Rep. ROQUE FILES ANTI-ENDO, UNIVERSAL HEALTH CARE AND JOURNALIST PROTECTION BILLS


Representative Harry L. Roque filed on his first day in Congress a bill seeking to institutionalize universal health care in the country.

In his exploratory note, Roque said the Universal Health Care for Filipinos bill, “[guarantees] that every Filipino receives the medical treatment he needs with the financial assistance he deserves.”

Roque also filed a bill that seeks to accord protection to journalists at risk. Since the EDSA People Power Revolution and the restoration of democracy in the country in 1986, there have been 172 journalists killed in the line of duty in the Philippines. The massacre of 58 people, including 32 media workers, in Maguindanao province in 2009 holds the record for the “deadliest single-day attack anywhere in the world on journalists.”

The anti-endo bill provides that “where a fixed-term employee who has been continuously employed on fixed-term contracts for four years or more is re-engaged on a fixed-term contract without his continuity being broken, the new contract has effect under the law as a permanent contract unless the renewal on a fixed-term basis was objectively justified.”

Please click below for the soft copies of the bills:

Rep. Roque_HB_PROVIDING FOR FREE HEALTH CARE FOR ALL FILIPINOS

Rep. Roque H.B._AN ACT PROVIDING FOR A JOURNALIST PROTECTION, SECURITY AND BENEFIT PROGRAM AND FOR OTHER PURPOSES

Rep. Roque H.B._ANTI-ENDO ACT

Macalintal grossly misrepresents Roque doctrine on PCOS paper audit capability


For reference: Atty. Romel Regalado Bagares, Executive Director 09328798422, Atty. Harry Roque 09175398096

Lawyer Romulo Macalintal “grossly misrepresents” the Supreme Court’s ruling enunciating the so-called Roque doctrine in regard to the Precinct Count Optical Scan (PCOS) machines’ paper audit capabilities, according to a lawyer who was one of the petitioners in the landmark case.

“In fact, if you read closely the High Court’s two rulings in the case, the conclusion you get is that the PCOS should be able to issue a receipt on demand from voters,” said lawyer Romel R. Bagares, one of the petitioners in the case of Roque et al., v. Comelec et al., (GR No. G.R. No. 188456).

Bagares issued the statement in reaction to an earlier statement made by the veteran election lawyer twitting former Senator Richard Gordon for filing a petition with the Supreme Court to compel the Comelec to provide the PCOS machines that will be used in the May 2016 elections with receipt-printing capability.

The Roque case, which had activist lawyer Harry Roque, a professor of constitutional law at the University of the Philippines College Law, as its lead petitioner, was decided by the Supreme Court en banc on September 10, 2009.
The decision dismissed the petition.

The High Court, on Motion for Reconsideration by the petitioners, issued a second ruling on February 10, 2010, denying the petition with finality.

Associate Justice Presbitero Velasco Jr. penned both rulings.

In the first ruling, the Supreme Court dismissed the challenge pressed by Roque on the reliability of the PCOS machines, saying that the machines passed the criteria for minimum systems capabilities set by Republic Act 8435 as amended that provided for an automated elections.

In its September 20, 2009 ruling, the High Court presented a matrix of 28 questions set by Comelec’s bidding committee on the technical aspects of the PCOS machines. Bagares, who is Executive Director of the non-profit Center for International Law, an NGO advocating for the applicability of international legal norms in Asia, noted that question 25 of the matrix dealt with the capability of the PCOS machines to print reports.

“And so, the Supreme Court asked: ‘Is the system capable of generating and printing reports?’,” said Bagares.” “And the answer was as follows: ‘Yes. The PCOS prints reports via its built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log.’ ”

The High Court further clarified what this means in its February 20, 2010 ruling, said Bagares.

This time around, the High Court explained in greater detail what PCOS machines should be able to do on Election Day.

It said: “As we have said, the AES procured by the Comelec is a paper-based system, which has a provision for system auditability, since the voter would be able, if needed, to verify if the PCOS machine has scanned, recorded, and counted his vote properly. All actions done on the machine can be printed out by the Board of Election Inspectors Chairperson as an audit log.

On the basis of the arguments, past and present, presented by the petitioners and intervenor, the Court does not find any grave abuse of discretion on the part of the Comelec in awarding the automation contract to the joint venture of private respondents.”

Aside from Roque and Bagares, the other petitioners in the Roque case were Joel Ruiz Butuyan, Allan Jones Lardizabal, Gilbert T. Andres, Immaculada D. Garcia, Erlinda T. Mercado, Francisco A. Alcuaz, Ma. Azucena P. Maceda and Alvin A. Peters.

Bagares said it is clear from these two rulings of the High Court that “in fact, voters can immediately ask the Board of Election Inspectors to print out the results of their ballots already cast to check if the PCOS machines correctly read their ballots.”

The tenor of the rulings is that the PCOS machines should be able to print paper audits or receipts on demand, he said.
“Until now, the Comelec has been denying voters their right to ascertain whether their ballots are being properly counted by these benighted machines.”

He added that nowhere in the Supreme Court rulings in the Roque case did the High Court say that the issuance of receipts or of a paper audit trail may be dispensed with by the Comelec.

“The rulings also do not say that Comelec may choose to disable this paper audit feature of the PCOS machines,” said Bagares.

Roque hits use of 4 P’s for Liberal electioneering


Former UP Law Professor, First nominee of KABAYAN party list, today condemned the Liberal Party’s use of the 4 P’s in support of the candidacy of LP’s standard bearer.

“I have evidence that the Liberal Party in Cagayan province has been using the 4 P’s for partisan putposes. The modus is the local DILG’s Community Convenors, together with the DSWD’s Comunity link will summon the family leaders of the 4 P’s recipients to meet with the local LP candidates.  They are then made to sign an application form for a Pro Mar-Leni parallel organization created exclusively for 4 P’s recipients.  Those who refuse to sign are threatened that they will be removed from the 4P’s program. They are also spreading the misinformation that VP Jejomar Binay will abolish the 4P’s program”.

Binay has consistently denied that he will abolish the 4P’s first implemented by former President Gloria Macapagal-Arroyo. He has instead promised to expand and further rationalize the program.

Roque warned The Liberal Party that this scheme is both an election offense and a violation of the Anti-Graft and Corrupt Practices Act.

Section 261(o) of Omnibus Election Code prohibits the use of public funds, for an election campaign.

Roque clarifies that Rep. Regina O. Reyes remains in Congress


Reference: Atty. Harry L. Roque, Jr 09175398096

Atty. Harry Roque, counsel of Rep. Regina Ongsiako Reyes, clarifies that Rep. Reyes continues to be the lawful Representative of Marinduque in Congress.

“The Supreme Court’s spoke person merely announced that the Court allegedly ruled against Rep. Reyes. No actual resolution has been issued by the Court neither have we received a resolution from them. Even if true, Rep. Reyes is entitled to file a motion for reconsideration within fifteen days from the receipt of the Court’s resolution. Until the denial of that motion, Rep. Reyes continues to be the lawful representative of Marinduque in Congress.”

Roque assured the people of Marindque that they will file a motion for reconsideration in due time.

He added that Congress, not just the Speaker of the House, has to act as a collegial body if Rep. Reyes has to be ousted from the post.

Roque advised the current Congress to let Rep. Reyes and Lord Allan Velasco, son of Supreme Court Associate Justice Presbitero Velasco, to fight it out anew in this year’s election. Velasco lost by four thousand votes to Rep. Reyes.

Supreme Court voted 10 – 4 to uphold the constitutionality of EDCA


Atty. Harry Roque, lead counsel in the petition against EDCA: It is regrettable that the Supreme Court voted 10 – 4 to uphold the constitutionality of EDCA which is a breach of the Court’s duty to uphold the supremacy of the Constitution. It has also created a constitutional crisis between the Senate and the Court. It is our wish that the Senate exercises its political powers through the power of impeachment. We will file a motion for reconsideration in order to avoid this Constitutional crisis.

Statement on the Japanese-South Korean Comfort Women Settlement


Harry Roque 09175398096 and Romel Regalado Bagares 09328798422, counsel for Malaya Lolas

Why is Japan settling the Comfort Women issue only with South Korea and not  with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?

Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?

And  what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?

We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.

According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.

While we would like to see details of this agreement  show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the  State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.

It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.

The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on them.

They should not be used as pawns by states in the geopolitical controversies of the day,  as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.

Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.

But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.

Background to the Malaya Lolas case

In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.

The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.

Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.

In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.

Laude vs Usec. Eduardo SL. Oban Jr. et al; Memorandum of Agreement on the confinement of L/CPL Joseph Scott Pemberton


Here is a Petition Indirect Contempt against Undersecretary Eduardo Oban, the Executive Director of the Presidential Commission on Visiting Forces and US Security Personnel for refusing to comply with the Order of the Regional Trial Court.

Compliance with the Memorandum of Agreement please see here Compliance dated 07 December 2015

Napolcom dismisses 21 of 62 PNP men in Ampatuan massacre, suspends 11 others


After five years of deliberations, the National Police Commission (NAPOLCOM) has finally ordered the dismissal from the police service for grave misconduct of 20 police officers linked to the Nov. 23, 2009 Ampatuan massacre, including the highest ranking police officer in Maguindanao province at the time.

Dismissed from the Philippine National Police were P/Supt. Abusama Mundas Maguid, Chief Insp. Zukarno Adil Dicay, Insp. Rex Ariel Tabao Diongon, Insp. Michael Joy Ines Macaraeg, SPO2 Badawi Piang Bakal, SP01 Edurdo Hermo Ong, P03 Rashid Tolentino Anton, PO3 Felix Escala Enate, P03 Abidudin Sambuay Abdulgani, P03 Hamad Michael Nana, P02 Saudiar Ubo Ulah, P02 Saudi Pompong Pasutan, P01 Herich Manisi Amaba, PO1 Michael Juanitas Madsig,P01 Abdullah Samma Baguadatu, P01 Pia Sulay Kamidon, P01 Esperileto Giano Lejarso, P01 Esmael Manuel Guialal, P01 Narkou Duloan Mascu and P01 Rainer Tan Ebus.

At the time, P/Supt Maguid was the acting Maguindanao Provincial Police Director while Chief Insp. Dicay was the Deputy Provincial Director.

The police officers, most of whom were members of the 1508th Provincial Mobile Group under P/Supt. Maguid’s command, were found to have conspired with the Ampatuans in flagging the convoy of civilians, journalists and lawyers on their way to Shariff Aguak to file the certificate of candidacy of Vice Mayor Esmael Toto Mangudadatu. Chief Insp. Dicay himself was found to have given the order to block the convoy and led the checkpoint set up by the 1508th Provincial Mobile Group.

According to the Napolcom, the officers also stood in conspiratorial silence when a huge group of armed men led by Datu Unsay Ampatuan arrived and led away the convoy to a nearby hill on Sitio Masalay, where he and his men gunned down the victims mercilessly.

“All of the members of the 1508th Provincial Mobile Group chose to become silent spectators to a crime unfolding before their eyes. Their inaction manifests complicity and unity of action to those who committed the abduction, and later, the murders,” said the Napolcom in its decision.

Following the Supreme Court’s jurisprudence on the question, the NAPOLCOM defines grave misconduct as “a transgression of some established and definite rule of action, more particularly unlawful behavior or gross negligence of a public officer.” Thus it considers any act or omission constituting a prime punishable under the Revised Penal Code as grave misconduct punishable by dismissal from the service.

The decision was signed by the Napolcom Chair and Interior and Local Government Secretary Mel Senen Sarmiento, and his five commissioners, namely Vice-Chair and Executive Officer Eduardo U. Escueta, Luisito Palmera, Constancia P. De Guzman, Alejandro S. Uro and Ricardo C. Marquez.

The Napolcom said Supt Maguid led “the efforts to hide and conceal the incident from the authorities and to dispose of evidence that might have been left by the group of Datu [Unsay] Andal Jr.”

Another police officer – Insp. Saudi Matabalo Mokamad – was dismissed from the service for serious neglect of duty while 20 others were exonerated of all charges for lack of evidence.

The NAPOLCOM however found that it did not have jurisdiction over nine police officers who had gone AWOL, although it may revive the charges against them “in the event that they will be restored to full duty status.”

“This is the very first time since the massacre six years ago that the victims have received some form of justice,” said lawyers Harry Roque, Romel Bagares and Gilbert Andres, who represented in the proceedings the families of 12 journalists who were among those killed in the worst spate of election violence in the country. “We have one quibble – the NAPOLCOM got the figures wrong – there were 58 victims, and not one victim less and we want to set this on historical record.”

The lawyers referred to the case of Midland Review photojournalist Reynaldo “Bebot” Momay, who remains missing but for a set of his dentures found at the massacre site by a fact-finding mission led by their organization, the Center for International Law (Centerlaw). Roque’s group would eventually get the Department of Justice to file a 58th murder complaint before the Quezon City Regional Trial Court trying the multiple murder charges against perpetrators, led by key members of the powerful Ampatuan clan of Maguindanao.

Roque who is also the first nominee of the party-list Kabayan said that on the whole they “were pleased with the results of the case but would wish to review the Decision, especially in regard to officers who were exonerated as we want to be sure there is a good basis for it.”

The NAPOLCOM’s 23-page decision in the proceedings (NAPOLCOM SD Case No. 2010-1964) only referred to 57 victims.

The administrative proceedings were filed on March 10, 2010 by the lawyer’s clients, namely Zenaida O. Duhay, Juliet Palor Evardo, Ma. Cipriano Gatchalian, Glenna G. Legarda, Arlyn D. Lupogan, Mary Jean M. Merisco, Catherine Nunez, Noemi M. Parcon, Myrna P. Reblando, Ramonita Salaysay, Editha Mirandilla Tiamzon and Erlyn Idalo Umpad.

