Atty. Manuel J. Laserna Jr.

I am not a pro bono lawyer. See the PAO or IBP chapter near you for free legal aid.

Sunday, September 16, 2018

Amnesty; " The constitutional issue: can the President revoke amnesty granted by a predecessor and concurred in by Congress? Also, if oral arguments are pushed to October, will there be a new chief justice by then? This could shape the outcome of events with Justices Antonio Carpio, Diosdado Peralta, and Lucas Bersamin – the most senior in the Court – emerging as appointment options for Duterte."

See - https://mailchi.mp/d35f79732772/philippine-political-storms-653501?e=b8a759c323


"x x x.


Can courts reopen a closed case?

In the case of Branch 148, the 2003 coup charges against Trillanes had been dismissed in September 2011 by Judge Rita Bascos Sarabia in accordance with the amnesty granted to him and other mutineers by then-president Benigno Aquino III. For Soriano, who has taken over from Sarabia, the question is whether “the docket can be reopened or not.”

Soriano had declared his court can accept evidence from Trillanes to establish he had complied with the requirements for amnesty. How long this process will take remains to be seen.

On Friday, September 14, Branch 150 under Judge Elmo Alameda will also hear the DOJ’s motion for the issuance of an arrest warrant in relation to the 2007 Manila Peninsula siege. Not doing so, according to Alameda, would prejudice the right of Trillanes to due process.

Lawyers have been emphatic that reopening the two closed cases will be tantamount to double jeopardy. Do the Makati judges think the same way or can they be convinced otherwise? We can only guess.




WAITING. Senator Antonio Trillanes IV is caught between the Supreme Court and the Makati Regional Trial Courts. Photo of Trillanes by Angie de Silva/Rappler


Scenarios

So what if the two lower courts do not grant the DOJ’s requests for immediate arrest warrants, what can prosecutors do? Any of the following scenarios could unfold.

1. Continuing crime. Ever heard of rebellion as a “continuing crime?” Solicitor General Jose Calida, a man who will follow the President’s bidding to nail down Trillanes, may opt to follow that trail.

During oral arguments in June 2017 on martial law in Mindanao, Calida was asked about evidence of rebellion outside Marawi City that would justify martial law in Mindanao. He defined rebellion as a “continuing offense.”

As such, a warrantless arrest for the crime of rebellion would be allowed even without martial law.

Apply this to the present situation and the possibilities especially under this administration can be alarming.

Former Supreme Court Associate Justice Consuelo Ynares-Santiago, however, specified in a separate opinion on the 2003 Oakwood mutiny that rebellion as a continuing crime “should be applied to its proper context i.e., relating to subversive armed organizations, such as the New People’s Army, the avowed purpose of which is the armed overthrow of the organized and established government. Only in such instance should rebellion be considered a continuing crime.”

Question is, how far are Calida and the gang willing to stretch rebellion as a crime? Will Branch 150 be swayed by them?

2. No immediate RTC decisions. The courts could say they would rather wait for the Supreme Court’s final ruling on Duterte’s Proclamation 572, and pass the ball back to the High Court. Or just follow legal procedures. This means Trillanes will have to wait awhile and he will be constrained to go defensive.

3. Supreme Court weighs comments, calls for oral arguments. With the lower courts and the High Court passing the ball, and the President declaring that no arrest will happen without proper arrest warrants from RTCs, urgency is gone and the SC could call for oral arguments. The constitutional issue: can the President revoke amnesty granted by a predecessor and concurred in by Congress? Also, if oral arguments are pushed to October, will there be a new chief justice by then? This could shape the outcome of events with Justices Antonio Carpio, Diosdado Peralta, and Lucas Bersamin – the most senior in the Court – emerging as appointment options for Duterte. (READ: By 2022, Supreme Court filled with Duterte appointees)

4. Trillanes arrest. The feared ending. How this will play out – given rising inflation, rising prices, and rice supply issues – is subject to endless speculation.

What do you think? Do share your thoughts and keep in touch!

Meanwhile, here are stories you shouldn’t miss:

Still no warrant for Trillanes. Trillanes buys more time from 1st Makati court
Duterte takes charge. Duterte to lead command conference on Typhoon Ompong
Typhoon watch. 16 areas under Signal No. 1 due to Typhoon Ompong (Mangkhut)
Who is Makati Judge Andres Soriano?
Who is Makati Judge Elmo Alameda?

x x x."








































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Posted by Atty. Manuel J. Laserna Jr. at 11:21 PM
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Children and the anti-illegal drugs campaign: When the cure is worse than the disease - By Clarissa C. David and Ronald U. Mendoza

See - https://news.abs-cbn.com/focus/09/13/18/children-and-the-anti-illegal-drugs-campaign-when-the-cure-is-worse-than-the-disease


"x x x.


Children and the anti-illegal drugs campaign: When the cure is worse than the disease

By Clarissa C. David and Ronald U. Mendoza
Posted at Sep 13 2018 01:12 AM
https://news.abs-cbn.com 

(Editor's note: This research paper-opinion piece was contributed by the authors to ABS-CBN News.)

Imagine waking up in the middle of the night, men have barged into your bedroom. Their faces are hidden behind masks, but their guns are displayed on their hips or their hands. The men drag your father outside the house, while pushing your terrified and screaming mother and siblings out of the way. The masked men disappear with your father into an awaiting vehicle. The next morning you hear that his lifeless body had been left on a street, riddled with bullets. Now imagine you are 11 years old. This happened to John Ryan and his 9 siblings, all of them younger than 17 years old. Their father, Joaquin, had been found dead the next morning on Kanduli Street in Manila[1].

We have heard about the children killed in the government’s anti-illegal drugs campaign, but we have not heard about the other ways this so-called “drug war” has changed the lives and futures of thousands of other children. Children who have witnessed acts of violence, children who are orphaned and traumatized, those at constant risk of direct physical harm due to their presence in areas where police conduct violent anti-drug operations, and those who experience discrimination from their communities because their fathers or mothers had been accused of drug use. The anti-illegal drugs campaign places children at immense risk. This is ironic given the presumed objective of the anti-illegal drugs campaign is to ostensibly protect the next generation from the scourge of illegal drug use.

We cannot continue to ignore the immeasurable long-term and potentially cross-generational impacts of this government’s violent and relentless campaign. If the government fails to protect children and their families from harm resulting directly from the anti-illegal drugs campaign, then it has already failed in its principal objective.
Three women, Manuel Borbe's sisters, protect a minor as they weep upon discovering their brother was killed by unknown gunmen who opened fire against him and a friend at a street corner in Quezon City, June 16, 2017. Jonathan Cellona, ABS-CBN News

Children killed

According to the Philippine National Police (PNP), 4,251[2] people have been killed during police operations. And at the time of writing this article, there is no publicly available information on how many of these victims are below 18 years old. The same agency reports 23,327 deaths under investigation[3] -- of this number, many are homicides related to drugs, and similarly, little is known about how many of the victims are minors.
Nercy Galicio, 16 a resident of Brgy. Tumana in Navotas, was found along a dark road in Obando, Bulacan with several gunshot wounds. Vincent Go, ABS-CBN News

The Children’s Legal Rights and Development Center (CLRDC), a children’s rights NGO, has been documenting specific cases. From July 2016 to August of 2017 they had documented 54 cases. And by December of 2017, it had climbed up to 74. In a study conducted by the Ateneo School of Government that put together a database of 5,021 killings related to drugs, during the period from 10 May 2016 to 29 September 2017, the deaths of 26 children were recorded, 7 of them below 15 years old. These include, among others:

● The infant child and five-year-old child of Normin Tantong. Normin was killed with her children in Cotabato City during the conduct of anti-drug operations in Raja Buayan town in Maguindanao[4] on 3 May 2017. She was with her children, both were killed by gunshots. May 3, 2017

● Michael Miras, 14 years old, was killed on 2 May 2017 by unidentified gunmen wearing bonnets, along with his father who was a Barangay Tanod in Old Balara, Quezon City[5].

● Jayross Brondial was a Grade 6 student from Pasay City. He was shot repeatedly by a man on a motorcycle on 26 September 2017. He was 13 years old. His older brother, who allegedly used drugs, had been killed earlier in the year. Their mother, who had lost two sons to the drug war, believes that Jayross was targeted because he had been mistaken for some other drug personality[6].

● On 24 July 2016, Richter Baykin, a 16-year-old boy and student of Pines City National High School, was killed by policemen during a buy-bust operation.

Children orphaned
Jocelyn and her children at the wake of her husband, Cesar Carillo, who was abducted by masked men on June 6, then found dead the next day with his body showing signs of torture. Jonathan Cellona, ABS-CBN News

Most of the victims killed due to the anti-drug campaign are men, and they are often fathers who support their families financially. There are also numerous known cases where women who are killed leave behind small children, as well as tragic cases when both parents are killed. Since tens of thousands of people have been killed, this means there are also tens of thousands of children who have lost fathers or mothers, who have been orphaned by violence.

There is no official count of children orphaned as a result of drug-related killings, but as early as December 2016, the Department of Social Welfare and Development (DSWD) had come up with an estimate of 18,000 children[7]. This estimate was based on a count of around 6,000 people killed, and the average number of children in a family (3 children). We recalculated this estimate based on a more conservative set of assumptions and using current data reported by the PNP. Reports have a specific number of drug-related deaths due to police operations, and 23,327 homicides under investigation. Further, the police report that for the homicides, motive has been determined for 13,243 killings, and the rest do not yet have an established motive.

Based on these numbers, around 20% of the cases are drug-related. We assume that each person killed has 2 children (instead of 3, the national average). Table 1 below shows the likely number of children orphaned, with the deaths of one or both parents in the Philippines’ anti-illegal drugs campaign.

If 20% of the homicides under investigation are deemed drug-related, in addition to those killed in police operations, at least 18,398 children have been orphaned one parent as a direct result of this anti-drug campaign. If the scenario is that 50% of homicides under investigation end up being drug-related after motive has been established, then the estimated number of orphans is 32,395.
Lisa cradles her daughter as her other children sleep during Leo Baldomero's, wake. Leo was abducted along with a friend, by masked men on June 6, then found dead a day later with a bullet-hole on his head and his body showing signs of beating. He was one of two suspected victims of drug related killings in Navotas, June, 9, 2017. Jonathan Cellona, ABS-CBN News


All of these estimates are based on what are likely under-reported statistics of parents that have been killed to date. The killings continue unabated, and as a result, there will be tens of thousands of children who will grow up without a father or a mother -- knowing that their parent was brutally murdered. Whether they witness these deaths first-hand or not, there will be trauma, stress, and long-term psychological harm. In addition, we also expect catastrophic economic shocks to the family affected, especially when the victims who are killed are breadwinners.

