THE COURT of Appeals (CA) has voided a
Civil Aeronautics Board’s (CAB) resolution allowing a local subsidiary
of US-based FedEx Corp. from operating as an international freight
forwarder for violating the constitutional limit on foreign ownership.
In a resolution dated June 6, the appellate
court’s fourth division upheld its January ruling that nullified and
voided CAB Resolution No. 26, or the permit issued to Federal Express
Pacific, Inc. (FedEx Pacific) to operate as an international freight
forwarding service from May 2, 2011 to May 1, 2016.
“This court... finds no cogent reason to revise, amend, much less
reverse, the decision dated January 23, 2013,” read the decision on the
logistic provider’s appeal.
In its ruling last January, the CA said the regulator has adopted a
policy as early as 1990 that only Filipino citizens can be granted a
permit for international freight forwarding.
Further, the court said freight forwarding is considered a public
utility and subject to the constitutional requirement of 60% Filipino
ownership.
The ruling cited an earlier CA case whereby the CAB instructed Royal
Cargo Corp. to appoint a Filipino president instead of a German
national.
The Supreme Court (SC) rendered the case “moot and academic” in 2004 as
Royal Cargo’s permit had been renewed at the time the decision was
released. However, the CA cited “moot and academic” cases whereby the
Supreme Court “still took time to address the issues raised therein.”
“Furthermore, if the case is not really what we think it is, then the
High Court itself would have mentioned, even in passing, that the
airfreight forwarding business is open to all without regard to
citizenship,” the CA decision further read.
The CA ruling stemmed from a consolidated petition filed by Merit
Freight International, Inc. and Ace Logistics, Inc. questioning the
CAB’s issuance of a permit to FedEx Pacific.
According to records from the Securities and Exchange Commission, FedEx
Pacific has been registered as a “foreign stock” and applied to
establish a “branch office” in the country.
The CAB on March 14, 2011 issued the company a one-year provisional
permit to operate as an international freight forwarder, and after less
than two months granted a regular license on May 2, 2011.
Officials of FedEx Pacific and CAB were not immediately available for
comment on the freight forwarder’s operations before and after the CA
ruling, and on whether the case will be haled to the SC.
FedEx closed in 2009 its Asian hub in Subic and moved its operations to
Guangzhou, China after 14 years of operating in the free port northwest
of Luzon.
Airfreight 2100, Inc., popularly known as Air21, has been FedEx’s sole licensee in the Philippines since 1984.
source: Businessworld
Sunday, July 21, 2013
Commentary: RH oral arguments: what wasn’t reported
It’s all over but the voting for the 14 petitions at the Supreme
Court questioning the constitutionality of the Reproductive Health
Law—that is, if you believe media reports. With all the speculation
going around, it doesn’t help that most media accounts have focused on
how the first presenter, lawyer Concepcion Noche, was “rebuked” by the
15 justices. One account said the petitions faced dismissal because of
the way Noche struggled through the four-and-a-half-hour ordeal. A law
professor even wrote a postmortem for the anti-RH petitions, claiming
they didn’t have a case.
But what really happened during the oral arguments on July 9? The following exchange, for instance, was never reported in the media:
Justice Roberto Abad: The Constitution, Section 12 Article 2, states that the state shall equally protect the life of the mother and the unborn from conception. This right to life belongs to the unborn, not the mother or the father. Did I exist when I was still in the egg as an egg alone?
Noche: Not yet, your honor.
Abad: But when the egg, when the ovum, is fertilized, is that the beginning of me?
Noche: Yes, your honor. That’s the beginning of you. The unique “you” that exists already at that point. The unique Justice Abad … not a justice yet then.
Abad: In 1987 before this (RH Law) somewhat changed the concept of conception, how did those who drafted the Constitution understand the meaning of conception?
Noche: Life begins at fertilization. It was only recently that that was redefined.
Abad: So in other words, all of us started as zygotes … and then developed into a human being. Conception means beginning, isn’t it? But it needs to be sustained to life by attaching itself to the uterus. And it’s not the business of my parents… It’s my right. If they violated my right, I would not have been born. As Justice Carpio says on this issue, if they believe that this law violates the right to life from the time of conception, that’s how we will decide it … on our understanding of when life begins.
