FORUMS FOR INTERNATIONAL ECONOMIC ADJUDICATION: THREADS IN FRAGMENTS - Francis N. Botchway

Redirect Notice
See - http://www.cjicl.com/uploads/2/9/5/9/2959791/cjicl_20.3_botchway_article.pdf

"x x x.


ARTICLES
FORUMS FOR INTERNATIONAL ECONOMIC
ADJUDICATION: THREADS IN FRAGMENTS
Francis N. Botchway

TABLE OF CONTENTS
I. INTRODUCTION........................................................................ 639
II. ADJUDICATORY BODIES IN IEL ............................................ 649
A. The International Court of Justice................................. 650
B. WTO DSU/DSB............................................................... 656
C. The Court of Justice (of the European Union)............ 661
1. The General Court (Formerly the Court of First
Instance)...................................................................... 665
D. ICSID ................................................................................ 667
E. NAFTA............................................................................. 669
F. ECT ................................................................................... 672
III. PERMANENT INSTITUTIONS OF ARBITRATION...................... 674
IV. NATIONAL FORUMS FOR INTERNATIONAL ECONOMIC
ADJUDICATION........................................................................ 679
V. COMPARATIVE ANALYSES OF THE ADJUDICATORY
INSTITUTIONS ........................................................................... 695
A. Jurisdiction........................................................................ 695
B. Appeal............................................................................... 698
C. Vertical Hierarchy or Horizontal Deference?.............. 705
VI. CONCLUSION ............................................................................ 709
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JURIST - Paper Chase: Rights group asks Pennsylvania governor to veto juvenile life sentence bill

JURIST - Paper Chase: Rights group asks Pennsylvania governor to veto juvenile life sentence bill

See - 
 http://jurist.org/paperchase/2012/10/rights-group-asks-pennsylvania-governor-to-veto-juvenile-life-sentence-bill.php

"x x x.

 Human Rights Watch (HRW) [advocacy website] wrote a letter [text] to Pennsylvania Governor Tom Corbett [official website] on Friday asking him to veto legislation [SB 850 text] which would maintain the sentence of life without parole as an option for child offenders. According to HRW, the bill would go against the spirit of the recent US Supreme Court ruling in Miller v. Alabama, which held [JURIST report] that mandatory life sentences for juveniles is unconstitutional. The bill applies a prison sentence of either life without the possibility of parole for juveniles or with the first parole hearing after 35 years for those over 15 and 25 years for those under 15. In the letter, HRW detailed several problems with the law:

It ignores that youth have a greater capacity for rehabilitation than older offenders. It ignores the racially disproportionate sentencing of youth in Pennsylvania. African American youth convicted of murder have been sentenced to life without parole in Pennsylvania at a much higher rate than white youth. It provides virtually zero public safety value at a very high cost. It will not provide a deterrent to future crime. Experts have shown that adolescents are unlikely to have the maturity and long-term rational thinking to be deterred by the prospect of a lengthy sentence.

x xx."

JURIST - Paper Chase: Italy high court finds causal link between mobile phones and cancer

JURIST - Paper Chase: Italy high court finds causal link between mobile phones and cancer
See - http://jurist.org/paperchase/2012/10/italy-high-court-finds-causal-link-between-mobile-phones-and-cancer.php


"x x x.

 

[JURIST] The Italian Supreme Court [official website, in Italian] ruled Thursday that a causal link exists between cell phone use and cancer, ordering that the appellant be compensated. The court found that the appellant developed a benign tumor on the left side of his face due to his job's requirement that he spend 5-6 hours a day on the phone. The Supreme Court held [Il Giorno report, in Italian] the injury entitled the appellant to an 80 percent disability pension. The Supreme Court's decision was largely based upon studies performed by the Hardell Group [text] between 2005 and 2009, which the court held showed an increased risk of malignancy due to heavy mobile phone use. The Italian labor agency (INAIL) [official website, in Italian] argued in favor of indemnifying the manager, as the situation in the instant case was unique and non-indicative of normal phone use. 

The connection between mobile phone use and cancerous growth has long been debated in scientific communities. The World Health Organization (WHO) [official website] compiled studies [WHO fact sheet] over several decades that have yet to support the causal link claimed by the Italian court, and Hardell's conclusions have been challenged by many researchers [Cancer Research UK report]. Attempts to find the causal link are greatly hampered, not only by the available evidence and the duration involved with the growth and detection of tumors, but by rapidly changing microwave output levels of phones at various stages of technology, basic difficulties in assessing the exposure level to the radiation itself and claims that microwave output levels cannot be correlated to exposure [JURIST report].
x x x."

