Wednesday, December 19, 2018

Top 10 tips for litigators

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Top 10 tips for litigators
December 2018

Last month, the ABA Journal published a series of tips for young lawyers from senior lawyers who participated in the ABA’s Briefly Speaking contest. This month, we’re sharing the next round of advice—this time aimed at litigators and business lawyers. The contest winner in the litigators category was Tasha Blakney with Eldridge & Blakney in Knoxville, Tennessee.

“Be courteous to every single person you encounter in the courthouse, from the security officer who greets you at the door, to the bailiff who assists in the courtroom, to the clerks and the court reporters and everyone in between. When you need assistance—and you will—it is these very people who can make the difference for you between being an effective advocate and a clearly exposed newbie. If you are courteous and respectful to all, you will have advocates of your own when you need help.”

Tasha Blakney
Eldridge & Blakney
Knoxville, Tennessee

In legal writing: Less is always better. Remember your audience is a very busy judge who wants to get to the point quickly. Strive to put your most important arguments first, and state them as succinctly as possible. Revise and revise again, until you have pared away all excess words, phrases and arguments.

Karen Kahle
Steptoe & Johnson
Bridgeport, West Virginia

With clients and juries, don’t forget you are not talking to lawyers. So leave the legal jargon and logic at home and concentrate on what they want to know. Tell stories. Use examples. Be a person.

David Benson
Benson Law Firm

“Never allow your client to be the client and the attorney. They can only play the role of client. If they begin doing their own research and directing you on the law and what arguments to make, you have lost control of the matter and should withdraw to preserve your sanity.”

Deborah Pino
The Law Offices of Deborah Pino
Oakland Park, Florida

“Always break down the legalese to something the client can relate to in another context. Empower the client to make hard choices so he/she can move through the litigation and get to life on the other side.”

Gail Roth
Gail P. Roth, LLC
King of Prussia, Pennsylvania

“Look at your uniform jury instructions on the cause of action(s) and use them to help you draft not only the complaint but also for deposition preparation and discovery requests.”

Michael Schwarz
Law Offices of Michael Schwarz
Santa Fe, New Mexico

“Make it your goal to be the most prepared attorney in the courtroom at all times. Do this and you will always have an advantage over your adversary. Many times over, my laborious preparation for even the smallest and most insignificant of court appearances has provided me with the tools to be more effective than my adversary, which is the key to success in the courtroom.”

Shannon Miller
Maurice Wutscher
Wayne, Pennsylvania

“Be extra nice to the judge’s clerks and judicial assistants. A smile and a friendly ‘good morning’ go a long way. Not only do judges appreciate and expect you to be respectful toward court staff but not doing so could adversely affect your ability to best serve your clients. Ever wonder what the judge and clerk talk about in chambers? If you’ve been rude or nasty, that conversation might well be about you!”

Neal Zaslavsky
Law Office of Neal S. Zaslavsky
West Hollywood, California

“Hard work by a new litigator gets further than an underprepared, more experienced litigator. Roll up your sleeves and get to work. They will likely underestimate you to your advantage.”

Jen Lipinski
Gordon & Partners
Palm Beach Gardens, Florida

“Get out of the office. Always visit or inspect the site or the tangible objects that are the subject of the dispute. You will gain infinitely more knowledge by such inspections than you can possibly get from video, photos or documents. It also gives you the upper hand with witnesses who try to lie. It opens leads for evidence that you did not even think of. Also, take a few hours to visit your local courthouse and the clerk’s office. Meet people there, and make connections with the staff.”

Robert Guinness
Guinness & Buehler
St. Charles, Missouri

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Wednesday, December 12, 2018

How America Can Take Control in the South China Sea

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How America Can Take Control in the South China Sea
A simple playbook to prove China is all bark and no bite over its disputed islands.

February 13, 2017, 1:43 PM

Rex Tillerson, the former ExxonMobil chief who just became the new U.S. secretary of state, might not be causing the same level of global disruption as his boss, President Donald Trump. But in his Senate confirmation hearing on Jan. 11, he sent shockwaves through the China-watching community, vowing: “We’re going to have to send China a clear signal that, first, the island building stops and, second, your access to those islands also is not going to be allowed.”

These remarks instantly gave rise to a global consensus that spanned hawks in China to doves in the West. An editorial in the Global Times, a prominent mouthpiece for Chinese nationalists, warned: “Unless Washington plans to wage a large-scale war in the South China Sea, any other approaches to prevent Chinese access to the islands will be foolish.”

Former Australian Prime Minister Paul Keating also reacted angrily, saying: “When the U.S. secretary of state-designate threatens to involve Australia in war with China, the Australian people need to take note. That is the only way Rex Tillerson’s testimony that a ‘signal’ should be sent to China that ‘access to these islands is not going to be allowed’ and that U.S. allies in the region should be there ‘to show backup’ can be read.” From Beijing to Sydney, a consensus formed — Tillerson’s position has no basis in international law, is tantamount to an act of war, and does not make strategic sense. In short, opponents argue, the posture the new U.S. secretary of state proposed is legally baseless, politically dangerous, and practically ineffectual.

This consensus rests on the belief that China is both willing and able to go to war over serious provocation. But this misreads Tillerson’s proposal and misunderstands the complex realities of the South China Sea. A naval blockade is not the only way to achieve Tillerson’s objectives, and China has a large stake in avoiding war with the United States in the region.

