VP Binay should succeed


Now that the clamor for P Noy to resign because of the Mamasapano fiasco has found steam, the question asked by many is: who should succeed him? Unfortunately, while the Constitution is very clear that he should be succeeded by Vice-President Jejomar Binay, many muddle the issue by insisting on the unconstitutional option that a council of sorts should succeed.

I add my voice to the many that have warned against an unconstitutional succession. The people, and that includes me, voted for Noy-Bi in the last elections cognizant that should P Noy be unable to serve his full term of office for any reason, then he should be succeeded by VP Binay. While I do not pretend to speak for the millions that installed this Noy-Bi leadership, it was certainly my intention that should the son of democracy scion be unable to discharge the functions of his office- and his incompetence in dealing with the Mamasapano incident and its aftermath have made this very clear- then Binay should succeed. Other than that his succession is etched in the Constitution, why should Binay succeed?

Well, the people, by electing him into the Vice-Presidency, said so. And they said so for many reason. To me, it was because of his proven managerial experience in running Makati for almost three decades and his dedication to the cause of human rights, which he proved as a Mabini lawyer during the dark days of martial law. Sure, there have been talk of corruption against him, including the many things that his former vice mayor has said against him. But the cynical truth is that in this country, corruption has become systemic. This is why despite the fact that his accusers have devoted record legislative hours in their witch hunt against him, people have taken the attacks against VP Binay in stride coming, as they were, from polluted sources themselves. The reality is outside of Ping Lacson who refused to accept his pork barrel (and possibly Joker Arroyo, as well), any senator who received his pork barrel and his DAP are not just presumptively but proven to be corrupt by two Supreme Court decisions invalidating both the PDAF and the DAP as being contrary to the Constitution and as forms of misappropriation of public funds.

Clearly, the botched witch hunt against VP Binay is proof of what our rules of evidence already provides: that evidence to be believed, must not only be believable but must come from believable sources as well. Certainly, talk of corruption from those with proven unclean hands cannot bring a good man down.

But outside of managerial experience and dedication to the protection and promotion of human rights, VP Binay’s profession as a lawyer now comes in handy. Again, while the Constitution does not prescribe any minimum qualification for the Presidency other than being a natural born Filipino, we now know, particularly from the failed PNoy administration, that a President, as chief enforcer of the law, must know the law. Here I cannot help but wonder if a lawyer would have made the same mistake as implementing the DAP or asking a suspended PNP Chief to implement a police operation against a high value target. A lawyer is trained to follow the law. This is why Butch Abad would have the stigma hence of having breached the constitutional separation of powers when as a lawyer, he should have known what the power of the purse meant.

This is why the Ombudsman has said that former PNP Chief Alan Purisima may have usurped authority when he participated in a police action at a time when he was suspended from office. A President who is a lawyer would not have made such basic mistakes. But PNoy, a non-lawyer, did; this despite his battery of lawyers including the Secretary of Justice, the Presidential Legal Counsel and the Solicitor General. Binay, by contrast, as a lawyer should know better.

But perhaps, the best reason for VP Binay to take over now is because he has become a seasoned and astute politician. Again the curse in having what Joker Arroyo described as a “student council” leadership is the lack of savvy to unite conflicting interests towards a common direction beneficial to the country. I myself have never been a politician and cannot see myself working with the likes of those in the close circle of P Noy. But Binay can and he can do so while working at the same time with the Erap camp, FVR’s camp, GMA’s camp and even the far left. Perhaps, it is this quality that we now need the most in a leader. One who like Mao, can make “a thousand flowers bloom” and harness them to a common direction: a strong, prosperous, respected Philippines in the 21st century, rather than a pathetic third world country with lackluster and mediocre political leadership, prone to mendicancy.

Yes, I confess: I can’t wait for 2016 to see Binay as president. Lets make him president now.

