South China Sea/West Philippine Sea - What if the rules-based system were to collapse in our region?

See - FULL TEXT: Former DFA Sec. Del Rosario’s speech on South China Sea | Inquirer News

Former Foreign Affairs Secretary Albert Del Rosario 

“The South China Sea – The Philippines, ASEAN & their international Partners” 

ADR Institute 

(1) “Philippine interests are best promoted when all states, of any size or power, adhere to the commonly agreed upon standards that govern countries’ rights and relationships. International law, in my view, is the great equalizer. Through it, a country of 100 million people is the equal of one that is more powerful, and that is more than ten times its size. When we agree to rules and commit to upholding them, we create predictability, promote stability, foster a peaceful environment conducive to resolving disputes, and maintain the dignity of our independence as a nation. In no other arena would we have the same footing.”

(2) “For the West Philippine Sea, the Law of the Sea has helped us to define what is ours and, on that basis, to defend what is ours. For this reason, the law itself, and the rules-based order that it comes from, lies at the very heart of Philippine interests. Because of this, we cannot pick and choose when to promote the law and when to ignore it. Instead, we must ensure that the whole of the rules-based system succeeds.”

(3) “We took a risk when we went to arbitration in 2013. As confident as we may have been in our case, ultimately the decision was not in our hands. We could then only hope that the neutral tribunal of experts would agree. The ruling of the international arbitral tribunal not only vindicated the Philippines but, even more importantly, upheld the rule of law over the waters and global commons of the South China Sea. Now, the ruling is an integral part of the universal body of international law.”

(4) “While there are those who may attempt to minimize the ruling, or undermine its status, there should be no doubt that the Philippines has made a strong contribution to our region. The ruling has benefited not only the claimants, including China, but also the rest of the world. Through it, we have more clarity on maritime rights—what we can claim, what we can do, and where we can find possible areas of cooperation. The more information we have on this, the better placed we are to resolve the disputes that remain before us.”

(5) “In the wake of the ruling’s release, many countries came forward in support of arbitration. The European Union, the United States, ASEAN members, Japan, Australia and other countries have shared our emphasis on the need to use peaceful means and give due respect for the rule of law. Just last week, the G7 not only re-emphasized the importance of using peaceful means, they reiterated their strong opposition to any unilateral actions which increase tensions, such as the threat or use of force, large-scale land reclamation, building of outposts, as well as their use for military purposes and urged all parties to pursue demilitarization of disputed features and to comply with their obligations under international law.”

(6) “My hope is that our ASEAN neighbors share the pride of what a Member State like ours can accomplish, and see in the ruling an opportunity for all of the Southeast Asian region. Ultimately, advocating a rules-based regime is deeply embedded in who we are and what we must do. In pursuing this path, we can all be confident that we will not be shortchanging the many generations to come.”

(7) “I would like to turn specifically to Southeast Asia. As this year’s chair of ASEAN, the Philippines has a unique and an important opportunity to dwell on how we can work with our neighbors to ensure that this rules-based order succeeds. The purpose of our cooperation should go beyond maintaining friendly ties; we must also cooperate to ensure that we live in a neighborhood where countries follow the rules and uphold their commitments.”

(8) “In 2002, ASEAN and China committed to a non-binding agreement over how we should all behave in the South China Sea. In the spirit of preventing and reducing tensions, the countries committed to self-restraint from activities that would complicate or escalate disputes. I am sorry to say that in the years that followed, one country did not exercise the necessary restraint expected of it. In 2017, as in 2012, the greatest immediate source of regional uncertainty has been China’s unlawful efforts to expand its footprint throughout the South China Sea.”

(9) “While most states strive for a peaceful, rules-based regional order in Southeast Asia, Beijing’s unilateralism has put this common vision at grave risk. ASEAN must be united in countering this challenge to its regional centrality and solidarity. I believe that promoting the rule of law and strengthening multilateralism in support of the law must be key parts of ASEAN’s response.”