To see this, we need to use a “whole of capabilities” lens that is less U.S.-centric. From this perspective, Tillerson’s suggestion would not boil down to a military blockade as most commentators assume. Instead, the United States and its partners potentially have at their disposal a full spectrum of actions including diplomatic negotiations and economic sanctions and kinetic constraints that, directly or indirectly, can prevent further island building and Chinese militarization of those islands.

One such action is targeted sanctions against individuals and companies that support, facilitate, or participate in Beijing’s illegitimate operations in the South China Sea. The bill introduced by Sen. Marco Rubio last December exemplifies this approach. It would impose asset freezes and travel bans on people and entities who “contribute to construction or development projects” in the contested areas and those who “threaten the peace, security or stability” of the South China Sea or East China Sea. It would also prohibit actions that may imply American recognition of Chinese sovereignty over the contested areas in these seas and restrict foreign assistance to countries that recognize China’s sovereignty there. These primary sanctions could be augmented by secondary sanctions against those who do business with the offenders. The Rubio bill may or may not be adopted, but targeted sanctions remain an important tool to indirectly cause changes in China’s behavior.

A more direct option would be for the United States and its partners to borrow a page from China’s own playbook and emulate its “cabbage” tactic in denying Beijing’s access to the South China Sea islands.

A more direct option would be for the United States and its partners to borrow a page from China’s own playbook and emulate its “cabbage” tactic in denying Beijing’s access to the South China Sea islands. The cabbage tactic consists of wrapping contested islands in multiple layers of Chinese military and paramilitary power. Like the Chinese cabbage, the anti-China cabbage would also have three layers, surrounding the targeted islands with private civilian boats in the inner circle, followed by law enforcement vessels in the outer circle, all protected by warships over the horizon.

The anti-China coalition couldn’t match China’s use of paramilitary maritime militias in such operations. But it could invite civilian volunteers to man the first line of defense. Rather than shooting down Chinese aircraft and mining Chinese ports, the coalition can use drones — both unmanned aerial and underwater vehicles — launched from civilian and coast guard ships to seal off the entry to China’s airstrips and harbors on the fake islands.

Contrary to common belief, these actions can be fully consistent with international law. If China does not recognize your rights to freedom of the seas, you have the right to restrict China’s freedom in return. The Permanent Court of Arbitration award from last July, which is now an integral part of international law despite Chinese rejection, has ruled as illegitimate China’s “nine-dash line” claims in the South China Sea, its occupation of Mischief Reef, its denial of access to Scarborough Shoal, its island building in the Spratlys, and its harassment of others in the Philippine exclusive economic zone (EEZ).

But the court does not possess the tools to enforce its rulings, so it’s up to the members of the international community to act on behalf of the common interest and to induce China to comply with its obligations. Fortunately, international law allows countries to conduct countermeasures against wrongful acts. As James Kraska, a professor of international law at the U.S. Naval War College, has argued, challenging China’s rights to access its artificial islands is consistent with international law. After all, it’s fair game to do to China what China has done to others.

Many are concerned that regardless of its legality, blocking China’s access to its occupied islands would amount to an act of war and risk armed conflict as a response. This fear is overblown, however. When China blocked others’ access to the disputed Scarborough Shoal and Second Thomas Shoal, nobody called it an act of war and no armed conflict ensued. Taking a leaf from China’s own book, the cabbage tactic of access denial would mute the casus belli and discourage Beijing from going to war.

Still, there is concern that, driven by the pressure of nationalist public opinion and in an effort to maintain national image and domestic legitimacy, Chinese leaders may escalate the conflict and engage in war with the United States. But as Jessica Weiss, a leading expert of Chinese nationalism, found in her study of China’s nationalist protests, nationalist public opinion is more of a tool in the government’s hands to signal resolve than a driving force of Beijing’s assertive foreign policy. A more recent analysis by Alastair Iain Johnston, a professor of Chinese foreign policy at Harvard University, also comes to a similar conclusion, showing a decline of nationalism among ordinary citizens since 2009.

As the weaker party and the party that depends far more on traffic in the South China Sea, China actually has a larger stake in avoiding war in this region than the United States does. Indeed, avoiding large-scale conflict is one of the imperatives of China’s long-term strategy in the South China Sea. China has become more aggressive in recent years because of a U.S. deterrence deficit in the gray areas between war and peace. Beijing’s preference for gray-zone activities is also a testament to the working of nuclear and conventional deterrence. The trick of avoiding war while getting China to comply with international law lies in a two-pronged approach that skillfully combines the strengths of sticks with those of carrots while neutralizing their weaknesses.

In considering conflict over the islands, we don’t have to imagine China and the U.S. military as the only parties involved; a full range of actions and players exists, including sanctions, negotiations, regional countries, and international civil society. It might be tricky in the current diplomatic climate, but in the best possible world, the combined effect of actions on this full spectrum has a good chance of persuading China to comply with international law, especially if it involves a concerted effort of the United States, major powers such as Japan and India, and regional states such as the Philippines and Vietnam.

Commenting on Tillerson’s remarks, Philippine Foreign Secretary Perfecto Yasay said: “If [the United States] wants to do that, they have the force to do so, let them do it.” A cabbage approach to deny China’s access to Scarborough Shoal or Mischief Reef would be more legitimate and effective if it involved the Philippine Coast Guard and civilian volunteers from the Philippines and other countries. Southeast Asian states often hedge between America and China with a tilt toward the one that is more powerful and more committed to them. If the Trump administration increases U.S. presence in the South China Sea, is committed to defending the Philippines as much as Japan and South Korea, and refrains from criticizing Manila’s domestic agenda, it could sway the pragmatic President Rodrigo Duterte to back the United States.

