the separatists is sufficient to ‘internationalize” the conflict. Thus far, it appears that the separatists, while armed and financed by Russia, do not appear to be under either the effective or over-all control of Russia. In any case, the duty to distinguish between combatants and civilians is a positive obligation of all fighters regardless of the type of conflict.

So how does the application of IHL affect the incident?

In many ways. To begin with, the investigation, apprehension, prosecution and punishment of all those behind the shooting become the concern not only of Ukraine, but the entire international community. In fact, their apprehension and punishment under the doctrine of au dudire au adjudicare are an obligation of all states. Russia hence, must take steps, as do Ukrainian authorities, to investigate the incident and ensure their prosecution and punishment. In default of this duty, Russia is under a positive obligation to surrender the suspected perpetrators to the jurisdiction of a third state that is able and willing to prosecute them.

International precedents have also treated attacks on civilians also as threats to international peace. IHL, or jus in belo, is distinct form the law that determines the legality of the use of force, Jud ad bellum. Under the latter the UN Charter provides that the use of force is illegal save in instances of self-defense or when authorized by the UN Security Council itself. The Security Council, in turn, has characterized the duty of states to turn over suspected perpetrators of attacks against civilian airlines as a binding obligation of UN member states. This was why Libya had to later create a fund to indemnify victims of the Lockerbie incident where a Pan-American airline 747 was shot down in the airspace of Lockerbie, Scotland. Libya initially invoked the provisions of the Montréal convention to argue that it should exercise jurisdiction over the suspected Libyan bombers, but the Security Council, weary of a moro-moro, said that Libya should turn over the suspects to United States authorities, the flag state of Pan Am. Libya’s initial refusal to turn over the suspects became the grounds for the imposition of economic sanctions against it for a very long time. In fact, the sanctions were only lifted shortly before the ouster of Khadafy and after it agreed to put up the fund to indemnify the victims.

Apart from the duty to investigate and prosecute, can Russia incur additional responsibility for the incident?

This would depend on whether evidence can be presented to prove that the separatists are in fact acting for and on its behalf. In the case of the contras that were financed and used by the Americans in attempting to topple the then Sandinista regime in Nicaragua, the International Court of Justice said that the mere training and funding do not make the acts of the contras attributable to the United States, The Court said that it must be shown that the contras were under the effective control of the Americans so that their acts could be attributed to the latter; this means that all the acts of the contras should be shown as undertaken upon orders of the American. This is a very high threshold.

This is probably why the International War Crimes Tribunal for the former Yugoslavia formulated an alternative test known as the Over-all Control test. Under this test it need only be shown that the third state shared the same military objectives as the armed insurgents, even if the daily course of battle is not dictated by the third state. The problem is that the ICJ in a later case of Bosnia vs., Serbia ruled that the correct test should still be the higher Effective Control test. Currently, it is uncertain which test should apply. Maybe the ill-fated MH17 incident will provide the answer.

Petitioners file Motion for Partial Reconsideration of SC decision on DAP


P-Noy cannot augment funds for approved government projects, activities and programs (PAPs) in the annual General Appropriations Act (GAA) through his controversial Disbursement Acceleration Program (DAP) beyond what he had originally recommended to Congress.

To allow him to do so violates the mechanisms for checks and balances provided in the Constitution and opens the budget process to abuse, according to   defeated senatorial candidate Greco Antonious Beda Belgica, one of the main petitioners in the case.

Belgica, through his lawyers Harry L. Roque, Jr., Joel Ruiz Butuyan and Roger R. Rayel of the Roque and Butuyan Law Offices, filed yesterday a Motion for Partial Reconsideration of the Supreme Court’s earlier ruling striking down cross-border transfers of funds made by the Office of the President through the DAP.

He said there is a need for a definitive ruling from the Supreme Court on the power of the President to augment the funds to cover a deficit in a program for which public funds had been earmarked under the annual appropriations law.

He said that under the DAP, President Aquino in many occasions augmented or added funds from government savings for projects in amounts that exceeded many times the originally funding for them under the GAA.

“To do so would mean giving the President more money for a project that he failed to properly assess and evaluate how much it would cost to implement,” he said in his 23-page motion. “ To allow him to use more money than he initially determined would be required for a certain project would be to disregard the process of budgeting required to be observed under the law.” As proof of this, he cited the following:

 

  • The DREAM Project of the Department of Science and Technology under the 2011 budget (R.A. No. 10147) with an augmentation of One Billion Six Hundred Million Pesos (P1,600,000,000.00).[1] A check with Republic Act No. 10147 disclosed that the project referred to by the Office of the President only had a total appropriation of Five Hundred Thirty Seven Million, Nine Hundred Ten Thousand Pesos (P537,910,000.00) under the category of Maintenance and Other Operating Expenses (MOOE). How could a P537,910,000.00 appropriation be augmented by almost three times such amount, that is, P1.6 Billion for a total expenditure of P2.137 Billion?
  • The same thing is true with respect to the second item wherein the total appropriation under R.A. No. 10147, p. 711, under Section A.II.a is P8,003,000.00 comprising of P5,975,000.00 for Personal Services and P2,028,000.00 for MOOE. Yet, this was “augmented by P300 Million, an amount more than twenty six (26) times the original appropriation.
  • The Repair/Rehabilitation of the PNP Crime Laboratory under R.A. No. 10147, p. 502 under Section A.III.a.1.a on “Conduct of operation and other related confidential activities against dissidents, subversives, lawless elements and organized crime syndicates and campaign against kidnapping, trafficking of women and minors, smuggling, carnapping, gunrunning, illegal fishing and trafficking of illegal drugs.” Clearly, the activity to be funded is a operational activity and not a capital outlay. However, the “augmentation” expense of P3,255,837,000.00 is one for capital outlay for the “Repair/Rehabilitation of the PNP Crime Laboratory.” What is worse is that out of the P48,152,488,000.00 total appropriation for the item under Sec. A.III.a.1.a, P47,476,814,000.00 was for Personal Services while only P675,674,000.00 was for MOOE. There is no appropriation for capital outlay. Thus, there existed no appropriation that the Office of the President could latch on to for this particular “augmentation.”

 

He also attacked recent proposals made by some sectors sympathetic to the President on the issue that the DAP expenditure by the President may be justified under Section 49 of Book VI of the Administrative Code of 1987. The provision reads in part thus:

Section 49. Authority to Use Savings for Certain Purposes. – Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President:

xxx

(9) Priority activities that will promote the economic well-being of the entire, including food production, agrarian reform, energy development, disaster relief, and rehabilitation;

(10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities;

xxx (Emphasis supplied)

 

However, Belgica said through his lawyers that the very same provision requires that the obligations being funded from savings be “incurred during a current fiscal year or previous fiscal years.”

 

This, it can only refer to PAPs with existing appropriation covers and to those unpaid obligations of the previous years, especially contingent obligations that became due and demandable only during the current fiscal year as borne by the enumeration in the cited provision, he said.

 

Belgica took issue with the Supreme Court’s characterization of the government’s budget process as descriptive rather than normative, charging that to do so ignores the constitutional requirement found in            Section 15 (1), Article VI of the 1987 Constitution requiring that the “form, content, and manner of preparation of the budget shall be prescribed by law.”

 

“Thus, and with due respect, to characterize the budget process as merely ‘descriptive, not normative’ and to propose a different ‘treatment of departments and offices granted fiscal autonomy’ is to demean the legal significance thereof as if the process described is merely directory and not mandatory,” he said.

 

[1] Consolidated Comment, par. 33.