Friday, May 26, 2017

FULL TEXT: CJ Sereno: ‘These are times when everything that can be shaken is being shaken’ | Inquirer News

FULL TEXT: CJ Sereno: ‘These are times when everything that can be shaken is being shaken’ / 12:06 PM May 26, 2017

Chief Justice Maria Lourdes Sereno delivers her commencement speech at the Ateneo de Manila University. PHOTO FROM THE SUPREME COURT PUBLIC INFORMATION OFFICE

The following is the full text of Chief Justice Maria Lourdes Sereno’s commencement address before the Ateneo de Manila University, May 26, 2017.


Thirty seven years ago, dear Loyolans, I stood in your place, about to take a place of honor and privilege as a graduate of Ateneo.

Three years later, Ninoy Aquino would be assassinated; by 1986, the dictator Marcos would flee the country. But on my graduation day in 1980, it was difficult to be certain of a future outside of martial law. I was at once optimistic and fearful. Optimistic about my career prospects as any Atenean would be, but fearful lest the long nights of martial law overshadowing our country never end.

I had actually prepared to talk with you in a more lighthearted and general manner on themes of justice, democracy and what it means to be an Atenean, but the declaration of Martial Law and the suspension of the writ of habeas corpus in Mindanao this Tuesday impressed upon me a more urgent and specific subject matter. So yesterday I discarded my prepared speech and resolved that today I would try to address the questions that must be in your minds and those of your parents. I thought it behooved me to give you a lens through which you could view present events and make decisions regarding your participation in the making of Philippine history.

Allow me to guess at the questions in your mind: Will this Martial Law declaration bring back the human rights violations and the depredations that characterized the martial law regime of 1972? Will investors leave the country? Will young people still have enough good jobs? Will our labor force be squeezed into more painful contortions of diaspora? Will our voices still be heard? The answer, my dear graduates, is “It depends.”

Our hopes for the future depend on whether the Executive Department, led by the President, the leadership and the entirety of the Armed Forces of the Philippines and the Philippine National Police, Department of Justice officials and prosecutors, the Chief Public Attorney and her public defenders will take sufficient care to abide by the Constitution and the laws even while Martial Law is in place. It depends on whether there will be abuse of the awesome powers that Martial Law gives the Armed Forces and the police.

It also depends on whether Congress and the Supreme Court will exercise their review powers appropriately over the declaration of Martial Law and the suspension of the privilege of writ of habeas corpus; and whether both houses of Congress and all courts will continue to function normally and well.

It also depends on whether certain independent constitutional bodies, namely the Ombudsman, the Commission on Human Rights, and the Commission on Audit will persist in discharging their proper functions.

Finally, it depends on whether you, my fellow Ateneans, together with the rest of the Filipino population, do your part to ensure that this declaration of Martial Law does not imperil your future.

Allow me to clarify that the powers to declare Martial Law and suspend the privilege of the writ of habeas corpus are expressly granted President Duterte under the Constitution. When properly implemented, this should not by itself unduly burden our country. This power was granted to allow the President to resolve the situation “in case of invasion or rebellion, when the public safety requires it.” There may be questions before the Supreme Court regarding whether this can be extended to encompass situations akin to invasion or rebellion, and what circumstances constitute rebellion, but we will not venture into that for now. Suffice it to say that the Martial Law power is an immense power that can be used for good, to solve defined emergencies; but all earthly powers when abused can result in oppression.

If the Martial Law power is expressly granted the President, why are there fears expressed in some quarters regarding the declaration of President Duterte?

You must understand the history of a previous declaration of martial law, which occurred over forty years ago at the height of President Marcos’ power. Former Chief Justice Claudio Teehankee in Dizon v Eduardo described September 22, 1972 – the night Marcos announced Martial Law – as a dark evening when military authorities moved throughout the city to arrest and detain journalists and members of the opposition, upon orders of the President-turned dictator. Over the next two decades, enemies of the Marcos regime “disappeared,” were tortured or summarily executed.

The fears stoked by the terms “Martial Law” and “suspension of the writ of habeas corpus,” are therefore not surprising. But we must remember that these apprehensions were created by former President Marcos and the martial law that followed his 1972 declaration. If President Duterte and the aforementioned government authorities avoid the gross historical sins of Mister Marcos and his agents, then our country might reap the benefits of the legitimate use of the provisions on Martial Law in the 1987 Constitution.

You see, the 1987 Constitution in clear and unmistakable language rejects and absolutely prohibits the particular kind of martial law that began in our country in September of 1972. What do I mean by this? Allow me to refer to the decisions of our Supreme Court and other tribunals regarding the essential characteristics of the martial law dominating our country following its 1972 proclamation.

First, that period was characterized by widespread human rights violations in the form of murders, rape and other forms of torture, forced disappearances, arbitrary arrests and illegal detention, and forced isolation or hamletting of villages.

In the case of Mijares v. Ranada, the Supreme Court described the deep damage dealt to our institutions and the very fabric of our society as follows:

“Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law.”

Perhaps the most specific recount of the human rights atrocities during the Martial Law period beginning in 1972 can be found in a U.S. Decision, specifically that of the Hawaiian District Court in the case of In Re: Estate Of Ferdinand E. Marcos Human Rights Litigation, Celsa Hilao, et. al v. Estate Of Ferdinand E. Marcos. The case was a class action brought by victims or victims’ family members against the Estate of Marcos, seeking compensation for torture, disappearance or summary execution. The court made findings of human rights violations including numerous forms of torture such as beatings while blindfolded, rape and sexual assault, electric shock, and solitary confinement. The court noted:

“All of these forms of torture were used during “tactical interrogation,” attempting to elicit information from detainees concerning opposition to the MARCOS government. The more the detainees resisted, whether purposefully or out of lack of knowledge, the more serious the torture used.”

Second, the period of martial law that began in September of 1972 was likewise characterized by its heretofore unprecedented scale of plunder.

