Thursday, April 25, 2019
See - https://globalnation.inquirer.net/173757/ex-philippine-officials-fishermen-file-crimes-against-humanity-case-vs-chinese-president-at-icc?fbclid=IwAR0GnGfxYkp4n4yk9a4AKPEznKTbDexa7cVdVTwENuZHj3b_R9UoB2ZeBw0&utm_expid=.XqNwTug2W6nwDVUSgFJXed.1
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Ex-DFA chief Del Rosario, Morales sue China’s Xi at ICC
MOVE MADE ON BEHALF OF FILIPINO FISHERS ‘PERSECUTED AND INJURED’ BY BEIJING’S AGGRESSIVE ISLAND-BUILDING
By: Juliet Labog-Javellana - Director / @julietlabjINQ
Philippine Daily Inquirer / 04:00 PM March 21, 2019
MANILA, Philippines — In an unusual move, two former high-ranking Philippine government officials have filed a case against Chinese President Xi Jinping before the International Criminal Court, saying the “atrocious actions of Chinese officials in the South China Sea and within Philippine territory’’ constitute crimes against humanity that the ICC can prosecute.
Former Foreign Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales filed the complaint, technically called a communication, on behalf of Filipinos and the hundreds of thousands of Filipino fishermen “persecuted and injured’’ by China’s aggressive island-building and occupation of islands in the West Philippine Sea.
“In implementing China’s systematic plan to take over the South China Sea, President Xi Jinping and other Chinese officials have committed crimes within the jurisdiction of the Court which involve massive, near permanent and devastating environmental damage across nations,’’ the two former officials said in a communication filed with the ICC before the Philippines withdrew from the Rome statute on March 17.
READ: China will soon control strategic waterway
“The situation presented is both unique and relevant in that it presents one of the most massive, near permanent and devastating destruction of the environment in humanity’s history, which has not only adversely affected and injured myriad groups of vulnerable fishermen, but present and future generations of people across nations,’’ they said in the communication.
“This has seriously undermined the food and energy security of the coastal states in the South China Sea, including the Philippines,’’ they added.
They said the grave consequences of the Chinese actions justify the involvement of the ICC as one of its principles provide that “the most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured.’’
“Though widely publicized, these atrocious actions of Chinese officials in the South China Sea and within Philippine territory remain unpunished, and it is only the ICC that can exact accountability on behalf of Filipinos and the international community, respecting the rule of law,’’ they said.
“We urge you to initiate a preliminary examination on this matter, if only so the Court can apprise itself of Chinese crimes committed not only against the Filipino people but also against people of other nations, which crimes are already known to the international community,’’ they said.
Del Rosario told the Inquirer that the communication was filed at the office of ICC Chief Prosecutor Fatou Bensouda on March 15, two days before the withdrawal of the Philippines from the Rome Statute took effect. President Rodrigo Duterte ordered the withdrawal after the ICC opened in February 2018 a “preliminary examination’’ of the crimes against humanity case against him in connection with the bloody war on drugs.
Bensouda stood pat on the ICC’s proceedings against Mr. Duterte even after the withdrawal, saying the court “retains its jurisdiction over crimes committed during the time in which the state was party to the statute.’’
Del Rosario told the Inquirer their representatives filed the communication with Bensouda’s office well before the Philippine withdrawal took effect.
The communication included a 17-page outline of how Xi and other Chinese officials committed crimes against humanity in “implementing China’s systematic plan to control the South China Sea’’ and included testimonies of Filipino fishermen deprived of their livelihood.
They said the ICC’s preliminary examination can be facilitated by the fact that much of the evidence they presented were widespread, highly publicized incidents of Chinese incursions and included those that were already judicially vetted when the Philippines won the South China Sea arbitration against China at the United Nations Arbitral Tribunal in 2016.
The attachments included photos of Chinese bases that were exclusively published by the Inquirer in February last year.