Targeted sanctions against Chinese persons and companies involved in projects in the South China Sea would also be much more effective if they were supported not only by the United States but also by other major economies and regional states. With its large state sector, China is particularly vulnerable to targeted sanctions. Its construction and development projects in the South China Sea have involved several large state-owned companies that are eager to make profit abroad. If designed cleverly, sanctions could hit hard big companies such as China National Offshore Oil Corporation, which moved a giant oil rig to drill in the Vietnamese EEZ in 2014; China Southern and Hainan airlines, which fly planes to the artificial islands; China Mobile, China Telecom, and China United Telecom, which operate communication networks on the disputed islands; and China Communications Construction Company, which dredged sand to build artificial islands in the Spratlys — thereby creating an incentive inside China to drop its illegitimate claims in the South China Sea.

Signaling a readiness to prevent Chinese island building and restrict China’s access to the fake islands is the logical response if the United States really wants to restore deterrence in the South China Sea. Part of the failure to put a limit on China’s expansion lies in the myth of an ever-looming war with China, which makes the use of logical deterrents unthinkable. This creates a self-restraint that is not only unnecessary but also strategically disastrous.

Alexander L. Vuving is a professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed in this article are the author's own and do not reflect those of the U.S. government or any U.S. government agencies.
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How can PH get Mischief Reef back from China?

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Q and A: How can PH get Mischief Reef back from China?

Hawaii-based South China Sea expert Alexander Vuving talks to Rappler about fears of a big war erupting in the disputed seas, the role of the Philippines as a 'swing state' between the US and China, and how he thinks President Duterte should manage the dispute moving forward

By Carmela Fonbuena
Published 6:00 PM, December 03, 2018
Updated 6:00 PM, December 03, 2018

BALANCING CHINA. Alexander Vuving outlines a strategy on how the US and the Philippines can work together to 'restore equilibrium' in the South China Sea. He is a professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies. Photo by Carmela Fonbuena/Rappler

HAWAII, USA – The international court was unambiguous about China’s illegal occupation of Mischief Reef, an underwater feature that Beijing has reclaimed to host a runway and a missile system, among other structures that neighbors are protesting.

The 2016 landmark ruling of the Permanent Court of Arbitration said China violated the sovereign rights of the Philippines, declaring that Mischief Reef falls within an area that “only the Philippines possesses [with] possible entitlements to maritime zones” under the United Nations Convention on the Law of the Sea.

South China Sea expert Alexander Vuving said there’s a need to talk about the Philippines getting back Mischief Reef.

“It is worth the conversation, at least, because it gives the Philippines more options, because it would give international law some teeth, and because Mischief can be the fulcrum of a strategy to restore equilibrium in the region,” Vuving said.

One of the Philippine’s experts on the South China Sea, Supreme Court Senior Associate Justice Antonio Carpio, has practically given up on this. “China spent billions of dollars putting up those structures and we cannot expect China to just abandon those very expensive reclamations,” Carpio said in a November 23 forum on the South China Sea.

“Right now a lot of people contain themselves within the traditional way of seeing things and forgo these options and China is able to leverage that mindset,” Vuving said.

Vuving is a professor at the Daniel K. Inouye Asia-Pacific Center for Security Studies in Hawaii. He is known for his hawkish views and criticism of how the former administration of US President Barack Obama handled the South China Sea dispute.

Journalist Carmela Fonbuena spoke with him about issues surrounding the regional flashpoint. Below are excerpts from the interview:

What is your assessment of the situation in the South China Sea?

We have arrived at a new normal, particularly with regard to the structures – the artificial islands that China has built – which cannot be destroyed or rolled back unless there is a big effort by the United States and some of the countries in the region, particularly the Philippines.

How has this changed the regional security dynamics?

China is now able to dominate the skies and waters of the South China Sea with a myriad of vessels and airplanes using their large outposts in the Spratly Islands as well as the Paracel Islands. Remember, in addition to 7 large artificial islands in the Spratlys, the Paracel Islands are completely occupied by China.

There are those who say China has won the South China Sea.

The new normal is not set in stone; it can be changed. I think it’s possible for the United States and its allies in the region, particularly if the US and the Philippines join forces to redress the imbalance of the new normal. I’ve outlined the contours of such a strategy in the article titled “How America Can Take Control in the South China Sea” – the title is not mine – in the magazine Foreign Policy on February 13, 2017.

How do you see that happening? They will demolish the artificial islands?

They can neutralize their effects. A key place in this strategy is Mischief Reef, which belongs to the EEZ of the Philippines. In accordance with the Permanent Court of Arbitration rulings of 2016, it’s legal for the Philippines to get it back. A central question in this strategy is, how do you get it without triggering a big war with China? My point is that China won’t let a war at its doorstep go big and that if China can win without firing a bullet, others can also do the same. Gray zone operations similar to what China has employed to get the Scarborough Shoal, but using drones to deny China’s access to the artificial islands, combined with targeted sanctions against individuals and companies involved in China’s illegitimate projects in the South China Sea, are part of such a strategy. From a military planning perspective, China should also have to plan the day when they have to engage in a showdown with the US, Vietnam, the Philippines, or other countries in the South China Sea. I think a part of the plan should be to try to localize the conflict.

