As a lawyer myself, I grieve for the heinous murder of two lady lawyers in Mindanao the other day. They were victims (46 in all) of the infamous politically-motivated Maguindanao massacre. Maguindanao is a Muslim-dominated province in the beautiful but violent Philippine island of Mindanao. Also killed were more than 12 media practitioners and many other ranking political personalities in the province belonging to the opposite camp of the incumbent Muslim provincial governor who heads the Ampatuan political clan. His clan is affiliated with the ruling (but soon to expire lameduck) political party of Pres. Gloria Arroyo.
The two lady lawyers were Atty. Concepcion “Connie” Brizuela, 56, and Atty. Cynthia Oquendo, 35. They were the election lawyers of the Mangudadatu political clan, which is the strongest political opponent of the Ampatuan clan in Maguindanao province. Known as independent-minded and courageous lady advocates of alternative lawyering and human rights, lawyers Brizuela and Oquendo were active pro bono officers of the Union of Peoples Lawyers in Mindanao (UPLM), a local voluntary bar association in that province known for its public interest advocacy.
When a republican country, like the Philippines, directly or indirectly abets the killing of lawyers and journalists, either by reason of selfish political loyalties and unconscionable greed for power of those in command of the levers of local and national power and economic wealth or by reason of the lack of political will to enforce law and order and to defend the justice system on the part of the elective and appointive leaders and bureaucrats of the government or by reason of gross stupidity and glaring ignorance of the rule of law of such inutile leaders, it will not take very long before its helpless and demoralized people see the violent death of its much-cherished democratic system. Such a situation will definitely produce a civil war in any society.
The Maguindanao massacre will go down in the international history of mass media as the worst ever killing of so many journalists on one single date and at one single place. It has been occupying the front pages and the headlines of major world dailies and television channels these past days. It is one of the worst black eyes to the current world image of Philippine democracy (destroying whatever positive points the Philippines has recently garnered by reason of Manny Pacquiao's global historical feat in the realm of boxing and Efren Penaflorida’s much-acclaimed global "CNN Hero" award).
Below is a comprehensive news feature on the killing of the above-named lady Filipino lawyers.
I am also reproducing below a news item about the strong condemnation of the Maguindanao massacre in separate statements issued by the United Nations and the European Union.
Indeed, the whole world should unite to condemn and repudiate the massacre to teach the useless and corrupt Filipino political leaders and military and police generals a lesson by exposing them to global humiliation.
Humiliation is the best and the only teaching method that thieves and pirates disguised as elected politicians in expensive coats and ties and generals in shining military uniforms seem to seriously recognize.
Two spunky women lawyers among the dead
By Leila Salaverria, Jeffrey M. Tupas
Inquirer Mindanao
First Posted 04:14:00 11/25/2009
MANILA, Philippines—One was a passionate grandmother who refused to abandon her advocacy despite death threats. The other was a young, artistic mother who quietly fought for her beliefs.
The two female lawyers, who were reportedly slain in the massacre in Maguindanao on Monday, were among those who had kept hopes for peace and respect for human rights alive in Mindanao.
Concepcion “Connie” Brizuela, 56, and Cynthia Oquendo, 35, were with members of the Mangudadatu clan and at least a dozen media practitioners who were waylaid and murdered in Maguindanao by a group of armed men now being linked to the Mangudadatus’ political rivals.
Brizuela was a classmate of Buluan Vice Mayor Esmael “Toto” Mangudadatu, who had asked his wife, two sisters, Brizuela and Oquendo to file his certificate of candidacy for governor of Maguindanao in Shariff Aguak town.
Brizuela, the treasurer of the Union of Peoples Lawyers in Mindanao (UPLM), is known to her friends as a brave woman, such that her fellow lawyer Beverly Musni refused to believe that Brizuela was gone unless her own family relayed the news.
“She will fight. She will live. She’s not someone who would give up easily,” Musni told the Inquirer. “Her laughter is full of life. I refuse to believe she’s gone.”
Musni said that without official word from Brizuela’s family, she would consider her friend abducted.
Wellspring of strength
Brizuela has three grown children and doted on her grandchildren. To her friends and colleagues, she was a “wellspring of strength,” Musni added.
Brizuela’s small frame concealed the big heart she had for the oppressed, someone whose voice emanated from the pain and struggle of the victims of human rights violations, according to her friends.
Over the years, Brizuela was no stranger to death threats.
Brizuela had the gentleness of an “Ilongga” who was also firm and determined.
She was not known for being reckless as she would tell fellow human rights lawyers to be reminded of the dangers and threats that come with the territory.
Undeterred by the powerful
“In her diminutive frame loomed large a feisty people’s lawyer and human rights defender undeterred by the rich and the powerful in Mindanao,” said Bishop Felixberto Calang, convenor of the Initiatives for Peace Mindanao (InPeace), the group that Brizuela helped convene.
Calang said Brizuela had been at the forefront of the campaign against the climate of impunity.
“We are outraged that it has caught up with her through this tragic and gruesome death. We will miss her,” Calang said.
Lawyer Carlos Isagani Zarate said Brizuela’s death was revolting. “She’s a great loss not only to us but also to the people whose rights she fought for. We lost an elder sister. She will be sorely missed,” said Zarate, UPLM secretary general.
Zarate said Brizuela could not allow injustice to happen to anyone, without her doing something about it. “She always stood for the people. She was a people’s lawyer,” the
UPLM chief said.
Brizuela, one of the founding members of UPLM, the precursor of the National Union of People’s Lawyers (NUPL), was also one of those who convened the group Lawyers for Peace.
Libel suit from Piñol
A former broadcaster who did not flinch in criticizing wrongdoers, Brizuela had been one of the leaders of a group fighting for good governance in Cotabato.
In 2005, Brizuela and three others were jailed following a P5-million libel suit filed against them by former North Cotabato Gov. Emmanuel Piñol.
Brizuela, a Kidapawan native, came from a landed family but embraced human rights and public-interest cases when she entered the law profession, according to Zarate.
She also handled cases against military officials, the police and civilian armed groups.
“This was when she impressed us. She chose to do public-interest lawyering among women,” Zarate said.
While undeterred by threats, Brizuela also knew how to protect herself.
When the menacing messages started coming in, she relocated to Bacolod, although she crossed to Mindanao to attend to her cases, Zarate said.
Dutch fact-finding mission
Bayan Muna party-list Rep. Neri Colmenares, who worked with Brizuela in the NUPL, remembers his colleague as a passionate woman who actively participated in the fact-finding mission of the Dutch Lawyers for Lawyers group that probed the threats and harassment against lawyers and judges.
“I received a message that more people will be killed and one of them would be me … I received several death threats,” Brizuela told the mission then.
The group had produced a video report of its probe, and in it, Brizuela recalled her experiences and warned of the danger of attacking lawyers and justices.
“If they can kill lawyers, practically anybody. If they can kill judges, where cases are pending, then they can do that to ordinary people,” Brizuela said.
Oquendo at MSU
Oquendo was also a member of the UPLM.
Her friend, Violy Gloria, an Iligan-based journalist, recalled that Oquendo was involved in activism and health-related causes when they were at Mindanao State University (MSU). Oquendo had taken up nursing there.
But Oquendo’s brush with the militant life did not sit well with her mother, and she was later transferred to Cebu where she took up political science and became a lawyer, Gloria said.
As a lawyer, Oquendo went for “alternative lawyering” and was active in social justice movements. Gloria said that though she and Oquendo had not been meeting regularly, they had kept in touch through social networking sites. She learned that Oquendo had gotten married and had children.
Playing piano
In school, Oquendo was active in church and expressed herself through playing the piano, according to Gloria.
Oquendo did not keep an active social life back then and devoted her time to studying, activism and church, she added.
Oquendo was a quiet girl, but she was not weak. She stood fast for what she believed in, according to Gloria.
“As I know her, if she will be in a conflict situation, she would not be on the frontline. But her strength is that she will stand for what she believes is right,” Gloria said.
Friendster profile
Oquendo’s Friendster profile listed some of her hobbies—defending, cross-examining lying witnesses, ukay-ukay (used clothes), art classes and driving alone.
She was also interested in mental telepathy and the unknown. Her profile picture was that of three young boys, presumably her sons.
Her Friendster page has also been filled with messages of love, gratitude and lament.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20091125-238188/Two-spunky-women-lawyers-among-the-dead
UN chief, envoys condemn ‘brutal’ Maguindanao massacre
By Veronica Uy
INQUIRER.net
First Posted 07:49:00
11/25/2009
MANILA, Philippines—(UPDATE 3) United Nations Secretary General Ban Ki-moon led an international outcry against the “brutal” violence in southern Philippines, where more than 40 civilians were killed in relation to the upcoming local elections.
Ban condemned “this heinous crime” and called for the perpetrators to be brought to justice in a statement issued by his spokesperson and released by the UN Manila office.
The European Commission, the European Union’s executive arm, also condemned the killings in Maguindanao.
“I condemn in the strongest possible terms the barbaric killing on 23 November 2009 of innocent civilians, including women, journalists, and lawyers, who were preparing to participate in the electoral process in the Philippines,” said European Commissioner for External Relations Benita Ferrero-Waldner.
“I call for calm in the period leading up to the forthcoming elections scheduled for May 2010. In the face of this atrocity, the rule of law and democracy has to prevail,” she said in a statement released by the EC Delegation to the Philippines.
British Ambassador to the Philippines Stephen Lillie gave a similar statement.
"I condemn this brutal massacre of innocent civilians, including women, journalists and lawyers. I hope that the authorities in the Philippines will take urgent action to bring the perpetrators to justice and prevent further escalation of violence in the run-up to next year's elections here," the ambassador said.
"Effective action will be crucial in maintaining confidence in the Philippines' commitment to protect human rights," Lillie said.
The United States, through its embassy here, also denounced the killings “in the strongest possible terms.”
All four extended profound condolences to the families of the victims.
“The Secretary General extends heartfelt condolences to the families of the victims and hopes that no effort will be spared to bring justice and to hold the perpetrators accountable,” the UN statement said.
The UN, the EU, and the British embassy have a number of programs on human rights in the Philippines.
EC’s Ferrero-Waldner was optimistic that justice will prevail in this case. “I note with satisfaction the declaration of the President of the Philippines, that all will be done to bring the perpetrators to justice,” she said.
President Gloria Macapagal-Arroyo has declared a state of emergency in Maguindanao province, among other areas, following Monday’s killings, which have been described as the worst election-related violence in the nation’s history.
see:
http://globalnation.inquirer.net/news/breakingnews/view/20091125-238213/UN-chief-envoys-condemn-brutal-Maguindanao-massacre
Wednesday, November 25, 2009
Tuesday, November 24, 2009
Threats to democracy and rule of law
The greatest threats to democracy and the rule of law in the Philippines are not the communist and Muslim rebels or the Abbu Sayaff kidnappers or the Kuratong Baleleng-type organized criminal syndicates.
The real and insidious threats to Philippine democracy are (a) the educated and rich but corrupt and violent Filipino politicians who proclaim themselves as the defenders of freedom and justice and (b) the indifferent and coward Filipino voters who justify their callous inaction and silence by calling themselves as poor and abused victims of capitalist exploitation while selfishly commercializing their precious individual votes by selling them to the corrupt feudal warlords masquerading as political visionaries in their villages.
The beautiful Philippine island of Mindanao is the epitome of such a deplorable political cancer since time immemorial.
Mindanao is one of my greatest frustrations as a Filipino lawyer who is willing to die for democracy and freedom in his country.
The island is billed as the bread basket of the Philippines and the ultimate savior of Philippine economy by reason of its huge size and untapped resources.
But at the rate the massive political killings, violence and frauds are escalating in the island there seems be no hope and optimism in the foreseeable future in the political and justice systems of the island.
For the past few days, local and world media establishments have been carrying dramatic reports on the mass murder of almost 40 persons in Maguindanao (22 confirmed dead) committed by local Muslim politicians affiliated with the ruling party of Pres. Gloria Arroyo.
Many of the dead were women and media practitioners who were accompanying a group of local politicians to file their certificates of candidacy with the local office of the Commission on Election (Comelec) in the province. (The pompous parade turned into a mass murder). Some of the victims were reportedly raped and beheaded by their killers.
The Philippine campaign period for the 2010 general elections has not yet officially started but as of now the number of fatalities and casualties has begun to rise.
The “Mindanao card” has always been the last resort of national politicians who aspire to win by fraudulent and violent means in cahoots with the local Comelec officials, military and police officers, and local political and feudal clans.
Almost all Philippine presidents since the end of World War II have used and abused the Mindanao card, the latest among them being Pres. Arroyo herself, whose “Hello, Garci” scandal in 2005 almost brought her down from power. Ex-Philippine dictator Ferdinand Marcos was the most prominent master of the Mindanao card.
The Philippines describes itself as the showcase of American-style democracy in Asia, as the only Christian country in Asia, as the first republic in Asia, and as a melting pot in Asia (having been a colony of Spain for 300 years and America for 50 years).
It is brags itself as a country with a very high literacy rate and with millions of well-educated, English-speaking and productive workers.
It claims that its elected leaders and technocrats are foreign-educated academicians, top lawyers, professional military leaders, selfless doctors and visionary philosophers who claim to possess a noble and clear vision of genuine democracy.
But all of the above are empty bravado and hypocritical mass self-hypnosis propagated by its ruling elite.
I estimate that it will take 200 years for the Philippines to genuinely reform and transform itself into a model democratic nation-state and to truly practice the noble tenets of truth, freedom and justice.
As a Filipino who loves his country, I am very sad to openly state this.
Let me share with you some of the recent news on the Maguindanao mass political killings.
State of emergency declared after massacre
(The Philippine Star) Updated November 24, 2009 02:01 PM
MANILA, Philippines (AP) – President Arroyo placed two southern provinces under a state of emergency Tuesday, giving security forces free hands to pursue gunmen who killed at least 24 people in one of the country's worst election massacres.
The emergency measures, including checkpoints and random searches by authorities, will remain in place until the president is confident that law and order have been restored in the region, Mrs. Arroyo spokesman Cerge Remonde said.
The attack Monday was on a convoy of vehicles filled with supporters of a gubernatorial candidate along with his relatives, including his wife, and several journalists. The candidate, Ismael Mangudadatu, who was not a part of the convoy, accused his powerful political rival of being behind the slayings.
The government stressed that it would go after the culprits, regardless of where the investigation leads.
"No one will be untouchable," Remonde told reporters, calling Monday's killings "unconscionable."
Officials were still trying to determine the exact number of people intercepted by about 100 gunmen and taken to a remote mountainous area, said Interior Secretary Ronaldo Puno.
"We're hopeful that some people escaped, and we're hoping to find them alive," he said.
Police said the convoy of about 40 people was going to register Mangudadatu, vice mayor of Buluan township, to run for provincial governor when they were stopped.
Soldiers and police later found 24 bodies, including those of Mangudadatu's wife, Genalyn, and his two sisters, sprawled on the ground or shot in their vehicles about three miles (five kilometers) from where they were ambushed, police spokesman Leonardo Espina said.
Mangudadatu said Tuesday that four witnesses had told him the caravan was stopped by gunmen loyal to Andal Ampatuan Jr., a town mayor belonging to a powerful clan and his family's fierce political rival.
He refused to name the witnesses or offer other details.
"It was really planned because they had already dug a huge hole (for the bodies)," Mangudadatu said.
The National Union of Journalists of the Philippines said at least 10 local reporters were part of the convoy. Espina said they identified the remains of at least one journalist. Joy Sonza, head of a small private TV station, UNTV, said investigators told him they found the bodies of his correspondent and cameraman. A driver and an assistant cameraman were still missing, Sonza said.
If confirmed, it would be the "largest single massacre of journalists ever," according to Paris-based Reporters Without Borders.
The army and police were searching for as many as 16 other people who were missing, military spokesman Lt. Col. Romeo Brawner said, adding that troops were looking for more bodies in areas that appeared to have been recently dug up.
A backhoe was apparently used to bury the bodies, said army commander Lt. Col. Rolando Nerona.
Puno vowed there would be no sacred cows in the investigation. "Within day or two, we should be starting to call people or making arests. We have some information already about specific names but we can't disclose them," he said.
National police chief Jesus Verzosa relieved Maguindanao's provincial police chief and three other officers of their duties and confined them to camp while being investigated. One of the police officers was reported to have been seen in the company of the gunmen and pro-government militiamen who stopped the convoy, police said.
The Ampatuans were unreachable for comment.
The region, among the nation's poorest and awash with weapons, has been intermittently ruled by the Ampatuan family since 2001. It is allied with Mrs. Arroyo.
Mrs. Arroyo's political adviser Gabriel Claudio said he was meeting with Zaldy Ampatuan, governor of the Automous Region in Muslim Mindanao, when the killings occurred Monday to try to mediate in the long-running rivalrly between the the Ampatuans and the Mangudadatus.
"I really thought that at the time that the affinity, the relations between the two families, will be affirmed," he said.
He said the most important thing was to ensure there was no more violence.
"There has to be swift and decisive justice," Claudio said.
Philippine elections are particularly violent in the south because of the presence of armed groups, including Muslim rebels fighting for self-rule in the predominantly Roman Catholic nation, and political warlords who maintain private armies.
The last elections in 2007 were considered peaceful, even though about 130 people were killed.
The decades-long Muslim insurgency has killed about 120,000 people since the 1970s. But a presidential adviser, Jesus Dureza, said Monday's massacre was "unequaled in recent history."
Julkipli Wadi, a professor of Islamic studies at the University of the Philippines, said he doubted the national government's resolve in trimming the powers of political dynasties like the Ampatuans because they deliver votes during elections.
"Because of the absence of viable political institutions, powerful men are taking over," he said. "Big political forces and personalities in the national government are sustaining the warlords, especially during election time, because they rely on big families for their votes."
See:
http://www.philstar.com/Article.aspx?articleId=526369&publicationSubCategoryId=63
Maguindanao massacre
By James Mananghaya (The Philippine Star) Updated November 24, 2009 12:00 AM
MANILA, Philippines - Forty-three persons – including a politician about to file her and her brother’s certificates of candidacy (COCs), as well as journalists covering the event – were confirmed killed when heavily armed men waylaid the group on its way to the local Commission on Elections (Comelec) office in Maguindanao.
Armed Forces of the Philippines (AFP) Public Information Office chief Lt. Col. Romero Brawner confirmed that as of yesterday afternoon, ground troops had recovered 21 bodies – 13 women and eight men – from the massacre site in Barangay Saniag, Ampatuan town.
Supporters of Buluan Vice Mayor Toto Mangudadatu and Mangudadatu Vice Mayor Eden Mangudadatu and their companions were on their way to the Comelec office to file COCs at around 10:30 a.m. when they were blocked at a checkpoint manned by some 100 Maguindanao police personnel and armed civilian volunteers allegedly led by Datu Unsay town mayor Datu Andal Ampatuan Jr.
Ampatuan was not available for comment.
Reports from the Army’s 6th Infantry Division reported that a certain Police Senior Inspector Dicay of Shariff Aguak accompanied Ampatuan. Three vehicles owned by the Mangudadatu’s were found burned.
Toto Mangudadatu, who was not with the convoy, is reportedly eyeing the gubernatorial seat in the May 2010 elections and had asked his wife to file his COC.
Aside from Bai Eden, the other victims were identified as Genalyn Tiamzon-Mangudadatu, the vice mayor’s wife who was raped before being killed; lawyers Connie Brizuela and Cynthia Oquendo and her father, Bai Farinah Mangudadatu; Faridah Sabdulah; Manguba Bai Mangudadatu, Toto’s aunt; Farida Mangudadatu, Toto’s youngest sister.
The journalists were identified as Ian Toblan, Leah Dalmacio, Gina dela Cruz, Joy Duhay, Andy Teodoro, Mac-Mac Areola, Bart Maravilla of Bombo Radyo Koronadal, Henry Araneta of dzRH Cotabato, Bong Reblando of Manila Bulletin and Neneng Montano of local radio dxCP.
Also reported killed were Rasul Daud, driver of Mangudadatu, Wahida Ali Kaliman, Farida Sabdula, Zorayda Vernan, Victor Nuñez, Zaida Abdul, Pinky Balayman, Ella Balayman, Rahima Piopo, Abdullah Hajji, Patrick Pamansan, Meriam Calicol, a certain Unto and a certain Chito, and eight others who were not included in the list.
Toto said his wife and her companions left Buluan town at about 9 a.m. on board several vehicles and were flagged down by armed men at Barangay Kauran in Ampatuan, Maguindanao some 30 minutes later.
“Six members of the group that was to bring my certificate of candidacy to Shariff Aguak were beheaded by the gunmen that flagged them down at a portion of a highway near Shariff Aguak. The police and the military have to do something,” Mangudadatu told Catholic station dxND in Kidapawan City.
“I opted not to provide armed security escorts to the group to avoid possible tension during the filing of my COC,” he added.
The Mangudadatu clan is known to have a long-running feud with the family of Maguindanao’s incumbent Gov. Andal Ampatuan Sr., who police said is known to have his own private army.
Brutal death
Reporters have been trying to get information on the incident from the spokesman of the 6th ID, Col. Jonathan Ponce.
He, however, has not responded even if his staffers have confirmed that he is just inside the Army camp.
Sources from the Army’s 601st Brigade said unidentified armed men indeed flagged down several vehicles at a portion of the Cotabato-Isulan Highway in Kauran area,
which is at the boundary adjoining Maguindanao and Sultan Kudarat provinces.
The provincial police director of Maguindanao could not be reached for comment.
The tension worsened when text messages started circulating that the gunmen executed and killed four of the reporters who were with the group.
Local officials in towns at the border of Maguindanao and Sultan Kudarat said they still have to confirm from barangay leaders the veracity of the text messages that four journalist that accompanied the wife of Mangudadatu had been decapitated.
A source who requested anonymity said the victims were shot at random, and some were decapitated with chainsaws.
The same source added that the killers used a backhoe to dig mass graves where the victims were buried.
Brig. Gen. Medardo Geslani, chief of the army’s 601st Infantry Brigade, said they are now validating the reports.
Palace up in arms
Malacañang expressed shock and outrage over the executions and vowed that justice would be served.
Presidential Adviser for Political Affairs Gabriel Claudio said the Palace is still trying to determine the facts behind the incident.
“We are in shock and total outrage,” Claudio said. “Justice will be served and the perpetrators will be punished, whoever they are.”
Presidential Adviser for Mindanao Jesus Dureza recommended to President Arroyo to immediately declare a state of emergency in Maguindanao.
“This is a gruesome massacre of civilians unequalled in recent history. Even women and working mediamen were not spared. I grieve for my friends in the media and all those killed while doing their job,” Dureza said in a statement.
“There must be a total stop to this senseless violence and carnage. I strongly recommend that a state of emergency be imposed in the area and everyone disarmed.
Anything less will not work,” he said.
Claudio said he had a brief meeting with ARMM Gov. Zaldy Ampatuan at the Palace to discuss Sulu politics.
Ampatuan was accompanied by outgoing Sulu Rep. Munir Arbison and other local officials. They sought a meeting to be assured of fair arbitration from the leaders of the Lakas-Kampi-CMD, as Sulu Gov. Abdusakur Tan is also fielding his own local slate against Arbison’s group.
He said there was no discussion about Maguindanao politics.
NUJP condemns abduction of mediamen
Meanwhile, the National Union of Journalists of the Philippines (NUJP) condemned the abduction and death of their colleagues.
“We demand that government, from Malacañang to the (ARMM) and Maguindanao, and its security forces, move swiftly to resolve this crisis and ensure that no harm befalls the hostages; and, if true that violence has been inflicted on some of the hostages, to ensure swift justice on the perpetrators, no matter who they are,” the NUJP said in a statement.
“Taking hostage someone about to file a certificate of candidacy is, by itself, a brazen challenge to efforts to strengthen our admittedly fragile democracy. And, if true that a local government official and a police officer are involved, then it says a lot about how far government has gone to eradicate the warlord politics that continues to reign over many of our provinces, very often the poorest and most underdeveloped,” the NUJP added.
“But to take hostage journalists who were merely going about their job of informing the public worsens the already heinous crime and elevates it into an assault on the Constitution itself and the freedom of the press and of expression it enshrines, and the people’s right to know which these freedoms serve,” NUJP said.
Pimentel: Send the Marines
At the Senate, minority leader Aquilino Pimentel Jr. recommended sending the Marines to Maguindanao to control the peace and order situation.
Pimentel condemned the killings, which came on the heels of the filing of COCs for local and national posts.
He also said that the military should take control of the area to avoid further bloodbath.
“It’s going to lead to a bloodbath unless the government steps in. Arrest and jail whoever is responsible even if he might be a warlord. Send the Marines if need be,” Pimentel said. –With John Unson, Edith Regalado, John Paul Jubelag, Jaime Laude, Cecille Suerte Felipe, Christina Mendez, Paolo Romero
see:
http://www.philstar.com/Article.aspx?articleid=526314
The real and insidious threats to Philippine democracy are (a) the educated and rich but corrupt and violent Filipino politicians who proclaim themselves as the defenders of freedom and justice and (b) the indifferent and coward Filipino voters who justify their callous inaction and silence by calling themselves as poor and abused victims of capitalist exploitation while selfishly commercializing their precious individual votes by selling them to the corrupt feudal warlords masquerading as political visionaries in their villages.
The beautiful Philippine island of Mindanao is the epitome of such a deplorable political cancer since time immemorial.
Mindanao is one of my greatest frustrations as a Filipino lawyer who is willing to die for democracy and freedom in his country.
The island is billed as the bread basket of the Philippines and the ultimate savior of Philippine economy by reason of its huge size and untapped resources.
But at the rate the massive political killings, violence and frauds are escalating in the island there seems be no hope and optimism in the foreseeable future in the political and justice systems of the island.
For the past few days, local and world media establishments have been carrying dramatic reports on the mass murder of almost 40 persons in Maguindanao (22 confirmed dead) committed by local Muslim politicians affiliated with the ruling party of Pres. Gloria Arroyo.
Many of the dead were women and media practitioners who were accompanying a group of local politicians to file their certificates of candidacy with the local office of the Commission on Election (Comelec) in the province. (The pompous parade turned into a mass murder). Some of the victims were reportedly raped and beheaded by their killers.
The Philippine campaign period for the 2010 general elections has not yet officially started but as of now the number of fatalities and casualties has begun to rise.
The “Mindanao card” has always been the last resort of national politicians who aspire to win by fraudulent and violent means in cahoots with the local Comelec officials, military and police officers, and local political and feudal clans.
Almost all Philippine presidents since the end of World War II have used and abused the Mindanao card, the latest among them being Pres. Arroyo herself, whose “Hello, Garci” scandal in 2005 almost brought her down from power. Ex-Philippine dictator Ferdinand Marcos was the most prominent master of the Mindanao card.
The Philippines describes itself as the showcase of American-style democracy in Asia, as the only Christian country in Asia, as the first republic in Asia, and as a melting pot in Asia (having been a colony of Spain for 300 years and America for 50 years).
It is brags itself as a country with a very high literacy rate and with millions of well-educated, English-speaking and productive workers.
It claims that its elected leaders and technocrats are foreign-educated academicians, top lawyers, professional military leaders, selfless doctors and visionary philosophers who claim to possess a noble and clear vision of genuine democracy.
But all of the above are empty bravado and hypocritical mass self-hypnosis propagated by its ruling elite.
I estimate that it will take 200 years for the Philippines to genuinely reform and transform itself into a model democratic nation-state and to truly practice the noble tenets of truth, freedom and justice.
As a Filipino who loves his country, I am very sad to openly state this.
Let me share with you some of the recent news on the Maguindanao mass political killings.
State of emergency declared after massacre
(The Philippine Star) Updated November 24, 2009 02:01 PM
MANILA, Philippines (AP) – President Arroyo placed two southern provinces under a state of emergency Tuesday, giving security forces free hands to pursue gunmen who killed at least 24 people in one of the country's worst election massacres.
The emergency measures, including checkpoints and random searches by authorities, will remain in place until the president is confident that law and order have been restored in the region, Mrs. Arroyo spokesman Cerge Remonde said.
The attack Monday was on a convoy of vehicles filled with supporters of a gubernatorial candidate along with his relatives, including his wife, and several journalists. The candidate, Ismael Mangudadatu, who was not a part of the convoy, accused his powerful political rival of being behind the slayings.
The government stressed that it would go after the culprits, regardless of where the investigation leads.
"No one will be untouchable," Remonde told reporters, calling Monday's killings "unconscionable."
Officials were still trying to determine the exact number of people intercepted by about 100 gunmen and taken to a remote mountainous area, said Interior Secretary Ronaldo Puno.
"We're hopeful that some people escaped, and we're hoping to find them alive," he said.
Police said the convoy of about 40 people was going to register Mangudadatu, vice mayor of Buluan township, to run for provincial governor when they were stopped.
Soldiers and police later found 24 bodies, including those of Mangudadatu's wife, Genalyn, and his two sisters, sprawled on the ground or shot in their vehicles about three miles (five kilometers) from where they were ambushed, police spokesman Leonardo Espina said.
Mangudadatu said Tuesday that four witnesses had told him the caravan was stopped by gunmen loyal to Andal Ampatuan Jr., a town mayor belonging to a powerful clan and his family's fierce political rival.
He refused to name the witnesses or offer other details.
"It was really planned because they had already dug a huge hole (for the bodies)," Mangudadatu said.
The National Union of Journalists of the Philippines said at least 10 local reporters were part of the convoy. Espina said they identified the remains of at least one journalist. Joy Sonza, head of a small private TV station, UNTV, said investigators told him they found the bodies of his correspondent and cameraman. A driver and an assistant cameraman were still missing, Sonza said.
If confirmed, it would be the "largest single massacre of journalists ever," according to Paris-based Reporters Without Borders.
The army and police were searching for as many as 16 other people who were missing, military spokesman Lt. Col. Romeo Brawner said, adding that troops were looking for more bodies in areas that appeared to have been recently dug up.
A backhoe was apparently used to bury the bodies, said army commander Lt. Col. Rolando Nerona.
Puno vowed there would be no sacred cows in the investigation. "Within day or two, we should be starting to call people or making arests. We have some information already about specific names but we can't disclose them," he said.
National police chief Jesus Verzosa relieved Maguindanao's provincial police chief and three other officers of their duties and confined them to camp while being investigated. One of the police officers was reported to have been seen in the company of the gunmen and pro-government militiamen who stopped the convoy, police said.
The Ampatuans were unreachable for comment.
The region, among the nation's poorest and awash with weapons, has been intermittently ruled by the Ampatuan family since 2001. It is allied with Mrs. Arroyo.
Mrs. Arroyo's political adviser Gabriel Claudio said he was meeting with Zaldy Ampatuan, governor of the Automous Region in Muslim Mindanao, when the killings occurred Monday to try to mediate in the long-running rivalrly between the the Ampatuans and the Mangudadatus.
"I really thought that at the time that the affinity, the relations between the two families, will be affirmed," he said.
He said the most important thing was to ensure there was no more violence.
"There has to be swift and decisive justice," Claudio said.
Philippine elections are particularly violent in the south because of the presence of armed groups, including Muslim rebels fighting for self-rule in the predominantly Roman Catholic nation, and political warlords who maintain private armies.
The last elections in 2007 were considered peaceful, even though about 130 people were killed.
The decades-long Muslim insurgency has killed about 120,000 people since the 1970s. But a presidential adviser, Jesus Dureza, said Monday's massacre was "unequaled in recent history."
Julkipli Wadi, a professor of Islamic studies at the University of the Philippines, said he doubted the national government's resolve in trimming the powers of political dynasties like the Ampatuans because they deliver votes during elections.
"Because of the absence of viable political institutions, powerful men are taking over," he said. "Big political forces and personalities in the national government are sustaining the warlords, especially during election time, because they rely on big families for their votes."
See:
http://www.philstar.com/Article.aspx?articleId=526369&publicationSubCategoryId=63
Maguindanao massacre
By James Mananghaya (The Philippine Star) Updated November 24, 2009 12:00 AM
MANILA, Philippines - Forty-three persons – including a politician about to file her and her brother’s certificates of candidacy (COCs), as well as journalists covering the event – were confirmed killed when heavily armed men waylaid the group on its way to the local Commission on Elections (Comelec) office in Maguindanao.
Armed Forces of the Philippines (AFP) Public Information Office chief Lt. Col. Romero Brawner confirmed that as of yesterday afternoon, ground troops had recovered 21 bodies – 13 women and eight men – from the massacre site in Barangay Saniag, Ampatuan town.
Supporters of Buluan Vice Mayor Toto Mangudadatu and Mangudadatu Vice Mayor Eden Mangudadatu and their companions were on their way to the Comelec office to file COCs at around 10:30 a.m. when they were blocked at a checkpoint manned by some 100 Maguindanao police personnel and armed civilian volunteers allegedly led by Datu Unsay town mayor Datu Andal Ampatuan Jr.
Ampatuan was not available for comment.
Reports from the Army’s 6th Infantry Division reported that a certain Police Senior Inspector Dicay of Shariff Aguak accompanied Ampatuan. Three vehicles owned by the Mangudadatu’s were found burned.
Toto Mangudadatu, who was not with the convoy, is reportedly eyeing the gubernatorial seat in the May 2010 elections and had asked his wife to file his COC.
Aside from Bai Eden, the other victims were identified as Genalyn Tiamzon-Mangudadatu, the vice mayor’s wife who was raped before being killed; lawyers Connie Brizuela and Cynthia Oquendo and her father, Bai Farinah Mangudadatu; Faridah Sabdulah; Manguba Bai Mangudadatu, Toto’s aunt; Farida Mangudadatu, Toto’s youngest sister.
The journalists were identified as Ian Toblan, Leah Dalmacio, Gina dela Cruz, Joy Duhay, Andy Teodoro, Mac-Mac Areola, Bart Maravilla of Bombo Radyo Koronadal, Henry Araneta of dzRH Cotabato, Bong Reblando of Manila Bulletin and Neneng Montano of local radio dxCP.
Also reported killed were Rasul Daud, driver of Mangudadatu, Wahida Ali Kaliman, Farida Sabdula, Zorayda Vernan, Victor Nuñez, Zaida Abdul, Pinky Balayman, Ella Balayman, Rahima Piopo, Abdullah Hajji, Patrick Pamansan, Meriam Calicol, a certain Unto and a certain Chito, and eight others who were not included in the list.
Toto said his wife and her companions left Buluan town at about 9 a.m. on board several vehicles and were flagged down by armed men at Barangay Kauran in Ampatuan, Maguindanao some 30 minutes later.
“Six members of the group that was to bring my certificate of candidacy to Shariff Aguak were beheaded by the gunmen that flagged them down at a portion of a highway near Shariff Aguak. The police and the military have to do something,” Mangudadatu told Catholic station dxND in Kidapawan City.
“I opted not to provide armed security escorts to the group to avoid possible tension during the filing of my COC,” he added.
The Mangudadatu clan is known to have a long-running feud with the family of Maguindanao’s incumbent Gov. Andal Ampatuan Sr., who police said is known to have his own private army.
Brutal death
Reporters have been trying to get information on the incident from the spokesman of the 6th ID, Col. Jonathan Ponce.
He, however, has not responded even if his staffers have confirmed that he is just inside the Army camp.
Sources from the Army’s 601st Brigade said unidentified armed men indeed flagged down several vehicles at a portion of the Cotabato-Isulan Highway in Kauran area,
which is at the boundary adjoining Maguindanao and Sultan Kudarat provinces.
The provincial police director of Maguindanao could not be reached for comment.
The tension worsened when text messages started circulating that the gunmen executed and killed four of the reporters who were with the group.
Local officials in towns at the border of Maguindanao and Sultan Kudarat said they still have to confirm from barangay leaders the veracity of the text messages that four journalist that accompanied the wife of Mangudadatu had been decapitated.
A source who requested anonymity said the victims were shot at random, and some were decapitated with chainsaws.
The same source added that the killers used a backhoe to dig mass graves where the victims were buried.
Brig. Gen. Medardo Geslani, chief of the army’s 601st Infantry Brigade, said they are now validating the reports.
Palace up in arms
Malacañang expressed shock and outrage over the executions and vowed that justice would be served.
Presidential Adviser for Political Affairs Gabriel Claudio said the Palace is still trying to determine the facts behind the incident.
“We are in shock and total outrage,” Claudio said. “Justice will be served and the perpetrators will be punished, whoever they are.”
Presidential Adviser for Mindanao Jesus Dureza recommended to President Arroyo to immediately declare a state of emergency in Maguindanao.
“This is a gruesome massacre of civilians unequalled in recent history. Even women and working mediamen were not spared. I grieve for my friends in the media and all those killed while doing their job,” Dureza said in a statement.
“There must be a total stop to this senseless violence and carnage. I strongly recommend that a state of emergency be imposed in the area and everyone disarmed.
Anything less will not work,” he said.
Claudio said he had a brief meeting with ARMM Gov. Zaldy Ampatuan at the Palace to discuss Sulu politics.
Ampatuan was accompanied by outgoing Sulu Rep. Munir Arbison and other local officials. They sought a meeting to be assured of fair arbitration from the leaders of the Lakas-Kampi-CMD, as Sulu Gov. Abdusakur Tan is also fielding his own local slate against Arbison’s group.
He said there was no discussion about Maguindanao politics.
NUJP condemns abduction of mediamen
Meanwhile, the National Union of Journalists of the Philippines (NUJP) condemned the abduction and death of their colleagues.
“We demand that government, from Malacañang to the (ARMM) and Maguindanao, and its security forces, move swiftly to resolve this crisis and ensure that no harm befalls the hostages; and, if true that violence has been inflicted on some of the hostages, to ensure swift justice on the perpetrators, no matter who they are,” the NUJP said in a statement.
“Taking hostage someone about to file a certificate of candidacy is, by itself, a brazen challenge to efforts to strengthen our admittedly fragile democracy. And, if true that a local government official and a police officer are involved, then it says a lot about how far government has gone to eradicate the warlord politics that continues to reign over many of our provinces, very often the poorest and most underdeveloped,” the NUJP added.
“But to take hostage journalists who were merely going about their job of informing the public worsens the already heinous crime and elevates it into an assault on the Constitution itself and the freedom of the press and of expression it enshrines, and the people’s right to know which these freedoms serve,” NUJP said.
Pimentel: Send the Marines
At the Senate, minority leader Aquilino Pimentel Jr. recommended sending the Marines to Maguindanao to control the peace and order situation.
Pimentel condemned the killings, which came on the heels of the filing of COCs for local and national posts.
He also said that the military should take control of the area to avoid further bloodbath.
“It’s going to lead to a bloodbath unless the government steps in. Arrest and jail whoever is responsible even if he might be a warlord. Send the Marines if need be,” Pimentel said. –With John Unson, Edith Regalado, John Paul Jubelag, Jaime Laude, Cecille Suerte Felipe, Christina Mendez, Paolo Romero
see:
http://www.philstar.com/Article.aspx?articleid=526314
On priests and estafa
One sign that the justice system of Singapore effectively works (as contrasted with that of the Philippines) is its ability to prosecute, convict, and punish all guilty persons regardless of their status and influence in society and its ability to shield itself from the debilitating and cancerous effects of graft and corruption and the weakening influence of partisan politicians.
An example is the recent conviction of a high-living and influential Buddhist monk who ran one of Singapore's most well-known charities. He was jailed for 10 months for fraud.
The monk, Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).
In the Philippines, it is impossible to envision a scenario where influential, well-connected and well-oiled inter-parochial catholic or protestant preachers (like Mike Velarde, Eddie Villanueva, et. al.), prominent local diocesan priests, and big-time and famous bishops or archbishops would be indicted, much less convicted, for estafa or for any financial felony involving the corporate funds and assets of their religious entities, despite the fact that it is common knowledge among Catholics here that many of such personalities do not regularly account for and publish the financial conditions of their religious orders, dioceses, parishes, or inter-parochial movements.
Under the Code of Canon Law, the parish priest or the bishop is the king, so to speak, in his parish or diocese with respect to both its spiritual or religious activities and its corporal and social-action funds and assets.
Although the code allows for a civilian accounting and audit committee and for a ceremonial parish pastoral council, such bodies never really effectively work (other than to serve as the volunteer assistants and unpaid staff of the priest or bishop or as members of their de facto fans club) or courageously serve their ultimate purpose of fiscalization because of the overwhelming influence of the priest or bishop, aggravated by the blind obedience and unquestioning religiosity of conservative catholic lay leaders who would rather keep quiet than directly or indirectly offend their priest or bishop with questions on the financial conditions of their parish and diocese, whether such questions are harmless, well-intentioned, incisive or critical.
How do you free, save and exempt a guilty estafador priest or bishop from criminal and civil liability in the Philippines? Here are some of the routine methods:
1. Transfer the priest to another parish where he is unknown, preferably in another diocese at least 300 kilometers way from his former parish. Anyway, the social and historical memory of the Filipinos is very short.
2. Influence the parish pastoral council to keep quiet about any financial scandal, invoking the greater interest of the church as the motive. Assure them of spiritual salvation and future efforts to correct the situation. Give them free sacraments and other pastoral favors in return.
3. If the victimized charitable entity is a corporation, influence the Securities and Exchange Commission (SEC) to be anemic in its investigation (or better yet, not to commence any legal inquiry or audits at all, which the SEC would surely appreciate because of its laziness and incompetence and lack of field manpower).
4. Manage and bribe the mass media not to explode the scandal in the press. Assure their editors and reporters of spiritual salvation.
5. When things get worse, secure the affidavits of desistance, waivers or quitclaims from the members of the charity, parish pastoral council, or religious entity to free and exempt the priest or bishop from the effects of the scandal. No witnesses, no cases.
6. Use local and national politicians to influence the prosecutors and judges handling the criminal and civil cases involving priests and pastors, when such cases finally reach the justice system. These politicians are merely returning the favor to the church for the votes of its parishioners that it gives them during election times. (Priests and bishops secretly maintain and support their favorite local and national politicians. It is a quid pro quo scheme).
7. Others.
Here is the news item on the matter.
High-living Singapore monk jailed for fraud
SINGAPORE — A high-living Buddhist monk who ran one of Singapore's most well-known charities was Saturday jailed for 10 months for fraud, court officials said.
Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).
Yeung was sentenced to nine months for the crime.
Shi was the founder of Ren Ci -- a charity that provides subsidized medical care to
elderly patients -- and had lived the high life, owning several luxury cars and properties
in Singapore and Australia, before being caught.
He had also owned a horse in Australia.
In 2004, Shi, who was Ren Ci's chief executive at the time, made the unauthorized loan of 50,000 dollars from the charity's coffers to Yeung, who used the money to pay for a friend's home renovation in Hong Kong.
The pair said the money was loaned to a shop affiliated with the charity, but external auditors found this to be untrue.
Singapore is a predominantly Buddhist country, with 42.5 percent of the population over 15 subscribing to the religion.
See:
http://www.google.com/hostednews/afp/article/ALeqM5hjPv0izoS5SCFF1ViiYgReruPFmg
An example is the recent conviction of a high-living and influential Buddhist monk who ran one of Singapore's most well-known charities. He was jailed for 10 months for fraud.
The monk, Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).
In the Philippines, it is impossible to envision a scenario where influential, well-connected and well-oiled inter-parochial catholic or protestant preachers (like Mike Velarde, Eddie Villanueva, et. al.), prominent local diocesan priests, and big-time and famous bishops or archbishops would be indicted, much less convicted, for estafa or for any financial felony involving the corporate funds and assets of their religious entities, despite the fact that it is common knowledge among Catholics here that many of such personalities do not regularly account for and publish the financial conditions of their religious orders, dioceses, parishes, or inter-parochial movements.
Under the Code of Canon Law, the parish priest or the bishop is the king, so to speak, in his parish or diocese with respect to both its spiritual or religious activities and its corporal and social-action funds and assets.
Although the code allows for a civilian accounting and audit committee and for a ceremonial parish pastoral council, such bodies never really effectively work (other than to serve as the volunteer assistants and unpaid staff of the priest or bishop or as members of their de facto fans club) or courageously serve their ultimate purpose of fiscalization because of the overwhelming influence of the priest or bishop, aggravated by the blind obedience and unquestioning religiosity of conservative catholic lay leaders who would rather keep quiet than directly or indirectly offend their priest or bishop with questions on the financial conditions of their parish and diocese, whether such questions are harmless, well-intentioned, incisive or critical.
How do you free, save and exempt a guilty estafador priest or bishop from criminal and civil liability in the Philippines? Here are some of the routine methods:
1. Transfer the priest to another parish where he is unknown, preferably in another diocese at least 300 kilometers way from his former parish. Anyway, the social and historical memory of the Filipinos is very short.
2. Influence the parish pastoral council to keep quiet about any financial scandal, invoking the greater interest of the church as the motive. Assure them of spiritual salvation and future efforts to correct the situation. Give them free sacraments and other pastoral favors in return.
3. If the victimized charitable entity is a corporation, influence the Securities and Exchange Commission (SEC) to be anemic in its investigation (or better yet, not to commence any legal inquiry or audits at all, which the SEC would surely appreciate because of its laziness and incompetence and lack of field manpower).
4. Manage and bribe the mass media not to explode the scandal in the press. Assure their editors and reporters of spiritual salvation.
5. When things get worse, secure the affidavits of desistance, waivers or quitclaims from the members of the charity, parish pastoral council, or religious entity to free and exempt the priest or bishop from the effects of the scandal. No witnesses, no cases.
6. Use local and national politicians to influence the prosecutors and judges handling the criminal and civil cases involving priests and pastors, when such cases finally reach the justice system. These politicians are merely returning the favor to the church for the votes of its parishioners that it gives them during election times. (Priests and bishops secretly maintain and support their favorite local and national politicians. It is a quid pro quo scheme).
7. Others.
Here is the news item on the matter.
High-living Singapore monk jailed for fraud
SINGAPORE — A high-living Buddhist monk who ran one of Singapore's most well-known charities was Saturday jailed for 10 months for fraud, court officials said.
Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).
Yeung was sentenced to nine months for the crime.
Shi was the founder of Ren Ci -- a charity that provides subsidized medical care to
elderly patients -- and had lived the high life, owning several luxury cars and properties
in Singapore and Australia, before being caught.
He had also owned a horse in Australia.
In 2004, Shi, who was Ren Ci's chief executive at the time, made the unauthorized loan of 50,000 dollars from the charity's coffers to Yeung, who used the money to pay for a friend's home renovation in Hong Kong.
The pair said the money was loaned to a shop affiliated with the charity, but external auditors found this to be untrue.
Singapore is a predominantly Buddhist country, with 42.5 percent of the population over 15 subscribing to the religion.
See:
http://www.google.com/hostednews/afp/article/ALeqM5hjPv0izoS5SCFF1ViiYgReruPFmg
Dialects in the courts
In my previous blogs, I posted a letter of mine addressed to the Chief Justice Reynato Puno (who was then a senior associate justice) containing the results of my researches on the intent of the judiciary to study the application of the native Filipino language in all court proceedings in the Philippines.
At that time, he was tasked by the Supreme Court to head the committee that would study the application of Filipino in Philippine court proceedings.
I sent the letter to him as a free service of the Las Pinas City Bar Association (LPBA), Inc., which I founded in 2001, to aid his committee in its aforecited task.
It is one of the corporate objectives of the LPBA to actively participate in all major deliberations and advocacies involving the rule of law and the improvement of the justice system in the Philippines.
The other day I was gladdened by the fact that in the Tagalog province of Bulacan, through the efforts of Tagalog-speaking judges in that province, the plan to pilot test the application and use of Filipino in the courts in that province has started to be implemented.
Below is a news item on the matter.
I invite the comments of my readers on the issue of whether or not it is wise, useful, and practical to use Filipino (and major regional dialects, for that matter, e.g., Bisaya, Ilongo, Waray, Bicolano, Ilocano) in court proceedings and legal instruments, and what procedural and substantive rules to apply and observe thereon.
Feel free to post your comments.
This issue is one important topic that that must explored and debated well by all Filipinos (not only by jurists and academicians) because it concerns all of us as one nation-state and because it has long-term effects on the equitable and effective operation of the justice system of the country and the fulfillment of the constitutional provision on access to justice by the poor, the oppressed, and the ignorant who compose the great majority of Philippine society.
Here is the news item on the matter.
MALOLOS CITY , Philippines – The use of the national language in court proceedings gained further foothold in Bulacan as legal judges, lawyers and other court employees underwent a training seminar yesterday.
Aimed at the full implementation of the use of Filipino language in regular court trials next year, the training seminar was initiated by the Integrated Bar of the Philippines (IBP) Bulacan chapter in collaboration with Philippine Judicial Academy and the Supreme Court of the Philippines.
The training seminar is dubbed as “Pagsasanay ng mga Hukom Ukol sa Paggamit ng Wikang Pilipino sa Hukuman.”
Lawyer Renato Samonte, the president of IBP-Bulacan chapter said the seminar was designed to prepare judges, lawyers and even court stenographers.
He said they planned to pilot the project in seven regional trial courts here and in the municipal trial court in Guiguinto, Bulacan.
This was affirmed by leading proponents on the use of the Filipino language in court proceedings like retired Justice Jose dela Rama, the coordinator of the PHILJA sub-committee on the Use of Flipino Language in Court Proceedings, and retired Judge Cezar Peralejo.
As a former judge in Makati RTC, Dela Rama is best remembered when he penned his ruling in Filipino on the libel case filed by the late President Corazon Aquino against the late STAR publisher Maximo Soliven and late STAR columnist Louie Beltran.
On the other hand, Peralejo has published a legal dictionary in Filipino which he said will greatly help court workers in the use of Filipino in court proceediongs.
Two years ago, Dela Rama initiated the use of Filipino in a criminal case proceedings at the sala of Judge Manuel Siayngco here.
He also initiated the use of the national language during lectures at the Marcelo H. Del Pilar Law School in the Bulacan State University here early this year by doing the lecture himself.
Dela Rama is aided by former Judge Hermin Arceo, who also delivered a lecture on Constitutional Law in Filipino.
Like Dela Rama, Arceo is a Bulakeñyo who have translated the 1992 Local Government Code into Filipino.
See:
http://www.philstar.com/Article.aspx?articleId=525486&publicationSubCategoryId=67
At that time, he was tasked by the Supreme Court to head the committee that would study the application of Filipino in Philippine court proceedings.
I sent the letter to him as a free service of the Las Pinas City Bar Association (LPBA), Inc., which I founded in 2001, to aid his committee in its aforecited task.
It is one of the corporate objectives of the LPBA to actively participate in all major deliberations and advocacies involving the rule of law and the improvement of the justice system in the Philippines.
The other day I was gladdened by the fact that in the Tagalog province of Bulacan, through the efforts of Tagalog-speaking judges in that province, the plan to pilot test the application and use of Filipino in the courts in that province has started to be implemented.
Below is a news item on the matter.
I invite the comments of my readers on the issue of whether or not it is wise, useful, and practical to use Filipino (and major regional dialects, for that matter, e.g., Bisaya, Ilongo, Waray, Bicolano, Ilocano) in court proceedings and legal instruments, and what procedural and substantive rules to apply and observe thereon.
Feel free to post your comments.
This issue is one important topic that that must explored and debated well by all Filipinos (not only by jurists and academicians) because it concerns all of us as one nation-state and because it has long-term effects on the equitable and effective operation of the justice system of the country and the fulfillment of the constitutional provision on access to justice by the poor, the oppressed, and the ignorant who compose the great majority of Philippine society.
Here is the news item on the matter.
MALOLOS CITY , Philippines – The use of the national language in court proceedings gained further foothold in Bulacan as legal judges, lawyers and other court employees underwent a training seminar yesterday.
Aimed at the full implementation of the use of Filipino language in regular court trials next year, the training seminar was initiated by the Integrated Bar of the Philippines (IBP) Bulacan chapter in collaboration with Philippine Judicial Academy and the Supreme Court of the Philippines.
The training seminar is dubbed as “Pagsasanay ng mga Hukom Ukol sa Paggamit ng Wikang Pilipino sa Hukuman.”
Lawyer Renato Samonte, the president of IBP-Bulacan chapter said the seminar was designed to prepare judges, lawyers and even court stenographers.
He said they planned to pilot the project in seven regional trial courts here and in the municipal trial court in Guiguinto, Bulacan.
This was affirmed by leading proponents on the use of the Filipino language in court proceedings like retired Justice Jose dela Rama, the coordinator of the PHILJA sub-committee on the Use of Flipino Language in Court Proceedings, and retired Judge Cezar Peralejo.
As a former judge in Makati RTC, Dela Rama is best remembered when he penned his ruling in Filipino on the libel case filed by the late President Corazon Aquino against the late STAR publisher Maximo Soliven and late STAR columnist Louie Beltran.
On the other hand, Peralejo has published a legal dictionary in Filipino which he said will greatly help court workers in the use of Filipino in court proceediongs.
Two years ago, Dela Rama initiated the use of Filipino in a criminal case proceedings at the sala of Judge Manuel Siayngco here.
He also initiated the use of the national language during lectures at the Marcelo H. Del Pilar Law School in the Bulacan State University here early this year by doing the lecture himself.
Dela Rama is aided by former Judge Hermin Arceo, who also delivered a lecture on Constitutional Law in Filipino.
Like Dela Rama, Arceo is a Bulakeñyo who have translated the 1992 Local Government Code into Filipino.
See:
http://www.philstar.com/Article.aspx?articleId=525486&publicationSubCategoryId=67
On sheriffs and pigs
In the recent administrative case of ATTY. HECTOR P. TEODOSIO vs. ROLANDO R. SOMOSA, et. al., En Banc, A.M. No. P-09-2610 (per curiam), August 13, 2009, the Philippine Supreme Court found the respondents, Sheriffs Gani Lacatan and Camilo Divinagracia, Jr., Deputy Sheriffs of the Regional Trial Court of Iloilo City, and Sheriffs Rolando Somosa, Edgardo Cordero and Rodolfo Haro, Deputy Sheriffs of the Municipal Trial Court in Cities of Iloilo City GUILTY of grave abuse of authority amounting to GRAVE MISCONDUCT, and were ordered DISMISSED from the service with forfeiture of all benefits and privileges, except accrued leave credits, if any, and with prejudice to re-employment in any branch or agency of the government, including government-owned or controlled corporations.
