Wednesday, August 17, 2016

ABA commission sees need for ‘regulatory innovations’ in legal profession | The Indiana Lawyer

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ABA commission sees need for ‘regulatory innovations’ in legal profession
August 8, 2016 

Finding the need for legal services among the poor and moderate-income greater than legal aid and pro bono can satisfy, an American Bar Association commission is advocating for the consideration of “regulatory innovations” which include non-lawyer ownership of legal service providers.

The ABA Commission on the Future of Legal Services released its findings and suggestions Friday for providing legal assistance to those who cannot afford an attorney. A product of two years of study, the 96-page “Report on the Future of Legal Services in the United States” offered 12 broad recommendations ranging from embracing technology for the delivery of legal services to putting more resources into traditional legal aid and pro bono efforts.

“The legal profession, as the steward of the justice system, has reached an inflection point,” the commission stated in the report. “Without significant change, the profession cannot ensure that the justice system serves everyone and that the rule of law is preserved. Innovation, and even unconventional thinking, is required.

Driving the need for change is the growing numbers of those who do not have access to affordable legal services.

The commission found that most people living in poverty and the majority of moderate-income households do not receive the legal help they need. Largely, these individuals either cannot afford a lawyer or they do not realize their problem requires the help of an attorney. In addition, the traditional business model of law offices constrains innovations that, the commission maintained, would enable greater access to and enhance the delivery of legal services.

Among the recommendations is the call for the continued examination of alternative business structures. In an issues paper released in April 2016, the commission noted these structures typically allow non-lawyers to own law firms, invest in law practices or operate as a multidisciplinary practice which provides both legal and non-legal services.

Reaction to the issues paper was strong and divided.

The ABA Section of Family Law provided a two-sentence response that asked, “WHAT PART OF ‘NO!’ DO YOU NOT UNDERSTAND? We remain unalterably opposed to these repeated, previously failed efforts to foist ABS upon on profession or our ethics.”

Similarly, the Illinois State Bar Association raised concerns about the effect non-lawyers would have on the core values of the legal profession. The ISBA feared the pressure would increase on generating a greater profit which would reduce individualized care while reducing the desire to take on unpopular causes or do pro bono work.

On the other side, LegalZoom and Avvo supported easing regulations.

In a 10-page response, LegalZoom asserted, “It is time to examine the system that lawyers created and practice in, and the self-granted monopoly that lawyers legislate, regulate and adjudicate. If the profession can look past the fear-mongering of entrenched Luddities, and re-look (at) the purpose behind what has become innovation-crushing regulations to address supply, not only will the industry see quantum leaps in legal access, it will see a call for more, not fewer, lawyers!”

The ABA Business Law Section’s Ad Hoc Working Group on the Future of the Delivery of Legal Services applauded the commission for exploring innovation proposals. It also underscored the need to not only provide legal assistance to the public but also to ensure consumers are protected. 

“There is a clear recognition that changes are in the wind and that it would be a disservice to our profession and the public to not provide for a structure for change,” the Ad Hoc Working Group wrote.

The ABA Commission on the Future of Legal Services acknowledged the opposition to alternative business structures. However, it pointed to studies from the United Kingdom and Australia that have shown that these structures have not harmed clients and consumers nor deteriorated lawyers’ ethics or professional independence. 

The commission reiterated that ABS should continue to be explored and, in conjunction, that data should be collected to further assess the risks and benefits.

On a related issue, the commission also advocated for states to explore the increasingly wide array of entities that employ new technologies and internet-based platforms to provide legal services directly to the public. Although conceding these businesses operate without the oversight of courts or judicial regulatory authorities, the commission advised caution and careful study before adopting any new rules.

Greenwood, Indiana, attorney Patrick Olmstead Jr. responded to the issues paper that was submitted on the legal service providers. He maintained that any company offering legal services should be subject to the Rules of Professional Conduct and be liable for professional negligence.

“Although most of my information is anecdotal, I believe that some clients suffer harm because documents with legal consequences are drafted poorly or the documents were not suitable for the client’s situation,” Olmstead wrote. “If a lawyer drafted those documents, the lawyer could be liable for negligence. I would like to see these legal services companies held to the same standard of care as attorneys, and follow the same rules governing lawyers, to protect the public.” 

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Friday, August 12, 2016

Lawyer who reacquires PH citizenship can practice here again | The Manila Times Online

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Section 1, Rule 138 of the Rules of Court provides the necessary criterion for the practice of law in our jurisdiction. It is explicitly stated therein: “Any person heretofore duly admitted as a member of the Bar, or thereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law.”

The foregoing provision speaks of two aspects: first, one’s lawful admission to the Bar; and second, being able to maintain good and regular member standing.

In the situation you have presented, it appears that your fiancé has complied with the first aspect considering that, as you have mentioned, he has already passed the Philippine Law Bar Examinations and has even had the opportunity to practice the profession, although it was only for a brief period as he migrated to the United States of America.

Insofar as the second aspect is concerned, it is essential for him to establish that he has reacquired his Philippine citizenship pursuant to the provisions of Republic Act (RA) 9225 (Citizenship Retention and Re-Acquisition Act of 2003). This is so because a Filipino citizen who lost his citizenship by the acquisition of foreign citizenship also loses the privilege to practice law as Philippine citizenship is a continuing requirement thereto. The only exception is when he reacquires his Philippine citizenship pursuant to RA 9225.

It is further required, however, that he secure first an authority to resume practice of law from the Supreme Court, through the Office of the Bar Confidant. As held by the Supreme Court:

“x x x Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with RA 9225. Although he is also deemed never to have terminated his membership in the Philippine Bar, no automatic right to resume law practice accrues.

x x x Stated otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this court the authority to do so, x x x” (Petition for Leave to Resume Practice of Law, Benjamin Dacanay, Petitioner, B.M. No. 1678, December 17, 2007)

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Death penalty will affect only the poor, says Lagman

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Edcel Lagman, Albay first district representative, believed the death penalty will prove to become merely an anti-poor measure, together with the proposed lowering of the age of criminal accountability.

