Tuesday, August 30, 2016

Civil Service Commission; power to disapprove appointments, when improperly exercised

See - http://www.lawphil.net/judjuris/juri1991/may1991/gr_96298_1991.html

G.R. No. 96298 May 14, 1991

Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.
Adolpho M. Guerzon for J. Junsay, Jr.
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service Commission.

"x x x.

In Luego v. Civil Service Commission,1 this Court declared:

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

x x x x x x x x x

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

x x x x x x x x x

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor.

The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc, Minute Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No. 85941, June 15, 1989, En Banc, Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989, En Banc, Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service Commission, G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v. The Hon. Civil Service Commission, et al., G.R. No. 90477, September 13, 1990, En Banc, Minute Resolution;Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11, 1990, En Banc, Minute Resolution;Teologo v. Civil Service Commission, G.R. No. 92103, November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976, November 15, 1990.

Only recently, in Gaspar v. Court of Appeals 2 this Court said:

The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority.

x x x x x x x x x

The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard.

It is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service Commission has seen fit to ignore, if not defy, the clear mandate of the Court.

We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.

Appointment is a highly discretionary act that even this Court cannot compel.1âwphi1 While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee—taking into account the totality of his qualifications, including those abstract qualities that define his personality—is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws.

Commenting on the limits of the powers of the public respondent, Luego declared:

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shall have inter alia the power to:

9(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (Emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on—or as the Decree says, "approves" or "disapproves'—an appointment made by the proper authorities.

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission not to understand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then that is an entirely different matter and shall be treated accordingly.

We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. We must therefore make the following injunctions which the Commission must note well and follow strictly.

Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner.

While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.

The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.

x x x."

Rodrigo Duterte's popularity gives him free rein on drugs killings | afr.com

" x x x.

by Ronald D. Holmes and Mark R. Thompson

Since his inauguration on 30 June, Philippine President Rodrigo Duterte has been true to his campaign pledge of cracking down on drugs. He has ignored objections from within the Philippines and abroad about extrajudicial killings of supposed drug pushers and users by police and unknown assailants, which have already amounted to over a thousand deaths.

Why has a mounting body count and obvious violations of the rule of law and human rights failed to slow Duterte's 'war on drugs'?

One reason is his sky-high poll rating of 91 per cent. Official statistics show crime has risen and drug use is widespread. Duterte has played to a moral panic, arguing that criminality endangers the lives of people he vowed to protect.

Duterte's ability to flout fundamental principles of the rule of law is also grounded in the weakness of basic political institutions. Duterte was elected with only a handful of congressional allies. But because Philippine political parties are weak he now has the support of most legislators who simply switched sides after his victory in search of presidential patronage. This has left only a few critics in office to speak out against the crackdown, particularly the separately elected vice-president, Leni Robredo, and neophyte Senator Leila de Lima.

Duterte also feels he can ignore the Supreme Court because it has been politicised, in part via his predecessor Benigno 'Noynoy' Aquino's removal of the Chief Justice, widely seen as an act of political revenge.

Several leading Catholic bishops have voiced strong criticisms of the extrajudicial killings. But Duterte revels in pointing to the hypocrisy of the Church, particularly the institution's vast wealth and priests' abuse of children.

Civil society groups have also been outspoken critics of the extrajudicial killings but have become fractured, with many leading members crossing over to government. On the far left, the Communist Party charge Duterte for 'upturning the criminal judicial system and denouncing people for defending human rights'. But because Duterte has handed out several of their allies key cabinet positions, and because of their eagerness for a peace deal, the left's criticism has been muted.

Duterte has also kept the media off-balance. During the campaign, he warned reporters not to take his outrageous statements too seriously. He also dampened criticism by pointing to reporters' being complicit with corrupt politicians and criminals they were supposed to expose.

On the United States, Duterte called US Ambassador Philip Goldberg a 'gay son of a whore'. Duterte struck a note with many Filipinos by pointing to past US double dealings as a colonial and pos-colonial power in the Philippines and questioning whether the declining superpower would really back the Philippines if it came to an armed confrontation with China over competing territorial claims.

Duterte has thus far skilfully out-manouevred his opponents by exposing their own frailties. But there are signs that he may have difficulty sustaining his violent anti-drug campaign.

The human cost of the carnage has become all too evident. There have been a number of high profile 'mistakes' in the killings: many clearly innocent victims. Even those murdered who did use or sell drugs have been denied any kind of due process. The Philippine Daily Inquirer's 'Kill List', documenting the daily killings - recently averaging about 10 a day - points to the skewed nature of the victims: the overwhelming majority are poor and from disadvantaged neighbourhoods.

To divert attention from the criticism that the war on drugs has largely targeted the poor, the Duterte administration recently released a list of 150 police and military officials, politicians and judges accused of involvement in the drug trade. But targeting high-ranking officials carries risks of its own with the possibility that his elite enemies may regroup for a counterattack, endangering political stability.

A look at Thailand is instructive. An analysis of the 2003 anti-drug crackdown by then Thai prime minister Thaksin Shinawatra shows that half of the nearly 3000 people killed extra-judicially were not linked to the drug trade. They were either accidental victims or targeted by corrupt police or vengeful vigilantes. Although the campaign lifted Thaksin's short-run popularity, elites soon turned on him, overthrowing his government in 2006 and his sister's government in 2014. Thai authorities are now talking of treating drug addiction as a health problem and are considering a partial decriminalisation of drugs as a more effective way of dealing with the problem.