This administrative case involving judicial employees of a major Philippine province in the south was so embarrassing (to the point of being educational, if such a concept exists) that big Philippine dailies in Manila carried reports thereon, which I am reproducing at the end of this blog.
I wish to digest the abovementioned Supreme Court decision for legal research purposes of the visitors of this blog.
The case arose out of a letter-complaint dated July 3, 2007 filed by complainant Atty. Hector P. Teodosio against respondent Sheriffs Gani Lacatan and Camilo Divinagracia, Jr., Deputy Sheriffs of the Regional Trial Court (RTC) of Iloilo City, and respondents Sheriffs Rolando Somosa, Edgardo Cordero and Rodolfo Haro, Deputy Sheriffs of the Municipal Trial Court in Cities (MTCC) of Iloilo City, with the Office of the Court Administrator (OCA) relative to the irregular manner of implementing the writ of execution issued by the MTCC, Branch 2, Bacolod City, Negros Occidental in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, entitled People of the Philippines v. Mary Ann Ng (for violation of BP Blg. 22, bouncing check law).
On August 27, 2004, the MTCC, Branch 2, Bacolod City, Negros Occidental, rendered a Decision on the civil aspect of the abovecited criminal cases filed by Lita Gamboa against Mary Ann Ng, President and Chief Executive Officer (CEO) of Nueva Swine Valley, Inc. (Nueva Swine). Said decision was based on an amicable settlement entered into between Ng and Keylargo Commodities Trading (Keylargo), represented by Lita Gamboa, wherein the former agreed to pay on installment basis her civil liability in the form of post dated checks she would issue, for and in behalf of Nueva Swine.
When Ng failed to comply with the terms and conditions of the judgment, Gamboa, through her counsel, moved for the execution of the decision. On August 4, 2006, the MTCC issued a Writ of Execution, which commanded the sheriffs to cause the execution of the aforesaid judgment on the civil aspect of the said criminal cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court, and in such cases made and provided together with all your lawful fees for the service of this Writ. The writ further stated that in case sufficient personal property of the accused could not be found whereof to satisfy the amount of the said judgment, the sheriffs were directed to levy the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The sheriffs were commanded only sell so much of the personal or real property as was sufficient to satisfy the judgment and lawful fees, and make a report to the trial court every thirty (30) days on the proceedings taken until the judgment was satisfied in full, or its effectivity expired.
On May 31, 2007, the respondent sheriffs proceeded to Nueva Swine’s hog farm at Barangay Talokgangan, Banate, Iloilo to implement the writ. Upon reaching the place, they introduced themselves and explained to the officer-in-charge (OIC) their purpose, as accused Ng was not around. They then served upon the OIC a copy of the writ, together with the decision, and demanded the money judgment. When the OIC failed to produce the money, respondents levied and took away 675 pigs and, thereafter, delivered them to Keylargo for safekeeping. A Notice of Levy on Execution was issued on the same day to accused Ng.
On June 1, 2007, complainant in this administrative case Atty. Teodosio (counsel for Nueva Swine’s hog farm) sought a 72-hour Temporary Restraining Order (TRO) with the RTC, Branch 66 of Barotac Viejo, Iloilo, which the latter granted, enjoining respondents, their agents and other persons acting for and on their behalf, from removing, transferring, disposing of and selling the swine in the hog farm of Nueva Swine in Brgy. Talokgangan, Banate, and in Nueva Invencion, Barotac Viejo, Iloilo, and from selling or disposing the swine already taken, which would be preserved and maintained in its present location under supervision of the sheriff of the court.
Despite the TRO, respondent sheriffs issued a Sheriff’s Notice of Sale on Execution, setting the auction sale of the pigs levied on June 5, 2007, 10:00 a.m., at the Victorias Milling Corporation Farm Site in Victorias City, Negros Occidental.
On June 4, 2007, Judge Rogelio Amador of the RTC, Branch 66 of Iloilo City issued an Order extending the 72-hour TRO to a full 20 days, or until June 21, 2007, and setting the case for a preliminary injunction on June 15, 2007. Said Order was served and received by the Provincial and City Sheriffs of Iloilo.
On June 5, 2007, respondents personally turned over all levied hogs to the MTCC, Branch 2 of Bacolod City.
On June 7, 2007, Branch Sheriff Emilio Portal of the MTC, Branch 2, Bacolod City, conducted the public auction sale of the levied hogs.
In a Memorandum dated February 4, 2009, the Office of the Court Administrator (OCA) agreed with the findings of the Investigating Judge establishing the guilt of the respondents.
The OCA stated that Section 9 of Rule 39 of the 1997 Rules of Civil Procedure provides that in the execution of a judgment for money, the officer enforcing such judgment shall demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
The OCA added that in the implementation of the writ of execution, respondents failed to strictly comply with the above rule. They failed to show that they demanded from accused Ng the payment of the judgment obligation. Records show that the writ was served on an officer of Nueva Swine who is not a party to the case and not on accused Ng. In their Return of Service dated June 28, 2007, respondents stated that when they arrived in the hog farm of Nueva Swine, accused Ng was not present. Mr. Donglal, an officer of the corporation, allegedly contacted accused Ng but it was not shown whether respondents talked to the former and demanded from her the payment of her obligation. In his affidavit, Mr. Donglal, denied talking with accused Ng nor did respondents ask him to talk to her. Thereafter, respondents demanded from Mr. Donglal the payment of the judgment obligation. When the latter failed to pay the obligation, respondents levied the corporation’s properties. Again, this is in violation of the rules as the hogs levied upon by respondents are not the personal properties of accused Ng.
The OCA stated that respondents’ argument that the checks, subject of the criminal case, were issued by accused Ng as president of Nueva Swine and for the benefit of the corporation was irrelevant.
The OAC added that the Writ of Execution dated August 4, 2007 issued by MTCC, Branch 2, Bacolod City, specifically directed the sheriff or his deputies to cause the execution of the judgment on the civil aspect of the cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court. If the personal property of the accused is insufficient to satisfy the amount of the said judgment by levying the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The writ made no mention of implementing the writ on the properties of Nueva Swine, rather, it provided to levy the goods and chattels of the accused Ng. Further, the Order dated January 22, 2007 issued by Judge Demonteverde unequivocally directed the City Sheriff and/or the Provincial Sheriff of Iloilo to serve the writ of execution on the civil aspect of the criminal cases to accused Mary Ann Ng and not to Nueva Swine.
It is a basic principle of law that money judgments are enforceable only against property unquestionably belonging to the judgment debtor.
In the case at bench, the officer of Nueva Swine during the implementation of the writ of execution informed respondents that the personal properties being levied upon does not belong to accused Ng, the judgment obligor, but to Nueva Swine, a juridical person separate and distinct from the judgment obligor. Such information should have warned respondents of the possibility of levying properties not belonging to accused Ng. Respondents have no authority to determine which property to levy based on documents presented to them and to conclude that the checks issued by accused Ng was for and in behalf of Nueva Swine. Their only directive is to implement the writ on the properties of accused Ng. They have no capacity to vary the judgment and deviate therefrom based on their own interpretation thereof.
Acting on the reports of the investigating executive judge and the OCA, the Court, by way of affirming the same, held that sheriffs are ministerial officers. They are agents of the law and not agents of the parties, neither of the creditor nor of the purchaser at a sale conducted by either of them. As such, sheriffs and deputy sheriffs must discharge their duties with due care and utmost diligence, because in serving the court’s writs and processes and in implementing the orders of the court, they cannot afford to err without affecting the efficiency of the process of the administration of justice. Sheriffs play an important role in the administration of justice and as agents of the law, high standards are expected of them.
The procedure for the implementation of a writ of execution of judgment is provided for under Section 9, Rule 39 of the Rules of Court, which states:
SEC. 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. – The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. (Emphasis Supplied.)
x x x x
In the present case, it was clearly shown that respondents failed to follow the above-cited procedure. Instead of demanding payment from accused Ng, the judgment obligor and therein defendant, as to the civil aspect in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, respondents served the writ of execution on Dr. Donglal, an officer of Nueva Swine. Respondents claimed that they tried to contact accused Ng through Dr. Donglal although the latter did not mention such incident in his affidavit. However, respondents failed to establish that they exerted all means to look for accused Ng, who should have been given the option as to which of her personal properties could be levied. They merely proceeded to demand payment from Dr. Donglal who was not even a party to the said criminal case. Worse, they levied the property of Nueva Swine.
The Supreme Court stressed that in the execution of a money judgment, the sheriff must first make a demand on the obligor for payment of the full amount stated in the writ of execution. Property belonging to third persons cannot be levied upon. Accused Ng was the judgment obligor as stated in said writ, and not Nueva Swine, although she was the President and CEO of the said company. She has a personality which is separate and distinct from that of the corporation and, likewise, her properties cannot be considered as properties of the corporation. Even assuming that accused Ng owned a majority of the stocks of Nueva Swine, respondents could have, at most, proceeded against her shares of stock, but not levy the hogs of Nueva Swine. Although the legal fiction that a corporation has a personality separate and distinct from that of stockholders and members may be disregarded, this exception should not be applied if it is used as a means to perpetrate fraud or an illegal act; or as a vehicle to evade an existing obligation, to circumvent statutes, or to confuse legitimate issues. Therefore, when respondents levied the properties of the corporation, a third party to the case and not named in the writ, they exceeded their authority to strictly comply with the writ of execution.
The Court added that therespondents committed grave abuse of authority when they forcibly took the swine despite the explanation of Dr. Donglal that the properties being levied did not belong to accused Ng. They continued to load the hogs into their cargo trucks even after having been informed of the TRO. Respondents’ taking was aggravated by the fact that they slaughtered one of the hogs, a fact that they expressly admitted and even stated in the Sheriffs’ Return of Service dated June 28, 2007. The slaughtered pig was then cooked into lechon (roasted pig), and respondents feasted on it while still in the premises of Nueva Swine. While respondents maintain that it was Dr. Donglal who proposed that the pig be slaughtered as food for them, such excuse is unacceptable because sheriffs cannot appropriate levied property for themselves, even though the same be purportedly upon the instance of Dr. Donglal. Sheriffs are enjoined to keep levied properties securely in their custody, and file a return of the writ of execution.
According top the Court such conduct of respondents evidently fell short of the standard established by the pertinent provisions of the Code of Conduct for Court Personnel, specifically Section 2, which states that court personnel shall carry out their responsibilities as public servants in as courteous a manner as possible; and Section 6, which states that court personnel shall expeditiously enforce rules and implement orders of the court within the limits of their authority.
Respondents became administratively liable for grave abuse of authority when they forcibly levied and took away properties belonging to a third person and, thereafter, appropriated the levied property for themselves. Respondents’ grave abuse of authority amounted to gross misconduct, which under the Uniform Rules on Administrative Cases in the Civil Service, Rule IV, Section 52 A (3) thereof, is a grave offense punishable by dismissal even for the first offense.
The news item on the above matter appears below.
SC dismisses 5 Iloilo sheriffs for seizure of pigs
By Nestor P. Burgos Jr.
Philippine Daily Inquirer
Inquirer Visayas
First Posted 20:25:00 11/22/2009
ILOILO CITY, Philippines—The Supreme Court stood pat on its decision dismissing from service five court sheriffs in this city for illegally confiscating pigs and feasting on one of them in 2007.
In an en banc ruling promulgated on Oct. 13 and released on Nov. 4, the high court dismissed with finality the motions for reconsideration filed in September by the sheriffs.
“The court resolved to deny with finality the …motions … there being no substantial matter raised to warrant the reversal of the questioned decision,” it said.
The latest ruling upheld an Aug. 13 order dismissing Rolando Somosa, Edgar Cordero and Rodolfo Haro, sheriffs of the Municipal Trial Court in Cities (MTCC); and Gani Lacatan and Camilo Divinagracia Jr., sheriffs of the Iloilo Regional Trial Court (RTC).
The court also ordered the forfeiture of all benefits and privileges of the sheriffs, except accrued leave credits.
The high court found them guilty of grave misconduct after they illegally confiscated 675 heads of swine from Nueva Swine Valley Inc. and admitted roasting and eating one of the pigs when they served a writ of execution related to a civil case two years ago.
The executive judge of the Iloilo RTC and the Office of the Court Administrator (OCA) had earlier found the sheriffs to have violated procedures under the 1997 Rules of Civil Procedure governing the implementation of execution of judgments for money when they levied the property of Nueva Swine Valley, which was not the subject of the writ of execution.
Mary Ann Ng, president and chief executive officer of the swine firm, was the subject of a criminal and civil complaint of Lita Gamboa, representing Keylargo Commodities Trading. Gamboa accused Ng of violating Batas Pambansa Bilang 22 (Bouncing Checks Law) for not paying her liabilities to complainant.
Investigations showed that on May 31, 2007, the sheriffs served the order of execution issued by the Municipal Trial Circuit Court Branch 2 in Bacolod City.
The order required Ng to pay her debts and the sheriffs to levy her properties if she failed to do so.
The high court had also pointed out that the properties of Nueva Swine were not the subject of the levy order because Ng has a separate and distinct personality from that of the corporation even if she was the corporation’s president and chief executive officer.
See:
http://newsinfo.inquirer.net/inquirerheadlines/regions/view/20091122-237767/SC-dismisses-5-Iloilo-sheriffs-for-seizure-of-pigs
This administrative case involving judicial employees of a major Philippine province in the south was so embarrassing (to the point of being educational, if such a concept exists) that big Philippine dailies in Manila carried reports thereon, which I am reproducing at the end of this blog.
I wish to digest the abovementioned Supreme Court decision for legal research purposes of the visitors of this blog.
The case arose out of a letter-complaint dated July 3, 2007 filed by complainant Atty. Hector P. Teodosio against respondent Sheriffs Gani Lacatan and Camilo Divinagracia, Jr., Deputy Sheriffs of the Regional Trial Court (RTC) of Iloilo City, and respondents Sheriffs Rolando Somosa, Edgardo Cordero and Rodolfo Haro, Deputy Sheriffs of the Municipal Trial Court in Cities (MTCC) of Iloilo City, with the Office of the Court Administrator (OCA) relative to the irregular manner of implementing the writ of execution issued by the MTCC, Branch 2, Bacolod City, Negros Occidental in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, entitled People of the Philippines v. Mary Ann Ng (for violation of BP Blg. 22, bouncing check law).
On August 27, 2004, the MTCC, Branch 2, Bacolod City, Negros Occidental, rendered a Decision on the civil aspect of the abovecited criminal cases filed by Lita Gamboa against Mary Ann Ng, President and Chief Executive Officer (CEO) of Nueva Swine Valley, Inc. (Nueva Swine). Said decision was based on an amicable settlement entered into between Ng and Keylargo Commodities Trading (Keylargo), represented by Lita Gamboa, wherein the former agreed to pay on installment basis her civil liability in the form of post dated checks she would issue, for and in behalf of Nueva Swine.
When Ng failed to comply with the terms and conditions of the judgment, Gamboa, through her counsel, moved for the execution of the decision. On August 4, 2006, the MTCC issued a Writ of Execution, which commanded the sheriffs to cause the execution of the aforesaid judgment on the civil aspect of the said criminal cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court, and in such cases made and provided together with all your lawful fees for the service of this Writ. The writ further stated that in case sufficient personal property of the accused could not be found whereof to satisfy the amount of the said judgment, the sheriffs were directed to levy the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The sheriffs were commanded only sell so much of the personal or real property as was sufficient to satisfy the judgment and lawful fees, and make a report to the trial court every thirty (30) days on the proceedings taken until the judgment was satisfied in full, or its effectivity expired.
On May 31, 2007, the respondent sheriffs proceeded to Nueva Swine’s hog farm at Barangay Talokgangan, Banate, Iloilo to implement the writ. Upon reaching the place, they introduced themselves and explained to the officer-in-charge (OIC) their purpose, as accused Ng was not around. They then served upon the OIC a copy of the writ, together with the decision, and demanded the money judgment. When the OIC failed to produce the money, respondents levied and took away 675 pigs and, thereafter, delivered them to Keylargo for safekeeping. A Notice of Levy on Execution was issued on the same day to accused Ng.
On June 1, 2007, complainant in this administrative case Atty. Teodosio (counsel for Nueva Swine’s hog farm) sought a 72-hour Temporary Restraining Order (TRO) with the RTC, Branch 66 of Barotac Viejo, Iloilo, which the latter granted, enjoining respondents, their agents and other persons acting for and on their behalf, from removing, transferring, disposing of and selling the swine in the hog farm of Nueva Swine in Brgy. Talokgangan, Banate, and in Nueva Invencion, Barotac Viejo, Iloilo, and from selling or disposing the swine already taken, which would be preserved and maintained in its present location under supervision of the sheriff of the court.
Despite the TRO, respondent sheriffs issued a Sheriff’s Notice of Sale on Execution, setting the auction sale of the pigs levied on June 5, 2007, 10:00 a.m., at the Victorias Milling Corporation Farm Site in Victorias City, Negros Occidental.
On June 4, 2007, Judge Rogelio Amador of the RTC, Branch 66 of Iloilo City issued an Order extending the 72-hour TRO to a full 20 days, or until June 21, 2007, and setting the case for a preliminary injunction on June 15, 2007. Said Order was served and received by the Provincial and City Sheriffs of Iloilo.
On June 5, 2007, respondents personally turned over all levied hogs to the MTCC, Branch 2 of Bacolod City.
On June 7, 2007, Branch Sheriff Emilio Portal of the MTC, Branch 2, Bacolod City, conducted the public auction sale of the levied hogs.
In a Memorandum dated February 4, 2009, the Office of the Court Administrator (OCA) agreed with the findings of the Investigating Judge establishing the guilt of the respondents.
The OCA stated that Section 9 of Rule 39 of the 1997 Rules of Civil Procedure provides that in the execution of a judgment for money, the officer enforcing such judgment shall demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
The OCA added that in the implementation of the writ of execution, respondents failed to strictly comply with the above rule. They failed to show that they demanded from accused Ng the payment of the judgment obligation. Records show that the writ was served on an officer of Nueva Swine who is not a party to the case and not on accused Ng. In their Return of Service dated June 28, 2007, respondents stated that when they arrived in the hog farm of Nueva Swine, accused Ng was not present. Mr. Donglal, an officer of the corporation, allegedly contacted accused Ng but it was not shown whether respondents talked to the former and demanded from her the payment of her obligation. In his affidavit, Mr. Donglal, denied talking with accused Ng nor did respondents ask him to talk to her. Thereafter, respondents demanded from Mr. Donglal the payment of the judgment obligation. When the latter failed to pay the obligation, respondents levied the corporation’s properties. Again, this is in violation of the rules as the hogs levied upon by respondents are not the personal properties of accused Ng.
The OCA stated that respondents’ argument that the checks, subject of the criminal case, were issued by accused Ng as president of Nueva Swine and for the benefit of the corporation was irrelevant.
The OAC added that the Writ of Execution dated August 4, 2007 issued by MTCC, Branch 2, Bacolod City, specifically directed the sheriff or his deputies to cause the execution of the judgment on the civil aspect of the cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court. If the personal property of the accused is insufficient to satisfy the amount of the said judgment by levying the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The writ made no mention of implementing the writ on the properties of Nueva Swine, rather, it provided to levy the goods and chattels of the accused Ng. Further, the Order dated January 22, 2007 issued by Judge Demonteverde unequivocally directed the City Sheriff and/or the Provincial Sheriff of Iloilo to serve the writ of execution on the civil aspect of the criminal cases to accused Mary Ann Ng and not to Nueva Swine.
It is a basic principle of law that money judgments are enforceable only against property unquestionably belonging to the judgment debtor.
In the case at bench, the officer of Nueva Swine during the implementation of the writ of execution informed respondents that the personal properties being levied upon does not belong to accused Ng, the judgment obligor, but to Nueva Swine, a juridical person separate and distinct from the judgment obligor. Such information should have warned respondents of the possibility of levying properties not belonging to accused Ng. Respondents have no authority to determine which property to levy based on documents presented to them and to conclude that the checks issued by accused Ng was for and in behalf of Nueva Swine. Their only directive is to implement the writ on the properties of accused Ng. They have no capacity to vary the judgment and deviate therefrom based on their own interpretation thereof.
Acting on the reports of the investigating executive judge and the OCA, the Court, by way of affirming the same, held that sheriffs are ministerial officers. They are agents of the law and not agents of the parties, neither of the creditor nor of the purchaser at a sale conducted by either of them. As such, sheriffs and deputy sheriffs must discharge their duties with due care and utmost diligence, because in serving the court’s writs and processes and in implementing the orders of the court, they cannot afford to err without affecting the efficiency of the process of the administration of justice. Sheriffs play an important role in the administration of justice and as agents of the law, high standards are expected of them.
The procedure for the implementation of a writ of execution of judgment is provided for under Section 9, Rule 39 of the Rules of Court, which states:
SEC. 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. – The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. (Emphasis Supplied.)
x x x x
In the present case, it was clearly shown that respondents failed to follow the above-cited procedure. Instead of demanding payment from accused Ng, the judgment obligor and therein defendant, as to the civil aspect in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, respondents served the writ of execution on Dr. Donglal, an officer of Nueva Swine. Respondents claimed that they tried to contact accused Ng through Dr. Donglal although the latter did not mention such incident in his affidavit. However, respondents failed to establish that they exerted all means to look for accused Ng, who should have been given the option as to which of her personal properties could be levied. They merely proceeded to demand payment from Dr. Donglal who was not even a party to the said criminal case. Worse, they levied the property of Nueva Swine.
The Supreme Court stressed that in the execution of a money judgment, the sheriff must first make a demand on the obligor for payment of the full amount stated in the writ of execution. Property belonging to third persons cannot be levied upon. Accused Ng was the judgment obligor as stated in said writ, and not Nueva Swine, although she was the President and CEO of the said company. She has a personality which is separate and distinct from that of the corporation and, likewise, her properties cannot be considered as properties of the corporation. Even assuming that accused Ng owned a majority of the stocks of Nueva Swine, respondents could have, at most, proceeded against her shares of stock, but not levy the hogs of Nueva Swine. Although the legal fiction that a corporation has a personality separate and distinct from that of stockholders and members may be disregarded, this exception should not be applied if it is used as a means to perpetrate fraud or an illegal act; or as a vehicle to evade an existing obligation, to circumvent statutes, or to confuse legitimate issues. Therefore, when respondents levied the properties of the corporation, a third party to the case and not named in the writ, they exceeded their authority to strictly comply with the writ of execution.
The Court added that therespondents committed grave abuse of authority when they forcibly took the swine despite the explanation of Dr. Donglal that the properties being levied did not belong to accused Ng. They continued to load the hogs into their cargo trucks even after having been informed of the TRO. Respondents’ taking was aggravated by the fact that they slaughtered one of the hogs, a fact that they expressly admitted and even stated in the Sheriffs’ Return of Service dated June 28, 2007. The slaughtered pig was then cooked into lechon (roasted pig), and respondents feasted on it while still in the premises of Nueva Swine. While respondents maintain that it was Dr. Donglal who proposed that the pig be slaughtered as food for them, such excuse is unacceptable because sheriffs cannot appropriate levied property for themselves, even though the same be purportedly upon the instance of Dr. Donglal. Sheriffs are enjoined to keep levied properties securely in their custody, and file a return of the writ of execution.
According top the Court such conduct of respondents evidently fell short of the standard established by the pertinent provisions of the Code of Conduct for Court Personnel, specifically Section 2, which states that court personnel shall carry out their responsibilities as public servants in as courteous a manner as possible; and Section 6, which states that court personnel shall expeditiously enforce rules and implement orders of the court within the limits of their authority.
Respondents became administratively liable for grave abuse of authority when they forcibly levied and took away properties belonging to a third person and, thereafter, appropriated the levied property for themselves. Respondents’ grave abuse of authority amounted to gross misconduct, which under the Uniform Rules on Administrative Cases in the Civil Service, Rule IV, Section 52 A (3) thereof, is a grave offense punishable by dismissal even for the first offense.
The news item on the above matter appears below.
SC dismisses 5 Iloilo sheriffs for seizure of pigs
By Nestor P. Burgos Jr.
Philippine Daily Inquirer
Inquirer Visayas
First Posted 20:25:00 11/22/2009
ILOILO CITY, Philippines—The Supreme Court stood pat on its decision dismissing from service five court sheriffs in this city for illegally confiscating pigs and feasting on one of them in 2007.
In an en banc ruling promulgated on Oct. 13 and released on Nov. 4, the high court dismissed with finality the motions for reconsideration filed in September by the sheriffs.
“The court resolved to deny with finality the …motions … there being no substantial matter raised to warrant the reversal of the questioned decision,” it said.
The latest ruling upheld an Aug. 13 order dismissing Rolando Somosa, Edgar Cordero and Rodolfo Haro, sheriffs of the Municipal Trial Court in Cities (MTCC); and Gani Lacatan and Camilo Divinagracia Jr., sheriffs of the Iloilo Regional Trial Court (RTC).
The court also ordered the forfeiture of all benefits and privileges of the sheriffs, except accrued leave credits.
The high court found them guilty of grave misconduct after they illegally confiscated 675 heads of swine from Nueva Swine Valley Inc. and admitted roasting and eating one of the pigs when they served a writ of execution related to a civil case two years ago.
The executive judge of the Iloilo RTC and the Office of the Court Administrator (OCA) had earlier found the sheriffs to have violated procedures under the 1997 Rules of Civil Procedure governing the implementation of execution of judgments for money when they levied the property of Nueva Swine Valley, which was not the subject of the writ of execution.
Mary Ann Ng, president and chief executive officer of the swine firm, was the subject of a criminal and civil complaint of Lita Gamboa, representing Keylargo Commodities Trading. Gamboa accused Ng of violating Batas Pambansa Bilang 22 (Bouncing Checks Law) for not paying her liabilities to complainant.
Investigations showed that on May 31, 2007, the sheriffs served the order of execution issued by the Municipal Trial Circuit Court Branch 2 in Bacolod City.
The order required Ng to pay her debts and the sheriffs to levy her properties if she failed to do so.
The high court had also pointed out that the properties of Nueva Swine were not the subject of the levy order because Ng has a separate and distinct personality from that of the corporation even if she was the corporation’s president and chief executive officer.
See:
http://newsinfo.inquirer.net/inquirerheadlines/regions/view/20091122-237767/SC-dismisses-5-Iloilo-sheriffs-for-seizure-of-pigs
Friday, November 20, 2009
Gay rights
The homosexuals and lesbians constitute a marginalized sector in Philippine society (in fact, in all societies worldwide).
As such they deserve full legal and political representation and protection via the beneficial provisions of the current Philippine party-list law and related election laws.
The Bill of Rights and the Statement of State Policies of the 1987 Philippine Constitution expressly protect and defend the rights of all sectors of society regardless of sexual orientation, gender, race, color, ethnicity, religion, and creed.
This is a universal precept enshrined in all international covenants on human rights since the very foundation of the United Nations in the late 1940s.
Unfortunately, the Commission on Elections (whose ignorant and biased commissioners and lawyers still live in the ancient age of Queen Victoria) sees the gay sector as a menace to the morals and spirituality of society.
This hyprocritical holier-than-thou attitude of the commission endangers the spirit and substance of democracy and republicanism in the Philippines.
A recent item in the column of former UP law dean Raul Pangalangan condemns this wrong view.
It appeared in today’s issue of the Philippine Daily Inquirer, which I wish to share with my readers.
Passion For Reason
Gay-bashing by Comelec bullies
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:29:00 11/19/2009
THE ELECTION commissioners belong to homo sapiens, yet they are so homogeneous in their homophobia that they might think I have actually insulted them by using any word that can pass for a homonym. By the Comelec’s backward logic, anything homo can’t be good.
What amazes me is the gall of Nicodemo Ferrer, Lucenito Tagle and Elias Yusuph in citing the Bible and the Koran to curtail a right of political participation guaranteed by the Constitution. What was going on inside their heads? Were they brown-nosing the fundamentalist clergy of both religions? Were they pandering to the hardy machos in the gallery? Or could they actually have been serious in rejecting the gay and lesbian rights party-list group Ang Ladlad?
The Constitution says it loud and clear. “The separation of Church and State shall be inviolable.” “No religious test shall be required for the exercise of civil or political rights.” Yet the Comelec cites the Bible where it condemns “vile affections” which, this time citing the Koran, are punished with a “shower of brimstone.” These constitute precisely the “religious test” barred by the Constitution.
What is appalling is these were completely superfluous to the Comelec’s logic, which, in the end, actually relied on secular morality. The Comelec said that Ang Ladlad “serve[d] no other purpose but to satisfy the market for … lust or pornography … offend[s a] race or religion” and are “offensive to morals.” They took one look at Ang Ladlad’s openness to “intimate and sexual relations [among] individuals of a different gender, of the same gender, or more than one gender” and concluded that Ang Ladlad “advocate[s] immoral doctrines.” But where does it say that the Comelec commissioners can use the law to carry out their private prejudices?
The Comelec concluded that Ang Ladlad lied when it said that none of its supposedly gay nominees “have [not] violated … laws, rules or regulations relating to elections.” I wonder: Since when has the “Kamasutra” been an election-related manual? Philippine elections are so lewd that the “Kamasutra” can only be so profaned. But seriously now. What laws did Ang Ladlad breach? What was the charge? Who was the complainant? What court rendered judgment? Can the Comelec so blithely arrogate unto itself the role of accuser, judge and executioner?
When the Comelec hears an application for party-list accreditation, it is limited to specific legal tests and nothing more. Is the group genuinely not part of the government? Is the group a mere front of religious groups otherwise excluded from forming political parties? Does a Forbes Park matron belong to the purportedly marginalized minority of homeowners’ associations? Does the group represent a bona fide “marginalized and under-represented group”? Indeed, for the 2007 elections, the Comelec disqualified Ang Ladlad because it couldn’t show that it had enough muscle as a nationwide party. Now that Ang Ladlad has apparently shown some political bicep, why does the Comelec suddenly want to poke into its other parts?
Granting that the Comelec truly has a “roving commission” as our moral guardian, why did they discover it only now that the gay and lesbians stand before them? For instance, shouldn’t they have first disqualified Gloria Macapagal-Arroyo from public office because she immorally spoke to a Comelec commissioner during the 2004 elections? Shouldn’t they disqualify that Comelec commissioner who immorally answered when Ms Arroyo said, “Hello, Garci”? Shouldn’t they disqualify retired Maj. Gen. (now party-list congressman) Jovito Palparan? After all the Supreme Court no less, speaking through the Chief Justice in a writ of amparo decision, documented Palparan’s interrogating two torture victims who were almost “disappeared”? Did the Comelec even bother to investigate the Court’s finding that its Mega-Pacific computerization deal had violated its own bidding rules?
Why the selective application of rules? One set of rules but two ways to apply them: liberal in favor of the politically well connected, strict against the political outsiders?
The Constitution frowns upon unequal treatment, especially when it burdens constitutionally protected rights of political participation, of speech, of assembly, or of privacy.
The Comelec cannot push Ang Ladlad around. But gays and lesbians have lived a whole lifetime of standing up to bullies, of fighting off the daily insults, the deprecating attitudes, the nasty jokes. They are veterans of a different kind of war, and for them, the commissioners are, metaphorically, small nuts to chew.
The US Supreme Court called for exacting judicial scrutiny when “prejudice against discrete and insular minorities [curtail] those political processes ordinarily to be relied upon to protect minorities.” The Comelec gay exclusion fits that description to a T.
The US high court reasoned: “Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence [and that we] define themselves in a significant way through [our] intimate sexual relationships … [M]uch of the richness of a relationship will come from the freedom of an individual to choose the form and nature of these intensely personal bonds.” Ferrer has threatened to out the closet gays in Congress, but he merely succeeded in outing himself as a closet fascist.
It is no surprise when weak political institutions like the Comelec ally themselves with powerful religious orthodoxies. That is the way of bullies, typical of the authoritarian impulse to kowtow before the powerful while riding roughshod over the weak. The “kiss-ass, kick-ass” syndrome is especially ridiculous here since the only behind the Comelec must cover is its own.
* * *
Comments to passionforreason@gmail.com
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20091119-237238/Gay-bashing-by-Comelec-bullies
As such they deserve full legal and political representation and protection via the beneficial provisions of the current Philippine party-list law and related election laws.
The Bill of Rights and the Statement of State Policies of the 1987 Philippine Constitution expressly protect and defend the rights of all sectors of society regardless of sexual orientation, gender, race, color, ethnicity, religion, and creed.
This is a universal precept enshrined in all international covenants on human rights since the very foundation of the United Nations in the late 1940s.
Unfortunately, the Commission on Elections (whose ignorant and biased commissioners and lawyers still live in the ancient age of Queen Victoria) sees the gay sector as a menace to the morals and spirituality of society.
This hyprocritical holier-than-thou attitude of the commission endangers the spirit and substance of democracy and republicanism in the Philippines.
A recent item in the column of former UP law dean Raul Pangalangan condemns this wrong view.
It appeared in today’s issue of the Philippine Daily Inquirer, which I wish to share with my readers.
Passion For Reason
Gay-bashing by Comelec bullies
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:29:00 11/19/2009
THE ELECTION commissioners belong to homo sapiens, yet they are so homogeneous in their homophobia that they might think I have actually insulted them by using any word that can pass for a homonym. By the Comelec’s backward logic, anything homo can’t be good.
What amazes me is the gall of Nicodemo Ferrer, Lucenito Tagle and Elias Yusuph in citing the Bible and the Koran to curtail a right of political participation guaranteed by the Constitution. What was going on inside their heads? Were they brown-nosing the fundamentalist clergy of both religions? Were they pandering to the hardy machos in the gallery? Or could they actually have been serious in rejecting the gay and lesbian rights party-list group Ang Ladlad?
The Constitution says it loud and clear. “The separation of Church and State shall be inviolable.” “No religious test shall be required for the exercise of civil or political rights.” Yet the Comelec cites the Bible where it condemns “vile affections” which, this time citing the Koran, are punished with a “shower of brimstone.” These constitute precisely the “religious test” barred by the Constitution.
What is appalling is these were completely superfluous to the Comelec’s logic, which, in the end, actually relied on secular morality. The Comelec said that Ang Ladlad “serve[d] no other purpose but to satisfy the market for … lust or pornography … offend[s a] race or religion” and are “offensive to morals.” They took one look at Ang Ladlad’s openness to “intimate and sexual relations [among] individuals of a different gender, of the same gender, or more than one gender” and concluded that Ang Ladlad “advocate[s] immoral doctrines.” But where does it say that the Comelec commissioners can use the law to carry out their private prejudices?
The Comelec concluded that Ang Ladlad lied when it said that none of its supposedly gay nominees “have [not] violated … laws, rules or regulations relating to elections.” I wonder: Since when has the “Kamasutra” been an election-related manual? Philippine elections are so lewd that the “Kamasutra” can only be so profaned. But seriously now. What laws did Ang Ladlad breach? What was the charge? Who was the complainant? What court rendered judgment? Can the Comelec so blithely arrogate unto itself the role of accuser, judge and executioner?
When the Comelec hears an application for party-list accreditation, it is limited to specific legal tests and nothing more. Is the group genuinely not part of the government? Is the group a mere front of religious groups otherwise excluded from forming political parties? Does a Forbes Park matron belong to the purportedly marginalized minority of homeowners’ associations? Does the group represent a bona fide “marginalized and under-represented group”? Indeed, for the 2007 elections, the Comelec disqualified Ang Ladlad because it couldn’t show that it had enough muscle as a nationwide party. Now that Ang Ladlad has apparently shown some political bicep, why does the Comelec suddenly want to poke into its other parts?
Granting that the Comelec truly has a “roving commission” as our moral guardian, why did they discover it only now that the gay and lesbians stand before them? For instance, shouldn’t they have first disqualified Gloria Macapagal-Arroyo from public office because she immorally spoke to a Comelec commissioner during the 2004 elections? Shouldn’t they disqualify that Comelec commissioner who immorally answered when Ms Arroyo said, “Hello, Garci”? Shouldn’t they disqualify retired Maj. Gen. (now party-list congressman) Jovito Palparan? After all the Supreme Court no less, speaking through the Chief Justice in a writ of amparo decision, documented Palparan’s interrogating two torture victims who were almost “disappeared”? Did the Comelec even bother to investigate the Court’s finding that its Mega-Pacific computerization deal had violated its own bidding rules?
Why the selective application of rules? One set of rules but two ways to apply them: liberal in favor of the politically well connected, strict against the political outsiders?
The Constitution frowns upon unequal treatment, especially when it burdens constitutionally protected rights of political participation, of speech, of assembly, or of privacy.
The Comelec cannot push Ang Ladlad around. But gays and lesbians have lived a whole lifetime of standing up to bullies, of fighting off the daily insults, the deprecating attitudes, the nasty jokes. They are veterans of a different kind of war, and for them, the commissioners are, metaphorically, small nuts to chew.
The US Supreme Court called for exacting judicial scrutiny when “prejudice against discrete and insular minorities [curtail] those political processes ordinarily to be relied upon to protect minorities.” The Comelec gay exclusion fits that description to a T.
The US high court reasoned: “Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence [and that we] define themselves in a significant way through [our] intimate sexual relationships … [M]uch of the richness of a relationship will come from the freedom of an individual to choose the form and nature of these intensely personal bonds.” Ferrer has threatened to out the closet gays in Congress, but he merely succeeded in outing himself as a closet fascist.
It is no surprise when weak political institutions like the Comelec ally themselves with powerful religious orthodoxies. That is the way of bullies, typical of the authoritarian impulse to kowtow before the powerful while riding roughshod over the weak. The “kiss-ass, kick-ass” syndrome is especially ridiculous here since the only behind the Comelec must cover is its own.
* * *
Comments to passionforreason@gmail.com
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20091119-237238/Gay-bashing-by-Comelec-bullies
Wednesday, November 18, 2009
Judicial security
Nothing has happened to my letter last year addressed to the Supreme Court to create a Judicial Armed Security Command (JASC) to protect the administration of justice in the Philippines. The Court must be independent in protecting the national justice system. It is not good to rely solely on the Armed Forces of the Philippines and the Philippine National Police, whose leaders and personnel, more often than not, are involved in the multifarious cases pending before the Court and its lower echelon. Last year the Philippine Daily Inquirer published my letter on the matter, which I wish to reproduce below to refresh our memories. I am not aware of any movement along this line in any committee or office of the Court but I recall that last year the Office of the Court Administrator wrote me to express its general interest in the idea. It stopped there.
Judiciary should have own security
Philippine Daily Inquirer
First Posted 00:35:00 02/19/2008
The Bar is deeply bothered by repeated murders inside the halls of justice, especially in Metro Manila. Last year, a fellow trial lawyer was murdered inside Branch 199 of the Regional Trial Court of Las Piñas City. Last month a former Mindanao mayor was murdered just outside the Regional Trial Court of Manila. Many trial judges nationwide have been murdered over the past five years in the course of their work.
Such killings, like a cancer, destroy the rule of law and the administration of justice in our country. They aggravate the poor image of our legal system, which is already drawing painful criticism from local and foreign media, rightly or wrongly, for alleged weaknesses, ineptness, lack of independence, politicization, and corruption.
The security seminars and firearms/target shooting training sessions conducted by the Supreme Court for trial judges and selected court personnel are not enough to solve the problem. What is required is an institutional and systems-oriented solution.
In this regard, we respectfully recommend the formation by the Supreme Court of a Judicial Armed Security Command (JASC) under its full control and supervision (not under the Philippine National Police or the Armed Forces of the Philippines).
With due respect, we say it is useless and inadvisable for the Supreme Court to rely on the local police and military units to secure the halls of justice in the country while preserving the independence of the courts.
Like the Bangko Sentral ng Pilipinas, the Supreme Court should have its own national judicial armed security command to protect the justice system, which is its primary constitutional responsibility.
The funds for the proposed command should be sourced from the annual budgets of the national government, starting with the 2009 Supreme Court budget (not from increased docket and filing fees, which now heavily penalize the poor and middle-income litigants).
It is time for the Supreme Court to give flesh to the constitutional doctrine of judicial (and financial) independence.
The current Judicial Development Fund (JDF) collections are sorely insufficient for the purpose. It cannot even pay for the meager employee benefits of the judicial workers, whose weekly protests (Black Fridays) are going on.
We suggest that the Supreme Court create a technical planning committee to study the idea of forming an internal JASC for the sake of the rule of law and the administration of justice.
MANUEL J. LASERNA JR., board consultant, Las Piñas City Bar Association, Unit 15, Star Arcade, C.V. Starr Avenue, Philamlife Village, Las Piñas City
See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20080219-119739/Judiciary-should-have-own-security
Judiciary should have own security
Philippine Daily Inquirer
First Posted 00:35:00 02/19/2008
The Bar is deeply bothered by repeated murders inside the halls of justice, especially in Metro Manila. Last year, a fellow trial lawyer was murdered inside Branch 199 of the Regional Trial Court of Las Piñas City. Last month a former Mindanao mayor was murdered just outside the Regional Trial Court of Manila. Many trial judges nationwide have been murdered over the past five years in the course of their work.
Such killings, like a cancer, destroy the rule of law and the administration of justice in our country. They aggravate the poor image of our legal system, which is already drawing painful criticism from local and foreign media, rightly or wrongly, for alleged weaknesses, ineptness, lack of independence, politicization, and corruption.
The security seminars and firearms/target shooting training sessions conducted by the Supreme Court for trial judges and selected court personnel are not enough to solve the problem. What is required is an institutional and systems-oriented solution.
In this regard, we respectfully recommend the formation by the Supreme Court of a Judicial Armed Security Command (JASC) under its full control and supervision (not under the Philippine National Police or the Armed Forces of the Philippines).
With due respect, we say it is useless and inadvisable for the Supreme Court to rely on the local police and military units to secure the halls of justice in the country while preserving the independence of the courts.
Like the Bangko Sentral ng Pilipinas, the Supreme Court should have its own national judicial armed security command to protect the justice system, which is its primary constitutional responsibility.
The funds for the proposed command should be sourced from the annual budgets of the national government, starting with the 2009 Supreme Court budget (not from increased docket and filing fees, which now heavily penalize the poor and middle-income litigants).
It is time for the Supreme Court to give flesh to the constitutional doctrine of judicial (and financial) independence.
The current Judicial Development Fund (JDF) collections are sorely insufficient for the purpose. It cannot even pay for the meager employee benefits of the judicial workers, whose weekly protests (Black Fridays) are going on.
We suggest that the Supreme Court create a technical planning committee to study the idea of forming an internal JASC for the sake of the rule of law and the administration of justice.
MANUEL J. LASERNA JR., board consultant, Las Piñas City Bar Association, Unit 15, Star Arcade, C.V. Starr Avenue, Philamlife Village, Las Piñas City
See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20080219-119739/Judiciary-should-have-own-security
R.A. No. 9745, anti-torture act of 2009
In accordance with my previous promise, I am digesting below the salient parts of the newly approved R.A. No. 9745¸ otherwise known as the ANTI-TORTURE ACT OF 2009 of the Philippines.
(Note: As in all other Philippine human rights-related laws, we still have to wait and see how serious, sincere, and honest the military and police sectors of the Philippine society would enforce and respect the letter and spirit of the new law. As we all know, the military and police officers and personnel are the number one human rights violators in the Philippines, abetted and funded by national and local war, drug, and crime lords and by regional and local political dynasties -- as if we still live in the deplorable and sick middle ages of the feudal 9th-century Europe).
Let me digest the new law.
Sec. 2 of the new law declares the policy of the State:
(a) to value the dignity of every human person and guarantee full respect for human rights;
(b) to ensure that the rights of all persons, including suspects, detainees and prisoners are respected at all times; that no person placed under investigation or held in custody by any person in authority or agent of a person in authority shall be subjected to torture, physical harm, force, violence, threat or intimidation or any act that impairs his/her free will; and that secret detention places, solitary, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are hereby prohibited; and
(c) to fully adhere to the principles and standards on the absolute condemnation and prohibition of torture set by the 1987 Philippine Constitution and various international instruments, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), to which the Philippines is a State party.
Under Sec. 3, “torture” refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
“Other cruel, inhuman and degrading treatment or punishment” refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter.
Sec. 4 provides that torture (physical and mental) shall include, but is not be limited to, the following:
(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:
1. systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;
2. food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;
3. electric shock;
4. cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);
5. the submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;
6. being tied or forced to assume fixed and stressful bodily position;
7. rape and sexual abuse, including the insertion of foreign bodies into the sex organ or rectum, or electrical torture of the genitals;
8. mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;
9. dental torture or the forced extraction of the teeth;
10. pulling out of fingernails;
11. harmful exposure to the elements such as sunlight and extreme cold;
12. the use of plastic bag and other materials placed over the head to the point of asphyxiation;
13. the use of psychoactive drugs to change the perception, memory, alertness or will of a person, such as: (i) the administration of drugs to induce confession and/or reduce mental competency; or (ii) the use of drugs to induce extreme pain or certain symptoms of a disease; and
14. other analogous acts of physical torture; and
(b) Mental/Psychological torture refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person’s dignity and morale, such as:
1. blindfolding;
2. threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;
3. confinement in solitary cells or secret detention places;
4. prolonged interrogation;
5. preparing a prisoner for a “show trial”, public display or publichumiliation of a detainee or prisoner;
6. causing unscheduled transfer of a person deprived of liberty from one place
to another, creating the belief that he/she shall be summarily executed;
7. maltreating a member/s of a person’s family;
8. causing the torture sessions to be witnessed by the person’s family, relatives or any third party;
9. denial of sleep/rest;
10. shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim’s head or putting marks on his/her body against his/her will;
11. deliberately prohibiting the victim to communicate with any member of his/her family; and
12. other analogous acts of mental/psychological torture.
Per Sec. 5, other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.
Sec. 6 expressly declares that torture as a criminal act. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. An “Order of Battle” or any order from a superior officer or public authority shall not be invoked as a justification for the commission of torture.
Sec. 7 commands that any confession, admission or statement obtained as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that said confession, admission or statement was made.
Sec. 8 provides that any individual who alleges that he/she has been subjected to torture and other cruel, inhuman and degrading treatment or punishment shall have the right to complain to and to have his/her case promptly and impartially examined by competent authorities. The State through its appropriate agencies shall ensure the safety of the complainant or victim and all other persons involved in the investigation and prosecution of cases of torture and other cruel, inhuman and degrading treatment or punishment such as the legal counsel, witnesses, relatives of the victims, representatives of human rights organizations and media. They shall be entitled to the Witness Protection, Security and Benefit Program, as provided under Republic Act No. 6981, and other laws, rules and regulations. They shall be protected from ill-treatment and any act of intimidation or reprisal as a result of the complaint or filing of charges. Any person committing such acts shall be punished under existing laws.
Under Sec. 9 a writ of habeas corpus or writ of amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment shall be disposed of expeditiously and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be executed or complied with immediately.
Sec. 10 commandes the the Commission on Human Rights of the Philippines (CHRP) and the Public Attorney’s Office (PAO) to render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel, inhuman and degrading treatment or punishment, or for any interested party thereto.
The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center nearest him/her as well as from human rights nongovernment organizations (NGOs).
Under Sec. 11, before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand a physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavour to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation shall have the right to immediate access to quality medical treatment.
The physical examination and/or psychological evaluation of the victim shall be contained in a medical report which shall include in detail his/her medical history and findings, and which shall be attached to the custodial investigation report. Following applicable protocol agreed upon by agencies, medical reports shall, among others, include the following:
(a) The name, age and address of the patient;
(b) The name and address of the nearest of kin of the patient;
(c) The name and address of the person who brought the patient to a hospital clinic or to a health care practitioner for physical and psychological examination;
(d) The nature and probable cause of the patient’s injuries and trauma;
(e) The approximate time and date when the injury and/or trauma was sustained;
(f) The place where the injury and/or trauma was sustained;
(g) The time, date and nature of treatment necessary; and
(h) The diagnosis, prognosis and/or disposition of the patient.
Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel.
Sec. 12 expressly provides that any person who actually participated or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture by previous or simultaneous acts shall be liable as principal. Any superior military, police or law enforcement officer or senior government official who issued an order to a lower ranking personnel to subject a victim to torture or other cruel, inhuman and degrading treatment or punishment for whatever purpose shall be held equally liable as principal. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner:
(a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or
punishment;
(b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or
(c) By harboring, concealing or assisting in the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official’s public functions.
Command responsibility is enshrined in the new law. Under Sec. 13,the immediate superior of the unit concerned of the Armed Forces of the Philippines or the equivalent senior official of the offender shall be held accountable for “neglect of duty” under the doctrine of “command responsibility” if he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence, shall, without prejudice to criminal liability, be held administratively liable under the principle of command responsibility.
Sec. 14 provides for the penalty of reclusion perpetua upon the perpetrators of the following acts:
1. Torture resulting in the death of any person;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and
5. Torture committed against children.
The penalty of reclusion temporal shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.
The penalty of prision mayor in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; or shall have become permanently incapacitated for labor.
The penalty of prision mayor in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days.
The penalty of prision correccional in its maximum period to prision mayor in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for more than thirty (30) days but not more than ninety (90) days.
The penalty of prision correccional in its maximum period shall be imposed on the immediate officer who, either deliberately or by inexcusable negligence, failed to do an act even if he/she has knowledge or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman or degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment.
The penalty of prision correccional in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less.
The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment.
In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. (Sec. 15).
Sec. 16 provides for the international law aspect of the crime. Notwithstanding the provisions of the foregoing section, any investigation, trial and decision in any Philippine court or other agency for any violation of this Act shall be without prejudice to any investigation, trial, decision or any other legal or administrative process before the appropriate international court or agency under applicable international human rights and humanitarian laws.
Sec. 17 provides that no person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that such person would be in danger of being subjected to torture and other cruel, inhuman and degrading treatment or punishment.
For the purpose of determining whether there are such grounds, the Secretary of Foreign Affairs and the Secretary of Justice, in coordination with the Chairperson of the CHRP, shall take into account all relevant considerations including, where applicable, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.
Sec. 18 contains the compensation clause of the law. Any person who has suffered torture or other cruel, inhuman and degrading treatment or punishment shall have the right to claim for compensation as provided for under Republic Act No. 7309:
Provided, That in no case shall the compensation be any lower; than Ten thousand pesos (P10,000.00). The victim shall also have the right to claim for compensation from such other financial relief programs that may be available to him/her.
Sec. 19 provides that within one (1) year from the effectivity of this Act, the Department of Social Welfare and Development (DSWD), together with the Department of Justice (DOJ) and the Department of Health (DOH) and such other concerned government agencies, shall formulate a comprehensive rehabilitation program for victims of torture and their families. Toward the attainment of restorative justice, a parallel rehabilitation program for persons who have committed torture and other cruel, inhuman and degrading treatment or punishment shall likewise be formulated by the same agencies.
Sec. 20 assigns the CHRP as the head of the oversight committee to monitor the enforcement of the new law. An oversight committee is created to periodically oversee the implementation of this Act. The committee shall be headed by a commissioner of the CHRP, with the following as members: an undersecretary of the DOJ, the chairperson of the Senate Committee on Justice and Human Rights, the respective chairpersons of the House of Representatives’ Committees on Justice and Human Rights and the respective chairpersons of two (2) nationally organized human rights NGOs, one of whose functions is the monitoring of cases of torture and other
cruel, inhuman and degrading treatment or punishment.
Sec. 22 provides that the provisions of the Revised Penal Code shall be suppletory to the new law.
Sec. 24 commands the DOJ and the CHRP, with the active participation of human rights NGOs, to jointly promulgate the rules and regulations for the effective implementation of this Act. They shall also ensure the full dissemination of such rules and regulations to all officers and members of various law enforcement agencies.
(Note: As in all other Philippine human rights-related laws, we still have to wait and see how serious, sincere, and honest the military and police sectors of the Philippine society would enforce and respect the letter and spirit of the new law. As we all know, the military and police officers and personnel are the number one human rights violators in the Philippines, abetted and funded by national and local war, drug, and crime lords and by regional and local political dynasties -- as if we still live in the deplorable and sick middle ages of the feudal 9th-century Europe).
Let me digest the new law.
Sec. 2 of the new law declares the policy of the State:
(a) to value the dignity of every human person and guarantee full respect for human rights;
(b) to ensure that the rights of all persons, including suspects, detainees and prisoners are respected at all times; that no person placed under investigation or held in custody by any person in authority or agent of a person in authority shall be subjected to torture, physical harm, force, violence, threat or intimidation or any act that impairs his/her free will; and that secret detention places, solitary, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are hereby prohibited; and
(c) to fully adhere to the principles and standards on the absolute condemnation and prohibition of torture set by the 1987 Philippine Constitution and various international instruments, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), to which the Philippines is a State party.
Under Sec. 3, “torture” refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
“Other cruel, inhuman and degrading treatment or punishment” refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter.
Sec. 4 provides that torture (physical and mental) shall include, but is not be limited to, the following:
(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:
1. systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;
2. food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;
3. electric shock;
4. cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);
5. the submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;
6. being tied or forced to assume fixed and stressful bodily position;
7. rape and sexual abuse, including the insertion of foreign bodies into the sex organ or rectum, or electrical torture of the genitals;
8. mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;
9. dental torture or the forced extraction of the teeth;
10. pulling out of fingernails;
11. harmful exposure to the elements such as sunlight and extreme cold;
12. the use of plastic bag and other materials placed over the head to the point of asphyxiation;
13. the use of psychoactive drugs to change the perception, memory, alertness or will of a person, such as: (i) the administration of drugs to induce confession and/or reduce mental competency; or (ii) the use of drugs to induce extreme pain or certain symptoms of a disease; and
14. other analogous acts of physical torture; and
(b) Mental/Psychological torture refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person’s dignity and morale, such as:
1. blindfolding;
2. threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;
3. confinement in solitary cells or secret detention places;
4. prolonged interrogation;
5. preparing a prisoner for a “show trial”, public display or publichumiliation of a detainee or prisoner;
6. causing unscheduled transfer of a person deprived of liberty from one place
to another, creating the belief that he/she shall be summarily executed;
7. maltreating a member/s of a person’s family;
8. causing the torture sessions to be witnessed by the person’s family, relatives or any third party;
9. denial of sleep/rest;
10. shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim’s head or putting marks on his/her body against his/her will;
11. deliberately prohibiting the victim to communicate with any member of his/her family; and
12. other analogous acts of mental/psychological torture.