JURIST - Paper Chase: UN rights experts urge states to repeal criminal adultery laws

JURIST - Paper Chase: UN rights experts urge states to repeal criminal adultery laws
See - http://jurist.org/paperchase/2012/10/jurist-the-un-working-group.php


"x x x.

 

[JURIST] The UN Working Group on discrimination against women [official website] on Thursday urged governments around the world to repeal laws that criminalize adultery [statement] and give rise to severe penalties which include flogging, death by stoning and hanging. While the working group conceded that "adultery may constitute a valid ground for bringing a civil proceeding" in some cultures and traditions, the assembly of individual experts wholly declared [press release] that such an offense should not be deemed criminal. Wrote the group:

Adultery laws have usually been drafted and almost always implemented in a manner prejudicial to women. Provisions in penal codes often do not treat women and men equally and establish harsher sanctions for women, and in some countries, rules of evidence value women’s testimony as half that of a man's

Moreover, the group asserted that maintaining adultery as a criminal offense exposes women to "extreme vulnerabilities" and violates their inherent rights under the International Covenant on Civil and Political Rights [text], which was adopted by the UN General Assembly [official website] in 1976. Specifically, wrote the group, such adultery laws infringe upon women's' Article 17 rights to "dignity, privacy, and equality, given the continuing discrimination against them." 

Discrimination and violence against women is a global issue. In June Human Rights Watch (HRW) [advocacy website] called on the Sudanese government [JURIST report] to reform its discriminatory laws and abolish both the death penalty and all corporal punishment after a young Sudanese woman was sentenced to death by stoning for adultery. In March HRW urged the Afghan government [JURIST report] to release about 400 women and girls who were imprisoned for "moral crimes," including flight from unlawful forced marriage or domestic violence in addition to "zina," which is a sexual relationship outside of marriage due to rape or forced prostitution. In July 2011 UN Women [official website] released a report examining the persistent discrimination against women [JURIST report] around the world and concluded that the rule of law does not provide adequate protection for women in practice. A month earlier a UN Special Rapporteur stated that even the US is facing continued violence against women [JURIST report], especially poor, minority and immigrant women. In May 2011 the Council of Europe (COE) [official website] introduced [JURIST report] the first international convention to combat violence against women [text]. In the same month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged Tunisia and Egypt [JURIST report] to ensure that women's rights receive constitutional protection.

x x x."

JURIST - Paper Chase: UK appeals court rules Samsung tablets do not infringe on Apple design

JURIST - Paper Chase: UK appeals court rules Samsung tablets do not infringe on Apple design

 See - http://jurist.org/paperchase/2012/10/uk-appeals-court-rules-samsung-tablets-do-not-infringe-on-apple-design.php


"x x x.

 

[JURIST] A UK appeals court ruled [decision PDF] Thursday in favor of Samsung Electronics (UK) Limited in a design infringement case brought by Apple, Inc. [corporate websites]. The decision by the three-judge panel upheld a lower court ruling [JURIST report] finding that three of Samsung's tablets did not infringe on Apple's registered design patent. The issue in the case was whether Samsung's tablets were so similar in design to Apple's iPad to constitute design infringement. The court determined that Samsung's tablets, which contain noticeably distinguishable features on their front face, including a Samsung logo, are not sufficiently similar to the iPad to find infringement. The court also upheld an order requiring Apple to post a notice on its website notifying consumers of the decision in the case. The court said the notice is necessary to prevent harm to Samsung's sales that may result from consumers who believe that the product is illegal. 

Apple and Samsung have been embroiled in continuous patent litigation in courts around the world. On Monday Apple appealed a Tokyo District Court ruling [JURIST report] which dismissed Apple's claim that Samsung had infringed on its patents. Last week the US Court of Appeals for the Federal Circuit reversed an injunction [JURIST report] issued by the US District Court for the Northern District of California against Samsung in an ongoing patent dispute with Apple. In September the Federal Circuit similarly ordered [JURIST report] the Northern District of California to reconsider an injunction against Samsung's Galaxy Tab 10.1 [product backgrounder]. Only a week prior, Apple filed a motion [JURIST report] with the Northern District of California to prohibit Samsung from selling products in the US that supposedly infringe on Apple's patents. Also in September, Samsung announced [JURIST report] that it will be adding the iPhone5 [product backgrounder] to a new patent infringement suit against Apple.
x x x."