This holds out the hope that Duterte will stop or slow the extrajudicial killings. Hopefully, the damage they have caused to the country's judicial system and law enforcement is not permanent and the administration will focus on the fundamental woes of poverty and feeble political institutions that breed uncivil social behaviour.

Ronald Holmes is a Research Scholar in the Coral Bell School of Asia Pacific Affairs at the ANU. Mark R. Thompson is director of the Southeast Asia Research Centre at the City University of Hong Kong. This article is part of a series from East Asian Forum (www.eastasiaforum.org) in the Crawford School of Public Policy at The Australian National University.

x x x."

Philippines' Duterte's drug war has killed nearly 1,800 people - Business Insider

"x x x.

When Rodrigo Duterte, the Philippines' president, took office in June, he announced a sweeping crackdown on drug trafficking in the island nation.
In the seven weeks since, nearly 1,800 suspected drug dealers have been killed.
Under Duterte, 712 drug suspects had been killed in police operations since July 1, while 1,067 killings were carried out by vigilante groups during the same time frame, National Police Chief Ronald dela Rosa, told a Philippines Senate committee on Monday,according to The New York Times.
Senators have been questioning police on the killings as part of joint hearings by the Senate's Committee on Justice and Human Rights and the Committee on Public Order and Dangerous Drugs. The senators also heard from witnesses accusing police of gunning down their family members for being involved in illegal drugs.
Sen. Leila de Lima, head of the Senate Justice Committee, said that she's concerned that some law enforcers and vigilantes are using the campaign against drugs to "commit murder with impunity," since many killings had not been carried out legally, the Associated Press reported.
"We want to know the truth behind the killings and violence. What really happened and why does this continue to happen?" De Lima said in Tagalog. "I'm not saying the killings and the use of lethal force have no legal basis, but too many have been killed for us to not be suspicious and to not question whether the rules of engagement are being followed."
Between July 1 and August 15, 665 people were killed by police while another 899 were murdered by unknown killers, Dela Rosa reported to the committee last week, according to The Washington Post — a drastically lower number than the one reported on Monday.
Police didn't explain the sudden increase in deaths over the past week, but senators are expected to question them about the tally on Tuesday.
Relatives of slain people cover their faces as they attend a Senate hearing investigating drug-related killings at the Senate headquarters in Pasay city, metro Manila, Philippines August 22, 2016. REUTERS/Romeo Ranoco
Relatives of slain people attend a Senate hearing investigating drug-related killings at the Senate headquarters in Manila.Thomson Reuters

The spate of killings has alarmed human-rights groups, including UN-appointed human-rights experts who have urged the country to stop the killings.
But Duterte's foreign ministers later said that the Philippines would not do so, and the president threatened to withdraw from the UN.
Perfecto Yasay, the Philippines' foreign secretary, said that his country is "certainly not leaving the UN," CNN reported on Monday.
Duterte, known locally as "the Punisher," campaigned on a pledge to rid the country of drug dealers and won a landslide presidential election in May. The 71-year-old leader has publicly advocated the killing of suspected drug dealers, urging citizens to kill criminals if they feel it's necessary.
"Shoot him and I'll give you a medal," Duterte said in June, according to the AP.
afp duterte threatens to pull philippines out of un
President Rodrigo Duterte.AFP

Richard Javad Heydarian, a political science professor at De La Salle University in Manila, told The Times that Duterte's brazen stance is indicative of outsize public expectations.
Duterte's massive support in the Philippines "largely has to do with dissipated public trust in existing judicial institutions, a sense that the normal democratic processes are not coping with the magnitude of the crisis," said Heydarian.
He threatened to declare martial law in early August when the Philippines' Supreme Court questioned his authority to oversee judges who've been accused of taking part in drug-dealing activities, Al Jazeera reported.
Jennelyn Olaires, 26, cradles the body of her partner, who was killed on a street by a vigilante group, according to police, in a spate of drug related killings in Pasay city, Metro Manila, Philippines July 23, 2016. A sign on a cardboard found near the body reads:
"A Picture and Its Story: A Death in Manila."Thomson Reuters

During Monday’s hearing, one of the witnesses, Harra Bertes,said that policemen had beaten up, arrested, and killed her husband, a suspected drug dealer. 
Police raided Bertes' house, demanded the surrender of drugs that she did not have, and removed the underwear of her 2-year-old daughter to search for illegal drugs, Bertes told the committee, according to Philstar.com.
Bertes admitted that her husband was a drug dealer, but that he had been planning on surrendering to the authorities soon.
Approximately 600,000 suspected drug dealers or users have surrendered to the police since Duterte's drug crackdown began, Philippines' authorities said, according to The Times.
x x x."

Monday, August 22, 2016

The Daily Tribune News - It’s still genocide

"x x x.

Monday, 22 August 2016 00:00 

Toughie Rody can’t just brush aside being a member of human civilization the way he has been taking cavalier potshots at the United Nations (UN) or anybody who gets to raise the issue of human rights before him.

Even the mere of threat of killing those whom he considered as criminals presupposes his toleration of summary killings.

It was the turn of special rapporteurs of the United Nations (UN) to give Rody a piece of their mind regarding the way his war on drugs is being undertaken.

