JURIST - UN adopts historic nuclear disarmament treaty. - "Draft treaty on the prohibition of nuclear weapons."

See - JURIST - UN adopts historic nuclear disarmament treaty

United Nations conference to negotiate a legally 

binding instrument to prohibit nuclear weapons, 

leading towards their total elimination

New York, 27-31 March and 15 June-7 July 2017

Agenda item 9

Negotiations, pursuant to paragraph 8 of General Assembly 

resolution 71/258 of 23 December 2016, on a legally binding 

instrument to prohibit nuclear weapons, leading towards their 

total elimination

Draft treaty on the prohibition of nuclear weapons

Submitted by the President of the conference

The States Parties to this Treaty,

Determined to contribute to the realization of the purposes and principles of the Charter of the United Nations, 

Deeply concerned about the catastrophic humanitarian consequences that would result from any use of nuclear weapons, and recognizing the consequent need to completely eliminate such weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances,

Mindful of the risks posed by the continued existence of nuclear weapons, including from any nuclear-weapon detonation by accident, miscalculation or design, and emphasizing that these risks concern the security of all humanity, and that all States share the responsibility to prevent any use of nuclear weapons,

Cognizant that the catastrophic consequences of nuclear weapons cannot be adequately addressed, transcend national borders, pose grave implications for human survival, the environment, socioeconomic development, the global economy, food security and the health of current and future generations, and have a disproportionate impact on women and girls, including as a result of ionizing radiation,

Acknowledging the ethical imperatives for nuclear disarmament and the urgency of achieving and maintaining a nuclear-weapon-free world, which is a global public good of the highest order, serving both national and collective security interests,

Mindful of the unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear weapons, 

Recognizing the disproportionate impact of nuclear-weapon activities on indigenous peoples,

Reaffirming the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law,

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment, 

Considering that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, 

Reaffirming that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience,

Recalling that, in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources,

Recalling also the first resolution of the General Assembly of the United Nations, adopted on 24 January 1946, and subsequent resolutions which call for the elimination of nuclear weapons,

Concerned by the slow pace of nuclear disarmament, the continued reliance on nuclear weapons in military and security concepts, doctrines and policies, and the waste of economic and human resources on programmes for the production, maintenance and modernization of nuclear weapons,

Recognizing that a legally binding prohibition of nuclear weapons constitutes an important contribution towards the achievement and maintenance of a world free of nuclear weapons, including the irreversible, verifiable and transparent elimination of nuclear weapons, and determined to act towards that end,

Determined to act with a view to achieving effective progress towards general and complete disarmament under strict and effective international control,

Reaffirming that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control,

Reaffirming also that the full and effective implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security, 

Recognizing the vital importance of the Comprehensive Nuclear-Test-Ban Treaty and its verification regime as a core element of the nuclear disarmament and non-proliferation regime, 

Reaffirming the conviction that the establishment of the internationally recognized nuclear-weapon-free zones on the basis of arrangements freely arrived at among the States of the region concerned enhances global and regional peace and security, strengthens the nuclear non-proliferation regime and contributes towards realizing the objective of nuclear disarmament,

Emphasizing that nothing in this Treaty shall be interpreted as affecting the inalienable right of its States Parties to develop research, production and use of nuclear energy for peaceful purposes without discrimination,

Recognizing that the equal, full and effective participation of both women and men is an essential factor for the promotion and attainment of sustainable peace and security, and committed to supporting and strengthening the effective participation of women in nuclear disarmament,

Recognizing also the importance of peace and disarmament education in all its aspects and of raising awareness of the risks and consequences of nuclear weapons for current and future generations, and committed to the dissemination of the principles and norms of this Treaty,

Stressing the role of public conscience in the furthering of the principles of humanity as evidenced by the call for the total elimination of nuclear weapons, and recognizing the efforts to that end undertaken by the United Nations, the International Red Cross and Red Crescent Movement, other international and regional organizations, non-governmental organizations, religious leaders, parliamentarians, academics and the hibakusha, 

Have agreed as follows:

Article 1 

Prohibitions

1. Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;

(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

Article 2 

Declarations

1. Each State Party shall submit to the Secretary-General of the United Nations, not later than 30 days after this Treaty enters into force for that State Party, a declaration in which it shall:

(a) Declare whether it owned, possessed or controlled nuclear weapons or nuclear explosive devices and eliminated its nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities, prior to the entry into force of this Treaty for that State Party;

(b) Notwithstanding Article 1 (a), declare whether it owns, possesses or controls any nuclear weapons or other nuclear explosive devices;

(c) Notwithstanding Article 1 (g), declare whether there are any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State.

2. The Secretary-General of the United Nations shall transmit all such declarations received to the States Parties.

Article 3 

Safeguards

1. Each State Party to which Article 4, paragraph 1 or 2, does not apply shall, at a minimum, maintain its International Atomic Energy Agency safeguards obligations in force at the time of entry into force of this Treaty, without prejudice to any additional relevant instruments that it may adopt in the future.

2. Each State Party to which Article 4, paragraph 1 or 2, does not apply that has not yet done so shall conclude with the International Atomic Energy Agency and bring into force a comprehensive safeguards agreement (INFCIRC/153 (Corrected)). Negotiation of such agreement shall commence within 180 days from the entry into force of this Treaty for that State Party. The agreement shall enter into force no later than 18 months from the entry into force of this Treaty for that State Party. Each State Party shall thereafter maintain such obligations, without prejudice to any additional relevant instruments that it may adopt in the future.

Article 4 

Towards the total elimination of nuclear weapons

1. Each State Party that after 7 July 2017 owned, possessed or controlled nuclear weapons or other nuclear explosive devices and eliminated its nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities, prior to the entry into force of this Treaty for it, shall cooperate with the competent international authority designated pursuant to paragraph 6 of this Article for the purpose of verifying the irreversible elimination of its nuclear-weapon programme. The competent international authority shall report to the States Parties. Such a State Party shall conclude a safeguards agreement with the International Atomic Energy Agency sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in that State Party as a whole. Negotiation of such agreement shall commence within 180 days from the entry into force of this Treaty for that State Party. The agreement shall enter into force no later than 18 months from the entry into force of this Treaty for that State Party. That State Party shall thereafter, at a minimum, maintain these safeguards obligations, without prejudice to any additional relevant instruments that it may adopt in the future.

