Allan and Chiz : Walk the Talk


Unlike Butch Abad about whom I wrote last week, both Senators Alan Cayetano and Chiz Escudero were known to me during the anti-President Gloria Macapagal Arroyo days.

I had the privilege of working with both of them in the three impeachment complaints that we filed against Arroyo. PNoy, then their colleague at the House of Representatives, was with us. But the acknowledged brains and spokesman for the impeachment team were Escudero and Cayetano, respectively.

Chiz Escudero was minority floor leader when we filed the first impeachment complaint. Unlike Alan whom I knew only in the course of the impeachment, I have known Chiz since high school in UP Integrated School, although I was three years ahead of him. The task of dealing with the dubious Oliver Lozano bogus impeachment complaint fell on his shoulder, this despite that he and Lozano belonged to the same fraternity.

Alan Cayetano was my best yield from the ill-fated impeachment complaint. While the complaint was thrown out by Arroyo loyalist Edcel Lagman on the basis of “a prejudicial question” which was that the first Lozano complaint, bogus as it was, barred the filing of our substantive complaint. My involvement in the impeachment process gave me a true friend in the person of Senator Cayetano. We may not have reached second base in the sui generis process of the impeachment, but Alan was to shine nationally courtesy of his eloquence and his one-liners.

I have nothing but utmost respect for these two honorable Senators. They are without doubt, men of principle, and both have proven that they adhere to the highest ideal of justice and public accountability.

How do I feel now that we hear that Napoles allegedly paid them off? Like the rest of their supporters, I was very disappointed and sad.

There seems to be a substantial difference between the entanglements of the two senators with the PDAF queen. In Cayetano’s case, it was the uncle, whom everyone knows is the political adviser of the senator, who allegedly received but returned a sum of money because they wanted a bigger percentage. In the case of Escudero, it was alleged that Napoles contributed to his campaign kitty. The difference is, if Napoles is to be believed, that Cayetano’s bribery was frustrated allegedly because his camp wanted a bigger percentage of the loot, while Escudero may have benefited from the scam without probably being aware if it.

Nonetheless, their names have been dragged into the scandal. No longer are both of them the epitome of new politics that they were during the challenging anti-PGMA days.

Am I surprised that even the most idealistic politicians have been dragged into the mess?

Not really. The nature of PDAF as an institutional source of corruption has been widely known since Yvonne Chua and Ellen Tordesillas wrote about it as early as the 1990s. This means that all politicians, even the most progressive, benefitted from institutional corruption for as long as they accepted and/or utilized their pork barrel. That is why only Ping Lacson stands on moral high ground since he is the only one (possibly Joker Arroyo, as well) who refused to accept his pork barrel. So the thought that both Cayetano and Escudero benefited from institutional corruption does not come as a surprise, at least to me.

Be that as it may, the fact that they were dragged into this pork scandal is still depressing, I know both gentlemen as true nationalists. They are competent, and winnable. The two, either individually or together, could very well redefine personality based and feudalistic Philippine politics into an issue and solution based multi-sectoral discussion. While party lists Bayan Muna and Akbayan (during their pre-PNoy collaboration for the latter) have been articulating well the need for progressive politics, Alan and Chiz have also been doing this and still win in the game—something that Bayan and Rissa Hontiveros have failed to do.

Is all lost for these two young beacons of hope?

Most certainly not. But the beginning should be utmost transparency from both of them. Alan here has a bit of an advantage since he never received money from Napoles, even if it is for the wrong reason. He should probably use this opportunity to clean his own backyard and get rid of nepotism within his own camp. This should mean retirement for his uncle.

Chiz, on the other hand, should just come clean since the only allegation against him is that he received campaign funds from Napoles. He probably did on his first run for Congress when as a member of the opposition, there was truly a dearth of campaign funds for those who opposed Mrs. Arroyo. But he has to come clean and be honest in this regard.

I also personally know that both senators have been utilizing the same contractor from the South, notorious also for paying SOPs to his legislator principals. Perhaps, as part of their re-birth in Philippine politics, they should both shun this practice of favoring contractors whom Chua and Tordesillas claim will in turn, pay kickbacks to the legislators. This entire scheme explains the sad state of our public infrastructure.

Not all is lost for these two brilliant statesmen. But they have to walk the talk. They have to practice new politics and not just play lip service to it.

What happens now to JPE et al?