"Capital" defined; PLDT case.

Supreme Court of the Philippines
See - http://sc.judiciary.gov.ph/pio/news/2012/10/10151202.php

"x x x.

The Supreme Court, voting 10-3, has denied with finality the motions for reconsideration of its June 28, 2011 decision that directed the Securities and Exchange Commission (SEC) to investigate the Philippine Long Distance Telephone Co. (PLDT) for possible violation of the constitutional limit on foreign ownership in utilities.

In a 51-page resolution penned by Senior Justice Antonio T. Carpio, the Court En Banc declared that it “no further pleadings shall be entertained” in the case.

Joining Senior Justice Carpio in his ponencia were Chief Justice Maria Lourdes P. A. Sereno and Justices Teresita J. Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral Mendoza.

Justices Presbitero J. Velasco, Jr. wrote a dissenting opinion and was joined by Justice Bienvenido L. Reyes.  Justice Roberto A. Abad wrote a separate dissenting opinion.

Justice Estela M. Perlas-Bernabe did not take part due to prior participation in a related case.

The Court clarified that it did not decide, and in fact refrained from ruling on the question of whether PLDT violated the 60-40 ownership requirement in favor of Filipino citizens in Section 11, Article XII of the 1987 Constitution as such question indisputably calls for a presentation and determination of evidence through a hearing, which is generally outside the province of its jurisdiction, but well within the SEC’s statutory powers. The Court thus limited its decision on the purely legal and threshold issue on the definition of the term ‘capital’ in Section 11, Article XII of the Constitution and directed the SEC to apply such definition in determining the exact percentage of foreign ownership in PLDT.

The Court found that from the deliberations of the Constitutional Commission, it was clear that the term “capital” refers to controlling interest of a corporation. The Court held: “As we held in our 28 June 2011 Decision, to construe broadly the term ‘capital’ as the total outstanding capital stock, treated as a single class regardless of the actual classification of shares, grossly contravenes the intent and letter of the Constitution that the ‘State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.’”

The Court further held that the PLDT is only an indispensable party insofar as other issues, particularly factual questions are concerned.

It also held that SEC was properly impleaded in this case. It noted that SEC has expressly manifested that it will abide by the Court’s decision and defer to the Court’s definition of the term “capital” in Section II, Article XII of the Constitution. Further, the SEC entered its special appearances in this case and argued during the Oral Arguments, indicating its submission to the Court’s jurisdiction. It Thus the Court found that there exists no legal impediment against the proper and immediate implementation of its directive to the SEC. “For its part, PLDT must be impleaded, and must necessarily be heard, in the proceedings before the SEC where the factual issues will be thoroughly threshed out and resolved,” added the Court.

“Thus, there is no dispute that it is only after the SEC has determined PLDT’s violation, if any exists at the time of the commencement of the administrative case or investigation, that the SEC may impose the statutory sanctions against PLDT. In other words, once the 28 June 2011 Decision becomes final, the SEC shall impose the appropriate sanctions only if it finds after due hearing that, at the start of the administrative case or investigation, there is an existing violation of Section 11, Article XII of the Constitution. Under prevailing jurisprudence, public utilities that fail to comply with the nationality requirement under Section 11. Article XII and RA 7042, the Foreign Investments Act of 1991 (FIA) can cure their deficiencies prior to the start of the administrative case or investigation,” the Court ruled.

The Court noted that the 1935, 1973, and 1987 Constitutions have the same 60 percent Filipino ownership and control requirement for public utilities like PLDT. It ruled that any deviation from this requirement necessitates an amendment to the Constitution as exemplified by the Parity Amendment.

The Court held that the 1987 Constitution reserves the ownership and operation of public utilities exclusively to (1) Filipino citizens, or (2) corporations, or associations at least 60 percent of whose ‘capital’ is owned by Filipino citizens. “In other words, under Section 11, Article XII of the 1987 Constitution, to own and operate a public utility a corporation’s capital must at least be 60 percent owned by Philippine nationals,” held the Court.

RA 7042, like all its predecessor statutes, clearly defines a “Philippine national” as a Philippine citizen, or a domestic corporation at least “60% of the capital stock outstanding and entitled to vote” is owned by Philippine citizens, noted the Court.