The case of Presidential Commission on Good Government v. Peña described the rule of Marcos as a “well-entrenched plundering regime of twenty years,” with respect to “the ill-gotten wealth which rightfully belongs to the Republic although pillaged and plundered in the name of dummy or front companies, in several known instances carried out with the bold and mercenary, if not reckless, cooperation and assistance of members of the bar as supposed nominees.” The Supreme Court in that case “noted the magnitude of the regime’s organized pillage and the ingenuity of the plunderers and pillagers with the assistance of experts and the best legal minds in the market.” The ill-gotten assets identified so far by both the Presidential Commission on Good Governance and the Solicitor General are valued at approximately 5 billion US dollars.

Third, the martial law following the proclamation of 1972 was extremely oppressive, concentrating power only in Mister Marcos and his group. At one point, the Supreme Court, quoting Chief Justice Teehankee, characterized the time as “a return to the lese majeste when the voice of the King was the voice of God so that those touched by his absolute powers could only pray that the King acted prudently and wisely.” The dictator amassed so much power as the Commander-in-Chief, that he was able to take “absolute command of the nation and… the people could only trust that he would not fail them.”

We know what happened. Marcos failed our people. Those of us who were alive at the time bore witness to the human rights atrocities and the corruption caused by such absolute power.

Fourth, the martial law period of 1972 put the Philippines in an economic tailspin that saw us go from the second most vibrant economy in Asia to its sick man. In Marcos v. Manglapus, the Supreme Court noted that excessive foreign borrowing during the Marcos regime stagnated development and became one of the root causes of widespread poverty, leaving the economy in a precarious state. In Republic v. Sandiganbayan, the Court described the economic havoc created by the authoritarian regime in this manner:

At the time that the government of former President Marcos was driven from power, the country’s debt was over twenty-six billion US dollars; and the indications were that “illegally acquired wealth” of the deposed president alone, not counting that of his relatives and cronies, was in the aggregate amount of from five to ten billion US dollars, the bulk of it being deposited and hidden abroad.”

These are only a few excerpts from some of the many decisions of the highest court of the land that memorialize for all of history the atrocities committed during the era heralded by the 1972 declaration of martial law. They may not be the most heart-rending of accounts due to the necessary haste with which I compiled them, but I encourage you to do further reading on these and similar cases. These excerpts together with unrefuted historical accounts are a testament to our country’s resolve to never again allow ourselves to return to those dark and terrible times.

Thus the 1987 Constitution clearly says:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

As we face the days following President Duterte’s declaration of martial law in Mindanao, it behooves us to ask what we can do in the present, with the time that is given to us, to ensure that the horrors of martial law that followed the 1972 declaration do not happen again.

For if being an Atenean means anything, it is that each of us — individually, and as a member of the Ateneo as an institution — bears a great deal of responsibility for the well-being of this country. And this responsibility entails leading not by possessing power for power’s sake, but by sacrificial example, by dying to ourselves and taking up our crosses daily. If power is to be granted to an Atenean, then such power must be exercised the way Christ exercised his leadership, by being a servant first, to the Father, and to His brothers and sisters.

These are times when everything that can be shaken is being shaken, when institutions are being challenged to their very foundations, and basic ideas of decency and human dignity are being violated with great impunity. These are times more than any other that will sorely test the Atenean’s capacity to distinguish right from wrong and the Atenean’s ability to act in service of what is right, and true, and good.

Do not be discouraged, for you are well-equipped for the challenges of these times. You only need to look within and around you and reflect on the Atenean principles inculcated in you over the years –

Magis, or the constant pursuit of improvement and excellence, for difficult times require extraordinary people.

AMDG! For the greater glory of God — for these are times when our faith will be tested, our paths will be dark and full of shadows, and only by surrendering all our actions to God may we continue towards the light.

One Big Fight! More than a cheer used in our basketball games, One Big Fight embodies the wholehearted passion and dedication that must fuel all our actions.

But the most fundamental Atenean value today is that of being a person for others. To be an Atenean is to serve — compassionately, selflessly, with unceasing dedication. To be an Atenean is to constantly continue the work of addressing others’ needs; to think broadly, not merely in terms of impact on one’s self, but impact on one’s community and country. To be an Atenean is to deeply and completely understand that it is in service to others that our lives take on their full meaning. To be an Atenean is to forsake a life of self-centered safety for a life of service.

To be a person for others is to commit to a just and noble cause greater than oneself.

Given the present day, when the possibility of history repeating itself looms imminent, no cause requires your commitment as much as the cause of human rights, justice, and democracy, themes you have aptly chosen.

For today, people’s fundamental human rights and freedoms, the core of our democracy, face grave and blatant threats. The culture of impunity is on the rise. People are pressured to favor the easy choice over the right choice: expediency over due process; convenient labeling over fairness; the unlawful termination of human life over rehabilitation.

You need to make a stand, dear Ateneans. And to make a stand you must act. More than merely ruminating on the idea of justice, I call on each of you to confront the common injustices of our society and seek to address them. I urge you to speak out with truth even against the overwhelming tide of popular opinion and reach out to the oppressed and disenfranchised. When you face threats to the sanctity of human rights or the stability of our democracy, give your all to protect these freedoms. Give your all to protect our nation and our people.

Stand up and give One Big Fight. As I stated in my speech to the lawyers in the Integrated Bar of the Philippines National Convention last March 23, we are not fighting a person or an establishment but a culture, a pattern that pervades our society today. It is a pattern of apathy, rage, and despair: one that began when people learned to tolerate wrong, stopped hoping, and ceased caring.

I understand that the task before you is immense, but I have no doubt you are more than up to the challenge. For you have been honed over your years in the Ateneo to fulfill your calling in extraordinary ways.

That is why I do not feel only hope when I look at you – my heart is filled with grateful gladness. Throughout the countless calamities that have struck the country, Ateneans have always been among the first to respond and help. Unstintingly and without hesitation, Ateneans have reached out, time and time again, to complete strangers — giving of themselves to people they may never even meet.