Now that the Ombudsman has found probable cause against three senators, Janet Napoles and Dennis Cunanan for plunder and violations of the anti-graft law, what happens next? Will they immediately be put behind bars and tried in the same manner that former President Erap Estrada was?

Not quite.

All indicted accused have the statutory right to move for reconsideration on the finding of probable cause. There is probable cause when on the basis of the evidence, the Prosecutor or the Ombudsman concludes that there is likelihood that a crime was committed and that the respondents are probably liable for these crimes. It’s a very low standard because ultimately, the determination of guilt beyond reasonable doubt is a judicial function. Nonetheless, when the indictment is for a capital offense where bail is not a matter of right when the evidence of the accused is strong, a finding of probable cause is almost always a guarantee of the temporary deprivation of the right to liberty.

So, because of their right to move for reconsideration, no information is immediately forthcoming. Consequently, there will also be no warrant of arrest that will be issued soon.

I was correct in my assessment that the finding itself of probable cause will be marred with delay. The Ombudsman resolution came eight months after newspaper reported the details of the scam. This is still relatively quick given that the Ombudsman, unlike the regular Prosecutors, do not comply with the requirement that they conclude their preliminary investigations on or before 90 days from submission of the case. Clearly, it was the public indignation of the PDAF scam that compelled the Ombudsman to act more quickly than usual.

Outside of the motion for reconsideration, the accused may also proceed to the Court of Appeals to challenge the determination of probable cause. Although this is no longer a statutory right, it is nonetheless a constitutional right since the 1987 Constitution provides that judicial power includes the power to annul acts of government which are done in utter grave abuse of discretion amounting to lack of or in excess of jurisdiction. There is grave abuse of discretion where there is a violation of the Constitution or any existing law. Already, Senator Bong Revilla has a pending petition describing the Ombudsman’s refusal to act on his complaints against Luy et al as acts indicating grave abuse of discretion The Supreme Court has already scheduled his petition for oral arguments.

It is only after the resolution of the motion for reconsideration and if the higher courts do not restrain the Ombudsman that the information is filed with the Sandiganbayan. Unless the information is filed, the special anti-graft court cannot issue warrants of arrest.

Is it for certain that the accused will be apprehended and detained?

Yes, insofar as their actual arrest is the manner by which the Court can acquire jurisdiction over their persons. Fortunately for the respondents, they can now invoke the new rules of the Supreme Court on the speedy grant of bail to secure provisional release even for capital offenses. Under A.M. No. 12-11-2- or the SC “GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL”, the respondents, when they are charged in court can file a petition for bail. The procedure now is on the basis of affidavits or direct testimonies, the prosecutor has the burden to prove that the evidence of guilt is strong. Thereafter the Judge, including the Sandiganbayan, only has 48 hours to summarize the evidence presented and determine whether or not the evidence of guilt is strong. If so, the accused will be denied bail. Otherwise, he will be allowed to post bail to secure his provisional liberty.

This new guidelines is long delayed. The predisposition of Courts is to allow the prosecution to prove that the evidence of guilt is strong in a manner that would reproduce the evidence presented for bail as evidence on the merits. In this manner, the accused is for all intents and purposes, denied the right to bail because the determination of guilt is made part and parcel of the presentation of the evidence on the merits.

Senator Juan Ponce Enrile as an octogenarian will probably be given special consideration given his age. So will the two incumbent senators. While pickpockets and others committing petty crimes have to endure torturous conditions in our local jails, the three senators, because of precedents—will inevitably detained in special detention facilities. Already, Janet Lim Napoles is on hospital arrest. I foresee that Enrile and the two other senators may also seek hospital or house arrest. Note that being an octogenarian will not exempt Enrile from criminal prosecution or from being arrested. This is how the Sandiganbayan can acquire jurisdiction over his person. But when he is convicted, the Sandiganbayan has the option of recommending his release on humanitarian grounds.

What happens to Ruby Tuason and Cunanan? To begin with, I’m surprised that they were even indicted. Under the Witness Protection Law, those admitted into the program should not be included in the charge sheet. Perhaps the Ombudsman will later move that they be dropped. Otherwise, it could already be an indication that the Ombudsman does not consider their testimonies to be indispensable in proving the averments in the Information. Personally, I hope this is in fact the case. Let Tuason be the queen of socialites in jail.