Children processed, detained, and listed
A drug peddler and a 15-year-old minor were arrested for alleged drug peddling by the City Drug enforcement unit (CDEU) during a buy-bust operation in Bacolod City on June 25, 2017. Martian Muyco, ABS-CBN News

A boy listens to a prayer before he and other relatives visit the grave of their loved ones, all minors, who were killed a year ago during the government's war on drugs campaign, at the Tala Cemetery in Caloocan, east of Manila on December 28, 2017, as the world commemorates Holy Innocents' Day. Noel Celis, AFP

According to the PNP-WCPC (PNP-Women and Children Protection Center) in April 2016, since the beginning of the campaign, 26,907 children surrendered as part of Oplan Double Barrel/Tokhang Operations. Except for 946 children, all had surrendered in 2016. The vast majority are boys (94%) and 3,279 of these children are 14 years old or younger. By dint of labeling these thousands of children below 18 years as “surrenderers” formally reflected in the system and in reports, it implies that the PNP had engaged in some form of listing of these individuals.

For its part, the Philippine Drug Enforcement Agency (PDEA) reports in June 2018 that they had “rescued” 1,155 minors during the conduct of their operations. Based on the PNP manual of operations, children who have broken the law are called “rescued” and not suspects, criminals, or even surrenderers.

Early on in the campaign, the Philippine Center for Investigative Journalism (PCIJ) reported on the tens of thousands of minors who had surrendered during the first two months of Oplan Double Barrel[8]. The regions with the highest numbers of children that had turned themselves in are Central Visayas (3,971), Northern Mindanao (3,783), and Zamboanga Peninsula (2,196). All of these regions have small populations relative to the National Capital Region (NCR), which only reported 276 children surrenderers.

In total, we are talking about over 28,000 children who have, in some way, been entered in the enforcement system of drug operations. Little is known about how these children were treated, why they were even included as part of the listed surrenderers. The basis for their listing remains unclear, and the protection of their rights to privacy and confidentiality as children that had contact with law enforcement also remains in question. The burden falls on the PNP to show the public and children’s rights watch-groups that laws and procedures relating to children were strictly followed.

There are manuals and protocols for how children should be treated by the PNP, these are codified in the “PNP Manual in Handling Cases of Children at Risk and Children in Conflict with the Law” adopted by the institution on October 2016. Bringing minors into police stations is the absolute last resort, acceptable only after options of counseling through parents, guardians, barangay officers have been exhausted. Section 6.2 of the manual states “Children in conflict with the law shall never be detained in a police station lock-up, or referred to jails managed by BJMP or any law enforcement agency, provincial jails and other similar facilities[9].” (emphasis added).

Children recruited into the drugs trade

Narconomics, an analysis of the illegal drugs trade using an economics lens, emphasized how drug dealers faced severe human resource (HR) challenges, given the high staff turnover in the narcotics trade – mostly due to the mortal risks involved. Drug lords in Latin America and the United States have therefore turned to an unlikely source for talent and skills training: prisons.

In this light, lowering the age of criminality in the Philippines to 9 years old should not be accepted. Throwing children in jail cells with hardened criminals may actually strengthen drug lords’ ability to recruit fresh talent – hardening youth who could have otherwise been saved from a life of crime and drugs.

We will end up strengthening their HR department.

International experience suggests that a whole-of-system approach is necessary to combat the narcotics trade. It requires international cooperation to combat smuggling and interdict drug flows. In addition, we need tighter financial regulatory reforms to make it more difficult to launder drug money and move this across borders. Economic development strategies that provide strong education and produce decent work for millions of young people should also be pursued. Finally, demand-side interventions that strengthen community awareness, and assist drug-affected individuals and their families will be critical, in order to save young people from falling deeper into drug dependence.

Ultimately, the most destructive impact of narcotics on our country is through its effects on our next generation of citizens, by weakening them. It would be ironic if the effort to combat crime and drugs sacrifices young people, the very wealth we are trying to protect from this scourge.[10]

Even if it has been established that a legal violation may have been committed, children should never to be placed in a detention facility along with adult inmates. Instead, they should be separated from offenders of the opposite sex. They are never to be handcuffed or restrained in similar manner, and should not be exposed to implements of physical violence (such as batons and guns). Children 15 years and below who are in conflict with the law (CICL) should not be in the custody of police for more than 8 hours. They are to be turned over to local social workers or NGOs within 8 hours. When police officers are unsure about the exact age of a minor and no legal documents are readily available, the PNP manual states that “in case of doubt as to the age of the child, the WCPD shall resolve the doubt in favor of the child’s minority because CICL enjoy the presumption of minority.”

Children who witness killings and murders
Children watch while a man attends to the remains of a drug suspect who was killed during a drug buy-bust operation in BASECO compound at the Port area in Manila on July 18, 2017. Jonathan Cellona, ABS-CBN News

Many media stories document the horrors of children witnessing a killing, many times witnessing their own parents’ killing. Linda, an 11-year old girl saw both her mother and father shot in the head[11]. Her mother was killed holding a piece of paper to show the gunman, proof that she had already surrendered in Operation Tokhang. Her father was calling out her name when he was shot in front of his children. On the day of her 10th birthday, Annie’s father came home to greet her and cook a birthday meal. Masked armed men barged into their house and, in full view of his children, shot her father in the head, chest, and stomach[12].

Innumerable children witness the daily violence of this anti-drug campaign. Some are present when their father or brother is killed or abducted, others see or hear their neighbors being gunned down. Hundreds or thousands of children see dead bodies on the street, standing behind police tape, watching the family members of those killed wail in helpless sorrow, gripped by shock and grief. Others attend the funerals of their friends, children who are killed and then called collateral damage in this alleged war against drugs. The number of children who witnessed the violence resulting from the anti-illegal drugs campaign could well reach into the millions, due to the extensive coverage of media.

In news stories on television showing video footage of crime scenes related to the anti-drugs campaign, it is common to see children standing behind the police tape looking at the dead body. They see their neighbors alive one day, and lying dead on the street the next. In areas where there are many killings, it can be a regular occurrence to see the violence, and even to expect it.

What does all this witnessing do to the children of hard-hit communities? How does it affect them? Will it change the way they value life itself? How might it shape their views of justice and rule of law? Will they seek comfort or revenge? How will it shape their lives?

Few studies are available on the Philippines as of the moment. As regards international evidence and experience, extensive research points to long-term harm on children arising from being exposed to violence linked to a purely punitive approach against illegal drugs. In Mexico, for example, empirical evidence suggests that both exposure and persistence of drug-related violence dramatically weakens academic achievement.[13] Similar studies focused on the effects of violence linked to the drug wars waged in Afghanistan, Colombia, Ecuador and Indonesia point to extensive harm to children and mothers, with implications not just on physical health and safety, but also on the psychological health of children and young people.[14] In the city of Juarez, Mexico, alone, at least 10,000 children have been orphaned because of the violence from the drug war, by one estimate.[15] In fact, the weight of international evidence suggests that a “war on drugs”—or a purely punitive approach to combatting the spread and use of illegal drugs—has not worked, and is now being replaced by harm reduction strategies. Scholars and advocates note how a legally regulated model of production and trade could better “protect” children from drugs—covering the most vulnerable children who use, transport and produce/farm drugs.[16]

To begin to understand the long-term implications of the anti-illegal drugs campaign in the Philippines, we need child psychologists, counselors, nuns, and priests to listen to the children who bear witness. Parents, grandparents, and carers of child-witnesses attest that the trauma can seem insurmountable. For instance, for Nanay Daa, whose son was killed by police in Payatas along with 3 other men, her 3 grandchildren saw their father’s dead body in the crime scene:

“Yung Grade 6, tumigil sa pag-aaral dahil sa nangyari sa papa nya. Laging naka-tulala. Laging naka-nganga. Nung pinatay ang papa nya nandyan sila lahat.”

“Nag-iiyak silang mag-iina, maaawa ka talaga. Sabi ko jusko panginoon ko, baka mamaya mabaliw na itong manugang ko, kasi hindi rin nya matanggap na ganoon ang nangyari.”[17]

Summary

In this climate of punitive action where procedures and operational rules seem suspended, children are at risk in many different ways. Beyond those who were killed, there are those who continue to be victimized by the police. They are detained, sometimes jailed, kept away from their parents, and then treated the same as adult offenders. We should be concerned not only about those who have been and will be killed, but all those children who are vulnerable to rights abuses or have been victimized in other ways by the government’s campaign against illegal drugs. That one of the first initiatives of the administration when it took office was to attempt to lower the age of criminal liability to 9 years old belies a hostile attitude against children. It also flaunts a surprising lack of guidance from international best practices and international evidence on what works more effectively in combatting the scourge of illegal drugs.

The impact on children of this so-called “war against drugs” is likely dramatic and long-lived. There is every reason to believe that it will be much larger as the policy continues -- “relentless and chilling” as has been promised in this year’s State of the Nation Address. We have limited information on the scale of these impacts, exactly how many children have been killed, how many have witnessed the killing of their loved ones, how many witness violence in their communities, and how many are arrested or targeted as drug personalities? It is time for the child rights groups, media, and academe to place a special focus on the impacts of this policy on children. It is time for us all to start protecting our children.

x x x."
Posted by Atty. Manuel J. Laserna Jr. at 10:13 PM
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Politics and the Courts; Social and political variables that help explain how justices come to favor the president’s preferred outcome.

See - https://opinion.inquirer.net/116081/will-supreme-court-vote


"x x x.


How will this Supreme Court vote?
By: Edilberto C. de Jesus - @inquirerdotnet
Philippine Daily Inquirer / 05:06 AM September 15, 2018



The Supreme Court declined to rule on the petition of Sen. Antonio Trillanes to strike down Proclamation No. 572, which voided his 2011 grant of amnesty. It returned to the Makati Regional Trial Court the decision on allowing the senator’s arrest. The Supreme Court reprieve is temporary. Trillanes will appeal any adverse decision from the Makati RTC, as the administration may also do, given its success in previous Supreme Court cases. How will the Supreme Court vote?