Last year, when the history of our nation was subjected to attempts at revision, you were among the first to speak up. I saw young men and women from the Ateneo spill out into the streets, furious and indignant, speaking up against this distortion of our history and reaching out to show fellow Filipinos that they were not alone. As a fellow Atenean, I understood that this passionate outpouring of righteous anger sprang from a deep understanding of what it means to be a person for others.

Know that being a person for others and standing for human rights, justice, and democracy are one and the same. To stand for human rights is to value others’ freedoms as much as you value your own. To stand for justice is to oppose any attempts to value one group’s freedoms more than those of others. To stand for democracy is to love your country and your people so fully that you will act to ensure democratic processes are followed despite great personal cost. To stand for all of these is to sacrifice yourself so that others may know freedom, safety, and all the fullness of life.

Know that you are not alone. You will not be alone. Have the courage to stand.

My prayers are with you, young Ateneans. As you face this crossroad and move on to a new chapter of your lives, may the Lord bless and keep you; may He make His face shine on you and be gracious to you; may the Lord turn His face towards you and give you peace.

Mabuhay kayo, class of 2017! Make us proud!

Thursday, May 25, 2017

Martial law

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What the President can and cannot do under martial law
Published May 24, 2017 2:05am

Hours after the Maute group burned vital installations in Marawi City on Tuesday, President Rodrigo Duterte, while on official visit in Moscow, declared martial law in the whole of Mindanao.

Duterte became the third president to declare martial law after Ferdinand Marcos in 1972 and Gloria Macapagal- Arroyo in 2009.

Marcos declared martial law due to the communist rebellion while Arroyo did so in Maguindanao after members of the influential Ampatuan clan allegedly killed political opponents and dozens of journalists.

Duterte also declared a state of lawless violence in his hometown Davao City after a blast ripped through a popular night market, killing 12 and hurting 60 others, in September 2016.

"In order to suppress lawless violence and rebellion and for public safety, it is necessary to declare martial law in the entire island of Mindanao, including Sulu, Jolo and Tawi-Tawi for a period of 60 days," said Abella in a statement.

Now what is provided for under 1987 Constitution as regards martial law?

Article VII, Section 18 of the Charter provides that "the President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion."

"In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law," the Constitution reads.

"Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress," it adds.

Congressional, judicial review

In apparent reaction to the excesses of Marcos' martial law, the present Constitution provides for congressional and judicial processes to check the validity of the martial law declaration.

It provides that "Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President."

"Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it," the Constitution reads.

"The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call," it adds.

Further, the constitution provides that "the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing."

Constitution remains in force

Constitutional process also remain in force even under a martial law government.

"A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus," the Constitution says.

"The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion," it adds.

"During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released," the Charter reads. 


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- See more at:

Monday, May 22, 2017

Philippine President Attacks Neuroscientist Carl Hart for Speaking Against Drug War: ‘That Black Guy ... Son of a Bitch Has Gone Crazy’

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Carl Hart is the first black tenured professor and the first black chair in the sciences at Columbia University. (Courtesy of Carl Hart)

Carl Hart, one of the world’s leading neuroscientists and chair of the psychology department at Columbia University, was forced to cut a trip to the Philippines short earlier this month because of death threats sparked, in part, by propaganda disguised as media.

Hart, the author of High Price: A Neuroscientist’s Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society, was in the Philippines participating in a policy forum on the drug war at the University of the Philippines.

The “Drug Issues, Different Perspectives” forum was organized by the Free Legal Assistance Group, or FLAG, Anti-Death Penalty Task Force; the University of the Philippines Diliman Office of the Chancellor; and the University of the Philippines College of Law Institute of Human Rights.

Hart shared some of his findings debunking hysterical claims that drug use is inherently pathological and causes users to become violent and otherwise incapable of functioning in their daily lives. Hart also did not shy away from fiercely criticizing Philippines President Rodrigo Duterte, known for spearheading a deadly war on drugs in his country.

Duterte became furious when reporters asked him about Hart’s statements, calling Hart a “fool” and rejecting his research as nothing more than American “bullshit.”

“[Hart] said shabu does not damage the brain. That’s why that son of a bitch who has gone crazy came here to make announcements,” Duterte told Philstar. (“Shabu” is a slang term used in Hong Kong, Philippines, Malaysia and Indonesia to describe methamphetamine.)

Agnes Callamard, the director of Global Freedom of Expression at Columbia University and a United Nations special rapporteur on extrajudicial executions, is an opponent of Duterte’s drug war.

Callamard, who also spoke during the policy forum, quoted one of Hart’s points on Twitter. This resulted in Duterte slamming her as being in collusion with “that black guy.”

“She should go [on] a honeymoon with that black guy, the American. I will pay for their travel,” Duterte told reporters at the Ninoy Aquino International Airport. “They should be together and discuss.”

In addition to his decadeslong research on drug addiction, Hart has openly discussed his experimentation with methamphetamine. He has also been unrelenting in cutting through stigmatizing rhetoric that has, in large part, fueled the war on drugs. He never wavers in pointing out the similarities between the attention deficit hyperactivity disorder drug Adderall and meth, as well as presenting evidence that cocaine and tobacco have similar effects on the fetus.

Two of the above substances are legal: Adderall, which is beloved by Big Pharma, and tobacco, which has been legally pushed in black and brown communities (pdf) for decades while discriminatory drug policies—specifically around crack and marijuana—have been used to terrorize and occupy those same communities.

Hart fearlessly pushes back against respectability politics and shame in black communities, demanding a shift in dialogue that includes human beings having autonomy over what they put into their own bodies; following the data on what is dangerous to consume and in what quantities; realizing that not all drug use is problematic; zeroing in on the drug war as an intentional and institutional war on the most vulnerable, oppressed and marginalized communities both domestic and abroad; and calling out state violence, specifically hypermilitarized policing, as more dangerous for black people than drugs.

