Monday, October 31, 2016

Duterte wrong on China non-invasion – Carpio | Opinion, News, The Philippine Star |

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President Rodrigo Duterte misstated in Beijing that China never has invaded any part of Philippine territory. This was pointed out last week by Supreme Court Senior Justice Antonio Carpio. For, China did grab Scarborough Shoal in 2012.

Expert in international law, Carpio called on the government immediately to correct Duterte’s history lapse, lest it be taken against the Philippines. The jurist extensively has researched the South China Sea dispute, and was among those who brought the Philippine case for UN arbitration. The UN court has rubbished China’s alleged right to occupy Scarborough, off the coast of Luzon and well outside China’s territorial or economic zone waters.

Following is Carpio’s lament:

“President Duterte is quoted in the Channel News Asia’s article, “Philippines’ Duterte Praises China on Beijing Visit,” posted in its website on 19 October 2016. The statements of President Duterte as quoted in the article must be corrected to avoid serious damage to the Philippines.

“In referring to China’s relation with the Philippines, President Duterte is quoted in the article as saying: ‘It (China) has never invaded a piece of my country all these generations.’ This is incorrect. In 2012 China physically seized and in effect invaded Scarborough Shoal, which is defined as Philippine Territory under Republic Act No. 9522 (Amended Definitions of the Archipelagic Baseline of the Philippines). RA 9522 states that the Philippines has ‘sovereignty and jurisdiction’ over Scarborough Shoal. In 1995 China seized from the Philippines Mischief Reef, which is part of the submerged continental shelf of the Philippines as affirmed by the Tribunal’s Final Award of July 12, 2016.

“All ancient maps of the Chinese dynasties show Hainan Island as the southernmost territory of China. There is no ancient Chinese map showing Scarborough Shoal or the Spratlys as part of Chinese territory. Ancient maps of the Philippines show that Scarborough Shoal has been Philippine territory since 1636, and the Spratlys were part of the Philippines since at least 1690. On 29 September 1932, China officially declared to the world, in a Note Verbale to France, that China’s southernmost territory were the Paracels, moving a little further south its southernmost border. Even then, it meant that Chinese territory never included Scarborough Shoal or the Spratlys.

“Regarding the Tribunal’s Final Award, President Duterte is quoted in the article as saying: ‘The arbitral award gives us the right; China has the historical right.’That is incorrect. The UNCLOS Tribunal at The Hague concluded: ‘The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and nonliving resources of the waters of the South China Sea, whatever use it may historically have made of the Spratlys Islands themselves.’ The Tribunal explained that China’s uses in the past of the South China Sea beyond its territorial seas, through fishing by Chinese fishermen and sailing by its merchant ships and navy, were uses of high seas freedom, just like the uses of the South China Sea by other states. The South China Sea was never exclusively used by China, in the past or now.

“These statements by President Duterte must be corrected lest China claim, quoting him, that Scarborough Shoal is not Philippine territory and that the Philippines recognizes China’s historic rights to the South China Sea, a claim the Philippine government already successfully refuted as false before the Hague Tribunal. Under international law, unilateral statements of a head of state can bind the state and can be taken against such state in an arbitration between such state and another disputant state; thus the need for the government to issue immediately a correction, lest these statements of President Duterte bind the Philippines.”

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Constitution of the Philippines

The Constitution of the Philippines (Filipino: Saligang Batas ng Pilipinas), popularly known as the 1987 Constitution, is the constitution or the supreme law of the Republic of the Philippines. It was enacted in 1987, during the administration of President Corazon C. Aquino.

The Constitution at its Margins | Dean Marvic MVF Leonen

8th UP Law Centennial Lecture by Dean Marvic M V F Leonen entitled, "The Constitution at its Margins: Postcolonial Issues and the Flexibilities of Legal Metanarratives".

UP Law Center - Professorial Lectures (2014) - YouTube

Professorial Lectures (2014) - YouTubeSee -

The Philippines' Deadly War on Drugs | BBC Documentary

BBC Our World Documentary. Since Rodrigo Duterte was elected as the president of the Philippines, the number of drug users and drug dealers killed have increased significantly. Is Duterte's war on drugs a superficial solution to a symptom of poverty and overpopulation?

Use of Informants in the War on Drugs

Documentary about mandatory minimum drug sentencing and the use of informants (snitches) by law enforcement.

