Manila summit


The Center for International Law, a civil society organization that promotes the binding nature of international law in the Philippines and in Southeast Asia, with support of the Konrad Adenauer Stiftung, has been holding a three-day Manila summit on Judicial Integrity and Accountability.

Keynote speaker was Justice Michael Kirby of the Australian High Court, the highest court there, who discussed the Bangalore principles on Judicial Integrity. These principles include, among others, independence, integrity, and probity of judges.

I then delivered a paper on lessons learned from the conviction of former Chief Justice Renato Corona. For the first time, I divulged that the decision to impeach and convict Corona was an order emanating from President Benigno Aquino III after he suffered a string of losses before the Supreme Court. This decision came after his initial position that despite Corona accepting an unconstitutional appointment as Chief Justice from President Gloria Arroyo that he would work with him in order to prevent a “constitutional crisis”.

I divulged for the first time a telephone conversation I had with PNoy in relation with the plagiarism of Justice Mariano Del Castillo when PNoy, before his string of losses, rejected my suggestion to support the impeachment of Del Castillo precisely to avoid a “constitutional crisis”. Obviously, such a concern was jettisoned a year into his administration when the Supreme Court declared the Truth Commission and other policy initiatives of PNoy as being unconstitutional. While I argued that Corona’s conviction for failure to declare $10 million was indeed a legal ground to remove him from office, the motivation for his ouster was nonetheless to undermine the independence of the Supreme Court.

DCA Raul Villanueva, for his part, announced that the Sereno Court was serious in purging misfits from the ranks of the Judiciary as exemplified by the removal of Sandiganbayan Justice Gregory Ong because of his dealings with PDAF queen Janet Lim Napoles. He underscored that this seriousness is why the Court did not require direct evidence of malfeasance before dismissing a judge.

Yesterday Marites Vitug talked about her book “Shadow of Doubt” and expressed the hope that the Supreme Court would be more transparent in its dealings with the public.

She noted that the Court has refused to disclose the SALNs of the Gods of Padre Faura, even if it has authorized the relapse of the SALNs of the Sandiganbayan justices. She also noted that there were no statistics available on the caseload of the Justices so that the public can know who among them comply with the time frames required by the Constitution to resolve pending cases before them.

After Marites, Dr Ana Maria Tabunda of Pulse Asia discussed the public perception of corruption in the Philippines. According to her, there is a slight decrease in the number of respondents saying they have had experience with corruption, from 29 percent to 14 percent from 2003 to 2009. However, 81% of those who said yes said they did nothing about it. The good news though is that 70% of the respondents said that they did not see corruption as in any way justified.

Most interesting in the Pulse Asia Survey report was the fact that PNoy’s flirting with a second term through a constitutional change was responsible for the public’s rejection of the “Daang Matuwid” slogan of this administration. According to her, the slogan would be a kiss of death in 2016 because the very floating of a second term for PNoy was seen by the public as a betrayal of the promise to pursue the right path.

Having been an academic for the past 15 years and after attending at least a hundred conferences, I have to say that this summit on Judicial Integrity and Accountability has been one of the very best conferences that I have been to. The only regret I have is that the Supreme Court rejected our invitation to be a partner of this conference. It would have greatly beneficial to our Judges and Justices to have heard he insights of the world’s most respected Jurists who also include Dato Param of Malaysia, the UN Special Rapporteur on Independence of Judges for whom the International Court of Justice rendered an advisory opinion that UN Rapporteurs enjoy functional immunity. This was an advisory opinion after Malaysian Premier Mahathir sued Dato Param for libel after he called the Malaysian judiciary “corrupt”.

Oh well, maybe soon, we will have a more transparent and more open Judiciary.

Justice Kirby took time out to do a side lecture at the UP College of Law on “marriage equality”. J. Kirby is an openly gay man who has been in a relationship with the same man for the past 45 years. It was his learned opinion that love is personal and that at some point, jurisdictions such as the Philippines and Australia, both of which do not recognize same-sex unions, would. A majority of the students present voted that the Philippines would eventually allow same-sex unions.

This post first appeared in http://manilastandardtoday.com/2014/12/05/manila-summit/.

The Sol-Gen’s defense of EDCA


It was Florin Hilbay’s first appearance as acting Solicitor-General last Tuesday when he defended the Enhanced Defense Cooperation Agreement before the Supreme Court. Unlike petitioners who divided the issues identified by the Court amongst five speakers, Sol-Gen Hilbay defended EDCA alone. As a former Associate of Retired Justice Vicente Mendoza, it was expected that Hilbay would highlight what he probably thought were the insurmountable hurdles to justiciability.