The NAPOLCOM Decision was dated November 24, 2015 but it was released only yesterday. (For your reference please click here Napolcom Decision Dec2015 .)

All in all 62 , police officers were charged in the administrative proceedings conducted by the NAPOLCOM, which supervises the Philippine National Police. This may be the first time since the Marcos years that entire units of the police had been implicated in a gruesome crime.

The police officers also face multiple murder charges before the Quezon City Regional Trial Court.

Eleven other officers – all members of the 1507th Provincial Mobile Group – were meted out suspensions for 59 days for less grave neglect of duty. They were SP01 Alik Mluk Solano, P02 Kendatu Salem Rakim, P01 Benedick Tentiao Alfonso, P01 Abdurahman Said Batarasa, P01 Marjul Tarulan Julkadi, P01 Datu Jerry Mluk Utto, P01 Mohamad Karim Balading, P01 Marsman Eging Nilong, P01 Abdulmanan Lumbabo Saavedra, P03 Felix Abado Daquilos, and P01 Jimmy Mlah Kadtong.

They were suspended for their failure to report gunfire they heard 30 minutes after the Mangudadatu convoy passed by their checkpoint along the National Highway, Sitio Masalay, Barangay Salman, Ampatuan.

Their superior officer, P/Insp. Mokamad, was found guilty of serious neglect of duty “for failing or refusing to take command in an emergency in order to carry out police duty, being the officer present with the highest rank, grade or position.”

The 1507th Provincial Mobile Group had set up a checkpoint about four kilometers away before that of the 1508th Provincial Mobile Group’s own checkpoint.

Those absolved were P/Supt. Bahnarin Unas Kamaong, P/Supt. Abdulwahid Unas Pedtucasan, P/Senior Insp. Abdulgapor Benasing Abad, SP02 George Sermonia Labayan, SP02 Samad Usman Maguindra, SP01 Oscar Dariua Donato, SP01 Elizer Sarad Rendaje, SP01 Alimola Guinaton Langalen, P03 Gibrael Rojas Alano, P03 Ricky Duya Balanueco, P02 Rexson Diocolano Guiama, P01 Amir Maliwanang Solaiman, P01 Badjun Ibad Panegas, P02 Sandy Diloyodin Sabang, P01 Johann Mansal Draper, P01 Tamano Sahibal Hadi , P01 Ebara Guiamalon Bebot, P01 Pendatun Ambang Dima, P01 Michael Macapeges Macarongon and P01 Abdulbayan Usman Mundas. The non-commissioned officers in this list were members of the 1507th Provincial Mobile Group who were assigned somewhere else at the time of the massacre.

P/Supt Kamong, P/Supt. Ubas and Senior Insp. Abad belonged to the Regional Mobile Group(RMG-ARMM),

Charges against P01 Hernanie Saulong Decipulo Jr were dropped because he died while the proceedings were being conducted.

The NAPOLCOM said it could not proceed with the charges against P02 Tanny Awal Dalgan, P01 Ysmael Nalaunan Baraguir, P01 Abbey Aklad Guiadem, P01 Warden Kusain Legawan, P01 Jonathan Solaiman Engid, P01 Datunot Mangelen Kadir, P01 Joharto Silongan Kamendan, P01 Arnulfo Ayunan Soriano, and P01 Anwear Damaudtang Masukat because they had gone on Absence without Official Leave and had already been dropped from the rolls before the charges were filed against them.

Former US Senator asks SC to allow him to intervene in EDCA petition


Please see attached the pleadings we filed yesterday with the Supreme Court on behalf of former US Senator Mike Gravel, who wishes to intervene in the Enhanced Defense Cooperation Agreement (EDCA) proceedings.

In his younger days, Senator Gravel, collaborating with Daniel Ellsberg, was instrumental in the release of the Pentagon Papers to journalists. The Pentagon Papers showed how four presidential administrations and later, a fifth, had lied to the American people about the reasons for American involvement in the Vietnam War.

In the concluding remarks of his Petition-in-Intervention, Senator Gravel intones, thus:
“The Petitioners in the instant case are more than qualified to that task. However, Petitioner-Intervenor is qualified as a globalist, a student of international affairs, an experienced political observer, and somewhat of a constitutional scholar having devoted the last two decades of his life to the issues of human governance and their relationship to the electoral implementation of direct democracy.

The discussion above is made in an attempt to motivate this distinguish Court to render a judicial decision that will in effect transfer the deliberations on the EDCA from its secret confines to the Philippine Senate where arguments will be made in full public view. Petitioner-Intervenor hopes his arguments made above will contribute to that debate. The extreme importance to the wellbeing of Filipinos and the survivability of Philippine democracy are at stake in that debate.

This Honorable Court’s judicial decision could well set a chain of circumstances in motion that could ultimately affect the course of world affairs. In this regard, Petitioner-Intervenor is reminded of a famous statement made by the renowned sociologist Marguerite Meade: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has”.

Click below to view the pleadings:
EDCA.Gravel
EDCA.Gravel.Leave

SC JUSTICES MAY BE IMPEACHED IF THEY GO AGAINST SANTIAGO RESOLUTION- KABAYAN ATTY. ROQUE


METRO MANILA, PHILIPPINES- That was the position of Atty. Harry Roque when asked about possible repercussions of a contrary ruling of the Supreme Court regarding the Senate Resolution against the validity and effectivity of the Enhanced Defense Cooperation Agreement (EDCA).

The EDCA has been signed by Defense Secretary Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg in April last year, as part of the defense pact between the US and the Philippines. It has been characterized as an executive agreement, which supporters say is valid even without Senate concurrence. Those against it emphasize that in all respects it was a treaty, which required approval of the Senate for it to be valid.

Atty. Roque has long been opposing EDCA, and has in fact filed with the Supreme Court to declare it invalid, together with Former Senator Rene Saguisag, Dean Pacifico Agabin, and lawyers Rachel Pastores and Evalyn Ursua. Their group has now found strong political support in the said Senate resolution.

“The Santiago resolution reiterated the letter and spirit of the highest law of the land,” Atty. Harry Roque said. “An SC ruling to the contrary may render the Justices liable to impeachment for culpable violation of the Constitution.”

Senator Miriam Defensor-Santiago proposed said resolution to Senate, with thirteen other Senators concurring: Sonny Angara, Nancy Binay, Joseph Victor Ejercito, Francis Escudero, Teofisto Guingona III, Manuel Lapid, Loren Legarda, Ferdinand Marcos Jr., Sergio Osmeña III, Aquilino Pimentel III, Grace Poe, Ralph Recto and Cynthia Villar.

Sen. Pia Cayetano, while absent during the vote, signified her support for the resolution.
Senate President Franklin Drilon and Senate Minority Leader Juan Ponce Enrile abstained, while only Sen. Antonio Trillanes IV objected to it.

“Even though the SC is the interpreter of the Constitution, it cannot ignore well-defined constitutional powers of the Senate, such as giving concurrence to treaties,” Roque added.

Atty. Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, a position he has held for more twelve years. He is also a professor of Constitutional and International Law at the UP College of Law. He gave up his academic tenure to run for the 2016 elections under the party-list KABAYAN.

“While the Senate resolution is a political act,” Atty. Roque notes, “so is the act of impeachment. And that is why it is important for the SC Justices to follow the letter of the Constitution, otherwise they may be liable for impeachment.”

PRESS CONFERENCE for the GLOBAL CALL FOR THE IMMEDIATE RELEASE OF ANWAR IBRAHIM


PRESSCON INVITE

WHO : PRESIDENT/MAYOR JOSEPH ESTRADA and MS. NURUL IZZAH ANWAR
WHAT : PRESS CONFERENCE for the GLOBAL CALL FOR THE IMMEDIATE RELEASE OF ANWAR IBRAHIM
WHEN : NOVEMBER 9, 2015 (MONDAY) 2:00 PM
WHERE : OFFICE OF THE MAYOR, MANILA CITY HALL

The daughter of Anwar Ibrahim of Malaysia, Nurul Izzah Anwar, a member of Parliament, is arriving at noon on Nov 9, Monday, for a 2:00 PM meeting with Mayor Erap Estrada followed by a press briefing with some personalities who signed petitions for Anwar’s release. The Working Group on Arbitrary Detention of the Human Rights Council of the UN Assembly finds Anwar Ibrahim held in violation of International Law and MP Izzah is drumming up more support from Datuk Seri Anwar Ibrahim Filipino friends. We would like to invite the Press to the meeting at Manila City Hall to begin the ASEAN /Worldwide campaign to Free Anwar.

For more details please contact:
ALVIN M. SISON Media Officer
TEL NO. +632 832 3018
MOBILE: 09177200925

ATTY. ROQUE: CELEBRATE UNCLOS LEGAL WIN WITH CAUTION


Metro Manila, PHILIPPINES— “This is only the first hurdle against our legal battle with China,” said lawyer and KABAYAN first nominee Atty. Harry Roque, “and we have more to come.”

Atty. Roque was referring to the Hague arbitration court’s ruling that it has jurisdiction to hear the territorial dispute between China and the Philippines regarding the West Philippine Sea.

“However,” noted Atty. Roque, “the tribunal ruled that it has jurisdiction only over seven assertions, out of the fifteen which the Philippines has submitted.”

These assertions include territories of Panatag Shoal, Ayungin Shoal, Gavin Reef and Mabini Reef, to name a few.

Seven other assertions, the Court noted, will be considered in conjunction with the merits.

“That’s what we have to be prepared for,” Atty. Roque said. “One of our strongest arguments, that China’s imaginary 9-dash line has no legal force and effect under international law, has yet to be decided by the court whether it has jurisdiction or not.”

Basing its claim on ancient title, China claims sovereignty over the entire West Philippine Sea under its proposed 9-dash line. China’s claim was articulated in the 1950s, but resurfaced only recently in 2009, when it submitted an opposition against Vietnam and Malaysia’s application for an extended continental shelf.

Since then, China has employed its ships to patrol the area and has commenced the building of artificial islands in low-tide elevations.

The Philippines, claiming that these actions constitute transgressions on national maritime territory, has since initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS).

China’s insistence on not being bound by the arbitration court has been countered by the court itself, which stated that it has jurisdiction to hear seven of the fifteen submissions by the Philippines against China.

The ruling also directed the Philippines to clarify the content and narrow the scope of its 15th submission regarding its prayer for China to “desist from further unlawful claims and activities.”

“That is why we should celebrate with caution,” Atty. Roque said. “We still have a long way to go.”

Atty. Harry Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He is now running for party-list under KABAYAN, whose main advocacies are KAlusugan (health), PaBAhay (housing) and KabuHAYan (livelihood).

While focusing on using his legal expertise in the national arena to fight for the socio-economic constitutional rights of Filipinos, Atty. Roque remains an active part on the legal battle of the Philippines in its international claims.

ATTY. ROQUE: LEGAL BATTLE VS. CHINA HAS JUST BEGUN


Reference: Atty. H. Harrry L. Roque 09175398096

Metro Manila, PHILIPPINES “We are happy that the Philippines has won regarding the issue of jurisdiction,” said lawyer and KABAYAN first nominee Atty. Harry Roque, “but this is only the first step: our legal battle to win our case on the merits against China has just begun.”

This was after the Hague arbitration court has ruled that it has jurisdiction to hear the territorial dispute between China and the Philippines regarding the West Philippine Sea.

China claims sovereignty over the entire West Philippine Sea under its proposed 9-dash line, basing its claim on ancient title. Legal experts around the world has disputed this, stating that said 9-dash line was initially articulated  by Taiwanese academics in the 50’s and was only resurrected in 2009 as part of China’s opposition to joint application of Vietnam and Malaysia for an extended continental shelf.

Because of actions by the Chinese government, including the employment of Chinese ships to patrol the area and the building of artificial islands in low-tide elevations, the Philippines has since initiated arbitration with China in January 2013 under the provisions of the UN Convention on the Law of the Sea (UNCLOS), claiming that said acts are transgressions on national maritime territory.

China has boycotted the proceedings, and while having commissioned the submission of a de facto counter-memorial, insists that it will not be bound by the outcome of the arbitration.

However, China’s assertion was countered by the Hague arbitration court itself, which held that additional hearings were to be conducted to decide the merits of the Philippines’ arguments, including the issue of whether artificial islands can be the subject of title and can generate maritime zones.

“The challenge right now is on the merits of the case,” Atty. Roque said, “and we are optimistic that we can declare the nine-dash line illegal as per the UNCLOS.”

However, added Atty. Roque, the Philippines needs to be prepared for any eventuality.

“Even if we win, we still have to think of ways and means to compel  China to comply, which is easier said than done,” Atty. Roque said.

Atty. Harry Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He has given up his established academic career to pursue an elected legislative position through party-list, but remains active regarding issues of national and international importance.

“We need to conduct ourselves in a manner consistent with international law,” Atty. Roque advised. “We should implore the US to cease provocation and allow arbitration to take its course.”

The main advocacies of his partylist, KABAYAN, are KAlusugan (health), PaBAhay (housing) and KabuHAYan (livelihood), as part of the legal mandate of the State. Atty. Roque aims to use his expertise in national and international law to fight for the socio-economic constitutional rights of Filipinos, as well as support the Philippines in its international claims.

Sources:

http://cnnphilippines.com/news/2015/10/30/arbitration-court-South-China-Sea-Philippines.html

http://harryroque.com/2015/07/05/prof-roque-china-an-agressor-under-international-law/

SUE INDONESIA FOR HAZE- ATTY. ROQUE


METRO MANILA, PHILIPPINES— “We should hold Indonesia liable for the haze under the Articles on State Responsibility,” said Atty. Harry Roque, in light of the deadly Indonesian haze reaching Philippine territory.

