Court voids permit of freight forwarder

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

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

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

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

Sharia and the Constitution

CASABLANCA, MOROCCO -- The weather is wonderful here -- cool and refreshing. Walking around the old "medina," the traditional part of the city, awash with the golden sunlight of a Casablanca day, I can imagine Ingrid Bergman and Humphrey Bogart sitting in an outdoor coffee shop along the "corniche" or boulevard running along the coast, sipping espresso while looking outward to sea. Casablanca is an interesting mix of modernity and traditions -- young Moroccan women walking around in their skinny jeans while old women, veiled and in traditional attires, are negotiating with shopkeepers. And everyone around me is speaking in French and Arabic. So different from the heat of Qatar 10 days ago, where I attended the 10th US-Islamic World Forum organized by Brookings Institution. A sandstorm kept us inside the Ritz-Carlton Hotel in Doha, happy to deliberate on political developments in Syria, Egypt, and Libya.

I am here in Casablanca to present a paper on what we, at the Philippine Center for Islam and Democracy, are doing to contribute to political change. Konrad Adenauer Foundation (KAF) has invited its partners to participate in a roundtable workshop on "Social Commitment and Political Participation in Muslim Communities." Leaders from Asia, the Middle East and North Africa (MENA) are here to share experiences. I am looking forward to learn, first hand, how our MENA colleagues are dealing with the rapid changes reshaping the political structures in their region after the Arab Spring. Particularly the constitutional amendment that Tunisia, Egypt, Libya and Morocco have undergone, which have brought in Sharia or Islamic law into the constitution.

At the US-Islamic World Forum in Doha,I was invited to take part in a technical working group (TWG) that discussed the complications arising from the Islamic constitutionalism, in the newly democratizing Muslim majority states. Post-Arab Spring, as Islamist parties gained power in the elections, there has been a powerful drive to establish a role for Islam and Islamic law within the state. The failures of the secular governments -- under the hands of strongmen -- to provide for its people have shifted the support of the citizens to Islamist parties.

To distinguish the new governments from deposed regimes, to reflect the Islamic identity of the majority population, as well as to establish credibility, Islamist political leaders have sought to integrate Sharia or Islamic law within the constitution. Thus the term Islamic constitutionalism.

The TWG in Doha was primarily convened to look into the protection of women’s rights within the constitutions that have embraced Sharia. As discussed in our group, "Perhaps no group of citizens is affected more directly by the scope and meaning of the terms ‘Islam’ and ‘Islamic law’ than Muslim women, who could see their rights either advanced or rescinded as a result of these post-conflict processes."

How then to ensure the protection of women’s rights, and the rights of others such as religious minorities, as Sharia is enshrined in the constitution? What synergies are possible when Islamic law is incorporated into a state’s constitution? What conflicts and how can these conflicts be resolved? Our TWG recommended that our next step should be to bring together legal luminaries, political leaders, women leaders of civil society and religious leaders -- particularly the Sharia experts -- to explore ways.

The complications of Islamic constitutionalism go beyond the effect on women’s rights. I am hoping that our meeting in Casablanca will tackle this issue as well.

The Philippines, as well, should pay particular attention to the issues arising from Islamic constitutionalism as the Transition Commission prepares to draft the Basic Law for the Bangsamoro region, which will replace the Autonomous Region of Muslim Mindanao. The Moro Islamic Liberation Front demands a greater role for Sharia within Muslim Mindanao. How will this work under the Philippine Constitution, which enshrines civil liberties?

Meanwhile, the peace process between the government and the MILF has been stalled. It has been eight months since the signing of the Framework Agreement for the Bangsamoro (FAB). The Transition Commission members were appointed some five months ago. What have they been doing -- apart from organizing themselves and training abroad -- while waiting for the annexes to be signed, on power sharing and wealth sharing?