Gerry Spence's Winning Courtroom Strategies

A TV documentary on Gerry Spence winning courtroom strategies
Read full description here:

Frontline documentary - A Crime of Insanity

A Crime of Insanity: PBS Frontline 

"In 1994, Ralph Tortorici took a college class hostage with a high-powered rifle and demanded to speak to the president, the governor, and the Supreme Court. That Ralph Tortorici was mentally ill was apparent to everyone. What was not so clear was how the courts should deal with his case. Frontline examines the controversial case of Ralph Tortorici."

PBS Frontline 2012 The Real CSI

PBS Frontline 2012 The Real Crime Scene Investigation (CSI)

Democracy - What is Democracy?

"What is democracy? Where did it come from? Why should we care? Is it just about voting? 

Critical Productions presents its first documentary, 'Democracy', which offers ways to come closer to answering these questions and more. 'Democracy' takes a look at the definition and brief history of democracy, as well as its impact on the government, the media and most importantly of course, the people. Are you living democracy or do you just live in one?

'Democracy' sheds light on representative democracy and features interviews with academics, politically active people such as MEP Nigel Farage, as well as taking the word on the street."

A Day in The Life of a Dictator (portrait of craziness in power) Documentary - YouTube

"How does a dictator live? What is daily life like for a monster in power? From when he wakes up to when he sleeps, what goes on in the life of someone who will decide the fate of millions of people? What are the mechanisms that lead an ambitious individual to a spiral of cruelty and excess?" 

Vacancy in the Sanggunian

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Since the permanent vacancy in the Sanggunian occurred because of the elevation of LDP member Alonzo to vice-mayor, it follows that the person to succeed her should also belong to the LDP so as to preserve party representation. Thus, this Court cannot countenance Damasen’s insistence in clinging to an appointment when he is in fact not a bona fide member of the LDP. While the revocation of the nomination given to Damasen came after the fact of his appointment, this Court cannot rule in his favor, because the very first requirement of Sec. 45 (b) is that the appointee must come from the political party as that of the Sanggunian member who caused the vacancy. To stress, Damasen is not a bona fide member of the LDP.

In addition, appointing Damasen would not serve the will of the electorate. He himself admits that he was previously a member of the Lakas-CMD, and that he ran for the position of Mayor under the said party on the May 2004 Elections. Likewise, he did not resign from the said party when he joined the LDP, and even admitted that his joining the LDP was not because of party ideals, but because he just wanted to. How can the will of the electorate be best served, given the foregoing admissions of Damasen? If this Court were to grant herein petition, it would effectively diminish the party representation of the LDP in the Sanggunian, as Damasen would still be considered a member of the Lakas-CMD, not having resigned therefrom, a scenario that defeats the purpose of the law, and that ultimately runs contrary the ratio of Navarro.

Lastly, the records of the case reveal that Tumamao has the nomination of Senator Edgardo J. Angara, the Party Chairman and, therefore, the highest official of the LDP. In addition, he is a member in good standing of the LDP. Thus, given the foregoing, it is this Court’s view that Tumamao has complied with the requirements of law.

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Why federalism is not the answer

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Why federalism is not the answer

Writes a retired Supreme Court justice: 'We don’t need to change to a federal system but only push hard for decentralization to break up the concentration of power in the central government'

Vicente V. Mendoza
Published 12:12 PM, October 10, 2016
Updated 12:13 PM, October 10, 2016

For better or for worse, the proposal to change our present unitary system of government to a federal system and to do this through Congress acting as a constituent assembly, if accomplished, will be a truly revolutionary one, a real paradigm shift in our constitutional order .

Those calling for the change justify it by describing the object of change “Imperial Manila” or worse “Imperialist Manila.” Wikipedia defines the term as follows: “Imperial Manila is a pejorative epithet used by sectors of Philippine society and non-Manilans to express the idea that all the affairs of the Philippines, whether in politics, economy or culture, are decided by what goes on in the capital region, Metro Manila, without considering the needs of the rest of the country, largely because of centralized government and urbanite snobbery.”

The once "distinguished and ever loyal city" of Manila must have become so hated that vivid metaphors have been employed to describe how it should be ended: “Destroy Imperial Manila,” “Castrate Imperial Manila,” and “Decapitate Imperial Manila.”