Philippine Atmospheric Geophysical and Astronomical Services Administration (PAG-ASA) had earlier issued an advisory that moderate haze is affecting the Zamboanga peninsula, and that said haze has even reached as far as Metro Manila.

The haze is caused by the intentional slashing and burning of forest land to clear the way for new plantations. Indonesia is the world’s leading producer of palm oil, as well as a leading producer of paper and pulp products.

But this year’s El Niño and the prolonged dry season have caused raging forest fires, leading to more than 500,000 cases of respiratory infections and 10 deaths from haze-related illnesses in the islands of Sumatra and Kalimantan alone.

The forest fires and inadequate government response are now being described as “crimes against humanity.”

Atty. Roque emphasized that the haze is not merely a local concern for Indonesia, as other countries, like Malaysia, Singapore and the Philippines, are now being affected by it.

“Under international law, Indonesia is liable under the Articles on State Responsibility,” Atty. Roque said. “Clearly this is a breach of Indonesia’s international obligation to keep its environment and economic activities in check. It has sanctioned for too long the burning of its forests to the detriment of everyone.”

Atty. Roque is the former Director of the Institute of International Legal Studies at the UP Law Center, and professor of Constitutional Law at the UP College of Law. He has given up his established academic career to pursue an elective legislative position.

One of the main advocacies of his party-list, KABAYAN, is KAlusugan (health), as part of the legal mandate of the State, including housing and livelihood.

Atty. Roque aims to use his expertise in international law to fight for socio-economic constitutional rights of Filipinos.

“Establishing liability will compel Indonesia and Malaysia, as frequent sources of haze, to be more vigilant against allowing their territories to be used in a manner injurious to other countries, especially the Philippines,” Atty. Roque said.

Sources:

http://www.theguardian.com/world/2015/oct/26/indonesias-fires-crime-against-humanity-hundreds-of-thousands-suffer

http://edition.cnn.com/2015/09/17/asia/indonesian-haze-southeast-asia-pollution/

http://www.gov.ph/2015/10/26/advisory-on-haze/

2009 Philippine-China Agreement on consular immunity is constitutionally infirm


The 2009 Bilateral agreement between the Philippines and China signed by then DFA Sec. Alberto Romulo, which accorded Chinese consular officials full immunity is constitutionally infirm. Such an agreement which provides for full immunity where international law only accords functional immunity is a new national policy and requires therefore the concurrence of the Philippine Senate. A DFA Secretary has no power to limit the applicability of Philippine laws for crimes committed in the Philippines. Only Congress can do this which is why the Constitution provides that no treaty shall be valid and binding in the Philippines without the concurrence of 2/3 votes of all the members of the Senate.

The 2009 accord illustrates why the executive’s position that any and all executive agreement do not require concurrence of the Senate is wrong.

Statement on the recent shooting incident involving Chinese consulate officials in Cebu City


Atty. Harry L. Roque (UP College of Law International Law Professor and First Nominee, KABAYAN Party-List):

The recent shooting incident involving Chinese consulate officials in Cebu City should be investigated and prosecuted by Philippine authorities.

Consular officials, under the Vienna Convention on Consular Relations, do not enjoy full immunity. They only enjoy functional immunity or such immunity as may be required so that they can perform consular functions properly. These functions are mostly commercial in nature. The shooting incident in Cebu was a breach of Philippine penal laws and should be investigated and prosecuted as an ordinary crime

Atty. Harry L. Roque (First Nominee, KABAYAN Party-List) Statement on Sajid Ampatuan’s Filing of Candidacy


Reference: Atty. Harry L. Roque, Jr. 09175398096

People should not vote for him and his kin. But then again, in places like Maguindanao, if it is not the Ampatuans, it will just be another feudal family. That is why I am running under a party-list committed to the progressive realization of economic, social and cultural rights. It is only through the implementation of these rights that we can break the feudal hold of warlords in provinces like Maguindanao.

My valedictory column


This will be my last column. In the same way that I had my last lecture as a full-time academic at the Malcolm Hall, UP College of Law last Monday, let me share here my reflection on being a full time academic. I never intended to be one. This is because my mother was a full-time academic, initially at the University of the Philippines. I saw how despite the prestige, my mother was doomed to a life of poverty. This prompted her to seek greener pastures abroad, even at a very high social cost of being separated from us. She retired as an academic from the University of Chicago and, as fate would have it, we were finally reunited by reason of her sickness during her final four years.

Much as I was attracted to a teaching career, inspired by the likes of Perfecto Fernandez, Justice Cuevas, Justice VV Mendoza, Merlin Magallona, and Dean Pacifico Agabin, all of whom taught law in a truly “grand manner,” I suppressed this attraction.

It was not until my 10th year of specialized law practice in WTO Fair Trade litigation when I finally succumbed to the seduction of legal education. The invitation to teach international law was made by then Dean and now Judge Raul Pangalangan who, until today, remains one of my mentors.

Fifteen years later, I end my career as a full-time academic. I do so with sadness, even if I am certain that it is for the correct reasons. I am most thankful for the link between my teaching and my scholarship. I have today no less than 30 journal articles, 2 books off the press, and a further two, which will be submitted under the UP Centennial Book series.

It was my teaching too that inspired my filing of many public interest litigation before the Supreme Court. It was my pioneer class in 2001 that was responsible for the case of Pimentel vs. Executive Secretary that unsuccessfully sought to compel the submission of the certified true copies of the ICC Rome Statute to the Senate for the latter’s concurrence. While the students and I lost a battle when we lost the case—where CJ Puno, with all due respect, erroneously ruled that treaty making was an exclusively executive function—we have since won the war since all the grounds which we invoked as basis for the ministerial transmittal of the Rome Statute to the Senate were also the exact same reasons why the Philippines acceded to the Rome Statute, albeit nine years later, in 2010.

Likewise, I am happy to note that the entire corpus of judgments that the SC has promulgated on the meaning of a “treaty” in the context of whether foreign funded projects should comply with our government procurement act, specifically on its provision on public and competitive bidding, were cases arising from my class discussion on Treaties as an element of statehood. I am even happier to note that the most recent ruling on Northrail, where the Court ruled that a treaty is a written agreement entered into by states in connection with a sovereign function, finally corrected the erroneous ruling of the Court in my first case on this topic in the case of Abaya vs. Executive Secretary which the GMA administration invoked as legal basis for the anomalous contracts of NBN-ZTE and Northrail.

It was also my teachings in Constitutional Law two that gave rise to landmark jurisprudence such as David vs. Arroyo, Cacho-Olivares vs. Arroyo, and the UN Human Rights Committee View in Adonis vs. Republic of the Philippines.

Which brings me now to why I say goodbye to this opinion column. Perhaps the best reason is by citing one of the most important case that I argued and lost in the SC representing my greatest mentor in public international law: Dean Merlin Magallona. In the case of Magallona vs Executive Secretary, we impugned the constitutionality of the 2009 Philippine Baselines Law for violating Article I of the 1987 Constitution, which classified our archipelagic waters as internal waters. The 2009 Baselines Law re-classified our constitutional internal waters as archipelagic waters under the UNCLOS subject to innocent passage, over flight and the regime of straights passage. SC Justice Antonio Carpio, in dismissing the petition, said that the matter was not justiciable since it involved an issue of wisdom of the law. It was an issue of policy and hence, the constitutional domain of Congress.

To my dear readers, I say goodbye to you today precisely because policies—such as whether to do away with 220,000 square kilometers of territorial seas, which we abandoned when Congress enacted the 2009 Baselines Law—should be made with full knowledge of the law and with utmost nationalism, rather than on the basis of political  accommodation. Further, economic, social, and cultural rights can never be implemented by jurisprudence, but by policies crafted by Congress.

And so I formally announce that I am seeking a congressional seat as the first   nominee of the party list KABAYAN that stands for Kalusugan Pabahay at Kabuhayan. I offer myself to our people as a member of Congress on a platform to promote and protect not just political and civil rights, but more importantly, Economic, Social, and Cultural Rights.

I am blessed to have served Philippine society with the view from Malcolm Hall. It is my fervent hope that our people grant me the privilege to serve them with a seat and a view from Batasan Hall.

Please continue to follow me at my blog (harryroque.com), twitter (@attyharryroque), and FB accounts.

Roque Files for Party List Representative


Reference: Atty Harry L. Roque 09175398096

UP Law Professor and Activist Lawyer Harry Roque filed today his Certificate of Nomination as first nominee of KABAYAN (KAlusugan, paBAhay, kabuhaYAN) , a multi-sectoral party list dedicated to the promotion of the economic rights of heath, housing and livelihood.

“I have devoted 35 years of my life using the law as a tool for the protection of Political and Civil Rights. Truth though is much as we have  had many gains by way of jurisprudence, public interest litigation cannot address the root causes of of why our political and civil rights are violated. 35 years later, the problems remain the same; poverty, lack of livelihood, lack of housing, all of which lead to  lack of hope,” Roque added.

Roque will run with his former law students as nominees of the KABAYAN. Roque is counsel for media victims of the Maguindanao massacre and for the family of Jennifer Laude.

He has successfully argued such cases as David vs. Arroyo, Ninez Cacho-Olivares v. Juan Miguel Arroyo, Salonga vs. Executive Secretary and most recently, challenged the constitutionality of the Cyber-crimes Act of 2009. He also procured a view from the UN Human Rights Committee that  Philippine Criminal Libel Law is inconsistent with freedom of expression.

Roque is a graduate of the University of Michigan, the UP College of Law, and the London School for Economics and Political Science.

Click here for the KABAYAN flyer 1

Prof. Harry Roque’s last academic lecture and announcement of political plans


Notice for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096

 

After 15 years of being a law professor at the UP College of Law, Professor Harry L. Roque will be delivering his final lecture as a full-time academic this coming Monday, October 12 from 9 a.m. to 12 noon at the Malcolm Theater, Malcolm Hall, UP College of Law.

 

The lecture will be on “Criminal Jurisdiction under the Expanded Defense Cooperation Agreement: Customary International Law or under the VFA?” His last lecture will be delivered as the holder of the Manuel and Luz Chan Professorial Chair.

 

Professor Roque is inviting all his former students for the last 15 years, his colleagues in the academe and in the parliament of the streets, and the general public to the lecture. He is expected to announce his political plans after the lecture.

Professor Harry L. Roque’s statement on the decision of the UN Working Group on Arbitrary Detention in favor of GMA


Reference: Professor Harry L. Roque, Jr. 09175398096
 

Professor Harry L. Roque’s statement on the decision of the UN Working Group on Arbitrary Detention in favor of GMA:

It is sad that this administration has once again shown that it is inept both in the field of human rights and criminal prosecution that resulted in the UN siding with former President Gloria Arroyo. The decision is an indictment of this administration’s ignorance of human rights law. Hopefully, President Noynoy Aquino’s rights will be respected when it is his turn to be prosecuted for DAP and the Malampaya scam.

Cellphones and wiretapping


I was recently interviewed by a radio station on the applicability of the Anti-Wiretapping Law on a cellphone video showing a Metro Manila Development Authority traffic enforcer attempting to fleece money —“tongpats”—from a female driver. This is the second time I was asked for my opinion on the applicability of the law. The first was when then-Justice Secretary Gonzales threatened media outfits with criminal prosecution for violation of the said law should they air the so-called Hello Garci tape.

My answer remains the same: since criminal laws are construed strictly, the law must be applied literally. Since the 1965 law’s coverage is limited to    “dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder,” a cellular video, not being among those enumerated in the law, should be excluded from its coverage.

This is not a personal opinion but based on jurisprudence. In Gaanan vs. IAC and People of the Philippines, the issue was whether the law covered the recording of a telephone conversation through a telephone extension. The Supreme Court ruled that it was not:

“An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts.”

Moreover, the strict interpretation given by the court the phrase “device or arrangement” is pursuant to the rule that criminal statutes shall be construed in favor of the accused. Said the Court:  Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase “device or arrangement,” the penal statute must be construed as not including an extension telephone. In the case of  People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

The rationale for this, according to the Court quoting from American jurisprudence, is “to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.” “The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts.”

In any case, rather than chilling the people from exercising their inherent right to freedom of expression, government should be encouraging the citizenry to use new technology to run after corrupt officials. This is now an ongoing project of the American Bar Association in encouraging the use of social media as evidence. They have in fact developed an application where cellular data, photos and videos, could be utilized as evidence in court. We should replicate this initiative given that we have the highest penetration for Facebook and among the highest penetration for Twitter.

Under our existing rules on electronic evidence, such videos may be used provided the person who took the video authenticates it. Ergo, even without the application developed by the ABA, the female driver who took the video of the MMDA traffic enforcer can already use her video as evidence for extortion.

The problem again is not the availability of rules, but the lack of political will to implement our existing laws. In fact, the problem in this particular instance is the fact that the MMDA chief, instead of investigating his men, is instead, shielding his men from investigation and prosecution. On second thought, what can we expect from the same man who treated women as sex objects and as commodities to be given by way of political patronage in Laguna? Given the resolve of this administration to control both Houses of Congress in the upcoming elections, we surely have a preview of what kind of Congress we will have soon.

* * *

After 15 years of being a law professor at the UP College of Law, I will be delivering my final lecture as a full-time academic this coming  Monday, Oct. 12  from 9 a.m. to 12 noon at the Malcolm Theater, Malcolm Hall, UP College of Law.

The lecture will be on “Criminal Jurisdiction under the Expanded Defense Cooperation Agreement: Customary International Law or under the VFA?” My last lecture will be delivered as the holder of the Manuel and Luz Chan Professorial Chair.