A UN statement bearing the statements of the two rapporteurs started with a warning: “Allegations of drug-trafficking offences should be judged in a court of law, not by gunmen on the streets.”

It said UN rights experts are urging the “government of the Philippines to put an end to the current wave of extrajudicial executions and killings in the context of an intensified anti-crime and anti-drug campaign targeting drug dealers and users.”

It noted that more than 850 people have been killed between May 10, when Rodrigo Duterte was elected President of the Philippines vowing to crackdown on crime, and August 11. Over 650 were killed in the last six weeks alone.

Independent sources of the toll on war on drugs put the figure higher of up to 1,500 dead since Duterte took over the reins of power.

The Philippine National Police has a running tally of those killed in police operations and the other vigilante-style deaths which are being termed derisively as carton justice due to the cardboard where an “I am a drug pusher” is scribbled and placed near the dead body.

Despite the tally, no charges except for one or two “surrenderers” have been filed before the courts.

UN Special Rapporteur on summary executions, Agnes Callamard said Philippine authorities should adopt with immediate effect the necessary measures to protect all persons from targeted killings and extrajudicial executions.

She reminded Rody that claims to fight illicit drug trade do not absolve the government from its international legal obligations and do not shield state actors or others from responsibility for illegal killings.

“The State has a legally binding obligation to ensure the right to life and security of every person in the country, whether suspected of criminal offenses or not,” she added.

Rody considers such reminders from the UN as “stupid interventions” on the affairs of the country when human rights is not only an international commitment but an obligation to the human race.

UN Special Rapporteur on the right to health, Dainius Puras said however necessary, responses to the illicit drug trade must be carried out in full compliance with national and international obligations and should respect the human rights of each person.

Puras also made reference to the mass slays of drug addicts who Duterte had said were mostly beyond rehabilitation as if justifying their execution.

Concerning drug-dependency, this should be treated as a public health issue and justice systems that decriminalize drug consumption and possession for personal use as a means to improve health outcomes, Puras said.

During his election campaign and first days in office, Duterte repeatedly urged law enforcement agencies and the public to kill people suspected of trafficking drugs who don’t surrender, as well as people who use drugs.

The UN statement said Duterte was heard “promising impunity for such killings and bounties for those who turn in drug dealers ‘dead or alive.’”

Callamard said directives of this nature are irresponsible in the extreme and amount to incitement to violence and killing, a crime under international law. It is effectively a license to kill. “Intentional lethal use of force is only allowed when strictly unavoidable in order to protect life and should not be used for common policing objectives,” she said.

“Incentives to violence such as bounties or the promise of impunity also seriously contravene the rule of law and must end,” the UN experts said. Even Duterte’s spokesman Martin Andanar appears unable to comprehend or is unwilling to what the UN wishes to convey to toughie Rody.

“President Duterte has time and again warned us during the (election) campaign that if you vote for me, this is going to be bloody,” he said, adding that there is “no war without casualties.”

The reasoning of toughie Rody and his Palace cohorts is as unsound as the warped minds of the drug dependents they brand as beyond redemption.

x x x."

Uphold due process, defend the Constitution | Inquirer Opinion

"x x x.

ALL FILIPINOS, whether public officials or ordinary citizens, have the right to due process. It is a human right guaranteed by the Philippine Constitution that President Duterte swore to uphold and defend.

It is sorely disappointing to see the President disregard this constitutional right as he voices no objection to the killing of suspected drug pushers by the police or by vigilantes, and accuses police officers, local executives, judges and other officials of being drug lords or their protectors without the benefit of a thorough, completed criminal investigation. Without presenting solid evidence to back up his public allegations, President Duterte, the most powerful public official of our land, has embarked on a chilling, sickening name-and-shame campaign that is in effect an unjust, unlawful and unconstitutional trial by publicity.

The most recent target of this campaign of the President is newly-elected and installed Sen. Leila de Lima. He has publicly accused her of having links to the illegal drugs trade and he has insinuated that her election campaign was funded with drug money.

This public shaming came on the eve of a Senate investigation that Senator De Lima had called to look into the spate of extrajudicial killings that have been spurred by the President’s declaration of war on drugs. The figures are simply too disturbing: 665 killings by the police, 889 by unknown assailants in a span of six weeks, per the Inquirer’s report (“UN exec accepts Palace challenge to visit PH,” Front Page, 8/20/16), and counting.

The accusation smacks of vindictiveness. It may be recalled that when she was still justice secretary and, before that, head of the Commission on Human Rights, Senator De Lima called for a probe on the vigilante killings by a group called the Davao Death Squad which was linked to President Duterte who was then mayor of Davao City. Of course, she was just doing her job as mandated by law. We thus find it alarming that she is now being publicly humiliated and pilloried precisely for doing her job.

The public shaming which, to repeat, is trial by publicity, does have a chilling effect on free and intelligent discourse which is essential to democracy.

President Duterte himself recently upped the stake in favor of freedom of information by signing an executive order binding on all officials and employees in the executive branch of the Philippine government, for them to make accessible public documents to the people. We thus expect him to be the first to uphold the law and allow the free market of ideas to flourish to better build an informed citizenry. Muzzling contrary opinions has no place in a democratic and civilized society such as ours.

We stand by the Senate of the Philippines as it pursues its mandate and duty to “check and balance” the executive branch, and to conduct, as part of its oversight function, investigations in aid of legislation on matters of public interest.