 

(View from Malcolm, Manila Standard Today, 4 April 2014)

 

 

AMPATUAN VICTIMS TO SEEK REDRESS WITH UN COMMITTEE ON HUMAN RIGHTS. 14 Victims signed authority to negotiate a settlement with Ampatuans


On the occasion of the 43rd month commemoration of the Ampatuan massacre, Prof. Harry Roque, Chairman of the Center for International Law and Private Prosecutor of 17 media victims of the massacre, announced that their clients will resort to a filing of a communication with the United Nations Human Rights Committee for the Philippine government’s failure to accord the victims their rights to an adequate remedy under domestic law and compensation.

In at least 2 Views made by the UN Human Rights Committee where the Philippines was found guilty of breaching its obligation to protect and promote the right to life (the Pestano and Marcellana cases) for its failure to seasonable investigate and prosecute the killings of Navy Ensign Philip Pestano and Eden Marcellana, the Committee already declared that the Philippine government owes victims of extralegal killings these two obligations. “Thus far, it’s been almost 4 years and there is still no end in sight to the criminal prosecution of the Ampatuans. In fact, the Philippine government took almost 4 years just to file the information for the 58th victim, Reynaldo Momay. This should give us a clue on how long the criminal proceedings will take,” Roque added

Furthermore, Roque explained that the duty to pay compensation to the victims of the massacre is separate and distinct from the civil damages that the Court may order the accused to pay to the private complainants as part of the judgment in the criminal cases for murders. “The compensation that is due to the victims is because it is the state itself that breached its obligation to protect and promote the right of the victims to live. This includes not just monetary compensation, but also all that may be required tor restore the emotional and psychological well being of the victims. “We still have a pending motion for the Court to order government agencies to provide psycho-social support to the victims. This has not been acted upon but has strangely, given rise to a petition filed by the accused to cite us in contempt allegedly for “prejudging” the merits of the case”, Roque declared.

The need of the victims for compensation has been highlighted by the fact that 14 media victims, including 4 represented by Centerlaw, signed a written authority in February of this for a close associate of the Ampatuans to negotiate a settlement with the accused. Under this scheme, the victims were to sign not just a waiver and quitclaim, but also an affidavit pinning the blame for the massacre to Governor Toto Mangundadatu.

“Unless the Philippine government complies with its duty to pay compensation, the victims will continuously be tempted with schemes that may eventually cause a miscarriage of justice”, Roque said.

Roque asked all media groups and all those adhering to the rule of law to support the communication by filing their own interventions and briefs in due course

#30#

China advised not to snub arbitration


Opinio Juris

First Signs that China Is Taking the Philippines Arbitration Seriously?
Posted: 15 Feb 2013 10:35 PM PST
by Julian Ku

As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist. Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response. The February 22 deadline for China to appoint an arbitrator is fast approaching.

There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind). But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process. Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.

The expert offers a few considerations for the Chinese government. Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.

More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members. (Maybe the expert was reading Opinio Juris!). In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction. Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines. (There is more to the article, but this is the key advice).

So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China. The 30 day clock continues to tick. Only six days left!

Top ten issues for human rights in 2012


imagesHere’s my choice for the top ten most important developments for Human Rights in the Philippines for 2012:
1. Passage of the Anti-Enforced Disappearance Law. Unfortunately, the passage of this law was overshadowed by the passage of the Reproductive Health Law. I say unfortunate because unlike the RH Law which in jurisprudence says is a penumbra of the due process clause, the crime of “desperacidos”, which unlike violations of international humanitarian law is not considered a crime under customary public international law.

This means that a domestic law is actually required to make enforced disappearances criminal. Now that we have this law, victims of desperacidos can actually file criminal charges for enforced disappearances without relying on kidnapping, if their loved ones survive; or murder, if their loved ones are found dead.

2. Passage of the Reproductive Health Law. The passage of this law has made jurisprudence on the right to privacy unnecessary. Prior to passage of the law, women’s rights advocates relied on the United Nations Convention on the Elimination of Discrimination Against Women in arguing that failure of the state to provide family planning implements to those who cannot afford them is a form of discrimination.

They also relied on the US Supreme Court decision that states that the right to limit one’s family size is covered by the right to privacy and is a “penumbra” of the due process clause. With this domestic law in place, it has now become the business of government to ensure that its citizens can freely choose the size of their families.

3. Passage of the Cybercrime Prevention Act of 2012. This is in the list not because it promotes and protects human rights, but precisely because it will violate them. Unless declared unconstitutional, libel in cyberspace, which has already been pronounced as infringing on freedom of expression by the United Nations Human Rights Committee, will be even more severely punished under the new law. All future convicts will be guaranteed time in jail as the new penalties for cyber libel make them no longer eligible for parole.