Totally different picture. The issue is of course crucial, because the hormonal contraceptives to be funded in the billions by the RH Law are known abortifacients—they have a secondary action of harming the fertilized ovum when contraception fails. A recognition of the beginning of life at fertilization would render the RH Law unconstitutional.
To be sure, Noche agonized and showed signs of exhaustion. She was, after all, facing all 15 justices of the Supreme Court, but she stood her ground. At one point Justice Antonio Carpio called attention to her long pause, suggesting she had run out of answers. But Noche didn’t let it pass: “No, your honor, I paused because I was reading something.”
The rather tough approach by some justices notwithstanding, Noche’s arguments stood out in substance and even managed to get her interrogators to move on to another topic.
To Carpio’s position that the high court could not settle the issue of when life begins, Noche was firm that the Constitutional Commission was clear that conception referred to fertilization. To Chief Justice Lourdes Sereno’s suggestion that there were only a handful of ConCom members who maintained that belief, Noche said the Constitution was voted upon and ratified by the Filipino people.
In his turn, Justice Mariano Del Castillo remarked, “I concede that upon the meeting of the egg and the sperm there is life already. It should be protected.”
There were in fact more justices who believed there was no mystery as to the beginning of life. Justice Teresita de Castro was pragmatic: “Assuming that the woman is healthy and the egg has already been fertilized, is there anything that will prevent this fertilized egg from developing into a human being?”
To settle the matter, Justice Lucas Bersamin told Noche to submit data on the beginning of life and the effects of hormonal contraceptives for the court to take judicial notice.
Del Castillo asked what Noche thought should be the government’s responsibility for adverse effects of contraceptives given to women by its health workers. Noche replied that the government must shoulder all expenses related to their treatment.
Justice Jose Perez offered the view that the beginning of life was not even the biggest issue in the RH debate. Taking off from the opening statement of former senator Francisco Tatad, Perez told Noche that what was “constitutionally objectionable” was “the fact that the government itself is putting in money in order to allow the prevention of fertilization.”
De Castro pursued the issue of Tatad’s main argument that the RH Law was nothing but a population control program disguised as a health measure. “There is a provision saying that there shall be no demographic or population targets… But in another provision there is a need to conduct studies to analyze demographic trends, including demographic dividends from sound population policies. It would seem that the law is intimately connected to population control.”
Abad said the RH Law was an exercise of police power. “We cannot outlaw the storms or the typhoons … but a healthy woman with a healthy ovum and eggs… We poison the egg to disable it from receiving the sperm. That’s unconstitutional, that’s improper use of police power.”
Finally, De Castro observed that the RH Law was targeting the poor and the marginalized. “It would seem under this law that the poor should not be allowed to multiply.”
No case? It’s time we extracted substance from the noise of this long-drawn-out debate. The buck stops with the Supreme Court.
Chet Espino is a convener of Families Against RH. The audio recording of the July 9 oral arguments is on YouTube (http://www.youtube.com/watch?v=j7ehdk126S4&feature=youtu.be).
source: Philippine Daily Inquirer Column of Chet Espino
But what really happened during the oral arguments on July 9? The following exchange, for instance, was never reported in the media:
Justice Roberto Abad: The Constitution, Section 12 Article 2, states that the state shall equally protect the life of the mother and the unborn from conception. This right to life belongs to the unborn, not the mother or the father. Did I exist when I was still in the egg as an egg alone?
Noche: Not yet, your honor.
Abad: But when the egg, when the ovum, is fertilized, is that the beginning of me?
Noche: Yes, your honor. That’s the beginning of you. The unique “you” that exists already at that point. The unique Justice Abad … not a justice yet then.
Abad: In 1987 before this (RH Law) somewhat changed the concept of conception, how did those who drafted the Constitution understand the meaning of conception?
Noche: Life begins at fertilization. It was only recently that that was redefined.
Abad: So in other words, all of us started as zygotes … and then developed into a human being. Conception means beginning, isn’t it? But it needs to be sustained to life by attaching itself to the uterus. And it’s not the business of my parents… It’s my right. If they violated my right, I would not have been born. As Justice Carpio says on this issue, if they believe that this law violates the right to life from the time of conception, that’s how we will decide it … on our understanding of when life begins.