“The most important conversation that I have with [my sons], in terms of drugs, is they are more likely to be arrested for drugs than their white friends,” Hart said in conversation with asha bandele, senior director of the Drug Policy Alliance, during a Facebook Live chat on The Root.

“The most potential negative impact or consequence is the police, not the drugs themselves,” Hart continued.

The Root’s High Society series, which focuses on the implications of the legalization of marijuana…Read more

During the Drug Policy Alliance’s 2016 partner-gathering at Columbia University, Hart also urged attendees not to be distracted by the simplistic, media-driven narrative of a “gentler” war on drugs.

“They may be gentler on the [white] user, but black people are disproportionately arrested for the selling of opiates,” Hart said. “In the U.S., it’s comfortable to arrest black and brown bodies. Always pay attention to who’s getting arrested.”

If there is one thing that Hart always does, it’s make it plain; being in the Philippines, of course, didn’t change that.

According to Reuters, Duterte signed an executive order in February authorizing the creation of the Interagency Committee on Anti-Illegal Drugs.

ICAD consists of at least 21 state agencies, from “police, military and coast guard to health, education and social welfare.” Though the government claims that the purpose of the multipronged agency is to rehabilitate users and suppress dealers large and small, it has disproportionately targeted impoverished communities.

“More than 8,000 people have been killed since the drugs crackdown started eight months ago, 2,555 of them in what police say were shootouts during raids. [ICAD] says that 48,000 drugs suspects were arrested,” Reuters reports. Duterte has reportedly threatened to kill more.

Sound familiar?

Be clear: From the U.S., to Mexico, to Honduras, to Ghana, to Thailand, to the Philippines, the war on drugs is global.

In a Democracy Now! interview, Hart talked about the death threats he received for unpacking the misleading rhetoric around shabu and for speaking out against Duterte’s drug war in the Philippines.

From Democracy Now!:

When I was in the Philippines, the thing that I discovered is that it’s a lot worse than I originally thought it was. Duterte operates in intimidation. And so, not only is he the problem, but there are other political officials who are afraid to speak out. They are the problem. And Duterte has taken a page out of the 1980s U.S. drug war in that he’s using drugs to separate people, the issue of drugs to separate the poor people from the people who have means. And he is allowing or providing the environment so people could kill, as you pointed out, kill people who are engaged in drug use and in drug trafficking. And people are afraid to speak out against this wrong because Duterte has no qualms about having people’s lives be threatened. In fact, I discovered that people are being killed for as little as $100. It ranges from about $100 to $500 to have someone killed. And so, actually, I left the Philippines early because my life was threatened because of me speaking out against what Duterte was saying about drugs and what he’s doing. And so, we have it bad in the United States, but the Philippines, I have never seen anything like the Philippines.

See the entire interview below:

President Trump recently invited Philippines President Rodrigo Duterte to visit the White House,…Read more

Predictably, neither Donald Trump nor anyone in his regime has repudiated Duterte’s vile statements about Hart, a U.S. citizen; nor has he voiced any concern about the death threats the acclaimed scientist has received.

In fact, Trump recently praised Duterte, gushed over their “very friendly” conversations and invited him to the White House over vehement objections from human rights groups.

GIven that Hart is equally vocal in his opposition to U.S. Attorney General Jeff Sessions’ blatant push to escalate the drug war in the United States, Trump’s silence should come as no surprise.

Truth tellers such as Hart continue to put their lives on the line to end this inhumane war that has cost so many so much. History tells us that threats against black leaders deemed dangerous by those in power are rarely idle.

We should all be thankful for Hart’s life and his continued revolutionary work.

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Supreme Court rape myths violate women’s rights | Inquirer Opinion

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Supreme Court rape myths violate women’s rights
Philippine Daily Inquirer / 12:16 AM May 19, 2017

The Supreme Court should be ashamed of its recent rape decisions. Like sidewalk fortune-tellers who rely on playing cards to determine the future, the Court relies on debunked rape myths and false stereotypes to determine guilt. It has acquitted proven rapists as a result. This is not only tragic for rape victims, it also violates the Philippines’ human rights obligations under international law.

In a case decided in February, the victim testified that she fell asleep from dizziness while drinking alcohol with the accused and another friend. She was roused from sleep when the other friend started having sex with her. She was afraid that a knife atop a nearby table “would be used to kill her if she resisted,” so she cried. She was still dizzy, frightened, and shivering when the friend left and the accused approached her to ask if he could also have sex with her. She did not answer as she was still shivering, but the accused nevertheless raped her.

Both the trial court and the Court of Appeals found the victim’s testimony “credible, natural, convincing and consistent with human nature and the normal course of things,” and so held the accused guilty. But the Supreme Court acquitted the accused. It held that the victim gave the accused “the impression thru her unexplainable silence of her tacit consent” because “she did not, and chose not to utter a word or make any sign of rejection.”

The Court repeated this reasoning last month, when it acquitted an accused rapist because there was no evidence that the victim “resisted in that whole time,” and held that “[w]hat she did not do was eloquent proof of her consent.” This reasoning follows the common misconception that victims instinctively scream and physically resist their rapists. That is simply untrue. Victims rarely react to rape this way. In fact, psychological studies consistently show that the brain’s usual response to a violent or threatening situation is to paralyze the body—a state called “frozen fright.” Physical resistance is consequently often beyond the conscious control of rape victims. The Court’s reasoning thus conditions justice on a requirement that defies human nature. To expect victims to scream and physically resist their rapists is to expect them to override the brain’s inherent survival mechanism. To find consent in the victim’s nonresistance is therefore outrageous.