Furthermore, the law’s so-called “take-down” provision, which enables the Justice secretary to unilaterally shut down Web sites, will enable the state to act as investigator, prosecutor, judge and executioner. It’s not on top of the list because of the temporary restraining order issued by the
Supreme Court enjoining the law’s implementation.

4. The Philippines’ ratification of the Domestic Workers Convention. Our ratification of the convention literally enabled the treaty to come into effect. This is the first convention that seeks to standardize the terms and conditions of employment of an estimated 50 million to 100 million domestic workers worldwide.

Under this convention, domestic workers are entitled to protection available to other workers, including weekly days off, limits to hours of work, and minimum wage and social security coverage. The convention also obliges governments to protect domestic workers from violence and abuse, and to prevent child labor in domestic work.

This will benefit at least 2 million domestic helpers locally, and millions more overseas. A domestic law that seeks to implement this convention was also passed by Congress this 2012.

5. The Philippines’ ratification of the Optional Protocol to the Convention Against Torture. This will enable private individuals now to submit their individual communications to the Committee Against Torture whenever they feel that the country has failed to protect and promote the absolute prohibition on torture. We are the first Southeast Asian country to have ratified this optional protocol.

6. The periodic review of the Philippines in the Human Rights Council. Done once every four years, it is described by the UN High Commissioner as such: “The [Universal Periodic Review] is a state-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.”

In its concluding observations, the Human Rights Council highlighted the need for the Philippines to take action against those who perpetrate violations to the right to life as evidenced by the high number of extralegal killings and enforced disappearances.

7. The periodic review of the Philippines in the UN Human Rights Committee. Also conducted every four years, this periodic review aims to “promote state compliance with the treaty principles and it should be an “honest appraisal of their conformity to the treaty obligations.” It is also a venue where state parties to the International Covenant on Civil and Political Rights report on “the measures [that the State has] adopted which give effect to the rights recognized” under the Covenant. In its concluding observations, the Committee asked the Philippine government to ensure
the binding and self-executory nature of the ICCPR and to inter-alia, also address the issues of libel as an infringement of freedom of expression, reparations of victims of trafficking, and also to end
impunity for those behind extralegal killings and enforced disappearances.

8. Five media killings in 2012. This highlights that impunity, particularly against media practitioners, continues.

9. Four victims of enforced disappearances. This highlights the need to implement the new anti-enforced disappearance law.

10. Failure of the Aquino administration to adopt human rights agenda. This last item highlights that while it has supported crucial legislation to protect and promote human rights, the absence of a national human rights agenda is proof that human rights is not a priority.

Corona’s contemptible performance


Like millions of others, I was glued to the television the other day watching Chief Justice Renato Corona testify in his own impeachment trial.

Everything about last Tuesday was dramatic. First, there was his refusal to take the stand. He then relented and agreed to testify after the Ombudsman had detailed Anti-Money Laundering Council documents indicating that the chief justice had at least $12 million in various accounts. Prior to last Tuesday, his counsels and talking heads assured the public that Corona would “tell all” and would expose the malice of the individuals who falsely testified against him.

On the day itself, there was a meticulous script acted out by “B” actors, who now deserve acting awards. There was the traditional mass officiated by religious leaders closely identified with former President Gloria Arroyo, the usual illegal mass action by court officials and employees, and even a hero’s send-off for the embattled Corona.

At the Senate itself, the script was literally visible: a couple of pages of a monologue read out by Corona himself, a major deviation from ordinary court proceedings where witnesses are never allowed to deliver opening statements. This was a very carefully written script. Its writers knew that the opus would be allowed by a court that has repeatedly declared that it would respect the magistrate if and when he takes the stand. More importantly, its writers knew that the people would be watching.

And boy, what a show it turned out to be!

The scripted monologue itself was pathetic. Not only was it very poorly written, it was also bereft of the truth that Corona promised the nation. Half of it was mud thrown at the President, Ronald Llamas, and even Franklin Drilon. The other half was about the dirty laundry of the Basas.  Was Corona unmindful that his own children and wife were members of the same clan? The Senate President repeatedly asked him if he was finished, but he went on with his litany on matters, which were irrelevant and immaterial. And when he finally addressed the issue leveled against him by the Ombudsman, he resorted to a negative pregnant: the Ombudsman was lying but he admits having dollar deposits which according to him, are absolutely confidential and need not be declared in his SALN.