What do you mean localize it?

You keep the conflict local. You don’t allow it to spread out to become a bigger conflict. We have seen it in the past when the Chinese clashed with the Vietnamese and seized Paracel Islands and some reefs in the Spratly Islands. There were shooting battles but very localized, very small.

Countries are afraid of third world war erupting in the South China Sea.

War is a possibility in the South China Sea. The question is, how big? The chance for the Third World War is low because the two superpowers, the United States and China, are now living in a world that provides them with more effective and more efficient ways than traditional war to wage their hegemonic contest. The trade war that President Trump is pursuing is one of those. Cyberwar is another. When it comes to the South China Sea, they can either keep their contest to the gray zone below the threshold of an all-out conflict or keep the conflict localized. Remember, the US and the USSR also waged proxy wars rather than engage in direct armed conflict with each other.

What do you think of President Rodrigo Duterte and his proclaimed pivot to China? How do you view the inconsistency of Philippine policies?

I think the inconsistency belongs to the nature of hedging. All the small countries in the region are hedging because they face with uncertainties and so they have to put their eggs in different baskets. But I think President Duterte’s embrace of China comes primarily from his historical experiences with the two great powers, the US and China. He does not trust the US while he thinks he can live with China and he probably believes that the future is China.

You think Duterte is hedging?

He went to China and tried to reconcile with China where he showed he is anti-American from the heart. He also flew to Japan where he praised Japan as the Philippines’ best friend. Then he cozied up to Russian President Putin and traveled to Russia. But he still maintains ties with the United States. He doesn’t play the ASEAN card, but he is playing the big power cards.

You think he’s playing it smart?

I don’t think that his strategy is the right one for the Philippines in the long term, but it has rationale. It tries to maximize benefits by making China and Russia new partners and minimize risks by sidelining the South China Sea disputes. It fits with his anti-Western and anti-American worldview. Duterte certainly feels more comfortable living with China than with the US. He probably thinks that the West Philippine Sea is a lost cause and he aims his strategy at getting the best out of a Chinese-dominant environment. But this is a bad gamble because the Philippines is one of the “swing states” that holds a key in the great power competition between the US and China. If Duterte swings too close to China, he will squander the opportunity to make the world safe for Philippine freedom and prosperity. Also, embracing China carries with it the big risks of debt traps and corruption that go with Chinese investment and weakens the Philippines in the South China Sea. The experience of the Arroyo administration’s pivot to China has shown these risks; the more recent experiences in Sri Lanka, Pakistan, and Malaysia have only reinforced this. It’s a very delicate balancing act for the Philippines to play as a “swing state.”

What is the danger if this is not balanced properly?

The balancing act consists of moves that go in opposite directions. If balanced properly, the moves complement each other, but if not balanced properly, they will undercut each other. So the swing state can reap maximum benefit from its swinging, but it can also be torn or paralyzed by its own balancing acts.

Hedging is working but it’s not a good strategy. Explain.

Hedging is a good strategy to deal with uncertainty. But there are important things that are not uncertain or are getting more certain. For example, if you’re a small country that has no territorial dispute with China and you don't need to fear of Chinese encroachment in your territory, then maybe you can allow yourself to cooperate with China to a larger extent. But the Philippines is, as a matter of fact, China’s adversary in the South China Sea as long as you want to maintain your possessions and protect your sovereignty there. If it is certain that China wants to realize its territorial and maritime claims in the South China Sea, if it is certain that China sees its relations with its neighbors as then Foreign Minister and now State Councillor Yang Jiechi said, “China is a big country and other countries are small countries and that’s just a fact,” than hedging is not a good strategy to deal with these facts.

No one’s talking about taking Mischief Reef back. Do we need to bring the conversation there?

It is worth the conversation, at least, because it gives the Philippines more options, because it would give international law some teeth, and because Mischief can be the fulcrum of a strategy to restore equilibrium in the region. Right now a lot of people contain themselves within the traditional way of seeing things and forgo these options and China is able to leverage that mindset.

Have you been criticized for beating the war drums?

Yes. My critical assessment is different from people who previously said they don’t care about the South China Sea. They say great powers don't fight over small rocks. But now the small rocks have become big fortresses. –

Carmela Fonbuena took the Advanced Security Cooperation course at the Daniel K. Inouye Asia-Pacific for Security Studies upon the invitation of the US State Department. Vuving is the course manager.

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Wednesday, December 5, 2018

11th Regular Foreign Investment Negative List [2018]

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11th Regular Foreign Investment Negative List 

By Pia Ranada
Published 2:40 PM, October 31, 2018
Updated 11:28 AM, November 01, 2018

MANILA, Philippines (UPDATED) – President Rodrigo Duterte green-lighted a new list of investment areas where foreign ownership is limited or banned.

The 11th Regular Foreign Investment Negative List is only slightly shorter than the previous list approved by then-president Benigno Aquino III in 2015.

It now allows up to 100% foreign ownership of 5 investment areas and activities, including internet businesses.

This new list is promulgated by Duterte's Executive Order (EO) No. 65, signed on Monday, October 29, but made available to media on Wednesday, October 31.