An international human rights body has in fact castigated the Philippines for adhering to this rape myth. Ten years ago, a Filipino woman went to the Committee on the Elimination of Discrimination against Women to claim that the Philippines violated her right to nondiscrimination when her rapist was acquitted based on several rape myths, including the myth that rape victims naturally resist their rapists. The Committee agreed with her, stating in 2010 that “to expect [the victim] to have resisted in the situation at stake reinforces in a particular manner the myth that women must physically resist the sexual assault. In this regard, the Committee stresses that there should be no assumption in law or in practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct.” The Committee concluded that the Philippines failed to comply with its obligations under the Convention on the Elimination of All Forms of Discrimination against Women, and recommended that the Philippines compensate the woman and “[e]nsure that all legal procedures in cases involving crimes of rape and other sexual offences are impartial and fair, and not affected by prejudices or stereotypical gender notions.”

Seven years after these recommendations, prejudices and false gender stereotypes still grip our courts. And the Supreme Court still follows the same debunked myth that rape victims instinctively resist rapists. Meanwhile, police records show that one woman or child is raped in the Philippines every hour. To help deliver justice to these victims, the Court must recognize the reality of rape and stop anchoring its decisions on rape myths.

Rebecka Koziomtzis is a PhD candidate at the National University of Singapore Faculty of Law. Her dissertation is on rape and international law. Bryan Dennis Gabito Tiojanco is a JSD candidate at Yale Law School. He graduated cum laude from the University of the Philippines College of Law.

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PH urged to take China war threat to UN |

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PH urged to take China war threat to UN
President Duterte said that Chinese leader Xi Jinping warned him of war if he insisted on drilling for oil in the South China Sea
Philippine Daily Inquirer / 12:00 AM May 21, 2017

Supreme Court Associate Justice Antonio Carpio (CDN FILE PHOTO/JUNJIE MENDOZA)

President Rodrigo Duterte should take China to the United Nations (UN) for threatening the Philippines with war if it drills for oil in an area in the West Philippine Sea that has already been declared within its exclusive economic zone (EEZ), Supreme Court Associate Justice Antonio Carpio said on Saturday.

The world body “outlaws the use or threat of force” to settle disputes between nations, and its threat could be considered a gross violation of the UN Convention on the Law of the Sea (Unclos) as well as a treaty of amity and cooperation in Southeast Asia, Carpio said.

Mr. Duterte disclosed on Friday that Chinese President Xi Jinping warned him of war if he insisted on drilling for oil in the South China Sea.

While he did not mention any specific areas in the sea region, the President was apparently referring to Recto (Reed) Bank, which is believed lying atop vast oil and gas deposits, but have not been utilized due to the territorial dispute.

The Permanent Court of Arbitration in The Hague ruled last year that the Philippines had sovereign rights in its 370-kilometer EEZ.

In effect the ruling meant that the Philippines can access offshore oil and gas fields, including on Recto Bank, 157 km off its coast.

“As a nation that under its Constitution has renounced war as an instrument of national policy, the Philippines’ recourse is to bring China’s threat of war to another Unclos arbitral tribunal, to secure an order directing China to comply with the ruling of the Unclos arbitral tribunal that declared Reed (Recto) Bank part of the Philippine EEZ,” Carpio said in a statement.

Recto Bank is vital to Philippine national interest as a replacement to Malampaya, which supplies 40 percent of the energy requirement of Luzon.

He added that the government could also claim damages from China for the period of delay that the Philippines is prevented from exploiting its EEZ.

Carpio said Mr. Duterte has a “constitutional duty” to use all legal means under international law to protect the country’s territory, refuting a claim by the President that he was helpless to counter Xi’s threat except to cooperate.

“Acquiescence means the Philippines will lose forever its EEZ in the West Philippine Sea to China,” Carpio stressed, adding that the President “cannot simply do nothing.” He said inaction was the “opposite” of protecting the country’s territorial boundaries.

The Supreme Court senior associate justice pointed out that the Philippines can also bring the threat of war before the UN General Assembly by sponsoring a resolution condemning China and demanding its compliance with the ruling of the arbitral tribunal.

In the face of China’s threat, Carpio said the Philippines could also strengthen its defenses and alliances, particularly with the United States, with which it has an existing mutual defense treaty.

“The Philippines cannot ally with China because China wants to grab for itself the West Philippine Sea and the Spratlys,” he said.

“As long as China threatens the Philippines with war over the West Philippine Sea, the Philippines can never lower its guard in its dealings with China,” Carpio said.

He said Xi’s war threat “reveals the aggressive design of China against the Philippines.”

“This extremely troubling development calls for all Filipinos to unite to defend the West Philippine Sea in accordance with the Constitution, international law and Unclos,” Carpio said.


Duterte: China threatened war

x x x."

Thursday, May 18, 2017

COA flags excess allowances for Calida, Hilbay and SolGen lawyers | Inquirer News

"x x x.

The Commission on Audit has flagged the Office of the Solicitor-General lawyers’ continued receipt of allowances exceeding 50 percent of their salaries.

In its 2016 annual audit report, the COA called on the government’s primary law firm to refund the excess allowances and limit receipt to the 50-percent cap. These allowances and honoraria were paid by OSG’s client government agencies for its legal services.

The OSG has resisted the audit recommendation, insisting that it has been following the law and that the COA Circular No. 85-25-E does not apply to its lawyers.

In fact, two notices of disallowance issued by auditors on February 2014 and August 2016 are currently pending appeal before the COA proper.

The COA’s recommendations in the 2016 audit report was a reiteration of that made in the previous year.

Millions past the cap

In 2016, incumbent Solicitor-General Jose Calida and predecessor Florin Hilbay received excess allowances of P1,123,742 and P4,662,144.41, respectively.

For the COA, they could only receive allowances up to P351,258, half their 2016 salaries of P702,516. (Calida and Hilbay each served for six months under President Rodrigo Duterte and predecessor Benigno
Aquino III, respectively.)

All in all, the excess allowances including those received by 15 other OSG officials totaled P8,555,767.80.