News reports have headlined the frustration building in the MILF communities as well as the civil society and peace networks of Mindanao. Is it true that the Palace is actually thinking of undoing some of the provisions that the GPH and MILF panels have already initialled?

This is troubling indeed. While President Benigno Simeon Aquino III remains popular and influential, his political influence over Congress will start to wane two years before the next elections. Senators and congressmen will be shifting alliances, joining forces with presidentiables. The preoccupation of political leaders will be on winning the 2016 presidential elections and may not find it politic to support a law that will provide more powers to Muslim Mindanao, after the debacle of the 2008 Memorandum Agreement on Ancestral Domain (MOAAD). If you recall, leaders of Christian provinces contested the constitutionality of the MOAAD before the Supreme Court. The decision of the SC to put a temporary restraining order (TRO) on the signing of the MOAAD triggered fighting in Central Mindanao, which left thousands dead and wounded while over 700,000 became refugees.

Thus, the annexes need to be approved soon. It is not as if the discussions only started this year. The discussions on power and wealth sharing have been on-going from the time of the negotiations with the Moro National Liberation Front. There is a baseline, so to speak, on which to build a new agreement.

Add to that the complications arising from the increased influence of Islamic constitutionalism.

Part 2 (June 27 2013)

WHILE in Casablanca, I immersed myself in news about constitutional amendments in Muslim states, following the Arab Spring. What I read disturbed my equanimity. Reformists and advocates of human rights, particularly the rights of women and minorities, have been rallying their forces to protect the freedom they had fought for, as they deposed authoritarian regimes. How can that be, I wondered, when Tunisia, Egypt, Libya and other states have been busy with democratic elections and drafting or amending their constitutions?

During the 10th US-Islamic World Forum in Doha, our technical working group discussed the effects of the introduction of Shari’a into the constitutions of Tunisia and Egypt as well as Afghanistan and Iraq, after the smoke had cleared and the freedom fighters had settled to the long drawn out fight in the democratic arena. In our group paper, we highlighted the renewed emphasis of these states on cementing a role for Islam and Islamic law within the state. The Islamic political groups, better organized than the more secular human rights groups, have gained power in the aftermath of conflict. They have succeeded in introducing Shari’a into the constitution, to reflect the majority Muslim population’s Islamic identity. Further, they have successfully argued that "the universality and centrality of religion as a factor in the lives of the Muslim peoples." Thus, Islamic constitutionalism has succeeded in these states.

I came across an article, "Islamic Perspectives on Constitutionalism," by Raja Bahlul, a professor of philosophy in Palestine and the United Arab Emirates University, who has written several books on the political role of Islam in the Middle East. In providing the justification for Shari’a’s position within the constitution, he wrote that Shari’a does offer "a rich and varied field in which human rights can be grounded" and cites social, economic and political rights. He admits there may be limitations and serious omissions, when Islamic jurists interpret Shari’a, but we should not judge Shari’a harshly. "After all, we could not have been able to entertain the vision of one humanity, whose members are equal in worth and dignity, endowed with inalienable human rights, regardless of gender, race, or social position, had we not ‘stood on the shoulders’ of prophets, who were the first to announce the equality of all humans in the sight of God, their Creator."

Where is the cause for concern? One serious ground is mentioned in Bahlul’s article: the interpretations of Shari’a by Islamic jurists. Thus, we have a wide range of interpretations of the same law across the Muslim world. When humans interpret divine law, there can be no one interpretation. Particularly when the interpreters have different backgrounds and are the product of different cultures. This is when problems arise and abuses begin.

In Tunisia, human rights groups and Amnesty International (AI)officials have criticized the draft of Tunisia’s new constitution, released on June 1. They said the draft constitution restricts several basic human rights, including "the rights to freedom of expression, peaceful assembly and association, and to freedom of movement." Further, there are no adequate guarantees "for the independence of the judiciary and to protect against torture and other forms of ill-treatment."