Early in their legal education, students learn about two kinds of lawyers: those who know the law and those who know the judges. The first group prepares their arguments by studying the applicable laws, analyzing the case facts, and retrieving possible precedents. The second group would research the track record and the professional and academic network of the judge making the decision.


We want to believe that a set of values and principles about right and wrong, together with norms and procedures regarding the collection and appreciation of facts, anchors our legal system and guides the decisions of the justices. When the laws are clear and the facts indisputable, we expect decisions consistent with precedents—predictable and unanimous.


The quo warranto decision has shaken this faith. I do not recall the Integrated Bar of the Philippines and the deans of the country’s most respected law schools ever uniting to assail a Supreme Court decision. This has reinforced the suspicion that factors beyond the law influence the justices’ vote and contribute to the concern that Proclamation No. 572, also assailed by law deans and the IBP, may get Supreme Court approval.


Often offered as a joke, the distinction between knowing the law and knowing the judges has already emerged as a hot topic for hard-core academic research. Fortuitously, Dr. Bjorn Dressel (Australian National University), Dr. Tomoo Inoue (Seikei University) and lawyer Cristina Regina Bonoan have produced “Informal Networks and Judicial Decisions: Insights from the Supreme Court of the Philippines, 1986-2015” to illuminate the issue.


The research has gathered instructive information. We have over 100 law schools in the country; over the last 30 years, only nine schools have sent graduates to the Supreme Court, with the University of the Philippines accounting for around 75 percent of them. More provocative than the profile of the justices is the pattern of their decisions on high-profile cases, where the incumbent president has a stake. Analyzing 618 individual votes cast on 47 “megapolitical” cases, the paper identifies social and political variables that help explain how justices come to favor the president’s preferred outcome.


Research findings show that votes favorable to the president tend to come from justices who are: 1) male (only 20 percent of justices are female); 2) appointed by the incumbent president; 3) in the social network (academic or professional) of other justices appointed by the president; 4) in the social network of a chief justice appointed by the president; and 5) serving in the early period of a presidential term.

All of Mr. Duterte’s six appointees have come from within the judiciary and may strengthen this element as well.


Both direct presidential and hierarchical pressures via the chief justice, exerted through networks built over years of educational and professional relationships with colleagues who think similarly, can influence voting behavior. Thus, “the unevenness sometimes exhibited in high-profile cases” and doubts about Supreme Court independence.


But the authors warn that their paper is descriptive, not predictive. Readers will be tempted, nonetheless, to speculate on how it relates to a possible Trillanes case. The research cannot predict with absolute certainty that Trillanes will go to jail; gamblers will take it as a tip on how to bet.

An administration triumph over Trillanes is not preordained. Justices must still individually wrestle with public expectations of their obligation to protect the independence of the Supreme Court and promote the rule of law—knowing that history will render its own judgment.


Edilberto C. de Jesus (edcdejesus@ gmail.com) is professor emeritus at the Asian Institute of Management.

Business Matters is a project of the Makati Business Club.


x x x."


Read more: https://opinion.inquirer.net/116081/will-supreme-court-vote#ixzz5RGcWOwve

Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook
Posted by Atty. Manuel J. Laserna Jr. at 8:32 PM
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Wednesday, September 12, 2018

On-Line Seminar: Human Rights Advocacy

See - https://www.youtube.com/playlist?list=PL5m1_CAEBBs0rF6NAhfbqFq65w14uhj9a

On-Line Seminar: Human Rights Advocacy
7 videos 1,615 views Last updated on Oct 24, 2016


HumanRightsWatch

1

9:04
An Introduction to Human Rights Advocacy
HumanRightsWatch

2

13:35
Case Study 1: Bringing Charles Taylor to Justice
HumanRightsWatch

3

20:57

Case Study 2: Ending Life Sentences for Juvenile Offenders
HumanRightsWatch

4

16:06
Case Study 3: Protecting Civilians During Armed Conflict
HumanRightsWatch

5

13:24
Case Study 4: Labor Rights for Domestic Workers
HumanRightsWatch

6

10:51
Case Study 5: Digital Advocacy to End Shackling in Indonesia
HumanRightsWatch

7

4:27
Wrap-Up: Lessons on Human Rights Advocacy
HumanRightsWatch


Posted by Atty. Manuel J. Laserna Jr. at 8:36 PM
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The Mirage of "Equal Opportunity" | Theodore Dalrymple

Posted by Atty. Manuel J. Laserna Jr. at 8:29 PM
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Against Intellectual Property (IP and Property Rights) by Stephan Kinsella

Posted by Atty. Manuel J. Laserna Jr. at 8:26 PM
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How to Speak and Write Correctly (FULL Audiobook) - part 3

Posted by Atty. Manuel J. Laserna Jr. at 8:23 PM
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How to Speak and Write Correctly (FULL Audiobook) - part 2

Posted by Atty. Manuel J. Laserna Jr. at 8:22 PM
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How to Speak and Write Correctly (FULL Audiobook) - part 1

Posted by Atty. Manuel J. Laserna Jr. at 8:22 PM
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What Makes a Great Legal Negotiator?

Posted by Atty. Manuel J. Laserna Jr. at 8:20 PM
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Counterterrorism, International Humanitarian Law [IHL] and humanitarian action

Posted by Atty. Manuel J. Laserna Jr. at 8:15 PM
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The Interplay between international humanitarian law (IHL) and international human rights law (IHRL)

Posted by Atty. Manuel J. Laserna Jr. at 8:13 PM
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International Humanitarian Law [IHL] and Humanitarian Principles

Posted by Atty. Manuel J. Laserna Jr. at 8:12 PM
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False claims of Duterte, Panelo about legal issues on Trillanes amnesty

See - https://www.rappler.com/newsbreak/iq/211760-duterte-panelo-false-claims-about-trillanes-amnesty

"x x x.

LIST: False claims of Duterte, Panelo about legal issues on Trillanes amnesty

President Duterte holds a one-and-a-half-hour tête-à-tête with Chief Presidential Legal Counsel Salvador Panelo, and rants against Senator Antonio Trillanes IV

Lian Buan
@lianbuan
www.rappler.com

Published 9:40 PM, September 11, 2018
Updated 1:52 PM, September 12, 2018


MANILA, Philippines – President Rodrigo Duterte expectedly used his scheduled nation address on Tuesday, September 11 – later reformatted into a tête-à-tête – to fire off more accusations against Senator Antonio Trillanes IV and justify why it was legal for him to void an 8-year-old amnesty.

But in doing so, Duterte and the sole interviewer, Chief Presidential Legal Counsel Salvador Panelo, made some false claims about the legal issues surrounding it.

Panelo started off by asking Duterte about the President supposedly “silencing his critics.”

CLAIM: “I have yet to sign anything ordering the arrest or the silencing of anybody in this government, especially the critics,” Duterte responded.

FACT: Duterte signed on August 31, 2018, Proclamation No. 572 voiding Trillanes’ amnesty.

At the end of the proclamation, Duterte said: “The Armed Forces of the Philippines and the Philippine National Police are ordered (emphasis ours) to employ all lawful means to apprehend former LTSG Antonio Trillanes so that he can be recommitted to the detention facility where he had been incarcerated for him to stand trial for the crimes he is charged with.”

Duterte would eventually backtrack from this directive, and say he is ruling out a military arrest and would instead defer to the courts.

But even despite a Supreme Court resolution making it clear that Trillanes cannot be arrested without a warrant, Presidential Spokesperson Harry Roque still maintained on Tuesday that the military can do a warrantless arrest if it wants to.

“Hindi po ibig sabihin ‘yun pero kung gusto, puwede. Pero hindi po sinasabi na gagawin na. Wala nang balakid kung gustong arestuhin si Senator Trillanes pero hindi po sinsabi na ‘yun na ang mangyayari,” Roque said.

(I’m not saying that it will happen, but they can do it if they want to. But I’m not saying they will do it. But there’s no stopping the arrest of Trillanes, but we’re not saying that we’re going to do it.)

Panelo then discussed the legality of Proclamation No. 572where Duterte unilaterally voided the amnesty on grounds of Trillanes’ alleged failure to file an official application form.

CLAIM: “I would rise and fall on the proposition that only the President himself can physically be doing the pardoning and granting the amnesty. It’s a constitutional mandate, mabigat ‘yan (that’s a big deal)…Any lawyer will always agree that (pardoning or granting amnesty) is exclusive to the president of the Republic of the Philippines,” said Duterte.

FACT: It is very clear in Section 19, Article VII of the Constitution that the president “shall also have the power to grant amnesty with the concurrence of a majority of all the Members of Congress.”

It is the revocation or the voiding of the amnesty that doesn’t have a clear textual basis in the Constitution. But the act of granting amnesty very clearly requires the concurrence of a majority of all members of Congress, and is not exclusive to the president, as Duterte claims.

Duterte mixed pardon and amnesty in the same thought, possibly because they’re both under Section 19.

Under the provision, the president ”may grant reprieves, commutations and pardons” without an additional requirement, and it is exclusive to the president. But granting amnesty was clearly differentiated in the law. (READ: Trillanes amnesty revocation: ‘Duterte reinventing the law’)

Panelo and Duterte then discussed the grounds why Trillanes’ amnesty is null and void. It was a theory floated over the weekend, and which the two men – both lawyers – reiterated during the tête-à-tête.

In the new theory, Duterte said that former defense secretary Voltaire Gazmin committed usurpation of authority when he signed Trillanes’ amnesty document, when it should have been former president Benigno “Noynoy” Aquino III. (READ: FALSE: Duterte says Gazmin 'didn't have authority to give Trillanes amnesty')

CLAIM: “In other words, Mr President, even assuming that Trillanes was compliant – compliant [with] the mandatory requirements of applying, under oath…” Panelo began to ask Duterte.

Duterte said: “Wala na ako doon. (I’m not concerned with that anymore).”

“Wala pa rin doon sapagkat lumalabas ngayon na talagang nullity, complete nullity (That’s no longer the concern because it turned out it’s a nullity, a complete nullity),” said Panelo.