The 5 investment areas and activities that can now be 100% owned by foreigners are the following, according to the National Economic and Development Authority (NEDA):

Internet businesses
Teaching at higher education levels provided the subject being taught is not a professional subject
Training centers that are engaged in short-term high level skills development that do not form part of the formal education system
Adjustment companies, lending companies, financing companies, and investment houses
Wellness centers

Other major changes include allowing foreigners to own up to 40% of contracts for the construction and repair of locally-funded public works, except for infrastructure or development projects covered in Republic Act No. 7718, and projects which are foreign-funded or assisted and required to undergo international competitive bidding.

This, however, is subject to applicable regulatory frameworks, reads the EO.

Previously, foreigners could only have up to 25% equity in such contracts.

Foreigners can also now own up to 40% of private radio communications networks, compared to only up to 20% in the 2015 list.

The easing of such foreign ownership restrictions comes as the Duterte administration pursues an infrastructure push it is eager to implement with the help of foreign governments and firms, especially from China.

The Philippines is supportive of China's One Belt, One Roadinitiative.

Meanwhile, the following investment areas or activities, where up to 40% foreign equity is allowed, were taken out of the list:

Facility operator of an infrastructure or a development facility requiring a public utility franchise

Adjustment companies

The new negative list reflects changes in mass media technology by exempting the "internet business" from the types of mass media enterprises where foreign ownership is banned.

It also widens the list of professions which foreigners are allowed to practice in the country and allows foreigners to teach in higher education insitutions as long as the subject they are teaching is not a professional subject (see the EO for annex of professions and more details).

These changes were seen in List A (Foreign ownership is limited by mandate of the Constitution and specific laws). List B, listing investment areas where foreign ownership is limited for reasons of security, defense, risk to health and morals, and protection of small and medium scale enterprises, was largely unchanged.

Below is List A under the new negative list:

(Rappler indicated parts that were changed, compared to the 2015 negative list. The changes are indicated by the text in bold.)

LIST A: Foreign ownership is limited by mandate of the Constitution and specific laws


Mass media, except recording and internet business[not in previous list]
Practice of professions, including radiologic and x-ray technology, law, criminology, and marine deck officers and marine engine officers [pharmacy and forestry in previous list] subject to the Annex on Professions indicating professions where foreigners are allowed to practice in the Philippines subject to reciprocity and where corporate practice is allowed [not in previous list]
foreigners may teach at higher education levels if subject being taught is not a professional subject (included in a government board or bar examination) [not in previous list]

Retail trade enterprises with paid-up capital of less than US$2.5 million

Organization and operation of private detective, watchmen or security guards agencies [general term 'private security agencies' used in previous list]

Small-scale mining

Utilization of marine resoures in archipelagic waters, territorial sea, and exclusive economic zone as well as small-scale utilization of natural resources in rivers, lakes, bays and lagoons

Ownership, operation and management of cockpits

Manufacture, repair, stockpiling and/or distribution of nuclear weapons

Manufacture, repair, stockpiling and/or distribution of biological, chemical and radiological weapons and anti-personnel mines

Manufacture of firecrackers and other pyrotechnic devices

[No more item for allowing up to 20% foreign equity]


Private recruitment, whether for local or overseas employment

Contracts for the construction of defense-related structures
[Included in previous list: Contracts for the construction and repair of locally-funded public works except:

Infrastructure/development projects covered in Republic Act No. 7718
Projects which are foreign-funded or assisted and required to undergo international competitive bidding]




[Not in previous list] Contracts for the construction and repair of locally-funded public works except:

Infrastructure/development projects covered in Republic Act No. 7718
Projects which are foreign-funded or assisted and required to undergo international competitive bidding

Exploration, development and utilization of natural resources
Ownership of private lands
Operation of public utilities, except power generation and the supply of electricity to the contestable market and similar businesses or services not covered by the definition of public utilities [not in previous list]

Educational institutions other than those established by religious groups and mission boards, for foreign diplomatic personnel and their dependents and other foreign temporary residents, or for short-term high-level skills development that do not form part of the formal education system as defined in Section 20 of Batas Pambansa No. 232 (1982) [not in previous list]

Culture, production, milling, processing, trading except retailing, of rice and corn and acquiring, by barter, purchase or otherwise, rice and corn and the by-products thereof
Contracts for the supply of materials, goods and commodities to GOCC, company, agency or municipal corporation
Operation of deep sea commercial fishing vessels
Ownership of condominium units
Private radio communications network [not in previous list]
[Included in previous list: Facility operator of an infrastructure or a development facility requiring a public utility franchise]
[Included in previous list: Adjustment companies]


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35 judges, prosecutors, lawyers killed under Duterte gov't

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Judges, prosecutors, lawyers killed under Duterte gov't
Members of the judiciary are not spared from the culture of impunity

By Jodesz Gavilan

Published 6:45 PM, November 08, 2018
Updated 6:45 PM, November 08, 2018 

As of November 8, at least 35 judges, prosecutors, and lawyers have been killed since July 2016.

Below is a list of the victims and the circumstances of their murder, based on reports from the National Union of Peoples' Lawyers (NUPL) and other news reports collated by Rappler.

Click a year below to go directly to it.
2016 | 2017 | 2018


1. Lawyer Rogelio Bato Jr – August 2016

Rogelio Bato Jr was killed by unidentified gunmen in Tacloban City, Leyte, on August 23, 2016. He was the lawyer of then-mayor Rolando Espinosa Sr of Albuera, Leyte, and the mayor's son Kerwin Espinosa, who were accused of being drug personalities.