I have invited all my students for the last 15 years, my colleagues in the academe and in the parliament of the streets, and the general public. It will be my last lecture as a full-time academic because the Omnibus Election Code provides that I will automatically be resigned from my post in UP when I file my nomination as first nominee of KABAYAN party-list.

My column next week will also be my last in this newspaper. It will be my final column for the time being. I will bid farewell next week.

INTERNET A HUMAN RIGHT – PROF. ROQUE


Metro Manila, PHILIPPINES— “The Internet is a human right,” said Professor Roque, “and the Government has a duty to make sure that Filipinos get what they deserve, especially when they’re paying for it.”

Professor Harry Roque Jr. said this amidst netizens constantly expressing their anger and disgust over the expensive yet spotty internet connection in the country. Roque is a professor of Constitutional Law at the UP College of Law and the Director of the Institute of International Legal Studies.

The Philippines is lagging in Asia and the world in terms of Internet speed. The average global Internet speed is 24.2 mbps (megabytes per second). In stark contrast, the Philippines gets a miserly 3.7 mbps.

The National Telecommunications Commission signed a memorandum in August of this year redefining broadband services, setting the minimum broadband speed at 256 kpbs (kilobytes per second). Failure to render this service 80% of the time, roughly 24 days per months, will result to administrative sanctions.

But for Prof. Roque and a huge number of netizens, this move was insufficient. Good service is still lacking.

“The United Nations, way back in 2011, recognized access to the Internet as a human right,” he added. “More than that, it is an enabler of rights, including the right of the freedom of speech, and the right of freedom of assembly, both of which are guaranteed under the 1987 Philippine Constitution.”

“Poor access to the Internet also impedes development, which is against the principles and state policies under our Constitution,” he stressed.
Sources:

https://en.wikipedia.org/wiki/Right_to_Internet_access

www.netindex.com
http://www.wired.com/2011/06/internet-a-human-right/

http://www.rappler.com/business/industries/172-telecommunications-media/99482-philippines-internet-speed-woes

Southeast Asian lawyers form coalition for free expression


group pix with hlr

Centerlaw Press Release
For reference: Atty. Harry L. Roque Jr. 09175398096. Atty. Romel R. Bagares 09328798422 and Atty. Gilbert Andres 09228952111

Lawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.
One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.

More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms  as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”

“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”
Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.

“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).

The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.

“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.

“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.

He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia.  “But it is important that cases are filed to have an historical record of wrongs brought to court.”

Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.

“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.

Delegates from Myanmar also highlighted their “Yellow Ribbon campaign” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said  Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .

Click here for a copy of the CEBU DECLARATION

CebuDeclaration_grouppix

The Poe hearing


Courtesy of live streaming, many of us were able to listen to the oral arguments in the Senate Electoral Tribunal that is hearing the quo warranto petition that seeks to expel Senator Grace Poe from the Senate. The lone ground to be addressed by the Tribunal is a legal issue: Is Grace Poe, as a foundling, a natural-born Filipino?

My views on this issue have been published in this column before. She is not a natural-born Filipino because under the 1935 and the 1987 Constitutions, only those whose fathers or mothers are Filipinos are classified as natural-born Filipinos.   Unless Poe can pinpoint either of her biological parents as a Filipino, she does not meet the qualification to run for the post of senator or president.

Critics of my view cite a provision in the 1961 Convention to Reduce Statelessness that allegedly gives foundlings a “presumption” to be a natural-born Filipino as a ‘general principle of law.” I have highlighted the fact the 1961 Convention is not customary international law since it only has 63 state parties out of 197 states today. To be customary, there must be virtually uniform state practice. The fact that only a minority of states today have ratified the said convention belies the existence of this element.

I feel vindicated that despite the “expert views” of those who have never taught nor studied international law,” the Justices who are members of the SET appear to share my view. Is this not discriminatory against foundlings? Certainly! But so is the constitutional rule that only natural-born Filipinos can stand for the offices of members of both Houses of Congress and for the top executive posts of the land. The rule in fact is discriminatory against those who acquired their citizenship through naturalization. Dura lex. Sed lex. The law might be harsh but that is the law. The remedy is for the sovereign people to amend the Constitution and do away with the discrimination against naturalized Filipinos.

It too was not surprising that some senators who are members of the tribunal appear to view the issue along partisan lines. Poe’s supporters,   such as Senators Pia Cayetano, Loren Legarda (both of whom are from the Nacionalista Party) and Senator Tito Sotto asked questions that were sympathetic to Poe. On the other hand, presidential cousin and LP Senator Bam Aquino appears to favor the Justices. Surprisingly, only Senators Cynthia Villar and even Nancy Binay appear to have open minds on the issue. This is hardly surprising as precisely, the people, while it mandated the SET to be the SOLE judge of all questions involving qualifications for the post of senators, agreed that there should be at least three Justices of the Supreme Court sitting in the tribunal who are expected to resolve disputes according to the Constitution and under existing laws.   Senators should heed the warning of the Supreme Court in the case of Lerias vs. Mercado: “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity.”

I am pleasantly surprised at the performance of the lawyer Luna, counsel for David. While apparently no match to the great Alexander Poblador, magna cum laude graduate of the UP College of law, he seemed to have stood his ground firmly and only showed signs of buckling down after two hours of intense questioning. Bravo to him! Anent my former boss Alex, well, he is truly one of the greatest legal minds in this country. Unfortunately,   the law on the matter simply was not to his favor.

I make two further observations. One on the statement of Senate President Franklin Drilon that the Supreme Court would ultimately sit as judge of Poe’s eligibility; and two, the scathing remarks of Poe’s supporters against Senior Justice Antonio Carpio.

On the first, Senator Drilon is wrong that the Supreme Court is the ultimate judge of a senator’s qualifications.  Under our Constitution, it is the Senate Electoral Tribunal which is the “sole judge of all contests relating to the election, returns and qualifications of their members”. Here, I can only think of one case where the Supreme Court disturbed the ruling of an Electoral Tribunal, which is the Lerias case. In that case, Justice Isagani Cruz in his dissent deplored the obvious partisan voting of the politicians who were members of the House of Representatives Electoral Tribunal: “It becomes only too obvious then that by sheer force of numbers; by overturning, at the post-appreciation stage, the rulings earlier made by the Tribunal admitting the claimed ballots for Protestant Lerias; by departing from the interpretation of the neighborhood rule heretofore consistently followed by the Tribunal; by injecting `strange jurisprudence,’ particularly on the intent rule; the majority has succeeded in altering the figures that reflect the final outcome of this election protest and, in the process, thwarting the true will of the electorate in the lone district of Southern Leyte.”

It is clear that absent such obvious partisanship, the Supreme Court will honor the textual commitment of the Constitution that the Electoral Tribunals shall be the “sole Judge “ of all electoral contests in both houses of Congress.

Anent the attacks on Justice Carpio who, in the 20 or so times I have argued in the Court, has proven to be most cerebral of all our justices, I can only tell Poe and her supporters that he is  an upright and acknowledged individual who has never hidden his ties with ‘The Firm’. They should have moved to inhibit him at the onset, and not now, after he has issued his statement. Moreover, if pre-judgment is the ground for inhibition, then Senators Cayetano, Legarda and Sotto should also inhibit themselves because they too have shown their pre-judgments in favor of Poe.

I may have doubts about the judicial system in this country. Thus far, though, the SET appears to have proven me wrong.

PROF. ROQUE REFUTES DRILON, DEFENDS CARPIO


QUEZON CITY, PHILIPPINES— “Drilon is wrong.”

Professor Harry Roque Jr. said this regarding Senate President Franklin Drilon’s statement that the issue of Grace Poe’s citizenship which the Senate President said will be finally decided by the Supreme Court .

“Under our Constitution, it is the Senate Electoral Tribunal which is the sole judge of all contests relating to the election, returns and qualifications of their Members,” Roque stated, citing Article VI, Section 17 of the 1987 Philippine Constitution.

Roque is a professor of Constitutional Law at the UP College of Law and the Director of the Institute of International Legal Studies.

“The Supreme Court can only look into decisions of the SET when there is evidence of collusion or fraud among the members of the SET,” he added. “Absent any showing of that, the Supreme Court cannot overturn the decision of the SET.”

Roque cited the case of Lerias vs. Mercado where the Supreme Court ruled: “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity”.

In effect, he said, the SC has no “final say” in the Poe case, as opposed to Drilon’s statement.

Professor Roque also criticized the supporters of Poe when they questioned Justice Antonio Carpio’s recent statement that Poe is a naturalized citizen. Justice Carpio, current chair of the SET, stated that Poe must prove blood relations to Filipino parents in order to show that she is a natural-born Filipino.

“There is a principle of international law that every state must avoid statelessness, and there is also a principle that every person has the right to acquire citizenship,” Carpio said. “We avoid statelessness, give the foundling citizenship. But it is under 5 [Section 5, Article 4 of the 1935 Constitution]: that a foundling is a citizen, but naturalized.”

Poe supporters criticized the ruling, and some have ventured that Carpio’s decision was a conflict of interest, being a former law partner of Atty. Avelino Cruz, currently the lawyer of Liberal Party standard bearer Mar Roxas.

Prof. Roque bristled at the thought.

“Justice Carpio is an upright and acknowledged individual who has never hidden his ties with ‘The Firm’,” Prof. Roque said. “They should have moved to inhibit him at the onset, and not now, after he has issued his statement.”

“Now that the tides are not in their favour, they start questioning him,” Roque said. “In truth nothing will satisfy Poe unless the SET decides in  her favour.”

Pangasinan and Zambales fisher folks files suit vs China at the UN


Media release
References: Atty. Harry L. Roque, Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

Click here for a copy of the URGENT APPEAL OF FILIPINO FISHER FOLKS AGAINST CHINA.doc filed today at the Office of the High Commissioner for Human Rights (OHCHR). This concerns the Filipino fisher folks of Infanta, Pangasinan, and of Sta. Cruz, Zambales.

Please contact the reference persons above for inquiries or clarifications.

Bring all those who raided Malampaya funds to justice- Centerlaw


Centerlaw release
Reference: Atty. Harry L. Roque Jr. 09175398096

 

Authorities should not stop at the recent arrest of the Reyes brothers in Phuket, Thailand over the murder of environmentalist Dr. Gerry Ortega but should ensure that justice is meted out to the guilty, including those who plundered the Malampaya funds, according to the Center for International Law.

“We’re hoping for justice for Dr. Gerry Ortega’s family and for the country,” said Prof. H. Harry L. Roque, chair of the Center. “All those who plundered the Malampaya funds should also be prosecuted and Palawan should be given its lawful 40 percent share from all of the gas well’s revenues.”

Roque served as counsel for the Ortega family in the murder case against former Palawan governor Joel Reyes and his brother Mario, a former mayor, until it was filed in court. He is also counsel for the Kilusan Love Malampaya (KLM), a Palawan-based civil society group and residents of Palawan who had filed a petition in the Supreme Court to compel the National Government to give to the province a 40-percent share in the proceeds of the Malampaya gas wells as provided in the Local Government Code.

It has been pending with the High Court since it was filed nearly seven years ago.

Ortega, one of the prime movers behind KLM, had been a staunch critic of the role of the Palawan provincial government – then headed by Joel Reyes as governor – in the handling of the funds from the gas wells.

He was gunned down near his veterinary clinic on Jan. 24, 2011.

The Malampaya funds were among the government coffers raided by the alleged pork barrel scam mastermind Janet Lim Napoles.

 

 

Mga Mangingisda sa Infanta, Pangasinan kakasuhan ang China sa UN


Filipino fisher folks, from the municipality of Infanta in Pangasinan province, who used to fish near the marine-resource rich fishing grounds of Scarborough Shoal (known locally as “Bajo de Masinloc” and also as “Panatag Shoal”) will file an urgent appeal to the United Nations in relation to the massive and gross human rights violations committed against them by the state agents of the People’s Republic of China. Members of the Chinese coast guard have repeatedly turned away Filipino fishermen from fishing near the disputed shoal and this has led to heavy economic losses for the fishermen.

The petition filing will be preceded by a forum today 22 September 2015, Tuesday, from 9:00 am to 12 noon, at the Pangasinan State University, Infanta Campus. The forum will be led by Infanta fisher folks, officers from the Pangasinan State University, UP Institute of International Legal Studies (IILS), Centerlaw and other stakeholders in the province.

Mga Mangingisda sa Infanta, Pangasinan kakasuhan ang China sa UN


Media release
References: Atty. Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

 

Filipino fisher folks, from the municipality of Infanta in Pangasinan province, who used to fish near the marine-resource rich fishing grounds of Scarborough Shoal (known locally as “Bajo de Masinloc” and also as “Panatag Shoal”) will file an urgent appeal to the United Nations in relation to the massive and gross human rights violations committed against them by the state agents of the People’s Republic of China. Members of the Chinese coast guard have repeatedly turned away Filipino fishermen from fishing near the disputed shoal and this has led to heavy economic losses for the fishermen.

 

The petition filing will be preceded by a forum on 22 September 2015, Tuesday, from 9:00 am to 12 noon, at the Pangasinan State University, Infanta Campus. The forum will be led by Infanta fisher folks, officers from the Pangasinan State University, UP Institute of International Legal Studies (IILS), Centerlaw and other stakeholders in the province.

Binay at UPLB


I was at UP Los Baños on Tuesday and I want to set the record straight about reports that Vice President Jejomar Binay was booed during his appearance.

Yes, there were some students outside the lecture room who gave the VP the thumbs down when he entered the venue.

Yes, the students asked tough questions about political dynasties, human rights and political ads.

But while the response of the students indicated that they were not in accord with the VP’s answers, it was hardly what one would call “jeering.”