FACT: The Gazmin theory was never mentioned in Proclamation No. 572, the legal document that took effect upon publication on September 4, and which voided Trillanes’ amnesty.

All that the proclamation cited was the alleged failure of Trillanes to file an application form that contains the additional requirement of expressly admitting guilt.

Can Duterte set aside the arguments on compliance and use the Gazmin theory moving forward?

“The validity of the Proclamation revoking the amnesty should only be based on the grounds or premises of the Proclamation itself. That theory is an extraneous matter or evidence aliunde that is an afterthought, if not scapegoating,” said Edre Olalia, President of the National Union of Peoples’ Lawyers (NUPL)

Constitutional Law professor Tony La Viña said that if Duterte wants to use the Gazmin theory, then he must amend the proclamation first.

Can Solicitor General Jose Calida, the executive branch’s lawyer, just add the Gazmin theory in his reply to the Supreme Court to justify the validity of the proclamation?

“Well, he can. But the SC should not address it because it is not the ground for nullifying the amnesty,” La Viña said.

To further support their Gazmin theory, Panelo cited the Supreme Court decision on Constantino vs Cuisia, a case in 2005 where the group Freedom from Debt Coalition sought to nullify agreements that Philippine officials entered into with foreign creditor governments.

One of the grounds of the petitioners is that the respondents, the Central Bank Governor and the Secretary of Finance among others, could not enter into agreements because that power exclusively belongs to the president.

Panelo read this portion from the decision to highlight their argument that Gazmin’s act of signing the amnesty document is prohibited: “Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to or exercised by an agent or alter ego of the President.”

CLAIM: “In fact, Mr President, your doctrine – you know, the doctrine that you are initiating now finds basis in the Supreme Court decision. In the case of Constantino vs Cuisia G.R. No. 106064 promulgated on October 13, 2005,” said Panelo.

Duterte did not dispute.

FACT: Constantino vs Cuisia cannot become the “basis” of the claim that Gazmin committed usurpation of authority because the Supreme Court decided that case in a way that does not support their argument at all.

“I don't know why Cuisia was cited because in that case, the Supreme Court held that presidential prerogative may be exercised by the President's alter ego, who in this case is the Secretary of Finance,” said Constitutional Law professor Dan Gatmaytan.

Gatmaytan added that the quote that Panelo chose to cite was “taken out of context as the Supreme Court was still laying out the law at that point.”

Panelo and Duterte are insisting that Gazmin as the president’s alter ego usurped authority by signing the amnesty document of Trillanes, and therefore the amnesty should be void.

“You cannot delegate that power to a subordinate, an alter ego,” said Duterte.

But in Constantino vs Cuisia, the SC actually upheld the “governmental acts” of the president’s alter egos.

If you read beyond Panelo’s chosen quotes, the SC would actually eventually say that because the petitioners could not show that the president “countermanded” or revoked the acts of her alter egos, “the said acts carried presidential approval.”

The dispositive portion reads: “We find that petitioners have not sufficiently established any basis for the Court to declare the acts of respondents as unconstitutional."

Duterte and Panelo eventually moved on from the topic, leading to a rare outburst from the President against the military, and a discussion about the option to go for the ancient cashless system of barter trade to curb inflation. – Rappler.com

Stories related to Duterte's interview with Panelo:

Duterte suspects 'assassination,' 'sabotage' on September 21
Duterte dares AFP: You want another president? Fine
Duterte replacing NFA administrator Jason Aquino
No 3rd telco player by November? 'I'll take over,' says Duterte
Duterte wants ancient barter trade to tame inflation
Workers' strike result of Duterte's policy failure – labor groups
Summary: What Duterte said during Q and A with Panelo
FALSE: Duterte says Gazmin 'didn't have authority to give Trillanes amnesty'
Workers' strikes result of Duterte's policy failure – labor groups
Duterte mentions 'Trillanes' 20 times in Q and A. 

x x x."
Posted by Atty. Manuel J. Laserna Jr. at 7:48 PM
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Birthright Citizenship; jus soli.

See - https://www.nationalreview.com/corner/constitutional-originalism-requires-birthright-citizenship/

"x x x.

Constitutional Originalism Requires Birthright Citizenship
By DAN MCLAUGHLIN
September 9, 2018 9:18 PM


Among the ideas that percolate now and then on the Right is the idea of reforming or eliminating birthright citizenship, the policy by which anyone born on American soil automatically becomes a natural-born citizen. From a policy perspective, there is fair grounds for debate: there are reasonable objections to the abuse of birthright citizenship, but also serious problems of principle and practice with changing it. But from a legal perspective, the answer should be clear: a proper originalist interpretation of the U.S. Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions.

Whose Birthright?

From a conservative policy perspective, the main complaint with birthright citizenship is how it interacts with illegal immigration: once a child is born on our soil, thus automatically gaining citizenship, his or her parents – even if they have entered and remained in the country illegally – gain a leg up in the struggle to remain. Liberals and progressives may not like the terms “anchor baby” and “chain migration,” and even conservative immigration moderates (like me) may be uncomfortable with how they sometimes get used, but they do describe a real-world issue: the child’s birth on our soil increases the chances that the rest of the family will win the fight to reside here. Indeed, this used to be a bipartisan concern; in 1993, back before he became Democratic Senate Majority Leader, Harry Reid introduced legislation that would have eliminated birthright citizenship for the children of illegal aliens.

All that said, birthright citizenship exists for reasons intrinsic to our American creed that ours is a society you join, not one reserved to those with an ancestral connection to the blood and soil. Any effort to uproot birthright citizenship, even for the children of illegal aliens, would bring us closer to the European problem of a two-tiered caste of citizens and permanently alienated aliens. Tampering with the status quo to root out the abuses might well create more problems than it is worth.

All of that is to say, the policy criticisms of birthright citizenship are legitimate, but they are far from an open-and-shut case. The legal argument, however, is much more open-and-shut.

Wong Kim’s Ark

The Fourteenth Amendment would appear, to the uninformed observer, to grant birthright citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” And in fact, the Supreme Court, in 1898, settled the question as far as the courts were concerned in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Wong Kim Ark held that the child of legal Chinese transients through the country, born in San Francisco, was an American citizen and could not be excluded from the country. While Wong Kim Ark did not deal with the children of illegal immigrants, its reasoning concluded that the Fourteenth Amendment had adopted the doctrine of jus soli, by which citizenship was conferred at birth rather than through the citizenship of the parents, and thus its logic extends to all born here regardless of parentage:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case…“strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”…Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” (Emphasis added).

Of course, Supreme Court decisions – even very old ones – are not infallible, and originalist scholars and judges sometimes criticize errors of very old vintage. The courts of the 1868-1898 period got more than a few things grievously wrong about the Fourteenth Amendment, and one of the two dissenters in Wong Kim Ark was Justice Harlan, who had also dissented alone two years earlier from Plessy v. Ferguson, the now-infamous “separate but equal” case. Still, the fact that Wong Kim Ark was decided 30 years after its passage places a heavier burden on those arguing that it somehow got the publicly-understood meaning of its words wrong. And Wong Kim Ark was reaffirmed by the Supreme Court to apply to children of illegal aliens as recently as 1982.

Jurisdiction and Its Limits

If there is any basis in the text for excluding anyone born in the territorial United States from birthright citizenship, it can be found in the phrase “and subject to the jurisdiction thereof.” Critics of Wong Kim Ark have generally drawn on the work of Edward Erler of the Claremont Institute, and his arguments have been offered in these pages and others by his Claremont colleagues John Eastman and Michael Anton. Erler argues:

A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship…

[D]uring debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S. (Emphasis added). 

This passage has attracted a great deal of controversy, because Erler, Anton and others making this argument have presented this quotation from Senator Howard to say “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” The inserted “or” changes the meaning significantly, if you believe that Howard was simply stating that “subject to the jurisdiction” excluded only those who were excluded from the reach of American law – like the children of foreign diplomats and the children of sovereign Indian tribes – and does not exclude foreigners and aliens generally. The narrower view of what “subject to the jurisdiction” excludes is the argument made at length over at The Federalist in 2015 by James Ho, who has since been appointed to the Fifth Circuit by President Trump.

COMMENTS

After National Review and other outlets appended corrections to this quotation, Anton penned a response over at Claremont, and you can read his piece alongside Judge Ho’s if you prefer to get into the weeds; I think Judge Ho has by far the better of the argument in light of the relevant history (including the fact that the 1868 Congress aimed to overrule the then-hated Dred Scott decision, which had stripped birthright citizenship from the children of slaves) and the fact that Anton is placing a heavy weight on the grammatical construction of a political speech rather than a legislative text. The reference to Indian tribes as having a distinct character is, of course, one that recurs in the text of the Constitution and much of American law on things like sovereign immunity and taxation; it is original and fundamental that Native American tribes have a different status than other populations in the United States who did not have pre-existing sovereign status on American soil.

Indeed, as Jake Walker has detailed here and here at RedState, birthright citizenship was the default rule, and embodied in the Constitution’s definition of “natural born citizen” in Article II, even before the Fourteenth Amendment. For example, as Justice Story – one of the leading legal commentators of his day – wrote in 1840:

[A]llegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto. (Emphasis added). 

James Madison:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.

(Emphasis added). This is not a definition of allegiance to the sovereign within one’s jurisdiction that depends on having been legally admitted to the country. Which is not surprising: while the right to exclude aliens from the jurisdiction is an ancient attribute of sovereignty, most of human history has not been characterized by airtight borders, enforced by vetting and documentation of new entrants. Laws have always assumed that anyone found in the land should be subject to the authority of the sovereign, regardless of how they got there. That rule applied unless there was some good reason – diplomatic immunity, being a lawful foreign combatant, being a member of a separately sovereign internal group like Native American tribes – to be outside the ordinary reach of the law. This is the legal backdrop that led Edward Bates, President Lincoln’s Attorney General, to write just a few years before the adoption of the Fourteenth Amendment:

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.

The Fourteenth Amendment, which incorporated Senator Howard’s language, is properly understood to have codified Attorney General Bates’ contemporary understanding. That is what it meant when it was adopted in 1868, and no amount of current political controversy about illegal immigration should lead conservative critics of birthright citizenship to abandon that original understanding.