Angeles chief prosecutor block evidence of Laude family


Centerlaw Release
References: Atty. Harry L. Roque Jr. (hroque@roquebutuyan.com) and
Atty. Romel R. Bagares 09328798422

Lawyers for the family of the transgender murder victim Jennifer Laude blasted today Angeles City Chief Prosecutor Emilie Fe M. De Los Santos for blocking in open court their efforts to introduce evidence in the prosecution of an American marine tagged for the killing.

“We cannot understand why she should do that,” said lawyer Romel Regalado Bagares, one of the lawyers representing the Laude family. “As the public prosecutor, she should cooperate with the private prosecutors in ensuring that justice is served in this case.”

At the continuation of the pre-trial of the case, the lawyer, with co-counsel lawyer Virgie Suarez and Charlaine Latorre, asked the Court to include in the list of prosecution witnesses the commanding officer of the unit the Accused, Lance Corporal John Scott Pemberton, belonged to at the time of the Oct. 11, 2014 murder.

He also wanted to add to the list of prosecution witnesses the American officer who has custody of Lance Corporal’s service records and the officer in charge of training at the Marine boot camp that Pemberton attended.

De Los Santos however, opposed this. “We wanted to have all corners covered,” said Atty. Suarez. “We did not expect that to come from her, since we are supposed to be on the same side.”

Lawyer Harry Roque, the Laude family’s lead counsel, was not in court today because of a prior commitment to attend a conference on the West Philippine Sea dispute at the Harvard Law School, where he was invited, along with Supreme Court Associate Justice Francis Jardeleza, to speak at a panel.

However, during the arraignment of the Accused on February 23, in the presence of the lawyer, the Angeles City Public Prosecutor tried to prevent him from speaking in court. But the presiding judge, Roline Jabalde, recognized his bona fides in open court as a private prosecutor.

When reached for comment on the latest antics of the public prosecutor, Roque revealed that the private prosecutors have tried several times to reach an agreement with her on how they can work together on the case. “She has refused to talk to us in the most unprofessional way imaginable. She is making it easier for the Defense by doing the latter’s work.”

De Los Santos has publicly declared that she will not allow private prosecutors any lee way in the presentation of the evidence for the criminal aspect of the case. Today however was the first time that she actually prevented the private prosecutors from introducing evidence in court.

“We are constrained to bring this matter to the public’s attention because the public prosecutor herself is blocking cooperative efforts between us to obtain justice for the victim,” said Roque.

Marcosian PNoy


Last Wednesday, 1500 people led by Juana Change were prevented from forming their human chain from Crame to EDSA shrine. Talk about irony. The son of democracy icons doing a Marcosian tactic on the day we celebrate the end of a dictatorship.

What happened to PNoy? He clearly is not the person that millions of Filipinos thought he was when he was given an unprecedented mandate to lead. Mea culpa, as well as culpa of the millions of others who voted for him and ensured his victory in the 2010 elections.

I thought PNoy would stand for good governance and democracy because I had the opportunity to work with him up close in the attempts to impeach PGMA. Of course we expected him to be part of the moral indignation against the bastardization of democracy as evident by the notorious “Hello Garci” tape. His involvement against the cheating, stealing and lying PGMA regime was expected of him because his father died fighting for the restoration of democracy, while his mother ushered in democracy. Clearly, it would have been unforgivable for the son of our icons of democracy to be indifferent to systematic electoral cheating.

PNoy also stood his ground against corruption in the country. The anomalous Chinese-funded projects that became the consideration for PGMA’s sale of our patrimony to the Chinese- initially through the joint seismic exploration with China. This SURVEY  enabled China to confirm its  suspicions that the disputed Spratlys islands and even the undisputed territory of Recto bank contained vast deposits of oil. China has since  been unrelenting and outright aggressive in defending its claims to the disputed and undisputed territories. An energy-starved country with the highest population density in the world is bound to lust after the resources of others. PNoy also stood against this sell-out by opposing the anomalous Chinese projects both in the impeachment complaint against PGMA and when he became Senator in 2007.