Per Sec. 5, other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.
Sec. 6 expressly declares that torture as a criminal act. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. An “Order of Battle” or any order from a superior officer or public authority shall not be invoked as a justification for the commission of torture.
Sec. 7 commands that any confession, admission or statement obtained as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that said confession, admission or statement was made.
Sec. 8 provides that any individual who alleges that he/she has been subjected to torture and other cruel, inhuman and degrading treatment or punishment shall have the right to complain to and to have his/her case promptly and impartially examined by competent authorities. The State through its appropriate agencies shall ensure the safety of the complainant or victim and all other persons involved in the investigation and prosecution of cases of torture and other cruel, inhuman and degrading treatment or punishment such as the legal counsel, witnesses, relatives of the victims, representatives of human rights organizations and media. They shall be entitled to the Witness Protection, Security and Benefit Program, as provided under Republic Act No. 6981, and other laws, rules and regulations. They shall be protected from ill-treatment and any act of intimidation or reprisal as a result of the complaint or filing of charges. Any person committing such acts shall be punished under existing laws.
Under Sec. 9 a writ of habeas corpus or writ of amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment shall be disposed of expeditiously and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be executed or complied with immediately.
Sec. 10 commandes the the Commission on Human Rights of the Philippines (CHRP) and the Public Attorney’s Office (PAO) to render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel, inhuman and degrading treatment or punishment, or for any interested party thereto.
The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center nearest him/her as well as from human rights nongovernment organizations (NGOs).
Under Sec. 11, before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand a physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavour to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation shall have the right to immediate access to quality medical treatment.
The physical examination and/or psychological evaluation of the victim shall be contained in a medical report which shall include in detail his/her medical history and findings, and which shall be attached to the custodial investigation report. Following applicable protocol agreed upon by agencies, medical reports shall, among others, include the following:
(a) The name, age and address of the patient;
(b) The name and address of the nearest of kin of the patient;
(c) The name and address of the person who brought the patient to a hospital clinic or to a health care practitioner for physical and psychological examination;
(d) The nature and probable cause of the patient’s injuries and trauma;
(e) The approximate time and date when the injury and/or trauma was sustained;
(f) The place where the injury and/or trauma was sustained;
(g) The time, date and nature of treatment necessary; and
(h) The diagnosis, prognosis and/or disposition of the patient.
Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel.
Sec. 12 expressly provides that any person who actually participated or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture by previous or simultaneous acts shall be liable as principal. Any superior military, police or law enforcement officer or senior government official who issued an order to a lower ranking personnel to subject a victim to torture or other cruel, inhuman and degrading treatment or punishment for whatever purpose shall be held equally liable as principal. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner:
(a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or
punishment;
(b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or
(c) By harboring, concealing or assisting in the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official’s public functions.
Command responsibility is enshrined in the new law. Under Sec. 13,the immediate superior of the unit concerned of the Armed Forces of the Philippines or the equivalent senior official of the offender shall be held accountable for “neglect of duty” under the doctrine of “command responsibility” if he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence, shall, without prejudice to criminal liability, be held administratively liable under the principle of command responsibility.
Sec. 14 provides for the penalty of reclusion perpetua upon the perpetrators of the following acts:
1. Torture resulting in the death of any person;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and
5. Torture committed against children.
The penalty of reclusion temporal shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.
The penalty of prision mayor in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; or shall have become permanently incapacitated for labor.
The penalty of prision mayor in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days.
The penalty of prision correccional in its maximum period to prision mayor in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for more than thirty (30) days but not more than ninety (90) days.
The penalty of prision correccional in its maximum period shall be imposed on the immediate officer who, either deliberately or by inexcusable negligence, failed to do an act even if he/she has knowledge or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman or degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment.
The penalty of prision correccional in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less.
The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment.
In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. (Sec. 15).
Sec. 16 provides for the international law aspect of the crime. Notwithstanding the provisions of the foregoing section, any investigation, trial and decision in any Philippine court or other agency for any violation of this Act shall be without prejudice to any investigation, trial, decision or any other legal or administrative process before the appropriate international court or agency under applicable international human rights and humanitarian laws.
Sec. 17 provides that no person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that such person would be in danger of being subjected to torture and other cruel, inhuman and degrading treatment or punishment.
For the purpose of determining whether there are such grounds, the Secretary of Foreign Affairs and the Secretary of Justice, in coordination with the Chairperson of the CHRP, shall take into account all relevant considerations including, where applicable, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.
Sec. 18 contains the compensation clause of the law. Any person who has suffered torture or other cruel, inhuman and degrading treatment or punishment shall have the right to claim for compensation as provided for under Republic Act No. 7309:
Provided, That in no case shall the compensation be any lower; than Ten thousand pesos (P10,000.00). The victim shall also have the right to claim for compensation from such other financial relief programs that may be available to him/her.
Sec. 19 provides that within one (1) year from the effectivity of this Act, the Department of Social Welfare and Development (DSWD), together with the Department of Justice (DOJ) and the Department of Health (DOH) and such other concerned government agencies, shall formulate a comprehensive rehabilitation program for victims of torture and their families. Toward the attainment of restorative justice, a parallel rehabilitation program for persons who have committed torture and other cruel, inhuman and degrading treatment or punishment shall likewise be formulated by the same agencies.
Sec. 20 assigns the CHRP as the head of the oversight committee to monitor the enforcement of the new law. An oversight committee is created to periodically oversee the implementation of this Act. The committee shall be headed by a commissioner of the CHRP, with the following as members: an undersecretary of the DOJ, the chairperson of the Senate Committee on Justice and Human Rights, the respective chairpersons of the House of Representatives’ Committees on Justice and Human Rights and the respective chairpersons of two (2) nationally organized human rights NGOs, one of whose functions is the monitoring of cases of torture and other
cruel, inhuman and degrading treatment or punishment.
Sec. 22 provides that the provisions of the Revised Penal Code shall be suppletory to the new law.
Sec. 24 commands the DOJ and the CHRP, with the active participation of human rights NGOs, to jointly promulgate the rules and regulations for the effective implementation of this Act. They shall also ensure the full dissemination of such rules and regulations to all officers and members of various law enforcement agencies.
Police power vs. eminent domain
In the recent case of THE OFFICE OF THE SOLICITOR GENERAL vs. AYALA LAND INCORPORATED, ROBINSON’S LAND CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM PRIME HOLDINGS, INC., G.R. No. 177056, September 18, 2009, G.R. No. 177056, September 18, 2009, which involved the issue of whether or not private shopping malls could be compelled by law to offer free parking spaces to their customers, the Philippine Supreme Court, inter alia, rejected the assertion of the government that under the doctrine of police power private shopping malls could be so compelled by the state to provide free parking spaces to their customers.
The case distinguishes the natures and legal effects of police power and eminent domain.
By way of review, it will be noted that in Senate Committee Report No. 225 on 2 May 2000, the Senate concluded that the collection of parking fees by shopping malls was contrary to the National Building Code.
While it is true that the Code merely requires malls to provide parking spaces, without specifying whether it is free or not, the Senate Committees believed that the reasonable and logical interpretation of the Code was that the parking spaces were for free.
Article II of R.A. No. 9734 (Consumer Act of the Philippines) provides that “it is the policy of the State to protect the interest of the consumers, promote the general welfare and establish standards of conduct for business and industry.” Obviously, a contrary interpretation (i.e., justifying the collection of parking fees) would be going against the declared policy of R.A. 7394, the Report said.
Section 201 of the National Building Code gives the responsibility for the administration and enforcement of the provisions of the Code, including the imposition of penalties for administrative violations thereof to the Secretary of Public Works, the Report added.
The Senate Committee Report recommended that the Office of the Solicitor General institute the necessary action to enjoin the collection of parking fees as well as to enforce the penal sanction provisions of the National Building Code and that the Office of the Solicitor General should likewise study how refund could be exacted from mall owners who continue to collect parking fees.
The Report recommended that the Department of Trade and Industry pursuant to the provisions of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines should enforce the provisions of the Code relative to parking, that the DTI should formulate the necessary implementing rules and regulations on parking in shopping malls, with prior consultations with the local government units where these are located, and that the DTI, in coordination with the Department of Public Works and Highways (DPWH), should be empowered to regulate and supervise the construction and maintenance of parking establishments. Finally, the Report recommended that Congress should amend and update the National Building Code to expressly prohibit shopping malls from collecting parking fees by at the same time, prohibit them from invoking the waiver of liability.
Suits were filed by the shopping malls under Rule 63 (declaratory relief) seeking to judicially declaring Rule XIX of the Implementing Rules and Regulations of the National Building Code as ultra vires, hence, unconstitutional and void; declaring the malls’ clear legal right to lease parking spaces; declaring the National Building Code of the Philippines Implementing Rules and Regulations as ineffective, not having been published once a week for three (3) consecutive weeks in a newspaper of general circulation, as prescribed by Section 211 of Presidential Decree No. 1096.
A similar suit was filed by the Office of the Solicitor General (OSG) praying that aAfter summary hearing, a temporary restraining order and a writ of preliminary injunction be issued restraining the malls from collecting parking fees from their customers; and after hearing, judgment be rendered declaring that the practice of respondents in charging parking fees is violative of the National Building Code and its Implementing Rules and Regulations and is therefore invalid, and making permanent any injunctive writ issued in the case.
The trial court and the appellate court sided with the private malls.
Let me digest the doctrinal pronouncements of the Supreme Court in the said case.
1. According to Section 803 of the National Building Code:
SECTION 803. Percentage of Site Occupancy
(a) Maximum site occupancy shall be governed by the use, type of construction, and height of the building and the use, area, nature, and location of the site; and subject to the provisions of the local zoning requirements and in accordance with the rules and regulations promulgated by the Secretary.
2. In connection therewith, Rule XIX of the old IRR, provides:
RULE XIX – PARKING AND LOADING SPACE REQUIREMENTS
Pursuant to Section 803 of the National Building Code (PD 1096) providing for maximum site occupancy, the following provisions on parking and loading space requirements shall be observed:
1. The parking space ratings listed below are minimum off-street requirements for specific uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot shall be computed as 2.4 meters by 5.00 meters for perpendicular or diagonal parking, 2.00 meters by 6.00 meters for parallel parking. A truck or bus parking/loading slot shall be computed at a minimum of 3.60 meters by 12.00 meters. The parking slot shall be drawn to scale and the total number of which shall be indicated on the plans and specified whether or not parking accommodations, are attendant-managed. (See Section 2 for computation of parking requirements).
x x x x
1.7 Neighborhood shopping center – 1 slot/100 sq. m. of shopping floor area
3. The explicit directive of the afore-quoted statutory and regulatory provisions, garnered from a plain reading thereof, is that respondents, as operators/lessors of neighborhood shopping centers, should provide parking and loading spaces, in accordance with the minimum ratio of one slot per 100 square meters of shopping floor area. There is nothing therein pertaining to the collection (or non-collection) of parking fees by respondents. In fact, the term “parking fees” cannot even be found at all in the entire National Building Code and its IRR.
4. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempt at interpretation. Since Section 803 of the National Building Code and Rule XIX of its IRR do not mention parking fees, then simply, said provisions do not regulate the collection of the same. The RTC and the Court of Appeals correctly applied Article 1158 of the New Civil Code, which states:
Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book. (Emphasis ours.)
Hence, in order to bring the matter of parking fees within the ambit of the National Building Code and its IRR, the OSG had to resort to specious and feeble argumentation, in which the Court cannot concur.
5. Consequently, the OSG cannot claim that in addition to fixing the minimum requirements for parking spaces for buildings, Rule XIX of the IRR also mandates that such parking spaces be provided by building owners free of charge. If Rule XIX is not covered by the enabling law, then it cannot be added to or included in the implementing rules. The rule-making power of administrative agencies must be confined to details for regulating the mode or proceedings to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Administrative regulations must always be in harmony with the provisions of the law because any resulting discrepancy between the two will always be resolved in favor of the basic law.
6. It is not sufficient for the OSG to claim that “the power to regulate and control the use, occupancy, and maintenance of buildings and structures carries with it the power to impose fees and, conversely, to control, partially or, as in this case, absolutely, the imposition of such fees.” Firstly, the fees within the power of regulatory agencies to impose are regulatory fees. It has been settled law in this jurisdiction that this broad and all-compassing governmental competence to restrict rights of liberty and property carries with it the undeniable power to collect a regulatory fee. It looks to the enactment of specific measures that govern the relations not only as between individuals but also as between private parties and the political society. True, if the regulatory agencies have the power to impose regulatory fees, then conversely, they also have the power to remove the same. Even so, it is worthy to note that the present case does not involve the imposition by the DPWH Secretary and local building officials of regulatory fees upon respondents; but the collection by respondents of parking fees from persons who use the mall parking facilities. Secondly, assuming arguendo that the DPWH Secretary and local building officials do have regulatory powers over the collection of parking fees for the use of privately owned parking facilities, they cannot allow or prohibit such collection arbitrarily or whimsically. Whether allowing or prohibiting the collection of such parking fees, the action of the DPWH Secretary and local building officials must pass the test of classic reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished.
7. Keeping in mind the aforementioned test of reasonableness and propriety of measures or means, the Court notes that Section 803 of the National Building Code falls under Chapter 8 on Light and Ventilation. Evidently, the Code deems it necessary to regulate site occupancy to ensure that there is proper lighting and ventilation in every building. Pursuant thereto, Rule XIX of the IRR requires that a building, depending on its specific use and/or floor area, should provide a minimum number of parking spaces. The Court, however, fails to see the connection between regulating site occupancy to ensure proper light and ventilation in every building vis-à-vis regulating the collection by building owners of fees for the use of their parking spaces. Contrary to the averment of the OSG, the former does not necessarily include or imply the latter. It totally escapes this Court how lighting and ventilation conditions at the malls could be affected by the fact that parking facilities thereat are free or paid for.
8. X x x. The National Building Code regulates buildings, by setting the minimum specifications and requirements for the same. It does not concern itself with traffic congestion in areas surrounding the building. It is already a stretch to say that the National Building Code and its IRR also intend to solve the problem of traffic congestion around the buildings so as to ensure that the said buildings shall have adequate lighting and ventilation. Moreover, the Court cannot simply assume, as the OSG has apparently done, that the traffic congestion in areas around the malls is due to the fact that respondents charge for their parking facilities, thus, forcing vehicle owners to just park in the streets. The Court notes that despite the fees charged by respondents, vehicle owners still use the mall parking facilities, which are even fully occupied on some days. Vehicle owners may be parking in the streets only because there are not enough parking spaces in the malls, and not because they are deterred by the parking fees charged by respondents. Free parking spaces at the malls may even have the opposite effect from what the OSG envisioned: more people may be encouraged by the free parking to bring their own vehicles, instead of taking public transport, to the malls; as a result, the parking facilities would become full sooner, leaving more vehicles without parking spaces in the malls and parked in the streets instead, causing even more traffic congestion.
9. Without using the term outright, the OSG is actually invoking police power to justify the regulation by the State, through the DPWH Secretary and local building officials, of privately owned parking facilities, including the collection by the owners/operators of such facilities of parking fees from the public for the use thereof. The Court finds, however, that in totally prohibiting respondents from collecting parking fees from the public for the use of the mall parking facilities, the State would be acting beyond the bounds of police power.
10. Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. It is usually exerted in order to merely regulate the use and enjoyment of the property of the owner. The power to regulate, however, does not include the power to prohibit. A fortiori, the power to regulate does not include the power to confiscate. Police power does not involve the taking or confiscation of property, with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting peace and order and of promoting the general welfare; for instance, the confiscation of an illegally possessed article, such as opium and firearms.
11. When there is a taking or confiscation of private property for public use, the State is no longer exercising police power, but another of its inherent powers, namely, eminent domain. Eminent domain enables the State to forcibly acquire private lands intended for public use upon payment of just compensation to the owner.
12. Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of only to impose a burden upon the owner of condemned property, without loss of title and possession. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking. It is usually in cases where title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated or amounts to a compensable taking. A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor.
13. Although in the present case, title to and/or possession of the parking facilities remain/s with respondents, the prohibition against their collection of parking fees from the public, for the use of said facilities, is already tantamount to a taking or confiscation of their properties. The State is not only requiring that respondents devote a portion of the latter’s properties for use as parking spaces, but is also mandating that they give the public access to said parking spaces for free. Such is already an excessive intrusion into the property rights of respondents. Not only are they being deprived of the right to use a portion of their properties as they wish, they are further prohibited from profiting from its use or even just recovering therefrom the expenses for the maintenance and operation of the required parking facilities.
14. In conclusion, the total prohibition against the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents’ property without payment of just compensation.
The case distinguishes the natures and legal effects of police power and eminent domain.
By way of review, it will be noted that in Senate Committee Report No. 225 on 2 May 2000, the Senate concluded that the collection of parking fees by shopping malls was contrary to the National Building Code.
While it is true that the Code merely requires malls to provide parking spaces, without specifying whether it is free or not, the Senate Committees believed that the reasonable and logical interpretation of the Code was that the parking spaces were for free.
Article II of R.A. No. 9734 (Consumer Act of the Philippines) provides that “it is the policy of the State to protect the interest of the consumers, promote the general welfare and establish standards of conduct for business and industry.” Obviously, a contrary interpretation (i.e., justifying the collection of parking fees) would be going against the declared policy of R.A. 7394, the Report said.
Section 201 of the National Building Code gives the responsibility for the administration and enforcement of the provisions of the Code, including the imposition of penalties for administrative violations thereof to the Secretary of Public Works, the Report added.
The Senate Committee Report recommended that the Office of the Solicitor General institute the necessary action to enjoin the collection of parking fees as well as to enforce the penal sanction provisions of the National Building Code and that the Office of the Solicitor General should likewise study how refund could be exacted from mall owners who continue to collect parking fees.
The Report recommended that the Department of Trade and Industry pursuant to the provisions of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines should enforce the provisions of the Code relative to parking, that the DTI should formulate the necessary implementing rules and regulations on parking in shopping malls, with prior consultations with the local government units where these are located, and that the DTI, in coordination with the Department of Public Works and Highways (DPWH), should be empowered to regulate and supervise the construction and maintenance of parking establishments. Finally, the Report recommended that Congress should amend and update the National Building Code to expressly prohibit shopping malls from collecting parking fees by at the same time, prohibit them from invoking the waiver of liability.
Suits were filed by the shopping malls under Rule 63 (declaratory relief) seeking to judicially declaring Rule XIX of the Implementing Rules and Regulations of the National Building Code as ultra vires, hence, unconstitutional and void; declaring the malls’ clear legal right to lease parking spaces; declaring the National Building Code of the Philippines Implementing Rules and Regulations as ineffective, not having been published once a week for three (3) consecutive weeks in a newspaper of general circulation, as prescribed by Section 211 of Presidential Decree No. 1096.
A similar suit was filed by the Office of the Solicitor General (OSG) praying that aAfter summary hearing, a temporary restraining order and a writ of preliminary injunction be issued restraining the malls from collecting parking fees from their customers; and after hearing, judgment be rendered declaring that the practice of respondents in charging parking fees is violative of the National Building Code and its Implementing Rules and Regulations and is therefore invalid, and making permanent any injunctive writ issued in the case.
The trial court and the appellate court sided with the private malls.
Let me digest the doctrinal pronouncements of the Supreme Court in the said case.
1. According to Section 803 of the National Building Code:
SECTION 803. Percentage of Site Occupancy
(a) Maximum site occupancy shall be governed by the use, type of construction, and height of the building and the use, area, nature, and location of the site; and subject to the provisions of the local zoning requirements and in accordance with the rules and regulations promulgated by the Secretary.
2. In connection therewith, Rule XIX of the old IRR, provides:
RULE XIX – PARKING AND LOADING SPACE REQUIREMENTS
Pursuant to Section 803 of the National Building Code (PD 1096) providing for maximum site occupancy, the following provisions on parking and loading space requirements shall be observed:
1. The parking space ratings listed below are minimum off-street requirements for specific uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot shall be computed as 2.4 meters by 5.00 meters for perpendicular or diagonal parking, 2.00 meters by 6.00 meters for parallel parking. A truck or bus parking/loading slot shall be computed at a minimum of 3.60 meters by 12.00 meters. The parking slot shall be drawn to scale and the total number of which shall be indicated on the plans and specified whether or not parking accommodations, are attendant-managed. (See Section 2 for computation of parking requirements).
x x x x
1.7 Neighborhood shopping center – 1 slot/100 sq. m. of shopping floor area
3. The explicit directive of the afore-quoted statutory and regulatory provisions, garnered from a plain reading thereof, is that respondents, as operators/lessors of neighborhood shopping centers, should provide parking and loading spaces, in accordance with the minimum ratio of one slot per 100 square meters of shopping floor area. There is nothing therein pertaining to the collection (or non-collection) of parking fees by respondents. In fact, the term “parking fees” cannot even be found at all in the entire National Building Code and its IRR.
4. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempt at interpretation. Since Section 803 of the National Building Code and Rule XIX of its IRR do not mention parking fees, then simply, said provisions do not regulate the collection of the same. The RTC and the Court of Appeals correctly applied Article 1158 of the New Civil Code, which states:
Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book. (Emphasis ours.)
Hence, in order to bring the matter of parking fees within the ambit of the National Building Code and its IRR, the OSG had to resort to specious and feeble argumentation, in which the Court cannot concur.
5. Consequently, the OSG cannot claim that in addition to fixing the minimum requirements for parking spaces for buildings, Rule XIX of the IRR also mandates that such parking spaces be provided by building owners free of charge. If Rule XIX is not covered by the enabling law, then it cannot be added to or included in the implementing rules. The rule-making power of administrative agencies must be confined to details for regulating the mode or proceedings to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Administrative regulations must always be in harmony with the provisions of the law because any resulting discrepancy between the two will always be resolved in favor of the basic law.
6. It is not sufficient for the OSG to claim that “the power to regulate and control the use, occupancy, and maintenance of buildings and structures carries with it the power to impose fees and, conversely, to control, partially or, as in this case, absolutely, the imposition of such fees.” Firstly, the fees within the power of regulatory agencies to impose are regulatory fees. It has been settled law in this jurisdiction that this broad and all-compassing governmental competence to restrict rights of liberty and property carries with it the undeniable power to collect a regulatory fee. It looks to the enactment of specific measures that govern the relations not only as between individuals but also as between private parties and the political society. True, if the regulatory agencies have the power to impose regulatory fees, then conversely, they also have the power to remove the same. Even so, it is worthy to note that the present case does not involve the imposition by the DPWH Secretary and local building officials of regulatory fees upon respondents; but the collection by respondents of parking fees from persons who use the mall parking facilities. Secondly, assuming arguendo that the DPWH Secretary and local building officials do have regulatory powers over the collection of parking fees for the use of privately owned parking facilities, they cannot allow or prohibit such collection arbitrarily or whimsically. Whether allowing or prohibiting the collection of such parking fees, the action of the DPWH Secretary and local building officials must pass the test of classic reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished.
7. Keeping in mind the aforementioned test of reasonableness and propriety of measures or means, the Court notes that Section 803 of the National Building Code falls under Chapter 8 on Light and Ventilation. Evidently, the Code deems it necessary to regulate site occupancy to ensure that there is proper lighting and ventilation in every building. Pursuant thereto, Rule XIX of the IRR requires that a building, depending on its specific use and/or floor area, should provide a minimum number of parking spaces. The Court, however, fails to see the connection between regulating site occupancy to ensure proper light and ventilation in every building vis-à-vis regulating the collection by building owners of fees for the use of their parking spaces. Contrary to the averment of the OSG, the former does not necessarily include or imply the latter. It totally escapes this Court how lighting and ventilation conditions at the malls could be affected by the fact that parking facilities thereat are free or paid for.
8. X x x. The National Building Code regulates buildings, by setting the minimum specifications and requirements for the same. It does not concern itself with traffic congestion in areas surrounding the building. It is already a stretch to say that the National Building Code and its IRR also intend to solve the problem of traffic congestion around the buildings so as to ensure that the said buildings shall have adequate lighting and ventilation. Moreover, the Court cannot simply assume, as the OSG has apparently done, that the traffic congestion in areas around the malls is due to the fact that respondents charge for their parking facilities, thus, forcing vehicle owners to just park in the streets. The Court notes that despite the fees charged by respondents, vehicle owners still use the mall parking facilities, which are even fully occupied on some days. Vehicle owners may be parking in the streets only because there are not enough parking spaces in the malls, and not because they are deterred by the parking fees charged by respondents. Free parking spaces at the malls may even have the opposite effect from what the OSG envisioned: more people may be encouraged by the free parking to bring their own vehicles, instead of taking public transport, to the malls; as a result, the parking facilities would become full sooner, leaving more vehicles without parking spaces in the malls and parked in the streets instead, causing even more traffic congestion.
9. Without using the term outright, the OSG is actually invoking police power to justify the regulation by the State, through the DPWH Secretary and local building officials, of privately owned parking facilities, including the collection by the owners/operators of such facilities of parking fees from the public for the use thereof. The Court finds, however, that in totally prohibiting respondents from collecting parking fees from the public for the use of the mall parking facilities, the State would be acting beyond the bounds of police power.
10. Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. It is usually exerted in order to merely regulate the use and enjoyment of the property of the owner. The power to regulate, however, does not include the power to prohibit. A fortiori, the power to regulate does not include the power to confiscate. Police power does not involve the taking or confiscation of property, with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting peace and order and of promoting the general welfare; for instance, the confiscation of an illegally possessed article, such as opium and firearms.
11. When there is a taking or confiscation of private property for public use, the State is no longer exercising police power, but another of its inherent powers, namely, eminent domain. Eminent domain enables the State to forcibly acquire private lands intended for public use upon payment of just compensation to the owner.
12. Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of only to impose a burden upon the owner of condemned property, without loss of title and possession. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking. It is usually in cases where title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated or amounts to a compensable taking. A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor.
13. Although in the present case, title to and/or possession of the parking facilities remain/s with respondents, the prohibition against their collection of parking fees from the public, for the use of said facilities, is already tantamount to a taking or confiscation of their properties. The State is not only requiring that respondents devote a portion of the latter’s properties for use as parking spaces, but is also mandating that they give the public access to said parking spaces for free. Such is already an excessive intrusion into the property rights of respondents. Not only are they being deprived of the right to use a portion of their properties as they wish, they are further prohibited from profiting from its use or even just recovering therefrom the expenses for the maintenance and operation of the required parking facilities.
14. In conclusion, the total prohibition against the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents’ property without payment of just compensation.
Tuesday, November 17, 2009
Legacy Group ligated
In the recent case of BANGKO SENTRAL NG PILIPINAS, etc., et. al. vs. HON. NINA G. ANTONIO-VALENZUELA, et. al., G.R. No. 184778, October 2, 2009, the Philippine Supreme Court, guided by the old adage that justice delayed is justice denied, rejected the writ of preliminary injunction issued by a trial court to restrain a legal action commenced by the Monetary Board against banks in Visayas and Mindanao belonging to the notorious Legacy Group which has victimized thousands of middle-class Filipino depositors and investors throughout the Philippines.
May I quote below the doctrinal pronouncements of the Supreme Court in the said case:
1. The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage.
As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown.
2. The issuance by the RTC of writs of preliminary injunction is an unwarranted interference with the powers of the Monetary Board (MB). Secs. 29 and 30 of RA 7653 refer to the appointment of a conservator or a receiver for a bank, which is a power of the MB for which they need the ROEs done by the supervising or examining department. The writs of preliminary injunction issued by the trial court hinder the MB from fulfilling its function under the law. The actions of the MB under Secs. 29 and 30 of RA 7653 “may not be restrained or set aside by the court except on petition for certiorari on the ground that the action taken was in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.” The writs of preliminary injunction order are precisely what cannot be done under the law by preventing the MB from taking action under either Sec. 29 or Sec. 30 of RA 7653.
3. As to the third requirement, the respondent banks have shown no necessity for the writ of preliminary injunction to prevent serious damage. The serious damage contemplated by the trial court was the possibility of the imposition of sanctions upon respondent banks, even the sanction of closure. Under the law, the sanction of closure could be imposed upon a bank by the BSP even without notice and hearing. The apparent lack of procedural due process would not result in the invalidity of action by the MB. This was the ruling in Central Bank of the Philippines v. Court of Appeals. This “close now, hear later” scheme is grounded on practical and legal considerations to prevent unwarranted dissipation of the bank’s assets and as a valid exercise of police power to protect the depositors, creditors, stockholders, and the general public. The writ of preliminary injunction cannot, thus, prevent the MB from taking action, by preventing the submission of the ROEs and worse, by preventing the MB from acting on such ROEs.
4. The trial court required the MB to respect the respondent banks’ right to due process by allowing the respondent banks to view the ROEs and act upon them to forestall any sanctions the MB might impose. Such procedure has no basis in law and does in fact violate the “close now, hear later” doctrine. We held in Rural Bank of San Miguel, Inc. v. Monetary Board, Bangko Sentral ng Pilipinas:
It is well-settled that the closure of a bank may be considered as an exercise of police power. The action of the MB on this matter is final and executory. Such exercise may nonetheless be subject to judicial inquiry and can be set aside if found to be in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.
5. The respondent banks cannot—through seeking a writ of preliminary injunction by appealing to lack of due process, in a roundabout manner— prevent their closure by the MB. Their remedy, as stated, is a subsequent one, which will determine whether the closure of the bank was attended by grave abuse of discretion. Judicial review enters the picture only after the MB has taken action; it cannot prevent such action by the MB. The threat of the imposition of sanctions, even that of closure, does not violate their right to due process, and cannot be the basis for a writ of preliminary injunction.
6. The “close now, hear later” doctrine has already been justified as a measure for the protection of the public interest. Swift action is called for on the part of the BSP when it finds that a bank is in dire straits. Unless adequate and determined efforts are taken by the government against distressed and mismanaged banks, public faith in the banking system is certain to deteriorate to the prejudice of the national economy itself, not to mention the losses suffered by the bank depositors, creditors, and stockholders, who all deserve the protection of the government.
7. The respondent banks have failed to show their entitlement to the writ of preliminary injunction. It must be emphasized that an application for injunctive relief is construed strictly against the pleader. The respondent banks cannot rely on a simple appeal to procedural due process to prove entitlement. The requirements for the issuance of the writ have not been proved. No invasion of the rights of respondent banks has been shown, nor is their right to copies of the ROEs clear and unmistakable. There is also no necessity for the writ to prevent serious damage. Indeed the issuance of the writ of preliminary injunction tramples upon the powers of the MB and prevents it from fulfilling its functions. There is no right that the writ of preliminary injunction would protect in this particular case. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified.
8. Courts are hereby reminded to take greater care in issuing injunctive relief to litigants, that it would not violate any law. The grant of a preliminary injunction in a case rests on the sound discretion of the court with the caveat that it should be made with great caution. Thus, the issuance of the writ of preliminary injunction must have basis in and be in accordance with law. All told, while the grant or denial of an injunction generally rests on the sound discretion of the lower court, this Court may and should intervene in a clear case of abuse.
May I quote below the doctrinal pronouncements of the Supreme Court in the said case:
1. The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage.
As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown.
2. The issuance by the RTC of writs of preliminary injunction is an unwarranted interference with the powers of the Monetary Board (MB). Secs. 29 and 30 of RA 7653 refer to the appointment of a conservator or a receiver for a bank, which is a power of the MB for which they need the ROEs done by the supervising or examining department. The writs of preliminary injunction issued by the trial court hinder the MB from fulfilling its function under the law. The actions of the MB under Secs. 29 and 30 of RA 7653 “may not be restrained or set aside by the court except on petition for certiorari on the ground that the action taken was in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.” The writs of preliminary injunction order are precisely what cannot be done under the law by preventing the MB from taking action under either Sec. 29 or Sec. 30 of RA 7653.
3. As to the third requirement, the respondent banks have shown no necessity for the writ of preliminary injunction to prevent serious damage. The serious damage contemplated by the trial court was the possibility of the imposition of sanctions upon respondent banks, even the sanction of closure. Under the law, the sanction of closure could be imposed upon a bank by the BSP even without notice and hearing. The apparent lack of procedural due process would not result in the invalidity of action by the MB. This was the ruling in Central Bank of the Philippines v. Court of Appeals. This “close now, hear later” scheme is grounded on practical and legal considerations to prevent unwarranted dissipation of the bank’s assets and as a valid exercise of police power to protect the depositors, creditors, stockholders, and the general public. The writ of preliminary injunction cannot, thus, prevent the MB from taking action, by preventing the submission of the ROEs and worse, by preventing the MB from acting on such ROEs.
4. The trial court required the MB to respect the respondent banks’ right to due process by allowing the respondent banks to view the ROEs and act upon them to forestall any sanctions the MB might impose. Such procedure has no basis in law and does in fact violate the “close now, hear later” doctrine. We held in Rural Bank of San Miguel, Inc. v. Monetary Board, Bangko Sentral ng Pilipinas:
It is well-settled that the closure of a bank may be considered as an exercise of police power. The action of the MB on this matter is final and executory. Such exercise may nonetheless be subject to judicial inquiry and can be set aside if found to be in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.
5. The respondent banks cannot—through seeking a writ of preliminary injunction by appealing to lack of due process, in a roundabout manner— prevent their closure by the MB. Their remedy, as stated, is a subsequent one, which will determine whether the closure of the bank was attended by grave abuse of discretion. Judicial review enters the picture only after the MB has taken action; it cannot prevent such action by the MB. The threat of the imposition of sanctions, even that of closure, does not violate their right to due process, and cannot be the basis for a writ of preliminary injunction.
6. The “close now, hear later” doctrine has already been justified as a measure for the protection of the public interest. Swift action is called for on the part of the BSP when it finds that a bank is in dire straits. Unless adequate and determined efforts are taken by the government against distressed and mismanaged banks, public faith in the banking system is certain to deteriorate to the prejudice of the national economy itself, not to mention the losses suffered by the bank depositors, creditors, and stockholders, who all deserve the protection of the government.
7. The respondent banks have failed to show their entitlement to the writ of preliminary injunction. It must be emphasized that an application for injunctive relief is construed strictly against the pleader. The respondent banks cannot rely on a simple appeal to procedural due process to prove entitlement. The requirements for the issuance of the writ have not been proved. No invasion of the rights of respondent banks has been shown, nor is their right to copies of the ROEs clear and unmistakable. There is also no necessity for the writ to prevent serious damage. Indeed the issuance of the writ of preliminary injunction tramples upon the powers of the MB and prevents it from fulfilling its functions. There is no right that the writ of preliminary injunction would protect in this particular case. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified.
8. Courts are hereby reminded to take greater care in issuing injunctive relief to litigants, that it would not violate any law. The grant of a preliminary injunction in a case rests on the sound discretion of the court with the caveat that it should be made with great caution. Thus, the issuance of the writ of preliminary injunction must have basis in and be in accordance with law. All told, while the grant or denial of an injunction generally rests on the sound discretion of the lower court, this Court may and should intervene in a clear case of abuse.
Saturday, November 14, 2009
Sun Tzu, the lawyer.
The ancient Chinese military genius SUN TZU’s classic book “THE ART OF WAR” is one useful material that must be read by trial lawyers as part of their law practice and continuing education in the same manner that the said book is being patiently studied in detail by ambitious business students in renowned business schools worldwide and by rich and famous business tycoons and investment strategists in major trade centers of the world. (See: www.artofwarsuntzu.com).
I wish to reproduce below salient excerpts from the said book and make a few personal comments thereon insofar as they may be relevant to the professional work of trial lawyers.
• According as circumstances are favorable, one should modify one’s plans.
Comment:
Improvise. Be flexible. Be open-minded. Avoid tunnel-vision and straight-jacketed view.
• All warfare is based on deception.
Comment:
Although the universal rules of evidence promote transparency during discovery, pretrial, mediation, and judicial dispute resolution stages, your vital and strategic information and plans must be kept confidential at all cost.
• Hence, when able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.
Comment:
Hold your cards close to your chest. Do not reveal all your plans. Do not signal your punches. Disclose only to the extent necessary and advantageous to your case.
• Hold out baits to entice the enemy. Feign disorder, and crush him.
Comment:
Befriend the enemy. Keep your friends close but your enemies closer, so goes the cliché. Project an image of humility, warmth, and harmlessness to disarm the enemy.
• If he is secure at all points, be prepared for him. If he is in superior strength, evade him.
Comment:
Plan. Know your enemy. Know when to attack and when to keep still; when to talk and when to keep quiet; when to stand up and when to sit down.
• If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.
Comment:
Let the talkative and combative enemy self-destruct by his obnoxious words and actions before the court. Be humble and unassuming.
• If he is taking his ease, give him no rest. If his forces are united, separate them.
Comment:
Know what and when successive remedial actions and motions must be instituted. Befriend all the collaborating lawyers and witnesses of the other side. Divide the opposite camp without being unethical.
• Attack him where he is unprepared, appear where you are not expected.
Comment:
Surprise in war and advocacy is a virtue.
• These military devices, leading to victory, must not be divulged beforehand.
Comment:
Protect your secrets. Compartmentalize the distribution of inside information within your team.
• When you engage in actual fighting, if victory is long in coming, then men’s weapons will grow dull and their ardor will be damped. If you lay siege to a town, you will exhaust your strength. Again, if the campaign is protracted, the resources of the State will not be equal to the strain. There is no instance of a country having benefited from prolonged warfare.
Comment:
Avoid protracted litigation. Settle and compromise as soon as possible. Exploit the benefits of discovery, pretrial, mediation, and judicial dispute resolution stages to save your case from prolonged and expensive judicial processes.
• Bring war material with you from home, but forage on the enemy. Thus the army will have food enough for its needs. This is called, using the conquered foe to augment one’s own strength.
Comment:
Be prepared with your own litigation funds. Do not forget your counter-claims, third-party complaints, and cross-claims.
• Poverty of the State exchequer causes an army to be maintained by contributions from a distance. Contributing to maintain an army at a distance causes the people to be impoverished. On the other hand, the proximity of an army causes prices to go up; and high prices cause the people’s substance to be drained away.
Comment:
Be conscious of the financial, emotional and social costs and pains of litigations and the havoc that they wreak on the lives of the parties and their families and loved ones.
• Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards.
Comment:
Believe in your case or cause of action. Know that righteous anger is a virtue.
• In war, then, let your great object be victory, not lengthy campaigns.
Comment:
Win, Do not show off. End your case soonest.
• In the practical art of war, the best thing of all is to take the enemy’s country whole and intact; to shatter and destroy it is not so good. So, too, it is better to recapture an army entire than to destroy it, to capture a regiment, a detachment or a company entire than to destroy them.
Comment:
Do not lose sight of the ultimate and main goal of your case. Save the property under litigation. Maximize the recoveries.
• Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.
Comment:
Prepare in advance – witnesses, evidence, exhibits, theory, network and connections, funds, legal team, spokesman, and staff support. Negotiate. Win your case without going to court. Maximize the benefits of alternative dispute resolution mechanisms to your advantage. Meet your opponent halfway.
• Thus the highest form of generalship is to balk the enemy’s plans; the next best is to prevent the junction of the enemy’s forces; the next in order is to attack the enemy’s army in the field; and the worst policy of all is to besiege walled cities.
Comment:
Force the opponent to compromise and settle by preparing very well for your case well in advance of the negotiation and the trial.
• Therefore the skillful leader subdues the enemy’s troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdom without lengthy operations in the field.
Comment:
Win without litigation. Avoid the costs, pains, delay and tediousness of court proceedings caused by trial, appeals, special civil actions, motions and the like.
• It is the rule in war, if our forces are ten to the enemy’s one, to surround him; if five to one, to attack him; if twice as numerous, to divide our army into two. If equally matched, we can offer battle; if slightly inferior in numbers, we can avoid the enemy; if quite unequal in every way, we can flee from him.
Comment:
Know when to fight, when to go to full-blown trial, when to talk peace, when to buy peace, when to settle or compromise, and when to surrender.
• Hence, though an obstinate fight may be made by a small force, in the end it must be captured by the larger force.
Comment:
Money and power talk. The justice system is not an exception to this dirty capitalist rule.
• Thus we may know that there are five essentials for victory: (1) He will win who knows when to fight and when not to fight. (2) He will win who knows how to handle both superior and inferior forces. (3) He will win whose army is animated by the same spirit throughout all its ranks. (4) He will win who, prepared himself, waits to take the enemy unprepared. (5) He will win who has military capacity and is not interfered with by the sovereign.
Comment:
Know when to fight and to surrender. Know when to defeat the enemy by speed and surprise. Be competent in your work. Be flexible.
• Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
Comment:
Know yourself. Know your enemy. Be honest with yourself.
• To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.
Comment:
Exploit the mistakes of the enemy. Minimize your errors. Better yet, be a perfectionist without being obsessive and crazy.
• Security against defeat implies defensive tactics; ability to defeat the enemy means taking the offensive.
Comment:
Know how to balance defense and offense. Offense is the best defense.
• What the ancients called a clever fighter is one who not only wins, but excels in winning with ease.
Comment:
Win with ease. Know when to file a motion to dismiss, for summary judgment, or judgment on the pleadings. Know how to exploit discovery procedures and the opportunities of pretrial. Know how and when to use the special civil action of certiorari to correct the abusive acts of the lower courts.
• He wins his battles by making no mistakes. Making no mistakes is what establishes the certainty of victory, for it means conquering an enemy that is already defeated.
Comment:
Aspire for a perfect war. Be a perfectionist (if you can).
• Thus it is that in war the victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory.
Comment:
Victory first, fight later. This is the crux of the message of Sun Tzu.
• In respect of military method, we have, firstly, Measurement; secondly, Estimation of quantity; thirdly, Calculation; fourthly, Balancing of chances; fifthly, Victory.
Comment:
Know how to calculate and extrapolate the probabilities of success and defeat. Be practical. Be scientific.
• The control of a large force is the same principle as the control of a few men: it is merely a question of dividing up their numbers. Fighting with a large army under your command is nowise different from fighting with a small one: it is merely a question of instituting signs and signals.
Comment:
Management and organization are crucial in litigations. A trial lawyer is an advocate, leader, organizer, manager, forecaster and statistician.
• To ensure that your whole host may withstand the brunt of the enemy’s attack and remain unshaken— this is effected by maneuvers direct and indirect. In all fighting, the direct method may be used for joining battle, but indirect methods will be needed in order to secure victory.
Comment:
Know when to be frontal or direct and when to be subtle, diplomatic and indirect. Adjust. Divert and digress when needed.
• Simulated disorder postulates perfect discipline, simulated fear postulates courage; simulated weakness postulates strength. Hiding order beneath the cloak of disorder is simply a question of subdivision; concealing courage under a show of timidity presupposes a fund of latent energy; masking strength with weakness is to be effected by tactical dispositions. Thus one who is skillful at keeping the enemy on the move maintains deceitful appearances, according to which the enemy will act. He sacrifices something, that the enemy may snatch at it. By holding out baits, he keeps him on the march; then with a body of picked men he lies in wait for him.
Comment:
Deceive the enemy without necessarily violating your code of ethics or the rules of court as a lawyer and as an officer of the court. Do not reveal your secrets to the enemy or to the judge. Do not teach your opponent what to do.
• The clever combatant looks to the effect of combined energy, and does not require too much from individuals. Hence his ability to pick out the right men and utilize combined energy. When he utilizes combined energy, his fighting men become as it were like unto rolling logs or stones. For it is the nature of a log or stone to remain motionless on level ground, and to move when on a slope; if four-cornered, to come to a standstill, but if round-shaped, to go rolling down.
Comment:
Work as a team. Promote team spirit in your law firm. Unite the clients and their witnesses.
• Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.
Comment:
Sue first, if called for. But be sure to serve first a demand letter before going to court. Negotiate before taking judicial action. Prepare your case and litigation resources before going to court.
• Therefore the clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him. By holding out advantages to him, he can cause the enemy to approach of his own accord; or, by inflicting damage, he can make it impossible for the enemy to draw near. If the enemy is taking his ease, he can harass him; if well supplied with food, he can starve him out; if quietly encamped, he can force him to move. Appear at points which the enemy must hasten to defend; march swiftly to places where you are not expected.
Comment:
Know the arena of your fight. Know when to choose the arena of your fight. Master the rules of the litigation game. Take the initiative. But avoid overacting or overreacting.
• You can be sure of succeeding in your attacks if you only attack places which are undefended. You can ensure the safety of your defense if you only hold positions that cannot be attacked. Hence that general is skillful in attack whose opponent does not know what to defend; and he is skillful in defense whose opponent does not know what to attack.
Comment:
Know whom to sue, where to sue, on what legal theory or alternative causes of action, and what and how much to claim. Master the rules on jurisdiction, venue, and parties.
• If we wish to fight, the enemy can be forced to an engagement even though he be sheltered behind a high rampart and a deep ditch. All we need do is attack some other place that he will be obliged to relieve.
Comment:
Master the art of motions or incidents to test the waters and to test your enemy. Know what and where to attack, to what extent, and when to withdraw and negotiate.
• By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided.
Comment:
Study the enemy’s strength, locations, and logistics. Divide and rule. Consolidate your strength.
• The spot where we intend to fight must not be made known; for then the enemy will have to prepare against a possible attack at several different points; and his forces being thus distributed in many directions, the numbers we shall have to face at any given point will be proportionately few.
Comment:
Your next litigation moves are your secrets. Do not signal your punches. Nor teach the enemy what to do next.
• Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success. Rouse him, and learn the principle of his activity or inactivity. Force him to reveal himself, so as to find out his vulnerable spots. Carefully compare the opposing army with your own, so that you may know where strength is superabundant and where it is deficient. In making tactical dispositions, the highest pitch you can attain is to conceal them; conceal your dispositions, and you will be safe from the prying of the subtlest spies, from the machinations of the wisest brains.
Comment:
Know the secrets of your enemy. Entrap and lure him. Test him. Estimate his next moves. Conceal your strength and plans.
• Do not repeat the tactics which have gained you one victory, but let your methods be regulated by the infinite variety of circumstances. Military tactics are like unto water; for water in its natural course runs away from high places and hastens downwards. So in war, the way is to avoid what is strong and to strike at what is weak. Water shapes its course according to the nature of the ground over which it flows; the soldier works out his victory in relation to the foe whom he is facing. Therefore, just as water retains no constant shape, so in warfare there are no constant conditions. He who can modify his tactics in relation to his opponent and thereby succeed in winning, may be called a heaven-born captain.
Comment:
Be creative, innovative, and original in your moves and plans.
• Maneuvering with an army is advantageous; with an undisciplined multitude, most dangerous.
Comment:
Dismiss your disloyal, undisciplined and incompetent associates before they destroy your law firm and wreak havoc on the cases of your clients.
• We may take it then that an army without its baggage-train is lost; without provisions it is lost; without bases of supply it is lost.
Comment:
Your supply lines are your litigation funding and the punctual payments of your professional fees and intermittent deposits for costs of suit. Protect them. Without funds, cases are lost.
• We cannot enter into alliances until we are acquainted with the designs of our neighbors.
Comment:
Know the vested interests of outside lawyers hired by your client to collaborate with your law firm. Know the vested interests of your witness and other persons who appear to want to help your case. If your client is a corporation or association, know the individual vested interests of its directors and officers and the in-house politics and prevailing institutional culture therein.
• We are not fit to lead an army on the march unless we are familiar with the face of the country— its mountains and forests, its pitfalls and precipices, its marshes and swamps. We shall be unable to turn natural advantage to account unless we make use of local guides.
Comment:
The terrain in litigation as a specie of war refers to jurisdiction, venue, court procedures, the backgrounds and mentalities of the trial judges and their staff, and the politics and family and fraternal ties that might affect the proceedings.
• In war, practice dissimulation, and you will succeed.
Comment:
Be quiet. Be humble. Do not be talkative. Do not signal your punches, plans and next moves. Do not teach your opponent. Protect your secrets, strategies and tactics. Be invisible.
• Whether to concentrate or to divide your troops, must be decided by circumstances.
Comment:
Be flexible. Improvise. Let the handling trial lawyer decide actual tactical moves on the ground as the case evolves (subject, of course, to regular team analyses and peer reviews).
• Let your rapidity be that of the wind, your compactness that of the forest.
Comment:
Move fast. Stick to the deadlines. Avoid delays.
• When you plunder countryside, let the spoil be divided amongst your men; when you capture new territory, cut it up into allotments for the benefit of the soldiery.
Comment:
Reward your partners and associates. Do not be greedy and selfish.
• Ponder and deliberate before you make a move.
Comment:
Plan, plan, plan. Think, think, think.
• He will conquer who has learnt the artifice of deviation. Such is the art of maneuvering.
Comment:
Diversion is a gift. It relieves pressure at crucial points.
• Now a soldier’s spirit is keenest in the morning; by noonday it has begun to flag; and in the evening, his mind is bent only on returning to camp. A clever general, therefore, avoids an army when its spirit is keen, but attacks it when it is sluggish and inclined to return. This is the art of studying moods.
Comment:
Before going to court, be sure to have enough sleep and food. Be prepared. Bring the important records. Manage your stress both inside and outside the court. Relax.
• To be near the goal while the enemy is still far from it, to wait at ease while the enemy is toiling and struggling, to be well-fed while the enemy is famished:—this is the art of husbanding one’s strength.
Comment:
Plan. Stick to the plan. Rest. Prepare, Manage your stress. Do not panic.
• To refrain from intercepting an enemy whose banners are in perfect order, to refrain from attacking an army drawn up in calm and confident array:—this is the art of studying circumstances.
Comment:
Do not attack and irritate a prepared enemy. Study your enemy. Attack only at moments of weakness. Study the judge.
• It is a military axiom not to advance uphill against the enemy, nor to oppose him when he comes downhill.
Comment:
Choose the arena that benefits your case. Do not fight an uphill battle. Know when to wait and when to attack.
• Do not pursue an enemy who simulates flight; do not attack soldiers whose temper is keen. Do not swallow bait offered by the enemy. Do not interfere with an army that is returning home.
Comment:
Litigation is trap and counter-trap. Do not let the enemy lure and entrap you. Be vigilant.
• When you surround an army, leave an outlet free. Do not press a desperate foe too hard.
Comment:
Give the enemy an honorable and graceful exit. Otherwise, he will be desperate; and things will be bloody. Save his face, and your negotiations will be productive.
• The art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him; not on the chance of his not attacking, but rather on the fact that we have made our position unassailable.
Comment:
Be prepared. Do not underestimate or overestimate your enemy. There is no substitute for preparation.
• There are five dangerous faults which may affect a general: (1) Recklessness, which leads to destruction; (2) cowardice, which leads to capture; (3) a hasty temper, which can be provoked by insults; (4) a delicacy of honor which is sensitive to shame; (5) over-solicitude for his men, which exposes him to worry and trouble.
Comment:
Cases are lost when the handling lawyer is reckless, negligent, lacks self-control, hotheaded, temperamental, proud, egotistical, arrogant, talkative, combative, aggressive, self-conscious, lacks self-confidence, unethical, unprofessional, dishonest, selfish, greedy, and does not know how to manage, organize, and inspire his legal team, clients, and witnesses.
• Camp in high places, facing the sun. Do not move up-stream to meet the enemy.
Do not climb heights in order to fight. After crossing a river, you should get far away from it. When an invading force crosses a river in its onward march, do not advance to meet it in midstream. It will be best to let half the army get across, and then deliver your attack. If you are anxious to fight, you should not go to meet the invader near a river which he has to cross. In crossing salt-marshes, your sole concern should be to get over them quickly, without any delay. Country in which there are precipitous cliffs with torrents running between, deep natural hollows, confined places, tangled thickets, quagmires and crevasses, should be left with all possible speed and not approached. While we keep away from such places, we should get the enemy to approach them; while we face them, we should let the enemy have them on his rear.
Comment:
Be vigilant of the terrain of your litigation, the political and fraternal connections of your opponent, the resources and psychology of your enemy, your exit point when things go wrong, and the pressures that work on the judge. Litigation is trap and counter-trap.
• If in the neighborhood of your camp there should be any hilly country, ponds surrounded by aquatic grass, hollow basins filled with reeds, or woods with thick undergrowth, they must be carefully routed out and searched; for these are places where men in ambush or insidious spies are likely to be lurking.
Comment:
Avoid surprise. Study your case. Prepare. Beware of double-faced negotiators. To be killed in ambush is shameful.
• When the enemy is close at hand and remains quiet, he is relying on the natural strength of his position. When he keeps aloof and tries to provoke a battle, he is anxious for the other side to advance. If his place of encampment is easy of access, he is tendering a bait.
Comment:
Know the movements and psychology of your enemy. Do not fall into his traps. On the contrary, bait him. Know when to attack and when to stay put.
• Humble words and increased preparations are signs that the enemy is about to advance. Violent language and driving forward as if to the attack are signs that he will retreat. When the light chariots come out first and take up a position on the wings, it is a sign that the enemy is forming for battle. Peace proposals unaccompanied by a sworn covenant indicate a plot.
Comment:
Do not let the enemy bluff, lure, trap, entice, mislead, deceive and confuse you. Know your self and your enemy. Master his mentality.
• If the enemy’s troops march up angrily and remain facing ours for a long time without either joining battle or taking themselves off again, the situation is one that demands great vigilance and circumspection. If our troops are no more in number than the enemy, that is amply sufficient; it only means that no direct attack can be made. What we can do is simply to concentrate all our available strength, keep a close watch on the enemy, and obtain reinforcements.
Comment:
Measure the competition. Know when to ask for outside help. Accept your limitations.
• He who exercises no forethought but makes light of his opponents is sure to be captured by them.
Comment:
Forethought means surveillance and intelligence work. Spy on your enemy (without being unethical). Know his plans and his weak points.
• Regard your soldiers as your children, and they will follow you into the deepest valleys; look upon them as your own beloved sons, and they will stand by you even unto death. If, however, you are indulgent, but unable to make your authority felt; kind-hearted, but unable to enforce your commands; and incapable, moreover, of quelling disorder: then your soldiers must be likened to spoilt children; they are useless for any practical purpose.