2. Notwithstanding Article 1 (a), each State Party that owns, possesses or controls nuclear weapons or other nuclear explosive devices shall immediately remove them from operational status, and destroy them as soon as possible but not later than a deadline to be determined by the first meeting of States Parties, in accordance with a legally binding, time-bound plan for the verified and irreversible elimination of that State Party’s nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities. The State Party, no later than 60 days after the entry into force of this Treaty for that State Party, shall submit this plan to the States Parties or to a competent international authority designated by the States Parties. The plan shall then be negotiated with the competent international authority, which shall submit it to the subsequent meeting of States Parties or review conference, whichever comes first, for approval in accordance with its rules of procedure.

3. A State Party to which paragraph 2 above applies shall conclude a safeguards agreement with the International Atomic Energy Agency sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in the State as a whole. Negotiation of such agreement shall commence no later than the date upon which implementation of the plan referred to in paragraph 2 is completed. The agreement shall enter into force no later than 18 months after the date of initiation of negotiations. That State Party shall thereafter, at a minimum, maintain these safeguards obligations, without prejudice to any additional relevant instruments that it may adopt in the future. Following the entry into force of the agreement referred to in this paragraph, the State Party shall submit to the Secretary-General of the United Nations a final declaration that it has fulfilled its obligations under this Article.

4. Notwithstanding Article 1 (b) and (g), each State Party that has any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State shall ensure the prompt removal of such weapons, as soon as possible but not later than a deadline to be determined by the first meeting of States Parties. Upon the removal of such weapons or other explosive devices, that State Party shall submit to the Secretary-General of the United Nations a declaration that it has fulfilled its obligations under this Article.

5. Each State Party to which this Article applies shall submit a report to each meeting of States Parties and each review conference on the progress made towards the implementation of its obligations under this Article, until such time as they are fulfilled. 

6. The States Parties shall designate a competent international authority or authorities to negotiate and verify the irreversible elimination of nuclear-weapons programmes, including the elimination or irreversible conversion of all nuclear-weapons-related facilities in accordance with paragraphs 1, 2 and 3 of this Article. In the event that such a designation has not been made prior to the entry into force of this Treaty for a State Party to which paragraph 1 or 2 of this Article applies, the Secretary-General of the United Nations shall convene an extraordinary meeting of States Parties to take any decisions that may be required. 

Article 5 

National implementation

1. Each State Party shall adopt the necessary measures to implement its obligations under this Treaty.

2. Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Treaty undertaken by persons or on territory under its jurisdiction or control.

Article 6 

Victim assistance and environmental remediation

1. Each State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.

2. Each State Party, with respect to areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall take necessary and appropriate measures towards the environmental remediation of areas so contaminated.

3. The obligations under paragraphs 1 and 2 above shall be without prejudice to the duties and obligations of any other States under international law or bilateral agreements.

Article 7 

International cooperation and assistance 

1. Each State Party shall cooperate with other States Parties to facilitate the implementation of this Treaty.

2. In fulfilling its obligations under this Treaty, each State Party shall have the right to seek and receive assistance, where feasible, from other States Parties.

3. Each State Party in a position to do so shall provide technical, material and financial assistance to States Parties affected by nuclear-weapons use or testing, to further the implementation of this Treaty.

4. Each State Party in a position to do so shall provide assistance for the victims of the use or testing of nuclear weapons or other nuclear explosive devices.

5. Assistance under this Article may be provided, inter alia, through the United Nations system, international, regional or national organizations or institutions, non‑governmental organizations or institutions, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies, or national Red Cross and Red Crescent Societies, or on a bilateral basis.

6. Without prejudice to any other duty or obligation that it may have under international law, a State Party that has used or tested nuclear weapons or any other nuclear explosive devices shall have a responsibility to provide adequate assistance to affected States Parties, for the purpose of victim assistance and environmental remediation. 

Article 8 

Meeting of States Parties

1. The States Parties shall meet regularly in order to consider and, where necessary, take decisions in respect of any matter with regard to the application or implementation of this Treaty, in accordance with its relevant provisions, and on further measures for nuclear disarmament, including: 

(a) The implementation and status of this Treaty;

(b) Measures for the verified, time-bound and irreversible elimination of nuclear-weapon programmes, including additional protocols to this Treaty;

(c) Any other matters pursuant to and consistent with the provisions of this Treaty.

2. The first meeting of States Parties shall be convened by the Secretary-General of the United Nations within one year of the entry into force of this Treaty. Further meetings of States Parties shall be convened by the Secretary-General of the United Nations on a biennial basis, unless otherwise agreed by the States Parties. The meeting of States Parties shall adopt its rules of procedure at its first session. Pending their adoption, the rules of procedure of the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, shall apply.

3. Extraordinary meetings of States Parties shall be convened, as may be deemed necessary, by the Secretary-General of the United Nations, at the written request of any State Party provided that this request is supported by at least one third of the States Parties. 

4. After a period of five years following the entry into force of this Treaty, the Secretary-General of the United Nations shall convene a conference to review the operation of the Treaty and the progress in achieving the purposes of the Treaty. The Secretary-General of the United Nations shall convene further review conferences at intervals of six years with the same objective, unless otherwise agreed by the States Parties.

5. States not party to this Treaty, as well as the relevant entities of the United Nations system, other relevant international organizations or institutions, regional organizations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organizations, shall be invited to attend the meetings of States Parties and the review conferences as observers.

Article 9 

Costs

1. The costs of the meetings of States Parties, the review conferences and the extraordinary meetings of States Parties shall be borne by the States Parties and States not party to this Treaty participating therein as observers, in accordance with the United Nations scale of assessment adjusted appropriately. 

2. The costs incurred by the Secretary-General of the United Nations in the circulation of declarations under Article 2, reports under Article 4 and proposed amendments under Article 10 of this Treaty shall be borne by the States Parties in accordance with the United Nations scale of assessment adjusted appropriately.

3. The cost related to the implementation of verification measures required under Article 4 as well as the costs related to the destruction of nuclear weapons or other nuclear explosive devices, and the elimination of nuclear-weapon programmes, including the elimination or conversion of all nuclear-weapons-related facilities, should be borne by the States Parties to which they apply.

Article 10 

Amendments

1. At any time after the entry into force of this Treaty, any State Party may propose amendments to the Treaty. The text of a proposed amendment shall be communicated to the Secretary-General of the United Nations, who shall circulate it to all States Parties and shall seek their views on whether to consider the proposal. If a majority of the States Parties notify the Secretary-General of the United Nations no later than 90 days after its circulation that they support further consideration of the proposal, the proposal shall be considered at the next meeting of States Parties or review conference, whichever comes first. 

2. A meeting of States Parties or a review conference may agree upon amendments which shall be adopted by a positive vote of a majority of two thirds of the States Parties. The Depositary shall communicate any adopted amendment to all States Parties. 