READ: EXCLUSIVE: New photos show China is nearly done with its militarization of South China Sea
In filing the case, Del Rosario and Morales presented documented cases of Chinese blockade of fishermen in the disputed waters, Chinese destructive fishing activities and dozens of instances where China built military installations on contested islands.
READ: China threatens PH military aircraft in latest flight over South China Sea
They cited the 1987 China installation of a weather radar in Fiery Cross, seizure of Subi Reef in 1988, occupation of Mischief Reef in 1995 and of Scarborough Shoal in 2012, as well as occupation of islands claimed by Vietnam and Malaysia. They said that from 2013, China has started massive illegal reclamations and building of air and naval bases on seven features in the Spratlys. They said one of the military bases has an anchorage larger than Hawaii’s Pearl Harbor.
The case named as “perpetrators’’ Xi, President and leader of China’s Communist Party, foreign minister and state councilor Wang Yi (as primary promoter of China’s plan in the South China Sea, and as such he defends, promotes and facilitates the crimes) and Zhao Jinhua, Chinese ambassador to the Philippines.
They said Xi has been reported to have, over the past several years, “ordered engineers to pile sand onto some of the sea’s disputed offshore reefs, mostly in the Spratlys, with the apparent goal of building military bases these.’’ Under Xi’s command, they said, Beijing has “provided military training and sophisticated communication technology to its fishermen so they can call in the coast guard if they have a run-in with a foreign law enforcement vessel or alert the coast guard of the presence of fishermen from other countries.’’
They said that Zhao wrote in a local paper that China and the Philippines are “separated by only a narrow strip of water, and have been close neighbors for centuries.’’
“This is a continued assertion of China’s unlawful and expansive nine-dash line claim in the South China Sea because the Philippines and China are not ‘separated by only a narrow strip of water’ but instead, by a distance of approximately 580 nautical miles…’’ they said.
They said China’s blockade against Filipino and other fishermen, and tolerance of illegal, unreported and unregulated fishing by the Chinese, directly caused food and livelihood deprivation to as many as 350,000 Filipino fishermen.
They cited the testimonies of fishermen Crispen Talatagod, Tolomeo Foreones and Jowe Legaspi earlier submitted to the UN arbitral tribunal.
They said the Chinese actions would result in a “fisheries collapse’’ and food shortage over several nations around the disputed waters.
Del Rosario was head of the Department of Foreign Affairs from 2011 to 2016 when the Philippines filed and won a case an arbitration case against China. The tribunal affirmed the Philippines’ “exclusive sovereign rights over the West Philippine Sea’’ and invalidated China’s nine-dash line in the disputed South China Sea. Morales was Ombudsman from 2011 to 2018. Both have incurred the ire of Mr. Duterte for their strong stand against issues that are sometimes against his policies.
Duterte assures Xi of peaceful engagement on sea row
China military planes land on PH reef
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Read more: https://globalnation.inquirer.net/173757/ex-philippine-officials-fishermen-file-crimes-against-humanity-case-vs-chinese-president-at-icc#ixzz5mAbX9F6R
Weaponizing the law and abusing the justice system - "...But, where law enforcers, prosecutors and judges are vulnerable to intimidation or manipulation because of personal ambition or fear arising from some hidden liability, it is futile to expect the law to serve as a check on the excesses of government."
See - https://opinion.inquirer.net/120466/weaponizing-the-law-2?fbclid=IwAR3XUpiDIk4i3bHQiymOHdGGuUM9glPjAHcBVBg1EDB2W5KEZdWIpQ_uJ3I
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Weaponizing the law
By: Randy David - @inquirerdotnet
Philippine Daily Inquirer / 05:10 AM March 31, 2019
A weapon is an object that is used to inflict harm or injury on a person or a group. To “weaponize” is to transform or convert something into an instrument of attack. The implication is that something is deployed in a manner not normally expected. And this, precisely, is what lends “weaponization” its insidious character.