Prior to his appearance, a little known employee of the BIR, of all agencies, which the chief justice himself quoted in his monologue, opined that dollar deposits do not have to be disclosed in the SALN.

After which, he resorted to a conditional waiver of the secrecy of his dollar and pesos deposits, which takes effect only if and when the 188 congressmen who voted to impeach him and Franklin Drilon sign similar waivers. Talk of a cheap trick!

And after an excruciating two hours of vilification and self-pontification, he states that he is the chief justice of the Republic and leaves the stand.

I still can’t decide which was more offensive: his litany of mud or his walkout. I ask this because he is not just a very high official sought to be removed from his office. He is the chief justice if the land and as such, should personify the prestige and dignity of the legal profession. By resorting to mudslinging at the stand, Corona broke all rules of evidence that were developed over time to ascertain precisely the truth of controverted matters. And by walking out, he has shown contempt not only for the Senate sitting as an impeachment court, but to the rule of law itself, which as chief justice, he should be the first to uphold. If his departure were really for medical reasons, why did he not ask for leave of court? That would have been easy and would certainly have been granted on humanitarian grounds. It does not help that he was captured on camera clearly intent on leaving the Senate on cue. Clearly, what he and his advisers did not anticipate was that the Senate President would order the lock-out of the Senate to prevent him from leaving.

As I write this, it has become apparent that the chief justice will not return to the Senate as he is reportedly in the intensive care unit. I do not question his state of health as that is now between him and his creator. What I condemn is his performance that degraded the legal profession and eroded the people’s trust in the rule of law.

At the very least, Corona has proven to all that he does not deserve to remain as chief justice!

Philippines Get Poor Marks in Rule of Law Index


The Philippines received very poor to poor marks in the World Justice Project’s “Rule of Law Index”. The Index, according to the report, is “a new quantitative assessment tool designed to offer a comprehensive picture of the extent to which countries adhere to the rule of law in practice”.

According to the report, the Philippines scored very poorly and placed last or seventh out of seven Southeast Asian countries surveyed in the areas of law and security (.57), fundamental rights (.50), and effective criminal justice (.53). It was sixth, or second to the last in the region in the areas of Limited Government Power (.57), Absence of Corruption (.45), Clear, Publicized and Stable laws (.43), Regulatory Enforcement (.52) and Access to Civil Justice (.48). The Philippines ranked fifth in only one category: Open Government (.38).

In its Executive Summary, the World Justice Project defined the rule of law as rules-based system where four universal principles are upheld: The government and its officials and agents are accountable under the laws; The laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; The process by which laws are enacted, administered and enforced is accessible, fair and efficient; and Access to Justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient numbers, have adequate resources, and reflect the make-up of the community they serve.

In its “Regional Highlight”, the report observed that in East Asia and Pacific “Wealthier countries such as Japan , Australia , Singapore and South Korea score high in most dimensions. In contrast, Indonesia , the Philippines and Thailand generally rank significantly lower than the wealthier countries in the region”. Relative to the world, the report concluded: “The Philippines falls within the bottom half of the rankings, even when compared to similarly situated countries, particularly in the areas of stable laws, access to justice and corruption.

The report also reported that as experienced by the people, 87% of 1000 respondents from Manila, Cebu and Davao said that they have not experienced a burglary within the last three years. Out of the 13% that responded that they have in fact experienced burglary, 51% reported the crime to the police, while 49% did not. On mechanisms to enforce a contract or to recover a debt, only 5% of the respondents went to court and expected the process to last 1 to 3 years, while 27% of the respondents resorted to direct renegotiation and 23% took not action. These figures can be read as indicative of a lack of trust in the Philippians judicial system by the individuals who took part in the survey.

The study defined government powers as “the means by which the powers of the government are limited and by which they are held accountable under the law”. In its study on corruption, the report considered three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of entrusted public resources.

In measuring the rule of law, the report first developed the conceptual framework summarized in the Index’s ten factors in consultation with academics, practitioners and community leaders around the world. A questionnaire was then developed based on the conceptual framework and administered by experts and reputable polling entities. A team then collected and mapped the data into 49 sub-factors. A final ranking was made using a five step process. The data was then subjected to several tests to identify possible biases and errors. The findings were then subjected to a sensitivity analysis by the European Commission’s Joint Research Centre.