(10) “ASEAN and the international community as a whole should utilize the principles in the arbitral ruling to move diplomatic engagement forward. Our region cannot promote the rule of law while ignoring the law as it stands. For this reason, we believe that the ruling should be an integral part of the Code of Conduct framework being finalized and the eventual Code of Conduct, if it is ever achieved. Moreover, we must not accept the position that China’s South China Sea build-up is a fait accompli that renders us helpless.”

(11) “Having come this far to promote the rule of law, it should be unthinkable for any diplomatic mechanism that we are part of—whether bilateral or multilateral—to be used as a channel to reward unilateral activity or preserve unlawful gains. Beyond island-building and militarization, if our fishermen cannot enter Scarborough Shoal, if we cannot develop new energy resources, if the marine commons is irreparably destroyed – and if our own Secretary of Defense cannot fly over the West Philippine Sea without being challenged – our country must speak out and must work with our neighbors and with our friends for us to stand united in protest.” 

(12) “We cannot wait for a ‘better time’ to come—we must create that time ourselves lest that opportunity be lost forever.”

(13) “On the future of the region, there are many questions searching for answers. I would like to end by challenging you to ponder on a few.

1. On shelving the ruling, what would happen if we should pass the point of no return?

2. What if the rules-based system were to collapse in our region?

3. What if we were to squander the support of the responsible community of nations?

4. As the island-building is complete, is the arbitration academic if China is able to operationalize its nine-dash line claim?

5. As America is recognized as the primary promoter of the rule of law, what would happen if our alliance with the United States is weakened, rather than strengthened?”

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EXPLAINER: Police, military officials liable for Duterte's illegal kill orders

See - EXPLAINER: Police, military officials liable for Duterte's illegal kill orders

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EXPLAINER: Police, military officials liable for Duterte's illegal kill orders.

The Rome Statute is precisely designed to demolish the wall of impunity with which state officials commit human rights violations, like the ones occurring on a virtually daily basis in our midst

Perfecto Caparas

Published 10:45 AM, March 05, 2017

Updated 9:17 PM, March 05, 2017

For purposes of holding perpetrators criminally responsible, the Rome Statute of the International Criminal Court (ICC) considers as blatantly illegal any order to commit a crime against humanity.

Article 33, Paragraph 2 (Superior Orders and Prescription of Law), provides: “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” (READ: HRW: Duterte could be held liable for crimes against humanity)

Hence, police and military officials and personnel should take heed that they won’t be absolved or freed from any criminal culpability simply because it was their superior who issued the “manifestly unlawful order” (Rome Statute, Article 33, Paragraph 2).

At best, they could only invoke obedience to superior orders as a mitigating circumstance; but that will never exculpate them from criminal liability.

In prosecuting the crime against humanity of murder, The Elements of Crime, Article 7 (Crimes Against Humanity), Paragraph 1 (Introduction), considers “that crimes against humanity as defined in Article 7 are among the most serious crimes of concern to the international community as a whole….”

Hence, they “warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.”

According to Article 7, Paragraph 1, of the Rome Statute of the ICC, crime against humanity “means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

Article 7, Paragraph 2, of The Elements of Crime, in turn, qualifies: “‛Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in Paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”

Crime against humanity of murder

Photo by Alecs Ongcal/Rappler

The ongoing murderous frenzy can qualify as a crime against humanity of murder under the above Rome Statute definition. The Elements of Crimes provides:

“2. The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.

3. ‛Attack directed against a civilian population’ in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that ‛policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population.”

Article 7(1)(a) provides the following as the elements of the crime against humanity of murder:

“1. The perpetrator killed one or more persons.

2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.”

Whether the elements constituting the crime against humanity of murder can be proven – be it in a domestic court based on Republic Act 9851 or the ICC itself – will largely depend, as everyone knows, on evidence.