In his privilege speech on July 27, Wednesday, dubbed by many as Lagman’s “counter-State of the Nation Address (SONA), Lagman said that“The death penalty is anti-poor because indigent and marginalized litigants could not afford the high cost of top caliber and influential lawyers to secure their acquittal.”

Rep. Lagman is among those who call themselves the “authentic and real minority” in Congress supposedly serving as check and balance of the legislative. In his counter-SONA, he aired his misgivings about President Rodrigo Duterte’s priority thrusts, including his proposed federal form of government with a president as head of state.

Lagman cited a few statistics to back up his opposition: “During the campaign for the abolition of the death penalty, it was shown that 73.1 percent of death row inmates belonged to the lowest and lower income classes, and only 0.8 percent came from the upper socio-economic class,” showing the disparity between rich and poor when it came to issuance of a death sentence.

Moreover, Lagman claimed that the death penalty has failed to deter or stop the commission of heinous crimes not just in the country but as experienced in the world, “as validated by worldwide empirical and scientific studies,” he said.

Instead, he opined that “What deters the commission of crimes are certainty of apprehension, speedy prosecution, and inevitable conviction once warranted.”

Death penalty “illegal and unconstitutional,” says human rights lawyers

“Human justice is fallible….Only God can forfeit life. No human authority has the power to kill, even if judicially mandated as a recompense for another lost life,” Lagman further explained.

And Lagman is not alone in this sentiment. Human rights lawyers’ association Free Legal Assistance Group (FLAG) released a statement on how Duterte will violate the constitution as well as international law if he revives the death penalty.

“These actions are illegal and unconstitutional, render our legal system impotent and meaningless, and blatantly violate international law,” FLAG chairman Jose Diokno was quoted by The Manila Times.

He also cited Supreme Court data, saying that 71 percent of the death sentences handed down by the trial courts were actually wrongfully imposed, which meant that 7 out of 10 convicts on death row were handed the wrong conviction. Since they are poor, “they have no voice, no money, no power, and lack the resources to hire good lawyers,” Diokno said.

Diokno suggested instead to establish a better justice system, “not a new one based on the barrel of a gun.”

During the first SONA, Duterte pushed for a major shift to federalism along with radical tax reforms, emergency powers to address the worsening traffic situation, and the extension of passport and driver’s license validity, to name a few.

However, it will be noted that Duterte’s SONA did not touch on the revival of the death penalty or the lowering of the age of criminal accountability. But it is common knowledge, however, that these two measures have been the thrust of Duterte’s PDP Laban Party, particularly his party mates House Speaker Pantaleon Alvarez and Senate President Aquilino Pimentel III.

On lowering the age of criminal liability

Alvarez, Pimentel and other proponents believe that fewer parents will allow their children to be used by crime syndicates if the age of criminal responsibility is lowered from 15 years old to 9 years old. However, Alvarez, having co-authored the bill to lower the age limit, assured that minors involved in crimes and are caught will be rehabilitated instead of being imprisoned with hardened criminals.

However, Lagman refuted this as “retrogression” and no better than the proposed re-imposition of the death penalty. According to the lawmaker,“The correct response is to make the use of children 15 years old and under in criminal activities as an aggravating circumstance which cannot be offset by a mitigating circumstance, and charge parents or guardians with culpable default in due exercise of parental authority and discipline in the rearing of their children.”

In addition, Lagman reminded that Alvarez’s bill actually violates the United Convention on the Rights of a Child and that the Philippines is a signatory to this.

“Lowering the age of culpability to 9 years old is a patent backsliding which is inconsistent with our treaty obligations,” he added.

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Dissenting opinions of SC justices on Arroyo case | Headlines, News, The Philippine Star |

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MANILA, Philippines – Four justices of the Supreme Court of Justice on Tuesday voted against the majority opinion on the plunder case of former president and current Pampanga Rep. Gloria Macapagal-Arroyo.

The four magistrates who dissented against Arroyo include Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Associate Justices Marvic Leonen and Benjamin Caguioa. Sereno, Leonen and Caguioa were appointees of former President Benigno Aquino III while Carpio was an appointee of Arroyo.

The SC en banc voted 11-4 favoring Arroyo’s acquittal due to insufficient evidence in her plunder case over the alleged misuse of P366 million of Philippine Charity Sweepstakes Office (PCSO) intelligence funds. The high court ordered the immediate release of the former president.

On Thursday, the SC Public Information Office released the dissenting opinions of Sereno and Leonen as well as the separate opinion of Associate Justice Estela Perlas-Bernabe who concurred on GR. 220598 (Arroyo vs Sandiganbayan) and dissented on G.R. 220953 (Benigno Aguas case vs Sandiganbayan).

Here's a sum up of their main points.

Chief Justice Maria Lourdes Sereno

Sereno presented five points in her dissenting opinion:

Ponencia completely ignores stark irregularities in the Confidential/Intelligence Fund (CIF) disbursement process and effectively excuses the breach of budget ceilings by the practice of commingling funds

Ponencia retroactively introduces two additional elements in the prosecution of the crime of plunder –identification of a main plunder and personal benefit to him/her which is an effect that is not contemplated in the law nor explicitly required by any jurisprudence

Ponencia denies efficacy to the concept of implied conspiracy that had been carefully laid down in Alvizo versus Sandiganbayan

Ponencia creates an unwarranted certiorari or order to review precedent by completely ignoring the evidentiary effect of formal reports to the Commission on Audit that had been admitted by the trial court

Ponencia has grossly erred in characterizing the prosecution’s evidence as not showing “even the remotest possibility that the CIFs of the PCSO had been diverted to either [Arroyo] or Aguas or Uriarte when petitioner Aguas himself reported to COA that P244 million of nearly P366 million controverted PCSO funds had been diverted to the office of the President

Sereno also noted the following:

There is a conspiracy among Arroyo, Aguas, PCSO General Manager Rosario Uriarte and so there is no grave abuse of discretion committed by the anti-graft court in denying

Testimony of witness Aleta Tolentino had disclosed that there were several irregularities in the CIF requests and disbursements within three years of her term