With such clear track record, the question now is:  what on earth happened to him ? Yesterday he was a true blue democrat. Today, he would not even allow a crowd -whom he has dismissed as insignificant in number- from doing a human chain on the day we celebrate EDSA 1!

PNoy successfully dispersed and prevented the human chain by ensuring that no one would be able to congregate on EDSA. As early as 5 AM, police blocked off EDSA from all cars and people! This was worse compared to what PGMA did also on a February 25 when she declared a state of national emergency that led to THE ARREST OF Randy David et al while marching along EDSA. This is because PGMA at least allowed everyone else to march along EDSA except for those who were arrested.

PNoy in this year’s EDSA commemoration prevented the people from marching altogether!

Of course I’m shocked. Of course I’m indignant. How dare the scion of democracy destroy that which his own father died for! The same democracy that his own mother defended from putschists. How dare PNoy be the same evil that we stood against in EDSA. And like millions of other Filipinos, I feel utterly betrayed by him and indignant that he has become himself an enemy of democracy.

What was PNoy afraid of? We already know the truth! We know that the blame for the Mamasapano massacre lies with him not only for authorizing his suspended henchman implement a bad plan, but also for refusing to order the military to provide assistance to the beleaguered policemen to ensure the sell-out of Mindanao through the BBL, the handiwork of Black and White movement’s Ging Deles and the rest of the MILF spokespersons.

We know already the truth that he is simply unable to lead- abdicating the functions of his most powerful office to his kaibigans, kaklase, and kabarilan. We already know that other than blaming the previous administration for all the woes of our nation, he was devoid of a platform of government that led literally to a lack of governance under his term. We also know the truth that he does not care for Philippine sovereignty as he has in fact surrendered the custody of a vicious killer who murdered one of us to please mother America. We know too that his eagerness to please Uncle Sam also led to his support to the one-sided EDCA and the death of the SAF 44 even if it is clear that their martyrdom is not worth achieving the US objective in capturing its enemy coddled by the MILF.

So what else is PNoy hiding when he infringed on our rights to speak out? Clearly, the truth has already set the people free!  While he may have succeeded in preventing the human chain  using the same techniques of both Marcos and PGMA, he will not be able to restrain the people’s anger altogether. In this regard, he should learn from the experiences of Marcos and PGMA. Soon, he will be booted out and made to pay for his crimes against the people.

To our comrades on the streets: we may have failed to capture EDSA last Wednesday. But like Don Quixote, we simply need “to rise, brush off the mud and CONTINUE the fight!” Soon, PNoy will suffer the fate of Marcos and PGMA. Only I hope it will be worse. Because unlike Marcos and PGMA, it was only PNoy who betrayed so many of us.

Whitewash and the need for the ICC


Its highly unlikely that attention-starved congressmen will agree to scrap the House of Representatives hearing of the Mamasapano massacre on their own.

To begin with, while the hearings in the bigger House were less composed when compared to the hearings in the Senate, more information came out of the lone House investigation.

Rep. Neri Colmenares singled out some of these new information, to wit: “a) the text message of Gen. Rustico Guerrero confirming that Pres. Aquino knew about the Mamasapano incident earlier on January 25, (b) the admission by Gen. Napeñas that Pres. Aquino knew about the time on target coordination and approved it which means Aquino agreed not to coordinate with the AFP beforehand, (c) the claim to executive privilege of Gen. Purisima, (d) the Medico Legal report emotionally described by Gen. Espina; and (e) the admission by Gen. Catapang that he did not inform Pres. Aquino even if they were together in Zamboanga that day”.

So why did the House suspend its hearing? The official reason is to avoid “prejudicial conclusions” since the official Board of Inquiry findings still have to be written.

But that reasoning is crap. Congress is never bound by the findings of any other investigative body. When Congress conducts an inquiry in aid of legislation, it is in the exercise of a plenary power that cannot be limited by any other branch of government. What is a legislative in purpose is also within the powers of Congress to define.