I too disagree with the VP on the issue of political dynasties. His belief though is that in a democracy, the electorate should be given a choice. The problem, he said, is bad governance and not dynasties. To me, the matter appears moot since much as we want an anti-dynasty law, the fact is that an overwhelming number of legislators are from political dynasties. This  makes the matter of legislating against dynasties a political impossibility.

I might run for Congress precisely to improve the odds of passing one. For now, with the Aquino dynasty entrenched in power, it would be an impossible task. Note though that despite his views on the matter, the VP conceded that he has no choice but to follow the law if one against dynasties is in fact passed.

The VP easily answered the matter of the killing of Lumad and others. He simply repeated a fact: that is, of all the presidential hopefuls, it was only he who is a recognized human rights defender being the  founder of the lawyers group MABINI.

The students though attempted to pin him down on what he has done to promote human rights as part of this administration. Binay replied with a constitutional reality: as VP elected from the opposition party, he was not technically part of the administration. The truth too, according to him, is that while he was given the housing portfolio, he could not address violations of political and civil rights under this portfolio. Besides, he opined that the only function of the Vice President is really that of spare tire. This appears to be the harsh reality of constitutional powers.

Anent corruption, again, given his limited constitutional powers, all that he could do was to ensure that the housing agencies under him: NHA, Pag-Ibig, and the HUDCC—were not hubs of corruption. With the likes of lawyer Darlene Berberabe in these offices, not one of the students could question the VP’s submission.

Perhaps the best that happened at UPLB was that contrary to Malacañang trolls’ predictions that the VP would be a no-show, he did go. Moreover, the trolls predicted he would not answer questions; he did so from 2:30 to 6 p.m., an hour longer than the organizers reserved the theater for.

This proves what the VP has been saying all along: that he would answer the proper questions in the proper forum. In this instance, it was before the Iskolar ng Bayan in the UP system and not in the venomous premises of the Senate where our Senatongs lord it over.

***

I did notice though that the Maoist Reaffirmists (RAs) among the student body appeared to prefer Grace Poe to Binay. This, I cannot understand.  It seems to me that the barest minimum of all qualifications for the post of president is loyalty and patriotism to this country. How can our leftist young people support one who had previously renounced her Filipino citizenship and took an oath of allegiance to colonial America? I am reminded of Aguinaldo, Paterno and Buencamino who during the Philippine-American war were only too eager to be assimilated into America’s bosom.

What has happened to our young revolutionaries? How can they go for America’s anointed one under any circumstance?

I do not know who ultimately will be chosen by our people to lead in 2016. In my book, Poe is the least deserving because she took an oath that she “will absolutely and entirely renounce and abjure all allegiance and fidelity to the Philippines” and has opted instead to  “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic”. Worse, she swore even “to bear arms on behalf of the United States when required by the law” and that she undertook this obligation “freely, without any mental reservation or purpose of evasion”.

At the very least, if she professes loyalty anew to this country, she certainly can no longer be trusted.

So to the student revolutionaries of UPLB: how can you?

This post first appeared at http://manilastandardtoday.com/2015/09/17/binay-at-uplb/

AMLAC: INVESTIGATE PROCEEDS of THE SABAH SELL-OUT!


MANILA, PHILIPPINES— “Investigate and follow the proceeds of the Sabah sell-out!”

This is the strong recommendation issued by Professor Harry Roque Jr. regarding the issue of the US$750 million which Malaysia has allegedly given to a number of government officials to gain control of the long-disputed territory.

Earlier, a Filipino lawyer claimed that Malaysia will spend as much as US750 Million dollars as lobby money for the Philippine governemen to enact the Bangsamoro Basic Law (BBL)

“If this report is true, this constitutes Malaysia’s interference in our domestic affairs which is a violation of international law,” Prof. Roque added. Roque is a professor at the UP College of Law and the Director of the Institute of International Legal Studies.

The Eastern part of the state of Sabah is disputed territory between the Republic of the Philippines and the Federation of Malaysia. Formerly known as North Borneo, the Philippine claim is based on its representation as the successor state of the Sultanate of Sulu, claiming that despite its lease to the British North Borneo Company in 1878, said territory has never been relinquished. Malaysia asserts that the territory was ceded to it by virtue of the 1878 agreement, and further that the Sabah residents exercised their right to self-determination when they decided to join in the formation of the Malaysian Federation.

Annually, Malaysia issues 5,300 ringgit (US$1710 or 77,000 Philippine pesos) to the heirs of the Sultan of Sulu via its embassy in Manila, claiming that said fee is for cession. The Sultan’s descendants maintain that the aforementioned payment was for rent, and that the lease agreement actually expired in 1978.

“We have so much wealth in Sabah na dapat tayo ang nakikinabang,” Princess Jacel Kiram, daughter of Sulu Sultan Jamalul Kiram III, said. Kiram claims that Sabah earns for Malaysiia at least US72 Billion dollars annually

In early 2015, treason charges were filed against President Aquino, some members of his Cabinet members and Moro Islamic Liberation Front (MILF) leaders for supporting the Bangsamoro Basic Law which they claim seeks only to benefit the MILF. The case is stillpending with the courts. Complainants in the treason case alleged that the passage of the BBL was in exchange for the Philippines dropping its claim to Sabah.

“The Anti-Money Laundering Council has a duty to investigate this claim,” Prof. Roque concluded. “The transfer of this huge amount of money should not have gone unnoticed by the AMLAC. Where is their freeze petition now? They were so quick to file for one against the leader of the opposition, VP Jojo Binay.” Roque lamented that AMLAC’s failure to act on this report is yet another evidence of selective justice in this country.

Malaysian politics has been in disrray since media reports confrmed that Malysian Prime Minister Razak has US $750 million in his personal account.

http://www.tribune.net.ph/headlines/gov-t-receives-750m-from-kl-for-bbl-passage-lawyer

http://www.philstar.com/headlines/2013/03/13/918984/ninoy-vowed-drop-sabah-claim-get-kl-support-vs-marcos

Omniprime to file Motion for Preventive Suspension against BOC Lina at the Ombudsman today, 14 Sep 2015, at 2:00 pm


Media release
References:  Atty. Joel R. Butuyan 09175229613 and Atty. Harry L. Roque Jr. 09175398096

Omniprime Marketing Inc., the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system, will file a “Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina” at the Office of the Ombudsman today, Monday, 14 September 2015, at 2:00 pm.

(Please note that Atty. Harry Roque, counsel for Omniprime, is currently in Olongapo for the Jennifer Laude trial and would be unable to attend this filing at the Ombudsman.)

Syria, Razak and the ‘presidentiables’


It is unfortunate that the upcoming elections have made Filipinos blind to and unable to appreciate fast-developing world events.

The first is the deteriorating threat to international peace in Syria.

Trouble started in 2011 when as a result of the so-called Arab Spring uprisings, Syrian civilians turned to civil protests in demanding the resignation of the country’s President Assad. The world was shocked when in response thereto, the Assad regime ordered its troops to open fire at the protestors leading to an estimated casualty of at least 100,000. It took about a year before soldiers deserted the country’s armed forces to form an organized armed group to resist the Syrian government. Today, there’s a full-blown civil war in Syria with the USA and the UK belatedly deciding to finance and arm the country’s resistance movement.

Matters turned for the worse when the Islamic State of Iraq and Syria (ISIS) joined the armed fray. Meanwhile, the United Nations Security Council has thus far been paralyzed from dealing with the Syrian situation because Russia, a permanent member of the Council, has vetoed and threatens to veto any future resolution authorizing collective security measures.

Further trouble is brewing in Syria with the recent decision of the United States to directly conduct military operations against the Assad government. Russia, meanwhile, has decided to extend military assistance to the same government, purportedly to assist the latter in fighting the ISIS. So while Mar Roxas does an epal stunt here in Boracay where the country’s local councilors are having their convention, and while Grace Poe is unabashedly playing hypocrite, pretending to be still undecided about running for the presidency when Chiz Escudero has obviously decided on the matter, the situation in Syria has reached alarming proportions. It might lead anew to open military confrontation between traditional rivals: the United States and Russia.

Meanwhile, closer to home, our Malaysian neighbors, having learned and obviously deriving inspiration from us, are on the streets demanding the resignation of Prime Minister Najib Razak. One account has it that even former Malaysian Prime Minister Mahathir was shocked to hear that the current PM has a cash deposit amounting to US$750 million! When queried about this, Razak said that this cash was: “intended for the Philippines.”

Huh? And for what purpose? Princess Jacel Kiram, who should be elected senator in 2016, posits that it must be to buy political support for the BBL!

This is not the first time that foreign money is said to have entered the country to finance the passage of the BBL. Veteran reporter Christine Herrera reported earlier in this newspaper that a Chinese fugitive was supposed to deliver hundreds of millions of dollars to members of the House of Representatives to pass the BBL. While this was denied by the administration, the fact remains that the Chinese fugitive was deported and presumably, no money found its way to Congress. Could this be why despite the BBL being this administrations topmost legislative priority, the proposed law has not seen the light of day? If so, thank goodness for freedom of the press. Obviously, it was Herrera’s world-class investigative journalism that pre-empted what could have been literally a sale of our country’s territory.

So what have the ‘presidentiables’ said about these developments? I can assure you that Vice President Binay would  get a thorough briefing from me on the implications of these current events to the country. How the possible military engagement in Syria may, for instance, lead to a spike in world prices of oil, how it is bound to result in further depreciation of the peso as investors rush to hang on to the US dollar and other currencies considered as safe havens; and how non-aligned nations should insist that all players to the conflict should adhere to the UN Charter in resolving the ongoing disputes in Syria, both as it relates to the atrocious Assad regime and the ISIS.

On the other hand, I will also brief VP Binay on the need to call for the continuing protection of human rights in Malaysia, as the country is witness to its biggest civilian protests. While the corruption of Razak is an internal matter, the fact that his dirty money is somehow linked to us here in this country is a matter, which should be investigated fully. What has the Anti-Money Laundering Council done on this much-publicized statement of Razak? And yes, since the protection of human rights is a concern for the entire international community, the Philippines should be vocal in calling that the right of the protestors, including the right of Malaysia’s main opposition leader Anwar Ibrahim, should be protected.

Meanwhile, expect the advisers of both Roxas and Poe to continue just engaging in everyday politics. I don’t know about you: but I’ve had enough of both the so-called crooked “daang matuwid’ and the imported “bagong umaga.”

Laude: No deal!


I was shocked when Noli De Castro woke me up last Monday to inquire if there was truth to a newspaper report that the Laude family had asked for P36 million and six US visas as settlement for the murder case against Joseph Scott Pemberton. Pemberton had rested his case last Tuesday with the presentation of his third and last witness, Dr. Raquel Fortun. The defense asked and was granted time to file their written offer of evidence and the prosecution was give an even time to comment thereto. Thereafter, the court granted what really is an optional oral summation on  September 14  and set the promulgation of the case on December 14.

I was shocked because with the defense resting their case, it is now a legal impossibility for the family to accept a settlement, even if it wants to. Unlike the previous case of “Nicole” for rape, which could legally be settled, the case versus Pemberton is for murder and can no longer be settled after plea-bargaining because murder is a felony committed against the state.

I do concede that the practice in reality is different from the theory. Criminal cases are settled all the time with private complainants executing affidavits of desistance claiming that the filing of the case was due to a “misunderstanding”. Such was the case with “Nicole” who even belied the fact that she was raped. Naturally, the prosecutors would be compelled to move for dismissal, but not because of the settlement. The ground would be in the absence of a complainant; there would be an impossibility to prosecute. The exceptions to the prohibition on settlement in criminal cases are private crimes such as rape, which can even be settled if the accused should marry the offended party; and “quasi-crimes”, because they are felonies committed not because of criminal intent but because of recklessness or negligence.

Murder, I reiterate, cannot be settled beyond the plea bargain stage.

Even the Rules of Court provision on plea bargain is new. It was not in existence 25 years ago when I was in law school. The rule against compromising criminal cases was absolute when I took up my criminal procedure under the late Justice Serafin Cuevas. I supposed it was introduced as a means of facilitating settlements but subject to the concurrence of two conditions: one, the private complainant must consent, and two, there must be a plea to a lesser offense. The latter condition means that the accused must be convicted of a crime despite the extinguishment of the civil liability.

I am not unmindful that as a private prosecutor, I could suffer the same fate as my law school classmate Evalyn Ursua, private prosecutor for “Nicole”. One fine day, Evalyn found herself fired by Nicole and substituted by another lawyer who signed the affidavit of desistance together with “Nicole”. The possibility is even more pronounced since we have the same City Prosecutor as in the Nicole case; and worse, the counsel of Smith is now Undersecretary of Justice designated as in-charge of the Laude prosecution. The difference though is Jennifer is dead and cannot sign an affidavit of desistance. Moreover, unlike Evalyn who, as our class valedictorian, is far more reserved and academic in her actuations than me; I will be very clear: I will move for the disbarment for any lawyer, private or public, who will talk directly to my clients for any compromise of the Laude case. If Evalyn was more reserved in the manner by which she dealt with the counsels of Smith, expect no such reservations for me. I will scream and kick and will give any such unethical lawyer what they truly deserve: to be purged from the roll of attorneys.

***

On another issue, I was not surprised that the Iglesia ni Cristo ended their five days of mass protest after “they have come to terms with government”. I was vocal against what I saw was a violation of their freedom of religion precisely because I was sure that a terribly unpopular administration would have to strong-arm the Iglesia into supporting its slate in the upcoming 2016 elections. I am sure that Mar Roxas and Leila De Lima got what they wanted.

I do not take this decision against the INC. I completely understand their predicament. The guarantee against state interference in church affairs exists precisely because governments will always attempt to infringe on it. I am only hoping that after 2016, the INC can call it quits with PNoy and his cohorts and can join the nation in henceforth demanding accountability and good governance from the future government.