Totally different picture. The issue is of course crucial, because the hormonal contraceptives to be funded in the billions by the RH Law are known abortifacients—they have a secondary action of harming the fertilized ovum when contraception fails. A recognition of the beginning of life at fertilization would render the RH Law unconstitutional.
To be sure, Noche agonized and showed signs of exhaustion. She was, after all, facing all 15 justices of the Supreme Court, but she stood her ground. At one point Justice Antonio Carpio called attention to her long pause, suggesting she had run out of answers. But Noche didn’t let it pass: “No, your honor, I paused because I was reading something.”
The rather tough approach by some justices notwithstanding, Noche’s arguments stood out in substance and even managed to get her interrogators to move on to another topic.
To Carpio’s position that the high court could not settle the issue of when life begins, Noche was firm that the Constitutional Commission was clear that conception referred to fertilization. To Chief Justice Lourdes Sereno’s suggestion that there were only a handful of ConCom members who maintained that belief, Noche said the Constitution was voted upon and ratified by the Filipino people.
In his turn, Justice Mariano Del Castillo remarked, “I concede that upon the meeting of the egg and the sperm there is life already. It should be protected.”
There were in fact more justices who believed there was no mystery as to the beginning of life. Justice Teresita de Castro was pragmatic: “Assuming that the woman is healthy and the egg has already been fertilized, is there anything that will prevent this fertilized egg from developing into a human being?”
To settle the matter, Justice Lucas Bersamin told Noche to submit data on the beginning of life and the effects of hormonal contraceptives for the court to take judicial notice.
Del Castillo asked what Noche thought should be the government’s responsibility for adverse effects of contraceptives given to women by its health workers. Noche replied that the government must shoulder all expenses related to their treatment.
Justice Jose Perez offered the view that the beginning of life was not even the biggest issue in the RH debate. Taking off from the opening statement of former senator Francisco Tatad, Perez told Noche that what was “constitutionally objectionable” was “the fact that the government itself is putting in money in order to allow the prevention of fertilization.”
De Castro pursued the issue of Tatad’s main argument that the RH Law was nothing but a population control program disguised as a health measure. “There is a provision saying that there shall be no demographic or population targets… But in another provision there is a need to conduct studies to analyze demographic trends, including demographic dividends from sound population policies. It would seem that the law is intimately connected to population control.”
Abad said the RH Law was an exercise of police power. “We cannot outlaw the storms or the typhoons … but a healthy woman with a healthy ovum and eggs… We poison the egg to disable it from receiving the sperm. That’s unconstitutional, that’s improper use of police power.”
Finally, De Castro observed that the RH Law was targeting the poor and the marginalized. “It would seem under this law that the poor should not be allowed to multiply.”
No case? It’s time we extracted substance from the noise of this long-drawn-out debate. The buck stops with the Supreme Court.
Chet Espino is a convener of Families Against RH. The audio recording of the July 9 oral arguments is on YouTube (http://www.youtube.com/watch?v=j7ehdk126S4&feature=youtu.be).
source: Philippine Daily Inquirer Column of Chet Espino
Thursday, July 18, 2013
Wealth sharing (Gov't and MILF)
LAST SUNDAY, Peace Adviser Teresita
Quintos-Deles announced that the negotiating panels of the Government of
the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) had
signed the Annex on Revenue Generation and Wealth Sharing in Kuala
Lumpur. The timing is impeccable -- two weeks before President Benigno
Simeon Aquino III (PNoy) delivers his State of the Nation Address (SONA)
before Congress. PNoy will have much to say in his SONA -- on the
economy, on the Western Philippine Sea, and on peace. (Will he mention
charter change, I wonder?)
The Philippine Center for Islam and Democracy (PCID) and other organizations have issued statements congratulating both panels for ironing out the wrinkles in the fabric of the annex. The PCID statement lauded the panels’ “steadfast resolve to achieve a compromise regarding such a contentious and important issue” but hoped that the annex “will strengthen the foundation for genuine fiscal autonomy for the Bangsamoro.” (As I have often described autonomy in my lectures at universities thus: a young man is not autonomous -- much less independent -- if he has to run home to Mama to ask for allowance in order to treat his girl friend to a movie.)