3. The amendment shall enter into force for each State Party that deposits its instrument of ratification or acceptance of the amendment 90 days following the deposit of such instruments of ratification or acceptance by a majority of the States Parties at the time of adoption. Thereafter, it shall enter into force for any other State Party 90 days following the deposit of its instrument of ratification or acceptance of the amendment.

Article 11 

Settlement of disputes

1. When a dispute arises between two or more States Parties relating to the interpretation or application of this Treaty, the parties concerned shall consult together with a view to the settlement of the dispute by negotiation or by other peaceful means of the parties’ choice in accordance with Article 33 of the Charter of the United Nations.

2. The meeting of States Parties may contribute to the settlement of the dispute, including by offering its good offices, calling upon the States Parties concerned to start the settlement procedure of their choice and recommending a time limit for any agreed procedure, in accordance with the relevant provisions of this Treaty and the Charter of the United Nations.

Article 12 

Universality

Each State Party shall encourage States not party to this Treaty to sign, ratify, accept, approve or accede to the Treaty, with the goal of universal adherence of all States to the Treaty.

Article 13 

Signature

This Treaty shall be open for signature to all States at United Nations Headquarters in New York as from 20 September 2017.

Article 14 

Ratification, acceptance, approval or accession 

This Treaty shall be subject to ratification, acceptance or approval by signatory States. The Treaty shall be open for accession.

Article 15 

Entry into force

1. This Treaty shall enter into force 90 days after the fiftieth instrument of ratification, acceptance, approval or accession has been deposited.

2. For any State that deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the fiftieth instrument of ratification, acceptance, approval or accession, this Treaty shall enter into force 90 days after the date on which that State has deposited its instrument of ratification, acceptance, approval or accession.

Article 16 

Reservations

The Articles of this Treaty shall not be subject to reservations.

Article 17 

Duration and withdrawal

1. This Treaty shall be of unlimited duration.

2. Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to the Depositary. Such notice shall include a statement of the extraordinary events that it regards as having jeopardized its supreme interests.

3. Such withdrawal shall only take effect 12 months after the date of the receipt of the notification of withdrawal by the Depositary. If, however, on the expiry of that 12-month period, the withdrawing State Party is a party to an armed conflict, the State Party shall continue to be bound by the obligations of this Treaty and of any additional protocols until it is no longer party to an armed conflict.

Article 18

Relationship with other agreements

The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty.

Article 19 

Depositary

The Secretary-General of the United Nations is hereby designated as the Depositary of this Treaty.

Article 20 

Authentic texts

The Arabic, Chinese, English, French, Russian and Spanish texts of this Treaty shall be equally authentic.

DONE at New York, this seventh day of July, two thousand and seventeen.

Introdution to Genocide Studies - "The lesson 'Introduction to Genocide Studies' was part of the pioneering university course in Genocide Studies at Charles University in Prague, Czech Republic. "

History of Genocide - "In this illustrated lecture, Professor Ben Kiernan identifies powerful connections and patterns that, for nearly every case of genocide, gave early warning of the catastrophe to come: racism or religious prejudice, territorial expansionism, and obsessions with antiquity and agrarianism."

Preventing Genocide - "Sixty-eight years after the Holocaust, governments continue to struggle with preventing genocide and mass atrocities. In 2005, United Nations member states agreed that nations share a responsibility to protect their citizens from genocide, crimes against humanity, war crimes and ethnic cleansing. Join Mike Abramowitz, Director of the Center for the Prevention of Genocide at the US Holocaust Memorial Museum, and Richard S. Williamson, former presidential special envoy to Sudan, for a discussion about how the responsibility to protect has been applied in recent crises such as Libya and Syria."

Responsibility to Protect 10 Years On - "The idea of a "responsibility to protect" was first introduced in November 2001 by the Canadian-sponsored International Commission on Intervention and State Sovereignty. Endorsed in 2005 by UN member states, the notion that the UN Security Council should authorise action to prevent mass atrocities in states that are unable or unwilling to do so, continues to generate controversy. To its supporters, it as an essential tool of last resort, and underpins a moral appeal that we cannot be passive onlookers in the face of genocide and crimes against humanity. To its detractors, it risks being misused by great powers to legitimate otherwise dubious or even unlawful interventions. In the wake of the UN Security Council authorised use of force by NATO in Libya, are we to judge R2P a success? Is the doctrine being applied in ways that those who originated and pushed the concept expected? What of the cases where atrocities continue and no action is possible? Looking ahead, will the use of R2P in Libya strengthen -- or weaken -- the resolve of the international community to act?"

Evolution of the Responsibility to Protect - "This lecture discusses the rapid but controversial rise of the principle of the responsibility to protect (R2P) in contemporary world politics. Special Adviser to the UN Secretary General on the Responsibility To Protect Jennifer Welsh demonstrates that while recent years have seen significant moves to institutionalize R2P in both states and international organizations, there has also been continuing contestation over R2P's scope and meaning. Following the lecture, She is joined in discussion by David Welch, CIGI Chair of Global Security at BSIA."

Responsibility to Protect? - "Responsibility to Protect (R2P) is a principle created when leaders at the UN joined together in 2005 to declare that, when national leaders were harming or failing to protect their citizens, the international community had the right and responsibility to step in and do so. But how and when such interventions should take place has always been up for debate. A decade later, and five years into a bloody war in Syria that has spurred the worst refugee crisis since WWII and shows no signs of ending, is R2P guiding political action at all? Why or why not?"

Cardinal Tagle reflects on why some Catholics accept drug-related killings | News5 - InterAksyon

See - Cardinal Tagle reflects on why some Catholics accept drug-related killings | News5 - InterAksyon

"x x x.

MANILA – Some 3,200 drug personalities have died in anti-drug operations from July 1, 2016 to June 20, 2017, according to the latest statistics from the Presidential Communications Office.

The Philippine National Police faces 12,833 homicide cases from July 1, 2016 to June 16, 2017, and has found that 2,098 of them were drug-related and 2,535 were not. At least 8,200 are still under investigation, meaning the motives are still undetermined.

With such enormous numbers, why does it seem like some Catholics accept the killings, despite the Bible explicitly saying, “Thou shalt not kill”?

Manila Archbishop Luis Antonio Cardinal Tagle has some theories. In a press conference on the upcoming Philippine Conference on New Evangelization (PCNE), Tagle on Tuesday acknowledged that some people believed the end justifies the means.

But based on his interviews with people, he said, “Most believe that life is sacred. The Filipino believes that life is sacred. The Filipino believes that killing is wrong.”

Those he talked to said they knew what the teachings were. But, said Tagle, “It seems like it comes from what we can call helplessness.”

“It’s like, ‘How can we solve this? When you go here, it seems like there’s no solution. When you go there, it’s seems like they’re not doing anything. For years our families, our neighborhood, have been plagued by that problem’,” the Manila Archbishop quoted his them as saying.

