UNITED NATIONS: PHILIPPINE LIBEL LAW ILLEGAL


Savioli: Committee should have asked RP to repeal its libel law

The Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights”, or freedom of expression. This was the View expressed by the Human Rights Committee in a View adopted during the 103rd session of the UN Body. The Committee is a treaty monitoring body created by the Optional Protocol of the International Covenant on Civil and Political Rights. It has power to declare that a State party to the Convention is in breach of its obligations as provided in the Covenant.

The View was expressed in a complaint filed by Davao based Alexander Adonis who was jailed for more than two years pursuant to a conviction for libel . In his radio broadcast, Adonis read and dramatized a newspaper report that then Congressman and former Speaker Prospero 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. Davaoenos  have since referred to this 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 decided that Adonis was guilty of “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 that the  sanction of imprisonment for libel meets 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..

In ruling in favor of Adonis, the UN Body ruled 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”

As counsel for Adonis in the UN, I believe that the  Committee’s view is  a very big win for freedom of expression. It’s a step towards the right direction where no person should be held criminally responsible for the exercise of a cherished freedom. Hopefully, President Noynoy Aquino’s administration  will 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, Salvioli argued that  “ 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 Human Rights that criminal liable infringes on freedom of expression.

Published in: on March 22, 2012 at 10:21 pm  Leave a Comment  
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Testimonies and human experience


 

  

Yes, Demetrio Vicente, the first substantive witness for Chief Justice Renato Corona, appeared to be credible. He answered questions candidly and his demeanor suggested he was telling the truth. The problem though is his actuations notwithstanding, his testimony runs contrary to both logic and human experience.

Defense lawyers presented the testimony of Vicente to prove that at least one property, real estate in Marikina which until today is registered in the name of the chief justice and/or his wife – was not declared in the Corona’s Statement of Assets, Liabilities and Net Worth and Liability because it no longer belonged to the chief magistrate. He testified that he purchased the property from the wife of the chief justice way back in 1990. He claims too that he has lived in his property as in fact, no less than Ombudsman Conchita Carpio-Morales can allegedly attest to this. He then explained that he has not transferred the property to his name because he did not have the money to pay for transfer taxes.


Huh? Vicente can afford to pay for the property, which cost more than a million pesos, and yet, he cannot afford to pay transfer fees in the amount of P2,500? Come on!


Add to this the fact that while he claims to have consistently paid for the real estate taxes on the property, records indicate that all such payments were still in the name of Mrs. Corona. Likewise, Vicente took no steps to annotate the sale in the title of the property itself. This, and not the Deed of Sale allegedly executed by Mrs. Corona, is the best guarantee against a double sale pursuant to the rule that buyers of real estate need not go beyond what appears on the title of the property.


Worse, and I commend Senator Ralph Recto for his insight in this regard, is the fact that while the Coronas allegedly sold the property in 1990, it was still declared in Corona’s SALN in 1992! Under the rule on estoppel, Corona cannot wiggle his way out of this admission that the alleged 1990 sale notwithstanding, he remained the owner of the property.


In any case, the law on SALN requires all officials to declare all property in their names, including all those held in trust by them for others. Chief Justice Corona should know this.


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It’s a case of answered prayers. I’m referring to the filing of murder charges against former Governor Joel Reyes for the murder of Palawan broadcaster Dr. Gerry Ortega.


Department of Justice prosecutors originally dismissed charges against the former governor for alleged lack of evidence. The first panel that investigated Reyes insisted that the testimony of Rodolfo Edrad, Jr. that it was the ex-governor who paid him to plot the killing of Ortega required corroboration.


This time around, the second panel of prosecutors, considering additional evidence submitted, such as text messages between Edrad and Reyes, as well as recorded broadcasts of Doc Gerry accusing Reyes of malversation of the Malampaya funds, determined the existence of probable cause. According to the second panel, the text messages between Reyes and Edrad belie the claim of Reyes that he did not know the latter. Furthermore, the panel ruled that the radio tirades of Doc Gerry against Reyes were sufficient motive for the broadcaster’s murder.


This second ruling would not have come about had it not been for Secretary Leila de Lima’s decision to re-open the preliminary investigation of the case. This she ordered despite her repeated insistence to recuse herself from the case because she acted in the past as election lawyer of Joel Reyes.