We stand by Sen. Leila de Lima in her decision to proceed with the Senate inquiry into the extrajudicial killings associated with the campaign against illegal drugs, and in her advocacy to protect human rights, including the right to due process.

We support our law enforcers who risk their lives to maintain law and order and protect our lives and property and human rights.

But we urge President Duterte to refrain from using his office to intimidate those who dare disagree with him; to conduct himself like a true statesman; to respect the privacy of individuals, including public officials; and to elevate the quality of public discourse. The presidency should never be used as a platform for revenge; it demeans the highest office of the land, and diminishes its dignity and credibility.

As well, to impugn a woman’s character by the same actions that would otherwise elevate a man’s status in society, and to apply a different standard of morality on a lady senator’s alleged extramarital relations from that of a President’s own well-known dalliances, is to box one’s self in stereotypes and sexist attitudes. Surely, with a daughter in public office, President Duterte knows better than to confine women in his box of antiquated roles and expectations.

We call on all Filipino men and women of good will to be discerning in responding to intemperate reports and issues raised, especially in social media. Let not these reports and issues bring out the worst in us. Let us pursue our discourse in a manner worthy of emulation by our youth and children.

Despite severe pressure from several quarters, let us be steadfast in respecting the rule of law; let us uphold due process and defend our Constitution, in words and in deeds.

This piece was signed by Rosanita Serrano, Narzalina “Narz” Lim, and 15 other women.

x x x."

Sunday, August 21, 2016

United Nation issues warning vs Duterte

"x x x.

United Nations (UN) human rights has warn President Rodrigo Duterte that “state actors” could be held responsible over hundreds of extrajudicial killings in a controversial anti-drug crackdown in the Philippines.

“Claims to fight illicit drug trade do not absolve the government from its international legal obligations and do not shield state actors or others from responsibility for illegal killings,” the U.N. Special Rapporteur on summary executions.

The UN experts urged Philippine president “to put an end to the current wave of extrajudicial executions and killings.”

“Incentives to violence such as bounties or the promise of impunity also seriously contravene the rule of law and must end,” the statement read, with reference to Duterte’s “dead or alive” directive against drug pushers and users.

The warning came a day after Duterte called the U.N. “stupid” and vowed to continue his anti-narcotics offensive despite mounting criticism, including from U.N. chief Ban Ki-moon.

In a press release by UN Human Rights’ Office of the High Commissioner, it noted that 850 people have already been killed since Duterte won the presidency last May. According to reports, 650 were killed in the last six weeks alone.

However, Philippine National Police itself in the Senate hearing Thursday said the death toll in Duterte’s “drug war” has reached above 1,500, with 889 executed by vigilante groups.

x x x."

Seafarer ‘Protection Act’ shields ship owners, not seafarers | Inquirer Global Nation

"x x x.

01:55 AM August 20th, 2016

Filipinos are the most mistreated seafarers on the high seas. They work long hours every single day on tankers and cargo and cruise ships far away from their families for long periods of time for little money.

When Filipino crew members are injured and disabled in accidents or due to the cumulative trauma caused by harsh long-term work conditions, Filipinos are required to return home and accept the minimal payments outlined in a modest schedule of benefits published by the Philippine Overseas Employment Administration (POEA). The skimpy benefits pale in comparison to compensation awards in the U.S. They are an embarrassment to the labor agency and employers of any civilized country.

Recently, some insurance entities in the UK hailed the Philippines’ new Seafarers’ Protection Act, which in reality does not protect the Filipino seafarer.

Already paltry benefits

As it is, a standard POEA employment contract limits a maimed crew member who, for example, loses his or her entire hand, by amputation between the wrist and elbow joint, in a gruesome work-related accident, to a total maximum benefit of only $29,480. Such a paltry amount hardly compensates the crew member for his past and future lost wages, pain and suffering, mental anguish and disfigurement for the rest of his life.

Under the POEA, death benefits are as little as $50,000 plus $7,000 for each minor child, not exceeding four in total. So the surviving family members of a crew member with two children killed at sea by the gross negligence of a cruise line employer receive a total payment of $65,000 including a nominal payment of $1,000 toward the family’s funeral and burial expenses.

Once a crew member or or their families receive a death or disability payment, they waive the right to file a claim against the cruise line employer and operator of the cruise line. This is in violation of the International Labor Organization (ILO).

Such low payments trivialize the worth of a Filipino life. It is an insignificant if not meaningless amount in the eyes of the billion dollar, non-tax paying U.S. based cruise industry. Compare, for example, the money collected by the far cat cruise executives here in Miami (like NCL executive Frank Del Rio who collected over $31,000,000 in 2015).

Cheaper life?

A common thought of a cruise line risk adjuster or P&I representative when a davit fails and a lifeboat from a cruise ship falls several stories into the sea is that it’s cheaper to have a Filipino aboard who’s killed than any other nationality.

Further injustice occurs when crew members suffer from ill health such as high blood pressure, heart problems and other sicknesses caused by the stress of hard work and long working hours. Manning agencies and cruise line employers are increasingly refusing to acknowledge that the injuries and illness suffered by crew members are “work-related,” a requirement for the payment of such benefits.