International criminal jurisprudence – including those that relate to the mode of committing the crime – are generally used in ascertaining an individual’s guilt, particularly if the case were to be tried before the ICC. In the event of a domestic trial, Section 15 of RA 9851 provides that treaties ratified by the Philippines – which necessarily include the Rome Statute of the International Criminal Court – can serve as a guide in applying and interpreting RA 9851.

State-sanctioned killings

No matter how government apologists try to justify and rationalize the unabated killing sprees, the government will continue to bear responsibility and face global outcry for the trail of blood and piling up of dead bodies. We cannot stomach these mass murders. We will never condone human rights violations. The snowballing killings violate the fundamental right to life, to due process of law, right to a presumption of innocence, right to a fair, public and impartial trial and a host of other inviolable rights.

Even fabricating the specter that those were vigilante killings won’t help, for even in such case, the government bears responsibility to carry out prompt and impartial investigations and prosecute perpetrators. The lack of any such credible investigation and prosecution only serves to demonstrate official acquiescence to, if not downright instigation or perpetration, of summary executions.

Crime against humanity

Those killings indeed constitute a crime against humanity of murder, with very real consequences due to our country’s ratification of the Rome Statute of the International Criminal Court. Our state functionaries are subject to ICC jurisdiction. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed within Philippine territory or by Filipino nationals. The Rome Statute is precisely designed to demolish the wall of impunity with which state officials commit human rights violations, like the ones occurring on a virtually daily basis in our midst.

Subject to the principle of complementarity, the Philippines will likely face a preliminary examination by the ICC prosecutor. Appeals for investigations and a stop to the killings from the United Nations and other international human rights bodies and mechanisms will undoubtedly grow stronger and continue to mount.

The country will likely face the prospects of a full investigation by the ICC prosecutor. It’s but a matter of time. Kenyan political leaders, for example, including President Uhuru Kenyatta, faced criminal prosecution before the ICC in The Hague, The Netherlands, for the post-election violence that marred the country back in 2007-2008.

Domestic or international investigation and prosecution?

We already have an adequate domestic legal framework to deal with the mass murders – RA 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.

What is highly doubtful though is whether we can demonstrate our political will, willingness, or ability to prosecute state actors for the crime against humanity of unlawful killing under RA 9851. An unwillingness to investigate, prosecute, and try on the part of Philippine authorities, however, will not help government officials evade prosecution; but rather, owing to the gravity and seriousness of this form of human rights violation, invite a preliminary examination from The Hague instead.

The principle of complementarity precisely means that the ICC will step into the picture if the state party exhibits a lack of willingness or ability to impartially and competently prosecute and investigate such crimes punishable under the Rome Statute.

Impunity

Wittingly or unwittingly, government is courting attacks from the international human rights community. Officials cannot avoid responsibility for entrenching the culture of impunity characterizing extrajudicial executions. State functionaries cannot avoid investigation and prosecution under the Rome Statute of the ICC as long as they remain alive and capable of standing trial. Crimes under the statute are imprescriptible.

Article 29 (Non-applicability of statute of limitations) of the Rome Statute provides: “The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.” It means that the lapse of time will not preclude anybody’s subjection to investigation, prosecution, and trial for the gravest crimes punishable under the statute, including war crimes, genocide, and crimes against humanity.

Government officials will eventually have to contend with Article 28 (Responsibility of Commanders and Other Superiors) of the Rome Statute. It provides:

“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and 

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; 

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and 

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Once the ICC prosecutor turns her sight on the Philippines, the government, just like now, will be on the defensive. This spectacle will highly detract from the essential human rights agenda that President Duterte, almost instinctively, has embarked on earlier on in his presidency.

The gruesome killings will undermine and eventually destroy the government’s legitimacy. The spate of killings will certainly lead to political instability. The international community will not rest until and unless these human rights violations are stopped.