Complaint vs Imperial Manila

We have a unitary system of government, which in theory holds all power and from which all authority emanates. The complaint is that the power given to local governments is so little that they have failed to realize their fullest development as self reliant communities. With respect to public finance, the share of LGUs in the revenue from taxes, fees and charges collected by the government is fixed at 60-40 percent in favor of the central government. In addition, the complaint is that the age-old conflicts and secessionist movements in Mindanao continue to defy solution.

All these – the failure of the LGUs to develop and the seemingly insoluble conflict in Mindanao – have been laid at the doorstep of Imperial Manila.

Those calling for an end to Imperial Manila call for the federalization of the government as a means of breaking up its power and distributing it to several states so that there will be several centers of power throughout the nation. For this purpose the advocates propose the conversion of the 12 existing administrative regions into 11 states. For example, Region V, which is at present composed of Albay with Legazpi City, Camarines Norte, Camarines Sur, including the Cities of Naga and Iriga, Catanduanes, Masbate, and Sorsogon will become the State of Bicol, to be composed of the same provinces and cities, minus Masbate.

Under a federal system, each of the states will be independent. Each will have its own constitution, its own government, and its own court system, in contrast to local governments which only exercise power given to them by the central government.

Given the condition of the local government units, however, thoughtful citizens are asking whether we are ready for the federal system. Take for example the Bicol Region, is it ready for statehood? Dr. Jose V. Abueva, fervent advocate of federalism, estimates that ten years would be enough to make the proposed states viable. That does not seem to be a realistic estimate.

What federalization will entail

Each state, as I have said, will have to have its own constitution. This is necessary to give the states a sense that they are directors of their own political will and their political destiny. The state constitution should be prepared and approved by the local population in a plebiscite. Give the adoption of the state constitution three years.

Each state must also have its own government, consisting of legislative, executive, and judicial branches, and hold elections for some of its officials. Give the organization of the government of the state another three years.

Each state will have to have its own court system, with the jurisdiction of each court clearly defined, and provide for appeals to the National Supreme Court in some cases. The National Supreme Court will exercise original jurisdiction over interstate commerce and transportation and appellate jurisdiction over cases arising from or between the states which involve the application and interpretation of the Federal Constitution and the federal laws. Give the establishment of a state court system and the appellate or review processes up to the national level another three years. This matter should be given careful study. Much of the business of the US Supreme Court consists of adjudicating cases involving diversity of jurisdiction because of its dual court system.

That already is a total of nine years. But what about the training of leaders in public policy, since each state is now going to determine its policies? What about the development of its economy, how long will it take to grow the region so that each state can stand on its own two feet? What about preparing people for the duties and responsibilities of statehood, all cast in the context of duties and responsibilities to the broader Nation? More than the amendment of the Constitution is the amendment of men’s nature. This is likely to take a much longer period, not just years but perhaps a whole generation or several epochs.

Curiously, the ten-year period is similar to the ten-year transition period given by America to Filipinos before the grant of independence to them.When well-meaning leaders doubted whether ten years would be sufficient to prepare Filipinos for independence, President Quezon said dismissively, “I prefer a government run like hell by Filipinos to a government run like heaven by Americans.” But can we dismiss apprehensions about changing the system of government when it also calls for changing the mindset and habits of thinking of people who for over a 100 years have not known of any regime but unitary system?

Indeed, the whole process of federalization will involve dividing governmental powers between the national government, on the one hand, and the several states on the other. The national government will have power over matters of national concern, like foreign relations, national security, immigration, citizenship and naturalization, postal service, monetary currency, interstate commerce and transportation and communication. The state governments will take charge of local matters like peace and order, trade and commerce, taxation, natural resources, etc. It will be splitting the atom of sovereignty in order to produce several nuclei, this can be done in ten years?

Proposed federalization, a reverse process

This process of federalization as proposed is in the opposite historical direction of the formation of federal states. Federal systems are usually the results either of the agreement of several states to form a union or of the organization of several territories or colonies into a federal system by a colonial power.

For example, the United States of America was formed out of 13 colonies which, after declaring their independence from Great Britain in 1776, formed a confederation or “perpetual Union” and, when this proved to be weak, adopted the present US Constitution which provides for the present federal system of government.

Another example is the Federation of Malaysia, which was formed out of several separate units or territories held successively by Portugal, the Netherlands, and Great Britain. In 1944, the British government tried to organize them (except Singapore) into a single state, the Malayan Union, but strong opposition forced it to abandon the plan. Instead, on February 1, 1948 the Federation of Malaya, which later became the present Federation of Malaysia, was formed.