As the PCID has consistently pointed out over the last decade, without financial viability, autonomy is only good on paper. We have only to review the performance of the Autonomous Region in Muslim Mindanao and the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur and Maguindanao after the signing of the 1996 Final Peace Agreement (FPA) with the Moro National Liberation Front. In September 2006, during the 10th anniversary of the signing of the FPA, MNLF Chair Nur Misuari said that the FPA had to be raised from the dead. At the time, he was incarcerated on charges of rebellion. (He was released after eight years, since no evidence was found to support the charges.)
Any analysis of autonomy in Muslim Mindanao cannot be meaningfully accomplished without a discussion of the historical antecedents that have determined the path in which peace and development have been pursued in the southern Philippines. This discussion of autonomy cannot be divorced from the different stages in the peace efforts with the Muslim separatists, as well as the steps taken after the so-called “Final Peace Agreement” was signed in 1996 between the Philippine government and the Moro National Liberation Front (MNLF). After all, it was to conciliate the interests of the Muslims as represented by the MNLF that the idea of autonomy in Muslim Mindanao was first advanced.
The reality of ARMM, which had led PNoy to label it as a “failed experiment,” is this: 16 years after the signing of the 1996 FPA, Muslim Mindanao remains as the least served region with the lowest human development indicators, poorest of the poor, and has the lowest contribution to gross domestic product. It has become even more conflict affected since 1996 and has the highest unemployment rate, with half of the adult population in the dark due to illiteracy (over 600,000 of the adult population are functionally illiterate). The ARMM government, burdened by inefficiency and lack of funds for development as well as plagued by corruption since 1996, has failed to deliver dividends of peace to the Bangsamoro.
With the signing of the Annex on Revenue Generation and Wealth Sharing, the Transition Commission now has enough fuel to start the machinery of crafting the Basic Law. Is the TC prepared? The 15 members of the TC, headed by MILF panel chair Iqbal, were appointed six months ago. I understand that the TC had been unable to function due to organizational problems such as the legal foundation for government to disburse funds to the commission. Unfortunate that such an issue had not been considered before the members were appointed. Luckily, international friends of Mindanao such as Japan intervened and provided training programs for the members of the TC. National agencies and civil society organizations have also stepped into the breach to provide briefings and training and round tables. The TC members must be champing at the bit, raring to start drafting the Basic Law.
What are the next steps, assuming there are no more organizational constraints for the TC?
PNoy’s term ends in 2016. We have two and a half years to draft the basic law, have Congress pass the legislation, and implement a transition period before the new Bangsamoro Region will have its first regional election. Will all these happen by 2016? Too tight a time line, many will agree. However, we have to march to the beat of PNoy’s drummers on the “daang matuwid” towards a better future.
At this point, the critical step is to look at options for enabling inclusive growth to prosper in the ARMM and the governance mechanisms required.
It is crucial that the Transition Commission begin discussions with key sectors in order to flesh out the Framework Agreement for the Bangsamoro, given the details as set out in the documents already signed. Before the annex on wealth sharing, both parties had signed, last February, the Annex on Transitional Arrangements and Modalities (TAM) which describes the structure of the Bangsamoro regional government as a ministerial form and the Terms of Reference for the Independent Commission on Policing (ICP), referring to the appropriate form, structures and relationships of the police force for the Bangsamoro. In January, both parties had signed the terms of reference for the Third Party Monitoring Team (TPMT). The TPMT will review, assess, evaluate, and monitor the implementation of the Framework Agreement on the Bangsamoro (FAB) and its annexes.
The TC can now start discussions on the transition mechanisms, the form of government, relationships between and among regional government, national government and local government, and now the details on fiscal autonomy -- taxation being a key foundation.
I have wondered why there was such a fuss over the sharing arrangements on taxes when even 100% share for the Bangsamoro would still result in zero, given the almost non-existent taxable enterprises and inefficient collection mechanisms. I do not anticipate drastic changes over the next five years, given the fact that the region is the least served by the government, with the lowest absorptive capacity with the weakest incentives for business.