“It’s not out of moral conviction. It’s more out of despair,” he added.

Perhaps they had been pushed too far, and in their misery, found a brutal solution that they had no other option but to try.

“And I feel sorry for them because it sparks conflict within. A part of them says life is sacred; you should really not destroy it. But another part of them has been through too much suffering. Especially when you talk to parents whose children got hooked on drugs. They’re furious with the people who sold it to their children. They seem so helpless. The institution, the system has not been working for them, so they think, ‘Maybe this is it. This is the solution we’ve been looking for’,” Tagle explained.

He looked forward to discussions at the conference on July 28 to 30 at the University of Santo Tomas, which would offer insights into new approaches to save and promote life. Such concrete programs would complement the call to stop the killings. It was important to be proactive, he added.

Participants may join any of the 10 tracks offered at PCNE, such as the Ecology track, the Youth track, and the New Media track. But surely, said Tagle, the Social Justice track would be able to impart wisdom on the aforementioned issue. One of the sessions, for example, would be “It’s A Beautiful Life: Human Dignity, Reloaded.”

“So I believe that there is still in them respect for life. Perhaps what PCNE can help with is strengthening the faith and keeping the hope alive. Because when we lose hope, as we say, we hold on to just about anything,” Tagle said.

This year’s theme for PCNE is “Of One Heart and Soul.” According to Rev. Fr. Jason Laguerta, director of the Archdiocese of Manila’s Office of the Promotion of New Evangelization, they aimed to look back on the early Christians, who lived as a united community. Catholics of today may have many differences, but they come from the same family, and the same God.

The message they wanted to convey was one of peace in the midst of conflict, of love in the midst of anger and hate, Laguerta said.

The president of Vatican’s Pontifical Council for the Promotion of New Evangelization, Archbishop Salvatore Rino Fisichella, will be attending to deliver the keynote message on “Being Christian in the age of indifference.”

Meanwhile, Archbishop Bernardito Auza, the Permanent Observer of the Holy See to the United Nations, will talk about “The role of the Church among a community of nations.”

To register for PCNE 4, call 405-0093, 0908-1193-533, or 0995-1913-473. E-mail pcne2017@gmail.com, or visit www.pcne.com.ph.

x x x."

How Judges Decide Cases

Duterte's knowledge of Constitutional Law is deficient.

Duterte claims that it is up to the military and the police to determine whether he should extend martial law beyond the sixtieth day (July 22) of its proclamation.

He should review Sec 18, Art. VII of the 1987 Constitution.

Pursuant to the constitutional rule of "supremacy of the civilian authority over the military", whether the period must be extended or terminated does not depend upon the sole volition and determination of the military or the Executive -- or the Judiciary.

The Constitution has expressly vested that power on the Legislative alone.

The manner Duterte speaks and thinks on the matter shows either his gross ignorance of Constitutional Law or his hallucination that he, backed up by the military, is a "constitutional monarch" who singularly decides the fate and future of our nation.

Duterte says won’t lift martial law before SONA

President Duterte is not lifting martial law in Mindanao before his State of the Nation Address on July 24. The 60-day period of imposition of martial rule i...

YOUTUBE.COM

War on drugs in Mexico and its Philippine version

News reports in Mexico mislead us to believe that ordinary citizens have "voluntarily" armed themselves (allegedly at their own expense) to kill drug lords and drug pushers.

I seriously doubt the alleged "voluntariness."

This massive act of "arming" ordinary citizens partakes of the nature of state-sanctioned formation of citizens' militias under training and funding from official security forces.

They are no different from the Philippine para-military version of the CHDF or CAFGU or "voluntary force multipliers" under the control of the military and the police forces.

This tactic perpetuates the CULTURE OF DEATH AND IMPUNITY.

The bullet takes over the criminal justice system.

The nation deteriorates to the dark ages of brutality and lawlessness.

Filipinos must be vigilant against this destructive and murderous potentiality.

Mexican Vigilantes: Citizens become armed to take on narco rule

In southern Mexico, several mining communities have suffered for years under the terror of organised crime. But not anymore. Many residents have taken up arm...

YOUTUBE.COM

Martial law; Lagman et al vs. Exec. Sec. Medialdea; and companion cases; full texts

The Supreme Court opinions (majority opinion, dissenting opinions and concurring opinions) in re: Duterte's Mindanao-wide martial law proclamation (to defeat the Maute-ISIS terrorists in Marawi City) have been posted on the Supreme Court website. 

Go to http://sc.judiciary.gov.ph/. 

The records consist of fifteen files using more than eleven megabytes. The majority opinion alone consists of eighty two pages. 

You may save the files in your database for future reference. The records are too long to evaluate and assess at this time vis-a-vis applicable constitutional provisions and doctrines.

See - http://sc.judiciary.gov.ph/

Documents:

Majority Opinion -

Rep. Edcel C. Lagman, et al. Vs. Executive Secretary Salvador C. Medialdea, et al./Eufemia C. Cullamat, et al. Vs. President Rodrigo Duterter, et al./Norkaya S. Mohamad, et al. Vs. Executive Secretary Salvador C. Medialdea, et al. - G.R. No. 231658/G.R. No. 231771/G.R. No. 231774. July 4, 2017

Dissenting Opinion - C.J. Sereno, J. Carpio, J. Leonen, J. Caguioa

Separate Concurring Opinion - J. Velasco, Jr., J. Leonardo-De Castro, J. Peralta, J. Mendoza, J. Reyes, J. Tijam

Separate Opinion - J. Bersamin, J. Perlas-Bernabe, J. Jardeleza, J. Martires

Summary (administrative) dismissal case; sample Position Paper.

POSITION PAPER FOR THE RESPONDENT

(As Per Section 6, Rule 17, Part III, 

Xxx Memorandum Circular No. xxx, 

“Revised Rules of Procedure…”)

The RESPONDENT, assisted by counsel, respectfully states:

I. THE CHARGE.

1. The respondent has been administratively charged with GRAVE MISCONDUCT as per Section 2, Paragraph “C”, Sub-Paragraph “3”, Rule 21, Part III of the xxx Memorandum Circular No. 2016-002 by the Prosecution Division of the xxx of the xxx. 

2. The charge is based on the Joint Affidavit of Arrest[1], dated 31 March 2017, and the Joint Supplemental Joint Affidavit, dated 4 April 2017, issued by the four complainants-arresting officers, namely, xxx, xxx, xxx, and xxx, as well as the forensic reports issued by the xxx Laboratory in support of the allegations of the complainants. 