On top of his argument was that none of the petitioners is an incumbent member of the Senate who is complaining that their discharge of their official functions, such as giving concurrence to treaties, was violated.

Outside of technical objections, Hilbay argued that the President’s decision to enter into the EDCA was an inherent discharge of his executive powers as chief architect of foreign relations. He also said that the President entered into the EDCA as part of the Chief Executive’s power to ensure the security of the public, especially against the threat of modern-day terrorism.

On the crux of the controversy, Hilbay argued that EDCA was a mere executive agreement which fixes the details of the earlier signed Mutual Defense Treaty and the Visiting Forces Agreement. He emphasized that the “pivot to Asia” was not a new policy but one that merely reallocates US forces into Asia. He highlighted that the EDCA, as an Executive Agreement, does not authorize the Americans to perform acts, which have not been previously authorized by both the MDT and the VFA. In fact, according to him, unlike the earlier Military Bases Agreement where the US bases were deemed to be the “extension of the territory of the United States, the EDCA does not authorize ‘extra-territorial’ exercise of jurisdiction.” According to him, under EDCA, the military bases shall continue to be part of Philippine territory and that the Americans cannot engage in any form of activity without the consent and approval of Philippine authorities. He emphasized that “operational control” of the Americans only applied to the construction of facilities, but Philippine authorities would have full control over all “agreed locations” where the US would be allowed to preposition defense equipment and supplies, as well as deploy troops on a rotational basis.

As to be expected, the Acting Solicitor-General had his baptism of fire. Justice Marvic Leonen was unrelenting in his queries. He started by discussing Article 7 of Article XIII of the Constitution and asked the same questions he asked of me: whether there ought to be a difference between a treaty and an international agreement, both of which require the concurrence of the Senate. Then he inquired on the prohibitory nature of Section 15 of Article XVIII and elicited Hilbay’s agreement to my position that the same is lex specialis. Where he differed is his assertion that Section 15 applies only to permanent bases and not to the presence of troops and facilities. The latter, he argued, were already within the coverage of the VFA.

Justice Leonen grilled Hilbay on the fact that in the case of Medellin vs. Texas, apparently, the EDCA does not have the force and effect of law under the laws of the United States. Under the case cited by Leonen, treaties can only have the effect and force of law in the US if the treaty itself is self-executory and if a statute implements it. In this regard, Hilbay insisted that the VFA has been declared constitutional at least three times in three separate petitions filed substantially by the same parties. He also said that Leonen’s reading of Medellin was the mere dissenting view of J. Antonio Carpio.

Leonen then compared the language of the EDCA and the rejected Military Bases Agreement of 1991. He noted that contrary to the position of the Sol-Gen, it appears that even under the rejected treaty, the Philippines also had the right to approve all activities of the Americans. This, in my mind, was a very strong point against the position taken by Hilbay as a comparison of the text of EDCA and the MBA would indeed show that Philippines has always maintained its right to approve all activities of the Americans in our territory.

Justice Carpio took the same stance as he did when I argued last week. He was able to get a concession from Hilbay that while the US has always had a treaty obligation to come to our assistance in case any of our islands are attacked, it refused to come to our assistance when both the Scarborough and Mischief Reef were forcibly taken from us by China. He agreed with J. Carpio that in reality, the EDCA ad the MDT are not guarantees that the US will come to our assistance should our islands in the West Philippines Sea be attacked by China, simply because the US has always taken the stand that they “do not take sides in the on-going island disputes” in the West Philippines Sea.

Justice Teresita De Castro, for her part reiterated that Senate concurrence is necessary if we are to exercise jurisdiction over US military personnel. She noted the country’s generosity when we agreed that the US can use our facilities free of rent.

The parties were then given 20 days from Tuesday within which to file their respective memorandum. After which, the Court is expected to rule on whether the petitioners were successful in proving “grave abuse of discretion” when the President entered into the EDCA.

It’s not fun to be a columnist and an advocate. You’re dying to take sides and should not. Darn!

This post first appeared in http://manilastandardtoday.com/2014/11/28/the-sol-gen-s-defense-of-edca/.

Oral arguments versus EDCA


The Supreme Court heard oral arguments yesterday on why the Enhanced Defense Cooperation Agreement is unconstitutional. There were five petitioners who argued: Former Senator Rene Saguisag, who made opening statements; Dean Pacifico Agabin who discussed issues of justiciability and standing; I discussed the crux of the petition, that is that EDCA allows the presence of foreign troops and facilities without a Treaty duly concurred n by the Senate; Rachel Pastores who argued that EDCA is for all intents and purposes, a bases agreement; and Evalyn Ursua who discussed all other issues.