Had PNoy’s cohorts allowed the legal system to work, the issue that should have been resolved by the Court is whether the internal disciplinary procedures of the INC was consented to by one of its high-ranking ministers and hence, covered by the principle of benevolent neutrality. As it stands, PNoy’s machinations deprived us of what could have been another important INC contribution to our jurisprudence on freedom of religion.

This post first appeared in http://manilastandardtoday.com/2015/09/03/laude-no-deal-/

CANCELLATION NOTICE: Filing of Motion for Preventive Suspension of BOC Lina at Ombudsman


References: Atty H. Harry L. Roque Jr 09175398096 and Atty Joel R. Butuyan 09175229613

Due to unforeseen circumstances, the scheduled filing of the “Motion for Preventive Suspension against BOC Lina” by Omniprime ​at the Ombudsman today, Tuesday, 1 September 2015, at 1:30 pm will not proceed.

Apologies to everyone for the inconvenience this has caused.

Omniprime to file Motion for Preventive Suspension against BOC Lina at the Ombudsman on 1 Sep 2015 at 1:30 pm


Press Release
References:  Atty. H. Harry L. Roque Jr. 09175398096 and Atty. Joel R. Butuyan 09175229613

 

Omniprime Marketing Inc, the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system,  will file a Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina at the Office of the Ombudsman on 1 September 2015, Tuesday, 1:30 pm.

 

Omniprime officials will be accompanied by their lead counsels,  Atty. Harry L. Roque Jr and Atty Joel R. Butuyan.

 

Date:  Tuesday, 1 September 2015

Time: 1:30 pm

Venue: Office of the Ombudsman

Centerlaw warns DOJ against overreaching in INC case


Centerlaw release
Reference: Prof. Harry L. Roque, Jr. 09175398096

 

The Center for International Law (Centerlaw) cautioned the Department of Justice yesterday against overreaching in its investigation on the allegations of an expelled minister of the Iglesia Ni Cristo against the influential indigenous Filipino church.

 

“The freedom of expression and of religion occupy the highest rungs of our constitutional values,” said Prof. Harry L. Roque, Jr., chair of the free expression advocacy group. “In fact, the people’s right to freedom of religion is stymied if they are denied their right to express such freedom.”

 

Prof. Roque stated, “In a modern society, the state and the church must recognize the principle of differentiated responsibility. In this case, the state recognizes that it has no competence to rule on theological or doctrinal disputes. But at the same time, the church must also see that it is the legitimate interest of the state to investigate where a crime has been committed.”

 

The idea of differentiated responsibility – or the recognition of the sovereignty of each sphere of society within its own orbit – is crucial to the survival of a pluralistic and just society.

 

Prof. Roque said the DOJ cannot prevent members of the church from practicing their faith, unless it is shown that “there is a clear and present danger” that what they are doing is already injurious to the life, liberty and property of others.”

 

“Freedom of expression is central to our communal quest for the truths that animate who and what we are as a society,” he said. “We deny such freedom, we tell ourselves we are afraid of these central truths and find no relevance for them in our daily lives, and to the meaning of our existence.”

Enrile and the laws of humanity


I have never been a supporter of Juan Ponce Enrile. He was the strong arm of martial law and he got away with it. While Marcos and his cronies had to flee the country after 1986, he stayed as a hero and managed to keep his loot intact. Even at the height of his popularity as Senate President and Presiding Officer during the impeachment trial of former Chief Justice Renato Corona, I was disappointed to find out that his seemingly erudite handling of the proceedings was because he was getting dictations from his junior associates through an ear piece. Simply put: I am not and have never been a fan of JPE.

But when media asked me a year ago about my opinion on the plunder charges filed against him, I opined that the evidence against him was very weak. Consider: neither Janet Lim Napoles nor any of her associates, ever testified that they had directly talked or dealt with JPE. Furthermore, JPE did not sign any document that would prove any illegal transaction that could qualify for plunder. At most, the evidence pointed to the culpability of his former Chief of Staff, lawyer Gigi Gonzales. Even then,   I find it hard to believe that Gigi would profit from the public coffers or would leave evidence that would incriminate her. So my guess is that even the evidence against Gigi will not hold water.

I was therefore not surprised when the Supreme Court granted JPE bail. As a human rights advocate, I believe the right to liberty is such a cherished right that it can only be denied in capital offenses where the evidence of guilt is strong. Ergo, the presumption is that all accused are entitled to bail except when the evidence of guilt is strong.

While I have not followed closely this latest trial of JPE, I surmised that JPE’s position is that since the information filed against him is unclear as to how he allegedly broke the law, the Ombudsman should be compelled to specify the basis for his culpability. This is why he filed a “bill of particulars”, or a motion to compel the Ombudsman to be more specific in her allegations.

Apparently, the Supreme Court agreed with JPE with the additional reasoning that being 91 years old, he is not a flight risk and should be released on humanitarian grounds.

Critics of this decision, Associate Justice Marvic Leonen included, criticized the decision as deviating from the law and jurisprudence and amounted to special treatment for JPE.

Being the anti-Enrile person that I am, I submit the dissenting Justices are wrong.

The dissent substantially is that the grant of bail is because JPE is rich and powerful. Wrong. The majority decision, assuming that it is even solely on the ground of humanitarian reason, does not violate the equal protection clause. Simply put, this clause is a constitutional guarantee that persons similarly situated should be treated alike. Leonen et al say that the basis of distinction is because Enrile is a Senator and is rich. I submit that the correct basis of distinction is that he is 91 years old. To violate the equal protection clause, Justice Leonen et al should show that there are other 91-year-old individuals being prosecuted for a capital offense and denied bail. I am sure that no one as old as Enrile is detained for a non-bailable offense, or is in jail by reason of a final and executory conviction. Why? Because our penal system recognizes that senior citizens, and those who are sick, should be the first to be released from detention on humanitarian grounds. Every year, the DOJ’s Board of Pardon and Parole prepares a list of convicted felons for release on humanitarian grounds. Again, I am so sure that there is no 91-year-old felon that continues to be behind bars. So if convicted felons could be released because of their senior years as a humanitarian gesture, why should not a mere accused —enjoying the presumption of innocence—who is also a senior citizen, not be released from custody on humanitarian grounds?

Secondly, the minority is wrong when they opined that his release on humanitarian grounds is bereft of legal basis. Under our Revised Penal Code, a trial judge may recommend that a person 70 years of age or older should no longer serve the sentence of imprisonment on humanitarian grounds. Again, this has to do with convicted felons. So why can’t the Supreme Court, by analogy, the collegiate boss of individual lower court judges, release a senior citizen also on humanitarian grounds?

Perhaps, the minority’s error is in failing to recognize that all civilized societies recognize the laws of humanity as binding on all states. This finds articulation in the so-called “Martens clause.” This provides that in default of a specific legal basis, humanity shall continue to be protected by public international law, the dictates of conscience, and the laws of humanity.

I rest my case.

“HOLLOW BLOCK FACED” LINA: SUFFERS SECOND REBUFF BY MANILA COURT


Please click here for a copy of the omnibus order

Lawyer Harry Roque, Jr. called on Bureau of Customs Commissioner Alberto Lina to resign from his post, calling him hollow block faced. “Commissioner Lina should resign immediately. He has been rebuff by both the Executive and Judicial Departments, unless he is hollow block faced in his lack of self respect.”

A day after President Ninoy Aquino reversed   his order to open and tax balikbayan boxes, Customs Commissioner Alberto Lina suffered a   second rebuff when the Regional Trial Court of Manila reversed his decision to cancel a P650 million bidding contract aimed at curbing corruption and smuggling activities at the Bureau of Customs.

The contract cancelled by Lina   is   alleged to be the long sought-after solution to rampant smuggling in the Philippines. It aims to implement a fully electronic, paperless and human contact-free system of recording and monitoring   of   Bureau of Customs transactions. At the same time, the project will link the Philippines with   the other ASEAN countries customs systems in time for the implementation of the ASEAN   free trade in December 2015

In its Order dated August 24, 2015,   the Regional Trial Court ordered Lina to stop the cancellation of the project and   was directed to continue with the signing of the contract and to issue the winning bidder a notice to proceed with the implementation of the project.

In its August 24, 2015 Omnibus Order, the Court enjoined Commissioner Lina and his co-respondents from implementing both the 6 May 2015 Letter of Lina aborting the competitive bidding of the PNSW 2 Project and the 7 May 2015 Cancellation Notice of Jose Tomas Syquia in the meantime that the case is heard upon its merit.

The Bureau of Customs and the Balikbayan Box


Press Release
References: Atty. H. Harry L. Roque Jr. and Atty. Joel R. Butuyan

The public is invited to attend our press conference this Tuesday, 25 August 2015, at 11:30 am, regarding Bureau of Customs Commissioner Alberto Lina’s move to inspect/tax balikbayan boxes and to cancel a PhP 650-million contract to establish an integrated customs.  The contract would have armed the BOC with a modern system to catch fake, tampered, and reused documents, and other devious schemes resorted to by big time smugglers.
 
Date:  Tuesday, 25 August 2015
Time: 11:30 am
Venue: 3/F Conference Room, Bocobo Hall, UP Law Center, College of Law, UP Diliman

The Iglesia’s religious freedom


I’m perplexed and disturbed by Justice Secretary Leila de Lima’s continuing investigation against the Iglesia ni Cristo for an alleged incident of abduction. To begin with, the National Bureau of Investigation, the investigative arm of the DOJ, had already conducted an investigation and has concluded that there was no abduction. According to Atty. Manuel Eduarte, head of the NBI’s Anti-Organized Transnational Crime Division, the case of the alleged abduction is “case closed.” Despite this, De Lima has declared that she will continue her investigation.

Doe this mean that De Lima des not trust her own investigative branch? Or does this mean that as an election lawyer prior to her entry into government 7 years ago, that she is better qualified to conduct the investigation even if she has absolutely no experience as a crime investigator?

The fact that she is a sitting Secretary of Justice insisting on the investigation of a closed case and despite the absence of a complainant brings to mind the act of   former secretary of Justice, Raul Gonzalez, threatening telecommunication and broadcast companies against the playing of the “hello Garci” tape. According to the Supreme Court, such a threat, albeit said verbally and not reduced into writing, constitute a violation of freedom of expression: “In resolving  this  issue,  we hold that  it  is  not  decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions.   x x x  Any act done, such as a speech uttered, for and on behalf of the government in an official  capacity  is covered by the rule on prior restraint.  The concept of an act does not limit itself to acts already converted to a formal order or official circular.  Otherwise, the non-formalization of an act into an official order or circular  will result in the easy circumvention of the prohibition on prior restraint.”  Ergo, mere utterances made by De Lima may be sufficient to violate protected rights.

While I concede that freedom of speech is not involved in De Lima’s continuing resolve to investigate the INC, the reality is that freedom of religion is as important as freedom of expression. Under the Constitution, freedom of religion is a guarantee that the state will not interfere with the freedom to believe, referred to as the “free exercise clause”; and that the state will not favor a religion, referred to as the “establishment clause.” Under the latter, the duty includes the obligation not to interfere with the affairs of a church.

Perhaps, De Lima’s action may be justified had there been no prior investigation conducted by competent authorities. But the best investigative arm of the government has precisely declared the matter as “case closed.” This, then, makes De Lima’s acts suspect for violating the INC’s freedom of religion. It is tantamount to interference with what clearly is an internal strife within the INC, assuming that there indeed is an ongoing one.

What makes matters worse is that like me, De Lima is also mulling a run for the Senate. It is no secret that the INC is politically influential because it resorts to bloc voting in elections. Her act therefore, aside from constituting unjustified interference with church affairs, appears to be politically motivated. But unlike ordinary politicians who will court the INC, she is resorting to a modified form of “hulidap”: political blackmail. Her act could be construed as “support me and my party or I file charges against you in court.”

All public officials, and even ordinary citizens, have the duty to uphold our penal laws. That is why even ordinary citizens are empowered to resort to citizen’s arrest when a crime is committed in their presence. So did De Lima witness such a crime or is she inventing one given the NBI’s earlier terminated investigation?

The INC has had invaluable contribution to our jurisprudence on freedom of religion. In one case, our Supreme Court nullified a law that recognized a “closed-shop” policy that prohibits the hiring of non-union members. Jovito Salonga, my grand uncle, successfully argued that the law violates the religious freedom of the INC since it prohibits its members from joining unions. In another case, which is one of my favorites, the Supreme Court declared that the broadcast of the INC’s attacks against the catholic church is protected speech: “The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

To be sure, the INC is no stranger to government’s persistent bullying. What De Lima and her party mates should learn from history is that the INC has never given in to such bullying and will go to court to assert its freedom of religion.

Kudos to the INC!

De Lima: Respect Freedom of Religion


Centerlaw release
Reference Prof. H. Harry L. Roque, Jr.

UP College of Law Professor Harry L. Roque today called on Justice Secretary Leila M. De Lima to respect the freedom of religion of Iglesia ni Cristo. “Sec. De Lima should cease and desist from her witch hunt of Iglesia ni Cristo. In the absence of a complainant, she should not investigate the alleged intramurals within the Iglesia ni Cristo. To persist in investigating the local church would be to violate the constitutional right of freedom of religion which includes both a guarantee of freedom to believe and non-intervention with church affairs.”

Roque further added that Philippine jurisprudence has respected the Iglesia ni Cristo’s religious tenets including its right not to allow its members to join labor unions. In another case, the Philippine Supreme Court upheld the stinging attacks of the Iglesia ni Cristo against the Catholic Church in a television program. In that case the Supreme Court ruled that “the bedrock of freedom of religion is freedom of expression. The antidote to bad theology is more theology.”