The creation in reverse of a Federal Republic of the Philippines is likely to bring about a host of undesirable effects, to wit:
The division of powers between the national and state governments will weaken the Philippines. For states coming together to form a federal system, federalism means strength. In union there is strength. Such, for example, is the United States of America, whose motto is “E Pluribus Unum,” (“Out of Many, One”). But to a unitary state converted into a federal state, federalism can mean the fragmentation, if not the disintegration, of what was once a nation.

Should the federal system thus formed fail, there will be no turning back and returning to the old system. The breakup will be more devastating in its effect on the component states than on the states in a federal system formed by the coming together of independent states. While the failure of this latter type of federation will simply mean the return of the component states to their former status as separate independent states, in the case of the Philippines, however, each component state will find itself without moorings and become prey to annexation by other states. God forbid, the breakup will not presage the spread of strife throughout the land.

Federalism will magnify or encourage regional differences. The rise of village tyrants and village despots will be more probable than the rise of a national dictator.

States may become so focused on local development and security that they neglect national concerns and issues.

At a time when regional federations are breaking up and threats to our territorial integrity are getting to be more real than imagined, is there truly a need to divide the government into national and state governments?

Decentralization is the way

Indeed, in classic political theory, concentration of power is never an issue against a unitary system of government.

In Federalist Paper No. 51 Madison saw the vertical division of power between national and state governments, along with its horizontal division into legislative, executive and judicial, as providing double protection for individual rights. Similarly, Lord Acton, wary of absolute power, thought that “by multiplying the centers of government and discussion [federalism becomes] . . . the protectorate of minorities, and the consecration of self-government.” Protection of individual rights was thus a reason for federalism.

On the other hand, Dean Roscoe Pound saw federalism as the only way for governing a large country of continental extent, like the United States, by which national policies can be fully realized by permitting regional variations according to local needs. The effective administration of a continental domain was another purpose of federalism.

No one, however, has advocated federalism as a cure for the concentration of powers per se.

The truth is that we don’t really have a fully centralized unitary government, but one with a decentralized system of local governments. Local autonomy is a constitutional policy and decentralization a constitutional mandate. Both are rights of local governments which cannot be taken away from them. Local officials are elected, not appointed by the central government, and their tenure is guaranteed. They have the power to create their own sources of revenue and raise taxes. They have a right to share in the taxes, charges and fees collected by the central government as well in the utilization and development of natural resources within their areas.

Senator Aquilino Q. Pimentel Jr. argues that a federal state would enable Moros to run their government according to their customs and traditions. The Constitution already provides for autonomous regions in the Cordilleras and Muslim Mindanao with recognition of the fact that the people of these regions have a different historical and cultural heritage and different economic and social structures. Autonomous regions have their own organic acts, their own government, consisting of an executive department and legislative assembly, and special courts with personal, family and property law jurisdiction. No reason has been shown why these provisions for autonomous regions are inadequate to address the Mindanao problem. If the Bangsamoro Basic Law failed passage in the last Congress, it was because several of its provisions were perceived to be unconstitutional and that what it provided for was the creation of a Bangsamoro substate.

The argument that federalization will promote local development and encourage citizen participation in government is precisely a policy argument for decentralization. In 1967 Congress enacted the Decentralization Act (R.A. No. 5185) granting “local governments greater freedom and ampler means to respond to the needs of their people and promote their prosperity and happiness and to effect a more equitable and systematic distribution of governmental powers and resources.” Thus, “the performance of those functions that are more properly administered [at] the local level” are entrusted to local governments which are granted “as much autonomous powers and financial resources as are required for the more effective discharge of these responsibilities.”

The coming into force of the 1987 Constitution added impetus to the decentralization of the government. It mandates Congress to “enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization.” The Local Government Code (R.A. 7160), provides in its Section 3 “Operative Principles of Decentralization” in passing local legislation. If then there is still excessive concentration of power in the central government, it is because constitutional and statutory provisions for decentralization have not been fully implemented.