The other officials who received allowances above the 50-percent cap were: Myrna Agno Canuto, Herman Cimafranca, James Cundangan, Renan Ramos, Bernard Hernandez, Eric Remegio Panga, Ma. Antonia Edita Dizon, Danilo Leyva, Raymund Rigodon, Liway Czarina Ruizo, Sonny Von Ruaya, Lilian Abenojar, John Dale Ballinan, Melbourn Ziro Pana, and Ma. Hazel Acantilado.

While the OSG lawyers are authorized by Section 7 of Republic Act No. 9417 to receive allowances and honoraria, this is “not without limitations,” according to the COA.

It cited Item 4 of the COA circular issued in April 1985, which limits a government employee’s “extra compensation” equivalent to “fifty per centum of his annual salary.”

Pending resolution of the appeal on the NDs, the COA said: “The OSG officers and employees who rendered legal services and advise to client agencies should have collected only the amount of up to 50 percent of their basic salary.”

The excess allowances should be deposited in the OSG trust fund in the meantime, so they could later be given if the CoA issues a favorable decision.

For now, the COA said the Financial Management Service should only process allowances up to the 50-percent threshold.

Not reported for taxation

Yet, the COA observed that not all the allowances passed through the FMS because the OSG officials have not reported them as required by OSG Office Order No. D-188, series of 2009.

This meant the allowances were not properly monitored for taxation purposes, the CoA said.

Of the P8.56 million figure cited above, the listed OSG officials were found to have directly received P2,747,250 of the allowances from the client agencies. This figure includes P342,500 and P466,000 directly received by Calida and Hilbay.

Upon confirmation, the COA also found that a total of P3,372,756.85 in allowances was directly remitted by eight agencies: Aklan State University, Department of Education Division of Rizal, Development Bank of the Philippines, Film Development Council of the Philippines, Land Transportation Office, Occidental Mindoro State College, Philippine National Railways, and the Central Bank Board of Liquidators.

“The failure of the OSG employees to report the allowances directly given to them by client agencies provides no assurance that the correct taxes were indeed withheld or no taxes were withheld at all,” the audit report read.

The COA urged the OSG to require lawyers to abide by the said office order.

OSG takes exception

The OSG acknowledged the need to enforce the requirement so the allowances may be properly taxed.

But, the agency took exception to the CoA’s insistence on the 50-percent allowance cap.

The audit report noted that the OSG invoked Section 1(i) of Presidential Decree No. 478 (the 1974 OSG law) and Section 35(9), Chapter 12, Title III, Book IV of Executive Order No. 292 (Administrative Code of 1987).

Citing the rules, the OSG said its lawyers have been authorized to receive honoraria and allowances for their legal services “without qualification as to the number of agreements” they can enter into.

The OSG also told the COA that the Administrative Code and the OSG law repealed the 1985 circular that imposed the allowance cap, since it was effectively inconsistent with the regulations.

It also said the COA exceeded its authority by imposing a ceiling on allowances when it was only mandated to guard against irregular, unnecessary and excessive expenditures.

“Thus, COA Circular No. 85-25-E, which was issued beyond the scope of the statutory authority granted by the legislature to an administrative agency, is void,” the OSG told the COA

As a rejoinder, state auditors stood firm that the allowances should be limited. Since RA 9417 and EO 292 did not fix the allowable amount of benefits, they said the COA Circular on the 50-percent cap was deemed applicable to the OSG.

In a text message to reporters, Hilbay maintained that “obviously, the COA doesn’t have the authority to countermand an act of Congress.”

He explained that the matter of excess allowances has been an “old, recurring issue between OSG and COA.”

“The CoA can’t amend a law, especially a specific provision of law that goes back to the Administrative Code of 1987 and reiterated under [RA] 9417. That’s always been the position of the OSG under every SolGen,” he said.

- SFM/rga

x x x."

Wednesday, May 17, 2017

Out of 40 national laws to have passed through the 16th congress, 36 lapsed into law from July 17 to 22 after former President Benigno "Noynoy" Aquino III and President Rodrigo Duterte neither signed nor vetoed the bills.

"x x x.

Posted at Aug 04 2016 06:52 PM | Updated as of Aug 05 2016 02:56 AM

Out of 40 national laws to have passed through the 16th congress, 36 lapsed into law from July 17 to 22 after former President Benigno "Noynoy" Aquino III and President Rodrigo Duterte neither signed nor vetoed the bills. 

Here are new, interesting laws that stood out:

1. Stricter Anti-Carnapping Law

Republic Act 10883 or “An act providing for a new anti-carnapping law of the Philippines” now considers carnapping a non-bailable offense and will require Land Transportation Office to keep a record of all cars and owners. 

The new law increased the imprisonment time from a maximum of 17 years and four months, to around 20 to 30 years in jail.

If the person resorted to violence, their sentence would be extended from 30 years and one day up to 40 years. If the victim is raped or killed, the carnapper would be given a life sentence in prison. 

Any person involved in the concealment of the crime will be imprisoned from six to 12 years and fined with the cost of the car or any part involved in the crime.

2. Mandatory subtitles

Republic Act 10905 or “An act requiring all franchise holders or operators of television stations and producers of television programs to broadcast or present their programs with closed captions option, and for other purposes” requires TV stations to provide subtitles for the deaf community.

However, it exempts franchise holders or TV station operators and program producers who release public service announcements under 10 minutes or if providing text caption would prove to be economically burdensome. It also exempts programs aired between 1 am to 6 am, or are already textual in nature.

Those who fail to follow will either be fined with at least P50,000 but not more than P100,000 or be imprisoned for at least six to twelve months, or both. License or permit to operate may also be revoked.

3. Keeping Filipinas from becoming mail order brides

Republic Act 10906 or “An act providing stronger measures against unlawful practices, businesses, and schemes of matching and offering Filipinos to foreign nationals for purposes of marriage or common law partnership, repealing for the purpose republic act no. 6955, also referred to as the 'anti-mail order bride law'" penalizes any person who has in any way engaged in business to exploit Filipinas to offer to foreigners for marriage.