Conspiracy was sufficiently shown through repeated approvals of Arroyo on the additional CIF requests in the course of three years

Funds final destination if the Office of the President

Arroyo had indispensable role in the scheme of things

Letter of Instruction No. 1282 sheds light on the role of the president when it comes to the expenditure of intelligence of funds 

All request for allocation or release of intelligence funds shall indicate in full detail the specific purposes however it is often left unaware of how these funds had been utilized

Associate Justice Marvic Leonen

Leonen first described Arroyo as intelligent and aware that the power to increase allocation and therefore disbursement of additional confidential and intelligence funds of the PCSO

Majority’s action is premature on the matter considering that what was raised by way of certiorari and not appeal was the denial by the Sandiganbayan of the objection to the evidence and not a judgment by the anti-graft court

Echoes Sereno’s dissenting opinion saying Arroyo had indispensable role to the plunder scheme

Prosecution had presented evidence to show that petitioners Arroyo and Aguas were necessary cogs to a machinery effected to raid public treasurer

Like Sereno, Leonen said the funds were not clearly explained where it went why it was disbursed 

Disbursements were made possible only by repeated acts of approval of Arroyo

PCSO General Manager Uriarte had intimate access with Arroyo and she bypassed layers of supervision over the PCSO

Notes that: “The scheme is plain except to those who refute to see”

Associate Justice Estela Perlas-Bernabe (Dissenting opinion on Aguas)

Sandiganbayan did not commit grave abuse of discretion in denying Aguas objection as his complicity in the scheme appears to be supported by sufficient evidence on record 

Aguas committed several irregularities in discharging function as Budget and accounts manager as he was tasked to audit CIF Liquidation report

Disagrees that the majority on the requirement that the prosecution needs to prove that the accused personally benefited from the amounts amassed or acquired by proof that monies went to plunderer’s bank account

Notes that: “Unfortunately, the majority has imposed a rule which now requires state to submit direct proof of personal benefit for an accused plunderer as well as those who have conspired with him to be convicted”

Majority’s interpretation tends to enervate potency of the plunder law’s office

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Turning a blind eye to extrajudicial killings | Inquirer Opinion

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No one wants President Duterte to fail in his war on drugs and crime, but this is exactly why we must not be afraid to speak what we feel about its dreadful—even if unintended—consequences. We cannot afford to waste the promise of this new administration and the hopes it has raised among our people.

The first consequence is the propagation of a culture of violence: that of people growing accustomed to the idea that killing can solve our problems and bring peace and security to our country. This “gospel of death” is a lie: Throughout history, one unchanging truth is that violence only begets more violence. From here on, extrajudicial killings can only spread to target other “undesirables”—the definition of which is once again left to the powers-that-be. Moreover, criminals will only be emboldened to commit more (and more violent) crimes, since there is no way out for them: either to kill or get killed.

The second consequence is the rise of a police state. Without the due process afforded by warrants of arrest and the right to a trial, we are giving too much power to the authorities to decide what is right or wrong—and worse, who gets to live or die. Can we completely trust the police, and even if we do, can we really entrust them with absolute power, knowing that it “corrupts absolutely”? As Mr. Duterte himself has said, not all policemen are clean—in fact, some generals are corrupt—and so the idea that policemen can take justice in their own hands should be unnerving, if not downright repulsive.

But the immediate and most riveting consequence, which is already happening now, is the victimization of innocent lives: of sleeping youths who would never see the light of day; of men and women in the act of surrender; of people whose only crime is to share a name with a drug pusher, or be at the wrong place at the wrong time. Someday, a generation more civilized than us will look back at the victims’ stories and images as proof of our callousness and indict us for a failure of empathy: a failure that will undermine all our triumphs.

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Insurance commish requires HMOs to set minimum capital

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MANILA - The Insurance Commission has signed an order that would mandate all health maintenance organizations (HMOs) to set a minimum capital to ensure that health care providers are paid for their services and customers' needs are met.

Insurance Commissioner Emmanuel Dooc has signed circular letter no. 2016-41 that mandates all existing HMOs to have a minimuim paid-up capital of at least P10 million in 15 days after release of the circular.

The circular also required newly set-up HMOs to have paid-up capital of at least P100 million, while community-based and cooperative HMOs shall maintain a paid-up capital equivalent to 50 percent of what is prescribed for regular HMOs. 

Dooc said the commission deemed it sufficient for new entrants to have P100 million in capital. But while existing companies do not have such requirement, the IC will still require them to hike their capital based on the business that they have churned in the previous year, such that capital should correspond to the amount of risks that they take.

Insurance Commissioner Dooc said, "we want to make sure that every HMO company can service its obligations. Once they receive medical services, then the providers will be duly paid."

The IC said the move was in part suggested by an industry group, the Association of Health Maintenance Organizations of the Philippines, following reports of fly-by-night HMOs that preyed on unsuspecting customers without giving them the promised service.

AHMOPI officials declined to comment as of press time.

There are currently 29 HMOs in the country. Supervision over them was transferred to the IC in January from the Department of Health through an executive order signed by former President Benigno Aquino III.

Prior to the transfer of supervision to the IC, Dooc noted, there was no proper financial examination of such companies.

Without naming specific companies, he said some HMOs are better capitalized compared to other insurance companies with more than P500 million in paid-up capital, while there is at least one HMO with a negative net worth.

In the absence of a law that governs the operations of HMOs and protects the rights of its customers, he said the IC has to step in.

"We welcome the enactment of a pertinent law that will effectively govern the HMO industry similar to the Insurance Code for the insurance industry. But I know that it will take time to achieve that. Meanwhile, we cannot leave the industry without any effective regulatory guidelines. So we're stepping in to address that," Dooc said.

"We step in because there's no HMO code or law, so we're trying to fill the gap."

Meanwhile, Dooc said around 80 percent of insurance firms have already complied with the commission's higher capital capital requirement.

Based on their business plans submitted to the IC, insurance firms offer additional stocks, infuse additional cash, merge, or partner with foreign investors in order to raise funds for the required capital, Dooc said.