3. Basically, the administrative charge against the respondent is based on the allegations of the complainants (a) that the respondent was caught by them, together with xxx, on xxx at about xxx in a hut at xxx Homes, xxx City, while using shabu; and (b) that the forensic examination reports submitted by the xxx Laboratory proved that the respondent was positive for the use of shabu. 

II. DEFENSES OF THE RESPONDENT.

A. FACTS OF THE CASE FROM THE VIEWPOINT OF THE RESPONDENT.

4. On the date/ and at the place referred to in the joint affidavits of the complainants (i.e., xxx at about xxx), the respondent was on a surveillance to gather evidence in connection with the information that he had received that a junior officer of the xxx Laboratory, in the person of xxx, was supplying shabu in xxx City. 

(The respondent is a resident of xxx City. He was also the head of the xxx office of the Laboratory for xxx Manila, with office location in xxx City, at the time of incident).

According to the information gathered by the respondent, xxx, a resident of xxx City, was a supplier of shabu in the southern cities of xxx, xxx, xxx and xxx. 

5. The surveillance of the respondent had the express clearance and approval, via text messages, of his superiors xxx (xxx of the xxx Laboratory) and xxx. 

6. It will be noted that in the URGENT EX PARTE MANIFESTATION AND MOTION, dated 3 May 2017, that the respondent, by counsel, had filed with the office of the xxx Hearing Officer, the following facts were alleged:

“x x x.

1. The mobile phone of the respondent was seized on March 30, 2017 in xxx City at the time of his arrest by the arresting officers of the xxx City Police Station. 

The mobile phone was turned over by the arresting officers to the investigating officer/s.

It is now under the control of the xxx of the xxx City xxx Station in the person of xxx as the xxx of the said Station.

2. The mobile phone of the respondent is described as follows: xxx.

3. The mobile phone of the respondent contains relevant and material calls and texts messages exchanged between the respondent and the xxx Officer of the xxx Laboratory of the xxx, xxx, and other officers of the xxx Laboratory. 

The call and text messages would show that at the time of the arrest of the respondent he was conducting a surveillance of an officer of the XXX Crime Laboratory in the person of xxx, an alleged drug supplier operating in xxx City, xxx City, and xxx City. 

The surveillance was approved via calls and text messages by the superiors of the respondent (xxx) and other concerned officers (xxx of the xxx Laboratory). 

The calls and text messages will prove the reason for the physical presence of the respondent at the area where he was arrested in xxx City on xxx for alleged violations of RA 9165.

4. There is a need for an order from the Hearing Officer of the instant case and any duly authorized official of the Legal Division (LAD) of the xxx addressed to the said xxx to produce the seized mobile phone of the respondent in the next scheduled hearing (continuation of the pretrial hearing) of the instant case so that the respondent could read and transcribe the text messages contained therein and thereafter to mark and present the said transcription as an exhibit in his defense in the instant case.

5. The respondent understands that only the Regional Trial Court of xxx City, where the related criminal cases of the respondent are pending, can order the said xxx to surrender and return the mobile phone of the respondent to the respondent, the same being the latter’s private property and the same being a part of his criminal defense in the Court. 

That is why this motion is limited only to the production, inspection and examination of the mobile phone of the respondent under the control of the said xxx so that the transcription of the text messages therein could be marked by the respondent as additional defense exhibits in the next scheduled hearing (continuation of pretrial hearing) of the instant case in the interest of truth and justice. 

6. It is part of the constitutional rights of the respondent to due process of law, equal protection of the law, and security of tenure to be afforded a full opportunity to cause the production, discovery, and examination and of any and all relevant and material evidence in the possession of other person, parties, or entities so that he may improve his defense. 

X x x.”

7. In his foregoing motion, the respondent prayed for the following relief:

“WHEREFORE, premises considered, it is respectfully prayed that an order be issued by the Hearing Officer of the instant case or any duly authorized officer of the Legal Affairs Division (LAD) of the xxx with the power to issue such an order directing the xxx of the xxx City Police Station in the person of xxx to produce the seized mobile phone of the respondent during the next scheduled hearing (continuation of the pretrial hearing) for the legal purpose stated above in the interest of truth and justice.”

7. The respondent, by counsel, reiterated the foregoing motion before the xxx hearing officer during the preliminary conference of the administrative case held on xxx at xxx. He was assured that a subpoena would be issued to ferret out the truth, in the interest of justice. 

8. While conducting his aforementioned surveillance, the respondent was approached by an unidentified male pimp and a woman (who later turned out to be a certain xxx) who offered the “short-time services” of the woman, so to speak. The respondent agreed to the offer. (It was a human weakness and mistake that the respondent has since then regretted). 

8.1. The three of them went to the private tryst (a hut) of the woman where she usually conducted her “private business” located in xxx, xxx, xxx City. 

8.2. The unidentified male pimp and the woman told the respondent to wait outside the hut for some time while the two were cleaning, arranging, fixing, and making the hut comfortable for the “short-time private transaction”.

8.3. While the respondent was waiting outside, two policemen arrived to raid the hut. They were later identified as the complainants-arresting officers xxx and xxx.

8.4. Parenthetically, the two officers, namely, xxx and xxx, who claimed, under oath, to have been part of the operation, were not actually present during the operation. 

They had committed the crime of Perjury, for reasons known only to them, by alleging under oath that they were part of the raiding team. 

(The respondent reserves the right to file the proper criminal case against them in due time).

8.5. The two arresting officers who actually raided the hut, namely, xxx and xxx, arrested the woman xxx. 

They allowed the unidentified male pimp to escape. 

They allowed the owner or occupant of the hut, whoever he/she may be, to escape. 

They have not investigated their identities and penal liabilities at any time up to the present. 

8.6. When the two officers xxx and xxx exited the hut, they likewise arrested the respondent, who was standing outside. 

8.7. The respondent, at first, thought it was a case of “hulidap” conspiracy among the two officers and the woman. 

8.8. He attempted to silently move away from the site. It was a mistake that he now regrets. 

8.9. He should have formally identified himself as a police officer and should have told the officers the truth about his “contract of short-time services” with the woman xxx to explain his presence outside the hut. 

8.10. At any rate, when the respondent was arrested, he told the two officers that he was a ranking police officer, that he was not a shabu user, and that he was at the site pursuant to a “private contract of short-time services” with the woman Xxx, assisted by her unidentified male pimp (who was allowed by the officers to escape for reasons known only to themselves). 

The respondent was brought to the xxx City xxx Station to clarify things with the superiors of the arresting officers. He was detained therein. 

9. The respondent hereby questions the authenticity of the forensic chemistry submitted by xxx of the xxx Laboratory showing that the respondent had been allegedly tested to be positive for the use of shabu. 