Crew members must submit to an examination of a single doctor, retained by the employer, who often assign a low impediment percentage, resulting in a minimal benefit, or claim that the illness pre-existed the crew member’s shipboard work, resulting in no payment. Company doctors are known to work with an eye toward pleasing the employer and its lawyers, at the detriment of the injured seafarer.

Even when a crew member receives an award by the National Labor Relations Commission (NLRC), maritime employers often choose to appeal the award and seek a deduction.

Asignacion case

Several years ago, I wrote about the plight of a Filipino seafarer Lito Asignacion who worked as a senior engine fitter on board a bulk carrier who sustained serious burns of his abdomen and legs when scalding water overflowed a tank doe to unsafe working conditions on the vessel.

The crew member underwent extensive and painful medical treatment in the burn units of West Jefferson Medical Center and Baton Rouge General Medical Center in Louisiana, U.S.A. Asignacion was treated and underwent skin grafting burns of 35 percent of his body.

Burn unit treating an injured seafarer. JIM WALKER

Mr. Asignacion thereafter returned to the Philippines where he continued undergoing medical treatment at a number of hospitals and with a number of doctors who performed plastic surgery. He is now unemployed, disabled and scarred for life.

His employer argued that under the POEA, the burned crew member suffered a grade 14 disability, which would entitle him to only 3.74 percent of USD $50,000. The Filipino Labor Board agreed and awarded Asignacion just $1,870.

The labor board made a point of stating that the shipping company had offered the disabled crew member $25,000 “out of compassion and generosity,” implying that the injured crew member had foolishly rejected the “generous” offer.

The vindictive labor board also cited language from a prior decision that compensation for seriously injured Filipino seafarers is low because Filipino seafarers are perceived as crew members “who complain too much.”

Patronizing sentiment

This patronizing and inherently evil sentiment is alive and well in the cruise industry today. Insurance entities like protection and indemnity clubs in the UK who are responsible for minimizing payments by its rich ship-owner members are taking steps to make it even harder for Filipino crew members to receive reasonable compensation for career-ending injuries and illnesses.

Recently, a claims director at UK P&I Club in a P&I Club publication praised the new Seafarers’ Protection Act. Ironically enough, the new law does not protect the Filipino seafarer from the greedy cruise lines, or the P&I companies and defense lawyers who do their bidding, but targets who the P&I Club villainize as the “ambulance-chasing” lawyers who pursue “spurious claims.”

The claims representative, Tony Nicholson, argues that the new “Seafarers’ Protection Act is designed to protect Filipino seafarers and their families from the unscrupulous practices of such lawyers and came into force on 21 May 2016. Under the new law, any individual or group — whether lawyers or not — found to be soliciting directly or via agents will be imprisoned for one–two years and/or fined PHP 50,000–100,000 (approximately US$1–2,000).”

The UK P&I Club further proposes permitting maritime employers, which are ordered by arbitration panels to pay benefits to the disabled seafarers, permission not to pay the awards pending an appeal. This will encourage the wealthy employers and cruise lines to place financial pressure on the injured seafarers and force them to accept cheap settlements.

As the sad case of Lito Asignacion demonstrates, the Filipino labor system already permits maritime employers and their insurance companies to abandon those seafarers who have sacrificed and suffered greatly for their families. Imprisoning lawyers, who advocate greater rights for seafarers, and permitting maritime employers to withhold the payments of arbitration awards, make a further mockery of a system, which works to protect the rich while screwing the injured and impoverished seafarer.

Jim Walker is a principal at Walker & O’Neill Maritime Lawyers in South Miami, Florida.

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DLSU Law Dean Diokno: 'Glaring violations of human rights' rampant today

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The online news portal of TV5

MANILA, Philippines - "Glaring violations of human rights" are happening in the country every day, particularly in the Philippine National Police's implementation of President Rodrigo Duterte's war against illegal drugs.

This was the lament of Atty. Jose Manuel Diokno, the dean of the College of Law at the De La Salle University, on Friday during a media training on monitoring the judiciary.

He zeroed in on the practice where police go from house to house, knock on residents' doors, and ask if they can search these homes.

"And then if they say no, the police will say, 'Well, if you aren't hiding anything, why don't you want us to search, while your neighbors allowed us to search?' So now you feel guilty. And then after that, they will say, 'Please list the names of all those living here over 18 years old'," Diokno said.

All of these were human rights violations, he noted.

"Those are all excessive use of authority because that's not how the police are supposed to operate. What are the police supposed to do? Investigate crimes. File, do their own investigation as to who are using drugs, pushing drugs, and other crimes. Your consent to a search is only valid if it is knowingly, intelligently, and voluntarily (given). If the police are that intrusive, na talagang in effect, they are impliedly insisting, using psychological tactics to induce you to consent, that again is illegal," he explained.

Worse, extrajudicial killings were happening on a daily basis. 

He pointed out that one of the basic human rights was the right to life, and that the government had to respect that, not only because it was bound by the 1987 Constitution, but also because it was a signatory to the International Covenant on Civil and Political Rights (ICCPR), among other treaties.

The ICCPR is the "first multilateral treaty to recognize the inherent dignity of the human person." The 1966 document also obliges nations "to promote universal respect for, and observance of, human rights and freedoms."

Under the Second Optional Protocol to the ICCPR, which the Philippines signed in 2006 and ratified in 2007 "without reservation," states "are required to renounce the use of the death penalty definitively." 

According to Diokno, Congress repealed capital punishment in 2006, the same year it signed the treaty.