Comment:
Love, serve, protect, inspire and motivate your law team members to advance the causes of your clients.
• If you know the enemy and know yourself, your victory will not stand in doubt; if you know Heaven and know Earth, you may make your victory complete.
Comment:
Know your self. Know your enemy. Control your self. Know your limitations. Be prepared.
• If asked how to cope with a great host of the enemy in orderly array and on the point of marching to the attack, I should say: “Begin by seizing something which your opponent holds dear; then he will be amenable to your will.”
Comment:
Focus on attacking the major interests of the enemy and he will surrender. Know your priorities. Do not let peripherals confuse you. Focus on the meat of the litigation.
• Rapidity is the essence of war: take advantage of the enemy’s unreadiness, make your way by unexpected routes, and attack unguarded spots.
Comment:
Be swift. Speed and surprise are your great war materials. Exploit the lack of preparation of the enemy. Ambush him.
• Throw your soldiers into positions whence there is no escape, and they will prefer death to flight. If they will face death, there is nothing they may not achieve. Officers and men alike will put forth their uttermost strength. Soldiers when in desperate straits lose the sense of fear. If there is no place of refuge, they will stand firm. If they are in hostile country, they will show a stubborn front. If there is no help for it, they will fight hard.
Comment:
Sometimes, desperation is a virtue. It is difficult to defeat a desperate enemy who had nothing to lose whatsoever. He is prepared to kill and die.
• It is the business of a general to be quiet and thus ensure secrecy; upright and just, and thus maintain order.
Comment:
A good lawyer is not talkative, keeps the secrets of his law firm and his clients, ethical and professional in his dealings, diligent, and always prepared.
• He must be able to mystify his officers and men by false reports and appearances, and thus keep them in total ignorance. Confront your soldiers with the deed itself; never let them know your design. When the outlook is bright, bring it before their eyes; but tell them nothing when the situation is gloomy.
Comment:
Know the virtue of harmless white lies and half-truths for psychological warfare and propaganda purposes, without violating your code of ethics.
• By altering his arrangements and changing his plans, he keeps the enemy without definite knowledge. By shifting his camp and taking circuitous routes, he prevents the enemy from anticipating his purpose. When needed, appoint a competent and telegenic spokesperson to deal with the press.
Comment:
Confuse the enemy. Do not signal to him your plans and intentions. Guard our strategies and tactics
• Place your army in deadly peril, and it will survive; plunge it into desperate straits, and it will come off in safety. For it is precisely when a force has fallen into harm’s way that is capable of striking a blow for victory.
Comment:
Sometimes when your back is against the wall, you are most productive, creative, inspired and dedicated in litigating a case. For you know what desperation means.
• If the enemy leaves a door open, you must rush in.
Comment:
Beware of the entrapment, lures, and enticements of the enemy. Study his every move and his intentions.
• At first, then, exhibit the coyness of a maiden, until the enemy gives you an opening; afterwards emulate the rapidity of a running hare, and it will be too late for the enemy to oppose you.
Comment:
Deceive the enemy. Hide your strength, intentions, interests, and plans, without violating the rules of evidence and discovery.
• Move not unless you see an advantage; use not your troops unless there is something to be gained; fight not unless the position is critical.
Comment:
Know when to move. Do not waste your time. Manage your stress. Focus on your priorities. Stick to you plan.
• No ruler should put troops into the field merely to gratify his own spleen; no general should fight a battle simply out of pique. If it is to your advantage, make a forward move; if not, stay where you are. Hence the enlightened ruler is heedful, and the good general full of caution. This is the way to keep a country at peace and an army intact.
Comment:
Keep your cool. Self-control is the key. Stick to you plan. Be patient. Be vigilant. Be aware. Be equanimous. Have a balanced mind.
• Thus, what enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men, is foreknowledge. Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience, nor by any deductive calculation. Knowledge of the enemy’s dispositions can only be obtained from other men. Hence the use of spies, of whom there are five classes: (1) Local spies; (2) inward spies; (3) converted spies; (4) doomed spies; (5) surviving spies. Having local spies means employing the services of the inhabitants of a district. Having inward spies, making use of officials of the enemy. Having converted spies, getting hold of the enemy’s spies and using them for our own purposes. Having doomed spies, doing certain things openly for purposes of deception, and allowing our spies to know of them and report them to the enemy. Surviving spies, finally, are those who bring back news from the enemy’s camp. Hence it is that which none in the whole army are more intimate relations to be maintained than with spies. None should be more liberally rewarded. In no other business should greater secrecy be preserved.
Comment:
Again, spy on your enemy, without violating your code of ethics. Know the value of double-agents. Protect your own secrets.
• Be subtle! be subtle! and use your spies for every kind of business. The enemy’s spies who have come to spy on us must be sought out, tempted with bribes, led away and comfortably housed. Thus they will become converted spies and available for our service. It is through the information brought by the converted spy that we are able to acquire and employ local and inward spies. It is owing to his information, again, that we can cause the doomed spy to carry false tidings to the enemy. Lastly, it is by his information that the surviving spy can be used on appointed occasions.
•
Comment:
Be subtle, Be quiet. Keep your secrets. Exploit the value of espionage. Penetrate the enemy. But maintain your ethics.
By:
Atty. Manuel J. Laserna Jr.
Laserna Cueva Mercader Law Offices
Las Pines City Bar Association
Email - lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
I wish to reproduce below salient excerpts from the said book and make a few personal comments thereon insofar as they may be relevant to the professional work of trial lawyers.
• According as circumstances are favorable, one should modify one’s plans.
Comment:
Improvise. Be flexible. Be open-minded. Avoid tunnel-vision and straight-jacketed view.
• All warfare is based on deception.
Comment:
Although the universal rules of evidence promote transparency during discovery, pretrial, mediation, and judicial dispute resolution stages, your vital and strategic information and plans must be kept confidential at all cost.
• Hence, when able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.
Comment:
Hold your cards close to your chest. Do not reveal all your plans. Do not signal your punches. Disclose only to the extent necessary and advantageous to your case.
• Hold out baits to entice the enemy. Feign disorder, and crush him.
Comment:
Befriend the enemy. Keep your friends close but your enemies closer, so goes the cliché. Project an image of humility, warmth, and harmlessness to disarm the enemy.
• If he is secure at all points, be prepared for him. If he is in superior strength, evade him.
Comment:
Plan. Know your enemy. Know when to attack and when to keep still; when to talk and when to keep quiet; when to stand up and when to sit down.
• If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.
Comment:
Let the talkative and combative enemy self-destruct by his obnoxious words and actions before the court. Be humble and unassuming.
• If he is taking his ease, give him no rest. If his forces are united, separate them.
Comment:
Know what and when successive remedial actions and motions must be instituted. Befriend all the collaborating lawyers and witnesses of the other side. Divide the opposite camp without being unethical.
• Attack him where he is unprepared, appear where you are not expected.
Comment:
Surprise in war and advocacy is a virtue.
• These military devices, leading to victory, must not be divulged beforehand.
Comment:
Protect your secrets. Compartmentalize the distribution of inside information within your team.
• When you engage in actual fighting, if victory is long in coming, then men’s weapons will grow dull and their ardor will be damped. If you lay siege to a town, you will exhaust your strength. Again, if the campaign is protracted, the resources of the State will not be equal to the strain. There is no instance of a country having benefited from prolonged warfare.
Comment:
Avoid protracted litigation. Settle and compromise as soon as possible. Exploit the benefits of discovery, pretrial, mediation, and judicial dispute resolution stages to save your case from prolonged and expensive judicial processes.
• Bring war material with you from home, but forage on the enemy. Thus the army will have food enough for its needs. This is called, using the conquered foe to augment one’s own strength.
Comment:
Be prepared with your own litigation funds. Do not forget your counter-claims, third-party complaints, and cross-claims.
• Poverty of the State exchequer causes an army to be maintained by contributions from a distance. Contributing to maintain an army at a distance causes the people to be impoverished. On the other hand, the proximity of an army causes prices to go up; and high prices cause the people’s substance to be drained away.
Comment:
Be conscious of the financial, emotional and social costs and pains of litigations and the havoc that they wreak on the lives of the parties and their families and loved ones.
• Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards.
Comment:
Believe in your case or cause of action. Know that righteous anger is a virtue.
• In war, then, let your great object be victory, not lengthy campaigns.
Comment:
Win, Do not show off. End your case soonest.
• In the practical art of war, the best thing of all is to take the enemy’s country whole and intact; to shatter and destroy it is not so good. So, too, it is better to recapture an army entire than to destroy it, to capture a regiment, a detachment or a company entire than to destroy them.
Comment:
Do not lose sight of the ultimate and main goal of your case. Save the property under litigation. Maximize the recoveries.
• Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.
Comment:
Prepare in advance – witnesses, evidence, exhibits, theory, network and connections, funds, legal team, spokesman, and staff support. Negotiate. Win your case without going to court. Maximize the benefits of alternative dispute resolution mechanisms to your advantage. Meet your opponent halfway.
• Thus the highest form of generalship is to balk the enemy’s plans; the next best is to prevent the junction of the enemy’s forces; the next in order is to attack the enemy’s army in the field; and the worst policy of all is to besiege walled cities.
Comment:
Force the opponent to compromise and settle by preparing very well for your case well in advance of the negotiation and the trial.
• Therefore the skillful leader subdues the enemy’s troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdom without lengthy operations in the field.
Comment:
Win without litigation. Avoid the costs, pains, delay and tediousness of court proceedings caused by trial, appeals, special civil actions, motions and the like.
• It is the rule in war, if our forces are ten to the enemy’s one, to surround him; if five to one, to attack him; if twice as numerous, to divide our army into two. If equally matched, we can offer battle; if slightly inferior in numbers, we can avoid the enemy; if quite unequal in every way, we can flee from him.
Comment:
Know when to fight, when to go to full-blown trial, when to talk peace, when to buy peace, when to settle or compromise, and when to surrender.
• Hence, though an obstinate fight may be made by a small force, in the end it must be captured by the larger force.
Comment:
Money and power talk. The justice system is not an exception to this dirty capitalist rule.
• Thus we may know that there are five essentials for victory: (1) He will win who knows when to fight and when not to fight. (2) He will win who knows how to handle both superior and inferior forces. (3) He will win whose army is animated by the same spirit throughout all its ranks. (4) He will win who, prepared himself, waits to take the enemy unprepared. (5) He will win who has military capacity and is not interfered with by the sovereign.
Comment:
Know when to fight and to surrender. Know when to defeat the enemy by speed and surprise. Be competent in your work. Be flexible.
• Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
Comment:
Know yourself. Know your enemy. Be honest with yourself.
• To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.
Comment:
Exploit the mistakes of the enemy. Minimize your errors. Better yet, be a perfectionist without being obsessive and crazy.
• Security against defeat implies defensive tactics; ability to defeat the enemy means taking the offensive.
Comment:
Know how to balance defense and offense. Offense is the best defense.
• What the ancients called a clever fighter is one who not only wins, but excels in winning with ease.
Comment:
Win with ease. Know when to file a motion to dismiss, for summary judgment, or judgment on the pleadings. Know how to exploit discovery procedures and the opportunities of pretrial. Know how and when to use the special civil action of certiorari to correct the abusive acts of the lower courts.
• He wins his battles by making no mistakes. Making no mistakes is what establishes the certainty of victory, for it means conquering an enemy that is already defeated.
Comment:
Aspire for a perfect war. Be a perfectionist (if you can).
• Thus it is that in war the victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory.
Comment:
Victory first, fight later. This is the crux of the message of Sun Tzu.
• In respect of military method, we have, firstly, Measurement; secondly, Estimation of quantity; thirdly, Calculation; fourthly, Balancing of chances; fifthly, Victory.
Comment:
Know how to calculate and extrapolate the probabilities of success and defeat. Be practical. Be scientific.
• The control of a large force is the same principle as the control of a few men: it is merely a question of dividing up their numbers. Fighting with a large army under your command is nowise different from fighting with a small one: it is merely a question of instituting signs and signals.
Comment:
Management and organization are crucial in litigations. A trial lawyer is an advocate, leader, organizer, manager, forecaster and statistician.
• To ensure that your whole host may withstand the brunt of the enemy’s attack and remain unshaken— this is effected by maneuvers direct and indirect. In all fighting, the direct method may be used for joining battle, but indirect methods will be needed in order to secure victory.
Comment:
Know when to be frontal or direct and when to be subtle, diplomatic and indirect. Adjust. Divert and digress when needed.
• Simulated disorder postulates perfect discipline, simulated fear postulates courage; simulated weakness postulates strength. Hiding order beneath the cloak of disorder is simply a question of subdivision; concealing courage under a show of timidity presupposes a fund of latent energy; masking strength with weakness is to be effected by tactical dispositions. Thus one who is skillful at keeping the enemy on the move maintains deceitful appearances, according to which the enemy will act. He sacrifices something, that the enemy may snatch at it. By holding out baits, he keeps him on the march; then with a body of picked men he lies in wait for him.
Comment:
Deceive the enemy without necessarily violating your code of ethics or the rules of court as a lawyer and as an officer of the court. Do not reveal your secrets to the enemy or to the judge. Do not teach your opponent what to do.
• The clever combatant looks to the effect of combined energy, and does not require too much from individuals. Hence his ability to pick out the right men and utilize combined energy. When he utilizes combined energy, his fighting men become as it were like unto rolling logs or stones. For it is the nature of a log or stone to remain motionless on level ground, and to move when on a slope; if four-cornered, to come to a standstill, but if round-shaped, to go rolling down.
Comment:
Work as a team. Promote team spirit in your law firm. Unite the clients and their witnesses.
• Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.
Comment:
Sue first, if called for. But be sure to serve first a demand letter before going to court. Negotiate before taking judicial action. Prepare your case and litigation resources before going to court.
• Therefore the clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him. By holding out advantages to him, he can cause the enemy to approach of his own accord; or, by inflicting damage, he can make it impossible for the enemy to draw near. If the enemy is taking his ease, he can harass him; if well supplied with food, he can starve him out; if quietly encamped, he can force him to move. Appear at points which the enemy must hasten to defend; march swiftly to places where you are not expected.
Comment:
Know the arena of your fight. Know when to choose the arena of your fight. Master the rules of the litigation game. Take the initiative. But avoid overacting or overreacting.
• You can be sure of succeeding in your attacks if you only attack places which are undefended. You can ensure the safety of your defense if you only hold positions that cannot be attacked. Hence that general is skillful in attack whose opponent does not know what to defend; and he is skillful in defense whose opponent does not know what to attack.
Comment:
Know whom to sue, where to sue, on what legal theory or alternative causes of action, and what and how much to claim. Master the rules on jurisdiction, venue, and parties.
• If we wish to fight, the enemy can be forced to an engagement even though he be sheltered behind a high rampart and a deep ditch. All we need do is attack some other place that he will be obliged to relieve.
Comment:
Master the art of motions or incidents to test the waters and to test your enemy. Know what and where to attack, to what extent, and when to withdraw and negotiate.
• By discovering the enemy’s dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy’s must be divided.
Comment:
Study the enemy’s strength, locations, and logistics. Divide and rule. Consolidate your strength.
• The spot where we intend to fight must not be made known; for then the enemy will have to prepare against a possible attack at several different points; and his forces being thus distributed in many directions, the numbers we shall have to face at any given point will be proportionately few.
Comment:
Your next litigation moves are your secrets. Do not signal your punches. Nor teach the enemy what to do next.
• Though the enemy be stronger in numbers, we may prevent him from fighting. Scheme so as to discover his plans and the likelihood of their success. Rouse him, and learn the principle of his activity or inactivity. Force him to reveal himself, so as to find out his vulnerable spots. Carefully compare the opposing army with your own, so that you may know where strength is superabundant and where it is deficient. In making tactical dispositions, the highest pitch you can attain is to conceal them; conceal your dispositions, and you will be safe from the prying of the subtlest spies, from the machinations of the wisest brains.
Comment:
Know the secrets of your enemy. Entrap and lure him. Test him. Estimate his next moves. Conceal your strength and plans.
• Do not repeat the tactics which have gained you one victory, but let your methods be regulated by the infinite variety of circumstances. Military tactics are like unto water; for water in its natural course runs away from high places and hastens downwards. So in war, the way is to avoid what is strong and to strike at what is weak. Water shapes its course according to the nature of the ground over which it flows; the soldier works out his victory in relation to the foe whom he is facing. Therefore, just as water retains no constant shape, so in warfare there are no constant conditions. He who can modify his tactics in relation to his opponent and thereby succeed in winning, may be called a heaven-born captain.
Comment:
Be creative, innovative, and original in your moves and plans.
• Maneuvering with an army is advantageous; with an undisciplined multitude, most dangerous.
Comment:
Dismiss your disloyal, undisciplined and incompetent associates before they destroy your law firm and wreak havoc on the cases of your clients.
• We may take it then that an army without its baggage-train is lost; without provisions it is lost; without bases of supply it is lost.
Comment:
Your supply lines are your litigation funding and the punctual payments of your professional fees and intermittent deposits for costs of suit. Protect them. Without funds, cases are lost.
• We cannot enter into alliances until we are acquainted with the designs of our neighbors.
Comment:
Know the vested interests of outside lawyers hired by your client to collaborate with your law firm. Know the vested interests of your witness and other persons who appear to want to help your case. If your client is a corporation or association, know the individual vested interests of its directors and officers and the in-house politics and prevailing institutional culture therein.
• We are not fit to lead an army on the march unless we are familiar with the face of the country— its mountains and forests, its pitfalls and precipices, its marshes and swamps. We shall be unable to turn natural advantage to account unless we make use of local guides.
Comment:
The terrain in litigation as a specie of war refers to jurisdiction, venue, court procedures, the backgrounds and mentalities of the trial judges and their staff, and the politics and family and fraternal ties that might affect the proceedings.
• In war, practice dissimulation, and you will succeed.
Comment:
Be quiet. Be humble. Do not be talkative. Do not signal your punches, plans and next moves. Do not teach your opponent. Protect your secrets, strategies and tactics. Be invisible.
• Whether to concentrate or to divide your troops, must be decided by circumstances.
Comment:
Be flexible. Improvise. Let the handling trial lawyer decide actual tactical moves on the ground as the case evolves (subject, of course, to regular team analyses and peer reviews).
• Let your rapidity be that of the wind, your compactness that of the forest.
Comment:
Move fast. Stick to the deadlines. Avoid delays.
• When you plunder countryside, let the spoil be divided amongst your men; when you capture new territory, cut it up into allotments for the benefit of the soldiery.
Comment:
Reward your partners and associates. Do not be greedy and selfish.
• Ponder and deliberate before you make a move.
Comment:
Plan, plan, plan. Think, think, think.
• He will conquer who has learnt the artifice of deviation. Such is the art of maneuvering.
Comment:
Diversion is a gift. It relieves pressure at crucial points.
• Now a soldier’s spirit is keenest in the morning; by noonday it has begun to flag; and in the evening, his mind is bent only on returning to camp. A clever general, therefore, avoids an army when its spirit is keen, but attacks it when it is sluggish and inclined to return. This is the art of studying moods.
Comment:
Before going to court, be sure to have enough sleep and food. Be prepared. Bring the important records. Manage your stress both inside and outside the court. Relax.
• To be near the goal while the enemy is still far from it, to wait at ease while the enemy is toiling and struggling, to be well-fed while the enemy is famished:—this is the art of husbanding one’s strength.
Comment:
Plan. Stick to the plan. Rest. Prepare, Manage your stress. Do not panic.
• To refrain from intercepting an enemy whose banners are in perfect order, to refrain from attacking an army drawn up in calm and confident array:—this is the art of studying circumstances.
Comment:
Do not attack and irritate a prepared enemy. Study your enemy. Attack only at moments of weakness. Study the judge.
• It is a military axiom not to advance uphill against the enemy, nor to oppose him when he comes downhill.
Comment:
Choose the arena that benefits your case. Do not fight an uphill battle. Know when to wait and when to attack.
• Do not pursue an enemy who simulates flight; do not attack soldiers whose temper is keen. Do not swallow bait offered by the enemy. Do not interfere with an army that is returning home.
Comment:
Litigation is trap and counter-trap. Do not let the enemy lure and entrap you. Be vigilant.
• When you surround an army, leave an outlet free. Do not press a desperate foe too hard.
Comment:
Give the enemy an honorable and graceful exit. Otherwise, he will be desperate; and things will be bloody. Save his face, and your negotiations will be productive.
• The art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him; not on the chance of his not attacking, but rather on the fact that we have made our position unassailable.
Comment:
Be prepared. Do not underestimate or overestimate your enemy. There is no substitute for preparation.
• There are five dangerous faults which may affect a general: (1) Recklessness, which leads to destruction; (2) cowardice, which leads to capture; (3) a hasty temper, which can be provoked by insults; (4) a delicacy of honor which is sensitive to shame; (5) over-solicitude for his men, which exposes him to worry and trouble.
Comment:
Cases are lost when the handling lawyer is reckless, negligent, lacks self-control, hotheaded, temperamental, proud, egotistical, arrogant, talkative, combative, aggressive, self-conscious, lacks self-confidence, unethical, unprofessional, dishonest, selfish, greedy, and does not know how to manage, organize, and inspire his legal team, clients, and witnesses.
• Camp in high places, facing the sun. Do not move up-stream to meet the enemy.
Do not climb heights in order to fight. After crossing a river, you should get far away from it. When an invading force crosses a river in its onward march, do not advance to meet it in midstream. It will be best to let half the army get across, and then deliver your attack. If you are anxious to fight, you should not go to meet the invader near a river which he has to cross. In crossing salt-marshes, your sole concern should be to get over them quickly, without any delay. Country in which there are precipitous cliffs with torrents running between, deep natural hollows, confined places, tangled thickets, quagmires and crevasses, should be left with all possible speed and not approached. While we keep away from such places, we should get the enemy to approach them; while we face them, we should let the enemy have them on his rear.
Comment:
Be vigilant of the terrain of your litigation, the political and fraternal connections of your opponent, the resources and psychology of your enemy, your exit point when things go wrong, and the pressures that work on the judge. Litigation is trap and counter-trap.
• If in the neighborhood of your camp there should be any hilly country, ponds surrounded by aquatic grass, hollow basins filled with reeds, or woods with thick undergrowth, they must be carefully routed out and searched; for these are places where men in ambush or insidious spies are likely to be lurking.
Comment:
Avoid surprise. Study your case. Prepare. Beware of double-faced negotiators. To be killed in ambush is shameful.
• When the enemy is close at hand and remains quiet, he is relying on the natural strength of his position. When he keeps aloof and tries to provoke a battle, he is anxious for the other side to advance. If his place of encampment is easy of access, he is tendering a bait.
Comment:
Know the movements and psychology of your enemy. Do not fall into his traps. On the contrary, bait him. Know when to attack and when to stay put.
• Humble words and increased preparations are signs that the enemy is about to advance. Violent language and driving forward as if to the attack are signs that he will retreat. When the light chariots come out first and take up a position on the wings, it is a sign that the enemy is forming for battle. Peace proposals unaccompanied by a sworn covenant indicate a plot.
Comment:
Do not let the enemy bluff, lure, trap, entice, mislead, deceive and confuse you. Know your self and your enemy. Master his mentality.
• If the enemy’s troops march up angrily and remain facing ours for a long time without either joining battle or taking themselves off again, the situation is one that demands great vigilance and circumspection. If our troops are no more in number than the enemy, that is amply sufficient; it only means that no direct attack can be made. What we can do is simply to concentrate all our available strength, keep a close watch on the enemy, and obtain reinforcements.
Comment:
Measure the competition. Know when to ask for outside help. Accept your limitations.
• He who exercises no forethought but makes light of his opponents is sure to be captured by them.
Comment:
Forethought means surveillance and intelligence work. Spy on your enemy (without being unethical). Know his plans and his weak points.
• Regard your soldiers as your children, and they will follow you into the deepest valleys; look upon them as your own beloved sons, and they will stand by you even unto death. If, however, you are indulgent, but unable to make your authority felt; kind-hearted, but unable to enforce your commands; and incapable, moreover, of quelling disorder: then your soldiers must be likened to spoilt children; they are useless for any practical purpose.
Comment:
Love, serve, protect, inspire and motivate your law team members to advance the causes of your clients.
• If you know the enemy and know yourself, your victory will not stand in doubt; if you know Heaven and know Earth, you may make your victory complete.
Comment:
Know your self. Know your enemy. Control your self. Know your limitations. Be prepared.
• If asked how to cope with a great host of the enemy in orderly array and on the point of marching to the attack, I should say: “Begin by seizing something which your opponent holds dear; then he will be amenable to your will.”
Comment:
Focus on attacking the major interests of the enemy and he will surrender. Know your priorities. Do not let peripherals confuse you. Focus on the meat of the litigation.
• Rapidity is the essence of war: take advantage of the enemy’s unreadiness, make your way by unexpected routes, and attack unguarded spots.
Comment:
Be swift. Speed and surprise are your great war materials. Exploit the lack of preparation of the enemy. Ambush him.
• Throw your soldiers into positions whence there is no escape, and they will prefer death to flight. If they will face death, there is nothing they may not achieve. Officers and men alike will put forth their uttermost strength. Soldiers when in desperate straits lose the sense of fear. If there is no place of refuge, they will stand firm. If they are in hostile country, they will show a stubborn front. If there is no help for it, they will fight hard.
Comment:
Sometimes, desperation is a virtue. It is difficult to defeat a desperate enemy who had nothing to lose whatsoever. He is prepared to kill and die.
• It is the business of a general to be quiet and thus ensure secrecy; upright and just, and thus maintain order.
Comment:
A good lawyer is not talkative, keeps the secrets of his law firm and his clients, ethical and professional in his dealings, diligent, and always prepared.
• He must be able to mystify his officers and men by false reports and appearances, and thus keep them in total ignorance. Confront your soldiers with the deed itself; never let them know your design. When the outlook is bright, bring it before their eyes; but tell them nothing when the situation is gloomy.
Comment:
Know the virtue of harmless white lies and half-truths for psychological warfare and propaganda purposes, without violating your code of ethics.
• By altering his arrangements and changing his plans, he keeps the enemy without definite knowledge. By shifting his camp and taking circuitous routes, he prevents the enemy from anticipating his purpose. When needed, appoint a competent and telegenic spokesperson to deal with the press.
Comment:
Confuse the enemy. Do not signal to him your plans and intentions. Guard our strategies and tactics
• Place your army in deadly peril, and it will survive; plunge it into desperate straits, and it will come off in safety. For it is precisely when a force has fallen into harm’s way that is capable of striking a blow for victory.
Comment:
Sometimes when your back is against the wall, you are most productive, creative, inspired and dedicated in litigating a case. For you know what desperation means.
• If the enemy leaves a door open, you must rush in.
Comment:
Beware of the entrapment, lures, and enticements of the enemy. Study his every move and his intentions.
• At first, then, exhibit the coyness of a maiden, until the enemy gives you an opening; afterwards emulate the rapidity of a running hare, and it will be too late for the enemy to oppose you.
Comment:
Deceive the enemy. Hide your strength, intentions, interests, and plans, without violating the rules of evidence and discovery.
• Move not unless you see an advantage; use not your troops unless there is something to be gained; fight not unless the position is critical.
Comment:
Know when to move. Do not waste your time. Manage your stress. Focus on your priorities. Stick to you plan.
• No ruler should put troops into the field merely to gratify his own spleen; no general should fight a battle simply out of pique. If it is to your advantage, make a forward move; if not, stay where you are. Hence the enlightened ruler is heedful, and the good general full of caution. This is the way to keep a country at peace and an army intact.
Comment:
Keep your cool. Self-control is the key. Stick to you plan. Be patient. Be vigilant. Be aware. Be equanimous. Have a balanced mind.
• Thus, what enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men, is foreknowledge. Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience, nor by any deductive calculation. Knowledge of the enemy’s dispositions can only be obtained from other men. Hence the use of spies, of whom there are five classes: (1) Local spies; (2) inward spies; (3) converted spies; (4) doomed spies; (5) surviving spies. Having local spies means employing the services of the inhabitants of a district. Having inward spies, making use of officials of the enemy. Having converted spies, getting hold of the enemy’s spies and using them for our own purposes. Having doomed spies, doing certain things openly for purposes of deception, and allowing our spies to know of them and report them to the enemy. Surviving spies, finally, are those who bring back news from the enemy’s camp. Hence it is that which none in the whole army are more intimate relations to be maintained than with spies. None should be more liberally rewarded. In no other business should greater secrecy be preserved.
Comment:
Again, spy on your enemy, without violating your code of ethics. Know the value of double-agents. Protect your own secrets.
• Be subtle! be subtle! and use your spies for every kind of business. The enemy’s spies who have come to spy on us must be sought out, tempted with bribes, led away and comfortably housed. Thus they will become converted spies and available for our service. It is through the information brought by the converted spy that we are able to acquire and employ local and inward spies. It is owing to his information, again, that we can cause the doomed spy to carry false tidings to the enemy. Lastly, it is by his information that the surviving spy can be used on appointed occasions.
•
Comment:
Be subtle, Be quiet. Keep your secrets. Exploit the value of espionage. Penetrate the enemy. But maintain your ethics.
By:
Atty. Manuel J. Laserna Jr.
Laserna Cueva Mercader Law Offices
Las Pines City Bar Association
Email - lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
Friday, November 13, 2009
Anti-torture law approved, at last.
The signing yesterday by Philippine President Gloria Arroyo of the 2009 anti-torture law of the Philippines somehow mitigates the gravity of the heinous human rights violations of her militaristic regime since she assumed power in 2001.
The bill took at least 15 years in the legislative mill, if I am not mistaken.
Even as an anti-corruption critic of the Arroyo government, I credit her for this accomplishment, no matter how late her action might have been.
Under the new law, wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment.
Life imprisonment shall be meted on any person guilty of the following acts: torture resulting in the death of any person; torture resulting in mutilation; torture with rape and other forms of sexual abuse, when the victim has become insane, impotent, blind or maimed for life; and torture committed against children.
My only fear, though, is that, just like all the other beautiful laws of the country, this new law might simply remain in the inactive legal archives of the national library as the ruling party’s window-dressing for purposes of the 2010 elections but is not truly intended to be enforced with zeal and courage by the military, the police, and the justice pillars of the country.
In the Philippines, the law enforcers are the number one law breakers.
I do not have yet a full copy of the text of the new law. As soon as I acquire one, I promise my readers that I shall digest and discuss the provisions thereof to analyze whether the new law lives up to its name and spirit.
Below is a news alert on the matter from the Philippine Daily Inquirer issue today.
Arroyo signs anti-torture bill into law
By Lira Dalangin-Fernandez
INQUIRER.net
First Posted 13:58:00 11/13/2009
MANILA, Philippines—President Gloria Macapagal-Arroyo has signed the anti-torture bill into law, Malacañang announced Friday.
Republic Act 9745, signed into law Tuesday, criminalizes “torture and other cruel, inhuman and degrading treatment or punishment,” said deputy presidential spokesperson Lorelei Fajardo.
The law defines torture as acts constituting physical torture such as systematic beating, food deprivation, electric shock, cigarette burning, rape, among others. Mental and psychological torture, meanwhile, refers to acts such as blindfolding, prolonged interrogation, maltreating a member or members of a person's family, and denial of sleep, among others.
Wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment, it said.
“Life imprisonment shall be meted on any person guilty of the following acts: torture resulting in the death of any person; torture resulting in mutilation; torture with rape and other forms of sexual abuse, when the victim has become insane, impotent, blind or maimed for life; and torture committed against children,” it further said.
The Philippines was a signatory to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
see:
http://newsinfo.inquirer.net/breakingnews/nation/view/20091113-235993/Arroyo-signs-anti-torture-bill-into-law
The bill took at least 15 years in the legislative mill, if I am not mistaken.
Even as an anti-corruption critic of the Arroyo government, I credit her for this accomplishment, no matter how late her action might have been.
Under the new law, wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment.
Life imprisonment shall be meted on any person guilty of the following acts: torture resulting in the death of any person; torture resulting in mutilation; torture with rape and other forms of sexual abuse, when the victim has become insane, impotent, blind or maimed for life; and torture committed against children.
My only fear, though, is that, just like all the other beautiful laws of the country, this new law might simply remain in the inactive legal archives of the national library as the ruling party’s window-dressing for purposes of the 2010 elections but is not truly intended to be enforced with zeal and courage by the military, the police, and the justice pillars of the country.
In the Philippines, the law enforcers are the number one law breakers.
I do not have yet a full copy of the text of the new law. As soon as I acquire one, I promise my readers that I shall digest and discuss the provisions thereof to analyze whether the new law lives up to its name and spirit.
Below is a news alert on the matter from the Philippine Daily Inquirer issue today.
Arroyo signs anti-torture bill into law
By Lira Dalangin-Fernandez
INQUIRER.net
First Posted 13:58:00 11/13/2009
MANILA, Philippines—President Gloria Macapagal-Arroyo has signed the anti-torture bill into law, Malacañang announced Friday.
Republic Act 9745, signed into law Tuesday, criminalizes “torture and other cruel, inhuman and degrading treatment or punishment,” said deputy presidential spokesperson Lorelei Fajardo.
The law defines torture as acts constituting physical torture such as systematic beating, food deprivation, electric shock, cigarette burning, rape, among others. Mental and psychological torture, meanwhile, refers to acts such as blindfolding, prolonged interrogation, maltreating a member or members of a person's family, and denial of sleep, among others.
Wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment, it said.
“Life imprisonment shall be meted on any person guilty of the following acts: torture resulting in the death of any person; torture resulting in mutilation; torture with rape and other forms of sexual abuse, when the victim has become insane, impotent, blind or maimed for life; and torture committed against children,” it further said.
The Philippines was a signatory to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
see:
http://newsinfo.inquirer.net/breakingnews/nation/view/20091113-235993/Arroyo-signs-anti-torture-bill-into-law
Wednesday, November 11, 2009
Dishonesty, impropriety, ignorance of the law
In the recent case of GEORGE P. MERCADO, et. al. vs. HON. ERASTO D. SALCEDO, (Ret.) PRESIDING JUDGE, REGIONAL TRIAL COURT OF TAGUM CITY, DAVAO DEL NORTE, BRANCH 31, En Banc, A.M. No. RTJ-03-1781, October 16, 2009; with companion case: STATE PROSECUTOR EMMANUEL Y. VELASCO vs. HON. ERASTO D. SALCEDO, (Ret.) PRESIDING JUDGE, REGIONAL TRIAL COURT OF TAGUM CITY, DAVAO DEL NORTE, BRANCH 31, A.M. No. RTJ-03-1782, October 16, 2009, the Philippine Supreme Court found Judge Erasto D. Salcedo guilty of the following administrative offenses:
1. Dishonesty, inefficiency and serious misconduct and violation of Rule 2.01 of Canon 2 and Rule 3.08 of Canon 3 of the Code of Judicial Conduct; and Canons 3 and 31 of the Canons of Judicial Ethics, for which he was fined P40,000.00.
2. Serious misconduct and impropriety in violation of Rule 1.01 of Canon 1 and Rule 2.01of Canon 2 of the Code of Judicial Conduct, as well as Canon 3 of the Canons of Judicial Ethics, for which he was fined of P40,000.00.
3. Gross ignorance of the law under Rule 3.01, Canon 3 of the Code of Judicial Conduct, for which he was fined of P40,000.00.
In the said case, the Court made the following doctrinal pronouncements, thus:
1. Administrative cases against judges stem from the time-honored constitutional principle that a public office is a public trust. This principle requires a judge, like any other public servant and more so because of the sensitivity of his position, to exhibit at all times the highest degree of honesty and integrity; his high and exalted position in the Judiciary requires him to observe exacting standards of morality, decency and competence. As the visible representation of the law and given his task of dispensing justice, a judge should conduct himself at all times in a manner that would merit the respect and confidence of the people. He must conduct himself in a manner characterized by propriety and decorum; like Ceasar’s wife, he must be above suspicion. As we held in Padua v. Paz:
Court personnel charged with the dispensation of justice, from the presiding judge to the lowliest clerk, bear a heavy responsibility in insuring that their conduct is always beyond reproach. The preservation of the integrity of the judicial process is of paramount importance. All those occupying offices in the judiciary should at all times be aware that they are accountable to the people. They must serve with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives.
2. From all these, what appears clear to us is that the respondent judge conducted a very superficial investigation, if what he did can be labelled as an investigation at all. Based on this shallow effort, he prepared a slanted report that could not but lead to the exoneration of Judge Agayan. These actions tell us that the respondent judge deliberately covered up Judge Agayan’s absences and irregular attendance. The motivation for all these is not hard to discern as it can be read between the lines in the respondent judge’s report, considered in light of the attendant facts. He did all these under the mistaken notion of aiding a fellow judge, who was allegedly too sickly to fully perform his judicial duties. In rendering this assistance, the respondent judge also overlooked the absences and irregular attendance of the court staff of Judge Agayan.
3. The respondent judge apparently forgot that his first and foremost duty was to conduct a thorough and objective investigation and to make a complete report of his findings regardless of his personal sentiments and beliefs. The task assigned to him was an assignment involving trust and the exercise of his functions as a judge. An administrative investigation is an essential component in the judicial machinery for the administrative supervision of courts and court personnel; it is a key process in determining violations of the norms of conduct and standards of service in the judiciary. The respondent judge, therefore, not only failed to do his duty, but violated as well the trust reposed in him as a judge.
4. The absenteeism of judges or court employees and/or their irregular attendance at work is a serious charge that, if proven, may warrant the imposition of the penalty of dismissal or suspension from service. Unauthorized absence and irregular attendance are detrimental to the dispensation of justice and, more often than not, result in undue delay in the disposition of cases; they also translate to waste of public funds when the absent officials and employees are nevertheless paid despite their absence. As heretofore mentioned, the Supreme Court regulates the conduct of court officials and employees and it acts through its subordinates, among them in this case, the respondent judge. His responsibility in this administrative supervision is direct by virtue of the delegation made by this Court. By conducting a superficial investigation and by his slanted findings that caused the OCA to recommend the dismissal of the administrative complaint against Judge Agayan and his court personnel, the Court’s administrative machinery failed; the respondent judge’s intent to shield another judge, resulting in the lack of objectivity of his report, deprived the Court of the opportunity to act properly on the reported violations of the norms of conduct of judges and court employees.
5. For failing to faithfully perform the tasks assigned to him, the respondent committed dishonesty, inefficiency, and serious misconduct in violation of Canon 3 and Rule 3.08 of Canon 3, both of the Code of Judicial Conduct, which state:
Canon 3. A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE.
Rule 3.08 – A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel.
6. We also find that the respondent judge violated Rule 2.01, Canon 2 of the Code of Judicial Conduct, which states that “[a] judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary,” in relation to Canon 31 of the Canons of Judicial Ethics, which requires that a judge’s conduct be above reproach and that he administer justice according to law. This means that a judge, in dispensing justice, “should apply the law impartially, independently, honestly, and in a manner perceived by the public to be impartial, independent and honest.”
7. Serious misconduct, as defined, refers to weighty and serious transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. It warrants dismissal from the service when the judicial act is corrupt and inspired by an intention to violate the law, and when it translates to wrongful intention rather than mere error of judgment.
8. In this case, by giving premium to personal relations and personal feelings rather than to the faithful discharge of his duty as investigating judge, the respondent judge acted dishonestly and inefficiently, coupled with a deliberate and wrongful intent to perform his duties unfaithfully. This is no less a serious misconduct than a corrupt act undertaken for monetary gains; one as well as the other eroded public confidence in a judge’s ability to render justice.
9. The act of borrowing a vehicle by a judge or any court employee is not per se a violation of judicial norms and standards established for court personnel, as borrowing is a legitimate and neutral act that can happen in everyday life. However, judges and court employees – by the nature of their functions and of the norms and standards peculiar to their positions – live their lives under restrictions not otherwise imposed on others; specifically, they cannot simply borrow in situations when this act may or can affect the performance of their duties because of the nature of the thing borrowed or the identity of the borrower, or in situations when borrowing would involve ethical questions under express rules. In this case, the complaint alleged that what the respondent judge borrowed was in fact a vehicle that was the subject of a previous litigation before his sala; the respondent judge borrowed, too, from a lender who still had cases before his sala.
We hold, based on our examination and analysis of the records, that the respondent judge went over the dividing line that separates permissible from impermissible borrowing.
10. First, during his cross-examination before the CA, the respondent judge admitted that he knew that the vehicle he borrowed was owned by Leopoldo Gonzaga, who was the accused in the Anti-Fencing case previously before him. The respondent judge could not have avoided this admission given the surrounding circumstances of the case; the vehicle in the Anti-Fencing case was a Pajero, while the vehicle he borrowed from Leopoldo Gonzaga was also a Pajero; while the color of the vehicle had been changed from green to dirty white, it was shown that the vehicle consistently carried the same plate number – “UTN 571”; the respondent judge could not have missed the identity of the vehicle considering his admission that the Pajero was under the court’s custody for several months.
11. Second, the records show that the respondent judge’s initial claim of lack of knowledge is not true. In the preliminary investigation conducted by State Prosecutor Velasco in the Anti-Fencing case involving the Pajero, the respondent judge, when apprehended by policemen, exhibited a court decision he penned in 1999 dismissing the Anti-Fencing case against Leopoldo Gonzaga for the same vehicle. This incident, which the respondent judge never refuted, clearly indicated that he knew that the vehicle he possessed and used, despite its change of color, was the same vehicle involved in the 1999 Anti-Fencing case that came before him.
12. Thus, the respondent judge not only borrowed a vehicle that was the subject of an Anti-Fencing case before him; he also borrowed it from a lender who had other pending cases before him. In fact, he had to inhibit himself from hearing these cases because of the pendency of the present administrative cases.
13. Under the circumstances, the respondent judge is liable for serious misconduct, given his repeated and deliberate intention to disregard and violate the legal norms of conduct governing his behavior and action as a judge. He committed serious misconduct, first, in using and possessing a vehicle with the knowledge that it was the subject of an anti-fencing case previously before him; and second, he borrowed this vehicle from a litigant who had pending cases before his sala. Both the character of the vehicle borrowed and the identity of the lender precluded him from borrowing and using Leopoldo Gonzaga’s Pajero. While the criminal case filed against the respondent judge by State Prosecutor Velasco was dismissed by the Department of Justice, we agree with Justice Tijam that the respondent judge’s acts at least constitute irresponsible and improper conduct whose effect is to erode public confidence in the judiciary. As aptly stated by Justice Tijam, the respondent judge’s act compromised the image, integrity and uprightness of the courts of law; it cast suspicion not only in his own impartiality, but also in the impartiality and integrity of his judicial office, thereby impairing public trust in the exercise of his judicial functions.
14. The evidence adduced in this charge showed that the respondent judge violated Rule 1.01, Canon 1 and Rule 2.01, Canon 2, both of the Code of Judicial Conduct, in failing to maintain the appearance of integrity and in failing to engage in conduct to promote public confidence in the judiciary. Likewise, he violated Canon 2 of the Code of Judicial Conduct and Canon 3 of the Canons of Judicial Ethics relating to the avoidance of impropriety and the appearance of impropriety in all the judge’s activities, official or otherwise.
15. The respondent judge ought to have known that the joint decision was already final and executory and could no longer be disturbed when he made his adjustments. This legal reality, known as the rule of immutability of judgment, is an elementary principle of law and procedure. Once a judgment becomes final, it may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the Highest Court of the land. The only recognized exceptions are the correction of clerical errors, or the making of so-called nunc pro tunc entries, which cause no prejudice to any party, and where the judgment is void. To be sure, the respondent judge’s ground for modifying the joint decision is not among these recognized exceptions.
16. For modifying a final and executory decision in the course of its execution, we find the respondent judge guilty of gross ignorance of the law. Where the law is straightforward and its application to the facts plainly evident, not to know the law or to act as if one does not know it, constitutes gross ignorance of the law. The respondent judge violated Rule 3.01, Canon 3 of the Code of Judicial Conduct which mandates professional competence on the part of a judge. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and prevailing jurisprudence; otherwise, he erodes the confidence of the public in the courts. Ignorance of the law by a judge can easily be the mainspring of injustice.
17. The retirement of the respondent judge and death of both the complainant and the respondent judge pending the investigation of these administrative cases are not deterrents to the resolution on the merits of the complaints and to the imposition of the sanctions demanded by the circumstances. Jurisprudence holds that the death of the complainant does not warrant the withdrawal of the charges against the respondent nor does this development render the complaint moot; the complainant is treated only as a witness in this type of proceedings. On the other hand, the death of the respondent in an administrative case, as a rule, does not preclude a finding of administrative liability. The recognized exceptions to this rule are: first, when the respondent has not been heard and continuation of the proceedings would deny him of his right to due process; second, where exceptional circumstances exist in the case leading to equitable and humanitarian considerations; and third, when the kind of penalty imposed or imposable would render the proceedings useless. None of these exceptional circumstances are present in the case.
1. Dishonesty, inefficiency and serious misconduct and violation of Rule 2.01 of Canon 2 and Rule 3.08 of Canon 3 of the Code of Judicial Conduct; and Canons 3 and 31 of the Canons of Judicial Ethics, for which he was fined P40,000.00.
2. Serious misconduct and impropriety in violation of Rule 1.01 of Canon 1 and Rule 2.01of Canon 2 of the Code of Judicial Conduct, as well as Canon 3 of the Canons of Judicial Ethics, for which he was fined of P40,000.00.
3. Gross ignorance of the law under Rule 3.01, Canon 3 of the Code of Judicial Conduct, for which he was fined of P40,000.00.
In the said case, the Court made the following doctrinal pronouncements, thus:
1. Administrative cases against judges stem from the time-honored constitutional principle that a public office is a public trust. This principle requires a judge, like any other public servant and more so because of the sensitivity of his position, to exhibit at all times the highest degree of honesty and integrity; his high and exalted position in the Judiciary requires him to observe exacting standards of morality, decency and competence. As the visible representation of the law and given his task of dispensing justice, a judge should conduct himself at all times in a manner that would merit the respect and confidence of the people. He must conduct himself in a manner characterized by propriety and decorum; like Ceasar’s wife, he must be above suspicion. As we held in Padua v. Paz:
Court personnel charged with the dispensation of justice, from the presiding judge to the lowliest clerk, bear a heavy responsibility in insuring that their conduct is always beyond reproach. The preservation of the integrity of the judicial process is of paramount importance. All those occupying offices in the judiciary should at all times be aware that they are accountable to the people. They must serve with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives.
2. From all these, what appears clear to us is that the respondent judge conducted a very superficial investigation, if what he did can be labelled as an investigation at all. Based on this shallow effort, he prepared a slanted report that could not but lead to the exoneration of Judge Agayan. These actions tell us that the respondent judge deliberately covered up Judge Agayan’s absences and irregular attendance. The motivation for all these is not hard to discern as it can be read between the lines in the respondent judge’s report, considered in light of the attendant facts. He did all these under the mistaken notion of aiding a fellow judge, who was allegedly too sickly to fully perform his judicial duties. In rendering this assistance, the respondent judge also overlooked the absences and irregular attendance of the court staff of Judge Agayan.
3. The respondent judge apparently forgot that his first and foremost duty was to conduct a thorough and objective investigation and to make a complete report of his findings regardless of his personal sentiments and beliefs. The task assigned to him was an assignment involving trust and the exercise of his functions as a judge. An administrative investigation is an essential component in the judicial machinery for the administrative supervision of courts and court personnel; it is a key process in determining violations of the norms of conduct and standards of service in the judiciary. The respondent judge, therefore, not only failed to do his duty, but violated as well the trust reposed in him as a judge.
4. The absenteeism of judges or court employees and/or their irregular attendance at work is a serious charge that, if proven, may warrant the imposition of the penalty of dismissal or suspension from service. Unauthorized absence and irregular attendance are detrimental to the dispensation of justice and, more often than not, result in undue delay in the disposition of cases; they also translate to waste of public funds when the absent officials and employees are nevertheless paid despite their absence. As heretofore mentioned, the Supreme Court regulates the conduct of court officials and employees and it acts through its subordinates, among them in this case, the respondent judge. His responsibility in this administrative supervision is direct by virtue of the delegation made by this Court. By conducting a superficial investigation and by his slanted findings that caused the OCA to recommend the dismissal of the administrative complaint against Judge Agayan and his court personnel, the Court’s administrative machinery failed; the respondent judge’s intent to shield another judge, resulting in the lack of objectivity of his report, deprived the Court of the opportunity to act properly on the reported violations of the norms of conduct of judges and court employees.
5. For failing to faithfully perform the tasks assigned to him, the respondent committed dishonesty, inefficiency, and serious misconduct in violation of Canon 3 and Rule 3.08 of Canon 3, both of the Code of Judicial Conduct, which state:
Canon 3. A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE.
Rule 3.08 – A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel.
6. We also find that the respondent judge violated Rule 2.01, Canon 2 of the Code of Judicial Conduct, which states that “[a] judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary,” in relation to Canon 31 of the Canons of Judicial Ethics, which requires that a judge’s conduct be above reproach and that he administer justice according to law. This means that a judge, in dispensing justice, “should apply the law impartially, independently, honestly, and in a manner perceived by the public to be impartial, independent and honest.”
7. Serious misconduct, as defined, refers to weighty and serious transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. It warrants dismissal from the service when the judicial act is corrupt and inspired by an intention to violate the law, and when it translates to wrongful intention rather than mere error of judgment.
8. In this case, by giving premium to personal relations and personal feelings rather than to the faithful discharge of his duty as investigating judge, the respondent judge acted dishonestly and inefficiently, coupled with a deliberate and wrongful intent to perform his duties unfaithfully. This is no less a serious misconduct than a corrupt act undertaken for monetary gains; one as well as the other eroded public confidence in a judge’s ability to render justice.
9. The act of borrowing a vehicle by a judge or any court employee is not per se a violation of judicial norms and standards established for court personnel, as borrowing is a legitimate and neutral act that can happen in everyday life. However, judges and court employees – by the nature of their functions and of the norms and standards peculiar to their positions – live their lives under restrictions not otherwise imposed on others; specifically, they cannot simply borrow in situations when this act may or can affect the performance of their duties because of the nature of the thing borrowed or the identity of the borrower, or in situations when borrowing would involve ethical questions under express rules. In this case, the complaint alleged that what the respondent judge borrowed was in fact a vehicle that was the subject of a previous litigation before his sala; the respondent judge borrowed, too, from a lender who still had cases before his sala.
We hold, based on our examination and analysis of the records, that the respondent judge went over the dividing line that separates permissible from impermissible borrowing.
10. First, during his cross-examination before the CA, the respondent judge admitted that he knew that the vehicle he borrowed was owned by Leopoldo Gonzaga, who was the accused in the Anti-Fencing case previously before him. The respondent judge could not have avoided this admission given the surrounding circumstances of the case; the vehicle in the Anti-Fencing case was a Pajero, while the vehicle he borrowed from Leopoldo Gonzaga was also a Pajero; while the color of the vehicle had been changed from green to dirty white, it was shown that the vehicle consistently carried the same plate number – “UTN 571”; the respondent judge could not have missed the identity of the vehicle considering his admission that the Pajero was under the court’s custody for several months.
11. Second, the records show that the respondent judge’s initial claim of lack of knowledge is not true. In the preliminary investigation conducted by State Prosecutor Velasco in the Anti-Fencing case involving the Pajero, the respondent judge, when apprehended by policemen, exhibited a court decision he penned in 1999 dismissing the Anti-Fencing case against Leopoldo Gonzaga for the same vehicle. This incident, which the respondent judge never refuted, clearly indicated that he knew that the vehicle he possessed and used, despite its change of color, was the same vehicle involved in the 1999 Anti-Fencing case that came before him.
12. Thus, the respondent judge not only borrowed a vehicle that was the subject of an Anti-Fencing case before him; he also borrowed it from a lender who had other pending cases before him. In fact, he had to inhibit himself from hearing these cases because of the pendency of the present administrative cases.
13. Under the circumstances, the respondent judge is liable for serious misconduct, given his repeated and deliberate intention to disregard and violate the legal norms of conduct governing his behavior and action as a judge. He committed serious misconduct, first, in using and possessing a vehicle with the knowledge that it was the subject of an anti-fencing case previously before him; and second, he borrowed this vehicle from a litigant who had pending cases before his sala. Both the character of the vehicle borrowed and the identity of the lender precluded him from borrowing and using Leopoldo Gonzaga’s Pajero. While the criminal case filed against the respondent judge by State Prosecutor Velasco was dismissed by the Department of Justice, we agree with Justice Tijam that the respondent judge’s acts at least constitute irresponsible and improper conduct whose effect is to erode public confidence in the judiciary. As aptly stated by Justice Tijam, the respondent judge’s act compromised the image, integrity and uprightness of the courts of law; it cast suspicion not only in his own impartiality, but also in the impartiality and integrity of his judicial office, thereby impairing public trust in the exercise of his judicial functions.
14. The evidence adduced in this charge showed that the respondent judge violated Rule 1.01, Canon 1 and Rule 2.01, Canon 2, both of the Code of Judicial Conduct, in failing to maintain the appearance of integrity and in failing to engage in conduct to promote public confidence in the judiciary. Likewise, he violated Canon 2 of the Code of Judicial Conduct and Canon 3 of the Canons of Judicial Ethics relating to the avoidance of impropriety and the appearance of impropriety in all the judge’s activities, official or otherwise.
15. The respondent judge ought to have known that the joint decision was already final and executory and could no longer be disturbed when he made his adjustments. This legal reality, known as the rule of immutability of judgment, is an elementary principle of law and procedure. Once a judgment becomes final, it may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the Highest Court of the land. The only recognized exceptions are the correction of clerical errors, or the making of so-called nunc pro tunc entries, which cause no prejudice to any party, and where the judgment is void. To be sure, the respondent judge’s ground for modifying the joint decision is not among these recognized exceptions.