We have reduced the President’s power over local governments to “general supervision.” We need to do something similar to Congress’ powers over local legislation to implement fully the constitutional policy of local autonomy. There should be not merely decentralization of local administration and functions but delegation of legislative powers, to give local governments greater autonomy. They should have power to determine what ordinances to enact, subject only to such terms and conditions as Congress may provide, with a sufficient standard to guide them in the exercise of this power. This is permissible under the Constitution. It is in fact a mandate to Congress with respect to local governments. In addition, the share of local governments in the internal revenue collection should be increased from 60-40, in favor of the national government, to 30-70, in favor of local governments given the increased responsibilities that they will now shoulder.

This is not the same as federalizing the government. Power will not be granted to the local governments as independent entities but simply delegated to them as political subdivisions of the state. National policies will still be determined by the central government, but local governments will be given broad discretion to make variations to adapt them to local conditions.

All these can be done without changing to a federal system and without having to amend or revise the Constitution, which is problematical because of controversy in the interpretation of its Amendment Clause.

For, indeed, apart from the risks of failure of the experiment, there are procedural problems to be considered as well.

Vexing problem

It is generally agreed that to change from a unitary to a federal system would require the revision of the Constitution. Revisions of the Constitution can be proposed either by Congress acting as a constituent assembly or by a constitutional convention composed of delegates elected by the people. While the President had originally expressed preference for a constitutional convention, it was subsequently announced that he chose a Con-Ass to undertake the job of overhauling the Constitution after being told of the cost of holding a Con-Con.

This decision is likely to raise anew a vexing problem that has been with us since the adoption of the Constitution in 1987: how the two Houses of Congress, when acting as a constituent assembly, should sit, whether jointly or separately. The Constitution’s meager provision gives no answer to this question. Its Article XVII, Section 1 simply states that “Any amendment to, or revision of, this Constitution may be proposed by (1) The Congress, upon a vote of three-fourths of all its Members.”

In the last Congress, views were expressed that in amending the Constitution so as to change some of its economic provisions, Congress could follow the same procedure for enacting bills.

This problem has arisen because the constitutional provision in question was originally written on the assumption that the legislative body would be unicameral. However, toward the closing days of its session, the Commission decided to have a bicameral Congress instead. Accordingly, the relevant provisions of the draft Constitution, except the Amendment Clause, were rewritten to reflect the change.

Thus, in the following cases, it was provided that the two Houses of Congress must meet in joint session but vote separately:

To declare the “existence of a state of war.” (Art. VI, Sec. 23 (1))

To confirm the President’s nomination of a Vice President whenever there is a vacancy in the office during the term of the Vice President. (Art. VII, Sec. 9)

To revoke the President’s declaration of martial law or suspension of the privilege of the writ of habeas corpus. (Art. VII, Sec.18)

To canvass the votes for President and Vice President and proclaim the winners and, in case of a tie, to break the tie. (Art. VII, Sec. 4)

To decide whether the President, who has declared himself unable to discharge the duties of his office and subsequently claims to be fit to resume but his cabinet disagrees, is fit to discharge the powers and functions of the Presidency. (Art. VII, Sec. 11)

It was only through oversight that the Commission failed to make the corresponding changes in the Amendment Clause. But, as Commissioner Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, said when asked what his committee would do in the event the Commission decided to have a bicameral legislative body, they would include the words “IN JOINT 

Indeed, if Congress is required to meet in joint session but vote separately in performing the functions just enumerated, it stands to reason it must be required to observe this same procedure when performing its highest function of amending or revising the fundamental law. To contend that Congress can propose amendments to the Constitution in the same way as in passing ordinary legislation is to forget the lesson of Marbury v. Madison that “as a superior paramount law, the Constitution is unchangeable by ordinary legislative acts.”

There is furthermore a benefit to be gained by having Senators and Representatives meet and discuss matters together face to face. As the Supreme Court has pointed out, the “Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly.” (Gonzales v. Comelec, 21 SCRA 774, 785 (1967); Tolentino v. Comelec, 41 SCRA 702, 714 (1971)).

To sum up, we don’t need to change to a federal system but only push hard for decentralization to break up the concentration of power in the central government, and therefore we don’t need to amend or revise the Constitution. And if Congress has to act at all as a constituent assembly, its two Houses must meet in joint session but vote separately. –

The author is a retired justice of the Philippines’ Supreme Court and a professor of constitutional law at the UP College of Law.

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UN body: Poor ‘disproportionately affected’ by war on drugs |

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UN body: Poor ‘disproportionately affected’ by war on drugs

The United Nations Committee on Economic, Social and Cultural Rights has urged the Philippine government to take necessary measures to ensure that its relentless war on drugs does not discriminate the poor and marginalized.