But President Duterte had previously declared his intent to have it restored, and Congress has been cooperative, with bills for the imposition of the death penalty on certain heinous crimes filed both in the House of Representatives and the Senate.

Despite the bleak picture, Diokno urged the media to continue fighting for human rights.

He quoted his father, the late Senator Jose Diokno, as saying, "No cause is more worthy than the cause of human rights... they are what makes us human. Deny them and you deny our humanity."

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"In a nine-page decision penned by Justice Estela M. Perlas-Bernabe in AC No. 11139 (Philcomsat Holdings Corporation v. Lokin, Jr. and Labastilla), the Court suspended Atty. Luis K. Lokin, Jr. from the practice of law for three years and Atty. Sikini C. Labastilla for a year for violating Canons 7 and 11 of the Code of Professional Responsibility (CPR)."

See -  http://news.abs-cbn.com/news/07/05/16/sc-suspends-2-lawyers-for-imputing-judicial-corruption

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MANILA - The Supreme Court has suspended two lawyers for compromising the integrity of the judiciary by maliciously imputing corrupt motives against the Sandiganbayan in connection with their issuance of a P2 million check purportedly in exchange for a temporary restraining order (TRO) favoring the Philippine Communications Satellite Corporation (Philcomsat).

In a nine-page decision penned by Justice Estela M. Perlas-Bernabe in AC No. 11139 (Philcomsat Holdings Corporation v. Lokin, Jr. and Labastilla), the Court suspended Atty. Luis K. Lokin, Jr. from the practice of law for three years and Atty. Sikini C. Labastilla for a year for violating Canons 7 and 11 of the Code of Professional Responsibility (CPR).

Canon 11 provides that "[a] lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by other", while Canon 7 commands every lawyer to "at all times uphold the integrity and dignity of the legal profession."

Lokin, Jr. was meted the graver penalty as he was the one directly responsible for the making of the subject checkbook entry.

"[R]espondents compromised the integrity of the judiciary by maliciously imputing corrupt motives against the Sandiganbayan through the subject checkbook entry. Clearly, respondents also violated Canon 7 of the CPR and, thus, should be held administratively liable therefor," the Court ruled.

The case stemmed from the complaint of Philcomsat Holdings Corp., represented by Erlinda I. Bildner. During the 2007 Senate inquiry on the anomalies that plagued the Philcomsat group of companies, it was learned that there was an entry in complainant's checkbook stub which reads "Cash for Sandiganbayan, TRO, potc-philcomsat case - P2,000,000."

The check, it turned out, was issued in connection with complainant's injunction case against the Philippine Overseas Telecommunciations Corporation (POTC) before the Sandiganbayan, which was filed by Atty. Lokin, Jr.'s group, as its representatives, with Atty. Labastilla as its external counsel (POTC case).

The Sandiganbayan, motu proprio (on its own), initiated indirect contempt proceedings against respondents and on May 7, 2009 found them guilty of indirect contempt and sentenced them to each pay a fine of P30,000 and imprisonment for six months.

The Integrated Bar of the Philippines, which conducted a separate investigation, found Lokin, Jr. administratively liable and recommended his suspension for one year but absolved Labastilla.

The High Court concurred with the IBP Investigating Commissioner's findings on Lokin but disagreed with Labastilla's absolution.

The High Court agreed with the IBP's finding that the subject checkbook entry contained a contumacious imputation against the Sandiganbayan, i.e., that a check in the amount of P2,0000,000.00 was issued and given to the Sandiganbayan in order to secure a favorable TRO in the POTC case.

It stressed, among others, that the records show Lokin, Jr. was the one who caused the making of the subject checkbook entry and he never denied participation and knowledge of the issuance of the check and the consequent creation of the subject checkbook entry.

However, the High Court held that it does not agree with IBP's finding on Labastilla and "is more inclined to concur with the Sandiganbayan's findings in the indirect contempt case that Atty. Labastilla also had a hand, direct or indirect, in the creation of the subject checkbook entry considering he was complainant's external counsel who applied for the TRO in the POTC case."

It added Labastilla admitted receipt of the proceeds of the P2 million check "although allegedly for legal fees but with no supporting evidence therefor."

The High Court stressed that it is every lawyer's duty to maintain the high regard to the profession by staying true to his oath and keeping his actions beyond reproach. It reiterated that "all lawyers should be bound not only to safeguard the good name of the legal profession, but also to keep inviolable the honor, prestige, and reputation of the judiciary."

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The INCB speaks out against death and impunity in the Philippines, as over 700 suspects are murdered

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On the 2nd August 2016, more than 350 civil society organisations from across the globe signed an open letter to the heads of the UN drug control authorities calling on them to urge the government of the Philippines to bring an end to the flood of extrajudicial killings taking place in its territory. Since 10th May, over 700 suspected drug offenders have died at the hands of Filipino police and vigilante groups. President Duterte has explicitly ordered citizens to kill ‘drug addicts’. UN drug control bodies had hitherto remained silent in the face of these atrocities, which have also taken place – albeit on a smaller scale – in Indonesia, where 14 suspected drug offenders were executed last year, and several were killed by firing squad in the past week.