16. For modifying a final and executory decision in the course of its execution, we find the respondent judge guilty of gross ignorance of the law. Where the law is straightforward and its application to the facts plainly evident, not to know the law or to act as if one does not know it, constitutes gross ignorance of the law. The respondent judge violated Rule 3.01, Canon 3 of the Code of Judicial Conduct which mandates professional competence on the part of a judge. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and prevailing jurisprudence; otherwise, he erodes the confidence of the public in the courts. Ignorance of the law by a judge can easily be the mainspring of injustice.
17. The retirement of the respondent judge and death of both the complainant and the respondent judge pending the investigation of these administrative cases are not deterrents to the resolution on the merits of the complaints and to the imposition of the sanctions demanded by the circumstances. Jurisprudence holds that the death of the complainant does not warrant the withdrawal of the charges against the respondent nor does this development render the complaint moot; the complainant is treated only as a witness in this type of proceedings. On the other hand, the death of the respondent in an administrative case, as a rule, does not preclude a finding of administrative liability. The recognized exceptions to this rule are: first, when the respondent has not been heard and continuation of the proceedings would deny him of his right to due process; second, where exceptional circumstances exist in the case leading to equitable and humanitarian considerations; and third, when the kind of penalty imposed or imposable would render the proceedings useless. None of these exceptional circumstances are present in the case.
Limited disciplinary power of an executive judge
In the recent case of JUDGE BONIFACIO SANZ MACEDA, REGIONAL TRIAL COURT, LAS PIÑAS CITY, BRANCH 275 vs. LOIDA M. GENABE, LEGAL, A.M. No. 07-2-93-RTC, October 29, 2009, the Philippine Supreme Court made the following doctrinal pronouncements in re: the limited extent of the disciplinary powers of an executive judge, thus:
1. Judge Maceda suspended a court personnel directly under his supervision by relying on the authority laid down in Article II, Section A(2)(a) of Circular No. 30-91 which provides:
X x x.
2. Lower Court Personnel
a. Light Offenses –
(1) Disciplinary matters involving light offenses as defined under the Civil Service law (Administrative Code of 1987 and the Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act. 6713) where the penalty is reprimand, suspension for not more than thirty days, or a fine not exceeding thirty days' salary, and as classified in Civil Service Resolution No. 30, Series of 1989, shall be acted upon by the appropriate supervisory official of the lower court concerned.
(2) The appropriate supervisory officials are the Presiding Justices/Presiding Judge of the lower collegiate courts and the Executive Judges of the trial courts with respect to the personnel of their respective courts, except those directly under the individual Justices and Judges, in which case, the latter shall be their appropriate supervisory officials.
(3) The complaint for light offenses whether filed with the Court, the Office of the Court Administrator, or the lower court shall be heard and decided by the appropriate supervisory official concerned. x x x
2. The reliance of Judge Maceda on the provisions of this circular is misplaced. Judge Maceda found Genabe to have neglected her duty in November 2006.
The guidelines in effect at that time were already those found in A.M. No. 03-8-02-SC, which took effect in 2004 or two years before the administrative charge of neglect of duty was made against Genabe. Judge Maceda should have applied these new guidelines and not Circular No. 30-91.
3. Section 1, Chapter VIII of A.M. No. 03-8-02-SC, which provides the guidelines for administrative discipline of court employees over light offenses, states:
X x x.
SECTION. 1. Disciplinary jurisdiction over light offenses.– The Executive Judge shall have authority to act upon and investigate administrative complaints involving light offenses as defined under the Civil Service Law and Rules (Administrative Code of 1987), and the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713), where the penalty is reprimand, suspension for not more than thirty (30) days, or a fine not exceeding thirty (30) days’ salary, and as classified in pertinent Civil Service resolutions or issuances, filed by (a) a judge against a court employee, except lawyers, who both work in the same station within the Executive Judge’s area of administrative supervision; or (b) a court employee against another court employee, except lawyers, who both work in the same station within the Executive Judge’s area of administrative supervision.
In the preceding instances, the Executive Judge shall conduct the necessary inquiry and submit to the Office of the Court Administrator the results thereof with a recommendation as to the action to be taken thereon, including the penalty to be imposed, if any, within thirty (30) days from termination of said inquiry. At his/her discretion, the Executive Judge may delegate the investigation of complaints involving light offenses to any of the Presiding Judges or court officials within his/her area of administrative supervision.
In the case of a complaint (a) filed against court employees who are lawyers, or (b) filed by private complainants against court employees, lawyers and non-lawyers alike, the same shall be forwarded by the Executive Judge to the Office of the Court Administrator for appropriate action and disposition. x x x (Emphasis supplied)
4. The guidelines clearly provide that the authority of judges to discipline erring court personnel, under their supervision and charged with light offenses, is limited to conducting an inquiry only. After such inquiry, the executive judge is required to submit to the OCA the results of the investigation and give a recommendation as to what action should be taken. An executive judge does not have the authority to act upon the results of the inquiry and thereafter, if the court employee is found guilty, unilaterally impose a penalty, as in this case. It is only the Supreme Court which has the power to find the court personnel guilty or not for the offense charged and then impose a penalty.
5. In the present case, Judge Maceda suspended Genabe for the offense of neglect of duty. Under Section 52(B), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service, simple neglect of duty is a less grave offense which carries a penalty of one month and one day to six months suspension for the first offense. Under A.M. No. 03-8-02-SC, an executive judge may only conduct an investigation for all offenses. After the investigation, the executive judge is mandated to refer the necessary disciplinary action to this Court for appropriate action.
1. Judge Maceda suspended a court personnel directly under his supervision by relying on the authority laid down in Article II, Section A(2)(a) of Circular No. 30-91 which provides:
X x x.
2. Lower Court Personnel
a. Light Offenses –
(1) Disciplinary matters involving light offenses as defined under the Civil Service law (Administrative Code of 1987 and the Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act. 6713) where the penalty is reprimand, suspension for not more than thirty days, or a fine not exceeding thirty days' salary, and as classified in Civil Service Resolution No. 30, Series of 1989, shall be acted upon by the appropriate supervisory official of the lower court concerned.
(2) The appropriate supervisory officials are the Presiding Justices/Presiding Judge of the lower collegiate courts and the Executive Judges of the trial courts with respect to the personnel of their respective courts, except those directly under the individual Justices and Judges, in which case, the latter shall be their appropriate supervisory officials.
(3) The complaint for light offenses whether filed with the Court, the Office of the Court Administrator, or the lower court shall be heard and decided by the appropriate supervisory official concerned. x x x
2. The reliance of Judge Maceda on the provisions of this circular is misplaced. Judge Maceda found Genabe to have neglected her duty in November 2006.
The guidelines in effect at that time were already those found in A.M. No. 03-8-02-SC, which took effect in 2004 or two years before the administrative charge of neglect of duty was made against Genabe. Judge Maceda should have applied these new guidelines and not Circular No. 30-91.
3. Section 1, Chapter VIII of A.M. No. 03-8-02-SC, which provides the guidelines for administrative discipline of court employees over light offenses, states:
X x x.
SECTION. 1. Disciplinary jurisdiction over light offenses.– The Executive Judge shall have authority to act upon and investigate administrative complaints involving light offenses as defined under the Civil Service Law and Rules (Administrative Code of 1987), and the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713), where the penalty is reprimand, suspension for not more than thirty (30) days, or a fine not exceeding thirty (30) days’ salary, and as classified in pertinent Civil Service resolutions or issuances, filed by (a) a judge against a court employee, except lawyers, who both work in the same station within the Executive Judge’s area of administrative supervision; or (b) a court employee against another court employee, except lawyers, who both work in the same station within the Executive Judge’s area of administrative supervision.
In the preceding instances, the Executive Judge shall conduct the necessary inquiry and submit to the Office of the Court Administrator the results thereof with a recommendation as to the action to be taken thereon, including the penalty to be imposed, if any, within thirty (30) days from termination of said inquiry. At his/her discretion, the Executive Judge may delegate the investigation of complaints involving light offenses to any of the Presiding Judges or court officials within his/her area of administrative supervision.
In the case of a complaint (a) filed against court employees who are lawyers, or (b) filed by private complainants against court employees, lawyers and non-lawyers alike, the same shall be forwarded by the Executive Judge to the Office of the Court Administrator for appropriate action and disposition. x x x (Emphasis supplied)
4. The guidelines clearly provide that the authority of judges to discipline erring court personnel, under their supervision and charged with light offenses, is limited to conducting an inquiry only. After such inquiry, the executive judge is required to submit to the OCA the results of the investigation and give a recommendation as to what action should be taken. An executive judge does not have the authority to act upon the results of the inquiry and thereafter, if the court employee is found guilty, unilaterally impose a penalty, as in this case. It is only the Supreme Court which has the power to find the court personnel guilty or not for the offense charged and then impose a penalty.
5. In the present case, Judge Maceda suspended Genabe for the offense of neglect of duty. Under Section 52(B), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service, simple neglect of duty is a less grave offense which carries a penalty of one month and one day to six months suspension for the first offense. Under A.M. No. 03-8-02-SC, an executive judge may only conduct an investigation for all offenses. After the investigation, the executive judge is mandated to refer the necessary disciplinary action to this Court for appropriate action.
Apocalyptic corruption
I have repeatedly written in my past blogs (and I shall not get tired writing) about the gravity of the malignant cancer of corruption now seriously killing the distrusted, maligned and lameduck government of the illegitimate Philippine Pres. Gloria Arroyo since she was elevated in 2001 by the people power movement (EDSA II) of the ignorant Filipinos who innocently trusted her cunning and shrewd character.
Once again the Philippine Senate has confirmed what the hopeless and desperate Filipino public have known and grown numb to since time immemorial in modern Philippine neo-colonial history.
Read the items below from the Philippine Star’s and the Philippine Daily Inquirer's issues today.
One scandal involves more than 60, 000 billion pesos (road taxes); the other, more than 329 million US dollars (telecomm deal with China) -- enough to feed millions of malnourished Filipino children for a long, long time and enough to build tens of thousands of low-cost houses for the homeless and jobless urban poor Filipinos.
Please note that the Senate blue ribbon committee report on the corrupt Chinese telecomm deal in fact strongly recommended that an impeachments investigation be commenced against Pres. Arroyo by the Office of the Ombudsman, whose occupant, by the way, is her former presidential legal counsel and a very close classmate of her husband in law school.
The impeachment investigation will surely suffer the Mona Liza syndrome at the untrustworthy doorsteps of the Ombudsman: ...And they lie there, and they die there...
Opinion
EDITORIAL - 'Apocalyptic corruption'
The Philippine Star)
Updated November 11, 2009 12:00 AM
From 2001 to 2009, the government collected a total of P60.5 billion, paid by motorists as road users’ tax in the registration of vehicles. Under the law that created the tax, the money, administered by the Road Board, is supposed to be used exclusively for road maintenance and improvement of road drainage, the installation of traffic lights and road safety devices, and for air pollution control.
As the colossal flooding during storm “Ondoy” and typhoon “Pepeng” showed, the improvement of road drainage has been a joke. And driving around Metro Manila will quickly illustrate the lackadaisical enforcement of laws regulating vehicular emissions.
How was the P60.5 billion spent? The Commission on Audit reported that P332.64 million of the road tax, earmarked for the OYSTER or Out-of-School Youth Serving Towards Economic Recovery program, was transferred to the Philippine National Police. Why? Sen. Miriam Defensor-Santiago wants to know, and so does the public.
Santiago, who spearheaded a Senate probe into the use of the road tax, noted that the PNP is under the Department of the Interior and Local Government, whose head Ronaldo Puno happens to be the brother of former Road Board executive director Rodolfo Puno. Santiago also noted that in 2007, an election year, there was an “unusually large amount of allotments obligated” involving the road tax. She said the case involved “apocalyptic corruption.”
The apparent fund juggling could have been facilitated by the fact that the tax is not remitted by the collecting agency, the Land Transportation Office, to the National Treasury but deposited in special accounts under the supervision of the Road Board, whose ex officio chair is the secretary of public works and highways. On Monday night the Senate unanimously approved the filing of plunder and graft cases against Rodolfo Puno, Danilo Valero of the board and Hermogenes Ebdane Jr., who recently resigned from the public works department.
Beyond pursuing the prosecution of anyone who might have misused the multibillion-peso fund, lawmakers should also consider changing the system of handling the tax, in a way that would promote transparency and prevent its misuse. Such oversight mechanisms are needed as the tax continues to be collected and the temptation to misuse the funds increases as the 2010 elections approach.
Senate panel tags GMA, First Gentleman in ZTE case
By Aurea Calica
(The Philippine Star)
Updated November 11, 2009 12:00 AM
MANILA, Philippines - The Senate Blue Ribbon committee has recommended the filing of graft charges against First Gentleman Jose Miguel “Mike” Arroyo and other personalities involved in the anomalous $329-million national broadband network (NBN) contract with China’s ZTE Corp.
In the same report, the committee recommended the further investigation of President Arroyo for her role in the approval of the controversial contract.
The committee, led by Sen. Richard Gordon, also sought the filing of charges against businessman Jose “Joey” de Venecia III and former government consultant Rodolfo Lozada Jr., the two whistle-blowers of the case.
The committee also recommended the filing of graft charges against former socio-economic planning secretary Romulo Neri, former elections chief Benjamin Abalos and Transportation and Communications Secretary Leandro Mendoza, as well as Assistant Secretaries Elmer Soneja and Lorenzo Formoso.
Gordon said the committee also found substantial evidence to warrant the filing of charges against Deputy Executive Secretary Manuel Gaite and Environment and Natural Resources Secretary Lito Atienza for their alleged attempt to prevent Lozada from testifying at the Senate.
Gordon said Gaite and Atienza could be charged with violation of Article 150 of the Revised Penal Code.
The First Gentleman, through his lawyer Ruy Rondain, said they have yet to receive a copy of the Senate report.
“I haven’t seen the report but I would like to point out that there was a case filed by several individuals several months ago before the Office of the Ombudsman and the Ombudsman a few months ago came out with a resolution saying there is no evidence linking the First Gentleman (to the) case,” Rondain told The STAR.
Rondain said the Ombudsman, after reviewing evidence including the entire Senate transcript of the hearings, “found no evidence versus Atty. Arroyo beyond speculations and conjectures.”
Rondain brushed aside the legal implications of the Senate report against Mr. Arroyo, saying it was only recommendatory.
Rondain declared there is “no remedy” for any party to file a suit against Mr. Arroyo following the Senate report, since only the Ombudsman is authorized to handle such cases.
“We will let the process take its course,” he said.
Rondain said the complainants must allow the Ombudsman to wrap up its investigations before resorting to any other legal remedy.
While he is not the lawyer of President Arroyo, Rondain expressed the same opinion that there is no evidence that could pin her down.
The President’s lawyer, Romulo Macalintal, could not be reached for comment.
The Blue Ribbon has yet to release the full 127-page committee report signed by Gordon, with Senate Minority Leader Aquilino Pimentel Jr., Senators Joker Arroyo and
Edgardo Angara as principal sponsors.
Out of the 17 members of the committee, nine senators have yet to sign the report in order to approve the committee report.
The on-and-off investigation began in September 2007 and was concluded last September after 13 days of grueling hearings, four technical working groups and 41 witnesses.
‘Lots to answer for’
The committee report said the Office of the Ombudsman should take the initiative of investigating the President over her role in the ZTE deal.
“The President has lots to answer for. The (Office of the Ombudsman) is wrong in merely dismissing the case against the President on the mere pretext of presidential immunity from suit. The Ombudsman must make a finding and forward it to the House of Representatives,” the report said.
The committee noted Mrs. Arroyo enjoys immunity from suit and can only be charged after her term ends on June 30, 2010.
Nonetheless, the committee said the Ombudsman has the constitutional duty to investigate impeachable officers, including the President.
“What the (Ombudsman) should have done was to investigate and make findings to transmit to the House, if an impeachment would have been warranted, rather than a blanket statement of exculpation because of supposed immunity,” the report read.
Press Secretary Cerge Remonde said President Arroyo did what she had to do after the anomaly came out in the open.
“It is not true that the President did not act on the report of (Neri) that there was an attempt to bribe him. The President ordered Interior Secretary Ronaldo Puno to investigate through the PNP (Philippine National Police),” Remonde said.
Remonde added Puno ordered the PNP to conduct the probe but the result was still inconclusive.
“Puno reported to the President that there was no basis to file charges against anyone at that time,” Remonde said.
Gordon, however, said the findings of the committee revealed the President did not act accordingly even after she was informed by Neri of the bribery attempt by Abalos.
After confirming the bribery attempt, Neri has refused to comment further on the issue, claiming he has said all he knows about the contract when he testified before the Senate in September last year.
Neri repeatedly shot down calls for him to disclose the details of his conversations with Mrs. Arroyo on the matter by invoking executive privilege.
“You could see the litany of errors on the part of the President, apparently she was not able to crack the whip on her people,” Gordon said.
The Senate committee explained the First Gentleman should be charged with violations of Section 4 (a) and 5 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, particularly against private individuals involved in “business, transaction, application, request or contract with the government.”
Gordon said the Arroyos, along with then Speaker Jose de Venecia Jr., went to Shenzhen in China, even played golf and had lunch with ZTE officials on Nov. 2, 2006.
It was during that visit when the scandal broke out that the NBN deal was being rigged to favor several government officials, he said.
Gordon stressed the President should explain her meeting with ZTE officials.
In March 2007, De Venecia’s son Joey broke open the anomaly when he implicated Mr. Arroyo for allegedly trying to bully him from pursuing the NBN contract in favor of ZTE.
The younger De Venecia testified that Mr. Arroyo pointed a finger at him while telling him to “back off” from pursuing the NBN project.
De Venecia went on to testify that Abalos was acting as the broker of the NBN contract and was fronting for Mr. Arroyo.
Gordon explained the younger De Venecia should be charged with the same violation of Section 5 of RA 3019, just like the First Gentleman as private individuals.
He said the elder De Venecia should be charged for violation of Section 7 (d) of the Code of Conduct and Ethical Standards for Public Officials for meddling in the deal.
The committee said Abalos should be charged with violation Section 3 (a) of RA 3019 for “persuading, inducing or influencing another public officer to perform an act and (h) for directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity.”
Lozada and Neri, on the other hand, should also be charged for the same violations, the committee said.
The Senate committee added Abalos should also be charged with violation of Article 212 of the Revised Penal Code for corruption of public officials.
Lozada will also have to face a case for alleged violation of the Civil Service Law for taking part in the negotiations when he was chief of the Philippine Forest Corp., an agency connected with the Department of Environment and Natural Resources.
Lozada was also the former consultant of the NBN contract that eventually went in favor of ZTE.
Lozada echoed the testimonies of De Venecia III in implicating the First Gentleman and Abalos in the Senate inquiry over the deal.
Mendoza, Soneja and Formoso, on the other hand, were also recommended by the committee to be charged with violation Section 3 (a) of RA 3019 for “directly and indirectly having financing or pecuniary interest in any business, contract, or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.” - With Paolo Romero
Senate says Arroyo must be impeached
Recommends raps vs 11 others in NBN-ZTE deal
By Michael Lim Ubac
Philippine Daily Inquirer
First Posted 00:30:00 11/11/2009
MANILA, Philippines—President Gloria Macapagal-Arroyo is “answerable” for the “stinking” $329-million National Broadband Network (NBN) deal with China’s ZTE Corp., according to a report by a Senate investigating panel led by the blue ribbon committee.
In the report that was made public Tuesday at a press conference by blue ribbon chair Sen. Richard Gordon, the joint committee sought the impeachment of Ms Arroyo and the prosecution by the Ombudsman of 11 others, including her husband Jose Miguel “Mike” Arroyo, for allegedly conspiring to defraud the government in exchange for “kickbacks” from the since scrapped contract.
Asked what impeachable offense Ms Arroyo had committed, Gordon said she had violated her oath of office which was a “culpable violation of the Constitution.”
He cited Section 5 of Article 7, which provides that the President must “preserve and defend the Constitution, execute its laws, do justice to every man.”
She should have “control” of all executive departments.
“Her acts in this case reveal that her performance of presidential duty has been wanting. Unfortunately, you can see the litany of errors of the President. Apparently, she wasn’t able to crack the whip on her people,” said the senator.
Gordon said Congress could still impeach Ms Arroyo to strip her of immunity from suit as President.
“She has to explain and answer at the proper time,” he said, pointing out that Ms Arroyo could be held accountable even “after her term.”
Very glaring
Gordon told reporters that Ms Arroyo was liable because she did not stop the signing of the contract even after she had been informed of a bribe offer by Romulo Neri, at the time Ms Arroyo’s socioeconomic secretary.
Gordon said: “She did not stop all these people from continuing on with their nefarious activities. Neri had already informed her [of the bribery attempt], she should have ordered an investigation immediately. She should have called all those involved. The President did not do anything. That is very glaring—there was no action taken by the President on all these.”
Apart from the First Couple, the joint committee sought the prosecution for graft and other forms of corruption of the following:
Former National Economic and Development Authority (NEDA) Chair Neri, former Commission on Elections Chair Benjamin Abalos, Pangasinan Rep. and former Speaker Jose de Venecia Jr. and his son, businessman Jose de Venecia III, Transportation Secretary Leandro Mendoza, Deputy Executive Secretary Manuel Gaite, Assistant Secretaries Elmer Soneja and Lorenzo Formoso III, former Philippine Forest Corp. president Rodolfo Lozada Jr., and Environment Secretary Lito Atienza.
So far, Senators Gordon, Joker Arroyo, Aquilino Pimentel Jr., Gregorio Honasan and Edgardo Angara have signed the 127-page report (not counting the attachments).
Arroyo did something
Asked to comment, Press Secretary Cerge Remonde said: “It is not true that the President did not act on the report of the then NEDA secretary that there was an attempt to bribe him.
“The President ordered Interior Secretary Ronaldo Puno to investigate through the Philippine National Police.
“Puno said the PNP promptly conducted an investigation. However, he said, the result was inconclusive at the time. Puno reported to the President that there was no basis to file charges against anyone at that time.”
Reached by phone, Neri said: “I just heard about it, but I don’t know the details so I don’t know how to react.”
Said Abalos: “We’ve been charged already. Ano pa gusto nila (What else do they want)? A lot of people have already filed cases against us.”
The Department of Transportation and Communications declined comment pending receipt of a copy of the report.
Proper use of oversight
The blue ribbon committee led the Senate inquiry. The committees on trade and commerce and on national defense and security were the other members of the joint investigating panel.
Akbayan party-list Rep. Risa Hontiveros, who was among the people who had filed a case against those involved in the deal, said the joint Senate committee showed the proper use of congressional oversight.
Hontiveros agreed that Ms Arroyo had a lot of explaining to do. “[The report] further belies the findings of the Office of the Ombudsman [which cleared the President and her husband of liability],” she said.
“The Ombudsman was too quick on the draw,” said Gordon.
Ombudsman wrong
Said Gordon: “The Ombudsman is wrong in merely dismissing the case against the President on the mere pretext of presidential immunity from suit. The Ombudsman must make a finding and forward it to the House of Representatives.”
He said it was not for the Office of the Ombudsman to clear the President of liability.
He cited Section 22 of Republic Act No. 6770 (Ombudsman Act of 1989), which provides that the Office of the Ombudsman “shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment.”
Gordon said Ombudsman Merceditas Gutierrez should have looked into the scandal and issued findings for transmittal to the House “if an impeachment would have been warranted, rather than a blanket statement of exculpation because of supposed immunity.”
Neither was it for the Ombudsman to say that there was no more impeachment process to be had because of the one-year ban on the filing of impeachment complaints, he said.
The NBN project sought to link national agencies with local government units through a high-capacity telecommunications network.
The President canceled the NBN-ZTE contract in October 2007 amid charges that her husband was involved in the deal that was denounced as overpriced and disadvantageous to the country.
Battle of elite
Gordon described the NBN-ZTE scandal, which rocked the administration in 2007, “as a never-ending battle among the political elite for economic power, domination and control.”
“In the middle of it all is a President who was unable to control and discipline her own men as they fought over kickbacks. She kept her silence in the midst of the corruption—acquiescing and condoning the deed,” he said.
Gordon said the joint committee found that “the facts pointing to her (Ms Arroyo) may not be total, but the stink is perceived to have reached her office.”
Part of the executive summary read:
“This is a story of how people in high places—the relatives of the most powerful men and women in government—took advantage of their relationships, either with their parent or spouse, to cajole the executive into entering into a national broadband contract that would obtain something our country did not need, and which was manifestly disadvantageous to the Filipino people.”
The joint committee described the scandal as a “war of the most powerful, most influential and most organized syndicates in government, some members of which are public officers, who were at each other’s throats because of an alleged double cross.”
Almost a year
It took Gordon almost a year after assuming the chairmanship of the Senate blue ribbon committee to make public the outcome of the lengthy investigation of the NBN-ZTE scandal.
The inquiry was first undertaken by Gordon’s predecessor, Sen. Alan Peter Cayetano, who was removed as blue ribbon chair following the ouster of Senate President Manuel Villar in November 2008.
Upon the prodding of Senators Cayetano and Pimentel, Gordon conducted a final hearing on Sept. 1, ostensibly to fill in “information gaps” in the draft report prepared by the committee secretariat.
Originally, the NBN project was conceived by Malacañang to be implemented through a build-operate-transfer (BOT) scheme wherein the cost would be fully shouldered by the private proponent.
Subsequently, the Palace junked the BOT option in favor of a scheme that required the government to secure a loan from the Export-Import Bank of China to finance the project.
The Philippine government later awarded the project to ZTE Corp.
During the Senate’s public hearings, witnesses testified on the purported overpricing and other terms and conditions of the contract that were disadvantageous to the government.
They claimed that bribe money went to the pockets of certain public officials to ensure approval of the project.
Among the key witnesses who testified at the inquiry were Neri, Lozada and Dante Madriaga, who served as a consultant to a business group that brokered and designed the project proposal.
In aid of reelection?
Asked to comment, Nueva Ecija Rep. Eduardo Nonato Joson said that even if one assumed that the Senate report was issued “in aid of reelection,” it also laid down grounds to prosecute the First Couple.
“Of course, the case, if any, will depend on the next president even if the Ombudsman will not be impeached,” he said.
Joson also aired the suspicion that the Ombudsman’s earlier findings might have been issued to preempt the Senate report.
Bayan Muna party-list Rep. Satur Ocampo said the report showed that Ms Arroyo should have been charged if only she did not enjoy immunity at present.
Ocampo’s colleague in Bayan Muna, Rep. Teodoro Casiño, said that while he had yet to read the report, the joint committee appeared to have done a good job.
He added: “We hope the report can be used as additional material to revise the Ombudsman’s findings.”
With reports from Christian V. Esguerra, Leila B. Salaverria, Ronnel Domingo and Kristine Alave
Once again the Philippine Senate has confirmed what the hopeless and desperate Filipino public have known and grown numb to since time immemorial in modern Philippine neo-colonial history.
Read the items below from the Philippine Star’s and the Philippine Daily Inquirer's issues today.
One scandal involves more than 60, 000 billion pesos (road taxes); the other, more than 329 million US dollars (telecomm deal with China) -- enough to feed millions of malnourished Filipino children for a long, long time and enough to build tens of thousands of low-cost houses for the homeless and jobless urban poor Filipinos.
Please note that the Senate blue ribbon committee report on the corrupt Chinese telecomm deal in fact strongly recommended that an impeachments investigation be commenced against Pres. Arroyo by the Office of the Ombudsman, whose occupant, by the way, is her former presidential legal counsel and a very close classmate of her husband in law school.
The impeachment investigation will surely suffer the Mona Liza syndrome at the untrustworthy doorsteps of the Ombudsman: ...And they lie there, and they die there...
Opinion
EDITORIAL - 'Apocalyptic corruption'
The Philippine Star)
Updated November 11, 2009 12:00 AM
From 2001 to 2009, the government collected a total of P60.5 billion, paid by motorists as road users’ tax in the registration of vehicles. Under the law that created the tax, the money, administered by the Road Board, is supposed to be used exclusively for road maintenance and improvement of road drainage, the installation of traffic lights and road safety devices, and for air pollution control.
As the colossal flooding during storm “Ondoy” and typhoon “Pepeng” showed, the improvement of road drainage has been a joke. And driving around Metro Manila will quickly illustrate the lackadaisical enforcement of laws regulating vehicular emissions.
How was the P60.5 billion spent? The Commission on Audit reported that P332.64 million of the road tax, earmarked for the OYSTER or Out-of-School Youth Serving Towards Economic Recovery program, was transferred to the Philippine National Police. Why? Sen. Miriam Defensor-Santiago wants to know, and so does the public.
Santiago, who spearheaded a Senate probe into the use of the road tax, noted that the PNP is under the Department of the Interior and Local Government, whose head Ronaldo Puno happens to be the brother of former Road Board executive director Rodolfo Puno. Santiago also noted that in 2007, an election year, there was an “unusually large amount of allotments obligated” involving the road tax. She said the case involved “apocalyptic corruption.”
The apparent fund juggling could have been facilitated by the fact that the tax is not remitted by the collecting agency, the Land Transportation Office, to the National Treasury but deposited in special accounts under the supervision of the Road Board, whose ex officio chair is the secretary of public works and highways. On Monday night the Senate unanimously approved the filing of plunder and graft cases against Rodolfo Puno, Danilo Valero of the board and Hermogenes Ebdane Jr., who recently resigned from the public works department.
Beyond pursuing the prosecution of anyone who might have misused the multibillion-peso fund, lawmakers should also consider changing the system of handling the tax, in a way that would promote transparency and prevent its misuse. Such oversight mechanisms are needed as the tax continues to be collected and the temptation to misuse the funds increases as the 2010 elections approach.
Senate panel tags GMA, First Gentleman in ZTE case
By Aurea Calica
(The Philippine Star)
Updated November 11, 2009 12:00 AM
MANILA, Philippines - The Senate Blue Ribbon committee has recommended the filing of graft charges against First Gentleman Jose Miguel “Mike” Arroyo and other personalities involved in the anomalous $329-million national broadband network (NBN) contract with China’s ZTE Corp.
In the same report, the committee recommended the further investigation of President Arroyo for her role in the approval of the controversial contract.
The committee, led by Sen. Richard Gordon, also sought the filing of charges against businessman Jose “Joey” de Venecia III and former government consultant Rodolfo Lozada Jr., the two whistle-blowers of the case.
The committee also recommended the filing of graft charges against former socio-economic planning secretary Romulo Neri, former elections chief Benjamin Abalos and Transportation and Communications Secretary Leandro Mendoza, as well as Assistant Secretaries Elmer Soneja and Lorenzo Formoso.
Gordon said the committee also found substantial evidence to warrant the filing of charges against Deputy Executive Secretary Manuel Gaite and Environment and Natural Resources Secretary Lito Atienza for their alleged attempt to prevent Lozada from testifying at the Senate.
Gordon said Gaite and Atienza could be charged with violation of Article 150 of the Revised Penal Code.
The First Gentleman, through his lawyer Ruy Rondain, said they have yet to receive a copy of the Senate report.
“I haven’t seen the report but I would like to point out that there was a case filed by several individuals several months ago before the Office of the Ombudsman and the Ombudsman a few months ago came out with a resolution saying there is no evidence linking the First Gentleman (to the) case,” Rondain told The STAR.
Rondain said the Ombudsman, after reviewing evidence including the entire Senate transcript of the hearings, “found no evidence versus Atty. Arroyo beyond speculations and conjectures.”
Rondain brushed aside the legal implications of the Senate report against Mr. Arroyo, saying it was only recommendatory.
Rondain declared there is “no remedy” for any party to file a suit against Mr. Arroyo following the Senate report, since only the Ombudsman is authorized to handle such cases.
“We will let the process take its course,” he said.
Rondain said the complainants must allow the Ombudsman to wrap up its investigations before resorting to any other legal remedy.
While he is not the lawyer of President Arroyo, Rondain expressed the same opinion that there is no evidence that could pin her down.
The President’s lawyer, Romulo Macalintal, could not be reached for comment.
The Blue Ribbon has yet to release the full 127-page committee report signed by Gordon, with Senate Minority Leader Aquilino Pimentel Jr., Senators Joker Arroyo and
Edgardo Angara as principal sponsors.
Out of the 17 members of the committee, nine senators have yet to sign the report in order to approve the committee report.
The on-and-off investigation began in September 2007 and was concluded last September after 13 days of grueling hearings, four technical working groups and 41 witnesses.
‘Lots to answer for’
The committee report said the Office of the Ombudsman should take the initiative of investigating the President over her role in the ZTE deal.
“The President has lots to answer for. The (Office of the Ombudsman) is wrong in merely dismissing the case against the President on the mere pretext of presidential immunity from suit. The Ombudsman must make a finding and forward it to the House of Representatives,” the report said.
The committee noted Mrs. Arroyo enjoys immunity from suit and can only be charged after her term ends on June 30, 2010.
Nonetheless, the committee said the Ombudsman has the constitutional duty to investigate impeachable officers, including the President.
“What the (Ombudsman) should have done was to investigate and make findings to transmit to the House, if an impeachment would have been warranted, rather than a blanket statement of exculpation because of supposed immunity,” the report read.
Press Secretary Cerge Remonde said President Arroyo did what she had to do after the anomaly came out in the open.
“It is not true that the President did not act on the report of (Neri) that there was an attempt to bribe him. The President ordered Interior Secretary Ronaldo Puno to investigate through the PNP (Philippine National Police),” Remonde said.
Remonde added Puno ordered the PNP to conduct the probe but the result was still inconclusive.
“Puno reported to the President that there was no basis to file charges against anyone at that time,” Remonde said.
Gordon, however, said the findings of the committee revealed the President did not act accordingly even after she was informed by Neri of the bribery attempt by Abalos.
After confirming the bribery attempt, Neri has refused to comment further on the issue, claiming he has said all he knows about the contract when he testified before the Senate in September last year.
Neri repeatedly shot down calls for him to disclose the details of his conversations with Mrs. Arroyo on the matter by invoking executive privilege.
“You could see the litany of errors on the part of the President, apparently she was not able to crack the whip on her people,” Gordon said.
The Senate committee explained the First Gentleman should be charged with violations of Section 4 (a) and 5 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, particularly against private individuals involved in “business, transaction, application, request or contract with the government.”
Gordon said the Arroyos, along with then Speaker Jose de Venecia Jr., went to Shenzhen in China, even played golf and had lunch with ZTE officials on Nov. 2, 2006.
It was during that visit when the scandal broke out that the NBN deal was being rigged to favor several government officials, he said.
Gordon stressed the President should explain her meeting with ZTE officials.
In March 2007, De Venecia’s son Joey broke open the anomaly when he implicated Mr. Arroyo for allegedly trying to bully him from pursuing the NBN contract in favor of ZTE.
The younger De Venecia testified that Mr. Arroyo pointed a finger at him while telling him to “back off” from pursuing the NBN project.
De Venecia went on to testify that Abalos was acting as the broker of the NBN contract and was fronting for Mr. Arroyo.
Gordon explained the younger De Venecia should be charged with the same violation of Section 5 of RA 3019, just like the First Gentleman as private individuals.
He said the elder De Venecia should be charged for violation of Section 7 (d) of the Code of Conduct and Ethical Standards for Public Officials for meddling in the deal.
The committee said Abalos should be charged with violation Section 3 (a) of RA 3019 for “persuading, inducing or influencing another public officer to perform an act and (h) for directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity.”
Lozada and Neri, on the other hand, should also be charged for the same violations, the committee said.
The Senate committee added Abalos should also be charged with violation of Article 212 of the Revised Penal Code for corruption of public officials.
Lozada will also have to face a case for alleged violation of the Civil Service Law for taking part in the negotiations when he was chief of the Philippine Forest Corp., an agency connected with the Department of Environment and Natural Resources.
Lozada was also the former consultant of the NBN contract that eventually went in favor of ZTE.
Lozada echoed the testimonies of De Venecia III in implicating the First Gentleman and Abalos in the Senate inquiry over the deal.
Mendoza, Soneja and Formoso, on the other hand, were also recommended by the committee to be charged with violation Section 3 (a) of RA 3019 for “directly and indirectly having financing or pecuniary interest in any business, contract, or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.” - With Paolo Romero
Senate says Arroyo must be impeached
Recommends raps vs 11 others in NBN-ZTE deal
By Michael Lim Ubac
Philippine Daily Inquirer
First Posted 00:30:00 11/11/2009
MANILA, Philippines—President Gloria Macapagal-Arroyo is “answerable” for the “stinking” $329-million National Broadband Network (NBN) deal with China’s ZTE Corp., according to a report by a Senate investigating panel led by the blue ribbon committee.
In the report that was made public Tuesday at a press conference by blue ribbon chair Sen. Richard Gordon, the joint committee sought the impeachment of Ms Arroyo and the prosecution by the Ombudsman of 11 others, including her husband Jose Miguel “Mike” Arroyo, for allegedly conspiring to defraud the government in exchange for “kickbacks” from the since scrapped contract.
Asked what impeachable offense Ms Arroyo had committed, Gordon said she had violated her oath of office which was a “culpable violation of the Constitution.”
He cited Section 5 of Article 7, which provides that the President must “preserve and defend the Constitution, execute its laws, do justice to every man.”
She should have “control” of all executive departments.
“Her acts in this case reveal that her performance of presidential duty has been wanting. Unfortunately, you can see the litany of errors of the President. Apparently, she wasn’t able to crack the whip on her people,” said the senator.
Gordon said Congress could still impeach Ms Arroyo to strip her of immunity from suit as President.
“She has to explain and answer at the proper time,” he said, pointing out that Ms Arroyo could be held accountable even “after her term.”
Very glaring
Gordon told reporters that Ms Arroyo was liable because she did not stop the signing of the contract even after she had been informed of a bribe offer by Romulo Neri, at the time Ms Arroyo’s socioeconomic secretary.
Gordon said: “She did not stop all these people from continuing on with their nefarious activities. Neri had already informed her [of the bribery attempt], she should have ordered an investigation immediately. She should have called all those involved. The President did not do anything. That is very glaring—there was no action taken by the President on all these.”
Apart from the First Couple, the joint committee sought the prosecution for graft and other forms of corruption of the following:
Former National Economic and Development Authority (NEDA) Chair Neri, former Commission on Elections Chair Benjamin Abalos, Pangasinan Rep. and former Speaker Jose de Venecia Jr. and his son, businessman Jose de Venecia III, Transportation Secretary Leandro Mendoza, Deputy Executive Secretary Manuel Gaite, Assistant Secretaries Elmer Soneja and Lorenzo Formoso III, former Philippine Forest Corp. president Rodolfo Lozada Jr., and Environment Secretary Lito Atienza.
So far, Senators Gordon, Joker Arroyo, Aquilino Pimentel Jr., Gregorio Honasan and Edgardo Angara have signed the 127-page report (not counting the attachments).
Arroyo did something
Asked to comment, Press Secretary Cerge Remonde said: “It is not true that the President did not act on the report of the then NEDA secretary that there was an attempt to bribe him.
“The President ordered Interior Secretary Ronaldo Puno to investigate through the Philippine National Police.
“Puno said the PNP promptly conducted an investigation. However, he said, the result was inconclusive at the time. Puno reported to the President that there was no basis to file charges against anyone at that time.”
Reached by phone, Neri said: “I just heard about it, but I don’t know the details so I don’t know how to react.”
Said Abalos: “We’ve been charged already. Ano pa gusto nila (What else do they want)? A lot of people have already filed cases against us.”
The Department of Transportation and Communications declined comment pending receipt of a copy of the report.
Proper use of oversight
The blue ribbon committee led the Senate inquiry. The committees on trade and commerce and on national defense and security were the other members of the joint investigating panel.
Akbayan party-list Rep. Risa Hontiveros, who was among the people who had filed a case against those involved in the deal, said the joint Senate committee showed the proper use of congressional oversight.
Hontiveros agreed that Ms Arroyo had a lot of explaining to do. “[The report] further belies the findings of the Office of the Ombudsman [which cleared the President and her husband of liability],” she said.
“The Ombudsman was too quick on the draw,” said Gordon.
Ombudsman wrong
Said Gordon: “The Ombudsman is wrong in merely dismissing the case against the President on the mere pretext of presidential immunity from suit. The Ombudsman must make a finding and forward it to the House of Representatives.”
He said it was not for the Office of the Ombudsman to clear the President of liability.
He cited Section 22 of Republic Act No. 6770 (Ombudsman Act of 1989), which provides that the Office of the Ombudsman “shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment.”
Gordon said Ombudsman Merceditas Gutierrez should have looked into the scandal and issued findings for transmittal to the House “if an impeachment would have been warranted, rather than a blanket statement of exculpation because of supposed immunity.”
Neither was it for the Ombudsman to say that there was no more impeachment process to be had because of the one-year ban on the filing of impeachment complaints, he said.
The NBN project sought to link national agencies with local government units through a high-capacity telecommunications network.
The President canceled the NBN-ZTE contract in October 2007 amid charges that her husband was involved in the deal that was denounced as overpriced and disadvantageous to the country.
Battle of elite
Gordon described the NBN-ZTE scandal, which rocked the administration in 2007, “as a never-ending battle among the political elite for economic power, domination and control.”
“In the middle of it all is a President who was unable to control and discipline her own men as they fought over kickbacks. She kept her silence in the midst of the corruption—acquiescing and condoning the deed,” he said.
Gordon said the joint committee found that “the facts pointing to her (Ms Arroyo) may not be total, but the stink is perceived to have reached her office.”
Part of the executive summary read:
“This is a story of how people in high places—the relatives of the most powerful men and women in government—took advantage of their relationships, either with their parent or spouse, to cajole the executive into entering into a national broadband contract that would obtain something our country did not need, and which was manifestly disadvantageous to the Filipino people.”
The joint committee described the scandal as a “war of the most powerful, most influential and most organized syndicates in government, some members of which are public officers, who were at each other’s throats because of an alleged double cross.”
Almost a year
It took Gordon almost a year after assuming the chairmanship of the Senate blue ribbon committee to make public the outcome of the lengthy investigation of the NBN-ZTE scandal.
The inquiry was first undertaken by Gordon’s predecessor, Sen. Alan Peter Cayetano, who was removed as blue ribbon chair following the ouster of Senate President Manuel Villar in November 2008.
Upon the prodding of Senators Cayetano and Pimentel, Gordon conducted a final hearing on Sept. 1, ostensibly to fill in “information gaps” in the draft report prepared by the committee secretariat.
Originally, the NBN project was conceived by Malacañang to be implemented through a build-operate-transfer (BOT) scheme wherein the cost would be fully shouldered by the private proponent.
Subsequently, the Palace junked the BOT option in favor of a scheme that required the government to secure a loan from the Export-Import Bank of China to finance the project.
The Philippine government later awarded the project to ZTE Corp.
During the Senate’s public hearings, witnesses testified on the purported overpricing and other terms and conditions of the contract that were disadvantageous to the government.
They claimed that bribe money went to the pockets of certain public officials to ensure approval of the project.
Among the key witnesses who testified at the inquiry were Neri, Lozada and Dante Madriaga, who served as a consultant to a business group that brokered and designed the project proposal.
In aid of reelection?
Asked to comment, Nueva Ecija Rep. Eduardo Nonato Joson said that even if one assumed that the Senate report was issued “in aid of reelection,” it also laid down grounds to prosecute the First Couple.
“Of course, the case, if any, will depend on the next president even if the Ombudsman will not be impeached,” he said.
Joson also aired the suspicion that the Ombudsman’s earlier findings might have been issued to preempt the Senate report.
Bayan Muna party-list Rep. Satur Ocampo said the report showed that Ms Arroyo should have been charged if only she did not enjoy immunity at present.
Ocampo’s colleague in Bayan Muna, Rep. Teodoro Casiño, said that while he had yet to read the report, the joint committee appeared to have done a good job.
He added: “We hope the report can be used as additional material to revise the Ombudsman’s findings.”
With reports from Christian V. Esguerra, Leila B. Salaverria, Ronnel Domingo and Kristine Alave
Tuesday, November 10, 2009
Rendition: Thank you, Italy.
Italy will forever be remembered in the annals of public international law as the first and only country so far which has convicted American intelligence agents for the previously institutionalized American policy and practice of forcible abduction of profiled Islamic personalities and their subsequent violent renditions to foreign countries where American spy bases operate for purposes of applying torture-based interrogation tactics on such helpless human rights victims.
I honor Italy as a nation for such a great feat, or better yet and more particularly, I honor the nameless Italian prosecutors and the humble Italian trial judge who braved the indifference and political obstacles posed by the Italian prime minister Silvio Berlusconi in the course of the trial of the aforecited criminal case. Their over-staying prime minister is better known as the billionaire American puppet in Rome whose main focus in life as an elective political leader seems to be to maintain amorous relations with very young Italian girls and not to defend the rule of law in Italy and in the whole world, for that matter, afraid that he might irritate his American masters.
Rendition was all a part of ex-US Pres. G. W. Bush’s dreaded and much-condemned 8-year war on terror, which (hopefully) his successor and recent Nobel Peace Prize winner US Pres. Barack Obama would seriously investigate and forever stop if the latter intends to sincerely live up to the spirit and substance of his latest international peace award and if the USA and the American people, the so-called global beacon and world leader of freedom and democracy, truly hope to do justice to the principles behind the blood-stained declaration of independence proclaimed by their great founding fathers more than 200 years ago.
The next Nobel Peace Prize award should go to the nameless, courageous, unassuming and hardworking Italian prosecutors and trial judge who handled the trial on the merits of the aforementioned criminal case.
Read a recent news item below which appeared in The Independent, London, on the above-mentioned rendition case.
CIA agents sentenced in Italy rendition case
First legal blow to Bush policy of seizing suspects from Europe's streets.
By David Usborne
Thursday, 5 November 2009
In a stiff rebuke from across the Atlantic to the policies of former US president George Bush, a judge in Milan yesterday sentenced 23 American citizens to up to eight years in prison for their part in the secret abduction of a Muslim cleric in 2003 and his rendition for questioning in Egypt, where he was imprisoned and tortured.
All but one of the 23 US citizens were identified by prosecutors in the three-year trial as members or former members of the Central Intelligence Agency (CIA). It was the first such trial of US citizens in a foreign nation related to the now widely discredited secret rendition activities by the CIA, part of Mr Bush's so-called "War on Terror".
While handing down the landmark convictions against the 23 defendants – all tried in absentia – Judge Oscar Magi dropped cases against three other Americans, including a former CIA Rome station chief. He also acquitted the former head of Italy's military intelligence, Nicolo Pollari, and his deputy, citing issues of diplomatic immunity and inadmissibility of evidence protected by secrecy laws.
The harshest sentence, of eight years, was handed down to Robert Lady, the former Milan station chief for the CIA, who allegedly was at the heart of the operation that led to the seizing of Egyptian-born Hassan Mustafa Osama Nasr, known as Abu Omar, in broad daylight. The court was told he was transferred first to Germany and later to Egypt for interrogation where he remained behind bars until 2007 without legal representation.
As the world was to learn later, the fate of the cleric was hardly an isolated case. In multiple instances, some of which have since come to light, citizens were seized and secretly flown to foreign countries where the human-rights laws allowed for harsher means of interrogation, including torture.
On taking office President Barack Obama moved to outlaw all forms of torture by the US military or its intelligence agencies. He also ordered the immediate closing down of the so-called "black sites" in foreign countries to which some terror suspects had been shipped for harsh interrogation, and authorised an investigation into claims that laws were broken by the CIA in pursuit of terror-related intelligence.
Those convicted yesterday were ordered to pay €1m to the cleric, who remains in Egypt, and €500,000 to his wife as restitution for suffering. Two former Italian intelligent agents were also found guilty in the case and were each given three-year prison terms.
The rulings were welcomed by human-rights activists. They send "a strong signal of the crimes committed by the CIA in Europe," said Joanne Mariner of Human Rights Watch. The government of Silvio Berlusconi in Rome refused to assist prosecutors in the case, however, notably by declining to seek the extradition of those accused for fear of damaging US-Italian relations. Because of Rome's reticence and the labyrinth of appeals possibilities that now open up, it seems unlikely the individuals will ever actually go to prison.
The CIA was tight-lipped about the sentences, CIA spokesman George Little noting that the "CIA has not commented on any of the allegations surrounding Abu Omar".
See:
http://www.independent.co.uk/news/world/europe/cia-agents-sentenced-in-italy-rendition-case-1814799.html
I honor Italy as a nation for such a great feat, or better yet and more particularly, I honor the nameless Italian prosecutors and the humble Italian trial judge who braved the indifference and political obstacles posed by the Italian prime minister Silvio Berlusconi in the course of the trial of the aforecited criminal case. Their over-staying prime minister is better known as the billionaire American puppet in Rome whose main focus in life as an elective political leader seems to be to maintain amorous relations with very young Italian girls and not to defend the rule of law in Italy and in the whole world, for that matter, afraid that he might irritate his American masters.
Rendition was all a part of ex-US Pres. G. W. Bush’s dreaded and much-condemned 8-year war on terror, which (hopefully) his successor and recent Nobel Peace Prize winner US Pres. Barack Obama would seriously investigate and forever stop if the latter intends to sincerely live up to the spirit and substance of his latest international peace award and if the USA and the American people, the so-called global beacon and world leader of freedom and democracy, truly hope to do justice to the principles behind the blood-stained declaration of independence proclaimed by their great founding fathers more than 200 years ago.
The next Nobel Peace Prize award should go to the nameless, courageous, unassuming and hardworking Italian prosecutors and trial judge who handled the trial on the merits of the aforementioned criminal case.
Read a recent news item below which appeared in The Independent, London, on the above-mentioned rendition case.
CIA agents sentenced in Italy rendition case
First legal blow to Bush policy of seizing suspects from Europe's streets.
By David Usborne
Thursday, 5 November 2009
In a stiff rebuke from across the Atlantic to the policies of former US president George Bush, a judge in Milan yesterday sentenced 23 American citizens to up to eight years in prison for their part in the secret abduction of a Muslim cleric in 2003 and his rendition for questioning in Egypt, where he was imprisoned and tortured.
All but one of the 23 US citizens were identified by prosecutors in the three-year trial as members or former members of the Central Intelligence Agency (CIA). It was the first such trial of US citizens in a foreign nation related to the now widely discredited secret rendition activities by the CIA, part of Mr Bush's so-called "War on Terror".
While handing down the landmark convictions against the 23 defendants – all tried in absentia – Judge Oscar Magi dropped cases against three other Americans, including a former CIA Rome station chief. He also acquitted the former head of Italy's military intelligence, Nicolo Pollari, and his deputy, citing issues of diplomatic immunity and inadmissibility of evidence protected by secrecy laws.
The harshest sentence, of eight years, was handed down to Robert Lady, the former Milan station chief for the CIA, who allegedly was at the heart of the operation that led to the seizing of Egyptian-born Hassan Mustafa Osama Nasr, known as Abu Omar, in broad daylight. The court was told he was transferred first to Germany and later to Egypt for interrogation where he remained behind bars until 2007 without legal representation.
As the world was to learn later, the fate of the cleric was hardly an isolated case. In multiple instances, some of which have since come to light, citizens were seized and secretly flown to foreign countries where the human-rights laws allowed for harsher means of interrogation, including torture.
On taking office President Barack Obama moved to outlaw all forms of torture by the US military or its intelligence agencies. He also ordered the immediate closing down of the so-called "black sites" in foreign countries to which some terror suspects had been shipped for harsh interrogation, and authorised an investigation into claims that laws were broken by the CIA in pursuit of terror-related intelligence.
Those convicted yesterday were ordered to pay €1m to the cleric, who remains in Egypt, and €500,000 to his wife as restitution for suffering. Two former Italian intelligent agents were also found guilty in the case and were each given three-year prison terms.
The rulings were welcomed by human-rights activists. They send "a strong signal of the crimes committed by the CIA in Europe," said Joanne Mariner of Human Rights Watch. The government of Silvio Berlusconi in Rome refused to assist prosecutors in the case, however, notably by declining to seek the extradition of those accused for fear of damaging US-Italian relations. Because of Rome's reticence and the labyrinth of appeals possibilities that now open up, it seems unlikely the individuals will ever actually go to prison.
The CIA was tight-lipped about the sentences, CIA spokesman George Little noting that the "CIA has not commented on any of the allegations surrounding Abu Omar".
See:
http://www.independent.co.uk/news/world/europe/cia-agents-sentenced-in-italy-rendition-case-1814799.html
Monday, November 9, 2009
Helpless
A basic weakness of the implementing mechanisms of almost all international conventions on human rights, humanitarian law, women, children, tortures, extrajudicial killings, and enforced disappearances is that the role of the international bodies which are supposed to implement them is limited to pure inquiry and reporting.
They are helpless in the face of the chronic indifference and inaction of the guilty state actors.
In grave and urgent cases, though, the UN Security Council may intervene, using UN-accredited military forces formed for such special situations as provided by the UN Charter.
But such instances of UN interventions seem to be rare, e.g. Rwanda, Bosnia/Kosovo, Cambodia -- and only if the US and the European Union push them, which is usually too late and too little.
In most cases, the insidious daily human rights abuses all over the world escape the eyes and ears of the UN Security Council or are better left forgotten by the five permanent members of the UN Security Council if and when so dictated by the imperatives of their national interests.
In many instances even the well-publicized resolutions and sanctions imposed by the UN Security Council are left unheeded by the recalcitrant state actors, as in the cases of Israel, Palestine, North Korea, Iran, and Sudan.
In the case of the very poor state of human rights in the Philippines under the 8-year old de facto military regime of the illegitimate Philippine President Gloria Arroyo, a number of damaging reports have been globally circulated by independent human rights reporters assigned by the concerned UN bodies.
Their reports on the Philippine human rights situations have died in the archives of the Office of the President of the Philippines -- unheeded, unacted upon, derided, and ignored to the delight of military and police intelligence operators and their assets who seem to exist outside the control of the Philippine governmental hierarchy.
At any rate, for whatever informative purposes it may serve, I wish to share below a recent article on the convention on the elimination of discrimination against women (CEDAW) which appeared last week in the Sunday magazine of the Philippine Daily Inquirer involving the rape case of a prominent businesswoman in Mindanao Island.