DAN MCLAUGHLIN — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online. @baseballcrank
x x x."
Posted by Atty. Manuel J. Laserna Jr. at 7:34 PM
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Offshore gaming operators; "doing business in the Philippines"; tax implications

See - https://business.inquirer.net/256949/bir-clarifies-tax-status-offshore-gaming-firms


"x x x.

BIR clarifies tax status of offshore gaming firms
Philippine Daily Inquirer / 05:14 AM September 10, 2018


The Bureau of Internal Revenue has issued special rules on the registration of foreign-led Philippine offshore gaming operators (Pogo).

“Due to different attributes of a foreign corporation, there shall be a special implementation and administration with regard to the registration of Pogo licensee who is a foreign corporation,” Internal Revenue Commissioner Caesar R. Dulay said in Revenue Memorandum Circular (RMC) No. 78-2018 issued on Sept. 6.

Citing the previously issued RMC 102-2017 also concerning taxes slapped on Pogo, Dulay said that “online activity is sufficient to constitute doing business in the Philippines; thus, a foreign corporation engaged in Pogo is considered as resident foreign corporation engaged in business in the Philippines and not a nonresident foreign corporation.”
The National Internal Revenue Code or the Tax Code defines a resident foreign corporation as a foreign corporation engaged in business or trade in the country, while a nonresident foreign corporation has no business here.

The BIR earlier defined Pogo as “the offering by a licensee of Pagcor (Philippine Amusement and Gaming Corp.) of online games of chance via the internet, using a network and software or program, exclusively to offshore authorized players, excluding Filipinos abroad, who have registered and established an online gaming account with the licensee.” —BEN O. DE VERA

Read more: https://business.inquirer.net/256949/bir-clarifies-tax-status-offshore-gaming-firms#ixzz5Qsx3jqv1
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook
x x x."
Posted by Atty. Manuel J. Laserna Jr. at 7:20 PM
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Amnesty - "The DOJ believes that because President Rodrigo Duterte voided Trillanes’ amnesty, it has basis to ask both courts to reopen the cases and issue alias warrants. An alias warrant is a reissued warrant without the need for a new determination of probable cause. Trillanes and the Integrated Bar of the Philippines believe that both Makati courts have long lost the right to reopen the cases because the dismissals are final and executory."

See - https://www.rappler.com/nation/211417-explanation-doj-2-requests-trillanes-arrest-warrants-makati-rtc


"x x x.

EXPLAINER: Why DOJ has 2 requests for Trillanes warrant

(UPDATED) The 2nd and last motion for an alias warrant against Senator Trillanes is filed Friday afternoon at the Makati RTC Branch 150

Lian Buan
@lianbuan
Published 4:14 PM, September 07, 2018
Updated 9:49 PM, September 07, 2018


MANILA, Philippines (UPDATED) – The Department of Justice (DOJ) filed on Friday, September 7, its 2nd motion for an alias warrant of arrest against Senator Antonio Trillanes IV at the Makati Regional Trial Court (RTC) Branch 150.

There were two separate cases against Trillanes, both of which had been dismissed:

the 2003 Oakwood mutiny case with Makati RTC branch 148
the 2007 Manila Peninsula siege with Makati RTC branch 150

Branch 150 headed by Judge Elmo Alameda previously handled the rebellion charges against Trillanes over the 2007 Manila Peninsula siege.

On September 7, 2011, Alameda dismissed the charges against Trillanes pursuant to the amnesty granted to him by former president Benigno “Noynoy” Aquino III.

On September 4, the DOJ filed the first motion for alias warrant against Trillanes at Branch 148, which is now headed by Judge Andres Bartolome Soriano.

Branch 148, then under Judge Oscar Pimentel, handled the coup d’etat charges against Trillanes over the earlier 2003 Oakwood mutiny. Pimentel’s successor Judge Ma. Rita Bascos Sarabia dismissed the charges on September 21, 2011, pursuant to the amnesty.

Reopen cases?

The DOJ believes that because President Rodrigo Duterte voided Trillanes’ amnesty, it has basis to ask both courts to reopen the cases and issue alias warrants. An alias warrant is a reissued warrant without the need for a new determination of probable cause.

Trillanes and the Integrated Bar of the Philippines believe that both Makati courts have long lost the right to reopen the cases because the dismissals are final and executory.
Branch 148’s Judge Soriano set for hearing on September 13 the motion for warrant, denying the DOJ’s request for an instant issuance.

No action came from Branch 150’s Judge Alameda on Friday.

Asked why the DOJ belatedly filed the motion at Branch 150, Justice Secretary Menardo Guevarra said “wala naman (no reason).”

On Friday afternoon, the Department of Defense as well as the Palace changed their tone: from saying Trillanes can be arrested by the military, both agencies are now saying the civilian courts must be respected. – Rappler.com

x x x."
Posted by Atty. Manuel J. Laserna Jr. at 7:14 PM
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Jus soli; Canada is one of fewer than three dozen countries that follow the practice of citizenship based on birthplace and some — including Australia and Britain — have modified or ended automatic birthright in recent years, the government says in a case that will determine whether the Toronto-born sons of Russian spies are Canadian citizens.

See - http://www.canadianinquirer.net/2018/09/08/birthplace-doesnt-necessarily-guarantee-citizenship-feds-tell-supreme-court/


"x x x.

Birthplace doesn’t necessarily guarantee citizenship, feds tell Supreme Court

By Jim Bronskill, The Canadian Press on September 8, 2018


OTTAWA — International law does not require Canada to give citizenship to babies born on its soil, the federal government is telling the Supreme Court — an argument that could inadvertently bolster a recent Conservative party resolution aimed at stemming so-called birth tourism.

Canada is one of fewer than three dozen countries that follow the practice of citizenship based on birthplace and some — including Australia and Britain — have modified or ended automatic birthright in recent years, the government says in a case that will determine whether the Toronto-born sons of Russian spies are Canadian citizens.

“Indeed, no European countries, for example, grant an unqualified automatic citizenship by birth and they have no obligation to do so,” the federal submission says.

“Only 34 countries grant the automatic acquisition of citizenship through birthplace regardless of parents’ nationality or status. This practice is not consistent and uniform enough to ground a rule of customary international law.”

The federal Liberals adopted a decidedly different tone recently after the Conservatives passed a policy resolution calling on the government to enact legislation to end birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.”

Conservative Leader Andrew Scheer says one of the goals is to end the practice of women coming to Canada simply to give birth to a child that will automatically attain Canadian citizenship.

Refugee and human rights advocates have objected, saying there is no evidence of a birth tourism problem to solve and that the Conservative policy would open the door to stateless children being born in Canada.

Mathieu Genest, a spokesman for Immigration Minister Ahmed Hussen, said following passage of the resolution that it’s a “shame to see the Conservatives going back down the path established by the Harper government, which seeks to strip away the citizenship of people who have only ever known Canada as a home.”

Justin Trudeau’s principal secretary, Gerald Butts, called the Conservative policy “a deeply wrong and disturbing idea.”

However, the federal submission to the Supreme Court strongly suggests the notion of automatic birthright is not carved in legal stone.

It notes even those states that have chosen to grant citizenship to children born on their soil are not prohibited from applying exceptions. “A review of citizenship entitlements in various countries reveals a multitude of variations and restrictions on automatic citizenship by birth.”

Federal lawyers play down the concept of automatic citizenship in laying out the reasons the government believes Alexander and Timothy Vavilov — the offspring of Russian intelligence agents — should not be recognized as Canadian citizens, even though they were born in Ontario. The Supreme Court will hear oral arguments in December.

Central to the government’s argument is that the parents were employees of a foreign government, making the boys ineligible for citizenship under an exception in the law.

However, federal lawyers also address the role of birthplace in deciding citizenship.

“In short, nothing in international law requires Canada to bestow citizenship on the basis of birth, much less to give citizenship to children born to parents in the service of a foreign government,” the written federal submission says.

Two years ago, the government took a rosier view of the concept in a formal response to a petition against birthright citizenship sponsored by Conservative MP Alice Wong.

John McCallum, immigration minister at the time, pointed out that the United States and Mexico, as well as a number of other countries in the Americas, such as Brazil and Argentina, provide citizenship based on birthplace.

“While there may be instances of expectant mothers who are foreign nationals who travel to Canada to give birth, requiring that a parent be a citizen or permanent resident in order for their child to acquire citizenship through birth in Canada would represent a significant change to how Canadian citizenship is acquired,” McCallum added.

x x x."
Posted by Atty. Manuel J. Laserna Jr. at 7:06 PM
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Monday, September 10, 2018

The Limits of Power - Andrew J. Bacevich - part 2

Posted by Atty. Manuel J. Laserna Jr. at 5:28 PM
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The Limits of Power - Andrew J. Bacevich: The End of American Exceptionalism - Part 1

Posted by Atty. Manuel J. Laserna Jr. at 5:27 PM
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Gene Healy - The Cult of the Presidency: Dangerous Devotion to Executive Power

Posted by Atty. Manuel J. Laserna Jr. at 5:24 PM
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Appeal: effect of estoppel; essential elements of estoppel in pais

In MANILA INTERNATIONAL AIRPORT AUTHORITY, Petitioner, vs. DING VELAYO SPORTS CENTER, INC., Respondent, G.R. No. 161718, December 14, 2011, the Supreme Court held that the petitioner could not oppose the renewal of the lease because of estoppel. It must be noted, however, that in MIAA, supra, the Supreme Court held, inter alia, that “there is no estoppel when the statement or action invoked as its basis did not mislead the adverse party”. Estoppel has been characterized as harsh or odious, and not favored in law. “Estoppel cannot be sustained by mere argument or doubtful inference”. It must be “clearly proved in all its essential elements by clear, convincing and satisfactory evidence.” No party should be precluded from making out his case according to its truth unless by force of some positive principle of law, and, consequently, estoppel in pais must be applied strictly and should not be enforced unless substantiated in every particular.

The Supreme Court held therein that the essential elements of estoppel in pais may be considered in relation to the party sought to be estopped, and in relation to the party invoking the estoppel in his favor. As related to the party to be estopped, the essential elements are: (1) conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at least expectation that his conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts. 



Posted by Atty. Manuel J. Laserna Jr. at 4:38 PM
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Appeal; the parties who had not appealed in due time could not legally ask for the modification of the judgment or obtain affirmative relief from the appellate court.