Said Benarbia, International Court of Justice (ICJ) senior legal adviser of the Middle East and North Africa Programme, has stated that "while the draft constitution broadens the separation of powers and human rights provisions of the 1959 Constitution, it should be comprehensively amended to reflect international law and standards and to meet the democratic aspirations of the Tunisian people expressed during the uprising."

The ICJ calls for the constitution to be amended to: "fully guarantee the separation of powers; ensure the accountability of the security services and armed forces and their subordination to a civilian authority; bring the judicial system in line with international standards of independence, impartiality and accountability; end the use of military courts to try civilians and cases involving human rights violations; incorporate a comprehensive Bill of Rights; recognize the right to life as an absolute right, and abolish the death penalty; and provide effective mechanisms for the protection of human rights and ensuring the right to a remedy."

Lotfi Azzouz, executive director of AI’s Tunisia office, stressed the draft constitution "does not meet the expectations of Tunisia after the revolution."

In Egypt, violent demonstrations erupted in Tahrir Square last December, where several were killed, as political activists protested the drafting of the Egyptian constitution. They believed the charter would be used by President Morsi to consolidate power for the ruling Muslim Brotherhood party as well as limit freedom of expression and human rights, the very freedoms they had fought for during the Arab Spring.

According to news from Cairo, activists with the Tamarod -- or Rebel -- campaign have been collecting signatures to demand early elections due to loss of confidence in President Morsi. Morsi assumed extraordinary powers for several weeks late last year. He retracted parts of his contested Nov. 22 decree giving himself extra powers and shielding his decisions from judicial review only after the violent demonstrations in Tahrir Square.

The constitution was approved with 63.8% majority during the December referendum. However, the turnout was low (32.9%) even though the Muslim Brotherhood came out in full force to vote. Thus, the constitution was passed with the vote of less than 30% of Egyptians.

Part I of the constitution establishes Islam as the official religion and the principles of Shari’a as the main source of legislation. Constitutional experts believe the constitution contains vague language, which could restrict internationally guaranteed freedoms. For instance, Article 10: "The family is the basis of society and is founded on religion, morality, and patriotism. The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law." The "genuine character" of a family is not defined, thus it could allow discrimination against women based on religious interpretations or perceived cultural norms.

In Morocco, King Mohammad VI reacted to the Arab Spring by introducing reforms, thus preventing the violence from spreading to his country. On July 1, 2011, a new constitution was passed. Although Moroccan political activists are dissatisfied with the constitution, still there is progress. The new charter describes Morocco as a "constitutional, democratic, parliamentary and social monarchy" and addresses the demands for decentralization in the areas dominated by minority groups such as the Berbers. There are new articles in the constitution that propose state efforts to foster local citizenship and human development across the regions and a limited degree of local financial autonomy, assuring an "equitable allocation of resources, in order to reduce disparities between regions."

In October 2012, King Mohammed VI spoke before the parliament urging it to pass implementing legislation to bring the new national charter into full force, while paying attention to the provisions on decentralization to the regions, ensuring the independence of the judiciary, among others.

Political activists have stated they will have a "quiet revolution" to ensure civil liberties and freedom.

At the end of the day, if the majority of the people have freely spoken and have decided to be governed under one particular system -- whether influenced by Shari’a or not, then it must be so. That is what democracy is all about. However, the key is in their free choice and the decision of the true majority. If these two principles are absent, then let us not kid ourselves: there is no freedom and there is no democracy.

***

Meanwhile, back home in Sulu, two sisters have been abducted, supposedly by a criminal group known as "Lucky 9," composed of "Abu Sayyaf orphans and drug addicts" according to Octavio Dinampo, a professor at the Mindanao State University in Sulu and himself a former ASG kidnap victim.