Virtually everything can be weaponized — law, religion, science, art, love, hatred, racial or ethnic prejudice, etc. Concealed behind the veneer of normality, the act of weaponizing rides on the established communication system of the domain in which a thing originally occurs.
Take law as an example. As a functional domain of society, law operates by the code “legal/illegal.” The system determines for itself what is a valid legal communication and what is not. This determination is supposed to be based on the system’s own operational code, not on, say, what is morally acceptable or politically expedient or economically profitable.
All this, of course, does not prevent the filing of criminal charges in order to achieve political or other objectives. Let’s take the situation of Maria Ressa, a respected journalist and CEO of online news agency Rappler, who has been served a slew of arrest warrants and has had to post bail seven times in the last two months in connection with cases filed by various government agencies. Any neutral observer can reasonably conclude that Ressa is being singled out for prosecution because of her critical views of the current administration. But to prove that within the legal system is something else.
Equality before the law is highly valued in all modern legal systems. Indeed, the equal protection of the laws is the first right listed in the Bill of Rights of the 1987 Constitution. “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
This limitation on government’s power seems as clear as day. But, violation of the equal protection clause is not easy to prove. One has to show that the calling out of something as legal or illegal was done unfairly. Prosecutors and judges can always argue that they are just allowing the normal process of the law to take its course. Equal protection is a value that is upheld only in the course of a system’s self-observation. You can assert it only from within the legal system.
If we have strong independent courts that are not beholden to any powers outside the legal system, then it is possible to stop the political weaponization of the law. But, where law enforcers, prosecutors and judges are vulnerable to intimidation or manipulation because of personal ambition or fear arising from some hidden liability, it is futile to expect the law to serve as a check on the excesses of government.
So accustomed are we to regarding the law as the primary instrument of justice that we are incredulous when we see it deployed to achieve unabashedly political ends. The idea seems so absurd when first floated that we think somebody is obviously joking. But incredulity turns to shock as we watch every part of the legal system conspire to transform the joke into reality. The examples in the last three years under the Duterte presidency are too numerous to list down here, but we can name the most glaring.
Who would have thought that Chief Justice Maria Lourdes Sereno, after five years of leading the country’s highest court, could be removed from her position by “quo warranto” — a legal action that questions a person’s authority to exercise or occupy a public office? But, the Duterte administration, through Solicitor General Jose Calida, managed to show that certain documentary requirements needed in the process of qualifying for the position were not submitted. Therefore, her appointment was null and void ab initio. What makes this devious trick even more shocking is that it was consummated with the overt cooperation and participation of the majority of the high court’s members. I would have thought that it was far easier to question the validity of Rodrigo Duterte’s substitution of Martin Diño as presidential candidate in the 2016 election.
Diño’s certificate of candidacy was, on its face, defective, and, arguably, void ab initio.
And who would have thought that a sitting senator, Leila de Lima, Mr. Duterte’s fiercest critic, could be arrested and detained without bail, for conspiracy to trade in illegal drugs — on the basis of testimonies of convicted drug criminals? The information failed to identify the allegedly traded drugs. Yet, three courts separately found probable cause and ordered her arrest.
But, nothing perhaps can equal the absurdity of reopening the rebellion and coup d’état charges against Sen. Antonio Trillanes IV, another outspoken critic of Mr. Duterte, on the ground that the amnesty he received, which had prompted the dropping of these charges, was void ab initio. Why was it void? Because, says the Department of Justice, he never filed for amnesty. Proof? The application papers could not be found. Never mind that the custodian of these files is supposed to be the government. And never mind that only Trillanes’ amnesty is being questioned.
The successful deployment of legal processes as a weapon in politics undermines the credibility and stability of society’s normative expectations. As a result, less and less can we rely on judicial outcomes. When this nightmare is over — for everything comes to an end — it is difficult to say how long it will take to repair our damaged legal system.