The IC earlier ordered insurers to raise their paid-up capital to P550 million by year-end from the current minimum of P250 million.

He said the ICs talking to individual insurance companies who have yet to raise funds.

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BusinessWorld | Why the Philippines’ new war on drug users will fail

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RIGHT NOW, just as much of the world moves away from the “war on drugs,” the Philippines has launched headlong into a new and bloody pursuit. President Rodrigo Duterte has unleashed the police and encouraged vigilantism to “kill” drug users, dealers and others falling afoul of his “war” on crime. Hundreds have been killed. Tens of thousands of consumers have surrendered to police despite a complete absence of social or “treatment” infrastructure to absorb them.

Beneath the storm of violence and death lies an ugly historical rhythm -- an ever-present societal tendency towards cleansing unwanted groups, and political leaders enabling and fuelling it. Regardless of the motives, however, lies another historical rhythm, the failures of the so-called “war on drugs.” History and economics from around the globe highlight a policy certainty: the Philippines’ new “war” will fail and society will emerge worse off from it.

The global “war on drugs,” now so widely discredited, had some of its origins in US colonialism in the Philippines. At the end of the Spanish-American war in 1898 the US gained control of the islands. Having, since the late 19th century, adopted a moralistic and reactionary view to non-medical opium consumption, the new US administration faced a conundrum -- what to do with the legalized sale of smoking opium there? Some argued that swift prohibitions would spark a large illicit market and undermine governance. Others argued that the US had a moral obligation to end the practice and forcibly detox all existing consumers. The latter position won out. The US instituted a policy of strict prohibition, except for “medical and scientific” use.

The nascent US empire, now looking beyond the shores of the Americas, soon saw the existence of legalized opium consumption in Europe’s Asian colonies as both a moral repugnance and a threat to prohibition in the Philippines. Adopting a “supply-centric” view the US argued that all nations needed to suppress the trade in order for one nation to do so. It held the Philippines up as a poster child and began global efforts to international its prohibitionist approach.

Other factors underpinned the US strategy. China, in the midst of imperial collapse of the Qing dynasty, blamed opium for much of its internal malaise. The US, at the same time as cracking down on Chinese immigration, saw a way to ingratiate itself to the Chinese state and lessen European influence there. Both nations teamed up to internationalize restrictions on the global opium trade and the Global Opium Commission met in Shanghai in 1909. There began what historian William McAllister calls “a limited enterprise” of global drug control. International conventions, albeit complex and often Swiss cheese-like, were signed over the coming decades. Meanwhile, bilateral diplomatic pressures from the US resulted in the final globalization of the “war on drugs” in the 1970s.

The strategy persisted through the 2000s until states in Latin America, which had paid such a heavy burden for the war, and states within the United States, began to reject the strategy. Europe, which had generally never really subscribed to the vision of the “war on drugs,” was happy to watch it unravel under its own weight. Now, as the UN passes beyond the UN General Assembly Special Session (UNGASS) in 2016, we at LSE IDEAS refer to the emergence of a “postwar on drugs era.” This era is one characterized by the emergence of a wave of more liberal policies throughout the Americas and Europe -- most notably cannabis legalization, but also a tidal shift towards public health approaches and an attempt to drive back from the disaster of mass incarceration in the US.

Others, under this era of “policy pluralism,” seem certain to maintain a “war” on users. Russia rejects anything resembling science or public health and has developed a self-inflicted HIV and Hepatitis epidemic as a result. Many Southeast Asian nations also maintain the war’s efficacy. Some are defecting, however, most notably Thailand, experiencing the pointless ravages of mass incarceration, is looking to decriminalize consumers in a smarter new approach. This highlights the central hope for a new era based on policy pluralism and experimentation: that evidence and rationality will win out over fear and xenophobia. Just as Europe and the US witnesses demagogues pushing for closed borders and a fear of the “other,” so too Asia is witnessing the easy vilification of an internal “other” -- the drug user.

The Philippines will fail in its endeavor for many reasons which are well researched and understood. First, one cannot solve a public health issue through repression and criminalization. It forces consumers into dangerous situations and increases risky practices. Expect higher levels of HIV, Hepatitis C, and other costly and avoidable illness in the aftermath of this war. When forced to hide their usage practices people do irrational things, such as sharing syringes and consuming in dangerous environments.

Second, decades of experience of managing illegal drug markets around the world highlights one simple fact, they cannot be eradicated through repression. They can be displaced. They can be made more or less violent and corrupting. But they cannot be eradicated. Attempts to destroy them through bloodletting, as the recent Mexican case has highlighted, merely causes power vacuums, temporary changes in supply practices, but ultimately a return to market normalcy once the bloodletting ends. In other words, war with the economics of the drugs market is futile. Once a market is established, as it clearly is in the Philippines, demand creates supply.

The most that enforcement can do is tinker at the margins.

In the meantime the country will witness a complete erosion of the basic necessities of a functioning polity and economy -- stability, rule of law, and a minimization of corruption. While each of these may have been in short supply prior to this new war, the latter will certainly exacerbate rather than improve existing problems. Countries emerging from internal conflict take decades to heal. The notion that creating an artificial one will in some way heal internal divisions and problems is a fallacy.

We know from a century of experience what doesn’t work in drug policy. A “war on drugs” is a globally discredited strategy. Although we have strong evidence around what works on the demand side -- public health, harm reduction, and access to treatment services -- we are less certain about proactive strategies for managing the supply side under prohibition. We will surely learn much from experiments with marijuana legalization and new sustainable development oriented approaches to production and transit. However, what we can say with broad certainty from lessons from every corner of the globe is that the Philippines new war will not work and will prove destructive to the legal, political, and socioeconomic fabric of their nation. It should stop.

Author - 
Dr. John Collins is the Executive Director, LSE IDEAS International Drug Policy Project of The London School of Economics and Political Science (LSE).

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The First Amendment to the US Constitution

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The US Constitution grants enumerated powers to the central government. The drafters believed enumerating the powers limited the government. This was the argument Federalists made based upon an accepted rule for interpreting legal documents: Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). With that principle in mind, the government could not exercise power over any subject not listed in Article I, Sec. 8.