FEATURE
Crying Rape for the Third Time
By Clarissa V. Militante, Lalaine Padilla
Philippine Daily Inquirer
First Posted 11:37:00 11/07/2009
Karen Vertido suffered a second rape in court when she recounted her 1996 ordeal. This time around, she’s bracing herself to recount her rape anew by filing a communication with a United Nations body that seeks changes in the country’s justice system.
ONE night of terror was the rape one woman suffered in 1996. The trial was an eight-year ordeal she had to endure when she decided file a case, feeling violated all over again, only to be denied justice with the acquittal of her alleged rapist.
Now Karen Vertido has dared yet again to seek justice, and is willing to give “an account of her rape and victimization” anew “by her own government,” she says. This time around, Karen hopes to get justice through a communication she has filed under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (OP-CEDAW). The Philippines became a signatory to this UN treaty on July 17, 1980, and ratified it on July 19, 1981.
A communication is an instrument through which individuals or groups may petition the CEDAW Committee to act on certain cases, with the primary condition that all national remedies have been exhausted. The other instrument provided for in the protocol is the inquiry procedure, which may be used for cases of serious or systematic violation of women’s rights and/or discrimination against women by a State Party or any of its apparatus or agency.
The Karen Vertido communication is the first rape case filed under OP-CEDAW in November 2007. The communication to the CEDAW Committee seeks personal remedies for Vertido, as well as far reaching changes in Philippine laws, in the justice system and in the realm of social-political culture.
In her communication that Vertido prepared with lead counsel Evalyn Ursua, she asserts: “I hold this state, the Philippines, accountable for rape… happening within its boundaries. I hold my state accountable for a judge who at best is ignorant about laws and the realities of women, and who may be corrupt at worst. I call on my state not to put such people to become judges, but only people who are truly capable of trying women’s cases. I claim every inalienable right and every right this country promised to me as its citizen, from protection of my body, my livelihood, to protection of my honor. I claim restitution for having been violated first by one depraved man, and then later by a society that says it is okay to rape women…”
The document recounts Vertido’s testimony of the events that took place on the night of April 26, 1996, when she claims to have been raped by Davao businessman Jose Custodio after a social gathering they both attended as members of the Davao Chamber of Commerce.
Informed by the CEDAW Committee in February 2008 about the Vertido communication, the government replied in July 2008, that Vertido could have availed herself of the special remedy of certiorari for grave abuse of discretion under Section 1, Rule 65
of the Revised Rules of Court to question a verdict of acquittal.
Ursua, however, argues that such a claim is misleading because, among others, the remedy of certiorari is not a matter of right, but is an extraordinary remedy only granted by judicial discretion. She added that a certiorari applies on errors of jurisdiction and not of judgment, as seen in this case.
Vertido and her supporters claim that the judge based her decision upon “gender based-myths and misconceptions about rape and its victims, and in bad faith, distorted the evidence submitted.”
In her own words during the Unifem Launch of the Progress of the World’s Women Report and Making the MDGs Work for All in February 2009, Vertido described her trial from 1997 to 2005 as ” rape all over again: rape of honor and the last vestiges of respectability by defense lawyers, by a doubting, unsympathetic judge.”
A report made by the non-government organization Women’s Legal Bureau noted some of the myths that the judge used as bases for acquitting accused rapist Jose Custodio:
• That a rape victim must try to escape at every opportunity;
• To be raped by means of intimidation, the victim should be timid or easily cowered which, according to the judge in Vertido’s case, she was not (basing this perception on the fact that Vertido was a career woman and married, and therefore no longer a young and naive virginal maiden);
• To be raped by means of threat, there must be a clear evidence of direct threat, which the judge says the complainant failed to establish;
• That because the victim and the accused are more than “nodding acquaintances” the sexual act must then be consensual;
• That the victim should prove she physically resisted all throughout the act of rape, and if she had not, it is to be concluded that she had consented.
As author of the communication, Vertido is no longer asking for the indictment of the acquitted Custodio, but for the Philippines to implement changes in accordance with its commitment to CEDAW.
The Karen Vertido case may not be a special one, “but whatever happens, [the communication will make a difference” not only in the Philippines but in other Asian countries as well, as it can pave the way for other Filipinos and Asians to see the concreteness of the Protocol in their lives, explains Ursua.
Asked why she continued the fight for justice despite the pain it has already caused her for almost a decade now, Vertido said, “It could have been anybody else… but this landed on my lap. I fight because I am given the opportunity to make this world more respectful of women.” Women’s Feature Service
They are helpless in the face of the chronic indifference and inaction of the guilty state actors.
In grave and urgent cases, though, the UN Security Council may intervene, using UN-accredited military forces formed for such special situations as provided by the UN Charter.
But such instances of UN interventions seem to be rare, e.g. Rwanda, Bosnia/Kosovo, Cambodia -- and only if the US and the European Union push them, which is usually too late and too little.
In most cases, the insidious daily human rights abuses all over the world escape the eyes and ears of the UN Security Council or are better left forgotten by the five permanent members of the UN Security Council if and when so dictated by the imperatives of their national interests.
In many instances even the well-publicized resolutions and sanctions imposed by the UN Security Council are left unheeded by the recalcitrant state actors, as in the cases of Israel, Palestine, North Korea, Iran, and Sudan.
In the case of the very poor state of human rights in the Philippines under the 8-year old de facto military regime of the illegitimate Philippine President Gloria Arroyo, a number of damaging reports have been globally circulated by independent human rights reporters assigned by the concerned UN bodies.
Their reports on the Philippine human rights situations have died in the archives of the Office of the President of the Philippines -- unheeded, unacted upon, derided, and ignored to the delight of military and police intelligence operators and their assets who seem to exist outside the control of the Philippine governmental hierarchy.
At any rate, for whatever informative purposes it may serve, I wish to share below a recent article on the convention on the elimination of discrimination against women (CEDAW) which appeared last week in the Sunday magazine of the Philippine Daily Inquirer involving the rape case of a prominent businesswoman in Mindanao Island.
FEATURE
Crying Rape for the Third Time
By Clarissa V. Militante, Lalaine Padilla
Philippine Daily Inquirer
First Posted 11:37:00 11/07/2009
Karen Vertido suffered a second rape in court when she recounted her 1996 ordeal. This time around, she’s bracing herself to recount her rape anew by filing a communication with a United Nations body that seeks changes in the country’s justice system.
ONE night of terror was the rape one woman suffered in 1996. The trial was an eight-year ordeal she had to endure when she decided file a case, feeling violated all over again, only to be denied justice with the acquittal of her alleged rapist.
Now Karen Vertido has dared yet again to seek justice, and is willing to give “an account of her rape and victimization” anew “by her own government,” she says. This time around, Karen hopes to get justice through a communication she has filed under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (OP-CEDAW). The Philippines became a signatory to this UN treaty on July 17, 1980, and ratified it on July 19, 1981.
A communication is an instrument through which individuals or groups may petition the CEDAW Committee to act on certain cases, with the primary condition that all national remedies have been exhausted. The other instrument provided for in the protocol is the inquiry procedure, which may be used for cases of serious or systematic violation of women’s rights and/or discrimination against women by a State Party or any of its apparatus or agency.
The Karen Vertido communication is the first rape case filed under OP-CEDAW in November 2007. The communication to the CEDAW Committee seeks personal remedies for Vertido, as well as far reaching changes in Philippine laws, in the justice system and in the realm of social-political culture.
In her communication that Vertido prepared with lead counsel Evalyn Ursua, she asserts: “I hold this state, the Philippines, accountable for rape… happening within its boundaries. I hold my state accountable for a judge who at best is ignorant about laws and the realities of women, and who may be corrupt at worst. I call on my state not to put such people to become judges, but only people who are truly capable of trying women’s cases. I claim every inalienable right and every right this country promised to me as its citizen, from protection of my body, my livelihood, to protection of my honor. I claim restitution for having been violated first by one depraved man, and then later by a society that says it is okay to rape women…”
The document recounts Vertido’s testimony of the events that took place on the night of April 26, 1996, when she claims to have been raped by Davao businessman Jose Custodio after a social gathering they both attended as members of the Davao Chamber of Commerce.
Informed by the CEDAW Committee in February 2008 about the Vertido communication, the government replied in July 2008, that Vertido could have availed herself of the special remedy of certiorari for grave abuse of discretion under Section 1, Rule 65
of the Revised Rules of Court to question a verdict of acquittal.
Ursua, however, argues that such a claim is misleading because, among others, the remedy of certiorari is not a matter of right, but is an extraordinary remedy only granted by judicial discretion. She added that a certiorari applies on errors of jurisdiction and not of judgment, as seen in this case.
Vertido and her supporters claim that the judge based her decision upon “gender based-myths and misconceptions about rape and its victims, and in bad faith, distorted the evidence submitted.”
In her own words during the Unifem Launch of the Progress of the World’s Women Report and Making the MDGs Work for All in February 2009, Vertido described her trial from 1997 to 2005 as ” rape all over again: rape of honor and the last vestiges of respectability by defense lawyers, by a doubting, unsympathetic judge.”
A report made by the non-government organization Women’s Legal Bureau noted some of the myths that the judge used as bases for acquitting accused rapist Jose Custodio:
• That a rape victim must try to escape at every opportunity;
• To be raped by means of intimidation, the victim should be timid or easily cowered which, according to the judge in Vertido’s case, she was not (basing this perception on the fact that Vertido was a career woman and married, and therefore no longer a young and naive virginal maiden);
• To be raped by means of threat, there must be a clear evidence of direct threat, which the judge says the complainant failed to establish;
• That because the victim and the accused are more than “nodding acquaintances” the sexual act must then be consensual;
• That the victim should prove she physically resisted all throughout the act of rape, and if she had not, it is to be concluded that she had consented.
As author of the communication, Vertido is no longer asking for the indictment of the acquitted Custodio, but for the Philippines to implement changes in accordance with its commitment to CEDAW.
The Karen Vertido case may not be a special one, “but whatever happens, [the communication will make a difference” not only in the Philippines but in other Asian countries as well, as it can pave the way for other Filipinos and Asians to see the concreteness of the Protocol in their lives, explains Ursua.
Asked why she continued the fight for justice despite the pain it has already caused her for almost a decade now, Vertido said, “It could have been anybody else… but this landed on my lap. I fight because I am given the opportunity to make this world more respectful of women.” Women’s Feature Service
On Writing
The lifeless writing style taught in law schools and perpetuated in jurisprudence and statutes is drastically opposed to the more readable and exciting writing style of literary authors and journalists.
I believe that lawyers could learn from the vibrant and dynamic writing style of literary writers and journalists.
The principles of accuracy, brevity, and clarity apply to all forms of writing, whatever the profession may be.
Giving life, energy, power and resonance to legal briefs and pleadings should be a priority of legal professionals.
Lawyers are by training and inclination writers and philosophers and their advocacy is dependent on the power of the pen and the wisdom of their ideas.
I have just finished reading the book ON WRITING by the popular American fiction writer Stephen King.
I wish to share below excerpts from his book which to my mind might be interesting and instructive to the legal profession.
ON WRITING
By Stephen King
Published by 1230 Avenue of the Americas
New York, NY 10020
Copyright © 2000 by Stephen King
Excerpts:
Writing is a lonely job. Having someone who believes in you makes a lot of difference. They don’t have to make speeches. Just believing is usually enough.
Creative people probably do run a greater risk of alcoholism and addiction than those in some other jobs, but so what? We all look pretty much the same when we’re puking in the gutter.
I want to suggest that to write to your best abilities, it behooves you to construct your own toolbox and then build up enough muscle so you can carry it with you. Then, instead of looking at a hard job and getting discouraged, you will perhaps seize the correct tool and get immediately to work.
One of the really bad things you can do to your writing is to dress up the vocabulary, looking for long words because you’re maybe a little bit ashamed of your short ones.
Make yourself a solemn promise right now that you’ll never use “emolument” when you mean “tip” and you’ll never say John stopped long enough to perform an act of excretion when you mean John stopped long enough to take a shit. . . . I’m not trying to get you to talk dirty, only plain and direct.
Remember that the basic rule of vocabulary is use the first word that comes to your mind, if it is appropriate and colorful. If you hesitate and cogitate, you will come up with another word—of course you will, there’s always another word—but it probably won’t be as good as your first one, or as close to what you really mean. Nouns and verbs are the two indispensable parts of writing. Without one of each, no group of words can be a sentence, since a sentence is, by definition, a group of words containing a subject (noun) and a predicate (verb); these strings of words begin with a capital letter, end with a period, and combine to make a complete thought which starts in th
Verbs come in two types, active and passive. With an active verb, the subject of the sentence is doing something. With a passive verb, something is being done to the subject of the sentence. The subject is just letting it happen. You should avoid the passive tense. I’m not the only one who says so; you can find the same advice in The Elements of Style.
I believe the road to hell is paved with adverbs, and I will shout it from the rooftops.
I can be a good sport about adverbs, though. Yes I can. With one exception: dialogue attribution. I insist that you use the adverb in dialogue attribution only in the rarest and most special of occasions . . . and not even then, if you can avoid it.
Is this a case of “Do as I say, not as I do?” The reader has a perfect right to ask the question, and I have a duty to provide an honest answer. Yes. It is. You need only look back through some of my own fiction to know that I’m just another ordinary sinner. I’ve been pretty good about avoiding the passive tense, but I’ve spilled out my share of adverbs in my time, including some (it shames me to say it) in dialogue attribution.
Easy books contain lots of short paragraphs—including dialogue paragraphs which
may only be a word or two long—and lots of white space.
Writing is refined thinking.
In fiction, the paragraph is less structured—it’s the beat instead of the actual melody. The more fiction you read and write, the more you’ll find your paragraphs forming on their own. And that’s what you want. When composing it’s best not to think too much about where paragraphs begin and end; the trick is to let nature take its course. If you don’t like it later on, fix it then. That’s what rewrite is all about.
Language does not always have to wear a tie and lace-up shoes. The object of fiction isn’t grammatical correctness but to make the reader welcome and then tell
a story . . . to make him/her forget, whenever possible, that he/she is reading a story at all. The single-sentence paragraph more closely resembles talk than writing, and that’s good. Writing is seduction. Good talk is part of seduction. If not so, why do so many couples who start the evening at dinner wind up in bed?
I would argue that the paragraph, not the sentence, is the basic unit of writing—the place where coherence begins and words stand a chance of becoming more than mere words. If the moment of quickening is to come, it comes at the level of the paragraph. It is a marvellous and flexible instrument that can be a single word long or run on for pages…You must learn to use it well if you are to write well. What this means is lots of practice; you have to learn the beat.
Shit, most geniuses aren’t able to understand themselves, and many of them lead miserable lives, realizing (at least on some level) that they are nothing but fortunate freaks, the intellectual version of runway models who just happen to be born with the right cheekbones and with breasts which fit the image of an age.
I am approaching the heart of this book with two theses, both simple. The first is that good writing consists of mastering the fundamentals (vocabulary, grammar, the elements of style) and then filling the third level of your toolbox with the right instruments. The second is that while it is impossible to make a competent writer out of a bad writer, and while it is equally impossible to make a great writer out of a good one, it is possible, with lots of hard work, dedication, and timely help, to make a good writer out of a merely competent one.
Critics and scholars have always been suspicious of popular success. Often their suspicions are justified. In other cases, these suspicions are used as an excuse
not to think. No one can be as intellectually slothful as a really smart person; give smart people half a chance and they will ship their oars and drift . . . dozing to Byzantium, you might say.
If you want to be a writer, you must do two things above all others: read a lot and write a lot. There’s no way around these two things that I’m aware of, no shortcut.
Every book you pick up has its own lesson or lessons, and quite often the bad books have more to teach than the good ones.
Good writing, on the other hand, teaches the learning writer about style, graceful narration, plot development, the creation of believable characters, and truth-telling.
You cannot hope to sweep someone else away by the force of your
writing until it has been done to you.
You have to read widely, constantly refining (and redefining) your own work as you do so. It’s hard for me to believe that people who read very little (or not at all in some cases) should presume to write and expect people to like what they have written, but I know it’s true.
Reading is the creative center of a writer’s life. I take a book with me everywhere I go, and find there are all sorts of opportunities to dip in. The trick is to teach yourself to read in small sips as well as in long swallows. Waiting rooms were
made for books—of course!
Reading at meals is considered rude in polite society, but if you expect to succeed as a writer, rudeness should be the second-to-least of your concerns. The least of all should be polite society and what it expects. If you intend to write as truthfully as you can, your days as a member of polite society are numbered, anyway.
The more you read, the less apt you are to make a fool of yourself with your pen or word processor.
Talent renders the whole idea of rehearsal meaningless; when you find something at which you are talented, you do it (whatever it is) until your fingers bleed or your eyes are ready to fall out of your head. Even when no one is listening (or reading, or watching), every outing is a bravura performance, because you as the creator are happy. Perhaps even ecstatic. That goes for reading and writing as well as for playing a musical instrument, hitting a baseball, or running the four-forty. The sort of strenuous reading and writing program I advocate—four to six hours a day, every day—will not seem strenuous if you really enjoy doing these things and have an aptitude for them; in fact, you may be following such a program already.
Once I start work on a project, I don’t stop and I don’t slow down unless I absolutely have to. If I don’t write every day, the characters begin to stale off in my mind—they begin to seem like characters instead of real people. The tale’s narrative cutting edge starts to rust and I begin to lose my hold on the story’s plot and pace. Worst of all, the excitement of spinning something new begins to fade. The work starts to feel like work, and for most writers that is the smooch of death. Writing is at its best—always, always, always—when it is a kind of inspired play for the writer.
The biggest aid to regular (Trollopian?) production is working in a serene atmosphere. It’s difficult for even the most naturally productive writer to work in an environment where alarms and excursions are the rule rather than the exception. When I’m asked for “the secret of my success” (an absurd idea, that, but impossible to get away from), I sometimes say there are two: I stayed physically healthy (at least until a van knocked me down by the side of the road in the summer of 1999), and I stayed married. It’s a good answer because it makes the question go away, and because there is an element of truth in it. The combination of a healthy body and a stable relationship with a self-reliant woman who takes zero shit from me or anyone else has made the continuity of my working life possible. And I believe the converse is also true: that my writing and the pleasure I take in it has contributed to the stability of my health and my home life.
Book-buyers aren’t attracted, by and large, by the literary merits of a novel; book-buyers want a good story to take with them on the airplane, something that will first fascinate them, then pull them in and keep them turning the pages. This happens, I think, when readers recognize the people in a book, their behaviors, their surroundings, and their talk. When the reader hears strong echoes of his or her own life and beliefs, he or she is apt to become more invested in the story. I’d argue that it’s impossible to make this sort of connection in a premeditated way, gauging the market like a racetrack tout with a hot tip.
Write what you like, then imbue it with life and make it unique by blending in your own personal knowledge of life, friendship, relationships, sex, and work. Especially work. People love to read about work. God knows why, but they do.
In my view, stories and novels consist of three parts: narration, which moves the story from point A to point B and finally to point Z; description, which creates a sensory reality
for the reader; and dialogue, which brings characters to life through their speech.
I believe plotting and the spontaneity of real creation aren’t compatible. It’s best that I be as clear about this as I can—I want you to understand that my basic belief about the making of stories is that they pretty much make themselves. The job of the writer is to give them a place to grow (and to transcribe them, of course). If you can see things this way (or at least try to), we can work together comfortably. If, on the other hand, you decide I’m crazy, that’s fine. You won’t be the first.
Plot is, I think, the good writer’s last resort and the dullard’s first choice. The story which results from it is apt to feel artificial and labored.
I lean more heavily on intuition, and have been able to do that because my books tend to be based on situation rather than story. Some of the ideas which have produced those books are more complex than others, but the majority start out with the stark simplicity of a department store window display or a waxwork tableau. I want to put a group of characters (perhaps a pair; perhaps even just one) in some sort of predicament and then watch them try to work themselves free. My job isn’t to help them work their way free, or manipulate them to safety—those are jobs which require the noisy jackhammer of plot—but to watch what happens and then write it down.
The situation comes first. The characters—always flat and unfeatured, to begin with—come next. Once these things are fixed in my mind, I begin to narrate. I often have an idea of what the outcome may be, but I have never demanded of a set of characters that they do things my way. On the contrary, I want them to do things their way. In some instances, the outcome is what I visualized. In most, however, it’s something I never expected. For a suspense novelist, this is a great thing. I am, after all, not just the novel’s creator but its first reader. And if I’m not able to guess with any accuracy how the damned thing is going to turn out, even with my inside knowledge of coming events, I can be pretty sure of keeping the reader in a state of page-turning anxiety. And why worry about the ending anyway? Why be such a control freak?
Please remember, however, that there is a huge difference between story and plot. Story is honorable and trustworthy; plot is shifty, and best kept under house
arrest.
Honesty in storytelling makes up for a great many stylistic faults, as the work
of wooden-prose writers like Theodore Dreiser and Ayn Rand shows, but lying is the great unrepairable fault. Liars prosper, no question about it, but only in the grand sweep of things, never down in the jungles of actual composition, where you must take your objective one bloody word at a time. If you begin to lie about what you know and feel while you’re down there, everything falls down.
Description is what makes the reader a sensory participant in the story. Good description is a learned skill, one of the prime reasons why you cannot succeed unless you read a lot and write a lot. It’s not just a question of how-to, you see; it’s also a question of how much to. Reading will help you answer how much, and only reams of writing will help you with the how. You can learn only by doing.
Description begins with visualization of what it is you want the reader to experience. It ends with your translating what you see in your mind into words on the page. It’s far from easy.
Thin description leaves the reader feeling bewildered and nearsighted. Overdescription buries him or her in details and images. The trick is to find a happy medium. It’s also important to know what to describe and what can be left alone while you get on with your main job, which is telling a story.
Description begins in the writer’s imagination, but should finish in the reader’s. When it comes to actually pulling this off, the writer is much more fortunate than the filmmaker, who is almost always doomed to show too much . . .
I think locale and texture are much more important to the reader’s sense of actually being in the story than any physical description of the players. Nor do I think that physical description should be a shortcut to character. So spare me, if you please, the hero’s sharply intelligent blue eyes and outthrust determined chin; likewise the heroine’s arrogant cheekbones. This sort of thing is bad technique and lazy writing, the equivalent of all those tiresome adverbs.
For me, good description usually consists of a few wellchosen details that will stand for everything else. In most cases, these details will be the first ones that come to mind. Certainly they will do for a start. If you decide later on that you’d like to change, add, or delete, you can do so—it’s what rewrite was invented for. But I think you will find that, in most cases, your first visualized details will be the truest and best. You should remember (and your reading will prove it over and over again should you begin to doubt) that it’s as easy to overdescribe as to underdescribe. Probably easier.
In many cases when a reader puts a story aside because it “got boring,” the boredom arose because the writer grew enchanted with his powers of description and lost sight of his priority, which is to keep the ball rolling.
The key to good description begins with clear seeing and ends with clear writing, the kind of writing that employs fresh images and simple vocabulary.
As with all other aspects of the narrative art, you will improve with practice, but practice will never make you perfect. Why should it? What fun would that be? And the harder you try to be clear and simple, the more you will learn about the complexity of our American dialect. It be slippery, precious; aye, it be very slippery, indeed. Practice the art, always reminding yourself that your job is to say what you see, and then to get on with your story.
It’s dialogue that gives your cast their voices, and is crucial in defining their characters—only what people do tells us more about what they’re like, and talk is sneaky: what people say often conveys their character to others in ways of which they—the speakers—are completely unaware.
As with all other aspects of fiction, the key to writing good dialogue is honesty. And if you are honest about the words coming out of your characters’ mouths, you’ll find that you’ve let yourself in for a fair amount of criticism. Not a week goes by that I don’t receive at least one pissed-off letter (most weeks there are more) accusing me of being foulmouthed, bigoted, homophobic, murderous, frivolous, or downright psychopathic.
You’ll know which to use if you know your character, and we’ll learn something about the speaker that will make him or her more vivid and interesting. The point is to let each character speak freely, without regard to what the Legion of Decency or the Christian Ladies’ Reading Circle may approve of. To do otherwise would be cowardly as well as dishonest, and believe me, writing fiction in America as we enter the twenty-first century is no job for intellectual cowards. There are lots of would-be censors out there, and although they may have different agendas, they all want basically the same thing: for you to see the world they see . . . or to at least shut up about what you do see that’s different. They are agents of the status quo. Not necessarily bad guys, but dangerous guys if you happen to believe in intellectual freedom.
Some people don’t want to hear the truth, of course, but that’s not your problem. What would be is wanting to be a writer without wanting to shoot straight. Talk, whether ugly or beautiful, is an index of character; it can also be a breath of cool, refreshing air in a room some people would prefer to keep shut up. In the end, the important question has nothing to do with whether the talk in your story is sacred or profane; the only question is how it rings on the page and in the ear. If you expect it to ring true, then you must talk yourself. Even more important, you must shut up and listen to others talk.
For me, what happens to characters as a story progresses depends solely on what I discover about them as I go along— how they grow, in other words. Sometimes they grow a little. If they grow a lot, they begin to influence the course of the story instead of the other way around. I almost always start with something that’s situational. I don’t say that’s right, only that it’s the way I’ve always worked. If a story ends up that same way, however, I count it something of a failure no matter how interesting it may be to me or to others. I think the best stories always end up being about the people rather than the event, which is to say character-driven. Once you get beyond the short story, though (two to four thousand words, let’s say), I’m not much of a believer in the so-called character study; I think that in the end, the story should always be the boss. Hey, if you want a character study, buy a biography or get season tickets to your local college’s theater-lab productions. You’ll get all the character you can stand.
My job (and yours, if you decide this is a viable approach to storytelling) is to make sure these fictional folks behave in ways that will both help the story and seem reasonable to us, given what we know about them (and what we know about real life, of course). Sometimes villains feel self-doubt (as Greg Stillson does); sometimes they feel pity (as Annie Wilkes does). And sometimes the good guy tries to turn away from doing the right thing, as Johnny Smith does . . . as Jesus Christ himself did, if you think about that prayer (“take this cup from my lips”) in the Garden of Gethsemane. And if you do your job, your characters will come to life and start doing stuff on their own. I know that sounds a little creepy if you haven’t actually experienced it, but it’s terrific fun when it happens. And it will solve a lot of your problems, believe me.
But no matter how you do it, there comes a point when you must judge what you’ve written and how well you wrote it. I don’t believe a story or a novel should be allowed outside the door of your study or writing room unless you feel confident that it’s reasonably reader-friendly. You can’t please all of the readers all of the time; you can’t please even some of the readers all of the time, but you really ought to try to please at least some of the readers some of the time. I think William Shakespeare said that.
Symbolism (and the other adornments, too) does serve a useful purpose, though—it’s more than just chrome on the grille. It can serve as a focusing device for both you and your reader, helping to create a more unified and pleasing work. I think that, when you read your manuscript over (and when you talk it over), you’ll see if symbolism, or the potential for it, exists. If it doesn’t, leave well enough alone. If it does, however—if it’s clearly a part of the fossil you’re working to unearth—go for it. Enhance it. You’re a monkey if you don’t.
Good fiction always begins with story and progresses to theme; it almost never begins with theme and progresses to story….But once your basic story is on paper, you need to think about what it means and enrich your following drafts with your conclusions. To do less is to rob your work (and eventually your readers) of the vision that makes each tale you write uniquely your own.
If you’re a beginner, though, let me urge that you take your story through at least two drafts; the one you do with the study door closed and the one you do with it open. With the door shut, downloading what’s in my head directly to the page, I write as fast as I can and still remain comfortable. Writing fiction, especially a long work of fiction, can be a difficult, lonely job; it’s like crossing the Atlantic Ocean in a bathtub. There’s plenty of opportunity for selfdoubt.
If I write rapidly, putting down my story exactly as it comes into my mind, only looking back to check the names of my characters and the relevant parts of their back stories, I find that I can keep up with my original enthusiasm and at the same time outrun the self-doubt that’s always waiting to settle in.
This first draft—the All-Story Draft—should be written with no help (or interference) from anyone else. There may come a point when you want to show what you’re doing to a close friend (very often the close friend you think of first is the one who shares your bed), either because you’re proud of what you’re doing or because you’re doubtful about it. My best advice is to resist this impulse. Keep the pressure on; don’t lower it by exposing what you’ve written to the doubt, the praise, or even the well-meaning questions of someone from the Outside World. Let your hope of success (and your fear of failure) carry you on, difficult as that can be. There’ll be time to show off what you’ve done when you finish . . . but even after finishing I think you must be cautious and give yourself a chance to think while the story is still like a field of freshly fallen snow, absent of any tracks save your own. The great thing about writing with the door shut is that
My advice is that you take a couple of days off—go fishing, go kayaking, do a jigsaw
puzzle—and then go to work on something else. Something shorter, preferably, and something that’s a complete change of direction and pace from your newly finished book.
How long you let your book rest—sort of like bread dough between kneadings—is entirely up to you, but I think it should be a minimum of six weeks. During this time your manuscript will be safely shut away in a desk drawer, aging and (one hopes) mellowing. Your thoughts will turn to it frequently, and you’ll likely be tempted a dozen times or more to take it out, if only to re-read some passage that seems particularly fine in your memory, something you’d like to go back to so you can re-experience what a really excellent writer you are. Resist temptation. If you don’t, you’ll very likely decide you didn’t do as well on that passage as you thought and you’d better retool it on the spot. This is bad. The only thing worse would be for you to decide the passage is even better than you remembered—why not drop everything and read the whole book over right then? Get back to work on it!
Underneath, however, I’m asking myself the Big Questions. The biggest: Is this story coherent? And if it is, what will turn coherence into a song? What are the recurring elements? Do they entwine and make a theme? I’m asking myself What’s it all about, Stevie, in other words, and what I can do to make those underlying concerns even clearer. What I want most of all is resonance, something that will linger for a little while in Constant Reader’s mind (and heart) after he or she has closed the book and put it up on the shelf.
I’m looking for ways to do that without spoon-feeding the reader or selling my birthright for a plot of message. Take all those messages and those morals and stick em where the sun don’t shine, all right? I want resonance. Most of all, I’m looking for what I meant, because in the second draft I’ll want to add scenes and incidents that reinforce that meaning. I’ll also want to delete stuff that goes in other directions. There’s apt to be a lot of that stuff, especially near the beginning of a story, when I have a tendency to flail. All that thrashing around has to go if I am to achieve anything like a unified effect. When I’ve finished reading and making all my little anal-retentive revisions, it’s time to open the door and show what I’ve written to four or five close friends who have indicated
a willingness to look.
Someone—I can’t remember who, for the life of me— once wrote that all novels are really letters aimed at one person. As it happens, I believe this. I think that every novelist has a single ideal reader; that at various points during the composition of a story, the writer is thinking, “I wonder what he/she will think when he/she reads this part?” For me that first reader is my wife, Tabitha.
Pace is the speed at which your narrative unfolds. There is a kind of unspoken (hence undefended and unexamined) belief in publishing circles that the most commercially successful stories and novels are fast-paced. I guess the underlying thought is that people have so many things to do today, and are so easily distracted from the printed word, that you’ll lose them unless you become a kind of short-order cook, serving up sizzling burgers, fries, and eggs over easy just as fast as you can. Like so many unexamined beliefs in the publishing business, this idea is largely bullshit . . .
You’ve probably heard the phrase in medias res, which means “into the midst of things.” This technique is an ancient and honorable one, but I don’t like it. In medias res necessitates flashbacks, which strike me as boring and sort of corny.
The most important things to remember about back story are that (a) everyone has a history and (b) most of it isn’t very interesting. Stick to the parts that are, and don’t get carried away with the rest. Long life stories are best received in bars, and only then an hour or so before closing time, and if you are buying.
We need to talk a bit about research, which is a specialized kind of back story. And please, if you do need to do research because parts of your story deal with things about which you know little or nothing, remember that word back. That’s where research belongs: as far in the background and the back story as you can get it. You may be entranced with what you’re learning about flesh-eating bacteria, the sewer system of New York, or the I.Q. potential of collie pups, but your readers are probably going to care a lot more about your characters and your story.
You should have an agent, and if your work is salable, you will have only a moderate amount of trouble finding one.
Submitting stories without first reading the market is like playing darts in a dark room—you might hit the target every now and then, but you don’t deserve to.
I believe that lawyers could learn from the vibrant and dynamic writing style of literary writers and journalists.
The principles of accuracy, brevity, and clarity apply to all forms of writing, whatever the profession may be.
Giving life, energy, power and resonance to legal briefs and pleadings should be a priority of legal professionals.
Lawyers are by training and inclination writers and philosophers and their advocacy is dependent on the power of the pen and the wisdom of their ideas.
I have just finished reading the book ON WRITING by the popular American fiction writer Stephen King.
I wish to share below excerpts from his book which to my mind might be interesting and instructive to the legal profession.
ON WRITING
By Stephen King
Published by 1230 Avenue of the Americas
New York, NY 10020
Copyright © 2000 by Stephen King
Excerpts:
Writing is a lonely job. Having someone who believes in you makes a lot of difference. They don’t have to make speeches. Just believing is usually enough.
Creative people probably do run a greater risk of alcoholism and addiction than those in some other jobs, but so what? We all look pretty much the same when we’re puking in the gutter.
I want to suggest that to write to your best abilities, it behooves you to construct your own toolbox and then build up enough muscle so you can carry it with you. Then, instead of looking at a hard job and getting discouraged, you will perhaps seize the correct tool and get immediately to work.
One of the really bad things you can do to your writing is to dress up the vocabulary, looking for long words because you’re maybe a little bit ashamed of your short ones.
Make yourself a solemn promise right now that you’ll never use “emolument” when you mean “tip” and you’ll never say John stopped long enough to perform an act of excretion when you mean John stopped long enough to take a shit. . . . I’m not trying to get you to talk dirty, only plain and direct.
Remember that the basic rule of vocabulary is use the first word that comes to your mind, if it is appropriate and colorful. If you hesitate and cogitate, you will come up with another word—of course you will, there’s always another word—but it probably won’t be as good as your first one, or as close to what you really mean. Nouns and verbs are the two indispensable parts of writing. Without one of each, no group of words can be a sentence, since a sentence is, by definition, a group of words containing a subject (noun) and a predicate (verb); these strings of words begin with a capital letter, end with a period, and combine to make a complete thought which starts in th
Verbs come in two types, active and passive. With an active verb, the subject of the sentence is doing something. With a passive verb, something is being done to the subject of the sentence. The subject is just letting it happen. You should avoid the passive tense. I’m not the only one who says so; you can find the same advice in The Elements of Style.
I believe the road to hell is paved with adverbs, and I will shout it from the rooftops.
I can be a good sport about adverbs, though. Yes I can. With one exception: dialogue attribution. I insist that you use the adverb in dialogue attribution only in the rarest and most special of occasions . . . and not even then, if you can avoid it.
Is this a case of “Do as I say, not as I do?” The reader has a perfect right to ask the question, and I have a duty to provide an honest answer. Yes. It is. You need only look back through some of my own fiction to know that I’m just another ordinary sinner. I’ve been pretty good about avoiding the passive tense, but I’ve spilled out my share of adverbs in my time, including some (it shames me to say it) in dialogue attribution.
Easy books contain lots of short paragraphs—including dialogue paragraphs which
may only be a word or two long—and lots of white space.
Writing is refined thinking.
In fiction, the paragraph is less structured—it’s the beat instead of the actual melody. The more fiction you read and write, the more you’ll find your paragraphs forming on their own. And that’s what you want. When composing it’s best not to think too much about where paragraphs begin and end; the trick is to let nature take its course. If you don’t like it later on, fix it then. That’s what rewrite is all about.
Language does not always have to wear a tie and lace-up shoes. The object of fiction isn’t grammatical correctness but to make the reader welcome and then tell
a story . . . to make him/her forget, whenever possible, that he/she is reading a story at all. The single-sentence paragraph more closely resembles talk than writing, and that’s good. Writing is seduction. Good talk is part of seduction. If not so, why do so many couples who start the evening at dinner wind up in bed?
I would argue that the paragraph, not the sentence, is the basic unit of writing—the place where coherence begins and words stand a chance of becoming more than mere words. If the moment of quickening is to come, it comes at the level of the paragraph. It is a marvellous and flexible instrument that can be a single word long or run on for pages…You must learn to use it well if you are to write well. What this means is lots of practice; you have to learn the beat.
Shit, most geniuses aren’t able to understand themselves, and many of them lead miserable lives, realizing (at least on some level) that they are nothing but fortunate freaks, the intellectual version of runway models who just happen to be born with the right cheekbones and with breasts which fit the image of an age.
I am approaching the heart of this book with two theses, both simple. The first is that good writing consists of mastering the fundamentals (vocabulary, grammar, the elements of style) and then filling the third level of your toolbox with the right instruments. The second is that while it is impossible to make a competent writer out of a bad writer, and while it is equally impossible to make a great writer out of a good one, it is possible, with lots of hard work, dedication, and timely help, to make a good writer out of a merely competent one.
Critics and scholars have always been suspicious of popular success. Often their suspicions are justified. In other cases, these suspicions are used as an excuse
not to think. No one can be as intellectually slothful as a really smart person; give smart people half a chance and they will ship their oars and drift . . . dozing to Byzantium, you might say.
If you want to be a writer, you must do two things above all others: read a lot and write a lot. There’s no way around these two things that I’m aware of, no shortcut.
Every book you pick up has its own lesson or lessons, and quite often the bad books have more to teach than the good ones.
Good writing, on the other hand, teaches the learning writer about style, graceful narration, plot development, the creation of believable characters, and truth-telling.
You cannot hope to sweep someone else away by the force of your
writing until it has been done to you.
You have to read widely, constantly refining (and redefining) your own work as you do so. It’s hard for me to believe that people who read very little (or not at all in some cases) should presume to write and expect people to like what they have written, but I know it’s true.
Reading is the creative center of a writer’s life. I take a book with me everywhere I go, and find there are all sorts of opportunities to dip in. The trick is to teach yourself to read in small sips as well as in long swallows. Waiting rooms were
made for books—of course!
Reading at meals is considered rude in polite society, but if you expect to succeed as a writer, rudeness should be the second-to-least of your concerns. The least of all should be polite society and what it expects. If you intend to write as truthfully as you can, your days as a member of polite society are numbered, anyway.
The more you read, the less apt you are to make a fool of yourself with your pen or word processor.
Talent renders the whole idea of rehearsal meaningless; when you find something at which you are talented, you do it (whatever it is) until your fingers bleed or your eyes are ready to fall out of your head. Even when no one is listening (or reading, or watching), every outing is a bravura performance, because you as the creator are happy. Perhaps even ecstatic. That goes for reading and writing as well as for playing a musical instrument, hitting a baseball, or running the four-forty. The sort of strenuous reading and writing program I advocate—four to six hours a day, every day—will not seem strenuous if you really enjoy doing these things and have an aptitude for them; in fact, you may be following such a program already.
Once I start work on a project, I don’t stop and I don’t slow down unless I absolutely have to. If I don’t write every day, the characters begin to stale off in my mind—they begin to seem like characters instead of real people. The tale’s narrative cutting edge starts to rust and I begin to lose my hold on the story’s plot and pace. Worst of all, the excitement of spinning something new begins to fade. The work starts to feel like work, and for most writers that is the smooch of death. Writing is at its best—always, always, always—when it is a kind of inspired play for the writer.
The biggest aid to regular (Trollopian?) production is working in a serene atmosphere. It’s difficult for even the most naturally productive writer to work in an environment where alarms and excursions are the rule rather than the exception. When I’m asked for “the secret of my success” (an absurd idea, that, but impossible to get away from), I sometimes say there are two: I stayed physically healthy (at least until a van knocked me down by the side of the road in the summer of 1999), and I stayed married. It’s a good answer because it makes the question go away, and because there is an element of truth in it. The combination of a healthy body and a stable relationship with a self-reliant woman who takes zero shit from me or anyone else has made the continuity of my working life possible. And I believe the converse is also true: that my writing and the pleasure I take in it has contributed to the stability of my health and my home life.
Book-buyers aren’t attracted, by and large, by the literary merits of a novel; book-buyers want a good story to take with them on the airplane, something that will first fascinate them, then pull them in and keep them turning the pages. This happens, I think, when readers recognize the people in a book, their behaviors, their surroundings, and their talk. When the reader hears strong echoes of his or her own life and beliefs, he or she is apt to become more invested in the story. I’d argue that it’s impossible to make this sort of connection in a premeditated way, gauging the market like a racetrack tout with a hot tip.
Write what you like, then imbue it with life and make it unique by blending in your own personal knowledge of life, friendship, relationships, sex, and work. Especially work. People love to read about work. God knows why, but they do.
In my view, stories and novels consist of three parts: narration, which moves the story from point A to point B and finally to point Z; description, which creates a sensory reality
for the reader; and dialogue, which brings characters to life through their speech.
I believe plotting and the spontaneity of real creation aren’t compatible. It’s best that I be as clear about this as I can—I want you to understand that my basic belief about the making of stories is that they pretty much make themselves. The job of the writer is to give them a place to grow (and to transcribe them, of course). If you can see things this way (or at least try to), we can work together comfortably. If, on the other hand, you decide I’m crazy, that’s fine. You won’t be the first.
Plot is, I think, the good writer’s last resort and the dullard’s first choice. The story which results from it is apt to feel artificial and labored.
I lean more heavily on intuition, and have been able to do that because my books tend to be based on situation rather than story. Some of the ideas which have produced those books are more complex than others, but the majority start out with the stark simplicity of a department store window display or a waxwork tableau. I want to put a group of characters (perhaps a pair; perhaps even just one) in some sort of predicament and then watch them try to work themselves free. My job isn’t to help them work their way free, or manipulate them to safety—those are jobs which require the noisy jackhammer of plot—but to watch what happens and then write it down.
The situation comes first. The characters—always flat and unfeatured, to begin with—come next. Once these things are fixed in my mind, I begin to narrate. I often have an idea of what the outcome may be, but I have never demanded of a set of characters that they do things my way. On the contrary, I want them to do things their way. In some instances, the outcome is what I visualized. In most, however, it’s something I never expected. For a suspense novelist, this is a great thing. I am, after all, not just the novel’s creator but its first reader. And if I’m not able to guess with any accuracy how the damned thing is going to turn out, even with my inside knowledge of coming events, I can be pretty sure of keeping the reader in a state of page-turning anxiety. And why worry about the ending anyway? Why be such a control freak?
Please remember, however, that there is a huge difference between story and plot. Story is honorable and trustworthy; plot is shifty, and best kept under house
arrest.
Honesty in storytelling makes up for a great many stylistic faults, as the work
of wooden-prose writers like Theodore Dreiser and Ayn Rand shows, but lying is the great unrepairable fault. Liars prosper, no question about it, but only in the grand sweep of things, never down in the jungles of actual composition, where you must take your objective one bloody word at a time. If you begin to lie about what you know and feel while you’re down there, everything falls down.
Description is what makes the reader a sensory participant in the story. Good description is a learned skill, one of the prime reasons why you cannot succeed unless you read a lot and write a lot. It’s not just a question of how-to, you see; it’s also a question of how much to. Reading will help you answer how much, and only reams of writing will help you with the how. You can learn only by doing.
Description begins with visualization of what it is you want the reader to experience. It ends with your translating what you see in your mind into words on the page. It’s far from easy.
Thin description leaves the reader feeling bewildered and nearsighted. Overdescription buries him or her in details and images. The trick is to find a happy medium. It’s also important to know what to describe and what can be left alone while you get on with your main job, which is telling a story.
Description begins in the writer’s imagination, but should finish in the reader’s. When it comes to actually pulling this off, the writer is much more fortunate than the filmmaker, who is almost always doomed to show too much . . .
I think locale and texture are much more important to the reader’s sense of actually being in the story than any physical description of the players. Nor do I think that physical description should be a shortcut to character. So spare me, if you please, the hero’s sharply intelligent blue eyes and outthrust determined chin; likewise the heroine’s arrogant cheekbones. This sort of thing is bad technique and lazy writing, the equivalent of all those tiresome adverbs.
For me, good description usually consists of a few wellchosen details that will stand for everything else. In most cases, these details will be the first ones that come to mind. Certainly they will do for a start. If you decide later on that you’d like to change, add, or delete, you can do so—it’s what rewrite was invented for. But I think you will find that, in most cases, your first visualized details will be the truest and best. You should remember (and your reading will prove it over and over again should you begin to doubt) that it’s as easy to overdescribe as to underdescribe. Probably easier.
In many cases when a reader puts a story aside because it “got boring,” the boredom arose because the writer grew enchanted with his powers of description and lost sight of his priority, which is to keep the ball rolling.
The key to good description begins with clear seeing and ends with clear writing, the kind of writing that employs fresh images and simple vocabulary.
As with all other aspects of the narrative art, you will improve with practice, but practice will never make you perfect. Why should it? What fun would that be? And the harder you try to be clear and simple, the more you will learn about the complexity of our American dialect. It be slippery, precious; aye, it be very slippery, indeed. Practice the art, always reminding yourself that your job is to say what you see, and then to get on with your story.
It’s dialogue that gives your cast their voices, and is crucial in defining their characters—only what people do tells us more about what they’re like, and talk is sneaky: what people say often conveys their character to others in ways of which they—the speakers—are completely unaware.
As with all other aspects of fiction, the key to writing good dialogue is honesty. And if you are honest about the words coming out of your characters’ mouths, you’ll find that you’ve let yourself in for a fair amount of criticism. Not a week goes by that I don’t receive at least one pissed-off letter (most weeks there are more) accusing me of being foulmouthed, bigoted, homophobic, murderous, frivolous, or downright psychopathic.
You’ll know which to use if you know your character, and we’ll learn something about the speaker that will make him or her more vivid and interesting. The point is to let each character speak freely, without regard to what the Legion of Decency or the Christian Ladies’ Reading Circle may approve of. To do otherwise would be cowardly as well as dishonest, and believe me, writing fiction in America as we enter the twenty-first century is no job for intellectual cowards. There are lots of would-be censors out there, and although they may have different agendas, they all want basically the same thing: for you to see the world they see . . . or to at least shut up about what you do see that’s different. They are agents of the status quo. Not necessarily bad guys, but dangerous guys if you happen to believe in intellectual freedom.
Some people don’t want to hear the truth, of course, but that’s not your problem. What would be is wanting to be a writer without wanting to shoot straight. Talk, whether ugly or beautiful, is an index of character; it can also be a breath of cool, refreshing air in a room some people would prefer to keep shut up. In the end, the important question has nothing to do with whether the talk in your story is sacred or profane; the only question is how it rings on the page and in the ear. If you expect it to ring true, then you must talk yourself. Even more important, you must shut up and listen to others talk.
For me, what happens to characters as a story progresses depends solely on what I discover about them as I go along— how they grow, in other words. Sometimes they grow a little. If they grow a lot, they begin to influence the course of the story instead of the other way around. I almost always start with something that’s situational. I don’t say that’s right, only that it’s the way I’ve always worked. If a story ends up that same way, however, I count it something of a failure no matter how interesting it may be to me or to others. I think the best stories always end up being about the people rather than the event, which is to say character-driven. Once you get beyond the short story, though (two to four thousand words, let’s say), I’m not much of a believer in the so-called character study; I think that in the end, the story should always be the boss. Hey, if you want a character study, buy a biography or get season tickets to your local college’s theater-lab productions. You’ll get all the character you can stand.
My job (and yours, if you decide this is a viable approach to storytelling) is to make sure these fictional folks behave in ways that will both help the story and seem reasonable to us, given what we know about them (and what we know about real life, of course). Sometimes villains feel self-doubt (as Greg Stillson does); sometimes they feel pity (as Annie Wilkes does). And sometimes the good guy tries to turn away from doing the right thing, as Johnny Smith does . . . as Jesus Christ himself did, if you think about that prayer (“take this cup from my lips”) in the Garden of Gethsemane. And if you do your job, your characters will come to life and start doing stuff on their own. I know that sounds a little creepy if you haven’t actually experienced it, but it’s terrific fun when it happens. And it will solve a lot of your problems, believe me.
But no matter how you do it, there comes a point when you must judge what you’ve written and how well you wrote it. I don’t believe a story or a novel should be allowed outside the door of your study or writing room unless you feel confident that it’s reasonably reader-friendly. You can’t please all of the readers all of the time; you can’t please even some of the readers all of the time, but you really ought to try to please at least some of the readers some of the time. I think William Shakespeare said that.
Symbolism (and the other adornments, too) does serve a useful purpose, though—it’s more than just chrome on the grille. It can serve as a focusing device for both you and your reader, helping to create a more unified and pleasing work. I think that, when you read your manuscript over (and when you talk it over), you’ll see if symbolism, or the potential for it, exists. If it doesn’t, leave well enough alone. If it does, however—if it’s clearly a part of the fossil you’re working to unearth—go for it. Enhance it. You’re a monkey if you don’t.
Good fiction always begins with story and progresses to theme; it almost never begins with theme and progresses to story….But once your basic story is on paper, you need to think about what it means and enrich your following drafts with your conclusions. To do less is to rob your work (and eventually your readers) of the vision that makes each tale you write uniquely your own.
If you’re a beginner, though, let me urge that you take your story through at least two drafts; the one you do with the study door closed and the one you do with it open. With the door shut, downloading what’s in my head directly to the page, I write as fast as I can and still remain comfortable. Writing fiction, especially a long work of fiction, can be a difficult, lonely job; it’s like crossing the Atlantic Ocean in a bathtub. There’s plenty of opportunity for selfdoubt.
If I write rapidly, putting down my story exactly as it comes into my mind, only looking back to check the names of my characters and the relevant parts of their back stories, I find that I can keep up with my original enthusiasm and at the same time outrun the self-doubt that’s always waiting to settle in.
This first draft—the All-Story Draft—should be written with no help (or interference) from anyone else. There may come a point when you want to show what you’re doing to a close friend (very often the close friend you think of first is the one who shares your bed), either because you’re proud of what you’re doing or because you’re doubtful about it. My best advice is to resist this impulse. Keep the pressure on; don’t lower it by exposing what you’ve written to the doubt, the praise, or even the well-meaning questions of someone from the Outside World. Let your hope of success (and your fear of failure) carry you on, difficult as that can be. There’ll be time to show off what you’ve done when you finish . . . but even after finishing I think you must be cautious and give yourself a chance to think while the story is still like a field of freshly fallen snow, absent of any tracks save your own. The great thing about writing with the door shut is that
My advice is that you take a couple of days off—go fishing, go kayaking, do a jigsaw
puzzle—and then go to work on something else. Something shorter, preferably, and something that’s a complete change of direction and pace from your newly finished book.
How long you let your book rest—sort of like bread dough between kneadings—is entirely up to you, but I think it should be a minimum of six weeks. During this time your manuscript will be safely shut away in a desk drawer, aging and (one hopes) mellowing. Your thoughts will turn to it frequently, and you’ll likely be tempted a dozen times or more to take it out, if only to re-read some passage that seems particularly fine in your memory, something you’d like to go back to so you can re-experience what a really excellent writer you are. Resist temptation. If you don’t, you’ll very likely decide you didn’t do as well on that passage as you thought and you’d better retool it on the spot. This is bad. The only thing worse would be for you to decide the passage is even better than you remembered—why not drop everything and read the whole book over right then? Get back to work on it!
Underneath, however, I’m asking myself the Big Questions. The biggest: Is this story coherent? And if it is, what will turn coherence into a song? What are the recurring elements? Do they entwine and make a theme? I’m asking myself What’s it all about, Stevie, in other words, and what I can do to make those underlying concerns even clearer. What I want most of all is resonance, something that will linger for a little while in Constant Reader’s mind (and heart) after he or she has closed the book and put it up on the shelf.
I’m looking for ways to do that without spoon-feeding the reader or selling my birthright for a plot of message. Take all those messages and those morals and stick em where the sun don’t shine, all right? I want resonance. Most of all, I’m looking for what I meant, because in the second draft I’ll want to add scenes and incidents that reinforce that meaning. I’ll also want to delete stuff that goes in other directions. There’s apt to be a lot of that stuff, especially near the beginning of a story, when I have a tendency to flail. All that thrashing around has to go if I am to achieve anything like a unified effect. When I’ve finished reading and making all my little anal-retentive revisions, it’s time to open the door and show what I’ve written to four or five close friends who have indicated
a willingness to look.
Someone—I can’t remember who, for the life of me— once wrote that all novels are really letters aimed at one person. As it happens, I believe this. I think that every novelist has a single ideal reader; that at various points during the composition of a story, the writer is thinking, “I wonder what he/she will think when he/she reads this part?” For me that first reader is my wife, Tabitha.
Pace is the speed at which your narrative unfolds. There is a kind of unspoken (hence undefended and unexamined) belief in publishing circles that the most commercially successful stories and novels are fast-paced. I guess the underlying thought is that people have so many things to do today, and are so easily distracted from the printed word, that you’ll lose them unless you become a kind of short-order cook, serving up sizzling burgers, fries, and eggs over easy just as fast as you can. Like so many unexamined beliefs in the publishing business, this idea is largely bullshit . . .
You’ve probably heard the phrase in medias res, which means “into the midst of things.” This technique is an ancient and honorable one, but I don’t like it. In medias res necessitates flashbacks, which strike me as boring and sort of corny.
The most important things to remember about back story are that (a) everyone has a history and (b) most of it isn’t very interesting. Stick to the parts that are, and don’t get carried away with the rest. Long life stories are best received in bars, and only then an hour or so before closing time, and if you are buying.
We need to talk a bit about research, which is a specialized kind of back story. And please, if you do need to do research because parts of your story deal with things about which you know little or nothing, remember that word back. That’s where research belongs: as far in the background and the back story as you can get it. You may be entranced with what you’re learning about flesh-eating bacteria, the sewer system of New York, or the I.Q. potential of collie pups, but your readers are probably going to care a lot more about your characters and your story.
You should have an agent, and if your work is salable, you will have only a moderate amount of trouble finding one.
Submitting stories without first reading the market is like playing darts in a dark room—you might hit the target every now and then, but you don’t deserve to.
Freedom of information
In my previous entries in this blog, I bewailed the lack of a Freedom of Information Act in the Philippines, although I know for a fact that a bill on the matter has been pending for many years now before the two houses of the pork barrel-fed and oligarchs-infested Philippine Congress.