The report indicated the following individuals as Honorary Chairs of the project: Madelaine Albright, James Baker III, Stephen Breyer, Jimmy Carter, Warren Christopher, Hilario Davide Jr, William Gates Sr, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’ Connor, Desmund Tutu, Paul A. Volker, among others.

Wanted: A Regional Human Rights Body


On October 23rd, the Association of Southeast Asian Nations (ASEAN) officially inaugurated the ASEAN Intergovernmental Commission on Human Rights (AICHR). Amongst its purposes is to “to promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities”. Amongst its mandates, on the other hand, is “to develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights”.

The creation of the AICHR was expectedly met with high hopes that ASEAN, amongst the most vibrant regional groupings today, would finally establish a regional human rights mechanism. While there was no illusion that this body would replicate the European Court of Human Rights overnight, it was at least expected that the body would prove to be somehow responsive to the human rights challenges in the region and at least have the competence to declare countries in breach of their human right obligations. ASEAN, after all, is home not just to some of the fastest growing economies in the world; but also to the most repressive regimes with Burma high up on the list, and Vietnam, Cambodia, Thailand, the Philippines and Singapore not far behind.

Because of high expectations for this newly created Commission, some relatives of victims of the infamous Ampatuan massacre in Maguindanao, filed the very first communication with the commission barely two months after the massacre. The massacre was widely reported worldwide because of its gruesome nature: the perpetrators killed all 58 victims in cold blood using high-powered firearms and attempted to bury all evidence of the massacre, both corpses and vehicles, in three holes dug by a back hoe in Sitio Masalai, Ampatuan Maguindanao. At least 32 of the victims were journalists, adding notoriety to the massacre as the single most deadly attack against journalists worldwide. The communication filed by 13 family members of slain journalists sought to declare the Philippines in breach of the right to life and freedom of the press when their loved ones, all journalists, were killed by at least 195 individuals, all of whom are state organs. By way of reliefs prayed for, the petitioners, led by a high school teacher, Noemi Parcon, asked for a declaration of breach a well as for the Philippine government to make reparations and to pay compensation.

The petition was filed with a sense of desperation. With the suspected perpetrators perceived to be very close allies of the Former Philippine President Gloria Macapagal-Arroyo, the victims were fearful of a whitewash and a cover-up. This fear proved to be well founded since 10 months after the filing of the communication, Lakmudin Saliao, testified in court how the accused spent 400 Million pesos to cover-up the massacre. Human Rights Report would also conclude that the former President was at least partially responsible for the massacre because of her complicity.

As an advocacy tool, the petition was envisioned to trigger the development of a mechanism that would at least receive individual communications and declare breach of state obligations under human right law, at least in the manner by which the UN treaty monitoring bodies do. While these bodies issue only non-binding “views”, it was hoped that since no state would want to be declared to be in breach of a state obligation, that the declaration of breach by itself would be a remedy of sorts for those whose rights have been violated. Eventually, it was also hoped that the body would develop in the path of the Inter-American Commission on Human Rights which today, declares breaches of state obligations and orders both reparations and the payment of compensation.

The high hopes for the commission proved short- lived. In March 26, 20101, Rafendi Djamin, the Indonesian Representative to the Commission and respected as its most “progressive” commissioner, faced Noemi Parcon and others who sought to file their own communications and delivered the the sad news: the Commission will only receive thematic reports on human rights issues, but not individual complaints, and therefore no further action will be taken on any petition.

A year after the Ampatuan massacre, the victims continue to be denied of a speedy remedy under domestic law since a judgment of conviction does not appear to be possible in the near future. They are furthermore, denied reparations and compensation. It is precisely because of these shortcomings of our domestic law that a regional human rights mechanism should be established and soon.

Living with Terrorism


Living with terrorism
I can only be sympathetic to President Aquino’s complaint that the travel advisories issued by at least nine foreign governments against travel to the Philippines, including Metro-Manila, lack factual basis.

To begin with, existing United Nations General Assembly and Security Council Resolutions obligate states to cooperate with each other in the fight against terrorism. This means sharing information about possible terrorist attacks. Contrary hence to the remark of Senate President Juan Ponce Enrile, the diplomatic missions of states that issued the advisories have the positive obligation to share with our authorities their intelligence information relating to possible terrorist attacks against the Philippines. Obviously, such cooperation is made even more necessary because of the sad reality that despite billions that we have appropriated for intelligence gathering, we are still the last to know about possible terrorist threats. Oftentimes, there is complete failure of intelligence. How many times have we woken up to news about terrorist attacks without being warned of an impending attack? This was what happened when the LRT was bombed on Rizal day several years back. This is also what happened to a series of kidnappings involving children and foreigners by the terrorist group, the Abu Sayaff.