The Anti-Federalists did not wish to leave protection of inalienable natural rights protected by a legal maxim. During the debates over ratification of the Constitution, they expressed concern about the lack of specified limits. These concerns resulted in the first ten amendments, the Bill of Rights, to specify areas outside federal authority and define citizen rights in other areas. The First Amendment restricts federal action in the areas of religion, speech, and press.[1] The First Amendment restricts government action interfering with speech. It does not affect the actions of private organizations in keeping with a First Amendment principle of freedom of association.

The First Amendment to the US Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment does not grant rights, but rather says “Congress shall make no law…” restricting government interference with certain rights. This is consistent with the philosophy of the Declaration of Independence that government does not grant natural, inalienable rights, but rather government is formed to protect those rights.

Freedom of Religion

Many colonists came to America to escape religious persecution in England and elsewhere. The First Amendment has two clauses arising from that experience, The Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the central government from officially sanctioning a specific religion. The Free Exercise Clause prohibits the central government from interfering with the practice of religion.[2]

This makes the United States different from many nations around the globe. There is an official religion in England (Anglican). Many countries are founded upon a specific religion (Muslim theocracy). There remain communist countries such as China and Cuba, where the practice of religion in any form is severely restricted.

Thomas Jefferson recognized the importance of America’s religious freedom this way:

“among the inestimable of our blessings, also, is that …of liberty to worship our Creator in the way we think most agreeable to His will; …”

The term “religious liberty” embraces the overall First Amendment religion concepts. Religious liberty is more than going to the church of your choice. It is the right to live your life in a way consistent with your moral code without government interference.

Freedom of Speech

The First Amendment’s Free Speech Clause prohibits Congress from limiting the manner in which individuals express themselves. This not only applies to written and spoken words, but also to symbolic expressions such as art and music. Free speech includes demonstrative expressions of ideas such as symbolic armbands to protest a war or burning the US flag as a form of political protest.

Freedom of speech is not without its limitations. While Congress may not limit speech when it comes to expressing political thoughts and ideas, the First Amendment does not constitutionally protect all speech.

The best example of unprotected speech is falsely yelling “fire” in a crowded theater. There can be government sanctions for false speech defined as defamation or libel. Generally, the government may not restrict speech that is either truthful or expresses an opinion.

Freedom of the Press

When the Bill of Rights was ratified, the press was newspaper and books. This was the case for nearly 100 years until electronic communications became accessible to the general population. The adaptation of freedom of the press as communications media grew in form demonstrates how 200-year-old constitutional principles apply to a changed world.

First Amendment principles cover radio, television and the internet. This has not been without ongoing struggles. Even today, concepts like the “Fairness Doctrine” remain in debate about government control of electronic communications media. Proposals in Congress concerning internet regulation[3] are pending that bring technological innovation into conflict with Free Speech principles.

The First Amendment’s Free Press Clause has given rise to important concepts including a reporter’s privilege to protect his sources, and limits on government regulating information prior to its publication, banning “prior restraint”.

Freedom of Assembly

The government may not limit people from gathering to conduct peaceable meetings for any lawful purpose. The Supreme Court has held that there may be reasonable restrictions as to “time, place and manner” regarding such meetings, such as permits or fees as long as such restrictions do not act to actually prohibit a gathering. This is the freedom to peaceably assemble.

Among the complaints listed in the Declaration of Independence was the manner in which King George responded to colonial grievances:

“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

Drafters of the First Amendment had this experience in mind in placing the freedom to petition the government for redress of grievances as the final protection in the First Amendment. Largely ignored, this Americans have allowed this guarantee to become vestigial, something that should not happen to any word of the Constitution.

Freedom of Expression

Taken together, the First Amendment’s limits on government action provide Americans with the most liberal Freedom of Expression anywhere in the world. This freedom is written into the Constitution, but the roots are inNatural Law, the legal basis the Founders looked to for establishing the United States.

[1] The Bill of Rights placed limits on federal authority. Note Amendment I begins “Congress shall make no law…” The Supreme Court has interpreted the Fourteenth Amendment to extend much of the Bill of Rights to actions by state governments as well.

[2] There had been a history of support for specific religions by colonial and state governments. Hence, the First Amendment restrictions referred only to actions by the national Congress.

[3] The ease of copying and republishing materials protected by copyright has given rise to proposals such as theStop Online Piracy Act (SOPA) and Protect IP Act (PIPA). While having the goal of protecting copyright owners, opposition is based upon interference with First Amendment principles.

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Duterte says his old age can help him avoid jail | Headlines, News, The Philippine Star |

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Old age may be a disadvantage to some but for President Rodrigo Duterte, it is a means to avoid imprisonment.

The tough-talking Duterte said that under the law, prisoners who are 70 years old or above should be released.

“I don’t care about human rights. I said I have a problem to solve. I must first solve the problems of the country. I am already 71 years old and according to the Revised Penal Code, you have to be released once you reach 70,” the president said.

“If I order the killing of someone, you cannot arrest me. I have immunity. I have this pardoning power and if I order you to carry it out, I will pardon you,” he added.

Duterte said he would be 77 by the time he steps down.

“After the end of my term, I’ll be 77. Where will you place me?” the chief executive said.

“Wala silang laban. (They cannot use anything against me).”

Under the Revised Penal Code, one of the circumstances that may mitigate criminal liability is when the offender is under 18 years of age or over 70 years. The same law states that any convict who is not a habitual criminal, shall be pardoned at the age of 70 if he shall have already served out his original sentence, or when he shall complete it after reaching the said age unless his conduct makes him unworthy of clemency.

Duterte has promised to kill drug lords, saying they no longer deserve to live for destroying the country and the youth.

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Sereno still lauded the President for his zeal in cleaning the judiciary but reminded Duterte to follow constitutional order.

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Sereno to judges: Don’t surrender to cops sans arrest warrant

Chief Justice Maria Lourdes Sereno cautioned the judges identified by President Rodrigo Duterte as those with links to the illegal drug trade not to surrender to any police officers in the absence of a warrant of arrest.