Roque also express dismay that De Lima’s witch hunt will lead to a chilling effect on the exercise of freedom of belief. “If there indeed was a crime committed, let the complaint be filed with the police, the fiscal’s office and eventually the court. Unless such a complaint is filed the Justice Secretary should leave the Iglesia ni Cristo alone.”

KING FAMILY CONDEMNS USE OF BUSINESSMAN’S DEATH IN DE LIMA SENATE PROBE 


OFFICE OF REP. HARRY L. ROQUE

PRESS RELEASE

16 SEPTEMBER 2016

REFERENCE: REP. HARRY L. ROQUE
KING FAMILY CONDEMNS USE OF BUSINESSMAN’S DEATH IN DE LIMA SENATE PROBE 

The family of slain hotelier Richard King condemns the use of the business man’s death in the Senate investigation on extra-legal killings, Kabayan Party-list Rep. Harry L. Roque said Friday.
Roque, who used to be counsel for King, said family “is appalled by the gall of Senator Leila de Lima in dragging the death of the Crown Regency owner in her attempt to smear the name of President Duterte.”
“The King family has already undergone enough trauma with the death of Richard. They are now being subjected to undue emotion distress because of the vain desire of Senator De Lima to discredit the President,” Roque added.
Moreover, Roque said the King family is strongly denying the love triangle angle being peddled by De Lima’s witness Edgar Matobato.
“Police Supt. Leonardo Felonia was charged for King’s murder. Not once was it the name of Vice Mayor Paolo Duterte ever mentioned in the course of the investigation,” Roque said.
“The story that seems to be the most popular is that a businesswoman paid ₱20 million to have Richard King killed. She contacted Felonia to look for killers,” he added.
Roque said as a lawyer, he noted Matobato had “major inconsisrencies” in his testimony, including saying he was at the Presidential Anti-Organized Crime Task Force (PAOCTF) headquarters in 2003 when the task force was actually abolished in 2001.
“This was Senator De Lima’s defense strategy: stage an offense knowing that the truth on her drug dealings will soon be revealed at the House of Representatives next week,” Roque added.
Moreover, the neophyte lawmaker warned about the possible plot of the United States to unseat President Rodrigo Duterte.
“The Senate testimony came immediately after the President confirmed he wanted to pursue an independent foreign policy. It is too much of a coincidence that the testimony intended to pave the way for his ouster came immediately after President Duterte declared his independent stance,” Roque said.
“Remember that US Ambassador Goldberg was kicked out of Bolivia for stirring a coup,” he added.
Bolivian President Evo Morales expelled Goldberg out of the country in 2008 and declared him persona non grata for “conspiring against democracy and seeking the division of Bolivia.”

Statement on Denial of Bail for Former Gov Joel Reyes


OFFICE OF REP. HARRY L. ROQUE

PRESS STATEMENT

08 SEPTEMBER 2016

REFERENCE: REP. HARRY L. ROQUE

STATEMEMENT OF REP. HARRY L. ROQUE ON THE DENIAL OF BAIL OF FORMER PALAWAN GOV. JOEL REYES
I am relieved that ex-Governor Joel Reyes was denied bail in the murder case of Dr. Gerry Ortega. The court’s decision to deny bail shows that the evidence of guilt is strong. This brings us closer to convicting the first ever principal for the killing of a journalist and finally bringing justice and closure to the family of Dr. Ortega.
I was private prosecutor in the case and was personally prosecuting the case up until June 30 of this year when I assumed office as party-list representative.  I presented star witness Rodolfo Edrad, Jr. (aka Bomar) and conducted the cross examination of Joel Reyes. My law office and the Center for International Law (CenterLaw) remain private prosecutors in the case.
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On the Declaration of Pres. Digong


OFFICE OF REP. HARRY L. ROQUE 

PRESS STATEMENT

03 SEPTEMBER 2016

REFERENCE: REP. HARRY L. ROQUE

STATEMENT OF REP. HARRY L. ROQUE ON THE PRESIDENT DUTERTE’S DECLARATION OF STATE OF LAWLESS VIOLENCE
Following President Rodrigo Duterte’s declaration of a state of lawless violence in the wake of the blast in Davao City that claimed the lives of at least 15 people and left more than 60 others injured, we must see to it that civil liberties continue to be protected even when the President has exercised his calling out power.
To clarify, the President’s declaration of a state of lawless violence is not a declaration of Martial Law, but rather merely an exercise of his calling out power. As ruled by the Supreme Court in the Integrated Bar of the Philippines vs Zamora (G.R. No. 141284. August 15, 2000), the only criterion for the exercise of the calling out power is that “whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion,” with the implication that the President is given full discretion and wide latitude in the exercise of this power.
However, such declaration by the President should not lead to the suppression of civil liberties, even though there is a tendency for the government to do so as evidenced by the arrest of Prof. Randy David in February 24, 2006 following President Gloria Macapagal-Arroyo’s issuance of Presidential Proclamation 1017 as implemented by General Order No. 5 declaring a state of national emergency.
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Privilege Speech vs Killings


 PRIVILEGE SPEECH

 

Party-list Representative H. Harry L. Roque, Jr.

August 1, 2016

House of Representatives, 17th Congress

 

The Duterte Presidency and the task of the simultaneous realization of rights and norms

 

Mr. Speaker, I stand before you today on a question of personal and collective privilege. My aim today is to clarify certain basic principles that must serve as important pillars of our society – of any society, in fact – even as we embark on a new chapter in our country’s political life.

 

Lest I be misunderstood, I speak before you today not to criticize, but to engage each of us in a necessary and urgent discourse for public justice and the common good. Only last week, we heard President Rodrigo Roa Duterte address the nation for the very first time before the House of Representatives and the Senate of the Philippines jointly assembled.

 

The President’s SONA and my legislative vision

 

His speech, by turns candid and urgent, hammered home the compelling imperatives of our time: among many pressing concerns, the need for government to be responsive to the needs of the suffering masses and the heart-breaking and griding poverty of daily lives, the festering cancer of corruption in all levels of the government, the clash between economic progress and environmental protection, the irrelevance of a GDP-led economic development where a greater majority of our own people can barely make both ends meet, if at all; the long, pained cries for peace in many of our country’s conflict zones, the fearsome specter of the Philippines becoming a state taken captive by narcopolitics and unrestrained criminality.

 

I join the President in his concern for the least of our people.

 

I am more than pleased that in his economic and social programs, we see a certain responsiveness and empathy unlike what we have seen in the programs of past administrations. Although I am but a new legislator, I wish to contribute in my own small way to the achievement of these laudable and very urgent economic and social measures.

 

In fact, it is with no small pride that I say that on the very first day of work at the House of Representatives of the 17th Congress, on June 30, I filed several bills, not a few of which actually anticipated with key items in President Duterte’s legislative agenda that he would later anounce in this first State of the Nation Address.

 

I refer to House Bill 223, on a proposed Whistleblower’s Act, House Bill 224, on a proposed Freedom of Information Act, House Bill 225, a bill providing for Free and Universal Health Care for all Filipinos, and House Bill 916, the Anti-ENDO Act.

 

These are just a few of proposed pieces of legislation that my office as a party-list Representative is committed to work for to help the Duterte Administration achieve its vision of a just, humane and equitable society.

 

The values that make society just, human and progressive

 

Yet, there are certain assertations in President Duterte’s SONA that I must confront –admittedly with some measure of trepidation, knowing as I do that he is at a historic high as far as his trust rating as President is concerned.

 

That I now stand before you today on a question of personal and collective privilege is not just because I have been fighting for recognition of certain of these societal values in the last two decades or so of my professional life; it is really that I cannot simply shirk from my duty as a citizen, a lawyer and a legislator to engage in a public discussion about the very values that, I believe, make any society just, humane and progressive.

 

Not too long ago, the eminent sociologist C. Wright Mills wrote – I am paraphrasing here from memory – about the tragedy of societies losing the values that defined what they once were; it becomes a tragedy made doubly worse when societies don’t even know the values they have lost in the course of their history.

 

Human rights and human dignity

 

Mr. Speaker, I must admit I was taken aback when President Duterte declared with utmost conviction, that – and I quote –“Human rights must work to uplift human dignity. But human rights cannot be used as a shield or an excuse to destroy the country – your country and my country.”

 

I was taken aback because one, it was met with wild applause from among us, and two, because as a statement, it brought to a stark if incongrous relief all the other statements in the same speech that said otherwise.

 

To begin with, the President just before that said that “the Rule of Law must at all times prevail, and that his government favors a “human approach” to “development, and governance”; and then a few paragraphs down, he would then lament the “loss of life” in the seemingly endless conflicts of the Moro and communist insurgencies that are “getting bloodier by the day.”

 

I very well see that President Duterte is a religious person, having himself acknowledged divine providence in his rise to the most powerful seat in the land. In his SONA, he also spoke about the inseparability of God and the State. While we may disagree with respect to the specifics of such relationship between religion and the public sphere, I welcome his implicit recognition that all of statecraft cannot be without limits to its exercise of power, if we were to begin with the assumption that all political power is ordained of God and therefore, subject to a higher sovereignty.

 

But human rights not only uplifts human dignity; in fact, human dignity is the foundation of human rights.

 

How we got to such conviction is a long story, but today, so much of legal and historical scholarship has acknowledged that in the Western tradition, at least, it is rooted in reasoning and reflection over the last millenia or so on the notion that human beings are image bearers of the Divine.

 

The secular account, although eschewing the Christian metaphysics of the body, can neither escape the claims of the human to certain basic and absolute entitlements, for simply being human: our humanity demands recognition and respect. It does not go beyond the fact that we humans bleed when cut, cry when hurt, and laugh and jump when happy.

 

It is the glimpse of recognition of a shared experience and community that we see when we look in the eye of even our toughest political and military adversaries.

 

It is the pained hope we witness in small and frail children laboring in the blight of urban dumps so they will have food to eat – their first and only meal for the day; we find it in the determination of street dwellers to care for their young and to send them to school, no matter waht. We find it in a mother’s love for her drug-addicted son as he rambles incoherently while staring into nothing, his brain cells too soaked in toxic chemicals to allow him to think clearly and rationality.

 

Human dignity demands recognition when we see the Quezon City jail built to house 800 inmates now overflowing with 3,800 inmates.

 

The bare facts of human existence stare back at us and ask us why we should care that this facility built 60 years ago is now filled to the brim, no small thanks to the sudden influx of inmates brought in by the anti-drug campaign of the Duterte administration.

 

If they are less than human, we can all look away and forget about the utter misery of their existence. I wince just reading an account of the conditions that torment the inmates at the Quezon City jail as we speak (and I quote):

 

 

Men take turns to sleep on the cracked cement floor of an open-air basketball court, the steps of staircases, underneath beds and hammocks made out of old blankets. Even then, bodies are packed like sardines in a can, with inmates unable to fully stretch out.

 

When it rains, the conditions are even worse as inmates cannot sleep on the basketball court, which is surrounded by the cells in decaying concrete buildings up to four storeys high.

 

The cash-strapped national government has a daily budget of just P50.00 for food and P5.00 for medicine per inmate, although with the bulk buying of supplies, Quezon City Jail detainees have a sustainable diet of soup, vegetables and meat.

 

Pails of water are used to flush the scarce toilets, with the stench compounded by the rotting garbage in a nearby canal.

 

(unquote)

 

(Incidentally, a suit I and my colleagues at the Center for International Law had filed filed has been pending in the Supreme Court for many years now – the case of Mr. Albert Wilson – and it is a suit asking the Court to take notice of the torturous conditions in many Philippine jails and to compel the Executive Branch to do something about it. Unfortunately, our Supreme Court has been taking its own sweet time in resolving the case).  

 

Human dignity is the sublime pathos – more than melodrama – invoked by the photographs of a woman embracing the lifeless and bloodied body of her husband, 29-year old Michael Siraon, gunned down in the early morning just days ago in Pasay City by unidentified assasins who threw next to him for effect a piece of cardboard identifying the victim as a drug pusher. Ironically, he was, according to his wife Jennilyn Olares, someone who had voted for Duterte in the Presidential elections in May.

 

Mr. Speaker, it is just incongrous to say that human rights can be used to destroy society or restrict human development. In fact, in the history of the development of human rights, the only reason why we can all speak today of human development is precisely because civilization has accorded pride of place, over a long struggle for recognition, to the very idea of human rights founded on human dignity.

 

From the trenches of Verdun and Somme in World War I, to the mad slaughter in the streets of Manila and Shanghai and the genocidal horros witnessed in the gas chambers of Auschwitz in World War II, the international community has come to a realization of the supreme worth of an individual, before then an invisible entity in international law, and mere putty in the hands of states, emperors and despots.

 

Raison d’etat versus norms and freedoms

 

Presidente Duterte promises to uplift the conditions of the common tao. But he has also launched a bloody drug war where the dead bodies piling up are mostly those of the same poor throng to whom he had promised economic and social salvation.

 

Perhaps, without President Duterte meaning it, we are being made to choose between the raison d’etat of law and order for economic and social development and human rights norms and fundamental freedoms.

 

But the argument is not even original.

 

Indeed, this has been a variation to a common theme of long standing – of human rights being an imposition of an imperialistic UN or some western interest and we in Asia and the ASEAN are all the better for it the sooner we reject such an imposition.

 

It’s an argument as old as the Cold War, when the communist bloc rejected civil and political rights in favor of social and economic rights.

 

Indeed, it has been argued more than enough in the context of Asia and the Assocation of Southeast Asian Nationas (ASEAN) that advances to social and economic rights – to the “right to development” – can be made without regard for non-derogable core human rights norms – of the right to life, liberty and security.