Paradoxically, President Duterte’s human rights agenda – and ultimately, we, the people – will be the one to suffer due to these worst forms of human rights violations called crime against humanity of murder. – Rappler.com

The author serves as the Associate Director of Graduate Programs of Indiana University Robert H. McKinney School of Law (stated only for purposes of showing affiliation). He holds a Master of Laws degree in Human Rights (University of Hong Kong; Honors) and a Master of Laws in American Law for Foreign Lawyers (Indiana University Robert H. McKinney School of Law). He worked as a journalist of Ang Pahayagang Malaya, The Manila Times, The Philippine Post, Pinoy Gazette, UCANews and ISYU Newsmagazine. He is a lifetime member of the Integrated Bar of the Philippines. The views expressed here exclusively belong to the author.

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EXPLAINER: Yes, Int'l Criminal Court can prosecute Duterte for killing spree

See - EXPLAINER: Yes, Int'l Criminal Court can prosecute Duterte for killing spree

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EXPLAINER: Yes, Int'l Criminal Court can prosecute Duterte for killing spree

The Philippines effectively domesticated the Rome Statute of the International Criminal Court when it enacted Republic Act 9851 – the commander in chief can be held liable for crimes against humanity

Perfecto Caparas

Published 9:45 PM, March 04, 2017

Updated 3:13 PM, March 06, 2017

Two international human rights groups recently released findings that the police are behind the spate of extrajudicial drug-related killings in the Philippines.

They bring us back to the time in 2016 when President Rodrigo Duterte scoffed at the warning aired by International Criminal Court (ICC) chief prosecutor Fetou Bensouda that the ICC would be closely monitoring incitements for mass murder. As of end-January 2017, the fatalities have reached more than 7,000 (and still counting) in the country.

ICC Prosecutor Bensouda warned: “Let me be clear: any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.” (READ: Things to know about Duterte's pet peeve ICC)

What Duterte fails to appreciate is that at this day and age the doctrine of command responsibility has been institutionalized and operationalized both in the international and domestic criminal law regimes. He can be investigated, prosecuted, arrested, and tried for crimes against humanity. And the doctrine of command responsibility will indispensably figure prominently in those proceedings.

Contrary to his pronouncements, Duterte as head of state lacks the mantle of immunity from prosecution either by Philippine authorities (arguably) or the ICC for gravest breaches of international human rights law. (READ: Duterte threatens PH withdrawal from ICC)

Two criminal law frameworks apply to the ongoing mass murders in the Philippines: one domestic, another international.

The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (Republic Act 9851) penalizes those acts as “willful killing” under Section 6(a). Then President Arroyo signed RA 9851 into law on December 11, 2009. It is also known as An Act Defining and Penalizing Crimes against International Humanitarian Law, Genocide and Other Crimes against Humanity, Organizing Jurisdiction, Designating Special Courts, and For Related Purposes.

RA 9851 characterizes as “other crimes against humanity” the unabated mass murders “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

Command responsibility

DRUG WAR'S TOLL. Three suspected drug personalities are apprehended by cops while 3 others die after a shootout in Maypajo, Caloocan City on September 30, 2016. Photo by LeAnne Jazul/Rappler

As commander-in-chief, President Duterte can be held liable under Section 10 (Responsibility of Superiors) of RA 9851. It provides that “a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

According to the Philippine Supreme Court in the Boac v. Cadapan en banc decision dated May 31, 2011, RA 9851 enunciated “command responsibility as a form of criminal complicity in crimes against international humanitarian law, genocide and other crimes.”

In this case, the Supreme Court underscored, “It bears stressing that command responsibility is properly a form of criminal complicity, and thus a substantive rule that points to criminal or administrative liability.”

The law imposes the penalty of reclusion perpetua (technically maximum imprisonment of 40 years) and P500,000 to P1 million fine upon those found guilty of the crime of other crimes against humanity of willful killing, considering “the extreme gravity of the crime, especially where the commission of any of the crimes…results in death…and considering the individual circumstances of the accused.”