Last November, we at PCID finally sparked the interest of the Foundation for Economic Freedom (FEF) on the economic issues pertinent to enabling the growth of a robust economy for the Bangsamoro. Together, we have developed a proposal for a series of workshops that would bring to the table hard-nosed business leaders, economists, experts to meet with leaders of the Bangsamoro to develop a menu of viable options. FEF, after years of operation, finally had a session on the peace process. GPH panel chair Miriam Coronel Ferrer gave a talk during at FEF’s dinner forum last month. In attendance were three former Finance secretaries -- Cesar Virata, Roberto de Ocampo and Ernest Leung.
Since January, we have met with officials of the Philippine government and development partners, leaders of the Bangsamoro (MILF Chair Murad, the Bangsamoro Development Authority, ARMM officials and businessmen) and key Mindanao leaders. Thus far, all agree that attention on developing a strong economic foundation for the Bangsamoro Region is crucial to its political autonomy.
(It is serendipity that a former World Bank Country Director for the Philippines, Thomas Allen, is a Fellow of FEF. He leads the initiative, which is funded by the AusAID. We at PCID, cognizant of the fact that business and economics is not our strong suit, have convinced the FEF to take lead, especially since Tom Allen is directing the project.)
If the Bangsamoro will follow the precedent set by ARMM -- where government officials encamp in Malacañang to follow up on their share of Internal Revenue Allotments or funding for projects -- then the Bangsamoro will be just that young man waiting for allowance from Mama.
According to Carol Arguillas of Mindanews, MILF panel Chair Mohagher Iqbal texted her: “I am pleased but right now I still see the bumpy road ahead. There are still many challenges ahead.”
But we remain optimists. PCID’s statement: “Although challenges are in the horizon as talks about Power Sharing and Normalization are about to commence, PCID acknowledges that the signing of the Annex on Revenue Generation and Wealth Sharing is a good sign that both panels are committed towards achieving a just and fair agreement.”
Further, PCID states: “We assert the primacy of the peace process and we ask both Panels to continue fast-tracking the remaining Annexes of the negotiations. May the Transition Commission conduct parallel efforts in preparing for the draft Bangsamoro Basic Law. We, as civil society, are prepared to assist in any way.”
source: Businessworld Column of Amina Rasul
The Philippine Center for Islam and Democracy (PCID) and other organizations have issued statements congratulating both panels for ironing out the wrinkles in the fabric of the annex. The PCID statement lauded the panels’ “steadfast resolve to achieve a compromise regarding such a contentious and important issue” but hoped that the annex “will strengthen the foundation for genuine fiscal autonomy for the Bangsamoro.” (As I have often described autonomy in my lectures at universities thus: a young man is not autonomous -- much less independent -- if he has to run home to Mama to ask for allowance in order to treat his girl friend to a movie.)
As the PCID has consistently pointed out over the last decade, without financial viability, autonomy is only good on paper. We have only to review the performance of the Autonomous Region in Muslim Mindanao and the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur and Maguindanao after the signing of the 1996 Final Peace Agreement (FPA) with the Moro National Liberation Front. In September 2006, during the 10th anniversary of the signing of the FPA, MNLF Chair Nur Misuari said that the FPA had to be raised from the dead. At the time, he was incarcerated on charges of rebellion. (He was released after eight years, since no evidence was found to support the charges.)
Any analysis of autonomy in Muslim Mindanao cannot be meaningfully accomplished without a discussion of the historical antecedents that have determined the path in which peace and development have been pursued in the southern Philippines. This discussion of autonomy cannot be divorced from the different stages in the peace efforts with the Muslim separatists, as well as the steps taken after the so-called “Final Peace Agreement” was signed in 1996 between the Philippine government and the Moro National Liberation Front (MNLF). After all, it was to conciliate the interests of the Muslims as represented by the MNLF that the idea of autonomy in Muslim Mindanao was first advanced.