In her letter to Duterte, she asked the source and basis of any allegation against the seven judges.

"We abhor its ability to even destroy public institutions, thus our proactive investigation of any report that judges and court personnel abet drug trade," Sereno said.

However, she said "a premature announcement of an informal investigation on allegation of involvement with the drug trade will have the unwarranted effect of rendering the judge veritably useless in discharging his adjudicative role."

"Thus, this Court has been careful, all too aware that more often than not, a good reputation is the primary badge of credibility and the only legacy that many of our judges can leave behind," she said.

The Chief Justice added that Duterte's announcement may have endangered the lives of the six judges given the extrajudicial killings of those suspected to be involved in the narcotics trade.

"Our judges may have been rendered vulnerable and veritable targets for any of those persons and groups who may consider judges as acceptable collateral damage in the 'war on drugs,'" Sereno said as she noted that many judges have been assassinated since 1999, a large portion of whom was upon the orders of crime lords, more specifically drug lords.

She also urged Duterte to allow the judges to carry defensive firearms "because we do not have the personnel to protect our judges."

"We request that you reconsider your reported order that the judges you named, with the above clarification on who these are, continue to bear these licensed self-defense weapons, if any, until a proper investigation concludes that formal criminal charges should be brought against them," Sereno said.

Sereno said the high court has an administrative mechanism in investigating, suspending or disciplining judges.

In fact, she said they are currently investigating a judge with links to illegal drugs.

"We are currently investigating a report on a judge who may be so involved. He is not on the list [you have mentioned]," Sereno said.

Sereno, in her letter described each of the judges that Duterte has identified:

Judge Lorenda Mupas was dismissed in 2007 as Municipal Trial Court Judge of Dasmariñas, Cavite for gross ignorance of the law.

"We request that her dishonorable discharge be duly considered and that she be not referred to as part of the judiciary as of nine years ago," Sereno said.

Judge Roberto Navidad, formerly of the Calbayog City, Samar Regional Trial Court was killed on Jan. 14, 2008 at age 69.

Judge Rene Gonzales, formerly of the Municipal Trial Court in Cities (MTCC) Branch 7, Iloilo City compulsorily retired last June 20, 2016.

Judge Exequil Dagala of the MTC, Dapa-Socorro, Surigao, does not have jurisdiction over drugs cases, the same way that Judge Gonzales does not.

"It would be very helpful if the investigators who included the names of Judges Dagala and Gonzales inform the Court how these MTC judges can be considered as influencing the drug trade," Sereno said.

Judge Adriano Savillo, RTC, Branch 30, Iloilo City is a family court judge who does not have jurisdiction over drugs cases except in cases where a minor is a respondent.

Judge Domingo Casiple, RTC, Branch 7, Kalibo, Aklan is the judge of a court of general jurisdiction without jurisdiction over drugs cases, that is, until our recent decision to make all RTCs as drugs courts is implemented with the appropriate administrative circular.

"It would be helpful to know the specifics on how judges without jurisdiction over drugs cases influence the drug trade in their localities," Sereno said.

* Judge Antonio Reyes, RTC, Branch 61, Baguio City, Benguet presides over the designated drugs court in that multi-sala court.

Sereno admitted that they were caught unprepared by Duterte's announcement.

"As it appears now, the announcement of the names of some judges is expected to cause problems with the scheduled hearings and conferences in their salas," Sereno said.

Sereno still lauded the President for his zeal in cleaning the judiciary but reminded Duterte to follow constitutional order.

"It would matter greatly to our sense of constitutional order, if we were given the chance to administer the appropriate preventive measures without the complications of a premature public announcement," Sereno said. RAM/rga

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PDIC files syndicated estafa raps vs. top Banco Filipino execs, 31 others

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MANILA - The Philippine Deposit Insurance Corporation (PDIC) has filed with the Department of Justice a criminal complaint for syndicated estafa against the former directors, officers, employees and consultants of the closed Banco Filipino Savings and Mortgage Bank, estimating losses to the bank at P669.6 million.

The complaint is scheduled for setting of initial hearing by the DOJ Task Force on Financial Fraud. Banco Filipino is a 62-unit bank ordered closed by the Monetary Board and placed under receivership of the PDIC on March 17, 2011.

Charged with committing syndicated estafa in violation of Presidential Decree No. 1689 (1980) were Albert C. Aguirre (former Vice Chairman), Teodoro O. Arcenas (former Chairman and President), and 31 other former officers, employees and consultants of Banco Filipino.

Funds misused for overseas travels

In its Complaint-Affidavit, PDIC alleged that the respondents, with abuse of confidence as bank directors/officers, conspired and misappropriated Banco Filipino funds solicited from the depositing public approximating P669.6 million to pay for their travels abroad from January 2000 to July 2003. The syndicated estafa led to bank losses. Even after the bank was ordered closed on March 17, 2011, respondents failed to return the amount.

Banco Filipino, which started operations in 1964, was first ordered closed in January 1985. It was in 1991 when the Supreme Court ordered its re-opening and three years later, Banco Filipino resumed operations under the comptrollership of the Bangko Sentral ng Pilipinas (BSP), in compliance with the Supreme Court order.

Due to the Bank’s good financial health, BSP’s comptrollership of the Bank was lifted in January 2000. PDIC alleged that based on investigation, the crime of syndicated estafa was committed after BSP’s comptrollership was lifted. With a net loss of P1.778 billion and a net asset decline of almost 50% for a three-year period since 2000, Banco Filipino was again placed under BSP comptrollership.

In 2011 when the Monetary Board ordered the bank’s closure again, PDIC discovered several anomalous expenditures incurred by the Bank starting 2000 until July 2003 representing travel expenses of the Bank’s directors, officers, consultants, and employees in the total amount of P669.6 million. Of this amount, P621.2 million was unliquidated.

Another amount of P48.4 million was spent for the activities of Los Tamaraos Polo and Equestrian Center, Inc., an affiliate company of respondent Aguirre, and sponsorship of a tournament in London, England as well as personal expenses such as clothing, toiletries, perfume and accessories, groceries, freight services, vehicle repair and maintenance, license registration, drugstore purchases, and medical fees. The respondents justified that their travel expenses were incurred to prepare for Banco Filipino’s operations as a universal bank, conduct image build-up activities, expand contacts, and explore unspecified business opportunities. Upon investigation, the expenses were found to be not at all related to the business of the Bank.