Rome Statute of the ICC

No one has criticized President Duterte’s proven track record and determination to fight narco-traffickers per se. The President, in fact, enjoys everyone’s support in ensuring that our country will not fall prey to narco-politicians and turn our nation into a narco-state. The President’s strong political will to combat narco-politicos and narco-generals is truly laudable and deserving of our wholehearted support.

The apparent method, however, is inherently reprehensible, “shocking to humanity’s conscience,” and offends our collective and most fundamental sense of decency and humanity. These characterize the very crimes codified in the Rome Statute of the International Criminal Court, namely, war crimes, genocide, crimes against humanity, and crime of aggression.

We effectively domesticated this international treaty by enacting RA 9851 ahead of our country’s ratification of the Rome Statute of the ICC.

At the international level, the continuing mass murders constitute a crime against humanity of murder under the Rome Statute of the International Criminal Court.

Applicability to Philippines

Adopted by the Rome Conference on July 7, 1998, the Rome Statute of the International Criminal Court established the ICC as the world’s first permanent criminal court. It entered into force on July 1, 2002, or 60 days after its ratification by the 60th state party. Ten states simultaneously deposited their instruments of ratification with the United Nations Secretary General, who acts as treaty depositary, raising to 66 the total number of state parties, triggering the Rome Statute to enter into force.

We are subject to the ICC’s jurisdiction. We were, in fact, one of the pioneers behind the creation of this first-ever global criminal court, being a state party to the Final Act of The United Nations Diplomatic Conference of Plenipotentiaries on The Establishment of An International Criminal Court held in Rome on July 17, 1998.

Our country – represented by then Deputy Permanent Representative to the United Nations in New York Enrique Manalo – signed the Rome Statute of the ICC on December 28, 2000. The Philippines ratified the Rome Statute on August 30, 2011. We thus became the 117th state party to this treaty, the second ASEAN country to do so.

ICC’s legal framework

Together, 7 documents provide the legal framework of the ICC. These include the Rome Statute of the International Criminal Court, the Rules of Procedure and Evidence, the Elements of Crimes, the Regulations of the Court, the Regulations of the Registry, the Regulations of the Office of the Prosecutor, and the Code of Professional Conduct for Counsel.

History

In March 2011, ICC President Judge Sang Hyun Song visited the country. Then President Benigno Aquino III signed the Instrument of Ratification on May 6, 2011. Casting their vote, members of the Philippine Senate concurred with then President Aquino on August 23, 2011, in ratifying the Rome Statute.

The Permanent Mission of the Philippines to the United Nations deposited our Instrument of Ratification with the UN Secretary General on August 30, 2011. By virtue of Article 126 (Entry into force), the Rome Statute’s date of effectivity in the Philippines starts on November 1, 2011.

Significance and rationale

Then Philippine Permanent Representative Ambassador Libran Cabactulan articulated the significance of the Philippine ratification of the statute, stating: “The Philippines, a democracy that champions international law and the rule of law, views being party to the Rome Statute of the ICC as a vital part of the ongoing global campaign to end impunity and violence against individuals and to further strengthen a rules-based international system, specifically in relation to international human rights law and humanitarian law.”

Cabactulan added: “It is a clear signal of the importance the Philippines [attaches] to this treaty.... The ICC also serves as a deterrent against genocide and other heinous crimes and ensures that all perpetrators of these serious crimes of concern are held accountable.”

Historically, civil society organizations in the Philippines had also lobbied for its ratification.

ICC’s jurisdiction over the Philippines

The statute became effective and applicable to the Philippines 60 days after the deposit of our Instrument of Ratification, or on November 1, 2011, as provided for under Article 126. The crime against humanity of murder allegedly perpetrated by state actors therefore falls under the jurisdiction and is cognizable by the International Criminal Court, inasmuch as the continuing mass murders occurred after November 1, 2011.