But it is not just in intelligence, or the lack thereof, that we suffer a disability. It is also the case that we have created our own problems with terrorism. The Abu Sayaff is a concrete example. Veteran journalist Marites Vitug wrote in her book “Under the Crescent Moon” that this notorious terrorist group was in fact a creation of our very own Armed Forces of the Philippines.

According to Vitug, the group, whose name is literally translated as the “shining path”, was formed by the military to train Filipino Muslims fight the Russians when the latter occupied Afghanistan. They apparently were intended to be an elite group of “jihads” who simply had nothing else to do after their brief engagement in Central Asia. Maria Ressa, on the other hand, also asserted in her book , “Seeds of Terror” that the Arroyo administration knew that the Jemiah Islamiah (JI) and other notorious terrorist groups were training in Mindanao. Yet nothing was done to stop them. In legal parlance, this inaction is tantamount to acquiescence, if not complicity to terrorism. If what was written by these respected journalists is true, this may explain why foreign governments have not bothered sharing their intelligence with our own authorities: a belief that we are perhaps both complacent and complicit to terrorism.

Add to this what Philip Alston, the UN Special Rapporteur on Extralegal Killings, said was the root cause of impunity in the Philippines: the lack of political will to punish the perpetrators of international crimes in the country. What we thus have is a country that created its own terrorists, allowed its territory to be used to train these terrorists, and a legal system that would not work against terrorists.

To be fair, these unkind words about the lack of resolve to deal with impunity including terrorism refer to a sin of the Arroyo administration. Perhaps P-Noy’s administration would finally develop the will to deal with both impunity and terrorism. It helps that the President has at least reposed his trust on his Executive Secretary, Paquito “Jojo” Ochoa, to head the Anti-terrorism Council. This means that his most trusted alter ego will lead the fight against terrorism. Perhaps this will help build the resolve and facilitate preemptive responses against imminent terrorist threats.

To be fair again, and this will probably be my kindest words for the past dispensation, P-Noy’s fight against terrorism will be facilitated by recent congressional enactments, the Human Security Act and RA 9851, the 2009 International Humanitarian Law Act. While I have been critical of the HSA, as in fact, I am counsel to the only remaining challenge to the constitutionality of the law—a petition filed by my class in Constitutional Law 2 three years ago that is still pending in the Quezon City Regional Trial Court—the fact that authorities now have extraordinary powers to intercept and record communications, freeze bank deposits, classify organizations as being terrorist, and even the power to resort to indefinite pre-trial detention are the stuff that rightists and fascists wanted, nay demanded, as effective tools against terrorism. Why these powers have not been resorted to by law enforcement in dealing with real terrorists is a mystery. What has been clear though is that they have opted to use these extraordinary powers instead as tools in its on-going anti- insurgency campaign. The one and only person charged for “terrorism” is an aeta accused of being a fighter for the New Peoples Army.

The 2009 IHL Act on the other hand is an effective and ideal tool against “terrorist attacks that seek to spread terror and fear in the civilian population” in times of armed conflicts and when committed in a widespread or systematic manner. I consider the enactment of RA 9851 as the most effective tool against modern day terrorism since it can be used to prosecute all attacks against civilian populations. We can only hope that under P-Noy, the law will be implemented to the letter to ensure maximum protection to the lives and property of innocent civilians.

Meanwhile, we Filipinos can learn a lesson or two from countries that have had more experience in dealing with terrorist attacks, such as the United Kingdom. In the year that I lived as a student in London, I noticed the tools that the Brits used in fighting terrorism: omnipresent surveillance cameras, effective law enforcement agents who are both competent and visible, an efficient prosecution service that is able to convict, and a judiciary that is beyond reproach. Above all, there is a community that is both vigilant against terrorism and with the resolve to deny terrorists what they truly want: to be in a state of terror and panic by leaving their lives in the most normal manner that they can. In the shadow of terrorism, let’s live and let live!

***

Erratum: In my last column, I omitted legal luminary Pete Maniego, P-Noy’s Chairman of the National Renewable Energy Board, from the list of students responsible for the comfort women’s Petition, Vinuya v. Exceuitve Secretary. So sorry, Pete!