If found guilty, they will be penalized with 15 years of imprisonment and be fined with at least P500,000 thousand pesos but not more than P1-million. 

Anyone who has cooperated in the illegal act will also suffer the same penalty. However, those who operate in more than two people will be penalized with 20 years of imprisonment and a fine of at least P2-million but not more than P5-million. 

Any person who has served as an accessory to the crime will be imprisoned for 10 years and a fine of at least P100,000 but not more than P500,000. 

Meanwhile, foreign offenders will be deported to their home country and if the offender is under the employment of an establishment, then the person in-charge who participated in the act will be facing penalties. 

In turn, proceeds and penalties will be seized by the government. Victims will also receive assistance from the respective government agencies and commissions.

4. No more candies or inexact change

Once Republic Act 10909 or “An act prohibiting business establishments from giving insufficient or no change to consumers and providing penalties therefore” takes effect, you can now sue the establishment for not giving you your due change. 

Establishments are also required to stick price tags with the exact price the consumer has to pay.

Failure to comply will result to a fine of whichever is higher in amount: P500 or 3% of gross sales for first offense, P5,000 or 5% of gross sales for second offense, and P15,000 or 7% or gross sales and a three-month suspension of operations.

The last offense will result to a fine of P25,000 and total closure of the establishment.

5. Longer prescription for crimes of graft and corruption

Republic Act 10910 or “An act increasing the prescriptive period for violations of Republic Act no. 3019, otherwise known as the 'anti-graft and corrupt practices act' from fifteen (15) years to twenty years, amending section 11 thereof” amended the prescription of offenses, also known as the statute of limitations, from 15 to 20 years. 

This means it’s still possible to carry out judgment on individuals guilty of graft and corruption within 20 years. 

6. Anti-age discrimination for employees

Republic Act 10911 or “An act prohibiting discrimination against any individual in employment on account of age and providing penalties therefore” prohibits employers from withholding promotion or deny training opportunities, compensation and privileges from employees on the basis of age.

Recruitment and employment agencies are also prohibited from refusing to help individuals regardless of age from seeking employment and labor organizations are prohibited to refuse employees of membership because of their age. 

Violators will be fined at least P50,00 but not more than P500,000 and/or be imprisoned between three months to two years. 

However, this law will only be effective on August 16.

7. No more texting while driving

Republic Act 10913 or “An act defining and penalizing distracted driving” will mean that any person who is using their phones in non-emergency cases and/or needs it for work will be penalized with a fine of P5,000 for first offense, P10,000 for second offense, and P15,000 and suspension of license for three months for the third offense. 

The law added that the fine may be increased, along with ultimately suspending the driver’s license if properly disseminated to the public. 

Meanwhile, those who are driving public utility vehicles, school buses, or carriers with flammable or toxic material within a 50 meter radius from school premises will be fined with P30,000 and have their licenses suspended for three months. 

8.) Mandatory speed limiters

Republic Act 10916 or “An act requiring the mandatory installation of speed limiter in public utility and certain types of vehicles” will require all covered public transportation vehicles to have a speed limiter. 

Vehicles without speed limiters before the passage of the law will have to comply within 18 months after it takes effect. 

The absence of a speed limiter will not be allowed for registration or be given a franchise permit, and the owners or operators for the vehicle will be fined with P50,000. 

Meanwhile, the driver’s license will be suspended for one month and the franchise permit for three months for the first offense.

Sanctions for succeeding offenses will be license suspension for three months and franchise suspension for six months on top of imposed fines at the second offense; and revocation of license and franchise suspension for at least a year, and an imposed fine for the third offense.

Offenders caught tampering with speed limiters will be imprisoned for six to 36 months and fined with P30,000.

-- With reports from Anna Mogato

x x x."

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Thursday, May 11, 2017

China's militarization of South China Sea is real

"x x x.

MANILA, Philippines — Beijing may start building military facilities on Scarborough (Panatag) Shoal in the West Philippine Sea as part of their strategy in countering the United States.

In an interview with ANC's "Headstart," Supreme Court Senior Associate Justice Antonio Carpio said China may reclaim Scarborough Shoal in the same way they did with Mischief Reef in the Spratly Islands.

Carpio explained that Scarborough Shoal is a strategic location for China as it guards the exit to the Pacific, which would allow them to fire missiles directed to the US in the future.

"Scarborough Shoal guards the exit to the Pacific because the Chinese submarines, nuclear-armed submarines are based in Hainan (Island) and if they fire their missiles in the South China Sea, those missiles will not reach the US because the range is only about 7,500 kilometers," Carpio said.

Recent reports showed that China has been making preparations for new land-based missile installations on Hainan Island in the South China Sea.

Satellite imagery from ImageSat International reveals recent changes in the layout of the People's Liberation Army's (PLA) Yulin Naval Base at the tip of Hainan Island.

Defense News reported that the PLA has deployed multiple missile launchers on the western side of Yulin Naval Base in less than two months.

Carpio, meanwhile, noted that China would have to go to the mid-Pacific in able to launch missiles that would reach the US.

"They have to go to the mid-Pacific and their only exit is though the Bashi channel and the air and naval base of China in Scarborough Shoal will protect that exit to the Bashi channel," Carpio said.

Situated in Batanes off northern Luzon, the Bashi Channel is a route to enter or exit the Western Pacific.

"If they reclaim it, it will be like their reclamation in Mischief Reef where they have a runway, they have a harbor for warships and their warships from there can go to the Bashi Channel to protect their outlet to the Pacific," Carpio said.

Carpio warned that increased Chinese presence in Scarborough Shoal means that they are planning something.

"Scarborough Shoal, I think, is the last shoal that they will reclaim and build into an artificial island to house, to host air and naval base and that could happen anytime," the high court justice said.