Principle of complementarity

This principle of jurisdiction, however, interplays with the principle of complementarity. It means national jurisdictions, just like the Philippines, have primacy over the ICC, as far as investigating, prosecuting and trying cases – like the crime against humanity of murder under the Rome Statute of the ICC – are concerned. Hence, in the context of the open-season murder of drug suspects, the Philippines, and not the ICC, is the one that theoretically has primacy to carry out investigations, prosecutions, and trial.

But such state-initiated investigations, prosecutions, and trials should not be a mere facade, but rather an impartial, honest, and good faith investigation, prosecution, and trial. Otherwise, the ICC can step in, pursuant to the principle of complementarity, if the Philippines is shown to be unwilling or unable to investigate, prosecute, and try in good faith.

Philippine criminal law framework

We have an adequate legal system to carry out domestically this obligation to prosecute, try, and punish perpetrators under the Rome Statute of the International Criminal Court, given our own RA 9851 – Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.

We have duly-constituted and fully functioning criminal courts and a hierarchy of judicial review. Section 18 (Philippine Court, Prosecutors and Investigators) of RA 9851 provides regional trial courts with original and exclusive jurisdiction over crimes punishable under RA 9851. Our Supreme Court also has the power to “designate special courts to try” such cases, according to Section 18.

Section 18 further provides that “the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned law enforcement agencies shall designate prosecutors or investigators.”

Will our own executive department be willing and sincere in carrying out an honest, thorough, and good faith investigation, prosecution, and trial of the killers, particularly the mastermind, the planner, and the direct perpetrator?

There are at least 3 emerging categories of killers: police officers; motorcycle-riding vigilantes; and salvagers. (READ: PH police 'falsifying' evidence in drugs war – Human Rights Watch)

It seems that only the Commission on Human Rights can carry out an impartial and independent investigation into the mass murders.

International Criminal Court intervention

It’s this factual element that can potentially bring about in the future an active and direct ICC involvement in investigating the spate of mass atrocities in the country. An ICC prosecutor can conduct a preliminary examination to see if adequate information exists to warrant the opening of an investigation into crimes within the ICC's jurisdiction.

ICC prosecutor Fatou Bensouda can initiate such a preliminary investigation motu proprio or on her own accord “on the basis of information on crimes within the jurisdiction of the Court,” per Article 15(1) of the Rome Statute, as she herself has warned.

The ICC merely serves to complement the Philippines’ primary jurisdiction over the gravest crimes punishable under the Rome Statute – the crime against humanity of murder in the case of the Philippines. The ICC, however, will likely step in, if Philippine authorities fail to act on the killings, as crimes against humanity undermine the rule of international human rights law.

Failure or refusal on the part of the ICC to act will constitute a betrayal of its mandate to dismantle the wall of impunity by holding notorious human rights violators accountable before the bar of international justice. – Rappler.com

The author serves as the Associate Director of Graduate Programs of Indiana University Robert H. McKinney School of Law (stated only for purposes of showing affiliation). He holds a Master of Laws degree in Human Rights (University of Hong Kong; Honors) and a Master of Laws in American Law for Foreign Lawyers (Indiana University Robert H. McKinney School of Law). He worked as a journalist of Ang Pahayagang Malaya, The Manila Times, The Philippine Post, Pinoy Gazette, UCANews and ISYU Newsmagazine. He is a lifetime member of the Integrated Bar of the Philippines. The views expressed here exclusively belong to the author.

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SC junks petition against project marring view of Rizal Monument - CNN Philippines

See - SC junks petition against project marring view of Rizal Monument - CNN Philippines

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SC junks petition against project marring view of Rizal Monument

By Ver Marcelo, CNN Philippines

Updated 17:45 PM PHT Tue, April 25, 2017

Metro Manila (CNN Philippines, April 25) — The Supreme Court on Tuesday junked a petition to halt construction of a controversial building within the line of sight of the Rizal Monument, a historic and well-known tourist landmark.