 

But philosophers and economists of various stripes and shades have long debunked this nebulous theory that human rights norms stand in the way of development.

 

The state’s task: simultaneous realization of rights and norms

 

For example, Amartya Sen, the Nobel Prize winning Indian philosopher and economist, has argued that in fact, civil and political freedoms are at the core of development. These freedoms enable full human functioning, and in turn, full human functioning make possible the conceptualization of economic needs and the shaping of values and norms vital to societal development.

 

Stated otherwise, it is foolish to conceive of a normative statecraft that privileges one norm over the others. I concur with my former professor in international law, Dame Rosalyn Higgins, who would put it thus:

 

I believe profoundly in the universality of the human spirit. Individuals everywhere want the same essential things: to have sufficient food and shelter, to be able to speak freely; to practice their own religion or to abstain from religious belief; to feel that their person is not threatened by the state; to know that they will not be tortured, or detained without charge, and that, if charged, they will have a fair trial. I believe there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development. They are as keenly felt by the African tribesman as by the European city-dweller, by the inhabitant of a Latin American shanty-town as by the resident of a Manhattan apartment.

 

If I may elaborate on what her words mean for me: the need for the recognition of fundamental rights is universal, regardless of culture, religion or nationality; moreover, we cannot grant one right and deny another. The realization of one norm cannot be pursued independently of the others, precisely because the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, to the detriment of of the others.

 

Thus, the 100th article of the Vienna Declaration of the 1993 Vienna World Conference on Human Rights declares:

 

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

 

Thus, it is the historic task of states and governments to move towards what philosophers have called the “simultaneous realization” of rights and norms.

 

Mr. Speaker, my honored colleagues in the House of Representatives, our people must not be made to choose between what, to begin with, are inter-related values, rights and norms.  

 

If law and order is important to development, so are civil and political freedoms. Precisely, law and order is one where civil and political freedoms are never dispensed with. Such a conviction is deeply rooted in the very idea of a Rule of Law, where governments are precluded from whimsical and arbitrary actions, and where everyone – rich or poor, mighty and low – is treated fairly and equally, and where a government official enjoys the same legal entitlements as the lowly private citizen.

 

Right to Life as Foundational Norm

 

This is not to say that there are no foundational or core human rights; but this is to say that foundational rights anticipate all the other rights and all the other rights are inconceivable and meaningless without foundational rights. By way of a relevant example: the right to life is foundational to all other rights.  

 

The Universal Declaration of Human Rights (UDHR) puts it thus:

 

UDHR Article 3.

 

Everyone has the right to life, liberty and security of person.

 

Now the UDHR was not and is not a treaty. When it was passed as a resolution by the UN General Assembly in 1946, it was but something of a veritable wish list of rights that all states ought to recognize and adopt. It has since become the preamble to all the other human rights treaties because in time, it inspired and gave birth to a host of international agreements granting human rights protections; it is now considered an an authoritative index of human rights and norms.

 

The Internatonal Covenant on Civil and Political Rights (ICCPR), to which the Philippines has been a state party since 1966, states:

 

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

 

Art.III, Section 1 of the 1987 Charter, the Bill of Rights, closely mirrors the language of the ICCPR:

 

SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

 

Which is why the right to life is non-derogable, whether in times of peace or times of war. It cannot be denied anyone without due process of law, regardless of the circumstances. The right to life means it is the highest of all societal values, so that it cannot be easily dispensed with.

 

You kill someone without due process, you deprive him not just of his right to live, but of all of the other rights to which he is entitled. Thus, even under International Humanitarian Law (IHL), or the Law of Armed Conflict, the right to life is not obliterated.  

 

Thus, even in times of armed conflict, Prisoners of War (POW) cannot be executed for alleged crimes without minimum guarantees of due process. They are entitled to a fair trial where all the recognized standards of due process in international law are followed. The same protections are accorded to civilians and other noncombatants.

 

Both the UN Special Rapporteur on Extrajudicial Killings and Summary Executions and Human Rights Watch have observed that a “Kangaroo” court such as that conducted by the New People’s Army (NPA) does not meet the minimum guarantees of fair trial and due process under international law.

 

Thus, it is not a wise, let alone, legal and constitutional, government policy to make the NPA revolutionary courts the government’s partner in carrying out sentences against alleged criminals.

 

You take away that person’s life, you also take away his right to free expression, right to a nationality, right to privacy, right to water, right to housing, right to travel, and so on; you kill his right to dream, to imagine a better future, to kiss his wife and hug his children, to be a better person than he is now. It is meaningless to talk about free speech when everyone who is supposed to enjoy it is dead.

 

This is why I feel strongly about extrajudicial killings targetting journalists: because to kill journalists is to permanently deny them their right to free expression. Killing without due process is the ultimate form of censorship because its effects are final and eternal.

 

As you all know, I have been a private prosecutor in the Maguindanao Massace, representing the families of 15 of the 58 victim of what has been described by international organizations as the single worst attack on press freedom in the human history.

 

If there is anything to say about my experience in the last six or so years prosecuting this case, it is the failure of the justice system to provide and effective remedy to the victims of human rights violations. Perhaps it is time to ask Senator Leila De Lima, who was Secretary of Justice during these last six years, what she has done to address the culture of impunity in the Philippines as exemplified in the Maguindanao Massacre.

 

Nothing has been done to improve the one-percent conviction rate in the prosecution of extrajudicial killings.

 

Mr. Speaker, President Duterte himself has announced the creation of a new Task Force to investigate the killings of journalists. This is not the first of such Task Forces. I hope it will be the last. The task forces of the past have all proven to be ineffective, largely because they ended doing no more than coordination of government agencies that added more layers to an already overburdened and complex prosecutorial system. Without actual vigorous investigation and successful prosecution of cases, this new Task Force will go the way of its predecessors, nice to read on paper, but virtually useless.

 

All this really calls for a massive overhaul of our criminal justice system, including the revision of our Rules of Court, which has relegated the task of investigation to the victims themselves and turned most of our prosecutors into pencil pushers working before desks laden with so much paper. There is also a need for legislation to put into effect the long-standing Minnesota Protocol, or the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

 

This Manual prescribes what government must do in cases where those involved in summary executions are suspected to be under the color of government authority.

 

Mr. Speaker, there is another matter in the President’s speech that I find disturbing. While President Duterte may not have meant it in that way, his pronouncements about bona fide media that he considers to be his partners in his quest for development, implies that there are those who are not. This recalls his earlier pronouncements about the media, which has stirred the proverbial hornet’s nest.

 

The Power of a President’s Words

 

If there is anything that we can learn from the history of political rhetoric, it is the fact that words properly marshaled and deployed for a proper purpose can move a nation – even nations – to salutary ends. Ideas when expressed have consequences.

 

Without doubt, President Duterte is an engaging and powerful weaver of stories. He is able to endear himself to the broader masses of Filipinos with his down-to-earth, folksy manner, of speaking. But when he likes to, he can hold up on his own when addressing a gathering of leaders of the different spheres of society.

 

I look at my social media feed and I am worried by what I see. President Duterte’s anti-drug campaign has so polarized society that to speak out against the spate of killings all over the Philippines following the launch of such campaign appears to be interpreted as a tacit support for drug traffickers.

 

Thus, media reporting on these killings are being taken by some quarters to be solid proof that journalists are in the pay of drug lords and that their pockets are being lined with drug money to keep them from exposing the drug syndicates.

 

Contemporary experience has shown how perilous it is for freedom of expression whenever governments deign to villify media for not toeing the official line. In my years as a lawyer working in various ASEAN states to promote free expresison, I have seen various shades of repression in the name of law and order. And it is not pretty.

 

 

Our own Supreme Court has warned against the dangers of official pronouncements warning media about some imagined violations of the law. In Chavez v. Gonzales, the High Court struck down mere press statements as acts that constituted content-based prior restraint in a case involving, if you can still recall, the publication or broadcasting of the Hello Garci tapes. It declared thus: (quote)

 

in resolving this issue, we hold that it is not decisive that the press statements made by Defendants-Appellees were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by Defendants-Appellees while in the exercise of their official functions. Undoubtedly, Defendant Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. (unquote)

 

Thus the High Court said that a criterion to determine whether the act of an Executive official is tantamount to prior restraint is this: “Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint.”

 

The majority opinion thus proffered an expanded understanding of an “act” as a legal concept in relation to free speech and free press issues: (quote)

 

The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non-formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. (unquote)

 

The import of the majority’s rationale comes to in stark relief when viewed in relation to this finding that the assailed acts of the public officials actually created a chilling effect on media:

 

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less than the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.

 

 

Here, the press statements of the Secretary of Justice were struck down for unconstitutionality, these having been considered as instances of prior restraint for the chilling effect they raise on free speech.

 

Imagine the power of the words of a President like President Rodrigo Roa Duterte.

 

 

State Responsibility for human rights and humanitarian law

 

In the international legal system, the state is the primary domestic institution charged with the task of ensuring the promotion and protection of human rights.

 

This is so for the following reasons:

 

First, States are the principal parties to human rights instruments as well as to international humanitarian law conventions, and are therefore the principal institutions charged with implementing them in their respective jurisdictions. Thus, the failure of the state to comply with its obligations under the same treaties is a breach of its obligations and engages its responsibility under international law.

 

Mr. Speaker, we simply cannot dispense with our obligations under international law with impunity. We have to be consistent whenever we invoke international law, as in the landmark Permanent Court of Arbitration ruling in the South China Sea Arbitration. If we want other countries to abide with their international obligations, we should as well do so.

 

Second, as early as 1928 in the Las Palmas case where the Philippines lost title over the island of Las Palmas (or Miangas) to Indonesia, international law has always recognized that states, in the grant by the international legal system of sovereign and territorial rights to them, have concomitant obligations to the protection of human rights. As held in that case by the lone arbitrator Max Huber: (quote)

 

Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. (unquote)

 

Thus, this obligation under international law includes the prosecution of all cases of extrajudicial killings, whether or not perpetrated by state agents. The state cannot stand idly by while unidentified gunmen ride as marauding parties in the streets, killing people with impunity. Such gross negligence by the state amounts to supporting impunity and lack of public accountability.

 

Third, it is true that there are now various international mechanisms to hold perpetrators of international crimes responsible for their actions; for the most part, however it is the institution of the state as a public legal community that plays a lead role in ensuring that the demands of public justice and the common good are best served within its jurisdiction.

 

This is because the state’s law enforcement and prosecutorial arm for protecting and promoting public justice and the common good in the domestic legal order sets it apart from other societal institutions; only the state is the immediate institution in the domestic sphere entrusted with the legal duty – backed up with the force of arms – to protect and promote the Rule of Law.

 

For example, the International Criminal Court (ICC) – the first permanent international tribunal with jurisdiction to hear individual crimes involving cases of gross violations of human rights and humanitarian law – generally works under the principle of “complementarity,” where the state is given the primary jurisdiction to try these cases, and the ICC only steps in when the concerned state fails to prosecute an international crime.

 

It is worth noting that we now have a law implementing our obligations as party to the Rome Statute that created the ICC, imperfect as it is, the Philippine International Humanitarian Law Act, or Republic Act 9851 passed into law in 2010. It is a law that begs to be enforced, as despite its passage six years ago, the violations of IHL continue on either side of the fence.

 

In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure. This is something that we cannot stand for.

 

Thank you, Mr. Speaker.

 

 

 

–  

1

 

Roque Files Bill Protecting Spratlys and establishing Spratlys Development Authority


OFFICE OF REP. HARRY L. ROQUE
 
 
PRESS RELEASE
07 AUGUST 2016
REFERENCE: REP. HARRY L. ROQUE
 
 
HARRY ROQUE FILES BILLS DECLARING SPRATLYS AS PROTECTED AREA, CREATING SPRATLYS DEVELOPMENT AUTHORITY
 
Kabayan Party-list Representative Harry L. Roque has filed two bills seeking to declare the Spratly Group of Islands a protected area under the National Integrated Protected Areas System (NIPAS) Act of 1992 and creating the Spratlys Development Authority.
 
In his explanatory notes, Roque said the bills were “filed in order to strengthen the Philippines’ claim of sovereignty and sovereign rights over the Spratly group of islands and its maritime areas, a region that contains vast amounts of natural resources – including oil and gas and fisheries – vital to the growth and development of the Philippines.”
 
“To prevent the further denigration of the marine and environmental resources within the island group, the State must establish the Spratlys as a protected area, granting it both the mantle of protection under Philippine laws and the Constitution, to allow the government to properly assess and administer the area, consistent with the Permanent Court of Arbitration’s ruling in the South China Sea Arbitration case,” he said.
 
“To maximize the use and conservation of such resources, a development authority should be tasked to administer the area, following the success of the various conversion authorities under Republic Act 7227,” he added.
 
The Spratly NIPAS bill seeks to declare the Spratlys as Spratly Islands Resource reserve, with the islands classified as a national park, and its peripheral areas as buffer zone.
 
The Spratly Islands Conversion Authority (SICA), meanwhile, will have jurisdiction over the Spratlys and will be tasked to “adopt, prepare and implement a comprehensive and detailed development plan embodying a list of projects for a sound and balanced development consistent with ecological and environmental standards.”
 
The SICA will also have the power to plan, program and undertake the readjustment, relocation, or resettlement of population within the Spratly group of islands as may be deemed necessary, in coordination with the appropriate government agencies and local government units.
 
Roque filed the bills after the Permanent Court of Arbitration’s ruling in favor of the Philippines the status of many features in the contested Spratly islands and Scarborough Shoal with both scientific and legal criteria, in relation to a resource-rich Exclusive Economic Zone (EEZ) and continental shelf.
 
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