2. Lawyer Allen Evasan – August 2016

Allen Evasan was shot dead outside his office in Iligan City, Lanao del Norte, on August 23, 2016, according to a SunStarreport.

3. Lawyer Melver Tolentino – September 2016

Melver Tolentino was killed by unidentified men onboard a motorcycle at a gasoline station on September 15, 2016, in Magsingcal, Ilocos Sur, according to an ABS-CBN report.

4. Prosecutor Rolando Acido – October 2016

Rolando Acido was gunned down by two men onboard a motorcycle on October 26, 2016, while on his way to the Mati City Hall of Justice in Davao Oriental.

5. Lawyer Honorato Mazo – October 2016

Honorato Mazo, a Public Attorney's Office senior provincial lawyer, was killed in his backyard on October 7, 2016, in Matalam, North Cotabato, according to a Philippine Star report.

6. Lawyer Jemar Apada – December 2016

Jemar Apada was killed by a police officer in Diadi, Nueva Vizcaya, on December 1, 2016. The suspect, Police Officer 1 Clifford Dulnuan, shot Apada at the boarding house of the victim's wife who was also a cop.

7. Lawyer Arlan Castañeda – December 2016

Arlan Castañeda and his bodyguard were killed while attending Simbang Gabi (Christmas dawn mass) in San Pablo, Isabela, on December 20, 2016. Castañeda was a former town councilor who served for 9 years.

8. Lawyer Goering Paderanga Sr – December 2016

9. Lawyer Gerik Paderanga – December 2016

Father and son Goering Paderanga Sr and Gerik Paderanga were shot during an altercation with a security guard in Cebu City on December 22, 2016, the Freeman reported. The elder Paderanga was killed on the spot, while his son died
3 days later.


10. Prosecutor Johanne Noel Mingoa – January 2017

Quezon City prosecutor Noel Mingoa was killed by unidentified gunmen in Old Balara, Commonwealth Avenue, on January 11, 2018, the Philippine Daily Inquirer reported.

11. Retired judge Victor Canoy – February 2017

Victor Canoy was shot dead while on his way to an eatery on February 2, 2017, in Surigao City, SunStar reported. He was a retired judge of Surigao City Regional Trial Court Branch 29.

12. Lawyer Mia Mascariñas Green – February 2017

Environmental lawyer Mia Mascariñas Green was ambushed by 4 unidentified men in Bohol on February 15, 2017. The alleged mastermind, Lloyd Lancer Gonzaga, was arrested in July the same year, according to a report by the Philippine Daily Inquirer.

13. Prosecutor Diosdado Azarcon – May 2017

Caloocan assistant prosecutor Diosdado Azarcon was gunned down by motorcycle-riding men outside his house while on his way to work on May 22, 2017.

14. Lawyer Elmer Mitra Jr – June 2017

Elmer Mitra Jr was killed inside a moving vehicle on June 1, 2017. Jessie Carlos, the gunman behind the Resorts World Manila attack, was the "main person of interest" in the killing of the lawyer.

15. Lawyer Dolores Yumol – June 2017

Dolores Yumol, a lawyer and Bacoor City registrar, and her husband Felipe were ambushed by unidentified gunmen while on their way home in Las Piñas City on June 6, 2017.

16. Prosecutor Maria Ronatay – July 2017

Assistant prosecutor Maria Ronatay was killed when unidentified men opened fire at her car while she was on her way home on July 18, 2017, in Taytay, Rizal, the Philippine Daily Inquirer reported.

17. Judge Godofredo Abul Jr – August 2017

Butuan City judge Godofredo Abul Jr was killed when unidentified men fired at his vehicle on August 5, 2017, SunStar Cagayan de Oro reported.

18. Lawyer Hermie Aban – August 2017

Hermie Aban was killed by a gunman on August 15, 2017, in Puerto Princesa City, Palawan. He was the lawyer of former Palawan governor Joel Reyes, who is facing murder charges over the 2011 death of environmentalist and broadcast journalist Gerry Ortega.

19. Former prosecutor Pablito Gahol – September 2017

Former prosecutor and barangay chairperson Pablito Gahol was shot dead while on his way home from church in Mandaluyong City on September 3, 2017. According to a Philippine Daily Inquirer report, he was shot several times by unidentified men.

20. Prosecutor Reymund Luna – September 2017

Quezon assistant provincial prosecutor Reymund Luna was gunned down by motorcycle-riding men on September 29, 2017, in Infanta.

21. Lawyer Expectacion Baldeo – December 2017

Lawyer Expectacion Baldeo, also a Social Security System employee, was killed on December 3, 2017, while manning her gasoline station in Tiaong, Quezon. Her husband, former Quezon board member Regore Baldeo, was also killed in 2010.


22. Lawyer Jonah John Ungab – February 2018

Jonah John Ungab, also vice mayor of Ronda, Cebu, was killed when unidentified gunmen opened fire at his vehicle on February 19, 2018, along S Osmeña Street, Cebu City. He was the lawyer of suspected drug lord Kerwin Espinosa.

23. Lawyer Henry Joseph Herrera – April 2018

Henry Joseph Herrera was killed on April 22, 2018, when the vehicle he was riding with his family was ambushed by unidentified gunmen in Atimonan, Quezon.