In its recent report, the UN panel expressed concern that poor neighborhood and individuals “have been disproportionately affected” in the Duterte administration’s antinarcotics campaign.

“The Committee is deeply concerned that declarations made by high ranking officials in the context of the ‘war on drugs’ may be seen to encourage and legitimize violence against drug users, including extrajudicial killings. Indeed, the number of extrajudicial killings of drug suspects has drastically increased in recent months and a large number of people have been arrested and detained in already overcrowded prisons,” the report read.

“The Committee urges the State to stop and prevent extrajudicial killings and any form of violence against drug users; to promptly and thoroughly investigate all reported cases and punish the perpetrators with sanctions commensurate with the gravity of the crime; and to take all necessary measures to ensure that the fight against drug trafficking does not have a discriminatory impact on the poor and marginalized,” it added.

The UN body also called on the government to reconsider the criminalization of drug dependents, saying that it hindered them from receiving treatment and rehabilitation from “treatment centers that incorporates evidence-based health services, such as opioid substitution therapies.”

The committee said the Philippine government should instead adopt a “right-to-health approach to drug abuse with harm reduction strategies, such as syringe exchange programs; and increase the availability of treatment services that are evidence-based and respectful of the rights of drug users.”

In a series of expletive-laced remarks, President Rodrigo Duterte has repeatedly lambasted the UN, the United States and the European Union for calling him out over alleged extrajudicial killings and human rights abuses in his bloody war on drugs.

MalacaƱang on Wednesday said it had sent a formal invitation to UN rapporteur Agnes Callamard to investigate drug-related deaths in the country. RAM

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Ateneo Law Students Submit Report on Killings to the UN | Ateneo de Manila University

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AHRC, ALS Students Submit Report on Killings to the UN
Friday, October 14, 2016

The Ateneo Human Rights Center (AHRC) and students of the Ateneo Law School’s (ALS) International Human Rights Law class submitted a shadow report to the United Nations (UN) Human Rights Council. The report focused on summary and extrajudicial killings in the Philippines. Foremost among the issues discussed in the report is the vague legal definition of “extrajudicial killings” in Philippine law and jurisprudence which affects investigation and prosecution as authorities and stakeholders do not have a clear understanding of the crime.

Issues on due process were also included in the report. Local news are replete with stories where alleged drug users or pushers are found dead. These suspects are not afforded due process and their rights as persons accused of crimes are not respected.
Ateneo Human Rights Center Executive Director Atty. Ray Paolo Santiago discusses the importance of the the shadow report.

Apart from the issue on due process, the shadow report also highlighted that the presumption of regularity in the performance of duties of law enforcement agents cannot be used as a defense when they commit abuses or crimes. The killings of indigenous peoples, media personnel, and other groups related to the Duterte Administration’s “war on drugs” are also highlighted in the said report. It concluded with emphasis that impunity and lack of accountability of authorities responsible for the killings remain key issues in the past and current administrations.

Commission on Human Rights chairperson Chito Gascon reminds the students to be vigilant and be active.

The shadow report was submitted to provide additional information to the UN Human Rights Council for the Universal Periodic Review (UPR) of the Philippines in May 2017. The UPR is a cooperative mechanism meant to ensure faithful compliance by States parties of their human rights obligations. Through the UPR, each UN Member State undergoes a peer review, wherein other Member States are able to comment on the former’s progress in relation to upholding human rights and provide recommendations. The last time that the Philippines had its UPR was in 2012.

The exercise enriched the students' learning experience by allowing them to apply the conventions and and law they study in class. 

The preparation and submission of the shadow report was spearheaded by Atty. Ryan Jeremiah D. Quan, who co-teaches the International Human Rights Law class. ALS Professors and AHRC lawyers Amparita Sta. Maria, Gilbert Sembrano, Ray Paolo Santiago, Maria Patricia Cervantes-Poco, Anne Maureen Manigbas, and Ma. Cecille Lumague-Corpuz also contributed and supervised students who worked on the report. The exercise enriched the students’ learning as it allowed them to apply the conventions and laws they study in class by engaging a UN human rights mechanism.

The full report submitted on 22 September 2016 can be accessed here.