The reality of ARMM, which had led PNoy to label it as a “failed experiment,” is this: 16 years after the signing of the 1996 FPA, Muslim Mindanao remains as the least served region with the lowest human development indicators, poorest of the poor, and has the lowest contribution to gross domestic product. It has become even more conflict affected since 1996 and has the highest unemployment rate, with half of the adult population in the dark due to illiteracy (over 600,000 of the adult population are functionally illiterate). The ARMM government, burdened by inefficiency and lack of funds for development as well as plagued by corruption since 1996, has failed to deliver dividends of peace to the Bangsamoro.
With the signing of the Annex on Revenue Generation and Wealth Sharing, the Transition Commission now has enough fuel to start the machinery of crafting the Basic Law. Is the TC prepared? The 15 members of the TC, headed by MILF panel chair Iqbal, were appointed six months ago. I understand that the TC had been unable to function due to organizational problems such as the legal foundation for government to disburse funds to the commission. Unfortunate that such an issue had not been considered before the members were appointed. Luckily, international friends of Mindanao such as Japan intervened and provided training programs for the members of the TC. National agencies and civil society organizations have also stepped into the breach to provide briefings and training and round tables. The TC members must be champing at the bit, raring to start drafting the Basic Law.
What are the next steps, assuming there are no more organizational constraints for the TC?
PNoy’s term ends in 2016. We have two and a half years to draft the basic law, have Congress pass the legislation, and implement a transition period before the new Bangsamoro Region will have its first regional election. Will all these happen by 2016? Too tight a time line, many will agree. However, we have to march to the beat of PNoy’s drummers on the “daang matuwid” towards a better future.
At this point, the critical step is to look at options for enabling inclusive growth to prosper in the ARMM and the governance mechanisms required.
It is crucial that the Transition Commission begin discussions with key sectors in order to flesh out the Framework Agreement for the Bangsamoro, given the details as set out in the documents already signed. Before the annex on wealth sharing, both parties had signed, last February, the Annex on Transitional Arrangements and Modalities (TAM) which describes the structure of the Bangsamoro regional government as a ministerial form and the Terms of Reference for the Independent Commission on Policing (ICP), referring to the appropriate form, structures and relationships of the police force for the Bangsamoro. In January, both parties had signed the terms of reference for the Third Party Monitoring Team (TPMT). The TPMT will review, assess, evaluate, and monitor the implementation of the Framework Agreement on the Bangsamoro (FAB) and its annexes.
The TC can now start discussions on the transition mechanisms, the form of government, relationships between and among regional government, national government and local government, and now the details on fiscal autonomy -- taxation being a key foundation.
I have wondered why there was such a fuss over the sharing arrangements on taxes when even 100% share for the Bangsamoro would still result in zero, given the almost non-existent taxable enterprises and inefficient collection mechanisms. I do not anticipate drastic changes over the next five years, given the fact that the region is the least served by the government, with the lowest absorptive capacity with the weakest incentives for business.
Last November, we at PCID finally sparked the interest of the Foundation for Economic Freedom (FEF) on the economic issues pertinent to enabling the growth of a robust economy for the Bangsamoro. Together, we have developed a proposal for a series of workshops that would bring to the table hard-nosed business leaders, economists, experts to meet with leaders of the Bangsamoro to develop a menu of viable options. FEF, after years of operation, finally had a session on the peace process. GPH panel chair Miriam Coronel Ferrer gave a talk during at FEF’s dinner forum last month. In attendance were three former Finance secretaries -- Cesar Virata, Roberto de Ocampo and Ernest Leung.
Since January, we have met with officials of the Philippine government and development partners, leaders of the Bangsamoro (MILF Chair Murad, the Bangsamoro Development Authority, ARMM officials and businessmen) and key Mindanao leaders. Thus far, all agree that attention on developing a strong economic foundation for the Bangsamoro Region is crucial to its political autonomy.
(It is serendipity that a former World Bank Country Director for the Philippines, Thomas Allen, is a Fellow of FEF. He leads the initiative, which is funded by the AusAID. We at PCID, cognizant of the fact that business and economics is not our strong suit, have convinced the FEF to take lead, especially since Tom Allen is directing the project.)
If the Bangsamoro will follow the precedent set by ARMM -- where government officials encamp in Malacañang to follow up on their share of Internal Revenue Allotments or funding for projects -- then the Bangsamoro will be just that young man waiting for allowance from Mama.