Supreme Court Spokesperson Theodore Te said that the justices voted 9-6, saying that there was no law prohibiting the construction of the Torre de Manila condominium in Manila.

"One, the Court has no jurisdiction over the subject matter. Two, the petitioners have no standing to sue. And three, they stand to suffer no injury," Te said in a press briefing.

"Furthermore, the Court also found that there is no law that prohibits the construction of the challenged Torre de Manila project," he said, adding that the TRO against it would be lifted.

The Torre de Manila construction on Taft Avenue sparked protest among the public when people found that it marred their view of the Rizal Monument. The building is over two kilometers away from the landmark.

The petition to stop the Torre de Manila construction was filed on September 2014 by the Order of the Knights of Rizal, a civic group established in 1911 to uphold the ideals of national hero Jose Rizal. In their petition, they requested the Supreme Court to order the condominium's developer DMCI Homes, to halt construction.

The Knights of Rizal argued that the placement of the building ruins the sight line behind the Rizal Monument, thus devaluing the historic site, and that it violated Manila zoning laws.

The group said it respected the decision of the Supreme Court on its "test case for Philippine heritage" and thanked the public for its support.

"The public support that was expressed in favor of our stand was an indication not only of the importance of the National Monument but also to the continued relevance and reverence our National Hero, Jose Rizal still enjoys," the Knights of Rizal said in a statement Tuesday.

The Court ruling was welcomed by the Torre de Manila developer, calling the decision "fair and just."

"We will immediately resume construction to finally end the undue suffering of our stakeholders, most especially our workers and future residents who depended on our commitment to complete the project," DMCI Homes said in their statement.

The Rizal Monument marks the exact spot on which national hero Jose Rizal was shot by a Spanish firing squad on December 30, 1896.

The Manila zoning board approved the continuation of the project in January 2014 after it had been suspended in November 2013 for violating zoning laws.

In June 2015, the SC issued the TRO that stopped construction of the tower.

This was followed by six rounds of oral arguments, held from July to September 2015.

The nine Justices who voted for the ruling were Chief Justice Maria Lourdes Sereno, Justices Antonio Carpio, Presbitero Velasco Jr., Lucas Bersamin, Mariano del Castillo, Bienvenido Reyes, Estelita Perlas-Bernabe, Marvic Leonen, and Noel Tijam, said Te.

Those who voted against the ruling were Justices Teresita de Castro, Diosdado Peralta, Jose Mendoza, Francis Jardeleza, Alfredo Caguioa, and Samuel Martires, he added.

x x x."

Ethics in government

Government officials and employees should be aware of, diligently practise, and faithfully comply with the following ethical principles and provisions of Republic Act No. 6713, entitled the "Code of Conduct and Ethical Standards for Public Officials and Employees" (1989).

(1) “It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.” (Section 2, Declaration of Policies).

(2) “Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.” (Section 4, Norms of Conduct of Public Officials and Employees).

(3) “Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.” (Id.).

(4) “Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.” (Id.).

(5) “Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.” (Id.).

(6) “Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas.” (Id.).

(7) “Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.” (Id.).

(8) “Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.” (Id.).

(9) “Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.” (Id.).

(10) “Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.” (Section 7, Prohibited Acts and Transactions). 

(11) “Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

· “Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law”;

· “Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions”; or

· “Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.” (Id.).

(12) “Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest.” (Id.). 

(13) “Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.” (Id.).

(14) “Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.” (Section 8, Statements and Disclosure). 

(15) “All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government.” (Id.).

(16) “A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption.” (Section 9, Divestment). 

(Read the law for its penal provisions).

What are the common criminal acts of graft and corruption in the government?

R.A. 3019, entitled “Anti-Graft and Corrupt Practices Act” (1960) contains the provisions against the most common criminal acts of graft and corruption in the government. We must remember that “a public office is a public trust.” (Section 1, Statement of policy, RA 3019. See also Article XI, Accountability, 1987 Constitution). 

(1) “Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.” (Section 3, Corrupt practices of public officers). 