Nadjoua and Linda Abdel Bansil are the daughters of a known ulama, the late Abdulbasit Bansil. Filmmakers, the two women allegedly went to Patikul, Sulu to do a documentary on coffee growers and were accompanied by a group known as the Sulu Sultanate Darul Islam (SSDI). The spokesperson of Sultan Jamalul Kiram III said he was not sure the SSDI exists, creating more suspicions as to why the two sisters were in Patikul.

In an interview on ANC, Sulu Governor Abdusakur Tan "slammed the group of the missing Bansil sisters for going to an area known to be a bailiwick of terrorist group Abu Sayyaf without notifying authorities." Tan, suspecting the sisters were actually in Patikul to interview the ASG, has been blamed for the Bansil sisters being kidnapped.

While I can understand the position of Governor Tan, perhaps now is not the time to blame the victims. The family of the Nadjoua and Linda are heartbroken over their fate. An uncle of theirs texted me about their fears. Perhaps now is the time for Governor Tan to use all his powers and influence to secure their release.

We, in the Philippine Center for Islam and Democracy, appeal to Governor Tan, congressmen Loong and Arbison, and the military to rescue Nadjoua and Linda. Let us blame them after.

source:  Businessworld Column of Amina Rasul

IBP junks De Lima’s plea to dismiss disbarment cases

Palace, Justice secretary work on Tupas to amend JBC rules
By a unanimous  vote of  the board of governors of the Integrated Bar of the Philippines (IBP), the body has turned down Justice Secretary Leila de Lima’s plea to drop the pending disbarment cases filed against her before the lawyers’ group.
Neither Malacañang nor the Justice chief has given up on having her name included in the shortlist, however, as their ally in the Judicial and Bar Council, Iloilo Rep. Niel Tupas Jr., readied a proposal to amend the JBC rules on disqualifications to ensure De Lima’s entry in the chief justice race.  De Lima is seen as President Aquino’s choice for the Chief Justice position and Malacañang is seen as now pressuring his allies in the JBC to have the rules on disqualification of candidates amended to ensure De Lima’s inclusion in the shortlist to be submited by the JBC to Aquino (See related story).
Earlier, the President admitted to lobbying before  the IBP to get the cases against De Lima dismissed, as he admitted to reporters that he and his legal aides have been helping De Lima get the disbarment cases against  her dismissed.

But the pressure failed to work on the IBP that said: “Early this morning, the IBP governors unanimously voted to deny Secretray De Lima’s appeal to have her disbarment cases to be dismissed as the Justice Secretary had not provided new arguments that will merit the dismissal of her case,” IBP national president Lawyer Roan Libarios told reporters.

De Lima is hoping to be appointed chief justice in the ongoing proceedings by the JBC but is disqualified under the present rules due to the pending cases.

The nine governors of the IBP unanimously voted on Monday to push through with their probe in connection with the consolidated complaints filed against De Lima which stemmed from her defiance on the temporary restraining order issued by the Supreme Court when she had ordered to stop former President Gloria Arroyo from leaving the country and for bad mouthing ousted Supreme Court (SC) Chief Justice Renato Corona.

He said  the IBP governors issued a minute-order after the announcement of the lawyers’ group’s decision.
The two disbarment complaints against De Lima were filed by Ricardo Rivera, Fernando Perito, Nephtali Aliposa and the other lodged by lawyer Augusto Sundiam — before the IBP.

Under Rule 4, Section 5 of the JBC rules, the nominees are considered to be disqualified from appointment to any judicial post or as Ombudsman or Deputy Ombudsman if they have a pending criminal or regular administrative cases; those with pending criminal cases in foreign courts or tribunal; those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000, unless granted judicial clemency.

De Lima had asked the biggest lawyers’ group in the country last Aug. 1 to reverse its decision to probe further the disbarment cases filed against her.

The  IBP board explained that it  could not outrightly dismiss De Lima’s complaint since the High Court has already found basis to have the cases probed further when the SC referred her cases to the lawyers’ group. Libarios said that the high tribunal ordered the IBP to conduct a full blown probe on the case of De Lima when it was referred to the lawyers’ body.