The Court explained that the right to elect directors, coupled with beneficial ownership, translates to effective control. The Court stressed that its assailed decision “declares that the 60 percent Filipino ownership required by the Constitution to engage in certain economic activities applies not only to voting control of the corporation, but also to the beneficial ownership of the corporation.” It further held that it was “imperative that such requirement apply uniformly and across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation. Under the Corporation Code, capital stock consists of all classes of shares issued to stockholders, that is, common shares as well as preferred shares, which may have different rights, privileges or restriction as stated in the articles of incorporation.”

The Court further explained that if a corporation, engaged in a partially nationalized industry, issues a mixture of common and preferred non-voting shares, at least 60 percent of the common shares and at least 60 percent of the preferred non-voting shares must be owned by Filipinos. In short, the 60-40 ownership requirement in favor of Filipino citizens must apply separately to each class of shares, whether common, preferred non-voting, preferred voting or any other class of shares.

In its June 28, 2011 decision, the Court ruled that the term “capital” in Section 11, Article XII of the Constitution refers only to shares of stock entitled to vote in the election of directors, and, in the present case, only to common shares and not to the total outstanding capital stock comprising both common and non-voting preferred shares.

The SEC was thus directed to apply the Court’s definition of the term “capital” in determining the extent of allowable foreign ownership in PLDT and to impose the appropriate sanctions under the law if there is any violation of sec. 11, Art. XII of the Constitution.

Justice Velasco in his dissenting opinion opined that PLDT should be given time to undertake the necessary measures to make its capital structure compliant, and the SEC should formulate appropriate guidelines and supervise the process. He added that SEC should also adopt rules and regulations to implement the prospective compliance by all affected companies with the new ruling on the interpretation of Sec. 11, Art. XII of the Constitution.

For his part, Justice Abad opined that Sec. 11, Art. XII already provides limitations on foreign participation in public utilities, hence, the Court need not add more by further restricting the meaning of the term “capital” when none was intended by the framers of the 1987 Constitution. He wrote that the authority to define “capital” in the said provision belongs to Congress as part of its policy making power. Granting otherwise, he opined that “capital” encompasses the entirety of a corporation’s outstanding capital stock and that the Court can simply adopt such interpretation of Constitution Commission by Fr. Joaquin Bernas and Dr. Bernardo M. Villegas. (GR No. 176579, Gamboa v. Sec. Teves, October 9, 2012)

x x x."

Personal security training for judges

Supreme Court of the Philippines
See - http://sc.judiciary.gov.ph/pio/news/2012/10/10161201.php


"x x x.

WHAT        :         Personal Security Training for Judges

WHO          :         Officials of the Judiciary led by Hon. Marina L. Buzon (Executive Secretary, Philippine Judicial Academy; Acting Chief, Philippine Mediation Center Office), Hon. Antonio M. Eugenio, Jr.  (Deputy Court Administrator), and Hon. Jaime B. Santiago (Presiding Judge, Branch 3, Manila Regional Trial Court); National Bureau of Investigations officials and resource persons led by Atty. Nonnatus Caesar R. Rojas (Director) and Atty. Medardo G. De Lemos (Assistant Director); First-Level and Second-Level Trial Court Judges from the 7th Judicial Region

WHEN       :         October 16 to 18, 2012 8 a.m. to 5 p.m.

WHERE     :         Harolds Hotel, Cebu City (October 16 to 17) Kamagong Firing Range (October 18)

Forty-five selected judges from the second-level and first-level courts will be oriented on threats assessment, document and communication security, facts regarding firearms, and personal security measures, among others, for them to develop a clear understanding of the basic precepts of safety and security precautions. 

The training-seminar is a joint project of the Supreme Court-Committee on Security, the Philippine Judicial Academy, and the Office of the Court Administrator, in coordination with the National Bureau of Investigation (NBI).

This project, the 17th of its kind since the signing of the Memorandum of Agreement on Judicial Security between the Supreme Court and the NBI in January 2008, aims to instill in the members of the bench a deeper awareness of the critical role they play in the administration of justice.

x x x."

Lawyer admonished and ordered to restitute client's money. - sc.judiciary.gov.ph/jurisprudence/2012/october2012/6733.pdf

sc.judiciary.gov.ph/jurisprudence/2012/october2012/6733.pdf

"x x x.


WHEREFORE,  the  Court  AFFIRMS  the  28  October  2011 Resolution No. XX-2011-143 of the Board of Governors of the Integrated Bar of the Philippines, reducing the  recommended penalty from six months
to  admonition.  The  Court  finds  Atty.  Rosario  B.  Bautista  GUILTY of violating  Canon  18  and  Rule  18.03 of  the  Code  of  Professional Responsibility  and  he  is  ADMONISHED  to  exercise  greater  care  and diligence  in  the  performance  of his  duty  to  his  clients.  Atty.  Bautista  is ordered  to  RESTITUTE  to  complainant  P 14,000  out  of  the  P 15,000  acceptance fee.