According to Carol Arguillas of Mindanews, MILF panel Chair Mohagher Iqbal texted her: “I am pleased but right now I still see the bumpy road ahead. There are still many challenges ahead.”
But we remain optimists. PCID’s statement: “Although challenges are in the horizon as talks about Power Sharing and Normalization are about to commence, PCID acknowledges that the signing of the Annex on Revenue Generation and Wealth Sharing is a good sign that both panels are committed towards achieving a just and fair agreement.”
Further, PCID states: “We assert the primacy of the peace process and we ask both Panels to continue fast-tracking the remaining Annexes of the negotiations. May the Transition Commission conduct parallel efforts in preparing for the draft Bangsamoro Basic Law. We, as civil society, are prepared to assist in any way.”
source: Businessworld Column of Amina Rasul
Thursday, July 4, 2013
Consented warrantless search
An agent from the Anti-Usury Board obtained a search warrant
commanding any officer of the law to search the person, house, or store
of a woman at Victoria, Tarlac, for “certain books, lists, chits,
receipts, documents and other papers relating to her activities as
usurer.” The search warrant was issued by a judge based on the affidavit
of the same agent who believed that this woman conducts activities in
violation of the Anti-Usury law and keeps evidence of these activities
in her home and store.
The same day the warrant was issued, the agent went to the store. The woman was not present because she was sick and confined at home. Regardless of this fact, the agent and police officer showed the search warrant to the woman’s bookkeeper and began to search the premises. Two packages of records and a locked filing cabinet containing several papers and documents were seized and a receipt issued to the bookkeeper.
Six cases were filed in court for violation of the Anti-Usury Law. Pending decision, the woman demanded several times from the Anti-Usury Board to return all the documents seized. The legality of the search warrant was also questioned. The lower court refused to return the documents seized. While it found the search warrant to be illegal, it upheld the search on the basis that there was a waiver on the right against warrantless searches and seizures.
The Supreme Court (SC) upheld the illegality of the search warrant but ruled that no such waiver or consent was given to warrant a warrantless search. It explained the concept of a consented warrantless searches, one of the exceptions to the rule on unreasonable searches and seizures - [t]he constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The waiver may be either express or implied. No express waiver has been made in the case before us . . . It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right . . . Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf.
The SC also declared that no implied waiver was present under the circumstances -
[F]ailure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is but a submission to the authority of the law. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.
Lastly, the Court recognized that even though the woman did not immediately demand the return of her documents upon seizure, she demanded their return on four different occassions before and pending criminal action. It held that “in the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication” (De Garcia v. Locsin, G.R. No. L-45950, 20 June 1938, J. Laurel).
source: Manila Times' Column of Benchpress
The same day the warrant was issued, the agent went to the store. The woman was not present because she was sick and confined at home. Regardless of this fact, the agent and police officer showed the search warrant to the woman’s bookkeeper and began to search the premises. Two packages of records and a locked filing cabinet containing several papers and documents were seized and a receipt issued to the bookkeeper.
Six cases were filed in court for violation of the Anti-Usury Law. Pending decision, the woman demanded several times from the Anti-Usury Board to return all the documents seized. The legality of the search warrant was also questioned. The lower court refused to return the documents seized. While it found the search warrant to be illegal, it upheld the search on the basis that there was a waiver on the right against warrantless searches and seizures.
The Supreme Court (SC) upheld the illegality of the search warrant but ruled that no such waiver or consent was given to warrant a warrantless search. It explained the concept of a consented warrantless searches, one of the exceptions to the rule on unreasonable searches and seizures - [t]he constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The waiver may be either express or implied. No express waiver has been made in the case before us . . . It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right . . . Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf.
The SC also declared that no implied waiver was present under the circumstances -
[F]ailure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is but a submission to the authority of the law. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.
Lastly, the Court recognized that even though the woman did not immediately demand the return of her documents upon seizure, she demanded their return on four different occassions before and pending criminal action. It held that “in the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication” (De Garcia v. Locsin, G.R. No. L-45950, 20 June 1938, J. Laurel).
source: Manila Times' Column of Benchpress
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