“If a disbarment complaint is filed with the SC and the High Court refers it to the IBP for investigation, there is the  presumption that the SC has already found basis,” the IBP national president explained. “Otherwise, the Supreme Court would have summarily dismissed the case, instead of referring it to the IBP to conduct investigation,” he added.

IBP spokesman, lawyer Trixie Cruz-Angeles, in a separate interview, said the IBP board did not give credence to the argument of the Justice Secretary that she was immune from suits being a member of President Aquino’s Cabinet. “She cannot raise the argument that she’s immune from lawsuits since there’s no law which indicates that alter-egos of presidents can enjoy the same privileges that are accorded to our country’s leaders,”  Cruz-Angeles explained.

“De Lima cannot be shielded by President Aquino’s immunity from lawsuit even though she is an alter-ego of the president,” she stressed.

The IBP will finish its formal investigation on the disbarment complaint by September or October this year. “The Supreme Court gave us 90 days to finish the investigation but it was interrupted with the filing of the MR. So, we will finish the investigation by September or October,” she said.

The eight-member JBC panel has less than three weeks to submit names of nominees which the President will pick as the possible replacement of ousted Chief Justice  Corona, who was convicted by the Senate impeachment court for betrayal of public trust, last May 29.

Sen. Francis “Chiz” Escudero, one of the two representatives of Congress in the JBC, already hinted in an interview Secretary De Lima may not be included in the shortlist because their rules clearly provide for disqualification of candidates with pending criminal or administrative cases.

“We won’t even put it to a vote. The rule will simply be applied unless by some stroke of luck or miracle, the case will be dismissed by the Integrated Bar of the Philippines,” he explained in an interview. He stressed: “It will be unfair if we make an exception to the rule because we have disqualified countless applicants who were similarly situated.”

But apparently, the “mriracle” came in the form of Aquino’s loyal ally and the rules may be amended as  the JBC will still be voting on the inclusion, or non-inlcusion of De Lima on Wednesday.

In a 11-page letter she submitted to the JBC, De Lima admitted feeling powerless in the face of the six-month lag in the referral of her disbarment cases to the IBC.

“The situation is clearly this: while the undersigned finds her candidacy for Chief Justice undersigned finds her candidacy for Chief Justice under the mercy of her co-nominee Justices of the Court, as her fate clearly rests  on these same Justices’ action or inaction on her disbarment cases.

At the same time, she also cried foul over IBP’s treatment of the complaints against her, saying it was unfair for the lawyer’s body to expeditiously dispose the disbarment complaint filed against two SC magistrates who are also vying for the Chief Justice post.

Citing an apparent double standard in IBP’s resolution of case, she believes justices of the high court “are always in a better position than ordinary lawyers in terms of the disposition of administrative cases that threaten to disqualify them.”

She specifically cited the dismissal last June 13 of the disbarment complaint filed by Mayor Magdaleno Peña Pulupandan town in Negros Occidental against Justices Carpio and Sereno.

Meawhile, De Lima is also under fire again and facing inquiry before the Senate due to her alleged recent issuance of a circular allowing the release from police custody of suspected drug traffickers and others with drug-related charges while their respective cases are still pending review by the department.

Senate Majority Leader Vicente Sotto III yesterday took the floor to call the attention of his colleagues into the matter, saying that circular No. 12 is a big blow to the implementation of R.A. 9165 or the country’s law against drug trafficking as well as the continuing campaign against illegal drugs trade.

“I think the Senate should step in and find reason for the Secretary of Justice and the Department of Justice (DoJ) issued this circular. I guarantee you, these drug traffickers will never be found once you release them,” he said to reporters before delivering his speech during the plenary proceedings.

The majority leader’s colleagues rallied behind his cause, with Sen. Panfilo Lacson calling for the immediate scheduling of the hearing to clarify De Lima’s memo  on the matter.