'China's militarization of South China Sea is real'

Adm. Harry Harris, commander of the US Pacific Command, said that Washington is challenged by an aggressive China which continues a methodical strategy to control the South China Sea.

"China's militarization of the South China Sea is real," Harris told the US Senate Armed Services Committee a few weeks ago.

Harris stressed that he has testified before that China was militarizing the international waterway and airspace above it by building air and naval bases on seven man-made islands in the Spratlys.

"Despite subsequent Chinese assurances at the highest levels that they would not militarize these bases, today, they have these facilities that support long-range weapons emplacements, fighter aircraft hangars, radar towers and barracks for their troops," Harris said.

China is nearly finished with its construction of three air bases on Subi (Zamora), Mischief (Panganiban) and Fiery Cross (Kagitingan) Reefs in the Spratly Islands.

Beijing's naval, air, radar and defensive facilities in the islands would allow them to deploy military assets including combat aircraft and mobile missile launchers to the Spratly Islands at any time.

x x x."

Wednesday, May 10, 2017

What are the issues that hamper Cayetano's confirmation as foreign affairs secretary?

Cayetano is the new foreign secretary, Duterte announced today.

Expect formal protests to be filed in the Commission on Appointments based on questions about his citizenship (the same issue that caused the rejection by the CA of his predecessor Yasay) and felonies related thereto.

His political advantage is that the Duterte coalition rules the HR, the Senate and the CA. Cayetano has the numbers (and long-time friends in the HR and the Senate).

Duterte is expected to exert his power to insure Cayetano's confirmation (in the same way that he worked very hard to insure the confirmation of his fraternity brod Aguirre as justice secretary).

The issues that hamper Cayetano's confirmation refer to:

* his lack of competence in foreign policy, 

* his lack of experience in global security, economic, geopolitical and other strategic issues, 

* his negative partisan image as a hardcore Duterte lackey, 

* his political dynasty in Taguig City, 

* the hidden political control of oligarchs, business tycoons and political benefactors over his person, and 

* his readiness to disregard the truth and the doctrines of constitutional law in defense of Duterte's deadly war on drugs.

Human Rights Watch slams Cayetano for defending 'the indefensible'. - Rappler.Com

"x x x.

Human Rights Watch slams Cayetano for defending 'the indefensible'
Published 2:10 PM, May 10, 2017
Updated 3:07 PM, May 10, 2017

The global group says the administration of President Rodrigo Duterte is 'delusional' for thinking it can sway other countries from pushing for accountability over drug-related killings

'DELUSIONAL.' Human Rights Watch says the statement of Senator Alan Peter Cayetano before the United Nations is 'defense of the indefensible.'

MANILA, Philippines – Human Rights Watch (HRW) on Wednesday, May 10, called Senator Alan Peter Cayetano's opening statement before United Nations (UN) member countries a "master-class in innovative defense of the indefensible."

Phelim Kine, the deputy director for Asia of the New York-based international organization, said the Philippine government is "delusional" if it thinks it can sway countries from condemning the extrajudicial killings linked to President Rodrigo Duterte's war on drugs.

"The Philippine government is delusional if it believes that cynical public exercises of fact-denial by official mouthpieces such as Cayetano can paper over the scale and savagery of Duterte's drug war," Kine said. "Instead, the global calls for accountability are likely to only grow louder."

Cayetano insisted during the dialogue under the Universal Periodic Review (UPR) at the UN headquarters in Geneva, Switzerland on Monday, May 8, that there is no new wave of killings in the Philippines. He blamed critics and local media for "deceiving" the world.

Kine said Cayetano's defense is merely a "new tactic" of the Duterte administration.

"The Philippine government of President Rodrigo Duterte has a new tactic to deflect mounting foreign criticism of its murderous 'war on drugs' that has killed thousands: simply deny those deaths are anything out of the ordinary," he said.

Despite Cayetano's insistence, at least 45 countries expressed concern over the rise of extrajudicial killings under the Duterte administration.

They urged the Philippine government to conduct a thorough and impartial investigation to ensure those behind the killings are held accountable. 

As of April 23 this year, 2,717 suspected drug personalities have been killed in legitimate police operations since the start of the Duterte administration, according to data from the Philippine National Police (PNP). There are 3,603 deaths under investigation. 

The UN member states join local and foreign organizations which have criticized the bloody war on drugs. 


x x x."

Militarization of the Duterte bureaucracy

The armed forces chief is the next interior and local government secretary, Duterte announced today. 

There are many retired generals in the Duterte administration, e.g., the national security adviser, the defense secretary, the incoming environment and natural resources secretary, and others. 

Without necessarily imputing anything negative on the persons of the generals currently serving under Duterte, it is relevant to state, by way of academic discussion, that history teaches us that a fascist or authoritarian government is always militarized

Military officers are routinely appointed to sensitive positions in a fascist regime, regardless of the professional education, experience, competence and reputation of the appointees. 

Militarization is the guiding spirit that prevails in a fascist civil service. Not meritocracy.

Militarization of the bureaucracy is the best way to maintain the survival of a fascist regime. 

It is a classic Marcosian tactic. 

It is a tactic that dictators worldwide maximize to the fullest to stabilize their regimes. 

Fascists must insure the blind loyalty of their armed forces. 

A corrupt and unprincipled military is the best tool to instill fear in the hearts of the citizens. 

A mercenary armed force secures the stability of a dictatorship, a revolutionary government, a martial-law regime, or an authoritarian rule disguised as a "state of national emergency". 

Fear is the foundation of all dictatorships

The dark, deadly and inhuman martial law phase of Philippine history under The Dictator Marcos from 1972 to 1986 has taught us that horrific lesson.

The Filipino citizens must work hard to instill in the minds of their soldiers (a) that they have taken an oath to serve to God, Honor, and Country and (b) that, first and foremost, their ultimate loyalty is to the sovereign Filipino people and not to their Commander-in-Chief.