(2) “Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.” (Id.).

(3) “Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.” (Id.).

(4) “Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.” (Id.). 

(5) “Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.” (Id.). 

(6) “Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.” (Id.). 

(7) “Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.” (Id.). 

(8) “Director 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, or in which he is prohibited by the Constitution or by any law from having any interest.” (Id.). 

(9) “Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.” (Id.). 

(10) “Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.” (Id.). 

(11) “Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.” (Id.). 

(12) “Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.” (Id.). 

(13) “It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.” (Section 4, Prohibition on private individuals).

(14) “It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.” (Id.). 

(15) “It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.” (Section 5, Prohibition on certain relatives). 

(16) “It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term.” (Section 6, Prohibition on Members of Congress). 

(17) “The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency.” (Id.).

(18) “It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest.” (Id.). 

(19) SALN.- 

“Every public officer, within thirty days after the approval of this Act or after assuming office, and within the month of January of every other year thereafter, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January.” (Section 7, Statement of assets and liabilities).

(20) Unexplained wealth. – 

“If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried children of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary.” (Section 8, Dismissal due to unexplained wealth). 

(Read the law to know the penal provisions thereof).

The mandatory and uncounseled drug test in Section 15 of R.A. 9165 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.

JAIME D. DELA CRUZ vs. PEOPLE OF THE PHILIPPINES, G.R. No. 200748, July 23, 2014

“x x x.

We declare that the drug test conducted upon petitioner is not grounded upon any existing law or jurisprudence.

X x x.

Xxx. Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided,That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine because, while he is already in custody, he is not compelled to make a statement or testimony against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended or arrested" cannot literally mean any person apprehended or arrested for any crime. The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and transportation",10 "manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being "employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled precursors and essential chemicals"16; "manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or culture of plants classified as dangerous drugs or are sources thereof";22 and "maintenance and keeping of original records of transactions on dangerous drugs and/orcontrolled precursors and essential chemicals."23 

To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note that accused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting them of other crimes with heavier penalties. The essence of the provision is more clearly illustrated in People v. Martinez, G.R. No. 191366, 13 December 2010, 637 SCRA 791, as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. 

Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To overextend the application of this provision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 591 Phil. 393 (2008), to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.

We find that petitioner never raised the alleged irregularity of his arrest before his arraignment and raises the issue only now before this tribunal; hence, he is deemed to have waived his right to question the validity of his arrest curing whatever defect may have attended his arrest. (People v. Racho, G.R. No. 186529, 3 August 2010, 626 SCRA 633). However, "a waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest." (People v. Lapitaje, 445 Phil. 731 (2003). 

We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence, it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced to determine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done. (People vs. Otadora, 86 Phil. 244 [1950]); People v. Gallarde, 382 Phil. 718 (2000)]. (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People, 390 Phil. 805 (2000) the petitioner therein and his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and his companions in that case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al. case, the Court clarified that "what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material." The situation in Gutang was categorized as falling among the exemptions under the freedom from testimonial compulsion since what was sought to be examined came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.

Assuming arguendo that the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged.

We emphasize that the circumstances in Gutang are clearly different from the circumstances of petitioner in the instant case. First, Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability for the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidence that was used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of the crime or offense for which the arrest is being made.

X x x.”

Mandatory drug tests vs. privacy, self-incrimination (Laserna doctrine, 2008) - "When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves."

SOCIAL JUSTICE SOCIETY (SJS) vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), G.R. No. 157870, November 3, 2008; ATTY. MANUEL J. LASERNA, JR. vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, G.R. No. 158633, November 3, 2008; AQUILINO Q. PIMENTEL, JR. Vs. COMMISSION ON ELECTIONS, G.R. No. 161658, November 3, 2008.

“x x x

Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

X x x.”

Note:

Sec. 36, RA 9165 

“SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:

x x x x

(c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the schools student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

x x x x

(f) All persons charged before the prosecutors office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.”