Following the open letter from civil society, which included the support of many prominent drug control and human rights groups, the INCB and the UNODC were quick to act. Mr Werner Sipp, President of the INCB, has published a powerful statement addressed to the government of the Philippines, and has been supported in a similar publication by the Executive Director of UNODC, Mr Yury Fedotov. In its most outspoken criticism of repressive drug policy to date, the INCB declared that, should media reports regarding violence and murder against drug offenders in the Philippines prove accurate, ‘this would constitute a serious breach of the legal obligations to which the Philippines is held by the three UN drug control conventions and by the corpus of international legal instruments to which the country has adhered’.

Referring to the conventions and their commitment to due legal process for all drug offenders and alternatives to punishments for people who use drugs, Mr Sipp then called on the government of the Philippines to ‘issue an immediate and unequivocal condemnation and denunciation of extrajudicial actions against individuals suspected of involvement in the illicit drug trade or of drug use’.

It should be noted again that this represents an unprecedented intervention by the INCB in cases where countries have contravened international law under the guise of drug control and, should it continue, bodes well for the future of the UN drug control authorities.

Keep up-to-date with drug policy developments by subscribing to the IDPC Monthly Alert

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Friday, August 19, 2016

Cutting corners on due process | Inquirer Opinion

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CANBERRA—Chief Justice Maria Lourdes Sereno cut President Duterte down to size and put him in his place when she responded icily to his public statements derogating the judiciary.

“She will no longer say anything on the matter,” said Theodore Te, the chief of the Supreme Court’s Public Information Office, implying that the Chief Justice was disengaging from a public debate with the President because it would be a futile exercise.

Mr. Duterte had gone ballistic in a speech to military troops after Sereno wrote him a letter stating her reservations on his allegation that some members of the judiciary had abused the issuance of temporary restraining orders. The Chief Justice was reacting to the allegation as an attempt by the executive branch to undermine the independence of the judiciary under the constitutional principle of separation of powers among the three coequal branches of government. In the letter, she called Mr. Duterte’s action of naming the judges “premature.” Later, she cautioned the judges, four of them still on active duty, not to surrender to authorities if no warrant of arrest is presented.

In his speech, the President delivered a sharp rebuke to the Chief Justice, warning her of a constitutional crisis and a possible declaration of martial law if the judiciary got in the way of his crackdown on dealers of illegal drugs.

The exchange sparked a conflict that set the Supreme Court and Malacañang on a collision course early on in the Duterte administration.

In the face of the President’s strongly provocative and bullying statements, Sereno firmly stood her ground but maintained her glacial silence and dignity: “Many things have been said, there is no need to add what has been said.”

In her letter to the President on Aug. 11, which triggered his ire, Sereno expressed concern over the spate of extrajudicial killings involving people suspected of using and/or pushing illegal drugs and his naming of the judges allegedly involved in drug syndicates. The named judges included one who had been dead for years and two already out of the service.

In his public response, Mr. Duterte mocked Sereno, saying she “must be joking” when she said a warrant of arrest should first be presented. He then proceeded to give the top magistrate of the land a lecture on the rule of law.

He went on to say that the rule of law did not apply anymore when talking about 600,000 drug suspects needing to be arrested because “they slaughter and rape children.” No evidence to back that statement has been presented by the authorities.

The Chief Justice had earlier formed a fact-finding committee led by retired Supreme Court Justice Roberto Abad to investigate incumbent judges linked to illegal drugs.

In scoffing at Sereno’s instruction to the named judges not to yield to authorities without a warrant of arrest, the President hinted that he would rather circumvent tedious judicial processes than allow drug suspects to go scot-free. He bristled at Sereno’s warning of a possible constitutional crisis. He threatened to call on government authorities “not to honor” the Chief Justice. He claimed that he did not order the police to arrest those judges on the prepared “narco list” but had called on the judges to show up at the Supreme Court, just as he had directed police officers allegedly involved in the illegal drugs trade to report to Philippine National Police chief Director General Ronald dela Rosa.

As a lawyer, the President continued, didn’t he know that the judges are under the jurisdiction of the Chief Justice? He reiterated that he did not order the judges to be arrested, adding that he “never accused anybody” and only named them.

What he did when he read out the names of judges, police officers and local government officials who have supposed connections to the illegal drug trade was, according to Mr. Duterte, “not an accusatorial utterance but, rather, it was in consonance with my duty as president of the Philippines.” He also said securing a warrant of arrest against every Filipino involved in illegal drugs would take time even as crimes would surely be committed in the streets.

He rambled on, but what the President did not say was that he was cutting corners on due process.

Amando Doronila was a regular columnist of the Inquirer from 1994 to May 2016.

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UN rapporteurs air concern over PH drug killings | Inquirer Global Nation

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United Nations rights experts called on the Duterte administration to end targeted killings and extrajudicial executions of drug suspects, saying these constitute crime against international law.

Agnes Callamard, UN special rapporteur on summary executions, raised concern over the rapid increase of people being killed in the Philippines, with 650 of them in the last six weeks alone amid President Duterte’s war on drugs.

She said allegations of drug trafficking offenses should be decided by a court of law “not by gunmen on the streets.”

“We call on the Philippine authorities to adopt with immediate effect the necessary measures to protect all persons from targeted killings and extrajudicial executions,” Callamard said in a statement on Thursday.

She said killings in line with the fight against illegal drugs “do not absolve the government from its international legal obligations and do not shield state actors or others from responsibility for illegal killings.”

“The state has a legally binding obligation to ensure the right to life and security of every person in the country, whether suspected of criminal offences or not,” she said.