During the Arroyo administration, a circular dated Jan. 5, 2009 was issued by the DoJ stating that drug-related respondents under detention shall remain under the police of Philippine Drug Enforcement Agency (PDEA) custody until their cases are resolved by the Secretary of Justice.

“It was strenghtened by Administrative Order No. 253 issued by former President Gloria Arroyo which provided that all decisions of the Secretary of Justice involving dismissal of cases under R.A. 9165 shall be subject to automatic review by the Office of the President. Pending review by the OP (Office of the President), execution of the decision or resolution shall be stayed. This is the reason  the accused in the so-called ‘Alabang Boys’ drugs case were not released even when the case was ordered dismissed by the state  prosecutor.  The prevailing rule was that the suspects shall remain in police/PDEA custody.

“However, in a new department circular issued by De Lima, the policy of keeping arrested persons in drug related cases to remain in the police custody was revised so that these suspects may now be released pending review by the Secretary of Justice,” Sotto said in his speech.

“This change in policy is a blow to our campaign against drug traffickers and violators of R.A. 9165. Such circular, I believe, will make our anti-illegal drugs campaign harder as no drug pusher/trafficker would allow themselves to be re-arrested given their huge resources. Where will we find these suspects when their probable guilt is affirmed by the Secretary of Justice? I therefore call the attention of this chamber to this legal setback to our campaign to eradicate the illegal-drugs trade in our midst. The Secretary of Justice should help us in this regard, not help the accused in illegal-drugs cases,” he added.

The Senate commitee on public order and illegal drugs chaired by Sen. Gregorio Honasan has been tasked to look into the matter.

Emphasis and links provided by Broker Rem Ramirez 0922.883.9308 broker.ramirez@yahoo.com.ph

For bar questions and law subjects reviewers, visit www.onlinereview.com.ph

1987 Constitution: Art 11, Sec 15 - No Prescription only for Civil Cases

Supreme e-Library

The Supreme Court recently affirmed the Office of the Ombudsman’s dismissal of graft and corruption charges under RA 3019, the Anti-Graft and Corrupt Practices Act, against, among others, Senate President Juan Ponce Enrile and Eduardo M. Cojuangco.

In an 11-page decision penned by Justice Roberto Abad, the Supreme Court En Banc, by a vote of six against three, junked the government’s petition. It ruled that Enrile, Cojuangco, and 16 others (Jose R. Eleazar Jr., Jose C. Concepcion, Rolando P. Dela Cuesta, Emmanuel M. Almeda, Hermenegildo C. Zayco, Narciso M. Pineda, Iñaki R. Mendezona, Danilo S. Ursua, Teodoro D. Regala, Victor P. Lazatin, Eleazar B. Reyes, Eduardo U. Escueta, Leo J. Palma, Douglas Lu Ym, Sigfredo Veloso, and Jaime Gandiaga) could no longer be prosecuted on the ground of prescription.

Justices Mariano C. Del Castillo, Lucas P. Bersamin, Martin S. Villarama Jr., Jose Portugal Perez, and Bienvenido L. Reyes concurred with the decision, while Justices Arturo D. Brion, Maria Lourdes P. A. Sereno, and Estela M. Perlas-Bernabe dissented. Acting Chief Justice Antonio T. Carpio, Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo- De Castro, and Diosdado M. Peralta took no part in the proceedings, while Justice Jose Catral Mendoza was on official leave.

The Court held that although Section 15, Article XI of the 1987 Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees is not barred by prescription, laches, or estoppel, the provision only applies to civil actions for recovery of ill-gotten wealth, not criminal cases such as the complaint against the respondents as settled in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.

The Court pointed out that because RA 3019 is a special law, the 10-year prescriptive period should be computed in accordance with Section 2 of Act 3326, which provides, “prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery therof and the institution of the judicial proceedings for its investigation and punishment.” The Court further explained that this provision provides “two rules for determining when the prescriptive period shall begin to run: first, from the day of the commission of the violation of the law, if such commission is known; and second, from its discovery, if not known, and the institution of judicial proceedings for its investigation and punishment.” 