24. Lawyer Ramy Tagnong – May 2018

Superintendent Ramy Tagnong, chief of the Calabarzon police legal affairs office, was killed on May 4, 2018, after being ambushed while onboard his vehicle with his partner in Antipolo City, according to a SunStar report.

25. Prosecutor Rogelio Velasco – May 2018

Quezon City assistant prosecutor Rogelio Velasco was killedafter being ambushed while onboard his red Toyota Innova at Don Antonio Heights on May 11, 2018.

26. Retired prosecutor Geronimo Marabe Jr – May 2018

Geronimo Marabe Jr was killed by unidentified riding-in-tandem men on May 22, 2018, in Ozamiz City. He served as public prosecutor for several cases involving the Parojinog family. (READ: The Parojinogs and the tangled webs they wove)

27. Prosecutor Madonna Joy Ednaco Tanyag – June 2018

Madonna Joy Ednaco Tanyag, assistant special prosecutor at the Office of the Ombudsman, was stabbed in front of a lottery outlet along Visayas Avenue in Quezon City on June 4, 2018. Tanyag, who was 5 months pregnant, was declared dead at the East Avenue Medical Center.

Arrested suspect Angelito Avenido said the killing was just an "accident." More than a month after his arrest, Avenido was killed after allegedly trying to snatch the gun of his police escort in July 2018 at Camp Karingal.

28. Judge Ricky Begino – June 2018

Judge Ricky Begino of the Metropolitan Circuit Trial Court of San Jose-Lagonoy, Camarines Sur, was killed on June 12, 2018, while on his way home. A suspect, Wilfredo Armea, was arrested the following day.

29. Lawyer Joey Galit – June 2018

Joey Galit and his wife were ambushed inside their subdivision on June 21, 2018. He and a security guard who responded to the incident died, according to a Philippine Daily Inquirer report.

30. Lawyer Salvador Solima – July 2018

Lawyer Salvador Solima was killed when unidentified gunmen barged into his home in Cebu City on July 2, 2018. He was a former assistant city prosecutor, but was dismissed for gross misconduct and grave abuse of authority.

31. Lawyer Rafael Atutubo – August 2018

Rafael Atutubo was gunned down by unidentified men wearing bonnets outside his home in Bacolod City on August 23, 2018.

32. Lawyer Connie Villamor – September 2018

Connie Villamor was killed by unidentified gunmen while onboard her vehicle in Tagum City, Davao del Norte, on September 24, 2018. The police are looking into a personal grudge as the possible motive behind the killing.

33. Lawyer Edeljulio Romero – September 2018

Edeljulio Romero was gunned down on September 28, 2018, in Barangay Culasi in Roxas City, Capiz. He was the lawyer of Melvin Odicta, the alleged top Iloilo drug lord who was slain in August 2016.

34. Judge Edmundo Pintac – October 2018

Ozamiz City judge Edmundo Pintac was shot dead by motorcyle-riding suspects on October 8, 2018, in Barangay Banadero in Ozamiz City. As executive judge of the city's Regional Trial Court Branch 15, Pintac handled the drug and firearms cases against Nova Princess and Reynaldo Parojinog Jr.

Local police told Rappler that the Parojinog siblings are now persons of interest in the killing of Pintac.

35. Lawyer Benjamin Ramos – November 2018

Benjamin Ramos, the secretary-general of the Negros Occidental arm of the National Union of Peoples' Lawyers, was shot dead by riding-in-tandem assailants on November 6, 2018, in Kabankalan City.

A known human rights defender, Ramos represented political prisoners, farmers, and other members of marginalized sectors in his career as a pro-bono lawyer.


x x x."

R.A. No. 9344, the Juvenile Justice and Welfare Act of 2006; benefits granted to minor offenders or children in conflict with the law [CICL].

PEOPLE OF THE PHILIPPINES vs. RICHARD O. SARCIA, G.R. No. 169641, September 10, 2009

“x x x.

Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code[46] and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law.[47] Accused-appellant is now approximately 31 years of age. He was previously detained at the Albay Provincial Jail at Legaspi Cityand transferred to the New Bilibid Prison, Muntinlupa City on October 13, 2003.

R.A. No. 9344 provides for its retroactive application as follows:

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x

The aforequoted provision allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this case wherein the conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A. No. 9344 shall apply to accused-appellant, who was below 18 years old at the time of the commission of the offense.

Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It reads:

Sec. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the Law.

The above-quoted provision makes no distinction as to the nature of the offense committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.[48] The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish, we should not distinguish.[49] Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime.

Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in conflict with the law can be gleaned from the Senate deliberations[50] on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a serious offense, and may have acted with discernment, then the child could be recommended by the Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the childs restoration, rehabilitation and reintegration. xxx (Italics supplied)

Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. (emphasis ours)

To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40 to the suspension of sentence is now moot and academic.[51] However, accused-appellant shall be entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the confinement of convicted children as follows:

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

X x x.”

Minority as mitigating circumstance under Article 68, Revised Penal Code.

PEOPLE OF THE PHILIPPINES vs. RICHARD O. SARCIA, G.R. No. 169641, September 10, 2009

“x x x.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,[32] was the governing law at the time the accused-appellant committed the rape in question. Under the said law, the penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty should be imposed.