I could imagine that the decision to re-open the case was particularly difficult for the Justice Secretary because of her close ties with the respondent. But to her credit, the re-opening of the case led to the introduction of new evidence that proved sufficient to file the charge of murder against Reyes. Indeed, Secretary De Lima is the personification of political will in the fight against impunity.


Kudos too to the late NBI agent Atty. Rosauro “Ross” Bautista. Ross passed away last January. It was he who directed the investigation of the Ortega murder. During the investigation, I was in constant communication with him almost on an hourly basis. I was a witness to his integrity and competence which in my mind, should be the standard observed by all investigators of cases involving extralegal killings. Without the proven dedication of Ross, I doubt if this second decision of the DOJ prosecutors would have been possible.


The next challenge is to convict the suspects at the soonest time possible.


Published in: on March 15, 2012 at 9:51 pm  Comments (6)  

SC allows civil case to proceed vs Chinese firm over Northrail project


SC allows civil case to proceed vs Chinese firm over Northrail project.

Published in: on March 8, 2012 at 4:22 pm  Leave a Comment  
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PNOY’S HUMAN RIGHTS RECORD


 

NOY’S HUMAN RIGHTS RECORD

Geneva, Switzerland. The Philippines will be the object of the Universal Periodic Review (UPR) in May of this year by the United Nations Human Rights Council. The Council is a body composed of 47 states tasked with the protection and promotion of human rights. The Council seeks to achieve its purpose through this periodic review, where states are asked by other states on the level of their compliance with human rights norms. This in turn is premised on the assumption that no state would want to be declared to be in breach of its human rights obligations. It also works through expert rapporteurs, both thematic and country specific, whose function is to conduct investigations to determine states’ compliance with their obligations.

As an adherent of humanitarian law that utilizes penology as an enforcement mechanism, I have been critical of how the UN implements human rights through this shaming machinery. But I had a different insight into the human rights mechanism when I saw it up close. To begin with, the world’s civil society is active here to ensure that non-compliant states are in fact shamed to the fullest. Further, one certainly gets the sense that with all states dutifully attending the many meeting of the UN here in Geneva, states do abhor the prospect of being branded as a violator. Judge Rosalynn Higgins said it succinctly: while violations of the rights of human beings are rampant, states will opt to deny that their conduct violate these rights and will instead argue that their conduct is either compliant or justified. She cited the case of torture. Amnesty International, who together with the German Action Network Human Rights-Philippines, are my hosts here- has once declared that almost all states commit torture. And yet, not one state will acknowledge this and all will still maintain that torture is illegal.
Why am I here? To participate in a side event to discuss human rights under P Noy and to lobby states to question the Philippines why extralegal killings (ELK’s), torture, and enforced disappearances (ED’s) persist.

I argued that extralegal killings, torture and enforced disappearances continue even now because their perpetrators have not been investigated, prosecuted and punished for their acts. Here, I traced the problem to a breakdown in the country’s pillars of its criminal justice system. First, the police do not know how to investigate. A recent study revealed that 8 out of 10 policemen are not trained and are hence incompetent to investigate crimes. There too is the PNP procedure that seeks first to identify the perpetrator of a crime before gathering and processing of physical evidence. Worse, in almost all the heinous crimes that I have been involved as a private prosecutor: the Maguindanao massacre, the Evangelista torture case, the Tanauan massacre, the Bicutan siege, to name only a few, policemen are the perpetrators of these crimes. How can they investigate themselves?

Second, the National Prosecution Service has failed to prosecute. The Perreño report commissioned by the Asia Foundation revealed that their conviction rate for Elk’s and ED’s is a measly  1% . Over-all, no less than the President has said that their conviction is a low of 14%. There may be many reasons for this -including lack of resources and manpower. But what appears to be obvious for now is their adamant refusal to be involved in the investigation of these crimes is responsible for their low conviction rate. Under human rights law, it is the state, acting through the police and the prosecutors, who must investigate and hence gather the evidence to meet the minimum threshold of evidence.

The Courts have at least, through former Chief Justice Reynato Puno, acknowledged that it is also in breach of their duty to protect and promote the right to life. This is due to the perennial problem of court delays and even the incompetence and lack of integrity of some of our Judges.