Moreover, Congress may also conduct investigations in the discharge of its power of oversight, that is, as holder of the power of the purse, it should ensure that government agencies are doing their job pursuant to the budget allotted to them. Hence, it was but proper that Congress inquire on whether the PNP, the AFP and the DILG spent tax payers wisely and correctly in this bloody police operation.

So why did the House suspend it proceedings? I think the truth is obvious. The PNoy administration, including its allies in the House of Representatives, are now afraid of the truth. Already, the subsequent Senate hearings on the matter indicate that the President clearly knew about the plan to capture Marwan et al in Mamasapano, that he continued to utilize the services of the suspended PNP Chief Alan Purisima in connection therewith, and that confidentiality was required because they knew that even the AFP, with its leadership committed to the Peace talks with the MILF, might leak information that may prove detrimental to the capture of the high value targets.

Questions are now being asked on when the President knew that the SAF 44 were under siege. The question which has not been asked is why the President did not order the AFP to provide reinforcement to the besieged 55th Company of the SAF and why? Many, including I, surmise that the President, like AFP Chief of Staff Catapang, played God and decided to sacrifice the lives of the SAF 44 in order to protect the ceasefire with the MILF.

There too is the question of why US operatives were involved in the operation beyond the giving of the $6 million bounty for Marwan, dead or alive. While many shrug off the American involvement as necessary since we do not have the technology to acquire the proper intelligence information required by the operation, the reality is that the 1987 Constitution prohibits even just the presence of foreign troops, bases and facilities in the country after the termination of the US-Philippine Bases Agreement in 1991. The only way these foreign troops can be in the country is through a treaty duly concurred not by a mere majority of the members of our Senate , but by 2/3 of all its members, and even ratified by the plebiscite by the people themselves, when so required by the Senate. And these stringent requirements is only for the purpose of allowing foreign troops, bases and facilities in our territory. Compliance with the imperative requirements is not even sufficient to allow foreigners to be engaged in actual police or battle operations in our country. Such is absolutely prohibited because such an involvement would simply violate both Philippine sovereignty and jurisdiction. Full stop.

So what now? The House has suspended its hearing and the senators, on the other hand, appear complicit in hiding the truth from the people by holding its hearings in “executive sessions”. Clearly, the Senate, in doing so, although clearly more independent than the House, appears to be susceptible nonetheless to palace cajoling to keep the truth from the people.

I have said from the beginning that where political considerations, both of the selfish and the policy types, i.e., the necessity of proceeding with the peace talks, come into the way of the fight against impunity, the country must utilize the full benefits its membership in the International Criminal Court. The Court was established, and we joined the Court, precisely because those who violate the most important norms of international law, such as those who commit war crimes, should be prosecuted, no matter what. The ICC prosecutor, would moreover, have the proven expertise to investigate these possible war crimes when compared to the DOJ Prosecutors that has zero experience in this regard. Besides, with the Maguindanao massacre prosecution in limbo after almost six years, coupled with the DOJ’s 1-percent conviction rate in the prosecution of extra-legal killings, its clear that our legal system is simply both unable and unwilling to investigate the leadership and men of the MILF for the possible war crimes committed against the SAF44 and the Filipino people.

Time to seek aid from the international community. Lets refer the Mamasapano massacre to the ICC!

Breach of chain of command?


Its now apparent that in an effort to shield President Aquino from blame in the death of the SAF 44, administration spin doctors have been pinning the blame for the fiasco on both former PNP Chief Alan Purisima and SAF Chief Getulio Napenas. Of course the two, undoubtedly, have lots to answer for. But palace spin masters would now want us to believe that only the two should be held responsible for the fiasco.

This cannot be the case. While palace supporters belabor the point that both allegedly “broke the chain of command” when they did not inform DILG Secretary Mar Roxas and PNP OIC Leonardo Espina about Oplan Exodus, the reality is the two did not have to. To begin with, Mar Roxas is not part of the chain of command. As DILG Secretary, his involvement with the PNP is only as Chairman of the National Police Commission. This means he has supervision over the PNP only to the extent that he should ensure that the police are doing their job. He does not have control, operational or otherwise, because this clearly belongs to the Chief PNP and the other officers in the PNP hierarchy. In law, control means the power to substitute a superior’s discretion to those of his subordinates.