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BusinessWorld | Federalism is not for the Philippines

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Opinion - Business World.
By Benjamin R. Punongbayan
Federalism is not for the Philippines
Posted on October 24, 2016

THE IDEA of changing the union of the Filipino people into a federal form from its present unitary form was brought about by a sentiment prevailing in a few regions of the Philippines that the government is still too centralized. To dramatize this point, the central government has been described in these sectors as Imperial Manila.

This condition of strong centralization was thought to have led to neglect of these regions by the central government which, in turn, caused the slow economic growth and proliferation of poverty in their geographical areas.

It is believed that this perceived unequal treatment may be solved by changing the country’s entire political structure by transforming the existing provinces into bigger states through federalism. The key element of this concept is to provide the designated states a high degree of autonomy.

Under usual arrangements under federalism, the state is responsible for its own infrastructure development, industrial and agricultural development, school system, health services, police functions, and many other government functions, including having a greater responsibility on economic development. For its part, the central government will be responsible for national defense and security, foreign affairs, and top level responsibility for economic development, including central banking. Through the federal government institutions, the central government will provide the general direction to where the country is going and establish uniform laws for the states to follow when these are needed.

To enable each state to perform its designated functions, an important principle in federalism is to give the state its own fiscal authority where the state will impose and collect its own taxes, including those coming from the use of natural resources situated in the state, and decide by itself how to allocate the funds. Of course, the central government will need to have its own share of the taxes and therefore there would be a sharing plan between the central government and the states. Under this arrangement, I think it will be inevitable for the share of the central government to include a portion that it can distribute as subsidies to some states as the existing economic development among the expected designated states varies to a large extent. In other words, there will necessarily be rich states and poor states because the geographical composition of each state has to be contiguous.


Previously, I argued that federalism is not the solution to this problem of unequal economic development owing to two important considerations.

The first one is that the federated countries in the world today are composed of previously independent or autonomous states that agreed to form a federal union for a common cause, which was not economic, but for either of forging collective defense against external threats or projection of power to external forces. These federating states had been governing their respective states by themselves for generally hundreds of years before they combined into a federation.

The Philippine case is starkly different -- the Philippines is already a unified country which is now being proposed to be splintered into federal units, which still have to be organized and developed, for economic reasons. This clearly opposite direction of movement alone -- forward for the currently existing federal countries and reverse in the case of the Philippines will already give the readers ideas why federalism for the Philippines cannot be a solution. I believe federalism for the Philippines is a step backward and will just set all of us back for many years instead of moving the country forward. The issue is not about the advantages of a federal form of government, as derived in theory or as actually experienced by federal countries in the world today, the advantages of which I recognize. The issue to my mind is that federalism and the Philippines do not fit together. It is that simple.

Within the presently existing federal countries, the autonomy enjoyed today by their constituent federating states is a valuable right that they already possessed and practiced for a long time before federation. In the case of the Philippines, such state autonomy will still have to be introduced, structured and developed. These are two sharply contrasting cases.

To be more specific, I do not think that in the Philippine case, the newly introduced autonomous political institutions in each designated Philippine state can develop more rapidly under a federal structure, especially when the federal structure itself will be organized and developed from its predecessor unitary government whose own state of political development is also weak and not competent and wanting in many respects.

If the proponents of federalism expect that a newly designated Philippine state can function ably and successfully and thereby achieve higher economic development within a reasonable time than it would otherwise achieve under a unitary government, they need to sharpen their analysis a lot more before they plunge the entire country into the unknown. Under existing Philippine political condition, installing federalism is clearly putting a square peg in a round hole.


The second important consideration is that the present regional distribution of Philippine GDP is hugely disproportional.

In 2014, the National Capital Region alone earned 36.3% of the total gross domestic product (GDP).

Together with Regions 3 and 4A, these three regions (let’s call them states) generated 62.8% of Philippine economic output in 2014. In contrast, the population of these Philippine states constitute only 38.5% of the Philippine total. Clearly, for the other designated Philippine states to be able to keep in step with the three rich Philippine states, these other (poor) states will need a substantial amount of subsidies from the rich states, coursed through the central government, for a long time or even permanently.

This inevitable situation by itself makes a lie of the expectation of the proponents of federalism that each Philippine state can reasonably fend for itself.