The decision to make the presentation here was not easy to make. I have been supportive of the administration of P Noy and make no apologies for it. But I opted to attend and am currently even lobbying the international community to confront the Philippines with the issues of ELK’s, torture, and ED’s for two reasons: one, a belief that true friend of an administration should not just sing odes of praise.  A friend should commend when it is deserved, and should criticize, when necessary. This is   not to overthrow it, but for it to become better. Secondly, I am here because you and I could be the next victims of these crimes.

 

 

 

 

Published in: on March 7, 2012 at 5:52 pm  Comments (5)  
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A MOOT WITH REAL VICTIMS


A MOOT WITH REAL VICTIMS

It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.

For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.

But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.

I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.

Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include  both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he  will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.

I also commend the Philippine Association of Law Schools Deans under the able leadership of its  President,  Dean,Amado Valdez and its Chairman, Dean Perry Pe,  for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the  best in the history of Jessup in the Philippines.

Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction

Published in: on February 29, 2012 at 2:22 pm  Comments (3)  
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Rape and probable cause against Del Castillo


Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.

Published in: on February 23, 2012 at 2:19 am  Comments (2)  
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Corona’s (not so) secret account


 

The crown's dollars

 

I expected Annabelle Tiongson, manager of the Katipunan Branch of PSBank, to do as she did. Why shouldn’t she? As Niñez Cacho-Olivarez reported, the bank document that formed the basis for the prosecutors to subpoena Chief Justice Renato Corona’s dollar account at PS Bank came from Tiongson herself. Had the Senate ignored the court ruling enjoining the opening of this dollar account, Tiongson would have been the Clarissa Ocampo of this impeachment trial. But because the Senate honored the Court ruling, the best course of action for her was to deny its authenticity.But should the nation believe her hook, line and sinker?

Of course not. To begin with, no less than Corona, by seeking an order from his colleagues at the Supreme Court to restrain the opening of his dollar account, has himself admitted that the said exists. If it is but a figment of the prosecution’s imagination, as the defense would want us to believe, what is there to be restrained by the Court? Any which way, the mysterious dollar deposit works in favor of the prosecution, and courtesy of the CJ’s actuations at that.

There is  a presumption in our rules of evidence that he who suppresses the presentation of evidence does so because it is against him. Here, the chief justice’s insistence on secrecy can only be because the existence of the dollar account will prove anew that he failed to declare his dollar deposit in his SALN.

In any case, the PSBank dollar account is only icing for the prosecution. What is undeniable now is that Corona did not declare a total amount of P31 million cash in his SALN. The defense insists that SALNs are subject to correction. Cuevas should tell that to the court interpreter in a Regional Trial Court in Davao who was fired because he failed to declare in his SALN a market stall. Said the Court “We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the Judiciary x x x Personnel in the Judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency.”

I guess Corona believes that the high ethical standards can only be demanded from lowly court employees and not from the Chief Justice himself.  It is obvious that in Corona’s mind, being primus inter pares, or the first amongst equals, is tantamount to a shield of immunity even for criminal acts.

And lest we forget, the undeclared 31 million in cash is over and above the real estate property that he also failed to declare in his SALN. There were at least three pieces of real estate property that he failed to declare: a condominium unit in Spanish Bay Tower, another unit in Makati at the Columns, and a lot in McKinley Hills. There too is the undervaluation of the Bellagio unit by at least 24 million pesos. Altogether, Corona, the Honorable magistrate, did not declare a total of at least P65 million worth of property.

The question is why. Well, the sage and statesman Jovito Salonga, when he wrote the law requiring the filing of truthful SALNs, knew that property which is not proportional to a public official’s salary is presumed ill-gotten under another statute, the unexplained wealth act. Need we say more?

Perhaps Corona should heed the ruling of his own Court. In another ruling ordering the dismissal of a regional revenue officer for failing to disclose two cars in his SALN, the court said: “(T)he SSAL (sworn statement of assets and liabilities) is not a mere scrap of paper. The law requires that the SSAL must be accomplished as truthfully, as detailed and as accurately as possible  x x x  It serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government.”