Anent OIC Espina, the truth is that there cannot also be a breach of the chain of command there precisely because rightfully or not, General Purisima was reporting to the President, the ultimate Commander-in-Chief. Moreover, although he was suspended, the reality is that he remained the Chief of the PNP and the highest-ranking officer of the police force.

What does this mean? Simply put, the buck stops with the President. Perhaps, we can fault both Purisima and Napenas for failing to comply with the President’s directive to coordinate with the Armed Forces. This can amount to insubordination and gross negligence. But because the President himself authorized the mission on a “time-on-target” basis, this means that liability for the fiasco rests on the President himself.

Time-on-target is military jargon when the means and methods of a mission have been agreed upon even if the actual date of implementation is not known. This also means that others on the field will be informed when the mission is implemented. Make no mistake about it. The decision to invade the MILF lair to capture two high-level terrorists on a time-on-target basis as implemented by the SAF was a decision of the President himself. Full stop.

In any case, the on-going Senate investigation has also confirmed many of our worst fears. To begin with, there is the fact that the Armed Forces should and could have sent in reinforcements but did not. So far, the justification of AFP Chief of Staff Gregorio Pio Catapang, whom I want jailed for indirect contempt of Court, is because “the PNP did not ask for reinforcement”. Ergo, the Chief of Staff, who has not been shy about his Senate aspirations- wants, in the words of one senator, “ a drowning man to cry for help”. In reality, when one is drowning, one is already unable to utter a word and hence the failure to seek assistance.

The situation was no different from when the Maguindanao massacre took place. In 2009, the AFP leadership in the same area  turned down the request of the murdered journalists for military assistance in covering the ill-fated filing of Esmael Mangudadatu’s certificate of candidacy. Moreover, even after knowing about the build-up of Ampatuan supporters in the intersection where the victims of the massacre where rounded up, the same military leadership did not do anything even as to inquire why there was a build up consisting of heavily armed men in an area where there is an  on-going armed conflict. In other words, the AFP did nothing- then and now-  because they opted to turn blind eyes and deaf ears to their colleagues from the PNP.

The more interesting question now is: “Why?” Well, on the basis of the Senate hearing, Senate wannabe Catapang said that it was because of the peace process. And pray tell me: who told the Chief of Staff that he could play God to determine that the SAF 44 should die so that Ging Deles and Miriam Ferrer could gloat that they were responsible for peace in Mindanao? Utterly ridiculous, absurd, and even insane!

So what now? Well, in ancient times this was an instance that would merit the rolling out of the guillotine. Fortunately for all the misfits responsible for the untimely heroism of the SAF44, public indignation appears more painful today than the guillotine. And yes, they deserve it!

P Noy: Not command responsibility but gross incompetence


I’m happy that Senator Miriam Defensor-Santiago, the best President that we never had, agreed with my view that International Humanitarian Law (IHL) is applicable to the Mamasapano massacre that led to the heroism of the SAF 44. The good senator concurred with our view when she opined that President Aquino may be held liable on the basis of command responsibility.

IHL is the law applicable in times of armed conflict. It exists to protect civilians and other non-combatants from the adverse consequences of armed conflict. It achieves this goal by according non-combatants protection and by limiting the means and methods of warfare open to all combatants and fighters.

“Command responsibility” is a principle in IHL developed in the Philippines as a result of the trial of Yamashita, the highest-ranking Japanese officer in Southeast Asia at the end of World War II. When Yamashita was accused of war crimes, he put forth the defense, among others, that he did not know and did not order the atrocities complained about. The Philippine Supreme Court rejected this argument ruling that Yamashita willfully turned a blind eye to these atrocities. According to the Court, Yamashita should have developed a sound system where he could ensure that his troops knew the law and that they were in compliance with it.