Think about it. How can a poor state constituted in northeast Mindanao, which does not have much sources of income, no matter how corporate income tax is allocated, can develop itself without substantial subsidies? Impossible. One can try pairing poor states with non-contiguous rich states, but that does not make sense. Besides, there are only a very few rich states to pair with. But more than these, who will make the decision in doing the pairing? There will be other unfavorable major unknown consequences -- population shifts; conflicts between rich states and poor states; conflicts between the states and the central government; and very likely many more, including possible secession by some states.

I want to draw attention to the fact that the problem of an Imperial Manila is not shared by most of the regions in this country. These majority regions do not see a unitary government as the problem in hindering economic development for the entire Philippines. And this is the picture I wish we Filipinos should focus on.

By adopting federalism for the entire country, we are drawing the entire country into a solution to a problem which is not felt by the whole country. On this basis, the solution being offered is an overkill. We may be unwittingly taking the whole country to an untried path where there would be unknown dangers and risks. Why don’t we just focus on finding an effective solution specific to where the problem is felt? Or, provide much more decentralization to all provinces under a unitary government. We may be able to find some solutions that will be much less disruptive and avoid forcing everyone to travel to the unknown. I hope our public policy makers will ponder on these options.

Benjamin R. Punongbayan ( is the founder of Punongbayan and Araullo, one of the Philippines’ leading auditing firms. He is also chairman of Buklod, a national political party.

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Wednesday, October 26, 2016

The Constitution and the West Philippine Sea |

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The Constitution and the West Philippine Sea
12:08 AM October 26, 2016

Prior to Philippines v. China, we had claims under the United Nations Convention on the Law of the Sea (Unclos) about our maritime entitlements in the West Philippine Sea. So did China. The arbitration resulted in an overwhelming validation of the Philippines’ arguments, and an emphatic rejection of China’s. The four corners of every page of Philippines v. China determines with finality our specific rights in the West Philippine Sea.

In gist, the decision declared unlawful China’s nine-dash line. It recognized the full breadth of our exclusive economic zone, and our rights over Ayungin Shoal, Mischief Reef, and Reed Bank. The tribunal further recognized traditional fishing rights within the territorial sea of Scarborough Shoal.

The character of the Philippines’ and China’s claims is now different. We don’t have mere claims; we now have rights. Our rights trump China’s claims. We won, it lost.

Strategically, what President Benigno Aquino III has done is replace the platform for asserting our rights from one based on politics to another based on law. We did not just win chips that may be bargained away. We have replaced the table where the game is played. We got permanent leverage.

Philippines v. China must be read in relation to Art. XII, Sec. 2 of our Constitution: “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” The decision is the legal baseline for our foreign policy in the West Philippine Sea. This is a nonnegotiable, prepolitical constitutional mandate for every administration.

Let me focus on specific areas of concern.

Historic rights. The purported basis of China’s nine-dash line was the existence of historic rights that predated the Unclos. For various reasons, the tribunal rejected their existence and validity. Every administration has the obligation to not give any more credence to these imaginary rights. It would be sadly ironic if the country that debunked these imaginary rights end up validating them while everyone else in the world use our victory as basis for rejecting China’s claims.

Traditional fishing rights. The tribunal characterized Scarborough Shoal as rocks entitled to a territorial sea of 12 nautical miles within which Filipinos and other nationalities enjoy traditional fishing rights. China is now under legal obligation to recognize these rights.

We should be wary of the temptation to agree to any permission system for traditional fishing at Scarborough Shoal not only because such a system is a diminution of our rights but also because, more important, such system could implicitly and dangerously carry a recognition of China’s territorial rights over Scarborough Shoal. The incremental move forward is a rights management agreement which may cover the peaceful and responsible exercise of fishing rights, while setting aside territorial disputes over the rocks.

Joint development. The characterization of Reed Bank as a submerged reef within our exclusive economic zone negates the possibility of joint development with China. Our victory at The Hague makes joint development a constitutionally untenable bargaining stance. But the larger problem is that entering into such an agreement implicitly revives China’s expansive claims. This is because joint development assumes China has rights that extend to our waters.

The President is the chief architect of foreign policy. He has wide leeway, constrained by the Constitution. A wide variance between the mandate of the Constitution and his preferred foreign policy will impact the national interest, affect his legacy, and trigger the accountability provisions of our Constitution.

One must therefore be careful about gambling on any sudden pivot. Instead of an easy layup, we might end up with broken ankles and lost territories.

Florin T. Hilbay is a former solicitor general. He was agent to the Republic in Philippines v. China.

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