Syndicated estafa is a non-bailable criminal offense punishable by life imprisonment.

PDIC had earlier filed criminal complaints against former directors, officers and employees of Banco Filipino for conducting business in an unsafe and unsound manner, in violation of the PDIC Charter. The filing of charges is in support of its efforts to bring to justice parties who engage in acts that will put depositors and the Deposit Insurance Fund (DIF) at risk, PDIC said.

The PDIC added that it continues to pursue legal actions against bank officials and personnel who engage in unscrupulous banking practices that pose grave threats to the stability of the country’s banking system. The PDIC is mandated to generate, preserve, maintain faith and confidence in the country’s banking system, and protect it from illegal schemes and machinations.

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Rising death squad killings alarm UN | Inquirer Opinion

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CANBERRA―The United Nations has warned that it was “greatly concerned” with the rise in extrajudicial killings of suspected drug pushers and users in the Philippines.

In the strongest yet warning issued by the United Nations condemning President Duterte’s murderous campaign against drug lords in the country, the executive director of the UN Office on Drugs and Crime (UNODC), Yury Fedotov, said that he shared UN Secretary General Ban Ki-moon’s condemnation of the summary killings.

“I join the United Nations secretary general in condemning the apparent endorsement of extrajudicial killing, which is illegal and a breach of fundamental and a breach of rights and freedom,” Fedotov said. The rise of drug-related killings “contravenes the provisions of the international drug control conventions” and “do not serve the cause of justice,” he added.

Fedotov also reminded Mr. Duterte that during a special meeting of the UN General Assembly on the drug problem, governments committed to “ensuring that all people can live in health, dignity and peace, with security and prosperity.”

He said his office would back the Philippines in bringing drug traffickers to justice but it should be grounded on international conventions and agreements.

People-centered evidence

Fedotov also voiced support for “balanced, people-centered evidence and rights-based approaches to drug control.”

He said, “UNODC stands ready to further engage with the Philippines and all countries in bringing drug traffickers to justice with the appropriate legal safeguards in line with international standards and norms and prevention, treatment, rehabilitation, reintegration approaches based on evidence, science, public health and human rights.”

The UNODC issued the statement after the International Drug Policy Consortium, a network of nongovernment organizations, asked UN drug control agencies to condemn the rise of drug-related killings in the Philippines.

According to the Philippine National Police, 316 drug suspects had been killed by police nationwide from July 1 to 27―or a daily average of 11 drug suspects killed daily.

No response, which keeps a list of casualties of Duterte’s war against drugs through its “Kill List,” has recorded 465 killings from June 30, the date when Mr. Duterte took office, to Aug. 1 (the bloodiest period of the Duterte administration).

This carnage took place in the wake of the UN condemnation of the rise of extrajudicial executions and the call of international organizations for a halt of the executions, indicating that the calls were falling on deaf ears. There is no sign that Mr. Duterte would respond to the calls.

In a speech on Thursday, the President acknowledged abuses in the war on drugs but is not backing down from a shoot-to-kill order for drug dealers.

He explained that most drug dealers and addicts slain in gun battles with police had put up a fight, but he was sure some were “salvaged”―a local term for extrajudicial killings usually by law enforcers.

No investigation yet

In the case of illegal killings, Duterte said the government would investigate. No such investigation has been conducted so far.

Instead, he said on Friday that he gave “shoot-to-kill” orders against drug dealers, including politicians involved in the illicit trade.

The order alarmed human rights activists who denounced it as “at least legally questionable,” as an attempt to whitewash law enforcement agents’ involvement in the killings, or to look for scapegoats in the witch-hunt for those responsible for the summary killings.

The President has remained unperturbed over these developments and evasive. He did not say whether the order applied to the Davao Death Squad, a vigilante group allegedly associated with Duterte’s campaign to wipe out criminals and the drugs traffic during his term as Davao City mayor for 23 years.

Protect human rights

The Duterte administration has come under increasing pressure from international institutions outraged by the rising death toll of the war on drugs and its impact on human rights and on the stability of the rule of law in Philippine democracy.

These concerns were raised by US Secretary of State John Kerry during meetings with Philippine officials last month. In his meetings with President Duterte and Foreign Secretary Perfecto Yasay, Kerry was reported to have mentioned the need to protect civil and human rights during talks on a wide range of issues.

Before meeting with the President, Kerry held a joint press conference with Yasay and spoke of the need to protect human rights even as authorities seek to uphold peace and order.

“I made very clear that civil and human rights need to be protected even as we try to keep our society safe,” Kerry said.

‘Broader agenda’

He said he reminded the Duterte administration of the importance of respecting human rights, calling it a part of the “broader agenda” of his Manila trip, where law enforcement and trade were discussed alongside the centerpiece issue of security and the unresolved maritime disputes in the South China Sea.

The visit took place amid Duterte’s stepped up war on crime and illegal drugs and the killing of hundreds of drug suspects, either through alleged shoot-outs with police or summary executions by motorcycle-driving masked men.

The President has vowed to wage a relentless campaign against illegal drugs, but he also warned human rights groups not to get in the way―a warning that has sent them fearing that they could be the next victims of rampage of the death squads, as the toll from body count mounts.

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MEL STA. MARIA | Burying Marcos at the Libingan ng Mga Bayani violates the law

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The online news portal of TV5

The late President Ferdinand Marcos cannot be buried at the "Libingan ng mga Bayani." The law prohibits it. 

Section 1 of Republic Act No. 289, otherwise known as "An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country" is quite clear in its purpose – to "perpetuate the memory of all Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn."

The spirit of the law is self-evident. The sacred place is the burial ground for honorable men and women only - as signified by the phrase: "for the inspiration and emulation of this generation and of generations still unborn".