The hearing took almost four hours with questions from Justices Bernabe, Leonen, Carpio, De Castro, Perez and Chief Justice Sereno.

The most asked question was whether instead of declaring the EDCA as unconstitutional, the court could order the President to transmit it instead to the Senate for concurrence. Both Dean Agabin and I did not interpose any objection to this possibility. I did underscore though that since the language of the prohibition against the presence of military bases, troops and based is prohibitory in nature, the fact that EDCA is being implemented without compliance with the imperative condition that it be pursuant to a treaty concurred in by the Senate, this means that EDCA is null and void. I suppose the Justices were concerned that an outright declaration of unconstitutionality would affect our bilateral relations with the US and may prejudice the President’s power to deal with security threats in the country. I personally think that a referral of the EDCA to the Senate would mean a victory for the petitioners. This is because it is precisely our submission that foreign troops, bases and facilities could only be allowed pursuant to a treaty duly concurred in by the Senate.

Justice Carpio made a very interesting point. He said that while collective security treaties, such as the Mutual Defense Treaty, are legal, the US has breached its obligation to come to our defense twice : when China took from our possession both Mischief Reef and the Scarborough Shoal. He then asked me what advice I would give to the President relative to the west Philippine Sea dispute: I said, build our own defense capability, build alliances with out neighbors, or strengthen our ties with the US, among others. I answered all of the options except for strengthening our ties with the US since China already views us as a mere lackey of the US, I explained that with the billions of pesos that we have lost in PDAF and DAP, we could already afford the cost of modernizing our navy. I am unsure though until now what Justice Carpio was leading to since he ended his interpellation by observing that China has also been aggressive against Vietnam despite the latter’s staunch independent foreign policy.

Justice De Castro, a former State Counsel in the DOJ and former chair of the task force on jurisdiction when the US- Philippines bases agreement was still in force, asked why treaties have the force and effect of law. I responded that it was precisely because the legislature, through the Senate, gave its concurrence. She concurred and observed that the Senate needs to concur because the presence of foreign troops in our country normally requires a treaty to ensure that we can exercise criminal jurisdiction for non-service related offenses.

For his part, Justice Leonen inquired on the textual provision of section 21, Art. 8, which requires that treaties and international agreements require Senate concurrence. He asked me if I could make an alternative argument that EDCA is an international agreement that also requires Senate concurrence. I believe my answer to the question was that EDCA cannot be an international agreement because Sec. 25 of Art 18 applies specially to the presence of troops, facilities and bases in the country. Accordingly, the requirement is that the EDCA be in the form of a treaty. I’m not sure if I was correct in this assertion but the language of the Constitution appears to support my submission.

Atty Rachel Pastores, the most junior of the lawyers who argued for the petitioners, took a beating particularly from the Chief Justice who argued that we should give EDCA a try given that the AFP itself admits to short-term operation difficulties. In any case, Atty Pastores, despite the barrage of questions, stood her ground and invoked the duty of Filipinos to defend national sovereignty.

Asked by the media later if the questioning of the Justices was reflective of how they would rule, I had no problems in declaring that my experience has been that there is no correlation between the questions of the Justices and how they vote. I cited the example of the Chief Justice whose questioning in the oral arguments against the Cybercrimes Prevention Act appeared adverse to the petitioners. She later dissented and wrote an opinion declaring the law as unconstitutional.

United Nations (UN) Free speech special rapporteur in dialogue with families of massacre victims


Invitation for Media Coverage
Center for International Law (CenterLaw)
For Reference: Harry Roque, Jr: 09175398096

Prof. David Kaye, the new UN Special Rapporteur on Freedom of Opinion and Expression, will hold a dialogue by video link with widows of the Maguindanao Massacre today at 1:30 pm at the Sta. Ana Room, 3/F of the University of the Philippines College of Law.

The dialogue will be moderated by Prof. Harry Roque, Jr. chair of the Center for International Law and lead counsel for the families of 15 victims of the massacre.

As Special Rapporteur, Prof. Kaye seeks to bring to the attention of the UN key issues on free expression around the world, including the safety of journalists, internet censorship, electronic surveillance, hate speech and incitement to violence.

The video-link is therefore both significant and historic as an activity to commemorate the 5th anniversary of the Maguindanao Massacre, which has been described by international groups as the single worst attack on a free press in recorded history.

For a background on Prof. Kaye, click http://www.law.uci.edu/faculty/full-time/kaye/.