In GREGORIO DE LEON, doing business as G.D.L. MARKETING, Petitioner, vs. HERCULES AGRO INDUSTRIAL CORPORATION and/or JESUS CHUAAND RUMI RUNGIS MILK, Respondents, G.R. No. 183239, June 2, 2014, the issue for resolution was “whether the CA erred when it ordered petitioner's appellant's brief filed with it be stricken off the records.” In that case, the Court held that the right to appeal was a statutory right and the one who sought to avail that right must comply with the statute or rules. The requirements for perfecting an appeal within the reglementary period specified in the law must be strictly followed as they are considered indispensable interdictions against needless delays. The CA correctly ordered in De Leon, supra, that petitioner's appellant's brief be stricken off the records because the parties who had not appealed in due time could not legally ask for the modification of the judgment or obtain affirmative relief from the appellate court.





Posted by Atty. Manuel J. Laserna Jr. at 4:34 PM
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Appeal; doctrine of "communality of interest"

In the case of FIRST LEVERAGE AND SERVICES GROUP, INC., Petitioner, vs. SOLID BUILDERS, INC., Respondent, G.R. No. 155680, July 2, 2012, the main issues were: [a] “SINCE ONLY SOLID BUILDERS, INC. APPEALED FROM THE JUDGMENT DATED DECEMBER 23, 1996, SAID JUDGMENT HAS BECOME FINAL AND EXECUTORY INSOFAR AS PNB-REPUBLIC IS CONCERNED”; and [b] “CONSEQUENTLY THE APPEAL OF SOLID BUILDERS HAS BECOME MOOT AND ACADEMIC INSOFAR AS FIRST LEVERAGE AND SERVICES GROUP, INC. IS CONCERNED.”

In its second and third assignments of error, First Leverage contended that since PNB Republic did not appeal the judgment of the RTC, the same had become final and executory insofar as PNB Republic was concerned. As such, First Leverage avers that it had already acquired vested rights enforceable by a writ of execution as against PNB Republic. First Leverage concluded that the appeal of Solid Builders with the CA, which in essence sought to enforce its contract with PNB Republic, was already rendered moot and academic, and that it had become functus officio insofar as First Leverage was concerned, considering that the said contract was already awarded in favor of the latter.

The Supreme Court found the petition without merit. It held that, anent the second and third assignment of errors, it was true that PNB Republic did not appeal the judgment of the RTC. The Court held that although it had always recognized the general rule that in appellate proceedings, the reversal of the judgment on appeal was binding only on the parties in the appealed case and did not affect or inure to the benefit of those who did not join or were not made parties to the appeal, an exception to the rule existed, however, where a judgment could be reversed as to the party appealing without affecting the rights of his co-debtor, or where the rights and liabilities of the parties were so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal as to all. This exception, which was based on a communality of interest of said parties, is recognized in this jurisdiction. 

In First Leverage, the rights and liabilities of Solid Builders and PNB Republic were, no doubt, intertwined and inseparable, according to the Supreme Court. The enforcement of the rights of Solid Builders under the contract it entered into with PNB Republic was completely dependent upon the latter's performance of its obligations thereunder. Assuming that Solid Builders' offer to purchase the disputed properties was subsequently proven to be superior to that of First Leverage, PNB Republic should be required to proceed with its contract to sell the subject properties to Solid Builders. Thus, to allow the execution of the RTC judgment, by requiring PNB Republic to sell the questioned lots to First Leverage, without first determining with finality whether the latter's offer to buy the disputed properties was indeed superior to Solid Builders' offer would not only result in the deprivation of Solid Builders' right to due process but, more importantly, an unwarranted defeat or forfeiture of its substantive rights.



Posted by Atty. Manuel J. Laserna Jr. at 4:27 PM
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Friday, September 7, 2018

Ombudsman; In a memorandum dated August 29, 2018, Martires ordered his prosecutors to no longer file motions to suspend.

See - https://www.rappler.com/nation/208006-duterte-appoints-samuel-martires-new-ombudsman


"x x x.

Ombudsman Martires won't seek suspension of officials charged with graft

Samuel Martires orders his prosecutors to withdraw from the Sandiganbayan all motions that have sought to suspend officials who are charged criminally

By Lian Buan
@lianbuan
Published 8:53 PM, September 06, 2018
Updated 6:31 AM, September 07, 2018


MANILA, Philippines – Public officials charged of corruption have one less worry. Ombudsman Samuel Martires will no longer seek their suspension when they are charged criminally before the anti-graft court Sandiganbayan.

In a memorandum dated August 29, 2018, Martires ordered his prosecutors to no longer file motions to suspend.
“All motions for suspension pendente lite which have been filed before the issuance of this Memorandum but which remain unresolved by the trial courts are ordered withdrawn,” Martires said.

Details of Martires’ memorandum were quoted in a manifestation that the Ombudsman prosecutors submitted to the Sandiganbayan Second Division for the graft case of Senator Gringo Honasan II.

The prosecutors, then under Ombudsman Conchita Carpio Morales, requested the court to preventively suspend Honasan, charged over a P30-million pork barrel scam. Now, they are withdrawing that motion against Honasan, as they will with all other criminal cases.

The Office of the Ombudsman, however, makes it clear to the Sandiganbayan that “it is not turning its back away from the mandatory character of preventive suspension.”

The rationale behind preventive suspensions is so that the official cannot unduly influence possible witnesses or destroy or compromise evidence.

The Office of the Ombudsman said it recognizes that the Sandiganbayan can decide motu proprio, or on its own, to suspend the officials.

“[We] fully concede with and respect the full authority and sound wisdom of this Honorable Court to order the preventive suspension motu proprio of herein accused pending litigation,” the prosecutors said.

Martires’ new policy in criminal cases has basis in a Supreme Court decision, which says “solely the court in which the criminal case has been filed shall wield the power of suspension.”

Sandiganbayan Presiding Justice Amparo Cabotaje Tang agrees, saying there’s no need for a motion from the Ombudsman to suspend officials: "All that the law requires is that there is a valid Information and that a pre-suspension hearing is conducted to afford the accused and opportunity to be heard thereon.”

Suspension in admin cases

Does this mean that public officials facing corruption cases can no longer be suspended? Not really.

A corruption case can either be criminal or administrative in nature. Martires’ memorandum only covers the criminal cases.

For administrative cases – such as dishonesty, grave misconduct, or neglect of duty – the Ombudsman can suspend officials, even fire them, on his or her own.

The memorandum quoted in the motion does not mention if Martires’ new policy affects the administrative charges. But it is stated in the Ombudsman Law or Republic Act 6770 that the Ombudsman is legally empowered to suspend and dismiss officials facing the said administrative charges.

Martires also earlier announced that he would order the termination of all fact-finding investigations that are not completed in a year.

Martires has also restricted media access to decisions of the Office of the Ombudsman. – Rappler.com

x x x."
Posted by Atty. Manuel J. Laserna Jr. at 11:09 PM
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Thursday, September 6, 2018

DPWH under Duterte: Corruption, politics, slippage mar many projects

See - https://news.abs-cbn.com/focus/09/04/18/dpwh-under-duterte-corruption-politics-slippage-mar-many-projects


"x x x.

DPWH under Duterte: Corruption, politics, slippage mar many projects
By Malou Mangahas and Karol Ilagan, 
Philippine Center for Investigative Journalism

Posted at Sep 04 2018 01:42 AM | 
Updated as of Sep 04 2018 07:41 AM

IN THE TWO years since he assumed office and promised to usher in a “golden age of infrastructure", President Rodrigo R. Duterte has put money where his mouth is. Boasting that, by his term's end in 2022, multiple roads, bridges, ports, and airports will rise across the nation, his Build, Build, Build program now has a potential bill upwards of PhP8.4 trillion that will come from public funds, private monies, and loans.

By a Cabinet secretary's account, Duterte is simply unstoppable when he wants to get something done. First christened "Dutertenomics," the mammoth Build, Build, Build program currently has tens of thousands of civil-works contracts bidded out, apart from multiple multibillion-peso big infrastructure projects partly funded by official development assistance (ODA) or loans from China, Japan, and other bilateral partners.

This dwarfs the infrastructure frenzy under one of Duterte’s predecessors, Gloria Macapagal Arroyo, who is said to have had an “edifice complex” so bad that roads and bridges were being built at a speed that would make it possible for her to inaugurate one or two in her visits to the provinces week on week.

As a result, the Department of Public Works and Highways (DPWH) during the Arroyo administration bidded out 27,535 civil-works contracts in eight years, from 2000 to 2008. But this has turned out to be just 60 percent of the Duterte administration's total projects bidded out, which come to 44,000 in all, according to DPWH Secretary Mark A. Villar, in a mere 24 months, from July 2016 to July 2018.

If Villar's number is correct, that total redounds to an average of 1,833 DPWH projects awarded monthly, or 60 projects daily. Apart from roads and bridges, DPWH is also building schools, flood-control systems, and water systems, while other agencies are constructing irrigation, power systems, as well as ports, airports, and other civil-works projects.

Like Arroyo – now the Speaker of the House -- Duterte has proclaimed his massive infrastructure program as an anti-poverty antidote. He wants, he has said, to build infrastructure and bolster industries so he can create jobs and curb poverty by nearly half, or from 21.6 percent in 2015 to between 13 and 15 percent in 2022.

In addition, like Arroyo and all presidents before him, Duterte has promised that his projects and administration would be rid of corruption. "I assure you," he had said at the launch of his socio-economic agenda in 2016, "this will be a clean government."

Regressive results

But contractors, current and former officials, procurement experts, and affected citizens interviewed by PCIJ have separately offered guarded to cynical prognoses about Build, Build, Build. Indeed, most say that the program could be falling or crashing down due to its own massive weight, and is now yielding not progressive but regressive results after two years of Duterte.

Not surprisingly, they also say that corruption remains a formidable feature in many of the projects that are supposedly aimed to improve the lives of people.

"Year 1 marks the launch, the testing period, for Build, Build, Build,” said an executive of a big contractor. “Year 2 is when it unravels and encounters problems. By Year 3, the chokepoint, it would be difficult to save it." Next year, 2019, the program and the Duterte administration will turn three.

But DPWH Secretary Villar offers a rosy picture still. "I wouldn’t say that it’s hitting any snags,” he told PCIJ in an interview. “It’s not without any challenges. It’s not without the challenge, but my statement about the Build, Build, Build is we’re on track and it is improving and the support is there."