However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CAs conclusion that the accused-appellant cannot be deemed a minor at the time of the commission of the offense to entitle him to the privileged mitigating circumstance of minority pursuant to Article 68(2)[33] of the Revised Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have taken place in any month and date in the year 1996. Since the prosecution was not able to prove the exact date and time when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused regarding his age.[34]

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with.[35] Thus, the proper imposable penalty for the accused-appellant is reclusion perpetua.

X x x.”





“x x x.

We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the Armed Forces, the President has the power to determine whether war, in the legal sense, still continues or has terminated. It ruled that it is within the province of the political department and not of the judicial department of government to determine when war is at end.39

In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision is final and conclusive on the courts.41

Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended by the American Governor-General whose act, as representative of the sovereign affecting the freedom of its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people.

The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is defined by these limitations.43

On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the President did not act arbitrarily.44 Using this yardstick, the Court found that the President did not.

The emergency period of the 1970's flooded the Court with cases which raised the political question defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect, with or without constitutional ratification, was a political question.46

The validity of the declaration of martial law by then President Marcos was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On whether the validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly divided. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine used different methods of approach to it.48

In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national emergency, the President must be given absolute control for the very life of the nation and government is in great peril. The President, it intoned, is answerable only to his conscience, the people, and God.51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met.53

It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA.

Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. The first was the need to grant this Court the express power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government.

We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional history. The provision states:

"Sec. 18. 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. 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 Congress. The 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 Congress, if the invasion or rebellion shall persist and public safety requires it.

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.

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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

x x x."

It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. They define the constitutional parameters of the calling out power. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question.

I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political question and therefore not subject to judicial review.

It must be borne in mind, however, that while a member's opinion expressed on the floor of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55 The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people.57

It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however, that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise.

Given the light of our constitutional history, this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine.

It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the "political" and the "justiciable. "58

We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved.60 Every officer under a constitutional government must act according to law and subject to the controlling power of the people, acting through the courts, as well as through the executive and legislative. One department is just as representative of the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action.61 This historic role of the Court is the foundation stone of a government of laws and not of men.62

X x x.”





“x x x.

If the case at bar is significant, it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-in-chief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government.1

The importance of the issue at bar includes this humble separate opinion. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of history. Political questions are defined as those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government, with discretionary power to act.3 The exercise of the discretionary power of the legislative or executive branch of government was often the area where the Court had to wrestle with the political question doctrine.4

A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the Governor-General) branches of government acted in suspending the privilege of the writ.

The Court ruled that under our form of government, one department has no authority to inquire into the acts of another, which acts are performed within the discretion of the other department.6 Surveying American law and jurisprudence, it held that whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus, this power is exclusively within the discretion of the legislative and executive branches of government. The exercise of this discretion is conclusive upon the courts.8

The Court further held that once a determination is made by the executive and legislative departments that the conditions justifying the assailed acts exists, it will presume that the conditions continue until the same authority decide that they no longer exist.9 It adopted the rationale that the executive branch, thru its civil and military branches, are better situated to obtain information about peace and order from every corner of the nation, in contrast with the judicial department, with its very limited machinery.10 The seed of the political question doctrine was thus planted in Philippine soil.

The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature. The Court refused to interfere in the legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process."12

The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership.

In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment to the Constitution. If their votes had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of Congress to pass the amendment. The amendment was eventually submitted to the people for ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity.15

In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process and the legislature's exercise of its discretionary authority is not subject to judicial interference.

In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members.

The contours of the political question doctrine have always been tricky. To be sure, the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the latter had been elected without a quorum. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate President.

In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes.

In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution.

The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues therein raised were political questions the determination of which is beyond judicial review.27

The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly, the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly.29

In sum, this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature.30

The Court hewed to the same line as regards the exercise of Executive power. Thus, the respect accorded executive discretion was observed in Severino v. Governor-General,31 where it was held that the Governor-General, as head of the executive department, could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department, and with full confidence that he will perform such duties as his best judgment dictates.32

Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission. Under the principle of separation of powers, it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. Each department has an exclusive field within which it can perform its part within certain discretionary limits.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions, with which the judicial department of government has no intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department; such questions being many times reserved to those departments in the organic law of the state."35

In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The President's inherent power to deport undesirable aliens is universally denominated as political, and this power continues to exist for the preservation of the peace and domestic tranquility of the nation.37

In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the President's appointing power. It held that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office.

X x x.”

Tuesday, December 4, 2018

Civilian supremacy clause of the Constitution; mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

"x x x.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation of Section 3, Article II[36] of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures.[38] It is their responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are:

1. Elections;[42]

2. Administration of the Philippine National Red Cross;[43]

3. Relief and rescue operations during calamities and disasters;[44]

4. Amateur sports promotion and development;[45]

5. Development of the culture and the arts;[46]

6. Conservation of natural resources;[47]

7. Implementation of the agrarian reform program;[48]

8. Enforcement of customs laws;[49]

9. Composite civilian-military law enforcement activities;[50]

10. Conduct of licensure examinations;[51]

11. Conduct of nationwide tests for elementary and high school students;[52]

12. Anti-drug enforcement activities;[53]

13. Sanitary inspections;[54]

14. Conduct of census work;[55]

15. Administration of the Civil Aeronautics Board;[56]

16. Assistance in installation of weather forecasting devices;[57]

17. Peace and order policy formulation in local government units.[58]

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

x x x."


[G.R. No. 141284. August 15, 2000]