 

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Published in: on February 16, 2012 at 7:20 am  Comments (4)  
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Impunity for Nazi crimes


Forced Labor during WW IIThe International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it  declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

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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Published in: on February 9, 2012 at 6:49 am  Leave a Comment  
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Probity and discounts


Sometimes, a fumble can lead to a win. This was what happened two days ago at the Senate in the impeachment hearing of Chief Justice Renato Corona. On Monday, we were enthralled by a declaration that the chief justice was given a whopping 40-percent discount amounting to P10 million by Megaworld. I was then an invited commentator at DZMM. Just out of curiosity, I went online on my iPad and typed “Megaworld and Corona” in Google search. Lo and behold, there it was: Megaworld vs. Judge Cobarde, a decision penned by no less than then Associate Justice Corona which was a P25 million win for the company.The case of Cobarde arose from a complaint filed at the regional trial court for almost P30 million in unpaid brokers fee for the sale of a resort beside Shangri-La hotel in Mactan Island. In the course of the proceeding, the parties entered into a compromise agreement whereby Megaworld agreed to pay the complainant almost P30 million. There was in fact a partial payment of about P5 million, leaving a balance of about P25 million. Later, Megaworld commenced proceedings to vacate such a judgment based on a compromise agreement. This kind of  a judgment is normally immediately final and executory. Megaworld lost in both the RTC and in the Court of Appeals. In the Supreme Court, Justice Corona penned the decision reversing the CA and declaring the judgment on a compromise as null and void. It spared Megaworld from paying the balance of P25 million.The year of promulgation of the Cobarde judgment was 2004. Construction of the Bellagio started in 2003 and was finished in 2008. I asked the question: is the P25 million victory related to the P10 million discount? If it is, both Megaworld and Corona could be liable for  violating the anti-graft and corrupt practices act. Bribery is the giving of any consideration in exchange for a favor. Unlike other laws, our anti-graft laws punish both the giver and the receiver.

I was hence not surprised when the following day, the Megaworld marketing director stated that what the company had given the Corona’s was a P5-million price reduction because of water damage sustained by the unit as a result of a typhoon; a further P3 million discount since the consideration was paid within one year, and a further P2 million discount. Now it can be told, it was not a P10-million discount. Just a 5 million discount over and above another 5 million price reduction.

I am of course not concluding anything as of yet. Senator Serge Osmena rightfully demanded from Megaworld evidence of the alleged water damage, as well as evidence of insurance coverage since almost all buildings, finished or otherwise, have insurance against water damage. These will prove if the damage to the unit was in fact commensurate to the price reduction. Anent the discount, I think Megaworld has for all intents and purposes admitted that it gave the Coronas an extraordinary discount since it has previously admitted that normal discounts for cash transactions is only 15 percent of the selling price. If the normal selling price is P24 million, as it claimed, the maximum discount should only have been P3.6 million. Why did Megaworld officials give the Coronas P5 million in discount?

In any case, the material point already proven by the prosecution is that the Coronas grossly understated the value of the Bellagio property since it was only declared as having a value of P6 million. Worse, there was a complete omission of the P14 million cash that they used to purchase the property. Previously, the prosecutors also proved that two other properties, a lot in McKinley Hill and another unit at the Spanish Bay Tower at the Fort, were also not declared in the SALN. Again the reason all public officers are required to file their SALNs annually is to enable the public to inquire whether there has been an increase in a public officer’s assets on a year-to-year basis given that their incomes are fixed by law. If a public officer could not adequately explain how he acquired the additional assets, the law presumes it  to have been ill-gotten.

I am distraught too at Megaworld’s spin in its releases. It claimed that it have lost two cases and won only one case from the Supreme Court. It is always silent on the fact that its victory was worth P25 million and that the decision was penned by Corona himself. It highlights a loss where it failed to collect P5 million, omitting the fact that this involved the same losing party in Cobardo. It also highlights a loss in the case of Tanseco vs. Megaworld where Corona was a member of the division that rendered the judgment.

The point, though, is that a magistrate should be purer than Caesar’s wife. No upright and becoming magistrate should have accepted an extraordinary discount specially from a winning litigant in his own court, moreso if he himself penned the winning decision.

True, the prosecution failed to introduce what it characterized as a 40-percent discount into the records. But that doesn’t matter. What matters is that the people now know the kind of magistrate Corona is.
Published in: on February 2, 2012 at 3:24 am  Comments (7)  
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UN body tells PHL:� Reform your libel laws


UN body tells PHL:� Reform your libel laws.

Published in: on January 28, 2012 at 4:06 am  Comments (2)  
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