MORE PLAGIARISM IN THE DEL CASTILLO’s PONENCIA IN “ANG LADLAD”


One of my former students who is now pursuing further studies in the US made an independent review of the ponencia of SC Justice Mariano del Castillo in the “Ang Ladlad” case and listed the following instances of plagiarism:

Ladlad ponencia by J. del Castillo Original source 

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.  

Source: Section 49 of Handyside vs. United Kingdom (1979), a decision by the European Court of Human Rights (ECHR)

 

Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. 

Source: Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 515 U.S. 557, at 579.

 

However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. 

Source: Section 19 of Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, a decision by the Supreme Court of Canada

 

[42] x x x  See also, L. and V. v Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-I 71; (2003) 37 EHRR 39),  where the European Court considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’. 

 

In L. and V. v Austria65 and S.L. v Austria66 the ECtHR considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’.67 

65 L. andV. vAustria 2003-I 29; (2003) 36 EHRR 55.

66 S.L. vAustria 2003-I 71; (2003) 37 EHRR 39.

67 L. andV. vAustria, supra n. 65; and S.L. vAustria, ibid. at para. 44.

Source: Sexual Orientation, Gender Identity and International

Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 217.

Note:

(1)    The Human Rights Law Review is published by the Oxford University Press.

(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.

 

[44] x x x Note that in Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides: 

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It also found that banning LGBT parades violated the group’s freedom of assembly and association. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.

 

63. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44, p. 25, § 63, and Chassagnou and Others v. France [GC], nos. 25088/95 and 28443/95, ECHR 1999-III, p. 65, § 112). 

Source: Paragraph 63 of Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, a decision by the European Court of Human Rights.

[46] x x x x 

So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the Boy Scouts of America could not be compelled to accept a homosexual as a scoutmaster, because “the Boy Scouts believe that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.”

When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. We therefore held, for example, that a State severely burdened the right of expressive association when it required the Boy Scouts to accept an openly gay scoutmaster. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” Boy Scouts of America v. Dale, 530 U. S. 640, 653 (2000). 

Source: Justice Antonin Scalia’s Dissenting Opinion in Washington State Grange v. Washington State Republican Party, et al., 552 US 442, at 463.

[49] The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work) (Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, November 26, 2002) and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation. 

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003, it stated that, “State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation”. (Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, July 1, 2003, CRC/GC/2003/4).

The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a number of occasions, criticized States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, “lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished” (Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, February 5, 1999, A/54/38 at par. 128).

The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right to work),37 15 of 2002 (on the right to water)38 and 14 of 2000 (on the right to the highest attainable standard of health),39 it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation ‘that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]’. The CESCR has consistently based this prohibition on the terms of the Covenant’s anti-discrimination provision, Article 2.2, which lists invidious categories of discrimination as 

including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes ‘sex’and ‘sexual orientation’ in its General Comments, it locates sexual orientation within the rubric of ‘other status’. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC).

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003,40 it stated that, ‘State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation’. The CRC thus appears to adopt the same approach as the CESCR in locating sexual orientation within the category of ‘other status’.

x x x x

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that,‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.44 The Committee on the Elimination of Racial Discrimination (CERD) appears never to have engaged with issues of discrimination against persons who belong to both racial and sexual minority groups. This gap is startling when one considers the authoritative evidence of such persons facing forms of ‘double discrimination’, as reported, for instance, by the UN Human Rights Council’s Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.45

37 Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, 24 November 2005.

38 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, 26 November 2002.

39 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000.

40 Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/

2003/4.

x x x x

44 Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, 5 February 1999, A/54/38 at para. 128.

45 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Commission on Human Rights, 28 February 2006,

E/CN.4/2006/16/Add.3 at para. 40.

Source: Sexual Orientation, Gender Identity and International

Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 214-216.

Note:

(1)    The Human Rights Law Review is published by the Oxford University Press.

(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.

 

[51] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and experts, together with recommendations to governments, regional intergovernmental institutions, civil society, and the United Nations. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) people, and further of intersexuality requested by Louise Arbour according to the International Human Rights Law. 

Source: Wikipedia – http://en.wikipedia.org/wiki/Yogyakarta_Principles

It contains 29 Principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself.

Source: Human Rights Watch World Report 2008, p. 36. Preview of the book (as well as the relevant page) is available at:

http://books.google.com/books?id=4QL9BElMSbkC