He likewise questions the neutrality and impartiality of the said examiner.

9.1. Xxx was a complainant against the respondent in an incident that transpired on xxx at the xxx Laboratory. 

9.2. Xxx had complained against the respondent for alleged sexual harassment. 

9.3. Xxx was not a neutral and impartial examiner. Her forensic examination report, which allegedly found the respondent positive for the use of shabu, was tainted with the motive of revenge and bad faith.

10. During the inquest and the regular preliminary investigation before the Office of the City Prosecutor of xxx City, the respondent, assisted by his former and current lawyers, insisted that he be granted the right to undergo an independent private drug examination. The Investigating Prosecutor allowed the same. 

10.1. When the respondent, by counsel, prayed that he be allowed to be temporarily released from his detention cell to proceed to the xxx Diagnostics in xxx City for purpose of the approved independent drug examination, the Investigating Prosecutor denied the request because the Prosecutor desired that the technical staff of the private laboratory be the ones to go to the detention cell for purposes of the examination. 

10.2. The laboratory staff and supervisor of xxx Diagnostics rejected the idea because it was against the rules and regulations of the Department of Health to bring out of their premises their biometrics machine to be used for such an examination unless there was a specific DOH permission for the purpose. 

The family of the respondent forthwith informed the Investigating Prosecutor about the matter. 

The daughter of the respondent, in the person of xxx, had executed an Affidavit, dated xxx, for the purpose.

10.3. Hence, while in detention, the respondent was not able to avail himself of an independent drug examination. 

10.4. However, the day following his release from detention on bail on xxxx, the respondent immediately subjected himself to an independent drug examination at the xxx Diagnostics xxx in xxx City. The result thereof was NEGATIVE. 

10.5. Every week thereafter, he freely subjected himself to continuing drug examinations. The results were all NEGATIVE.

10.6. On xxx, the respondent voluntarily underwent a drug test at the Hi Precision Diagnostics in Xxx City. The result was NEGATIVE. 

The drug test report (a new exhibit that was acquired only after the preliminary conference held on xxx) is being attached hereto as Exhibit 45.

10.7. On xxx, the respondent voluntarily underwent a drug test at the xxx Diagnostics in xxx City. The result was likewise NEGATIVE. 

The drug test report (a new exhibit that was acquired only after the preliminary conference held on xxx) is being attached hereto as Exhibit 46.

11. Please note that for the period 1999 to 2016, all the past drug tests and annual physical and medical examinations of the respondent that were conducted by the xxx Laboratory and/or Health Service, the xxx Laboratory and/or Health Service, and the xxx District xxx Laboratory and/or Health Service had shown that the respondent was NEGATIVE of drug use and was in good physical and medical condition.

12. The latest Police Clearance, dated xxx, of the respondent shows that he has NO DEROGATORY RECORD. 

13. The latest National Bureau of Investigation (NBI) Clearance, dated xxx, issued to the respondent shows that he has NO CRIMINAL RECORD. 

A copy of the latest NBI Clearance of the respondent (a new exhibit that was acquired only after the preliminary conference held on xxx) is being attached hereto as Exhibit 47.

14. For the record, the Office of the City Prosecutor of xxx City has dismissed the criminal cases for alleged violations of Sections 13 and 14 of RA No. 9165 against the respondent. 

14.1. He was indicted only for alleged violation of Section 12 (paraphernalia [i.e., a lighter]) and Section 15 (use) of RA No. 9165. 

14.2. He vigorously contests the criminal charges before the Regional Trial Court, Branch xxx, of xxx City.

15. The respondent has been a very strict disciplinarian as a leader in his unit. 

This is proven by Exhibits 37 to 42 and 44, with submarkings, which are records of various incidents in the xxx Laboratory where the respondent was the complainant. 

As earlier stated, one personnel involved therein was forensic examiner xxx who submitted the “positive” drug test report against the respondent. 

The report was done by the examiner xxx out of hate, revenge, ill motive, and bad faith. 

B. EXHIBITS FOR THE RESPONDENT.

16. The exhibits of the respondent were marked as Exhibit 1 to Exhibit 44 during the preliminary conference held on xxx. 

16.1. The respondent is submitting herewith as additional exhibits the three additional documents referred to above as Exhibits 45 to 47, supra. 

16.2. They were acquired by the respondent only after the preliminary conference held on xxx. 

16.3. They are newly discovered evidence under the Rules of Evidence. 

16.4. In the interest of justice, the said additional Exhibits 45 to 47, copies of which are attached to this Position Paper, must be admitted in evidence. 

16.5. The Prosecution is hereby furnished herewith copies of the additional Exhibits 45 to 47 which are attached to this Position Paper. 

16.6. During the preliminary conference held on xxx, the Prosecution was duly furnished complete copies of the marked Exhibits 1 to 44. 

There is therefore no need to attach them (Exhibits 1 to 44) to this Position Paper, for convenience and economy.

III. ISSUE.

17. The sole issue in this administrative case is whether or not the respondent is guilty of GRAVE MISCONDUCT based on the mandatory quantum of substantial evidence as required by law and existing jurisprudence in the adjudication of administrative cases. 

IV. DISCUSSION.

18. As stated in the Rejoinder, dated xxx, which the respondent had subscribed and sworn to before (and filed with) the Investigating Assistant City Prosecutor xxx, during the continuation of the preliminary investigation on the said date (xxx), there are crucial facts, issues and discrepancies, which tend to prove the innocence of the respondent, that should be noted. They are discussed hereinbelow. 

19. Please compare the Joint Reply, dated xxxx, of the complainants-arresting officers with their earlier Affidavit of the Arresting Officers, dated xxx. 

The divergence and contradictions between the two documents are patent.

20. The Affidavit of the Arresting Officers, dated xxx, shows the following contradictions that tend to prove his innocence:

(a) Only the woman Xxx was seen by the arresting officers as “humihithit” and holding (“may hawak ng”) a lighter and an aluminum foil. 

(b) The respondent was not seen by the arresting officers as “humihithit” and “may hawak ng” aluminum foil and/or plastic sachet.

(c) What the arresting officers claimed to have recovered from the herein respondent was simply a pink “lighter”. It is not a crime to possess a “lighter.”

(d) The arresting officers alleged that they recovered from the floor (“lapag”) three pieces of aluminum foils and three pieces of plastic sachet. 

(e) When the arresting officers received a “tip” from an unknown “concerned citizen”, they rushed (“agad na pumunta”) to the alleged pot session shanty. 

(f) They did not name the tipster in their earlier affidavit. But in their Reply, dated xxx, they named the alleged tipster as “Aka xxx”.