DPWH, the government’s engineering and construction arm and an implementor of major projects under Build, Build, Build, receives the biggest infrastructure allotment as well as the second biggest budget annually among the departments. This year, DPWH was allotted PhP637.9 billion, reflecting a 40-percent increase from its PhP454.7 billion budget in 2017.

But while Villar seems unperturbed by “snags” in Build, Build, Build, observers and insiders alike say that these are significant enough to hinder the program’s progress.

For one, they affirm in separate interviews, some local, legislative, and public works officials colluding with favored but unqualified contractors are "syndicated" circles of corruption that continue to stalk many of the projects.

Greed and need

In fact, as early as February 2017, contractors had noted in meetings with public officials that "implementing agencies, especially in remote regions, continue to become victims of local government officials and in some isolated cases even national government officials who influence the award of projects to favored sub-par contractors."
"There is a need," the contractors had thus said, "to craft measures to insulate and isolate infrastructure projects from political intervention which has become syndicated."
A senior official with expertise and insight into the problems meanwhile observed, "Greed is driving project contracting, the projects are falling below accomplishment targets, most projects are bloated."

Apparently, the bigness of the projected bill of Build, Build, Build -- about 5.4 percent in 2017 to 7.4 percent in 2022 of gross domestic product, or PhP8.4 trillion in all in five years (compared to the PhP2.4 trillion or so total infrastructure budget during the Aquino administration’s six years) -- has also magnified multiple-fold the opportunities as well as the costs of corruption. And with the focus often on the money to be made, many projects have wound up suffering from poor planning and monitoring, and are awarded with unsettled right-of-way or in some areas, security issues, among others.

Project identification, evaluation and approval, as well as the competitive public bidding, notice of award, and local government permits and clearances, have also run into delays until mid-year, or by the onset the rainy season, thus impeding actual construction work, or even the deployment of workers, equipment, and aggregates.

In addition, there is the fact that there are just too many projects to do, prompting some big and small contractors to enter into subcontracting arrangements but submitted as joint venture agreements. Several small contractors, in violation to procurement rules, have even resorted to borrowing the licenses of some big contractors, in exchange for flat two- to five-percent fees out of the total project cost.

Bad and corrupt projects, according to various sources, result when agencies fail to identify the right and needed projects; the procurement process is not competitive or is marred by collusive bidding and influence-pedding by politicians and contractors; project cost is not commensurate to desired project quality; and implementation of projects is not monitored and achieved within deadline.

Back in harness

To be sure, corruption and inefficiency have long marred public-works contracts. In 2009, for instance, PCIJ reported that Arroyo’s rush to roll out projects resulted in obscure contractors bagging billion-peso worth of contracts even though there wasn’t enough proof that they were capable of doing quality work.

Eight years later, with Duterte at the helm, contractors with a history of blacklisting, registration revocation, graft cases, poor performance, and political ties have again emerged as the top firms moving earth to open roads to traffic.

In 2010, DPWH under then Secretary Rogelio Singson launched reforms to improve the integrity of its procurement process, starting with standard unit cost analysis per project before going to public bidding across the board. Bidding for national projects became more transparent, competitive, and less vulnerable to corruption. Yet contracts awarded by local engineering districts, and those funded by the Priority Development Assistance Fund or “pork barrel” funds at the time were not spared by some politicians who, according to reports, still collected payoffs.

This kind of corruption in road projects has lingered under the Duterte government. In a 2017 dialogue conducted by the Construction Industry Authority of the Philippines (CIAP), “politics and political intervention” still emerged as a key concern among contractors. The situation, according to one former government official, even “discourages good and honest contractors from doing projects in certain regions where contractors are designated as project takers.”

CIAP initiated the dialogue to determine the capacity and readiness of the construction industry to take on projects under the Build, Build, Build program. Representatives of the DPWH, National Economic and Development Authority (NEDA), Department of Transportation (DOTr), Department of Education (DepEd), Government Procurement Policy Board (GPPB), and contractors' associations attended the dialogue.

Tong-pats, taripa

Two senior government officials and at least four contractors separately interviewed by PCIJ on condition of anonymity said that for the most part, the system has only evolved and adapted to policies of DPWH officials through the years. One contractor said, however, that in many areas where the same politicians have ruled for long periods, backroom deals between and among elected officials, firms, and DPWH engineers have not changed, making them “the biggest mafia” in the country.

Under Arroyo, when profiting from infrastructure projects were more or less an open secret, kickbacks came in the form of “tong-pats” (patong) or an amount added to the actual cost of the project to accommodate the commission rate of local politicians. According to contractors, the rate at the time was about 12 percent of the contract price.

This figure apparently had to go down during the term of President Benigno S. Aquino III, when then DPWH Secretary Singson initiated across-the-board cuts on project costs to minimize public funds being pocketed by officials. But then “tong-pats” merely morphed into “taripa (tariff),” or portions of project costs already earmarked for kickbacks.

One contractor recalled how he had to negotiate with a congressman and a local DPWH official to lower their rates to eight percent and two percent, respectively, and leave the contractor with a profit of at least another eight percent. In all, the three-part sharing scheme meant that 18 percent of project cost had already been set aside for taripa and profit, even before groundbreaking rites for the project.

Another contractor meanwhile confirmed that politicians also get “assistance” from contracting firms for their election or reelection campaigns.

'Joint-ventures' on the rise

Behind closed doors and without paper trail, these deals unfold outside the purview of regulatory bodies, and beyond the formal scope of the procurement rules. Of late, legal loopholes have also allowed contractors and taripa-seekers to still corner contracts and commissions, resulting in fly-by-night firms winning some of the biggest projects.

In the last two years, an increasing number of “joint-venture” agreements have been sealed, providing a supposedly legal way-out for smaller contractors to win huge contracts -- which they would not have qualified to get on their own -- by “using” the license of bigger, much more established contractors.

On paper, both small and big contractors are expected to implement the project. In reality, on ground, only the small contractor gets the project and implements it. According to those privy to such arrangements, a “royalty fee” worth two to five percent of the total contract amount is paid to the big contractor for “lending” its license.

Such set-ups are most obvious in “joint ventures” where the “authorized managing office” is the representative of the small firm and not of the big firm, said one contractor. The source added that because the small contractor is not really capable of completing the JV project, the project gets delayed.

There are also cases when a public official is himself the contractor. Two contractors separately told PCIJ of a governor who supposedly gets all infrastructure projects in his bailiwick by making deals with Triple-A contractors, which, through their licenses and qualifications, bid and win projects for the governor’s firm. But the projects actually go to the governor’s construction firm while the Triple-A contractors each get a “fee” in the deal.

There was no governor involved in a project PCIJ stumbled upon in a field visit to Davao City last June. But it did find a company owned by Davao businessman and presidential assistant for sports Glenn Escandor working on a project that had been won by another firm.

Projects lost, found

Among other things, PCIJ had gone on field to take a look at a project that was supposed to be at 0.22 percent accomplishment rate as of April 30, 2018: the PhP24.8-million rehabilitation/reconstruction of the Mabuhay-Pañalum-Paquibato Road with slips slope and landslide” in Davao City. The project, which on paper was to be implemented by Las Piñas-based Three W Builders Inc., was supposed to have started on May 4, 2017 and completed by Oct. 21, 2017. Three W is a Triple-A contractor.

PCIJ failed to locate the project but instead found another Three W project: the PhP44.8-million “construction of slope protection along Lasang River, Paquibato Proper Section, Davao City.” The actual work for the project, however, was being done by Genesis 88 Construction Inc., an A-licensed construction firm owned by Escandor. The project engineer, the payroll request form, and the backhoe at the project site were all from Genesis 88. No Three W Builders employee was on site. (Insert related photos)

As of this writing, Genesis 88 and Three W Builders have yet to respond to letters sent by PCIJ despite multiple follow-up calls made to each of their staff personnel.

Procurement rules allow subcontracting under certain circumstances only. A contractor like Three W may subcontract portions of the works, provided that it will undertake, using its own resources, not less than 50 percent of the contract works in terms of cost. At the same time, subcontractor is supposed to subcontract not more than half of the work. Moreover, it should be a PCAB-licensed contractor with Net Financing Contracting Capacity (NFCC), which is computed based on its net worth as submitted to the Bureau of Internal Revenue and the Securities and Exchange Commission.

Prior approval of the head of the procuring entity -- in this case the Davao City 1st District Engineering Office -- is required as well before subcontracting is allowed. But District Engineer Wilfredo Aguilar and Assistant District Engineer Milagros de los Reyes of Davao City said that no application for subcontracting has been processed by their office. They said, though, that it is possible that Genesis 88 may have rented its equipment to Three W or Three W hired Genesis 88’s employees for the project. 

For sure, illegal or irregular deals could have only helped lead to the dismal findings regarding DPWH that the Commission on Audit (COA) recorded in its 2017 Annual Audit Report of the agency.

For instance, government auditors found, of the total PhP610.9 billion obligated by DPWH, only PhP222.66 billion or 34 percent was disbursed because of delayed and non-implementation of infrastructure projects. According to the report, DPWH was not able to implement:
2,334 projects worth PhP62.59 billion, which were not completed within the contract period;
135 suspended projects costing PhP6.07 billion;
15 terminated projects amounting to PhP2.1 billion; and
815 unimplemented projects worth PhP2.58 billion.

On the same day that news broke about the COA report last July, President Duterte in a speech in Davao City warned that he would hold DPWH Secretary Villar accountable for delayed and failed projects.
Said the President: "I would like to call the attention of the secretaries, especially Secretary Villar, that if there is any slippage of any work of any kind by the national government. If you delay or if I see tomorrow, beginning tomorrow, and you are all invited to see me in Malacañang."
"Kaya sinasabi ko sa inyo, I’m exacting now something of like this. ‘Yang project mo pagka pumalpak (If your project fails), I will hold the Secretary responsible," Duterte added.
Four days later, on July 11, Villar clarified details raised in the COA report and announced that DPWH had started investigation proceedings "for suspension of 43 contractors" behind the 400 projects with slippage or facing implementation delays.