On appeal to the US Supreme Court, a separate opinion formulated what today would be the principle of command responsibility. This is that a commander should be liable for the atrocities committed by his subordinates when he knew or should have known about the authorities, and he failed to take steps to prevent the crimes from happening, and fails to take steps to investigate, prosecute and punish them for these crimes.

Where I differ though from Senator Santiago is in her opinion that PNoy could be held liable for command responsibility.

My disagreement with the senator is not because I think the President should be absolved completely of command responsibility . In fact, on the occasion of the 5th anniversary of the Maguindanao massacre, I submitted the view, which was supported by the current UN Special Rapporteur on Freedom of Expression, that the 1-percent conviction rate our prosecutors have in convicting perpetrators of extra-legal killings may be a basis for holding the President liable under command responsibility since he has failed to prosecute and punish the perpetrators of the extra-legal killings in this country. Instead, my view is that PNoy should probably be held responsible for the massacre of the SAF 44 since he is Commander-in-Chief of the Armed Forces of the Philippines and the PNP, but not under the principle of command responsibility.

Why? Simply put, command responsibility under IHL may be used only against commanders and superiors of troops that may have committed grave breaches of IHL, the laws and customs of warfare. In the Mamasapano massacre, the sheer discrepancy in terms of the body count indicate that the SAF 44 may not have been engaged in battle; instead, what may have happened was a slaughter. What made matters worse is the fact that the slaughter must have resulted from our policemen’s wrong assumption that even if they are fighters in the territory of a domestic armed group, they will not be attacked because of an on-going ceasefire between our government and the MILF. This is the crime of perfidy or inviting the confidence of fighters that they have protected status and proceeding to attack them anyway. Moreover, the death count suggests that the MILF may have issued the order not to leave any survivors as in fact, there was only one who managed to escape the carnage. This again is a war crime since giving such an order is expressly prohibited by IHL and is furthermore contrary to the concept of military necessity and military objective.  The object of warfare is the compete submission of the enemy and not to kill all of the adversaries. The inhumanity done to the corpses of our heroes is yet another war crime—that of cruel, degrading and humiliating treatment.

Simply put, it is the leadership of the MILF that should be held criminally liable under command responsibility since their troops probably committed the war crimes. To reiterate, PNoy could not be held responsible under the principle because it is neither the PNP nor the AFP that committed the crimes.  If at all, his liability is that of a commander-in-chief who must take responsibility for a police manhunt that turned awry.

This should not at all absolve PNoy from liability for the death of the SAF 44. If in the past, the ineptitude and inexperience of this government have led to bad policies, his lapse in governance this time around should not go unpunished.

It’s time for his bosses to make their decision. I say we fire him for gross incompetence, a valid ground for loss of trust and confidence.

New SC resolution on DAP a shocking reversal


Statement of Prof. Harry L. Roque and Atty. Roger R. Rayel, counsel for Grecor Belgica, et al, on the Supreme Court’s new resolution on DAP:

“The new resolution of the High Court on the Disbursement Acceleration Fund (DAP) is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval on the de facto appropriation by the Executive without the benefit of congressional review.

While preserving two main holdings in its original ruling, the High Court’s decision to reverse itself on the third point – the funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act” – just about restores a wide swath of un-appropriated and not legislatively considered expenditures to the sole discretion of the Chief Executive.

This defeats the whole purpose of giving the power of the purse to the legislature. Precisely, a wide array of expenditures under the DAP have been made outside the General Appropriations Act. For all intents and purposes, the reversal by the Supreme Court reinstates and legitimizes the Presidential Pork Barrel System without benefit of congressional approval and oversight.

It is also surprising that the High Court appears to have made a new distinction between authors on the one hand, and proponents and implementers on the other hand, and in addition making criminal liability prospective as regards the latter. This is as if the constitutional provision stating that no money shall be paid out of the treasury without an appropriation made by law is not clear enough. This cannot be prospective.

We will file a Motion for Reconsideration of this Resolution within the period provided by the Rules.”