21. In the earlier Affidavit of the Arresting Officers, dated xxx, the complainants alleged that upon receiving a tip from an unknown tipster, they forthwith proceeded to the shanty (“agad na pumunta sa nasabing lugar”). 

But in their Reply, dated xxx, they alleged that they first interviewed the tipster, they reported the tip to their “duty officer” (“agad naming pinaalam sa aming duty desk officer”), they blottered the tip (“pinatala sa blotter”), and the arresting officers were thereafter “dispatched” by their duty officer (“idinispatch”).

22. In Par. 3 of the Reply, dated xxx, of the complainants they alleged that the tipster “xxxy” joined them (“kasunod” si “xxx”) in going to the shanty, that it was “xxx” who pointed the shanty to them (“itinuro”; “dito po, Sir”), that it was “xxxy” who suddenly pushed open the door (“agad niyang itinulak and pinto”). 

All of these facts were missing in the earlier Affidavit of the Arresting Officers, dated xxxx. 

The earlier Affidavit of the Arresting Officers alleged that they alone performed the entire raid (police operation) and the arrest of the two respondents (without any operational participation from “xxx” and Kgd. xxx).

23. The earlier Affidavit of the Arresting Officers, dated xxx, claimed that many neighbors pointed the shanty to them (“may naglapitan sa aming mga tao sa lugar”; “itinuro sa amin ang direksyon ng bahay”). 

This allegation was not re-affirmed in their Reply, dated xxxx. Neither did they secure the sworn statements of some, if not all, of the said neighbors.

24. Note, too, that the complainants took no effort to investigate and arrest the unidentified male pimp of Xxx and the owner or lessee of the hut.

25. The Affidavit, dated xxx, of Kgd. Xxx did not mention any participation of “xxx” in the raid/police operation. 

“xxx” did not have a role in it. 

It was the arresting officers who pushed open the door, raided and entered the shanty, and arrested the two respondents, according to Kgd. Xxx. 

Moreover, xxx did not allege anything incriminating against the herein respondent. 

He incriminated only the woman Xxx. 

26. The Chain of Custody Form, which is part of the Record, only shows the five transfers of the evidence within the xxx City xxx organization (i.e., the “Station Anti-Illegal Drug Special Action Task Group”). 

The chain of custody of the evidence did not show the full and complete movements, safety and integrity of the evidence from the initial field source (shanty and precinct level) up to the “actual laboratory examination stage” at the xxx Laboratory and the “return of the reports” to the xxx City xxx Station. 

The chain of custody is defective and dubious. 

It renders dubious the examinations of the specimens. 

27. The Receipt of Property Seized, dated xxx, which is part of the Record, shows that only a non-incriminating “lighter” was recovered from the herein respondent. 

28. Please note that the xxx Laboratory did not examine the two lighters recovered from the two respondents. 

Possession per se by the herein respondent of a harmless lighter per se is not a crime. 

(The respondent denies that he was in possession of a lighter at the time of the incident. He is not a smoker).

Please note that the Record shows that the herein respondent was not shown to be in “possession” of shabu according to the arresting police officers themselves. 

Sec. 13 therefore does not apply to him.

29. On xxxx the Office of the City Prosecutor of xxx City indicted the respondent only for two violations of R.A. 9165, i.e., violations of Sec. 12 and Sec. 15. 

He was absolved for violation of Secs. 13 and 14 of the law. 

30. The Chemistry Reports No. xxx and No. xxx, signed by xxx of the xxx Laboratory, which reported a positive finding for methamphetamine and negative for THC-metabolites, are dubious because she was not a neutral examiner. 

She was an interested party who had an axe to grind against the respondent. 

It must be noted, at this point, that the respondent has been the subject of unfair complaints by xxx, xxx, and their colleagues who were his subordinates at the crime laboratory because of his strict and disciplinarian management style as a leader and manager. 

He has duly answered all of their complaints. 

31. One example of a case that shows the dedication, strictness, and disciplinarian leadership of the respondent as a commissioned officer was the fact that in 2003 he personally arrested xxx, who was then assigned under him, when he caught the latter using shabu inside the toilet of the crime laboratory. Xxx resisted arrest. 

The respondent subdued him. Thereafter the respondent caused the filing of the proper criminal cases against xxx and cooperated as a witness in the prosecution thereof. 

32. The respondent is not a shabu user. 

He has never been a shabu user in his whole life. 

His regular annual drug tests as a dedicated commissioned officer of the Philippine National Police (XXX) for many years (1999 to 2016) have all been NEGATIVE. 

During the preliminary conference held on xxx, the respondent moved for issuance of subpoena to cause the production of the complete copies of the results of all his drug tests and physical examinations from 1999 to 2016.

The respondent prays that the XXX hearing officer act thereon with dispatch in the interest of justice.

33. Although it is not relevant and material to the instant administrative case, in the interest of justice and to protect the reputation of the respondent, it must be noted that the respondent had learned that there was an alleged neuro-psychiatric examination report, dated xxx, signed by xxx, MD (psychiatrist) and xxx, MD (Chief, NP Section). 

It unjustly diagnosed him as allegedly suffering from substance-induced psychotic disorder. 

The respondent vehemently questions its validity, authenticity, and neutrality. 

The scientific methodologies adopted by the said examining officers, if any, were not discussed in the report. 

There was no showing that scientific methodologies were applied during the alleged neuro-psychiatric examination. 

For the record, if necessary, the respondent hereby moves for leave to be allowed to undergo an independent psychiatric/psychological examination by a licensed psychiatrist/psychologist of his own choice and at his own expense to disprove the validity of the abovementioned report of xxx and xxx, MD. 

34. The Office of the City Prosecutor has indicted the respondent for alleged violation of Sec. 12 (“paraphernalia” provision) of RA 9165 based on the allegation that the arresting police officers found in respondent’s possession a lighter. 

The respondent vehemently submits that to possess a lighter per se is not a crime under Philippine laws. 

(The respondent does not smoke. He had no reason to possess a lighter. He does not drink alcohol, too). 

35. The Office of the City Prosecutor also indicted him for violation of Section 15 of the law (“use of illegal drug” provision) based on the bxxxed report of forensic chemist xxx, who has an axe to grind against him, as explained above. 

36. The respondent is entitled to the (a) right to be “presumed innocent”, (b) the right to “due process of law”, (c) the right to “equal protection of the law”, and (d) the right to “security of tenure” under the 1987 Constitution. 

37. The burden of proof to dismiss him from the service, based on “substantial evidence” as the quantum of proof required by law and jurisprudence, must be strictly complied with by the complainants. 