Interviewed by PCIJ last Aug. 19, Villar acknowledged that there is a problem but qualified the findings in DPWH's context. He said that the obligation amount used by COA includes multi-year projects, which was reportedly why disbursement was pegged at 34 percent. By DPWH calculations, he said, the agency's disbursement rate stands at 60 percent for “all funds, all legal bases.”

DPWH's data

Data provided by DPWH show that of its 2017 total PhP672.97-billion amount obligated, PhP406.48 billion had been disbursed. (According to a former DPWH insider, however, the amount the agency records as having disbursed usually “includes carryover projects from previous years, since disbursement by agency is cumulative.”)

Villar also said that the aggregate number of infrastructure projects is 44,000, making the percentage of the delayed projects -- 2,334 by COA's report -- only five percent of the total. DPWH spokesperson Anna Mae Lamentillo meanwhile said that the portion of suspended projects over the total number is at three percent, making the statistics actually “good.” But DPWH did not confirm if the aggregate number refers to 2017 projects only, which was COA's reference.

COA also found that DPWH did not impose liquidated damages on the contractors or rescind or terminate any of the 120 delayed projects that have already incurred negative slippage of 15 percent. These delayed projects are worth PhP6.67 billion.

The 2016 Revised Implementing Rules and Regulations of Republic Act No. 9184 provides that a procuring entity such as DPWH “may rescind the contract, forfeit the contractor's performance security and takeover the prosecution of the project or award the same to a qualified contractor through negotiated contract” in case that the delay in the completion of the work exceeds 10 percent of the specified contract time plus any time extension granted.

Lamentillo, though, said that rescinding a contract is optional, highlighting the law’s use of the modal verb “may.” She said that DPWH does not automatically terminate a project because sometimes it becomes more expensive for the government to re-award it. Bidding alone, she said, usually takes about three months. If the contractor is able to comply with its catch-up plan, said Lamentillo, DPWH allows the firm to continue and complete the project.

Multiple reasons

COA allowed that the delay, termination, and non-implementation of the DPWH projects were caused by various factors, ranging from the agency’s responsibilities such as right-of-way acquisition, inadequate planning, monitoring, and supervision of projects, and lack of cooperation with local government units to address contractors’ concerns such as having insufficient workforce and equipment. Late issuance of permits, peace and order issues, and unfavorable weather conditions were likewise among the reasons cited for project delays, said COA.

But it noted that consultants and the DPWH management failed to consider these during the preliminary engineering study on the viability of the projects. Moreover, COA said, these same issues have been noted in the prior years’ audit reports.

“Had management considered the right-of-way and project site issues during the preliminary engineering study on the technical viability of the project, the same could have been resolved prior to project implementation or the proposed projects could have been excluded in the final list of projects for bidding,” COA said.

“These problems should have been disclosed during the planning stage and properly discussed during the BAC (Bids and Awards Committee) meetings when deliberations for projects implementation were conducted with Management officials to arrive at decisions advantageous to the government,” it added. “Likewise, coordination with concerned government agencies and private companies should have been conducted early and regularly to address the permit issues and follow-up the release of permits.”

More hires, reforms

An ex-DPWH official said of COA’s comments on the right-of-way issue, though, “If DPWH does not take some risk and will only budget a project once the full right of way is completed, then many infra projects of government will never get started. Landowners delay actual turnover of land if they know that there is still no budget for the project.

In any case, PCIJ asked Villar how DPWH was going to address the problems pointed out by COA since more projects will have to be undertaken with the Build, Build, Build program. He replied in part by saying that DPWH is about to hire almost 4,000 additional project engineers and has organized for job fairs to help contractors find personnel.

“I’m not saying that it’s not difficult,” he also said. “It’s difficult and all of us are working 24/7 to solve these issues.”

The DPWH chief also cited technology as one solution to address issues of corruption and irregularities in civil-works contracts. He said that DPWH is promoting the use of applications and analytics to minimize discretion, and in turn, to minimize corruption.

For example, Villar said, having a satellite based geo-tagging system makes it difficult to cheat on the reporting of project status. He also said that being able to see constantly updated records from a central database has allowed DPWH for the first time to use analytics.

Analytics fan

Villar -- the youngest to serve in the DPWH and by some contractors' accounts the least prepared for the job -- described himself as a firm believer of analytics. Any major company that handles huge volumes of work needs analytics, he said.

“That’s what we’re doing,” said Villar. “The more use of analytics, the more use of quantitative measurements. It minimizes discretion, therefore you minimize corruption.”

He disagreed with the view that technology cannot or may not capture cases of collusive bidding, lending of licenses, and illegal subcontracting that all happen behind closed doors. Technology could still capture these irregularities to a certain extent, he argued.

“These construction companies that supposedly ‘subcon’ (subcontract) -- if they are held to be more accountable for their projects, if we’re better at monitoring -- we can more or less see who the low-performing contractors are,” said Villar. “More or less, these are the ones who have low capability.”

DPWH uses an application called InfraTrack, which is supposed to improve transparency and accountability in the monitoring of civil-works projects. It uses geotagging technology to help the agency monitor the progress of projects virtually.

Politicians' picks?

According to Villar, DPWH has used the system to identify the 43 contractors currently facing suspension over delayed projects. One of the 43, R.C. Tagala Construction, which is now operating under the name Syndtite Construction Corporation, was recently blacklisted for one year beginning Aug. 16, 2018.

Asked to comment on allegations that politicians have been known to “place” their favored regional director or district engineer in their bailiwicks, Villar replied in part by saying that he also uses metrics in assessing the performance of DPWH district engineers.

According to Villar, people make recommendations to his office, but he always refers to his grading system, which is based on performance composed of disbursements, bid variance, and design and quality audits scores. District engineers are then ranked from one to 99. Those ranked at the bottom might be floated.

“I don’t approve these recommendations, I make a choice,” the secretary said. “People can recommend but ultimately, I make a choice. For operational decisions, if he’s (district engineer) underperforming, he goes.”

'A careful politician'

Since Villar became public works secretary, at least 10 percent of district engineers have been floated. All of the district engineers in the Cordillera Administrative Region, for instance, have been replaced because, said Villar, they were performing poorly.

But contractors interviewed by PCIJ noted that Villar has been acting like a careful politician from a political family with vast business interests in real estate, retail, and water services. Commented one contractor: "He is careful not to offend political allies and friends."

The secretary is the younger of two sons of real estate mogul and former Senate president Manuel Villar and re-electionist Sen. Cynthia Villar. The Villars lead the Nacionalista Party, with Foreign Affairs Secretary Alan Peter Cayetano among its members. Mark Villar is married to Emmeline Aglipay, until recently the DIWA party-list representative who was named Justice undersecretary last August. Mark Villar himself gave up his seat in Congress shortly after being appointed to head the DPWH in July 2016.

PCIJ asked Villar why his Statement of Assets, Liabilities, and Net Worth shows that he has zero investments in Vista Land & Lifescapes, Inc., a multibillion-peso integrated property developer owned by his family, as well as whether he got the DPWH post as a return favor for the election
campaign donation said to have been given by the Villars to Duterte.

Villar replied with a general comment. "I don’t involve myself,” he said. “If there’s anything that I feel would be any conflict, I wouldn’t do it myself. I don’t have any investments in anything."

Debt of gratitude

The President himself, however, has been open about his fondness for the Villars.

In March 2017, Mark Villar's father, former Senate President Manuel B. Villar, was part of Duterte's business delegation to Thailand. Before a crowd of Filipinos, President Duterte heaped praise on Villar as "isa sa pinakamabait, pinakamabait na tao. Hindi marunong magmura 'yan. Naging Speaker namin 'yan. Ni minsan, 'di ko nakikita – naging congressman ako panahon Speaker siya -- wala akong narinig na mag-init 'yung ulo (one of the nicest people I have met. He doesn't curse, and not once -- when I was a congressman, he was the Speaker -- have I seen him blow his top).”

For the elder Villar, Duterte said, "Para sa akin, puwede ako magpakamatay sa kanya kasi mabait eh (I could die for him because he is nice.)”
More than just fondness, however, Duterte has acknowledged that he owes the Villars gratitude.
At a public event in October 2017, he said that Mark Villar's mother, Sen. Cynthia A. Villar, helped him during the election campaign in 2016. News reports reported him as saying, “During the presidential debates, in between far and wide the debates, there was this intermission. Nakita mo wala akong advertisement. Walang pera eh. Buti na lang tumulong si Ma’am Cynthia. Tinulungan niya ako. I have to admit it, na tinulungan ako. (I had no advertisements, no money. It was good that Ma'am Cynthia helped me. She helped me. I have to admit it, she helped me.)”

In the campaign spending report tthat he submitted to the Commission on Elections, Duterte did not name the Villars to be among his donors in the 2016 elections. PCIJ in December 2016 had reported that of the PhP371.36 million in campaign donations that Duterte raised, 89.28 percent or PhP334.8 million came from 13 multimillion-peso donors. One of them, Marcelino Mendoza, gave PhP14.5 million. A resident of the Villars' bailiwick of Las Piñas City, Mendoza is listed as an incorporator, board member, and stockholder of the Villar family's Vista Land conglomerate. 

-- With additional reporting by Carolyn O. Arguillas and John Reiner Antiquerra, PCIJ, September 2018
x x x."
Posted by Atty. Manuel J. Laserna Jr. at 6:40 PM
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Atty. Manuel J. Laserna Jr.
Las Pinas City, Metro Manila, Philippines
MANUEL J. LASERNA JR.- Admitted to the Bar in 1985 (3rd placer, 1984 bar exam, 90.95%). Law professor of FEU, Manila, 1985 to 2006 (ret.). Educ.: AB Journ., UP, Diliman, QC, 1975; Bachelor of Laws (LL.B.), cum laude, FEU, 1984; Master of Laws (LL.M.), UST, (cand.), Manila [as FEU fellow, 1998-2000]. Honors: 3rd placer, 1984 Bar Exams (90.95%; only 22% passed); Meralco pre-law scholar; Cocofed law scholar; Cocofed management scholar (AIM, Makati); FEU fellow (LLM, UST). Bar leader in southern Metro Manila area since 1995. Founded Las Pinas City Bar Assn (2001). Served as director/sec./vice pres., IBP PPLM Ch., 1995-2007. Email - lcmlaw@gmail.com. Social Media: "facebook.com/attymannylasernajr" and "twitter.com/lcmlaw_ph".
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