Dainius Puras, UN special rapporteur on the right to health, said drug dependence should be treated as a public health issue.

Puras said “responses to the illicit drug trade must be carried out in full compliance with national and international obligations and should respect the human rights of each person.”

The Geneva-based UN special rapporteurs said Mr. Duterte’s recent public condemnation of vigilante justice “is not enough.”

“All allegations of killings and extrajudicial executions must be promptly and thoroughly investigated. Perpetrators and instigators must be sanctioned without exception,” they said.Estrella Torres

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Thursday, August 18, 2016

UN experts nix Duterte's 'license to kill' | ABS-CBN News

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MANILA – Two United Nations (UN) human rights experts called on President Rodrigo Duterte to stop the unabated killings in his war on drugs, with one of them warning that the Philippine leader's incitement to violence is a crime under international law.

Agnes Callamard, UN Special Rapporteur on summary executions, called out Duterte for endorsing the killing of drug suspects, describing the new president's statements as a "license to kill." 

Duterte has repeatedly said he would back policemen who would get involved in fatal encounters with drug suspects, even as doubts are now being cast over the conduct of police operations.

''Directives of this nature are irresponsible in the extreme and amount to incitement to violence and killing, a crime under international law. It is effectively a license to kill,” Callamard warned.

''Intentional lethal use of force is only allowed when strictly unavoidable in order to protect life and should not be used for common policing objectives,'' she added.

Since Duterte vowed during the campaign period up until his election victory that he would launch a bloody campaign against drugs, over 1,000 people have been killed by both policemen and civilians.

The unabated killings have alarmed human rights advocates, with an opposition senator set to hold a legislative inquiry next week into the spate of killings.

Callamard said "claims to fight illicit drug trade do not absolve a government from its international legal obligations and do not shield state actors or others from responsibility for illegal killings."

''The State has a legally binding obligation to ensure the right to life and security of every person in the country, whether suspected of criminal offenses or not,'' she said.


Dainius Pūras, UN Special Rapporteur on the right to health, meanwhile, said drug addiction must be treated as a public health issue.

''Concerning drug-dependency, this should be treated as a public health issue and justice systems that decriminalize drug consumption and possession for personal use as a means to improve health outcomes,'' Pūras said.

Both experts welcomed reports quoting Duterte as condemning vigilante justice, but they said this is not enough.

“Incentives to violence such as bounties or the promise of impunity also seriously contravene the rule of law and must end,” the experts said. 

“All allegations of killings and extrajudicial executions must be promptly and thoroughly investigated. Perpetrators and instigators must be sanctioned without exception.”

The statement from the two experts from the Office of the United Nations High Commissioner for Human Rights came in the wake of Duterte's latest tirades against the UN made on Wednesday. 

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UP Law students condemn extrajudicial killings, urge rule of law | Inquirer News

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The University of the Philippines College of Law Student Government (UP-LSG) has condemned the spate of killings in the Duterte administration’s bloody war against illegal drugs and criminality.

Citing the Bill of Rights and due process clause in the Constitution, the student body called for the upholding of the rule of law and protection of fundamental human rights in the government’s anti-drug campaign.

“While we recognize government efforts to fight criminality as part of police power of the state, we cannot condone these acts of vigilantism and apparent disregard to life and due process of our fellow Filipinos,” UP-LSG said in a statement.

“The Law Student Government believes that measures to combat illegal drugs must be carried out under a framework that respects human rights—one that upholds the right to fair trial, eliminates impunity, and sees drug abuse as a public health concern that must be addressed with humanity and not violence,” it added.

The student council lamented that the “growing social tolerance” for vigilante killings was an outright disregard for basic human rights enshrined in the highest law of the land.

“The government’s inaction and implicit recognition of this culture of violence have created a society that accepts it as a legitimate means to end criminality at the expense of due process…Every death of an individual who never had his day in court to refute the charges levied against him is an outrage against this nation’s basic beliefs,” it said.

“Only by addressing the socio-economic roots of criminality can one make headway in the fight against it. The UP Law Student Government is one with the United Nations in calling for measures in combating the problem of substance abuse but at the same time ensuring the right to fair trial and elimination of impunity. Poverty alleviation and drug rehabilitation programs are essential to bringing down drug-related crimes,” the council added.

Contradicting President Rodrigo Duterte’s statement that the public should not expect due process from him as he is not the court, the law students called on the President to ensure that rule of law will prevail and pursue investigations on the drug-related killings as head of the enforcing executive branch.

“The executive branch is and should always be the vanguard of due process rights of individuals. As enforcers of the law, it is incumbent upon the executive branch to make sure that protocols and procedures reflect the respect for the due process rights of individuals,” the statement read.

“The ‘shoot now, ask questions later’ attitude that has been apparent in police operations must be put to an end. We call upon the President to pursue and investigate all cases of extrajudicial killings whether they are perpetrated by vigilantes or law enforcement officers who act with excessive force that rob individuals of their lives. Regardless of who are responsible for these extrajudicial killings, the government must investigate and account for them,” it added.

As of August 15, the Inquirer’s “Kill List” has 646 drug-related deaths since June 30 or after Duterte took office.

The Philippine National Police on Thursday said the number of persons killed in “legitimate operations” was at 665, while the total of deaths “under investigation” was at 899. - RAM/rga

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