V. LAWS AND JURISPRUDENCE.

38. In the case of HUBERT NUÑEZ vs. SLTEAS PHOENIX SOLUTIONS, INC., through its representative, CESAR SYLIANTENG, G.R. No. 180542, April 12, 2010, it was held that “as mere allegation is not evidence, the rule is settled that plaintiff has the burden of proving the material allegations of the complaint which are denied by the defendant, and the defendant has the burden of proving the material allegations in his case where he sets up a new matter.”

39. In the case of ANTONIO M. LORENZANA vs. JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2, Batangas City, A.M. No. RTJ-09-2200, April 2, 2014 (formerly OCA I.P.I. No. 08-2834-RTJ), it was held that “in administrative cases, the complainant bears the onus of proving the averments of his complaint by substantial evidence”. 

In the aforecited case the complainant “merely pointed to circumstances based on mere conjectures and suppositions”. 

These, by themselves, however, are “not sufficient to prove the accusations”. 

“Mere allegation is not evidence and is not equivalent to proof”.

40. In the case of People vs. Saturno, 355 SCRA 578, it was held that “the equipoise rule provides that where evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused.”

41. In the case of Tin vs. People, GR 126480, Aug. 10, 2001, it was held that “where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses”. 

The equipoise rule finds application “if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not suffice to produce a conviction.”

42. By analogy, in the case of PEOPLE OF THE PHILIPPINES VS. FABIAN URZAIS Y LANURXXX, ALEX BAUTISTA, AND RICKY BAUTISTA, G.R. No. 207662, April 13, 2016, it was held, inter alia, that: 

“It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion. What is required of it is to justify the conviction of the accused with moral certainty. Upon the prosecution’s failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the thought that it has imprisoned an innocent man for the rest of his life. The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt.”

43. The said case further held that “the equipoise rule states that where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfil the test of moral certainty and is not sufficient to support a conviction.” 

As earlier stated, the equipoise rule provides that “where the evidence in a criminal case is evenly balanced, the constitutional, presumption of innocence tilts the scales in favor of the accused”. 

44. The good faith of the herein respondent must be appreciated by the xxx. 

It is a valid defense in administrative cases.

45. In the case of Heirs of Severa Gregorio vs. Court of Appeals, et al, G. R. No. 117609, December 19, 1998, it was held that: 

(a) “(I)t is axiomatic that good faith is always presumed unless convincing evidence to the contrary is adduced”; 

(b) “It is incumbent upon the party alleging bad faith to sufficiently prove such allegation”; 

(c) “Absent enough proof thereof, the presumption of good faith prevails”; 

(d) “Without a clear and persuasive substantiation of bad faith, the presumption of good faith in favor of respondents stands”. 

46. In the analogous case of FRANCISCO M. LECAROZ, et. al. vs. SANDIGANBAYAN, et. al., G.R. No. 130872, March 25, 1999, it was held that “the rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith”. 

47. In the case of People vs. De Guzman, GR 106025, Feb. 9, 1994, it was held that: (a) Innocence, and not wrong-doing, is presumed; and (b) Good faith is presumed. 

48. As argued in the body of this Position Paper, the herein respondent submits that the arresting officers failed to observe strictly the rule on the chain of custody of evidence under RA 9165 and its Implementing Rules and Regulations. 

49. In the case of PEOPLE vs. FERMIN, et al, G.R. No. 179344, August 3, 2011, it was held that: 

“Strict compliance with the prescribed procedures is required because of the unique characteristic of illegal drugs, rendering them indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Hence, we have the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court.” 

50. In the case of H. HARRY L. ROQUE, JR., et al vs. Vs. COMMISSION ON ELECTIONS, et al, G.R. No. 188456, FEBRUARY 10, 2010, it was held that “speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment.” 

51. The bad faith of the forensic examiner APOSTOL was prejudicial to the rights of the herein respondent. 

In the case of Ford Philippines, Inc. v. CA, G.R. No. 99039, February 3, 1997, it was held that “bad faith means bad judgment or negligence, a dishonest purpose or some moral obliquity and conscious doing of wrong, a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud”.

52. As to the inconsistencies in the affidavits of the complainants-arresting officers, which are discussed above, sufficed it to say that as held in the case of YU BUN GUAN vs. ELVIRA ONG, G.R. No. 144735. October 18, 2001, the unnatural and contradictory testimony of witnesses makes them unreliable. 

53. In conclusion, the herein respondent submits that the prosecution has failed to prove with substantial evidence his administrative guilt.

VI. PRAYER.

WHEREFORE, premises considered, it is respectfully prayed that the instant administrative charge for GRAVE MISCONDUCT be DISMISSED for lack of merit.

Further, the respondent respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, xxx .

Xxx xxxx xxx

Respondent/Affiant

Motion to transcribe text messages stored in mobile phone

URGENT EX PARTE MOTION

TO TRANSCRIBE THE MOBILE PHONE 

OF THE RESPONDENT NOW IN THE POSSESSION 

OF THE HEARING OFFICER OF THE xxx OF THE xxx 

The RESPONDENT, assisted by counsel, respectfully states:

1. On June 6, 2017 at about 10:30 AM the respondent personally followed up with the Presiding Hearing Officer (Atty. xxx) of the xxx his pending motion to recover his mobile phone from the xxx City Police Station and/or the Anti Cybercrime Group and/or whoever was in possession hereof so that he could TRANSCRIBE the relevant texts messages stored therein to corroborate and confirm his defenses in relation to the instant administrative case. 

2. The Hearing Officer allowed the respondent to transcribe the contents of his mobile phone provided the activity would be collectively done in the presence of the Hearing Officer, the Prosecutor, the Forensic Examiner of the Anti-Cybercrime Group, and the Respondent at the premises of the Anti-Cybercrime Group on such a date and at such time as may be determined by the Hearing Officer and with prior notice to all concerned.

3. The Hearing Officer informed the respondent to file with his office the necessary MOTION to formalize the foregoing matter. Hence this motion.

4. The respondent hereby expresses his gratitude for the kind permission granted by the Hearing Officer.

5. In the interest of truth and justice, and pursuant to the constitutional rights of the respondent to due process of law, equal protection of the law, and security of tenure, the foregoing TRANSCRIPTION is of absolute importance to the defenses of the respondent in the instant administrative case. 

WHEREFORE, premises considered, it is respectfully prayed that the Hearing Officer soonest schedule the foregoing collective TRANSCRIPTION of the mobile phone of the respondent in the presence of the Hearing Officer, the Prosecutor, the Forensic Examiner of the Anti-Cybercrime Group, and the Respondent at the premises of the Anti-Cybercrime Group on such date and at such time to be determined by the Hearing Officer.

Further, the respondent respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, xxx 2017.