It is under a pitiful state of legislative comatose in the archives of the Philippine Congress and may soon die of oblivion, the usual insidious disease of progressive and democratic bills filed in the legislature of the country.
That is, if the Filipinos continue to be numb and indifferent to this democratic advocacy.
Related to the said topic is the latest circular of the Ombudsman of the Philippines which tends to restrict full access to copies of the statements of assets and liabilities of all elective and appointive government officials and employees.
It is discussed in an article published recently in the Philippine Daly Inquirer authored by the investigative journalism center Vera Files.
I wish to reproduce the article in full below.
Monitoring assets of civil servants
By Vera Files
Philippine Daily Inquirer
First Posted 20:04:00 11/07/2009
MANILA, Philippines—If Filipinos are wondering how government officials and employees become millionaires overnight, buying expensive cars, moving to upscale homes, or taking frequent trips abroad, the answers can be partly found by checking their Statement of Assets, Liabilities and Networth (SALN).
A SALN is a document that all those serving in government—from the lowliest clerk to the President—are required to submit. It discloses how much money they have, what property they own, what companies and businesses they have interests in, how much they owe and who their relatives in government are.
The disclosure includes not just the officials’ own assets and liabilities, but even those of their spouses and children below 18.
Transparency, honesty
By filing a SALN, a government employee complies with what is supposed to be government’s policy of transparency and honesty.
“As a government employee, you occupy a position that is vested with public trust,” said the manual for filing SALNs published last year. “The SALN is the badge of honor of the honest civil servant that must be accomplished with pride. It shows that an employee did not exploit his or her public office for illegal gain.”
Anticorruption tool
The SALN is an important anticorruption tool. It serves as evidence in lifestyle checks on officials suspected of having illegally obtained their wealth or of using their positions to enrich themselves. Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, imposes criminal sanctions on grafters in government, while Republic Act No. 1379, the law on forfeiture of illegally acquired wealth, states that the government has the right to recover ill-gotten assets.
Government officials and employees can also be charged with perjury for misdeclaring their wealth in their SALNs.
Since 1960
The filing of SALNs started in 1960, when the anti-graft law was passed. In those days, public officers were mandated to submit every January a detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of their income, the amounts of their personal and family expenses, and the income taxes they paid.
A public officer found to have accumulated wealth “manifestly out of proportion to his salary and to his other lawful income” can either be dismissed or removed from office or, if convicted, be imprisoned for up to 10 years.
Modest living
Republic Act No. 6713, a post-Edsa law known as the Code of Conduct and Ethical Standards for Public Officials and Employees, makes the filing of SALNs not only a matter of obligation, but also a matter of ethics. Officials are supposed to live within their salaries and income because the Constitution says that not only is a public office a public trust, but also that public officials must “lead modest lives.”
The implementing rules of RA 6713 define modest living: maintaining a lifestyle “within the official’s visible means of income” as reflected in the official’s income tax returns, SALN and other documents pertaining to business interests and financial connections.
RA 6713 covers almost everyone in government service: those in elective as well as appointive positions, those holding permanent as well as temporary status, and those in career and non-career service. They must file SALNs whether they receive compensation or not.
Only public officials serving in honorary capacity, casuals and contractual workers need not file SALNs.
Public officials must accomplish three copies of the form and submit them to the human resource management office or administration office of their agency. The forms are then transmitted to specific offices that keep custody of the asset declarations.
In the case of the President, Vice President and commissioners of constitutional bodies, their SALN can be accessed from the Office of the Ombudsman. The sectoral offices of the Ombudsman in Luzon, the Visayas and Mindanao keep records of appointed and elected local officials.
The SALNs of senators and representatives are kept at the Senate and House of Representatives, respectively. Those of Cabinet secretaries, undersecretaries and assistant secretaries as well as those of Armed Forces officers from the rank of colonel or naval captain can be accessed from the Records Office of the Office of the President.
The records of justices and judges can be found at the Clerk of Court or at the Office of the Court Administrator. The Civil Service Commission keeps the records of all other officials and employees.
Contents
A SALN should show an official’s assets, broken down as real property and personal and other property, and his or her liabilities, which can come in the form of loans, mortgages and other obligations the official must pay for either immediately or in the future.
For real property, a government official must declare the kind—land, house and lot, building—the location, the year and mode it was acquired, assessed value, current fair market value and cost improvements. Even if the property was acquired at no cost, through donation or inheritance, for example, the government official is required to state the fair market value.
Acquisition cost is the amount paid in obtaining ownership of the property. Fair market value is the purchase price that a willing buyer and a willing seller can agree on. Assessed value is the value stated in the records of the local assessor in the local government unit where the property is located.
Personal and other property are defined as those that are movable, such as cash, vehicles and jewelry. The SALN form requires a government official to list the year the property was acquired and the acquisition cost.
Examples of liabilities include personal loans, bank loans and loans taken out of the Government Service Insurance System, Pag-Ibig and other lending institutions. A government official must declare the nature of the liability and the amount.
An official’s net worth is the difference between total assets and total liabilities.
Apart from the assets and liabilities, government officials must identify the name of the business he or she is connected with or has a stake in, the business address, the nature of the business, and the date the shares were acquired or the connection made.
Relatives
Relatives in government must be identified, too. The SALN manual requires the listing of all relatives within the fourth degree of consanguinity and affinity, which means the official’s blood relatives as well the spouse’s. The names, positions, relationships and office addresses of relatives are required information in the SALN.
Disclosing business interests and relatives in government are supposed to be a safeguard against conflict-of-interest actions that may rule a government official’s behavior.
Guidelines revised
Whether intentional or not, many officials file erroneous or incomplete SALNs. For example, it is common for them to just declare the acquisition cost instead of the assessed and fair market values of their real property—even those that they have had for ages—in effect understating their total assets and net worth.
In February 2008, then Civil Service Commission chair Karina David issued a memorandum circular revising the SALN form. She said filing the same form year in, year out resulted in government officials and employees merely repeating the same entries, a chore she called “burdensome and time-consuming.”
“The Commission also noticed that the existing form was difficult to accomplish,” she said.
Two forms
The revised SALN consists of two forms. The Baseline Declaration (BD) is accomplished only once. New hires or appointees must submit it within 30 days of assumption of office. For incumbent officials, the deadline was April 30, 2008, covering information up to Dec. 31, 2007.
The other form is the Annual Declaration (AD), which is to be filed yearly on or before April 30.
The BD is the comprehensive listing of all of the government official’s assets, liabilities and net worth. The AD is not as detailed, but is more of an update on the BD. The government official declares in the AD whether he bought or sold assets, created or ended business and financial connections, and reduced or paid for liabilities.
“You can think of the AD as a passbook where only deposits and withdrawals from your account need to be documented,” said the manual for the filing of SALN under the new system.
Obstacles to access
Accessing SALNs used to be fairly simple. RA 6713 requires civil servants to be transparent and to adhere to a policy of full disclosure of transactions involving the public interest.
The implementing rules mandate that the SALN be available for public inspection at reasonable hours, can be accessed after 10 days from the time it was filed, and shall be available to the public for 10 years. All one had to do was write a request to the specific agency and wait for no more than 15 days before the document could be accessed.
But a recent memo from the Office of the Ombudsman has restricted public access to SALNs, imposing “certain guidelines” that Assistant Ombudsman Jose de Jesus Jr. said was meant to “merely abbreviate the otherwise confusing procedures in securing them [SALNs].”
The Ombudsman’s main argument in issuing Memorandum Circular 01 on June 16 was that it was just making sure that such documents “will not be used for illegal or immoral purposes.”
The memo states that a person seeking a copy of a SALN must prove that the reason for the request is “legitimate,” defined as for use in school or for study, for dissemination to the public by the news media, or for court proceedings with a subpoena from a judge.
But as Transparency and Accountability Network executive director Vincent Lazatin said, “Who will say in their request that the request is not legitimate or is illegal?”
Government IDs
The memo states that all requests are to be filed with the Public Assistance Bureau, and that the person who makes the request must accomplish a form that will bear his or her full name, signature, business or residential address and telephone number.
This form shall be subscribed and sworn to before a prosecutor in the Office of the Ombudsman.
In addition, one must present two government-issued IDs, or in the case of students a student ID. This is to ensure that the “requesting party is not fictitious.” This provision is also meant to protect the right to privacy of public officials and employees.
The memo states that the accomplished form will be treated as a public record to be used by the government official or employee should he or she resort to legal remedies.
A request may be denied if the purpose is “contrary to moral or public policy,” if it is commercial in nature, if the person making the request appears to be fictitious and if the reason for the request does not fall under the legitimate reasons listed.
If the reason is for study purposes, the SALN can be inspected and reproduced, provided that the name of the SALN owner is not disclosed—or will be blackened. The Office of Legal Affairs will also review requests that appear to be deceptive.
If the request will be used for “extortion purposes or will pose danger to the personal safety of the official or employee concerned and/or that of his family, the request shall not only be denied but shall be immediately reported to the proper law enforcement agency.”
The Ombudsman will provide the reason for the denial of the request in all cases, the memo states.
The memo also does not allow anyone to conduct independent lifestyle checks. Should a person making a request have “reason to believe that an official or employee’s assets and properties are unreasonably disproportionate to his/her income,” the requesting party will not gain access to the SALN. Instead, the matter will be reported to the Field Investigation Office, which will make the request to access the official or employee’s SALN. (Luz Rimban, Avigail Olarte, Yvonne Chua and Ellen Tordesillas).
See:
http://opinion.inquirer.net/inquireropinion/talkofthetown/view/20091107-234847/Monitoring-assets-of-civil-servants
It is under a pitiful state of legislative comatose in the archives of the Philippine Congress and may soon die of oblivion, the usual insidious disease of progressive and democratic bills filed in the legislature of the country.
That is, if the Filipinos continue to be numb and indifferent to this democratic advocacy.
Related to the said topic is the latest circular of the Ombudsman of the Philippines which tends to restrict full access to copies of the statements of assets and liabilities of all elective and appointive government officials and employees.
It is discussed in an article published recently in the Philippine Daly Inquirer authored by the investigative journalism center Vera Files.
I wish to reproduce the article in full below.
Monitoring assets of civil servants
By Vera Files
Philippine Daily Inquirer
First Posted 20:04:00 11/07/2009
MANILA, Philippines—If Filipinos are wondering how government officials and employees become millionaires overnight, buying expensive cars, moving to upscale homes, or taking frequent trips abroad, the answers can be partly found by checking their Statement of Assets, Liabilities and Networth (SALN).
A SALN is a document that all those serving in government—from the lowliest clerk to the President—are required to submit. It discloses how much money they have, what property they own, what companies and businesses they have interests in, how much they owe and who their relatives in government are.
The disclosure includes not just the officials’ own assets and liabilities, but even those of their spouses and children below 18.
Transparency, honesty
By filing a SALN, a government employee complies with what is supposed to be government’s policy of transparency and honesty.
“As a government employee, you occupy a position that is vested with public trust,” said the manual for filing SALNs published last year. “The SALN is the badge of honor of the honest civil servant that must be accomplished with pride. It shows that an employee did not exploit his or her public office for illegal gain.”
Anticorruption tool
The SALN is an important anticorruption tool. It serves as evidence in lifestyle checks on officials suspected of having illegally obtained their wealth or of using their positions to enrich themselves. Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, imposes criminal sanctions on grafters in government, while Republic Act No. 1379, the law on forfeiture of illegally acquired wealth, states that the government has the right to recover ill-gotten assets.
Government officials and employees can also be charged with perjury for misdeclaring their wealth in their SALNs.
Since 1960
The filing of SALNs started in 1960, when the anti-graft law was passed. In those days, public officers were mandated to submit every January a detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of their income, the amounts of their personal and family expenses, and the income taxes they paid.
A public officer found to have accumulated wealth “manifestly out of proportion to his salary and to his other lawful income” can either be dismissed or removed from office or, if convicted, be imprisoned for up to 10 years.
Modest living
Republic Act No. 6713, a post-Edsa law known as the Code of Conduct and Ethical Standards for Public Officials and Employees, makes the filing of SALNs not only a matter of obligation, but also a matter of ethics. Officials are supposed to live within their salaries and income because the Constitution says that not only is a public office a public trust, but also that public officials must “lead modest lives.”
The implementing rules of RA 6713 define modest living: maintaining a lifestyle “within the official’s visible means of income” as reflected in the official’s income tax returns, SALN and other documents pertaining to business interests and financial connections.
RA 6713 covers almost everyone in government service: those in elective as well as appointive positions, those holding permanent as well as temporary status, and those in career and non-career service. They must file SALNs whether they receive compensation or not.
Only public officials serving in honorary capacity, casuals and contractual workers need not file SALNs.
Public officials must accomplish three copies of the form and submit them to the human resource management office or administration office of their agency. The forms are then transmitted to specific offices that keep custody of the asset declarations.
In the case of the President, Vice President and commissioners of constitutional bodies, their SALN can be accessed from the Office of the Ombudsman. The sectoral offices of the Ombudsman in Luzon, the Visayas and Mindanao keep records of appointed and elected local officials.
The SALNs of senators and representatives are kept at the Senate and House of Representatives, respectively. Those of Cabinet secretaries, undersecretaries and assistant secretaries as well as those of Armed Forces officers from the rank of colonel or naval captain can be accessed from the Records Office of the Office of the President.
The records of justices and judges can be found at the Clerk of Court or at the Office of the Court Administrator. The Civil Service Commission keeps the records of all other officials and employees.
Contents
A SALN should show an official’s assets, broken down as real property and personal and other property, and his or her liabilities, which can come in the form of loans, mortgages and other obligations the official must pay for either immediately or in the future.
For real property, a government official must declare the kind—land, house and lot, building—the location, the year and mode it was acquired, assessed value, current fair market value and cost improvements. Even if the property was acquired at no cost, through donation or inheritance, for example, the government official is required to state the fair market value.
Acquisition cost is the amount paid in obtaining ownership of the property. Fair market value is the purchase price that a willing buyer and a willing seller can agree on. Assessed value is the value stated in the records of the local assessor in the local government unit where the property is located.
Personal and other property are defined as those that are movable, such as cash, vehicles and jewelry. The SALN form requires a government official to list the year the property was acquired and the acquisition cost.
Examples of liabilities include personal loans, bank loans and loans taken out of the Government Service Insurance System, Pag-Ibig and other lending institutions. A government official must declare the nature of the liability and the amount.
An official’s net worth is the difference between total assets and total liabilities.
Apart from the assets and liabilities, government officials must identify the name of the business he or she is connected with or has a stake in, the business address, the nature of the business, and the date the shares were acquired or the connection made.
Relatives
Relatives in government must be identified, too. The SALN manual requires the listing of all relatives within the fourth degree of consanguinity and affinity, which means the official’s blood relatives as well the spouse’s. The names, positions, relationships and office addresses of relatives are required information in the SALN.
Disclosing business interests and relatives in government are supposed to be a safeguard against conflict-of-interest actions that may rule a government official’s behavior.
Guidelines revised
Whether intentional or not, many officials file erroneous or incomplete SALNs. For example, it is common for them to just declare the acquisition cost instead of the assessed and fair market values of their real property—even those that they have had for ages—in effect understating their total assets and net worth.
In February 2008, then Civil Service Commission chair Karina David issued a memorandum circular revising the SALN form. She said filing the same form year in, year out resulted in government officials and employees merely repeating the same entries, a chore she called “burdensome and time-consuming.”
“The Commission also noticed that the existing form was difficult to accomplish,” she said.
Two forms
The revised SALN consists of two forms. The Baseline Declaration (BD) is accomplished only once. New hires or appointees must submit it within 30 days of assumption of office. For incumbent officials, the deadline was April 30, 2008, covering information up to Dec. 31, 2007.
The other form is the Annual Declaration (AD), which is to be filed yearly on or before April 30.
The BD is the comprehensive listing of all of the government official’s assets, liabilities and net worth. The AD is not as detailed, but is more of an update on the BD. The government official declares in the AD whether he bought or sold assets, created or ended business and financial connections, and reduced or paid for liabilities.
“You can think of the AD as a passbook where only deposits and withdrawals from your account need to be documented,” said the manual for the filing of SALN under the new system.
Obstacles to access
Accessing SALNs used to be fairly simple. RA 6713 requires civil servants to be transparent and to adhere to a policy of full disclosure of transactions involving the public interest.
The implementing rules mandate that the SALN be available for public inspection at reasonable hours, can be accessed after 10 days from the time it was filed, and shall be available to the public for 10 years. All one had to do was write a request to the specific agency and wait for no more than 15 days before the document could be accessed.
But a recent memo from the Office of the Ombudsman has restricted public access to SALNs, imposing “certain guidelines” that Assistant Ombudsman Jose de Jesus Jr. said was meant to “merely abbreviate the otherwise confusing procedures in securing them [SALNs].”
The Ombudsman’s main argument in issuing Memorandum Circular 01 on June 16 was that it was just making sure that such documents “will not be used for illegal or immoral purposes.”
The memo states that a person seeking a copy of a SALN must prove that the reason for the request is “legitimate,” defined as for use in school or for study, for dissemination to the public by the news media, or for court proceedings with a subpoena from a judge.
But as Transparency and Accountability Network executive director Vincent Lazatin said, “Who will say in their request that the request is not legitimate or is illegal?”
Government IDs
The memo states that all requests are to be filed with the Public Assistance Bureau, and that the person who makes the request must accomplish a form that will bear his or her full name, signature, business or residential address and telephone number.
This form shall be subscribed and sworn to before a prosecutor in the Office of the Ombudsman.
In addition, one must present two government-issued IDs, or in the case of students a student ID. This is to ensure that the “requesting party is not fictitious.” This provision is also meant to protect the right to privacy of public officials and employees.
The memo states that the accomplished form will be treated as a public record to be used by the government official or employee should he or she resort to legal remedies.
A request may be denied if the purpose is “contrary to moral or public policy,” if it is commercial in nature, if the person making the request appears to be fictitious and if the reason for the request does not fall under the legitimate reasons listed.
If the reason is for study purposes, the SALN can be inspected and reproduced, provided that the name of the SALN owner is not disclosed—or will be blackened. The Office of Legal Affairs will also review requests that appear to be deceptive.
If the request will be used for “extortion purposes or will pose danger to the personal safety of the official or employee concerned and/or that of his family, the request shall not only be denied but shall be immediately reported to the proper law enforcement agency.”
The Ombudsman will provide the reason for the denial of the request in all cases, the memo states.
The memo also does not allow anyone to conduct independent lifestyle checks. Should a person making a request have “reason to believe that an official or employee’s assets and properties are unreasonably disproportionate to his/her income,” the requesting party will not gain access to the SALN. Instead, the matter will be reported to the Field Investigation Office, which will make the request to access the official or employee’s SALN. (Luz Rimban, Avigail Olarte, Yvonne Chua and Ellen Tordesillas).
See:
http://opinion.inquirer.net/inquireropinion/talkofthetown/view/20091107-234847/Monitoring-assets-of-civil-servants
Saturday, November 7, 2009
Justice for migrant workers
There is now an ongoing global conference in Greece on the issue of the rights of migrant workers and their families. Perhaps it is relevant to state that on July 1, 2003 the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families entered into force, after the threshold of 20 ratifying states was reached in March 2003. (See: http://www.unesco.org/most/migration/convention).
I have reproduced below the full text of this very important Convention.
Before that, let me say a few words, reiterating some of the positions taken by concerned international bodies.
Today, one human being out of 35 is an international migrant. The number of people who have settled down in a country other than their own is estimated at 175 million worldwide. This represents 3 per cent of the world population.
The following countries have ratified the Convention as of June 2003
Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina, Cape Verde, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Mali, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, Uganda, Uruguay.
The countries that have ratified the Convention are home to some 4.5 million migrants, who will enjoy the protection offered by the Convention from 1st July 2003. However, they represent only 2.6 per cent of the world total migrant population, which is approximately 175 million.
The major objective of the Convention is to foster respect of migrants’ human rights:
1. preventing inhumane living and working conditions, physical and sexual abuse and degrading treatments (articles 10-11, 25, 54)
2. guaranteeing migrants’ rights to freedom of thought, expression and religion (articles 12-13),
3. guaranteeing migrants’ access to information on their rights (articles 33, 37),
4. ensuring their right to legal equality, which implies that migrant workers are subject to correct procedures, have access to interpreting services and are not sentenced to disproportionate penalties such as expulsion (articles 16-20, 22),
5. guaranteeing migrants’ equal access to educational and social services (articles 27-28, 30, 43-45, 54),
6. ensuring that migrants have the right to participate in trade unions (articles 26, 40).
7. ensuring that migrants can return to their country of origin if they wish to and that they are allowed to pay occasional visits and are encouraged to maintain cultural links (articles 8, 31, 38),
8. guaranteeing migrants’ political participation in the country of origin (articles 41-42),
9. ensuring migrants’ right to transfer their earnings to their home country (articles 32, 46-48).
As earlier stated, twenty-two states have ratified the Convention on Migrants’ Rights, in the following years :
1993: Egypt, Morocco
1994: Seychelles
1995: Colombia, Philippines, Uganda
1996: Sri Lanka, Senegal, Bosnia & Herzegovina
1997: Cape Verde
1999: Azerbaijan, Mexico
2000: Ghana, Guinea, Bolivia
2001: Uruguay, Belize
2002: Tajikistan, Ecuador
2003: El Salvador, Guatemala, Mali (acceded)
In addition, ten countries have signed the Convention. This means that their government has expressed the intention of adhering to the Convention. These are: Chile (1993), Bangladesh (1998), Turkey (1999), Comoros, Guinea-Bissau, Paraguay, Sao Tome and Principe, Sierra Leone (2000), Burkina Faso and Togo (2001).
So far, countries that have ratified the Convention are primarily countries of origin of migrants (such as Mexico, Morocco, Philippines). For these countries, the Convention is an important vehicle to protect their citizens living abroad.
The adoption of a Convention by the United Nations General Assembly entails in itself no binding commitment for individual states. States are committed once they have signed and ratified the Convention. This is why the impact of the Convention on Migrants’ Rights remains limited, as the majority of states have not signed or ratified it yet.
No Western migrant-receiving country has ratified the Convention, even though the majority of migrant workers (nearly 100 million out of a total of 175) live in Europe and North America. Other important receiving countries, such as India, Japan, Australia and the Gulf States, have not ratified the Convention either.
Below are some statistics.
The 10 countries with the largest migrant populations (2000)
Country Number of migrants (thousands)
Percent of total population
United States of America 34.988 12,4 %
Russian Federation 13.259 9,1 %
Germany 7.349 9,0 %
Ukraine 6.947 14,0 %
France 6.277 10,6 %
India 6.271 0,6 %
Canada 5.826 18,9 %
Saudi Arabia 5.255 25,8 %
Australia 4.705 24,6 %
Source:
International Migration Report 2002, United Nations (Department of Economic and Social Affairs, Population Division)
Here is the full text of the Convention.
INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS
OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES
Adopted by the General Assembly at its 45th session on 18 December 1990 (A/RES/45/158).
Preamble
The States Parties to the present Convention,
Taking into account the principles embodied in the basic instruments of the United Nations concerning human rights, in particular the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child.
Taking into account also the principles and standards set forth in the relevant instruments elaborated within the framework of the International Labour Organization, especially the Convention concerning Migration for Employment (No. 97), the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (No. 143), the Recommendation concerning Migration for Employment (No. 86), the Recommendation concerning Migrant Workers (No.151), the Convention concerning Forced or Compulsory Labour (No. 29) and the Convention concerning Abolition of Forced Labour (No. 105).
Reaffirming the importance of the principles contained in the Convention against Discrimination in Education of the United Nations Educational, Scientific and Cultural Organization,
Recalling the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Declaration of the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the Code of Conduct for Law Enforcement Officials, and the Slavery Conventions,
Recalling that one of the objectives of the International Labour Organization, as stated in its Constitution, is the protection of the interests of workers when employed in countries other than their own, and bearing in mind the expertise and experience of that organization in matters related to migrant workers and members of their families.
Recognizing the importance of the work done in connection with migrant workers and members of their families in various organs of the United Nations, in particular in the Commission on Human Rights and the Commission for Social Development, and in the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization, as well as in other international organizations.
Recognizing also the progress made by certain States on a regional or bilateral basis towards the protection of the rights of migrant workers and members of their families, as well as the importance and usefulness of bilateral and multilateral agreements in this field.
Realizing the importance and extent of the migration phenomenon, which involves millions of people and affects a large number of States in the international community.
Aware of the impact of the flows of migrant workers on States and people concerned, and desiring to establish norms which may contribute to the harmonization of the attitudes of States through the acceptance of basic principles concerning the treatment of migrant workers and members of their families.
Considering the situation of vulnerability in which migrant workers and members of their families frequently find themselves owing, among other things, to their absence from their State of origin and to the difficulties they may encounter arising from their presence in the State of employment.
Convinced that the rights of migrant workers and members of their families have not been sufficiently recognized everywhere and therefore require appropriate international protection.
Taking into account the fact that migration is often the cause of serious problems for the members of the families of migrant workers as well as for the workers themselves, in particular because of the scattering of the family,
Bearing in mind that the human problems involved in migration are even more serious in the case of irregular migration and convinced therefore that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights.
Considering that workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers and that certain employers find this an inducement to seek such labour in order to reap the benefits of unfair competition.
Considering also that recourse to the employment of migrant workers who are in an irregular situation will be discouraged if the fundamental human rights of all migrant workers are more widely recognized and, moreover, that granting certain additional rights to migrant workers and members of their families in a regular situation will encourage all migrants and employers to respect and comply with the laws and procedures established by the States concerned.
Convinced, therefore, of the need to bring about the international protection of the rights of all migrant workers and members of their families, reaffirming and establishing basic norms in a comprehensive convention which could be applied universally.
Have agreed as follows:
PART I
Scope and definitions
Article 1
1. The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
2. The present Convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence.
Article 2
For the purposes of the present Convention:
1. The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.
2. (a) The term "frontier worker" refers to a migrant worker who retains his or her habitual residence in a neighbouring State to which he or she normally returns every day or at least once a week;
b. The term "seasonal worker" refers to a migrant worker whose work by its character is dependent on seasonal conditions and is performed only during part of the year;
c. The term "seafarer", which includes a fisherman, refers to a migrant worker employed on board a vessel registered in a State of which he or she is not a national;
d. The term "worker on an offshore installation" refers to a migrant worker employed on an offshore installation that is under the jurisdiction of a State of which he or she is not a national;
e. The term "itinerant worker" refers to a migrant worker who, having his or her habitual residence in one State, has to travel to another State or States for short periods, owing to the nature of his or her occupation;
f. The term "project-tied worker" refers to a migrant worker admitted to a State of employment for a defined period to work solely on a specific project being carried out in that State by his or her employer;
g. The term "specified-employment worker" refers to a migrant worker:
Who has been sent by his or her employer for a restricted and defined period of time to a State of employment to undertake a specific assignment or duty; or
Who engages for a restricted and defined period of time in work that requires professional, commercial, technical or other highly specialized skill; or
Who, upon the request of his or her employer in the State of employment, engages for a restricted and defined period of time in work whose nature is transitory or brief; and who is required to depart from the State of employment either at the expiration of his or her authorized period of stay, or earlier if he or she no longer undertakes that specific assignment or duty or engages in that work;
h. The term "self-employed worker" refers to a migrant worker who is engaged in a remunerated activity otherwise than under a contract of employment and who earns his or her living through this activity normally working alone or together with members of his or her family, and to any other migrant worker recognized as self-employed by applicable legislation of the State of employment or bilateral or multilateral agreements.
Article 3
The present Convention shall not apply to:
a. Persons sent or employed by international organizations and agencies or persons sent or employed by a State outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions;
b. Persons sent or employed by a State or on its behalf outside its territory who participate in development programmes and other co-operation programmes, whose admission and status are regulated by agreement with the State of employment and who, in accordance with that agreement, are not considered migrant workers;
c. Persons taking up residence in a State different from their State of origin as investors;
d. Refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned;
e. Students and trainees;
f. Seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment.
Article 4
For the purposes of the present Convention the term "members of the family" refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.
Article 5
For the purposes of the present Convention, migrant workers and members of their families:
a. Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party;
b. Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.
Article 6
For the purposes of the present Convention:
a. The term "State of origin" means the State of which the person concerned is a national;
b. The term "State of employment" means a State where the migrant worker is to be engaged, is engaged or has been engaged in a remunerated activity, as the case may be;
c. The term "State of transit" means any State through which the person concerned passes on any journey to the State of employment or from the State of employment to the State of origin or the State of habitual residence.
PART II
Non-discrimination with respect to rights
Article 7
States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
PART III
Human rights of all migrant workers and members of their families
Article 8
1. Migrant workers and members of their families shall be free to leave any State, including their State of origin. This right shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present part of the Convention.
2. Migrant workers and members of their families shall have the right at any time to enter and remain in their State of origin.
Article 9
The right to life of migrant workers and members of their families shall be protected by law.
Article 10
No migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 11
1. No migrant worker or member of his or her family shall be held in slavery or servitude.
2. No migrant worker or member of his or her family shall be required to perform forced or compulsory labour.
3. Paragraph 2 of the present article shall not be held to preclude, in States where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court.
4. For the purpose of the present article the term "forced or compulsory labour" shall not include:
a. Any work or service not referred to in paragraph 3 of the present article normally required of a person who is under detention in consequence of a lawful order of a court or of a person during conditional release from such detention;
b. Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
c. Any work or service that forms part of normal civil obligations so far as it is imposed also on citizens of the State concerned.
Article 12
1. Migrant workers and members of their families shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of their choice and freedom either individually or in community with others and in public or private to manifest their religion or belief in worship, observance, practice and teaching.
2. Migrant workers and members of their families shall not be subject to coercion that would impair their freedom to have or to adopt a religion or belief of their choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4. States Parties to the present Convention undertake to have respect for the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 13
1. Migrant workers and members of their families shall have the right to hold opinions without interference.
2. Migrant workers and members of their families shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of their choice.
3. The exercise of the right provided for in paragraph 2 of the present article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a. For respect of the rights or reputation of others;
b. For the protection of the national security of the States concerned or of public order (ordre public) or of public health or morals;
c. For the purpose of preventing any propaganda for war;
d. For the purpose of preventing any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence.
Article 14
No migrant worker or member of his or her family shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, correspondence or other communications, or to unlawful attacks on his or her honour and reputation. Each migrant worker and member of his or her family shall have the right to the protection of the law against such interference or attacks.
Article 15
No migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under the legislation in force in the State of employment, the assets of a migrant worker or a member of his or her family are expropriated in whole or in part, the person concerned shall have the right to fair and adequate compensation.
Article 16
1. Migrant workers and members of their families shall have the right to liberty and security of person.
2. Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.
3. Any verification by law enforcement officials of the identity of migrant workers or members of their families shall be carried out in accordance with procedures established by law.
4. Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.
5. Migrant workers and members of their families who are arrested shall be informed at the time of arrest as far as possible in a language they understand of the reasons for their arrest and they shall be promptly informed in a language they understand of any charges against them.
6. Migrant workers and members of their families who are arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that while awaiting trial they shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings and, should the occasion arise, for the execution of the judgement.
7. When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner:
a. The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor;
b. The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay;
c. The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation.
8. Migrant workers and members of their families who are deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used.
9. Migrant workers and members of their families who have been victims of unlawful arrest or detention shall have an enforceable right to compensation.
Article 17
1. Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity.
2. Accused migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. Any migrant worker or member of his or her family who is detained in a State of transit or in a State of employment for violation of provisions relating to migration, shall be held, in so far as practicable, separately from convicted persons or persons detained pending trial.
4. During any period of imprisonment in pursuance of a sentence imposed by a court of law, the essential aim of the treatment of a migrant worker or a member of his or her family shall be his or her reformation and social rehabilitation. Juvenile offenders shall be separated from adults and be accorded treatment appropriate to their age and legal status.
5. During detention or imprisonment, migrant workers and members of their families shall enjoy the same rights as nationals to visits by members of their families.
6. Whenever a migrant worker is deprived of his or her liberty, the competent authorities of the State concerned shall pay attention to the problems that may be posed for members of his or her family, in particular for spouses and minor children.
7. Migrant workers and members of their families who are subjected to any form of detention or imprisonment in accordance with the law in force in the State of employment or in the State of transit shall enjoy the same rights as nationals of those States who are in the same situation.
8. If a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom.
Article 18
1. Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. In the determination of any criminal charge against them or of their rights and obligations in a suit of law, they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
2. Migrant workers and members of their families who are charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
3. In the determination of any criminal charge against them, migrant workers and members of their families shall be entitled to the following minimum guarantees:
a. To be informed promptly and in detail in a language they understand of the nature and cause of the charge against them;
b. To have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing;
c. To be tried without undue delay;
d. To be tried in their presence and to defend themselves in person or through legal assistance of their own choosing; to be informed, if they do not have legal assistance, of this right; and to have legal assistance assigned to them, in any case where the interests of justice so require and without payment by them in any such case if they do not have sufficient means to pay;
e. To examine or have examined the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
f. To have the free assistance of an interpreter if they cannot understand or speak the language used in court;
g. Not to be compelled to testify against themselves or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Migrant workers and members of their families convicted of a crime shall have the right to their conviction and sentence being reviewed by a higher tribunal according to law.
6. When a migrant worker or a member of his or her family has, by a final decision, been convicted of a criminal offence and when subsequently his or her conviction has been reversed or he or she has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to that person.
7. No migrant worker or member of his or her family shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of the State concerned.
Article 19
1. No migrant worker or member of his or her family shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time when the criminal offence was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when it was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, he or she shall benefit thereby.
2. Humanitarian considerations related to the status of a migrant worker, in particular with respect to his or her right of residence or work, should be taken into account in imposing a sentence for a criminal offence committed by a migrant worker or a member of his or her family.
Article 20
1. No migrant worker or member of his or her family shall be imprisoned merely on the ground of failure to fulfil a contractual obligation.
2. No migrant worker or member of his or her family shall be deprived of his or her authorization of residence or work permit or expelled merely on the ground of failure to fulfil an obligation arising out of a work contract unless fulfilment of that obligation constitutes a condition for such authorization or permit.
Article 21
It shall be unlawful for anyone, other than a public official duly authorized by law, to confiscate, destroy or attempt to destroy identity documents, documents authorizing entry to or stay, residence or establishment in the national territory or work permits. No authorized confiscation of such documents shall take place without delivery of a detailed receipt. In no case shall it be permitted to destroy the passport or equivalent document of a migrant worker or a member of his or her family.
Article 22
1. Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually.
2. Migrant workers and members of their families may be expelled from the territory of a State Party only in pursuance of a decision taken by the competent authority in accordance with law.
3. The decision shall be communicated to them in a language they understand. Upon their request where not otherwise mandatory, the decision shall be communicated to them in writing and, save in exceptional circumstances on account of national security, the reasons for the decision likewise stated. The persons concerned shall be informed of these rights before or at the latest at the time the decision is rendered.
4. Except where a final decision is pronounced by a judicial authority, the person concerned shall have the right to submit the reason he or she should not be expelled and to have his or her case reviewed by the competent authority, unless compelling reasons of national security require otherwise. Pending such review, the person concerned shall have the right to seek a stay of the decision of expulsion.
5. If a decision of expulsion that has already been executed is subsequently annulled, the person concerned shall have the right to seek compensation according to law and the earlier decision shall not be used to prevent him or her from re-entering the State concerned.
6. In case of expulsion, the person concerned shall have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities.
7. Without prejudice to the execution of a decision of expulsion, a migrant worker or a member of his or her family who is subject to such a decision may seek entry into a State other than his or her State of origin.
8. In case of expulsion of a migrant worker or a member of his or her family the costs of expulsion shall not be borne by him or her. The person concerned may be required to pay his or her own travel costs.
9. Expulsion from the State of employment shall not in itself prejudice any rights of a migrant worker or a member of his or her family acquired in accordance with the law of that State, including the right to receive wages and other entitlements due to him or her
Article 23
Migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired. In particular, in case of expulsion, the person concerned shall be informed of this right without delay and the authorities of the expelling State shall facilitate the exercise of such right.
Article 24
Every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law.
Article 25
1. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and:
a. Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by this term;
b. Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.
3. States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of any such irregularity.
Article 26
1. States Parties recognize the right of migrant workers and members of their families:
a. To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned;
b. To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;
c. To seek the aid and assistance of any trade union and of any such association as
aforesaid.
2. No restrictions may be placed on the exercise of these rights other than those that are prescribed by law and which are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
Article 27
1. With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfil the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of application of this norm.
2. Where the applicable legislation does not allow migrant workers and members of their families a benefit, the States concerned shall examine the possibility of reimbursing interested persons the amount of contributions made by them with respect to that benefit on the basis of the treatment granted to nationals who are in similar circumstances.
Article 28
Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.
Article 29
Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality.
Article 30
Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment.
Article 31
1. States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.
2. States Parties may take appropriate measures to assist and encourage efforts in this respect.
Article 32
Upon the termination of their stay in the State of employment, migrant workers and members of their families shall have the right to transfer their earnings and savings and, in accordance with the applicable legislation of the States concerned, their personal effects and belongings.
Article 33
1. Migrant workers and members of their families shall have the right to be informed by the State of origin, the State of employment or the State of transit as the case may be concerning:
a. Their rights arising out of the present Convention;
b. The conditions of their admission, their rights and obligations under the law and practice of the State concerned and such other matters as will enable them to comply with administrative or other formalities in that State.
2. States Parties shall take all measures they deem appropriate to disseminate the said information or to ensure that it is provided by employers, trade unions or other appropriate bodies or institutions. As appropriate, they shall co-operate with other States concerned.
3. Such adequate information shall be provided upon request to migrant workers and members of their families, free of charge, and, as far as possible, in a language they are able to understand.
Article 34
Nothing in the present part of the Convention shall have the effect of relieving migrant workers and the members of their families from either the obligation to comply with the laws and regulations of any State of transit and the State of employment or the obligation to respect the cultural identity of the inhabitants of such States.
Article 35
Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation, nor shall it prejudice the measures intended to ensure sound and equitable conditions for international migration as provided in part VI of the present Convention.
PART IV
Other rights of migrant workers and members of their families who are documented or in a regular situation
Article 36
Migrant workers and members of their families who are documented or in a regular situation in the Sate of employment shall enjoy the rights set forth in the present part of the Convention in addition to those set forth in part III.
Article 37
Before their departure, or at the latest at the time of their admission to the State of employment, migrant workers and members of their families shall have the right to be fully informed by the State of origin or the State of employment, as appropriate, of all conditions applicable to their admission and particularly those concerning their stay and the remunerated activities in which they may engage as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.
Article 38
1. States of employment shall make every effort to authorize migrant workers and members of their families to be temporarily absent without effect upon their authorization to stay or to work, as the case may be. In doing so, States of employment shall take into account the special needs and obligations of migrant workers and members of their families, in particular in their States of origin.
2. Migrant workers and members of their families shall have the right to be fully informed of the terms on which such temporary absences are authorized.
Article 39
1. Migrant workers and members of their families shall have the right to liberty of movement in the territory of the State of employment and freedom to choose their residence there.
2. The rights mentioned in paragraph 1 of the present article shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
Article 40
1. Migrant workers and members of their families shall have the right to form associations and trade unions in the State of employment for the promotion and protection of their economic, social, cultural and other interests.
2. No restrictions may be placed on the exercise of this right other than those that are prescribed by law and are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
Article 41
1. Migrant workers and members of their families shall have the right to participate in public affairs of their State of origin and to vote and to be elected at elections of that State, in accordance with its legislation.
2. The States concerned shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights.
Article 42
1. States Parties shall consider the establishment of procedures or institutions through which account may be taken, both in States of origin and in States of employment, of special needs, aspirations and obligations of migrant workers and members of their families and shall envisage, as appropriate, the possibility for migrant workers and members of their families to have their freely chosen representatives in those institutions.
2. States of employment shall facilitate, in accordance with their national legislation, the consultation or participation of migrant workers and members of their families in decisions concerning the life and administration of local communities.
3. Migrant workers may enjoy political rights in the State of employment if that State, in the exercise of its sovereignty, grants them such rights.
Article 43
1. Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to:
a. Access to educational institutions and services subject to the admission requirements and other regulations of the institutions and services concerned;
b. Access to vocational guidance and placement services;
c. Access to vocational training and retraining facilities and institutions;
d. Access to housing, including social housing schemes, and protection against exploitation in respect of rents;
e. Access to social and health services, provided that the requirements for participation in the respective schemes are met;
f. Access to co-operatives and self-managed enterprises, which shall not imply a change of their migration status and shall be subject to the rules and regulations of the bodies concerned;
g. Access to and participation in cultural life.
2. States Parties shall promote conditions to ensure effective equality of treatment to enable migrant workers to enjoy the rights mentioned in paragraph 1 of the present article whenever the terms of their stay, as authorized by the State of employment, meet the appropriate requirements.
3. States of employment shall not prevent an employer of migrant workers from establishing housing or social or cultural facilities for them. Subject to article 70 of the present Convention, a State of employment may make the establishment of such facilities subject to the requirements generally applied in that State concerning their installation.
Article 44
1. States Parties, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers.
2. States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.
3. States of employment, on humanitarian grounds, shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers.
Article 45
1. Members of the families of migrant workers shall, in the State of employment, enjoy equality of treatment with nationals of that State in relation to:
a. Access to educational institutions and services, subject to the admission requirements and other regulations of the institutions and services concerned;
b. Access to vocational guidance and training institutions and services, provided that requirements for participation are met;
c. Access to social and health services, provided that requirements for participation in the respective schemes are met;
d. Access to and participation in cultural life.
2. States of employment shall pursue a policy, where appropriate in collaboration with the States of origin, aimed at facilitating the integration of children of migrant workers in the local school system, particularly in respect of teaching them the local language.
3. States of employment shall endeavour to facilitate for the children of migrant workers the teaching of their mother tongue and culture and, in this regard, States of origin shall collaborate whenever appropriate.
4. States of employment may provide special schemes of education in the mother tongue of children of migrant workers, if necessary in collaboration with the States of origin.
Article 46
Migrant workers and members of their families shall, subject to the applicable legislation of the States concerned, as well as relevant international agreements and the obligations of the States concerned arising out of their participation in customs unions, enjoy exemption from import and export duties and taxes in respect of their personal and household effects as well as the equipment necessary to engage in the remunerated activity for which they were admitted to the State of employment:
a. Upon departure from the State of origin or State of habitual residence;
b. Upon initial admission to the State of employment;
c. Upon final departure from the State of employment;
d. Upon final return to the State of origin or State of habitual residence.
Article 47
1. Migrant workers shall have the right to transfer their earnings and savings, in particular those funds necessary for the support of their families, from the State of employment to their State of origin or any other State. Such transfers shall be made in conformity with procedures established by applicable legislation of the State concerned and in conformity with applicable international agreements.
2. States concerned shall take appropriate measures to facilitate such transfers.
Article 48
1. Without prejudice to applicable double taxation agreements, migrant workers and members of their families shall, in the matter of earnings in the State of employment:
a. Not be liable to taxes, duties or charges of any description higher or more onerous than those imposed on nationals in similar circumstances;
b. Be entitled to deducations or exemptions from taxes of any description and to any tax allowances applicable to nationals in similar circumstances, including tax allowances for dependent members of their families.
2. States Parties shall endeavour to adopt appropriate measures to avoid double taxation of the earnings and savings of migrant workers and members of their families.
Article 49
1. Where separate authorizations to reside and to engage in employment are required by national legislation, the States of employment shall issue to migrant workers authorization of residence for at least the same period of time as their authorization to engage in remunerated activity.
2. Migrant workers who in the State of employment are allowed freely to choose their remunerated activity shall neither be regarded as in an irregular situation nor shall they lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permits or similar authorizations.
3. In order to allow migrant workers referred to in paragraph 2 of the present article sufficient time to find alternative remunerated activities, the authorization of residence shall not be withdrawn at least for a period corresponding to that during which they may be entitled to unemployment benefits.
Article 50
1. In the case of death of a migrant worker or dissolution of marriage, the State of employment shall favourably consider granting family members of that migrant worker residing in that State on the basis of family reunion an authorization to stay; the State of employment shall take into account the length of time they have already resided in that State.
2. Members of the family to whom such authorization is not granted shall be allowed before departure a reasonable period of time in order to enable them to settle their affairs in the State of employment.
3. The provisions of paragraphs 1 and 2 of the present article may not be interpreted as adversely affecting any right to stay and work otherwise granted to such family members by the legislation of the State of employment or by bilateral and multilateral treaties applicable to that State.
Article 51
Migrant workers who in the State of employment are not permitted freely to choose their remunerated activity shall neither be regarded as in an irregular situation nor shall they lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permit, except where the authorization of residence is expressly dependent upon the specific remunerated activity for which they were admitted. Such migrant workers shall have the right to seek alternative employment, participation in public work schemes and retraining during the remaining period of their authorization to work, subject to such conditions and limitations as are specified in the authorization to work.
Article 52
1. Migrant workers in the State of employment shall have the right freely to choose their remunerated activity, subject to the following restrictions or conditions.
2. For any migrant worker a State of employment may:
a. Restrict access to limited categories of employment, functions, services or activities where this is necessary in the interests of this State and provided for by national legislation;
b. Restrict free choice of remunerated activity in accordance with its legislation concerning recognition of occupational qualifications acquired outside its territory. However, States Parties concerned shall endeavour to provide for recognition of such qualifications.
3. For migrant workers whose permission to work is limited in time, a State of employment may also:
a. Make the right freely to choose their remunerated activities subject to the condition that the migrant worker has resided lawfully in its territory for the purpose of remunerated activity for a period of time prescribed in its national legislation that should not exceed two years;
b. Limit access by a migrant worker to remunerated activities in pursuance of a policy of granting priority to its nationals or to persons who are assimilated to them for these purposes by virtue of legislation or bilateral or multilateral agreements. Any such limitation shall cease to apply to a migrant worker who has resided lawfully in its territory for the purpose of remunerated activity for a period of time prescribed in its national legislation that should not exceed five years.
4. States of employment shall prescribe the conditions under which a migrant worker who has been admitted to take up employment may be authorized to engage in work on his or her own account. Account shall be taken of the period during which the worker has already been lawfully in the State of employment.
Article 53
1. Members of a migrant worker's family who have themselves an authorization of residence or admission that is without limit of time or is automatically renewable shall be permitted freely to choose their remunerated activity under the same conditions as are applicable to the said migrant worker in accordance with article 52 of the present Convention.
2. With respect to members of a migrant worker's family who are not permitted freely to choose their remunerated activity, States Parties shall consider favourably granting them priority in obtaining permission to engage in a remunerated activity over other workers who seek admission to the State of employment, subject to applicable bilateral and multilateral agreements.
Article 54
1. Without prejudice to the terms of their authorization of residence or their permission to work and the rights provided for in articles 25 and 27 of the present Convention, migrant workers shall enjoy equality of treatment with nationals of the State of employment in respect of:
a. Protection against dismissal;
b. Unemployment benefits;
c. Access to public work schemes intended to combat unemployment;
d. Access to alternative employment in the event of loss of work or termination of other remunerated activity, subject to article 52 of the present Convention.
2. If a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment, on terms provided for in article 18, paragraph 1, of the present Convention.
Article 55
Migrant workers who have been granted permission to engage in are munerated activity, subject to the conditions attached to such permission, shall be entitled to equality of treatment with nationals of the State of employment in the exercise of that remunerated activity.
Article 56
1. Migrant workers and members of their families referred to in the present part of the Convention may not be expelled from a State of employment, except for reasons defined in the national legislation of that State, and subject to the safeguards established in part III.
2. Expulsion shall not be resorted to for the purpose of depriving a migrant worker or a member of his or her family of the rights arising out of the authorization of residence and the work permit.
3. In considering whether to expel a migrant worker or a member of his or her family, account should be taken of humanitarian considerations and of the length of time that the person concerned has already resided in the State of employment.
PART V
Provisions applicable to particular categories of migrant workers and members of their families
Article 57
The particular categories of migrant workers and members of their families specified in the present part of the Convention who are documented or in a regular situation shall enjoy the rights set forth in part III and, except as modified below, the rights set forth in part IV.
Article 58
1. Frontier workers, as defined in article 2, paragraph 2 (a), of the present Convention, shall be entitled to the rights provided for in part IV that can be applied to them by reason of their presence and work in the territory of the State of employment, taking into account that they do not have their habitual residence in that State.
2. States of employment shall consider favourably granting frontier workers the right freely to choose their remunerated activity after a specified period of time. The granting of that right shall not affect their status as frontier workers.
Article 59
1. Seasonal workers, as defined in article 2, paragraph 2 (b), of the present Convention, shall be entitled to the rights provided for in part IV that can be applied to them by reason of their presence and work in the territory of the State of employment and that are compatible with their status in that State as seasonal workers, taking into account the fact that they are present in that State for only part of the year.
2. The State of employment shall, subject to paragraph 1 of the present article, consider granting seasonal workers who have been employed in its territory for a significant period of time the possibility of taking up other remunerated activities and giving them priority over other workers who seek admission to that State, subject to applicable bilateral and multilateral agreements.
Article 60
Itinerant workers, as defined in article 2, paragraph 2 (e), of the present Convention, shall be entitled to the rights provided for in part IV that can be granted to them by reason of their presence and work in the territory of the State of employment and that are compatible with their status as itinerant workers in that State.
Article 61
1. Project-tied workers, as defined in article 2, paragraph 2 (f), of the present Convention, and members of their families shall be entitled to the rights provided for in part IV except the provisions of article 43, paragraphs 1 (b) and (c), article 43, paragraph 1 (d), as it pertains to social housing schemes, article 45, paragraph 1 (b), and articles 52 to 55.
2. If a project-tied worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State which has jurisdiction over that employer, on terms provided for in article 18, paragraph 1, of the present Convention.
3. Subject to bilateral or multilateral agreements in force for them, the States Parties concerned shall endeavour to enable project-tied workers to remain adequately protected by the social security systems of their States of origin or habitual residence during their engagement in the project. States Parties concerned shall take appropriate measures with the aim of avoiding any denial of rights or duplication of payments in this respect.
4. Without prejudice to the provisions of article 47 of the present Convention and to relevant bilateral or multilateral agreements, States Parties concerned shall permit payment of the earnings of project-tied workers in their State of origin or habitual residence.
Article 62
1. Specified-employment workers as defined in article 2, paragraph 2 (g), of the present Convention, shall be entitled to the rights provided for in part IV, except the provisions of article 43, paragraphs 1 (b) and (c), article 43, paragraph 1 (d), as it pertains to social housing schemes, article 52, and article 54, paragraph 1 (d).
2. Members of the families of specified-employment workers shall be entitled to the rights relating to family members of migrant workers provided for in part IV of the present Convention, except the provisions of article 53.
Article 63
1. Self-employed workers, as defined in article 2, paragraph 2 (h), of the present Convention, shall be entitled to the rights provided for in part IV with the exception of those rights which are exclusively applicable to workers having a contract of employment.
2. Without prejudice to articles 52 and 79 of the present Convention, the termination of the economic activity of the self-employed workers shall not in itself imply the withdrawal of the authorization for them or for the members of their families to stay or to engage in a remunerated activity in the State of employment except where the authorization of residence is expressly dependent upon the specific remunerated activity for which they were admitted.
PART VI
Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families
Article 64
1. Without prejudice to article 79 of the presen Convention, the States Parties concerned shall asappropriate consult and co-operate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families.
2. In this respect, due regard shall be paid not only to labour needs and resources, but also to the social, economic, cultural and other needs of migrant workers and members of their families involved, as well as to the consequences of such migration for the communities concerned.
Article 65
1. States Parties shall maintain appropriate services to deal with questions concerning international migration of workers and members of their families. Their functions shall include, inter alia:
a. The formulation and implementation of policies regarding such migration;
b. An exchange of information, consultation and co-operation with the competent authorities of other States Parties involved in such migration;
c. The provision of appropriate information, particularly to employers, workers and their organizations on policies, laws and regulations relating to migration and employment, on agreements concluded with other States concerning migration and on other relevant matters;
d. The provision of information and appropriate assistance to migrant workers and members of their families regarding requisite authorizations and formalities and arrangements for departure, travel, arrival, stay, remunerated activities, exit and return, as well as on conditions of work and life in the State of employment and on customs, currency, tax and other relevant laws and regulations.
2. States Parties shall facilitate as appropriate the provision of adequate consular and other services that are necessary to meet the social, cultural and other needs of migrant workers and members of their families.
Article 66
1. Subject to paragraph 2 of the present article, the right to undertake operations with a view to the recruitment of workers for employment in another State shall be restricted to:
a. Public services or bodies of the State in which such operations take place;
b. Public services or bodies of the State of employment on the basis of agreement between the States concerned;
c. A body established by virtue of a bilateral or multilateral agreement.
2. Subject to any authorization, approval and supervision by the public authorities of the States Parties concerned as may be established pursuant to the legislation and practice of those States, agencies, prospective employers or persons acting on their behalf may also be permitted to undertake the said operations.
Article 67
1. States Parties concerned shall co-operate as appropriate in the adoption of measures regarding the orderly return of migrant workers and members of their families to the State of origin when they decide to return or their authorization of residence or employment expires or when they are in the State of employment in an irregular situation.
2. Concerning migrant workers and members of their families in a regular situation, States Parties concerned shall co-operate as appropriate, on terms agreed upon by those States, with a view to promoting adequate economic conditions for their resettlement and to facilitating their durable social and cultural reintegration in the State of origin.
Article 68
1. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:
a. Appropriate measures against the dissemination of misleading information relating to emigration and immigration;
b. Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;
c. Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.
2. States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-a-vis their employer arising from employment shall not be impaired by these measures.
Article 69
1. States Parties shall, when there are migrant workers and members of their families within their territory in an irregular situation, take appropriate measures to ensure that such a situation does not persist.
2. Whenever States Parties concerned consider the possibility of regularizing the situation of such persons in accordance with applicable national legislation and bilateral or multilateral agreements, appropriate account shall be taken of the circumstances of their entry, the duration of their stay in the States of employment and other relevant considerations, in particular those relating to their family situation.