There is nothing inspirational or emulatory – meaning, worth-imitating – with respect to the dictatorship of President Ferdinand Marcos. The Marcos regime was one of the darkest periods in Philippine history. No less than a law, Republic Act No. 10368, acknowledged this. It stated:

" ... it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.

"Similarly, it is the obligation of the State to acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights."

Moreover, Executive Order No. 1 of the late President Corazon Aquino created the Presidential Commission on Good Government (PCGG). Its main mission is 

the recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship.

Presently, about P170 billion of ill-gotten wealth (assets, monies, and properties) had already been recovered by the PCGG. And the PCGG is still trying to recover millions, if not billions, more. This theft can be considered the grandest larceny in Philippine history. Only plunderers will find this inspirational and worth-emulating. Surely, this cannot be the "memory" of a president sought to be "perpetuated" by Republic Act No. 289. 

Neither can these acts be considered as achievements of a national hero or a patriot. And, even if former President Ferdinand Marcos were a soldier, his exploits and alleged medals were dubious in their authenticity as asserted by the National Historical Commission of the Philippines (NHCP). 

Also, while the law provides that it is to perpetuate the memory of "all presidents" and that "all presidents" shall be interred therein, the word "all" should not be construed as unconditional or unqualified so as to actualize an absurd application of the law, mock its noble purpose, and create injustice. In the words of the Supreme Court "the spirit of the law controls its letter" (US vs. Go Chico G.R. No. 4963 September15, 1909) such that "a thing which is within the letter of the law is not within the statute unless it is within the intention of the lawmaker." (ibid) A dishonorable and corrupt president cannot be within the noble intent of Republic Act No. 289. 

And even if the law provides that it "shall be the burial place of their mortal remains", the Supreme Court has already ruled that, the word "shall" – ordinarily meaning a command – will depart from its mandatory character and will be construed as "permissive when no public benefit or private right requires that it be given an imperative meaning." (Diokno vs. RFC 91 Phil. 608) 

Surely, the members of the Marcos family do not have any private right on the "Libingan ng mga Bayani". The place is not privately owned by them. Also, no public benefit can be derived in the burial as allowing the same will contravene the law’s noble intent. Indeed, the non-mandatory requirement of burying presidents at the "Libingan ng mga Bayani" is evidenced by its very usage since it took effect in 1948. The late Presidents Manuel L. Quezon, Sergio Osmeña, Ramon Magsaysay and Manuel Roxas were not buried there. 

Some ask why should the Filipinos not just move on and simply allow the burial of former President Ferdinand Marcos at the "Libingan ng mga Bayani"? As I have said many times, it is not just a matter of simply forgetting a by-gone-Marcos-era. Neither is it a simple interment. It is about lessons from the dark side of our history initiated by that President, learning from it and not standing idly-by to let others, repeat what he did. 

To honor him, despite the recovery of billions of ill-gotten wealth (which is still on-going) and in spite of the unequivocal public-policy-recognition of the savagery of his regime against his own countrymen/women, is to render absurd Republic Act Number 289 and desecrate the "Libingan ng mga Bayani." 

One cannot force respect and honor. It must be earned through genuine service and sacrifice for others. Burying the former dictator Ferdinand Marcos at the "Libingan ng mga Bayani" will not revise history. It will not undo what has been done. But there is still meaning in not allowing his burial there – and that meaning is the preservation of our dignity as free-loving people – that we will not anymore be subjected to the cruelty and greed of a despotic president. 

And if erasing the memory of one of the darkest periods in our history after World War II is what the proponents of this burial is hoping to achieve, then the right thing to do is for them to acknowledge the atrocities that happened during the Martial-Law years. Then perhaps healing can start and some will finally have closure. No, they cannot just bury former President Ferdinand Marcos at the "Libingan ng mga Bayani" and hope that the memories of his oppressive regime would be buried with him.

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RIGHTS GROUPS Cry Foul at Killings as Philippine ANTI-DRUG War Escalates ~ Morgan Magazine

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The number of suspected drug users, dealers and bosses being killed by police and unidentified armed groups in the Philippines has been increasing almost day by day ever since newly elected President Rodrigo Duterte took office at the end of June after winning election this May. Concerned human rights watchdogs can no longer stand for the hundreds of reported dead and have begun speaking out.

TIME reports that about 500 civil-society and human-rights groups have put their signatures to several joint letters addressed to the United Nations Office on Drugs and Crime, the International Narcotics Control Board, Human Rights Watch and other relevant agencies regarding President Duterte and his “war” to eradicate drugs and those dealing in them, as part of efforts to stamp out crime and corruption in the country. But many observers are starting to feel that his administration’s methods are starting to go into overkill.

Ann Fordham, executive director of the International Drug Policy Consortium, has called on the UN and its relevant drug-control bodiesto censure the drug-related killings occurring in the Philippines.

As she tells The Guardian, “This senseless killing cannot be justified as a drug control measure. Their silence is unacceptable, while people are being killed on the streets day after day.”

Duterte has come under fire from rights groups, lawyers and the country’sreligious institutions after he publicly urged civilians to participate in the anti-drug efforts by personally shooting and killing suspected “pushers”in their own neighborhoods, especially if these people attempt to fight back or resist arrest through violent means. In June before assuming office, he gave such a speech to the amount of inciting Filipino citizens to “Call us, the police, or do it yourself if you have the gun — you have my support. You can kill him. Shoot him and I’ll give you a medal.”

Exact figures of how many people suspected to be involved in drugs have been killed “resisting arrest” or “attempting to escape custody” vary, from approximately 500 to 700 due to extrajudicial kills not always being reported at once. Some 2,700 others have been arrested related to illegaldrug activity, many turning themselves in to authorities, in their own words, to avoid being shot dead in a confrontation.

Not everyone in the Duterte government is happy though. Senator Leila de Lima, former Secretary of Justice and Commission on Human Rights chair from the previous two administrations, has called out Duterte’s measures for flagrantly flouting due process and human rights, as well as encouraging vigilante justice. The President himself remains unmoved by criticisms from relatives of slain suspects, instead using the deaths of their family members as a stern warning to other drug suspects of their possible fate.

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