On April 25, 1977, Regala, Lazatin Reyes, Escueta and Palma incorporated United Coconut Oil Mills, Inc. (UNICOM) with an authorized capital stock of P100 million.

On August 29, 1979, the Board of Directors of United Coconut Planters Bank (UCPB) composed of Cojuangco, Enrile, the late Maria Clara L. Lobregat, Eleazar, Concepcion, Dela Cuesta, Almeda, Zayco,   Pineda,  Mendezona,  and  Ursua approved a resolution authorizing UCPB, theAdministrator of the Coconut Industry Investment Fund (CII Fund), “to invest not more than P500 million from the fund in the equity of UNICOM for the benefit of the coconut farmers.”

On September 4, 1979, UNICOM increased its authorized capital stock to 10 million shares without par value to P495 million. This was then approved on September 18, 1979 by the new set of UNICOM directors which included Cojuangco, Enrile Lobregat, Eleazar, Concepcion, Almeda, Mendezona, Regala, Lu Ym, Veloso, and Gandiaga.

About 10 years later or on March 1, 1990, the Office of the Solicitor General (OSG) filed a complaint for violation of Section 3(e) of RA 3019 against the respondents before the Presidential Commission on Good Government (PCGG), alleging that UCPB’s investment in UNICOM was “manifestly and grossly disadvantageous to the government since UNICOM had a capitalization of P5 million and it had no track record of operation.” The PCGG then filed the case before the Office of the Ombudsman in line with the ruling in Cojuangco, Jr. v. Presidential Commission on Good Government, which had disqualified the PCGG from conducting preliminary investigation in the case.

On March 15, 1999, the Office of the Special Prosecutor ruled that while “it found sufficient basis to indict respondents for violation of Section 3(e) of RA 3019, the action has already prescribed.” Subsequently, on May 14, 1999, the Office of the Ombudsman approved the recommendation. After the OSG’s motion for reconsideration was denied by the Ombudsman, the OSG filed the present petition.

The High Court explained that in the prosecution of behest loans, the prescriptive period must be reckoned “from the discovery of such loans.” The reason for this is that the government, as the aggrieved party could not have known that the loans existed when they were made. “They could only have been discovered after the 1986 EDSA Revolution when the people ousted President Marcos from office.” The Court, however, ruled that those circumstances were not present in this case.

“For one thing, what is questioned here is not the grant of behest loans that, by their nature, could be concealed from the public eye by the simple expedient of suppressing their documentations. What is rather involved here is UCPB’s investment in UNICOM, which corporation is allegedly owned by respondent Cojuangco, supposedly a Marcos crony. That investment does not, however, appear to have been withheld from the curious of from those who were minded to know like banks or competing businesses,” the Court held.

The Court noted that there was also no allegation that the Securities of Exchange Commission (SEC) denied the public access to UCPB’s investment in UNICOM during martial law.

It thus concluded that the last day for filing the action “was, at the latest, on February 8, 1990, about four years after martial law ended.” February 8, 1990 is 10 years from the date of registration with the SEC by UNICOM of the paid-up subscription of UCPB.

“Petitioner had known of the investment it now questions for a sufficiently long time yet it let those four years of the remaining period of prescription run its course before bringing the proper action,” the Court held. “Prescription of actions is a valued rule in all civilized states from the beginning of organized society. It is a rule of fairness,” it added.  (G.R. 139930, Republic of the Philippines v. Cojuanco, Enrile et al, June 26, 2012)

Emphasis and links provided by Broker Rem Ramirez 0922.883.9308 broker.ramirez@yahoo.com.ph

For bar questions and law subjects reviewers, visit www.onlinereview.com.ph