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Read more: https://opinion.inquirer.net/120466/weaponizing-the-law-2#ixzz5mAY2zIZG
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See - https://opinion.inquirer.net/120766/will-judges-at-large-solve-huge-rtc-backlog?fbclid=IwAR1MhKNwZiTvEUvcYnKA6TwZK5FzEhyzJB5EFtNrF12xPzM6qYec--EqNR8
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Will judges-at-large solve huge RTC backlog?
Readers ask if the congressional bill creating the position of “judges-at-large” will help clear the dockets of our trial courts.
First, let us review the statistics. As of 2017, over 640,000 cases pended in the 1,100 Regional Trial Courts (RTCs) all over the country, or an average of 580 cases per sala. That is just too many to handle even for the brightest and most diligent magistrates. Worse, the cases are distributed unevenly, such that some RTC judges have as many as 5,000 and some as few as 50. (Averaging only 133 cases per sala, the 1,200 Metropolitan and Municipal Trial Courts are much better off.)
Of the 1,100 RTC salas, about 25 percent are vacant due to the retirement or promotion of the incumbents. Any organization or machine that chugs with only 75 percent of its rated capacity is bound to fail.
As a direct consequence of this congestion in the RTCs, our jails are severely overcrowded. The Commission on Audit reported that the 466 penal facilities of the Bureau of Jail Management and Penology with a holding capacity of 20,653 were populated by 146,302 at the end of 2017. Yes, they were overloaded six times their rated capacity. And the overload gets worse by the month.
Most of the inmates, about 60 percent, are just detainees (not convicts) undergoing trials or awaiting judgments. A good number would eventually be acquitted simply because they have been wrongly accused or their guilt has not been proven beyond reasonable doubt. Yet, they needlessly suffer deprivation of liberty and bear the unflattering stigma of having been a “bilanggo.”
To ease this huge number of unevenly distributed caseloads, the Supreme Court “paired” judges with light loads to assist those with heavy dockets. However, this method merely rotated the problem, for it inevitably led to a rise in the caseloads of the “pairing” judges.
Given this predicament, Senators Sonny Angara and Richard Gordon introduced a bill creating 100 RTC “judges-at-large” with no permanent stations, but to be deployed periodically by the Supreme Court.
The bill likewise creates 50 judges-at-large for the Metropolitan and Municipal Trial Courts. I think these latter ones are unnecessary because, as earlier stated, the first level courts are not congested. The 50 new posts would be better deployed in the RTCs. The bill has passed second reading but not the third and final reading.
While the offered solution may theoretically ease congestion, it is, in my humble opinion, difficult to implement and practice. True, the judges-at-large will have the same qualifications, salaries, privileges, allowances, benefits and rank as the regular judges, plus “displacement allowances” to cover food, housing and transportation expenses. Still, they would be considered inferior to their regular counterparts.
Consider, too, that filling up even the regular RTC posts has not been easy. That’s one reason for the 25-percent vacancy. Not many qualified lawyers apply for nominations in the Judicial and Bar Council (JBC). It would be worse for the judges-at-large. Not having permanent stations, they (and their spouses and children) would be subjected to the vagaries of frequent dislocations all over the country.
Given the comparatively low pay and the security risks in remote and rebel-infested areas where these judges would be needed, it would be difficult to lure bright lawyers into applying for the posts. The big law firms and the conglomerates entice them with higher pay, perks and benefits.
The better solution, I think, is to speedily fill up the RTC vacancies which, at 25 percent, mean that about 275 of the 1,100 salas are always unoccupied. With a little more hard work, the JBC should be able to nominate, and the President to appoint, at least 150 more regular RTC judges and keep the vacancy rate to a more manageable 10 percent. Moreover, I think the JBC should actively search for qualified nominees, instead of just waiting for applicants.
Also, in lieu of legislating a new class of 150 judges-at-large, our esteemed lawmakers can, in my humble view, help more effectively by creating 150 more regular RTC salas in the congested areas to be presided by regular RTC judges.
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Read more: https://opinion.inquirer.net/120766/will-judges-at-large-solve-huge-rtc-backlog#ixzz5mAVKwbAK
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