Article 70
States Parties shall take measures not less favourable than those applied to nationals to ensure that working and living conditions of migrant workers and members of their families in a regular situation are in keeping with the standards of fitness, safety, health and principles of human dignity.
Article 71
1. States Parties shall facilitate, whenever necessary, the repatriation to the State of origin of the bodies of deceased migrant workers or members of their families.
2. As regards compensation matters relating to the death of a migrant worker or a member of his or her family, States Parties shall, as appropriate, provide assistance to the persons concerned with a view to the prompt settlement of such matters. Settlement of these matters shall be carried out on the basis of applicable national law in accordance with the provisions of the present Convention and any relevant bilateral or multilateral agreements.
PART VII
Application of the Convention
Article 72
1. For the purpose of reviewing the application of the present Convention, there shall be established a Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereinafter referred to as "the Committee");
The Committee shall consist, at the time of entry into force of the present Convention, of ten and, after the entry into force of theConvention for the forty-first State Party, of fourteen experts of high moral standing, impartiality and recognized competence in the field covered by the Convention.
2. Members of the Committee shall be elected by secret ballot by the States Parties from a list of persons nominated by the States Parties, due consideration being given to equitable geographical distribution, including both States of origin and States of employment, and to the representation of the principal legal systems. Each State Party may nominate one person from among its own nationals;
Members shall be elected and shall serve in their personal capacity.
3. The initial elction shall be held no later than six months after the date of the entry into force of the present Convention and subsequent elections every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to all States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties that have nominated them, and shall submit it to the States Parties not later than one month before the date of the corresponding election, together with the curricula vitae of the persons thus nominated.
4. Elections of members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the States Parties present and voting.
5. The members of the Committee shall serve for a term of four years. However, the terms of five of the members elected in the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting of States Parties;
The election of the four additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of the present article, following the entry into force of the Convention for the forty-first State Party.
The term of two of the additional members elected on this occasion shall expire at the end of two years; the names of these members shall be chosen by lot by the Chairman of the meeting of States Parties;
The members of the Committee shall be eligible for re-election if renominated.
6. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party that nominated the expert shall appoint another expert from among its own nationals for the remaining part of the term. The new appointment is subject to the approval of the Committee.
7. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee.
8. The members of the Committee shall receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide.
9. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
Article 73
1. States Parties undertake to submit to the Secretary-General of the United Nations for consideration by the Committee a report on the legislative, judicial, administrative and other measures they have taken to give effect to the provisions of the present Convention:
a. Within one year after the entry into force of the Convention for the State Party concerned;
b. Thereafter every five years and whenever the Committee so requests.
2. Reports prepared under the present article shall also indicate factors and difficulties, if any, affecting the implementation of the Convention and shall include information on the characteristics of migration flows in which the State Party concerned is involved.
3. The Committee shall decide any further guidelines applicable to the content of the reports.
4. States Parties shall make their reports widely available to the public in their own countries.
Article 74
1. The Committee shall examine the reports submitted by each State Party and shall transmit such comments as it may consider appropriate to the State Party concerned. This State Party may submit to the Committee observations on any comment made by the Committee in accordance with the present article. The Committee may request supplementary information from States Parties when considering these reports.
2. The Secretary-General of the United Nations shall, in due time before the opening of each regular session of the Committee, transmit to the Director-General of the International Labour Office copies of the reports submitted by States Parties concerned and information relevant to the consideration of these reports, in order to enable the Office to assist the Committee with the expertise the Office may provide regarding those matters dealt with by the present Convention that fall within the sphere of competence of the International Labour Organisation. The Committee shall consider in its deliberations such comments and materials as the Office may provide.
3. The Secretary-General of the United Nations may also, after consultation with the Committee, transmit to other specialized agencies as well as to intergovernmental organizations, copies of such parts of these reports as may fall within their competence.
4. The Committee may invite the specialized agencies and organs of the United Nations, as well as intergovernmental organizations and other concerned bodies to submit, for consideration by the Committee, written information on such matters dealt with in the present Convention as fall within the scope of their activities.
5. The International Labour Office shall be invited by the Committee to appoint representatives to participate, in a consultative capacity, in the meetings of the Committee.
6. The Committee may invite representatives of other specialized agencies and organs of the United Nations, as well as of intergovernmental organizations, to be present and to be heard in its meetings whenever matters falling within their field of
competence are considered.
7. The Committee shall present an annual report to the General Assembly of the United Nations on the implementation of the present Convention, containing its own considerations and recommendations, based, in particular, on the examination of the reports and any observations presented by States Parties.
8. The Secretary-General of the United Nations shall transmit the annual reports of the Committee to the States Parties to the present Convention, the Economic and Social Council, the Commission on Human Rights of the United Nations, the Director-General of the International Labour Office and other relevant organizations.
Article 75
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
3. The Committee shall normally meet annually.
4. The meetings of the Committee shall normally be held at United Nations Headquarters.
Article 76
1. A State Party to the present Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Communications under this article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:
a. If a State Party to the present Convention considers that another State Party is not fulfilling its obligations under the present Convention, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;
b. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;
c. The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where, in the view of the Committee, the application of the remedies is unreasonably prolonged;
d. Subject to the provisions of subparagraph (c) of the present paragraph, the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the present Convention;
e. The Committee shall hold closed meetings when examining communications under the present article;
f. In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;
g. The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;
h. The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows:
2. If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;
3. If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them.
In every matter, the report shall be communicated to the States Parties concerned.
4. The provisions of the present article shall come into force when ten States Parties to the present Convention have made a declaration under paragraph 1 of the present article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by any State Party shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.
Article 77
1. A State Party to the present Convention may at any time declare under the present article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim that their individual rights as established by the present Convention have been violated by that State Party. No communication shall be received by the Committee if it concerns a State Party that has not made such a declaration.
2. The Committee shall consider inadmissible any communication under the present article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the present Convention.
3. The Committee shall not consider any communications from an individual under the present article unless it has ascertained that:
a. The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;
b. The individual has exhausted all available domestic remedies; this shall not be the rule where, in the view of the Committee, the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to that individual.
4. Subject to the provisions of paragraph 2 of the present article, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to the present Convention that has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
5. The Committee shall consider communications received under the present article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.
6. The Committee shall hold closed meetings when examining communications under the present article.
7. The Committee shall forward its views to the State Party concerned and to the individual.
8. The provisions of the present article shall come into force when ten States Parties to the present Convention have made declarations under paragraph 1 of the present article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by or on behalf of an individual shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.
Article 78
The provisions of article 76 of the present Convention shall be applied without prejudice to any procedures for settling disputes or complaints in the field covered by the present Convention laid down in the constituent instruments of, or in conventions adopted by, the United Nations and the specialized agencies and shall not prevent the States Parties from having recourse to any procedures for settling a dispute in accordance with international agreements in force between them.
PART VIII
General provisions
Article 79
Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.
Article 80
Nothing in the present Convention shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Convention.
Article 81
1. Nothing in the present Convention shall affect more favourable rights or freedoms granted to migrant workers and members of their families by virtue of:
a. The law or practice of a State Party; or
b. Any bilateral or multilateral treaty in force for the State Party concerned.
2. Nothing in the present Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act that would impair any of the rights and freedoms as set forth in the present Convention.
Article 82
The rights of migrant workers and members of their families provided for in the present Convention may not be renounced. It shall not be permissible to exert any form of pressure upon migrant workers and members of their families with a view to their relinquishing or foregoing any of the said rights. It shall not be possible to derogate by contract from rights recognized in the present Convention. States Parties shall take appropriate measures to ensure that these principles are respected.
Article 83
Each State Party to the present Convention undertakes:
a. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. To ensure that any persons seeking such a remedy shall have his or her claim reviewed and decided by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c. To ensure that the competent authorities shall enforce such remedies when granted.
Article 84
Each State Party undertakes to adopt the legislative and other measures that are necessary to implement the provisions of the present Convention.
PART IX
Final provisions
Article 85
The Secretary-General of the United Nations is designated as the depositary of the present Convention.
Article 86
1. The present Convention shall be open for signature by all States. It is subject to ratification.
2. The present Convention shall be open to accession by any State.
3. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.
Article 87
1. The present Convention shall enter into force on the first day of the month following a period of three months after the date of the deposit of the twentieth instrument of ratification or accession.
2. For each State ratifying or acceding to the present Convention after its entry into force, the Convention shall enter into force on the first day of the month following a period of three months after the date of the deposit of its own instrument of ratification or accession.
Article 88
A State ratifying or acceding to the present Convention may not exclude the application of any Part of it, or, without prejudice to article 3, exclude any particular category of migrant workers from its application.
Article 89
1. Any State Party may denounce the present Convention, not earlier than five years after the Convention has entered into force for the State concerned, by means of a notification in writing addressed to the Secretary-General of the United Nations.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of twelve months after the date of the receipt of the notification by the Secretary-General of the United Nations.
3. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.
4. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.
Article 90
1. After five years from the entry into force of the Convention a request for the revision of the Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting shall be submitted to the General Assembly for approval.
2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties in accordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Convention and any earlier amendment that they have accepted.
Article 91
1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of signature, ratification or accession.
2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.
Article 92
1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention that is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of the present article. The other States Parties shall not be bound by that paragraph with respect to any State Party that has made such a declaration.
3. Any State Party that has made a declaration in accordance with paragraph 2 of the present article may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.
Article 93
1. The present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Convention to all States.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
I have reproduced below the full text of this very important Convention.
Before that, let me say a few words, reiterating some of the positions taken by concerned international bodies.
Today, one human being out of 35 is an international migrant. The number of people who have settled down in a country other than their own is estimated at 175 million worldwide. This represents 3 per cent of the world population.
The following countries have ratified the Convention as of June 2003
Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina, Cape Verde, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Mali, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, Uganda, Uruguay.
The countries that have ratified the Convention are home to some 4.5 million migrants, who will enjoy the protection offered by the Convention from 1st July 2003. However, they represent only 2.6 per cent of the world total migrant population, which is approximately 175 million.
The major objective of the Convention is to foster respect of migrants’ human rights:
1. preventing inhumane living and working conditions, physical and sexual abuse and degrading treatments (articles 10-11, 25, 54)
2. guaranteeing migrants’ rights to freedom of thought, expression and religion (articles 12-13),
3. guaranteeing migrants’ access to information on their rights (articles 33, 37),
4. ensuring their right to legal equality, which implies that migrant workers are subject to correct procedures, have access to interpreting services and are not sentenced to disproportionate penalties such as expulsion (articles 16-20, 22),
5. guaranteeing migrants’ equal access to educational and social services (articles 27-28, 30, 43-45, 54),
6. ensuring that migrants have the right to participate in trade unions (articles 26, 40).
7. ensuring that migrants can return to their country of origin if they wish to and that they are allowed to pay occasional visits and are encouraged to maintain cultural links (articles 8, 31, 38),
8. guaranteeing migrants’ political participation in the country of origin (articles 41-42),
9. ensuring migrants’ right to transfer their earnings to their home country (articles 32, 46-48).
As earlier stated, twenty-two states have ratified the Convention on Migrants’ Rights, in the following years :
1993: Egypt, Morocco
1994: Seychelles
1995: Colombia, Philippines, Uganda
1996: Sri Lanka, Senegal, Bosnia & Herzegovina
1997: Cape Verde
1999: Azerbaijan, Mexico
2000: Ghana, Guinea, Bolivia
2001: Uruguay, Belize
2002: Tajikistan, Ecuador
2003: El Salvador, Guatemala, Mali (acceded)
In addition, ten countries have signed the Convention. This means that their government has expressed the intention of adhering to the Convention. These are: Chile (1993), Bangladesh (1998), Turkey (1999), Comoros, Guinea-Bissau, Paraguay, Sao Tome and Principe, Sierra Leone (2000), Burkina Faso and Togo (2001).
So far, countries that have ratified the Convention are primarily countries of origin of migrants (such as Mexico, Morocco, Philippines). For these countries, the Convention is an important vehicle to protect their citizens living abroad.
The adoption of a Convention by the United Nations General Assembly entails in itself no binding commitment for individual states. States are committed once they have signed and ratified the Convention. This is why the impact of the Convention on Migrants’ Rights remains limited, as the majority of states have not signed or ratified it yet.
No Western migrant-receiving country has ratified the Convention, even though the majority of migrant workers (nearly 100 million out of a total of 175) live in Europe and North America. Other important receiving countries, such as India, Japan, Australia and the Gulf States, have not ratified the Convention either.
Below are some statistics.
The 10 countries with the largest migrant populations (2000)
Country Number of migrants (thousands)
Percent of total population
United States of America 34.988 12,4 %
Russian Federation 13.259 9,1 %
Germany 7.349 9,0 %
Ukraine 6.947 14,0 %
France 6.277 10,6 %
India 6.271 0,6 %
Canada 5.826 18,9 %
Saudi Arabia 5.255 25,8 %
Australia 4.705 24,6 %
Source:
International Migration Report 2002, United Nations (Department of Economic and Social Affairs, Population Division)
Here is the full text of the Convention.
INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS
OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES
Adopted by the General Assembly at its 45th session on 18 December 1990 (A/RES/45/158).
Preamble
The States Parties to the present Convention,
Taking into account the principles embodied in the basic instruments of the United Nations concerning human rights, in particular the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child.
Taking into account also the principles and standards set forth in the relevant instruments elaborated within the framework of the International Labour Organization, especially the Convention concerning Migration for Employment (No. 97), the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (No. 143), the Recommendation concerning Migration for Employment (No. 86), the Recommendation concerning Migrant Workers (No.151), the Convention concerning Forced or Compulsory Labour (No. 29) and the Convention concerning Abolition of Forced Labour (No. 105).
Reaffirming the importance of the principles contained in the Convention against Discrimination in Education of the United Nations Educational, Scientific and Cultural Organization,
Recalling the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Declaration of the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the Code of Conduct for Law Enforcement Officials, and the Slavery Conventions,
Recalling that one of the objectives of the International Labour Organization, as stated in its Constitution, is the protection of the interests of workers when employed in countries other than their own, and bearing in mind the expertise and experience of that organization in matters related to migrant workers and members of their families.
Recognizing the importance of the work done in connection with migrant workers and members of their families in various organs of the United Nations, in particular in the Commission on Human Rights and the Commission for Social Development, and in the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization, as well as in other international organizations.
Recognizing also the progress made by certain States on a regional or bilateral basis towards the protection of the rights of migrant workers and members of their families, as well as the importance and usefulness of bilateral and multilateral agreements in this field.
Realizing the importance and extent of the migration phenomenon, which involves millions of people and affects a large number of States in the international community.
Aware of the impact of the flows of migrant workers on States and people concerned, and desiring to establish norms which may contribute to the harmonization of the attitudes of States through the acceptance of basic principles concerning the treatment of migrant workers and members of their families.
Considering the situation of vulnerability in which migrant workers and members of their families frequently find themselves owing, among other things, to their absence from their State of origin and to the difficulties they may encounter arising from their presence in the State of employment.
Convinced that the rights of migrant workers and members of their families have not been sufficiently recognized everywhere and therefore require appropriate international protection.
Taking into account the fact that migration is often the cause of serious problems for the members of the families of migrant workers as well as for the workers themselves, in particular because of the scattering of the family,
Bearing in mind that the human problems involved in migration are even more serious in the case of irregular migration and convinced therefore that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights.
Considering that workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers and that certain employers find this an inducement to seek such labour in order to reap the benefits of unfair competition.
Considering also that recourse to the employment of migrant workers who are in an irregular situation will be discouraged if the fundamental human rights of all migrant workers are more widely recognized and, moreover, that granting certain additional rights to migrant workers and members of their families in a regular situation will encourage all migrants and employers to respect and comply with the laws and procedures established by the States concerned.
Convinced, therefore, of the need to bring about the international protection of the rights of all migrant workers and members of their families, reaffirming and establishing basic norms in a comprehensive convention which could be applied universally.
Have agreed as follows:
PART I
Scope and definitions
Article 1
1. The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
2. The present Convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence.
Article 2
For the purposes of the present Convention:
1. The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.
2. (a) The term "frontier worker" refers to a migrant worker who retains his or her habitual residence in a neighbouring State to which he or she normally returns every day or at least once a week;
b. The term "seasonal worker" refers to a migrant worker whose work by its character is dependent on seasonal conditions and is performed only during part of the year;
c. The term "seafarer", which includes a fisherman, refers to a migrant worker employed on board a vessel registered in a State of which he or she is not a national;
d. The term "worker on an offshore installation" refers to a migrant worker employed on an offshore installation that is under the jurisdiction of a State of which he or she is not a national;
e. The term "itinerant worker" refers to a migrant worker who, having his or her habitual residence in one State, has to travel to another State or States for short periods, owing to the nature of his or her occupation;
f. The term "project-tied worker" refers to a migrant worker admitted to a State of employment for a defined period to work solely on a specific project being carried out in that State by his or her employer;
g. The term "specified-employment worker" refers to a migrant worker:
Who has been sent by his or her employer for a restricted and defined period of time to a State of employment to undertake a specific assignment or duty; or
Who engages for a restricted and defined period of time in work that requires professional, commercial, technical or other highly specialized skill; or
Who, upon the request of his or her employer in the State of employment, engages for a restricted and defined period of time in work whose nature is transitory or brief; and who is required to depart from the State of employment either at the expiration of his or her authorized period of stay, or earlier if he or she no longer undertakes that specific assignment or duty or engages in that work;
h. The term "self-employed worker" refers to a migrant worker who is engaged in a remunerated activity otherwise than under a contract of employment and who earns his or her living through this activity normally working alone or together with members of his or her family, and to any other migrant worker recognized as self-employed by applicable legislation of the State of employment or bilateral or multilateral agreements.
Article 3
The present Convention shall not apply to:
a. Persons sent or employed by international organizations and agencies or persons sent or employed by a State outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions;
b. Persons sent or employed by a State or on its behalf outside its territory who participate in development programmes and other co-operation programmes, whose admission and status are regulated by agreement with the State of employment and who, in accordance with that agreement, are not considered migrant workers;
c. Persons taking up residence in a State different from their State of origin as investors;
d. Refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned;
e. Students and trainees;
f. Seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment.
Article 4
For the purposes of the present Convention the term "members of the family" refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.
Article 5
For the purposes of the present Convention, migrant workers and members of their families:
a. Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party;
b. Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.
Article 6
For the purposes of the present Convention:
a. The term "State of origin" means the State of which the person concerned is a national;
b. The term "State of employment" means a State where the migrant worker is to be engaged, is engaged or has been engaged in a remunerated activity, as the case may be;
c. The term "State of transit" means any State through which the person concerned passes on any journey to the State of employment or from the State of employment to the State of origin or the State of habitual residence.
PART II
Non-discrimination with respect to rights
Article 7
States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
PART III
Human rights of all migrant workers and members of their families
Article 8
1. Migrant workers and members of their families shall be free to leave any State, including their State of origin. This right shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present part of the Convention.
2. Migrant workers and members of their families shall have the right at any time to enter and remain in their State of origin.
Article 9
The right to life of migrant workers and members of their families shall be protected by law.
Article 10
No migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 11
1. No migrant worker or member of his or her family shall be held in slavery or servitude.
2. No migrant worker or member of his or her family shall be required to perform forced or compulsory labour.
3. Paragraph 2 of the present article shall not be held to preclude, in States where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court.
4. For the purpose of the present article the term "forced or compulsory labour" shall not include:
a. Any work or service not referred to in paragraph 3 of the present article normally required of a person who is under detention in consequence of a lawful order of a court or of a person during conditional release from such detention;
b. Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
c. Any work or service that forms part of normal civil obligations so far as it is imposed also on citizens of the State concerned.
Article 12
1. Migrant workers and members of their families shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of their choice and freedom either individually or in community with others and in public or private to manifest their religion or belief in worship, observance, practice and teaching.
2. Migrant workers and members of their families shall not be subject to coercion that would impair their freedom to have or to adopt a religion or belief of their choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4. States Parties to the present Convention undertake to have respect for the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 13
1. Migrant workers and members of their families shall have the right to hold opinions without interference.
2. Migrant workers and members of their families shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of their choice.
3. The exercise of the right provided for in paragraph 2 of the present article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a. For respect of the rights or reputation of others;
b. For the protection of the national security of the States concerned or of public order (ordre public) or of public health or morals;
c. For the purpose of preventing any propaganda for war;
d. For the purpose of preventing any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence.
Article 14
No migrant worker or member of his or her family shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, correspondence or other communications, or to unlawful attacks on his or her honour and reputation. Each migrant worker and member of his or her family shall have the right to the protection of the law against such interference or attacks.
Article 15
No migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under the legislation in force in the State of employment, the assets of a migrant worker or a member of his or her family are expropriated in whole or in part, the person concerned shall have the right to fair and adequate compensation.
Article 16
1. Migrant workers and members of their families shall have the right to liberty and security of person.
2. Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.
3. Any verification by law enforcement officials of the identity of migrant workers or members of their families shall be carried out in accordance with procedures established by law.
4. Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.
5. Migrant workers and members of their families who are arrested shall be informed at the time of arrest as far as possible in a language they understand of the reasons for their arrest and they shall be promptly informed in a language they understand of any charges against them.
6. Migrant workers and members of their families who are arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that while awaiting trial they shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings and, should the occasion arise, for the execution of the judgement.
7. When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner:
a. The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor;
b. The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay;
c. The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation.
8. Migrant workers and members of their families who are deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used.
9. Migrant workers and members of their families who have been victims of unlawful arrest or detention shall have an enforceable right to compensation.
Article 17
1. Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity.
2. Accused migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. Any migrant worker or member of his or her family who is detained in a State of transit or in a State of employment for violation of provisions relating to migration, shall be held, in so far as practicable, separately from convicted persons or persons detained pending trial.
4. During any period of imprisonment in pursuance of a sentence imposed by a court of law, the essential aim of the treatment of a migrant worker or a member of his or her family shall be his or her reformation and social rehabilitation. Juvenile offenders shall be separated from adults and be accorded treatment appropriate to their age and legal status.
5. During detention or imprisonment, migrant workers and members of their families shall enjoy the same rights as nationals to visits by members of their families.
6. Whenever a migrant worker is deprived of his or her liberty, the competent authorities of the State concerned shall pay attention to the problems that may be posed for members of his or her family, in particular for spouses and minor children.
7. Migrant workers and members of their families who are subjected to any form of detention or imprisonment in accordance with the law in force in the State of employment or in the State of transit shall enjoy the same rights as nationals of those States who are in the same situation.
8. If a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom.
Article 18
1. Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. In the determination of any criminal charge against them or of their rights and obligations in a suit of law, they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
2. Migrant workers and members of their families who are charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
3. In the determination of any criminal charge against them, migrant workers and members of their families shall be entitled to the following minimum guarantees:
a. To be informed promptly and in detail in a language they understand of the nature and cause of the charge against them;
b. To have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing;
c. To be tried without undue delay;
d. To be tried in their presence and to defend themselves in person or through legal assistance of their own choosing; to be informed, if they do not have legal assistance, of this right; and to have legal assistance assigned to them, in any case where the interests of justice so require and without payment by them in any such case if they do not have sufficient means to pay;
e. To examine or have examined the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
f. To have the free assistance of an interpreter if they cannot understand or speak the language used in court;
g. Not to be compelled to testify against themselves or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Migrant workers and members of their families convicted of a crime shall have the right to their conviction and sentence being reviewed by a higher tribunal according to law.
6. When a migrant worker or a member of his or her family has, by a final decision, been convicted of a criminal offence and when subsequently his or her conviction has been reversed or he or she has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to that person.
7. No migrant worker or member of his or her family shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of the State concerned.
Article 19
1. No migrant worker or member of his or her family shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time when the criminal offence was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when it was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, he or she shall benefit thereby.
2. Humanitarian considerations related to the status of a migrant worker, in particular with respect to his or her right of residence or work, should be taken into account in imposing a sentence for a criminal offence committed by a migrant worker or a member of his or her family.
Article 20
1. No migrant worker or member of his or her family shall be imprisoned merely on the ground of failure to fulfil a contractual obligation.
2. No migrant worker or member of his or her family shall be deprived of his or her authorization of residence or work permit or expelled merely on the ground of failure to fulfil an obligation arising out of a work contract unless fulfilment of that obligation constitutes a condition for such authorization or permit.
Article 21
It shall be unlawful for anyone, other than a public official duly authorized by law, to confiscate, destroy or attempt to destroy identity documents, documents authorizing entry to or stay, residence or establishment in the national territory or work permits. No authorized confiscation of such documents shall take place without delivery of a detailed receipt. In no case shall it be permitted to destroy the passport or equivalent document of a migrant worker or a member of his or her family.
Article 22
1. Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually.
2. Migrant workers and members of their families may be expelled from the territory of a State Party only in pursuance of a decision taken by the competent authority in accordance with law.
3. The decision shall be communicated to them in a language they understand. Upon their request where not otherwise mandatory, the decision shall be communicated to them in writing and, save in exceptional circumstances on account of national security, the reasons for the decision likewise stated. The persons concerned shall be informed of these rights before or at the latest at the time the decision is rendered.
4. Except where a final decision is pronounced by a judicial authority, the person concerned shall have the right to submit the reason he or she should not be expelled and to have his or her case reviewed by the competent authority, unless compelling reasons of national security require otherwise. Pending such review, the person concerned shall have the right to seek a stay of the decision of expulsion.
5. If a decision of expulsion that has already been executed is subsequently annulled, the person concerned shall have the right to seek compensation according to law and the earlier decision shall not be used to prevent him or her from re-entering the State concerned.
6. In case of expulsion, the person concerned shall have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities.
7. Without prejudice to the execution of a decision of expulsion, a migrant worker or a member of his or her family who is subject to such a decision may seek entry into a State other than his or her State of origin.
8. In case of expulsion of a migrant worker or a member of his or her family the costs of expulsion shall not be borne by him or her. The person concerned may be required to pay his or her own travel costs.
9. Expulsion from the State of employment shall not in itself prejudice any rights of a migrant worker or a member of his or her family acquired in accordance with the law of that State, including the right to receive wages and other entitlements due to him or her
Article 23
Migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired. In particular, in case of expulsion, the person concerned shall be informed of this right without delay and the authorities of the expelling State shall facilitate the exercise of such right.
Article 24
Every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law.
Article 25
1. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and:
a. Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by this term;
b. Other terms of employment, that is to say, minimum age of employment, restriction on home work and any other matters which, according to national law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the principle of equality of treatment referred to in paragraph 1 of the present article.
3. States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of any such irregularity.
Article 26
1. States Parties recognize the right of migrant workers and members of their families:
a. To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned;
b. To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;
c. To seek the aid and assistance of any trade union and of any such association as
aforesaid.
2. No restrictions may be placed on the exercise of these rights other than those that are prescribed by law and which are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
Article 27
1. With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfil the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of application of this norm.
2. Where the applicable legislation does not allow migrant workers and members of their families a benefit, the States concerned shall examine the possibility of reimbursing interested persons the amount of contributions made by them with respect to that benefit on the basis of the treatment granted to nationals who are in similar circumstances.
Article 28
Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.
Article 29
Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality.
Article 30
Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment.
Article 31
1. States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.
2. States Parties may take appropriate measures to assist and encourage efforts in this respect.
Article 32
Upon the termination of their stay in the State of employment, migrant workers and members of their families shall have the right to transfer their earnings and savings and, in accordance with the applicable legislation of the States concerned, their personal effects and belongings.
Article 33
1. Migrant workers and members of their families shall have the right to be informed by the State of origin, the State of employment or the State of transit as the case may be concerning:
a. Their rights arising out of the present Convention;
b. The conditions of their admission, their rights and obligations under the law and practice of the State concerned and such other matters as will enable them to comply with administrative or other formalities in that State.
2. States Parties shall take all measures they deem appropriate to disseminate the said information or to ensure that it is provided by employers, trade unions or other appropriate bodies or institutions. As appropriate, they shall co-operate with other States concerned.
3. Such adequate information shall be provided upon request to migrant workers and members of their families, free of charge, and, as far as possible, in a language they are able to understand.
Article 34
Nothing in the present part of the Convention shall have the effect of relieving migrant workers and the members of their families from either the obligation to comply with the laws and regulations of any State of transit and the State of employment or the obligation to respect the cultural identity of the inhabitants of such States.
Article 35
Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation, nor shall it prejudice the measures intended to ensure sound and equitable conditions for international migration as provided in part VI of the present Convention.
PART IV
Other rights of migrant workers and members of their families who are documented or in a regular situation
Article 36
Migrant workers and members of their families who are documented or in a regular situation in the Sate of employment shall enjoy the rights set forth in the present part of the Convention in addition to those set forth in part III.
Article 37
Before their departure, or at the latest at the time of their admission to the State of employment, migrant workers and members of their families shall have the right to be fully informed by the State of origin or the State of employment, as appropriate, of all conditions applicable to their admission and particularly those concerning their stay and the remunerated activities in which they may engage as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.
Article 38
1. States of employment shall make every effort to authorize migrant workers and members of their families to be temporarily absent without effect upon their authorization to stay or to work, as the case may be. In doing so, States of employment shall take into account the special needs and obligations of migrant workers and members of their families, in particular in their States of origin.
2. Migrant workers and members of their families shall have the right to be fully informed of the terms on which such temporary absences are authorized.
Article 39
1. Migrant workers and members of their families shall have the right to liberty of movement in the territory of the State of employment and freedom to choose their residence there.
2. The rights mentioned in paragraph 1 of the present article shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
Article 40
1. Migrant workers and members of their families shall have the right to form associations and trade unions in the State of employment for the promotion and protection of their economic, social, cultural and other interests.
2. No restrictions may be placed on the exercise of this right other than those that are prescribed by law and are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
Article 41
1. Migrant workers and members of their families shall have the right to participate in public affairs of their State of origin and to vote and to be elected at elections of that State, in accordance with its legislation.
2. The States concerned shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights.
Article 42
1. States Parties shall consider the establishment of procedures or institutions through which account may be taken, both in States of origin and in States of employment, of special needs, aspirations and obligations of migrant workers and members of their families and shall envisage, as appropriate, the possibility for migrant workers and members of their families to have their freely chosen representatives in those institutions.
2. States of employment shall facilitate, in accordance with their national legislation, the consultation or participation of migrant workers and members of their families in decisions concerning the life and administration of local communities.
3. Migrant workers may enjoy political rights in the State of employment if that State, in the exercise of its sovereignty, grants them such rights.
Article 43
1. Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to:
a. Access to educational institutions and services subject to the admission requirements and other regulations of the institutions and services concerned;
b. Access to vocational guidance and placement services;
c. Access to vocational training and retraining facilities and institutions;
d. Access to housing, including social housing schemes, and protection against exploitation in respect of rents;
e. Access to social and health services, provided that the requirements for participation in the respective schemes are met;
f. Access to co-operatives and self-managed enterprises, which shall not imply a change of their migration status and shall be subject to the rules and regulations of the bodies concerned;
g. Access to and participation in cultural life.
2. States Parties shall promote conditions to ensure effective equality of treatment to enable migrant workers to enjoy the rights mentioned in paragraph 1 of the present article whenever the terms of their stay, as authorized by the State of employment, meet the appropriate requirements.
3. States of employment shall not prevent an employer of migrant workers from establishing housing or social or cultural facilities for them. Subject to article 70 of the present Convention, a State of employment may make the establishment of such facilities subject to the requirements generally applied in that State concerning their installation.
Article 44
1. States Parties, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers.
2. States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.
3. States of employment, on humanitarian grounds, shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers.
Article 45
1. Members of the families of migrant workers shall, in the State of employment, enjoy equality of treatment with nationals of that State in relation to:
a. Access to educational institutions and services, subject to the admission requirements and other regulations of the institutions and services concerned;
b. Access to vocational guidance and training institutions and services, provided that requirements for participation are met;
c. Access to social and health services, provided that requirements for participation in the respective schemes are met;
d. Access to and participation in cultural life.
2. States of employment shall pursue a policy, where appropriate in collaboration with the States of origin, aimed at facilitating the integration of children of migrant workers in the local school system, particularly in respect of teaching them the local language.
3. States of employment shall endeavour to facilitate for the children of migrant workers the teaching of their mother tongue and culture and, in this regard, States of origin shall collaborate whenever appropriate.
4. States of employment may provide special schemes of education in the mother tongue of children of migrant workers, if necessary in collaboration with the States of origin.
Article 46
Migrant workers and members of their families shall, subject to the applicable legislation of the States concerned, as well as relevant international agreements and the obligations of the States concerned arising out of their participation in customs unions, enjoy exemption from import and export duties and taxes in respect of their personal and household effects as well as the equipment necessary to engage in the remunerated activity for which they were admitted to the State of employment:
a. Upon departure from the State of origin or State of habitual residence;
b. Upon initial admission to the State of employment;
c. Upon final departure from the State of employment;
d. Upon final return to the State of origin or State of habitual residence.
Article 47
1. Migrant workers shall have the right to transfer their earnings and savings, in particular those funds necessary for the support of their families, from the State of employment to their State of origin or any other State. Such transfers shall be made in conformity with procedures established by applicable legislation of the State concerned and in conformity with applicable international agreements.
2. States concerned shall take appropriate measures to facilitate such transfers.
Article 48
1. Without prejudice to applicable double taxation agreements, migrant workers and members of their families shall, in the matter of earnings in the State of employment:
a. Not be liable to taxes, duties or charges of any description higher or more onerous than those imposed on nationals in similar circumstances;
b. Be entitled to deducations or exemptions from taxes of any description and to any tax allowances applicable to nationals in similar circumstances, including tax allowances for dependent members of their families.
2. States Parties shall endeavour to adopt appropriate measures to avoid double taxation of the earnings and savings of migrant workers and members of their families.
Article 49
1. Where separate authorizations to reside and to engage in employment are required by national legislation, the States of employment shall issue to migrant workers authorization of residence for at least the same period of time as their authorization to engage in remunerated activity.
2. Migrant workers who in the State of employment are allowed freely to choose their remunerated activity shall neither be regarded as in an irregular situation nor shall they lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permits or similar authorizations.
3. In order to allow migrant workers referred to in paragraph 2 of the present article sufficient time to find alternative remunerated activities, the authorization of residence shall not be withdrawn at least for a period corresponding to that during which they may be entitled to unemployment benefits.
Article 50
1. In the case of death of a migrant worker or dissolution of marriage, the State of employment shall favourably consider granting family members of that migrant worker residing in that State on the basis of family reunion an authorization to stay; the State of employment shall take into account the length of time they have already resided in that State.
2. Members of the family to whom such authorization is not granted shall be allowed before departure a reasonable period of time in order to enable them to settle their affairs in the State of employment.
3. The provisions of paragraphs 1 and 2 of the present article may not be interpreted as adversely affecting any right to stay and work otherwise granted to such family members by the legislation of the State of employment or by bilateral and multilateral treaties applicable to that State.
Article 51
Migrant workers who in the State of employment are not permitted freely to choose their remunerated activity shall neither be regarded as in an irregular situation nor shall they lose their authorization of residence by the mere fact of the termination of their remunerated activity prior to the expiration of their work permit, except where the authorization of residence is expressly dependent upon the specific remunerated activity for which they were admitted. Such migrant workers shall have the right to seek alternative employment, participation in public work schemes and retraining during the remaining period of their authorization to work, subject to such conditions and limitations as are specified in the authorization to work.
Article 52
1. Migrant workers in the State of employment shall have the right freely to choose their remunerated activity, subject to the following restrictions or conditions.
2. For any migrant worker a State of employment may:
a. Restrict access to limited categories of employment, functions, services or activities where this is necessary in the interests of this State and provided for by national legislation;
b. Restrict free choice of remunerated activity in accordance with its legislation concerning recognition of occupational qualifications acquired outside its territory. However, States Parties concerned shall endeavour to provide for recognition of such qualifications.
3. For migrant workers whose permission to work is limited in time, a State of employment may also:
a. Make the right freely to choose their remunerated activities subject to the condition that the migrant worker has resided lawfully in its territory for the purpose of remunerated activity for a period of time prescribed in its national legislation that should not exceed two years;
b. Limit access by a migrant worker to remunerated activities in pursuance of a policy of granting priority to its nationals or to persons who are assimilated to them for these purposes by virtue of legislation or bilateral or multilateral agreements. Any such limitation shall cease to apply to a migrant worker who has resided lawfully in its territory for the purpose of remunerated activity for a period of time prescribed in its national legislation that should not exceed five years.
4. States of employment shall prescribe the conditions under which a migrant worker who has been admitted to take up employment may be authorized to engage in work on his or her own account. Account shall be taken of the period during which the worker has already been lawfully in the State of employment.
Article 53
1. Members of a migrant worker's family who have themselves an authorization of residence or admission that is without limit of time or is automatically renewable shall be permitted freely to choose their remunerated activity under the same conditions as are applicable to the said migrant worker in accordance with article 52 of the present Convention.
2. With respect to members of a migrant worker's family who are not permitted freely to choose their remunerated activity, States Parties shall consider favourably granting them priority in obtaining permission to engage in a remunerated activity over other workers who seek admission to the State of employment, subject to applicable bilateral and multilateral agreements.
Article 54
1. Without prejudice to the terms of their authorization of residence or their permission to work and the rights provided for in articles 25 and 27 of the present Convention, migrant workers shall enjoy equality of treatment with nationals of the State of employment in respect of:
a. Protection against dismissal;
b. Unemployment benefits;
c. Access to public work schemes intended to combat unemployment;
d. Access to alternative employment in the event of loss of work or termination of other remunerated activity, subject to article 52 of the present Convention.
2. If a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment, on terms provided for in article 18, paragraph 1, of the present Convention.
Article 55
Migrant workers who have been granted permission to engage in are munerated activity, subject to the conditions attached to such permission, shall be entitled to equality of treatment with nationals of the State of employment in the exercise of that remunerated activity.
Article 56
1. Migrant workers and members of their families referred to in the present part of the Convention may not be expelled from a State of employment, except for reasons defined in the national legislation of that State, and subject to the safeguards established in part III.
2. Expulsion shall not be resorted to for the purpose of depriving a migrant worker or a member of his or her family of the rights arising out of the authorization of residence and the work permit.
3. In considering whether to expel a migrant worker or a member of his or her family, account should be taken of humanitarian considerations and of the length of time that the person concerned has already resided in the State of employment.
PART V
Provisions applicable to particular categories of migrant workers and members of their families
Article 57
The particular categories of migrant workers and members of their families specified in the present part of the Convention who are documented or in a regular situation shall enjoy the rights set forth in part III and, except as modified below, the rights set forth in part IV.
Article 58
1. Frontier workers, as defined in article 2, paragraph 2 (a), of the present Convention, shall be entitled to the rights provided for in part IV that can be applied to them by reason of their presence and work in the territory of the State of employment, taking into account that they do not have their habitual residence in that State.
2. States of employment shall consider favourably granting frontier workers the right freely to choose their remunerated activity after a specified period of time. The granting of that right shall not affect their status as frontier workers.
Article 59
1. Seasonal workers, as defined in article 2, paragraph 2 (b), of the present Convention, shall be entitled to the rights provided for in part IV that can be applied to them by reason of their presence and work in the territory of the State of employment and that are compatible with their status in that State as seasonal workers, taking into account the fact that they are present in that State for only part of the year.
2. The State of employment shall, subject to paragraph 1 of the present article, consider granting seasonal workers who have been employed in its territory for a significant period of time the possibility of taking up other remunerated activities and giving them priority over other workers who seek admission to that State, subject to applicable bilateral and multilateral agreements.
Article 60
Itinerant workers, as defined in article 2, paragraph 2 (e), of the present Convention, shall be entitled to the rights provided for in part IV that can be granted to them by reason of their presence and work in the territory of the State of employment and that are compatible with their status as itinerant workers in that State.
Article 61
1. Project-tied workers, as defined in article 2, paragraph 2 (f), of the present Convention, and members of their families shall be entitled to the rights provided for in part IV except the provisions of article 43, paragraphs 1 (b) and (c), article 43, paragraph 1 (d), as it pertains to social housing schemes, article 45, paragraph 1 (b), and articles 52 to 55.
2. If a project-tied worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State which has jurisdiction over that employer, on terms provided for in article 18, paragraph 1, of the present Convention.
3. Subject to bilateral or multilateral agreements in force for them, the States Parties concerned shall endeavour to enable project-tied workers to remain adequately protected by the social security systems of their States of origin or habitual residence during their engagement in the project. States Parties concerned shall take appropriate measures with the aim of avoiding any denial of rights or duplication of payments in this respect.
4. Without prejudice to the provisions of article 47 of the present Convention and to relevant bilateral or multilateral agreements, States Parties concerned shall permit payment of the earnings of project-tied workers in their State of origin or habitual residence.
Article 62
1. Specified-employment workers as defined in article 2, paragraph 2 (g), of the present Convention, shall be entitled to the rights provided for in part IV, except the provisions of article 43, paragraphs 1 (b) and (c), article 43, paragraph 1 (d), as it pertains to social housing schemes, article 52, and article 54, paragraph 1 (d).
2. Members of the families of specified-employment workers shall be entitled to the rights relating to family members of migrant workers provided for in part IV of the present Convention, except the provisions of article 53.
Article 63
1. Self-employed workers, as defined in article 2, paragraph 2 (h), of the present Convention, shall be entitled to the rights provided for in part IV with the exception of those rights which are exclusively applicable to workers having a contract of employment.
2. Without prejudice to articles 52 and 79 of the present Convention, the termination of the economic activity of the self-employed workers shall not in itself imply the withdrawal of the authorization for them or for the members of their families to stay or to engage in a remunerated activity in the State of employment except where the authorization of residence is expressly dependent upon the specific remunerated activity for which they were admitted.
PART VI
Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families
Article 64
1. Without prejudice to article 79 of the presen Convention, the States Parties concerned shall asappropriate consult and co-operate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families.
2. In this respect, due regard shall be paid not only to labour needs and resources, but also to the social, economic, cultural and other needs of migrant workers and members of their families involved, as well as to the consequences of such migration for the communities concerned.
Article 65
1. States Parties shall maintain appropriate services to deal with questions concerning international migration of workers and members of their families. Their functions shall include, inter alia:
a. The formulation and implementation of policies regarding such migration;
b. An exchange of information, consultation and co-operation with the competent authorities of other States Parties involved in such migration;
c. The provision of appropriate information, particularly to employers, workers and their organizations on policies, laws and regulations relating to migration and employment, on agreements concluded with other States concerning migration and on other relevant matters;
d. The provision of information and appropriate assistance to migrant workers and members of their families regarding requisite authorizations and formalities and arrangements for departure, travel, arrival, stay, remunerated activities, exit and return, as well as on conditions of work and life in the State of employment and on customs, currency, tax and other relevant laws and regulations.
2. States Parties shall facilitate as appropriate the provision of adequate consular and other services that are necessary to meet the social, cultural and other needs of migrant workers and members of their families.
Article 66
1. Subject to paragraph 2 of the present article, the right to undertake operations with a view to the recruitment of workers for employment in another State shall be restricted to:
a. Public services or bodies of the State in which such operations take place;
b. Public services or bodies of the State of employment on the basis of agreement between the States concerned;
c. A body established by virtue of a bilateral or multilateral agreement.
2. Subject to any authorization, approval and supervision by the public authorities of the States Parties concerned as may be established pursuant to the legislation and practice of those States, agencies, prospective employers or persons acting on their behalf may also be permitted to undertake the said operations.
Article 67
1. States Parties concerned shall co-operate as appropriate in the adoption of measures regarding the orderly return of migrant workers and members of their families to the State of origin when they decide to return or their authorization of residence or employment expires or when they are in the State of employment in an irregular situation.
2. Concerning migrant workers and members of their families in a regular situation, States Parties concerned shall co-operate as appropriate, on terms agreed upon by those States, with a view to promoting adequate economic conditions for their resettlement and to facilitating their durable social and cultural reintegration in the State of origin.
Article 68
1. States Parties, including States of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation. The measures to be taken to this end within the jurisdiction of each State concerned shall include:
a. Appropriate measures against the dissemination of misleading information relating to emigration and immigration;
b. Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose effective sanctions on persons, groups or entities which organize, operate or assist in organizing or operating such movements;
c. Measures to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation.
2. States of employment shall take all adequate and effective measures to eliminate employment in their territory of migrant workers in an irregular situation, including, whenever appropriate, sanctions on employers of such workers. The rights of migrant workers vis-a-vis their employer arising from employment shall not be impaired by these measures.
Article 69
1. States Parties shall, when there are migrant workers and members of their families within their territory in an irregular situation, take appropriate measures to ensure that such a situation does not persist.
2. Whenever States Parties concerned consider the possibility of regularizing the situation of such persons in accordance with applicable national legislation and bilateral or multilateral agreements, appropriate account shall be taken of the circumstances of their entry, the duration of their stay in the States of employment and other relevant considerations, in particular those relating to their family situation.
Article 70
States Parties shall take measures not less favourable than those applied to nationals to ensure that working and living conditions of migrant workers and members of their families in a regular situation are in keeping with the standards of fitness, safety, health and principles of human dignity.
Article 71
1. States Parties shall facilitate, whenever necessary, the repatriation to the State of origin of the bodies of deceased migrant workers or members of their families.
2. As regards compensation matters relating to the death of a migrant worker or a member of his or her family, States Parties shall, as appropriate, provide assistance to the persons concerned with a view to the prompt settlement of such matters. Settlement of these matters shall be carried out on the basis of applicable national law in accordance with the provisions of the present Convention and any relevant bilateral or multilateral agreements.
PART VII
Application of the Convention
Article 72
1. For the purpose of reviewing the application of the present Convention, there shall be established a Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereinafter referred to as "the Committee");
The Committee shall consist, at the time of entry into force of the present Convention, of ten and, after the entry into force of theConvention for the forty-first State Party, of fourteen experts of high moral standing, impartiality and recognized competence in the field covered by the Convention.
2. Members of the Committee shall be elected by secret ballot by the States Parties from a list of persons nominated by the States Parties, due consideration being given to equitable geographical distribution, including both States of origin and States of employment, and to the representation of the principal legal systems. Each State Party may nominate one person from among its own nationals;
Members shall be elected and shall serve in their personal capacity.
3. The initial elction shall be held no later than six months after the date of the entry into force of the present Convention and subsequent elections every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to all States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties that have nominated them, and shall submit it to the States Parties not later than one month before the date of the corresponding election, together with the curricula vitae of the persons thus nominated.
4. Elections of members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the States Parties present and voting.
5. The members of the Committee shall serve for a term of four years. However, the terms of five of the members elected in the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting of States Parties;
The election of the four additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of the present article, following the entry into force of the Convention for the forty-first State Party.
The term of two of the additional members elected on this occasion shall expire at the end of two years; the names of these members shall be chosen by lot by the Chairman of the meeting of States Parties;
The members of the Committee shall be eligible for re-election if renominated.
6. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party that nominated the expert shall appoint another expert from among its own nationals for the remaining part of the term. The new appointment is subject to the approval of the Committee.
7. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee.
8. The members of the Committee shall receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide.
9. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
Article 73
1. States Parties undertake to submit to the Secretary-General of the United Nations for consideration by the Committee a report on the legislative, judicial, administrative and other measures they have taken to give effect to the provisions of the present Convention:
a. Within one year after the entry into force of the Convention for the State Party concerned;
b. Thereafter every five years and whenever the Committee so requests.
2. Reports prepared under the present article shall also indicate factors and difficulties, if any, affecting the implementation of the Convention and shall include information on the characteristics of migration flows in which the State Party concerned is involved.
3. The Committee shall decide any further guidelines applicable to the content of the reports.
4. States Parties shall make their reports widely available to the public in their own countries.
Article 74
1. The Committee shall examine the reports submitted by each State Party and shall transmit such comments as it may consider appropriate to the State Party concerned. This State Party may submit to the Committee observations on any comment made by the Committee in accordance with the present article. The Committee may request supplementary information from States Parties when considering these reports.
2. The Secretary-General of the United Nations shall, in due time before the opening of each regular session of the Committee, transmit to the Director-General of the International Labour Office copies of the reports submitted by States Parties concerned and information relevant to the consideration of these reports, in order to enable the Office to assist the Committee with the expertise the Office may provide regarding those matters dealt with by the present Convention that fall within the sphere of competence of the International Labour Organisation. The Committee shall consider in its deliberations such comments and materials as the Office may provide.
3. The Secretary-General of the United Nations may also, after consultation with the Committee, transmit to other specialized agencies as well as to intergovernmental organizations, copies of such parts of these reports as may fall within their competence.
4. The Committee may invite the specialized agencies and organs of the United Nations, as well as intergovernmental organizations and other concerned bodies to submit, for consideration by the Committee, written information on such matters dealt with in the present Convention as fall within the scope of their activities.
5. The International Labour Office shall be invited by the Committee to appoint representatives to participate, in a consultative capacity, in the meetings of the Committee.
6. The Committee may invite representatives of other specialized agencies and organs of the United Nations, as well as of intergovernmental organizations, to be present and to be heard in its meetings whenever matters falling within their field of
competence are considered.
7. The Committee shall present an annual report to the General Assembly of the United Nations on the implementation of the present Convention, containing its own considerations and recommendations, based, in particular, on the examination of the reports and any observations presented by States Parties.
8. The Secretary-General of the United Nations shall transmit the annual reports of the Committee to the States Parties to the present Convention, the Economic and Social Council, the Commission on Human Rights of the United Nations, the Director-General of the International Labour Office and other relevant organizations.
Article 75
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
3. The Committee shall normally meet annually.
4. The meetings of the Committee shall normally be held at United Nations Headquarters.
Article 76
1. A State Party to the present Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Communications under this article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:
a. If a State Party to the present Convention considers that another State Party is not fulfilling its obligations under the present Convention, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;
b. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;
c. The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where, in the view of the Committee, the application of the remedies is unreasonably prolonged;
d. Subject to the provisions of subparagraph (c) of the present paragraph, the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the present Convention;
e. The Committee shall hold closed meetings when examining communications under the present article;
f. In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;
g. The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;
h. The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows:
2. If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;
3. If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them.
In every matter, the report shall be communicated to the States Parties concerned.
4. The provisions of the present article shall come into force when ten States Parties to the present Convention have made a declaration under paragraph 1 of the present article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by any State Party shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.
Article 77
1. A State Party to the present Convention may at any time declare under the present article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim that their individual rights as established by the present Convention have been violated by that State Party. No communication shall be received by the Committee if it concerns a State Party that has not made such a declaration.
2. The Committee shall consider inadmissible any communication under the present article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the present Convention.
3. The Committee shall not consider any communications from an individual under the present article unless it has ascertained that:
a. The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;
b. The individual has exhausted all available domestic remedies; this shall not be the rule where, in the view of the Committee, the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to that individual.
4. Subject to the provisions of paragraph 2 of the present article, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to the present Convention that has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
5. The Committee shall consider communications received under the present article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.
6. The Committee shall hold closed meetings when examining communications under the present article.
7. The Committee shall forward its views to the State Party concerned and to the individual.
8. The provisions of the present article shall come into force when ten States Parties to the present Convention have made declarations under paragraph 1 of the present article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by or on behalf of an individual shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.
Article 78
The provisions of article 76 of the present Convention shall be applied without prejudice to any procedures for settling disputes or complaints in the field covered by the present Convention laid down in the constituent instruments of, or in conventions adopted by, the United Nations and the specialized agencies and shall not prevent the States Parties from having recourse to any procedures for settling a dispute in accordance with international agreements in force between them.
PART VIII
General provisions
Article 79
Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.
Article 80
Nothing in the present Convention shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Convention.
Article 81
1. Nothing in the present Convention shall affect more favourable rights or freedoms granted to migrant workers and members of their families by virtue of:
a. The law or practice of a State Party; or
b. Any bilateral or multilateral treaty in force for the State Party concerned.
2. Nothing in the present Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act that would impair any of the rights and freedoms as set forth in the present Convention.
Article 82
The rights of migrant workers and members of their families provided for in the present Convention may not be renounced. It shall not be permissible to exert any form of pressure upon migrant workers and members of their families with a view to their relinquishing or foregoing any of the said rights. It shall not be possible to derogate by contract from rights recognized in the present Convention. States Parties shall take appropriate measures to ensure that these principles are respected.
Article 83
Each State Party to the present Convention undertakes:
a. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. To ensure that any persons seeking such a remedy shall have his or her claim reviewed and decided by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c. To ensure that the competent authorities shall enforce such remedies when granted.
Article 84
Each State Party undertakes to adopt the legislative and other measures that are necessary to implement the provisions of the present Convention.
PART IX
Final provisions
Article 85
The Secretary-General of the United Nations is designated as the depositary of the present Convention.
Article 86
1. The present Convention shall be open for signature by all States. It is subject to ratification.
2. The present Convention shall be open to accession by any State.
3. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.
Article 87
1. The present Convention shall enter into force on the first day of the month following a period of three months after the date of the deposit of the twentieth instrument of ratification or accession.
2. For each State ratifying or acceding to the present Convention after its entry into force, the Convention shall enter into force on the first day of the month following a period of three months after the date of the deposit of its own instrument of ratification or accession.
Article 88
A State ratifying or acceding to the present Convention may not exclude the application of any Part of it, or, without prejudice to article 3, exclude any particular category of migrant workers from its application.
Article 89
1. Any State Party may denounce the present Convention, not earlier than five years after the Convention has entered into force for the State concerned, by means of a notification in writing addressed to the Secretary-General of the United Nations.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of twelve months after the date of the receipt of the notification by the Secretary-General of the United Nations.
3. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.
4. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.
Article 90
1. After five years from the entry into force of the Convention a request for the revision of the Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting shall be submitted to the General Assembly for approval.
2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties in accordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Convention and any earlier amendment that they have accepted.
Article 91
1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of signature, ratification or accession.
2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.
Article 92
1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention that is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph 1 of the present article. The other States Parties shall not be bound by that paragraph with respect to any State Party that has made such a declaration.
3. Any State Party that has made a declaration in accordance with paragraph 2 of the present article may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.
Article 93
1. The present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Convention to all States.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
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