SO ORDERED."

US Appeals Court’s decision favors left behind children | Inquirer Global Nation

US Appeals Court’s decision favors left behind children | Inquirer Global Nation
See - 
http://globalnation.inquirer.net/52736/us-appeals-court-decision-favors-left-behind-children


"x x x.

Antonio’s US citizen brother filed an immigrant petition for him years ago. Antonio is married and had three minor children when the petition was filed. After years of waiting, visas finally became available for them. Antonio, his wife and two minor children got their immigrant visas. However, their eldest child Isabel, had already turned 23 and was left behind.

This meant that if Antonio filed a new petition for her, it would take 10 or more years for her to join her family in the US.

But thanks to a new Ninth Circuit Court of Appeals decision entitled De Osorio v Mayorkas, Isabel can now immediately come to the United States.

Under this decision, the old priority date for the petition filed by Antonio’s brother for him over ten years ago can be utilized for Antonio’s new petition for Isabel for which a visa is instantly available.

This is excellent news for thousands of children of immigrants who were left behind because they over aged – turned 21 that is. The decision also applies to certain other types of petitions where the children of the main beneficiary have over aged.

Let’s say that the petition for Antonio was filed by his father  instead of his brother, can  the old priority date in the petition filed by his father for him be also used in his new petition for Isabel? Absolutely.  Again, this means Isabel can immediately migrate to the US instead of waiting for years.

Unless the government files an appeal to the U.S. Supreme Court and assuming the Supreme Court accepts the appeal – the De Osorio decision remains final.

The basis for the decision is the Plain language in the Child Status Protection Act (CSPA) which states that an over aged left behind child can retain the original priority date in his or new classification. The government had repeatedly argued before this decision that the language and the intention of Congress were unclear.

Not anymore. The Ninth Circuit has decided that the language in the statute was plain and clear enough.

This means that thousands of new or pending  petitions filed by immigrant parents for their over 21 children can now be immediately rushed. They need not wait for years before they can join their families in the U.S.

This is the best Thanksgiving and Christmas gift for thousands of immigrant families.

 Note: The California State Bar honors Atty. Ted Laguatan as one of only 29 U.S. lawyers officially certified continuously for almost 25 years now as Expert-Specialists in Immigration Law. He also does human rights, accident injuries and wrongful death cases. For communications (San Francisco Bay Area): 650-991-1154Fax 650-991-1186 email laguatanlaw@gmail.com 455 Hickey Blvd. Ste. 516, Daly City, Ca 94014

x x x."

Supreme Court affirms Filipino control of utilities

Supreme Court affirms Filipino control of utilities
See - http://business.inquirer.net/87504/supreme-court-affirms-filipino-control-of-utilities

"x x x.

The Supreme Court (SC) has ruled with finality that the 60-percent Filipino ownership over foreigners required by the Constitution to engage in certain economic activities, particularly public utilities, extended not only to the voting rights but also to the beneficial ownership of the corporation.

In its Oct. 9 ruling released Monday, the high court also reiterated its order for the Securities and Exchange Commission (SEC) to  determine whether Philippine Long Distance Telephone Company (PLDT) was in violation of the 60-40 nationality requirement for companies running public utilities.

Voting 10-3-1, the high court last week denied with finality the petitions filed by businessman and PLDT chair Manuel Pangilinan against its June 28, 2011, ruling on the 60-40 nationality requirement in favor of Filipinos in the operation of public utilities.

The 51-page decision was penned by Associate Justice Antonio Carpio on  Oct. 9 but was only released Monday.

Those who concurred were Carpio, Chief Justice Ma. Lourdes Sereno, Teresita de Castro, Arturo Brion, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, Martin Villarama Jr., Jose Perez and Jose Mendoza. The dissenters  were Associate Justices Roberto Abad, Presbiterio Velasco and Bienvenido Reyes, while Associate Justice Estela Perlas-Bernabe abstained.

In its ruling, the high court said it did not touch on whether  PLDT violated the 60-40 percent requirement, reiterating that the SEC was the “administrative body” tasked to enforce the 60-40 ownership requirement. The court, had “limited its decision on the purely legal and threshold issue on the definition of the term capital, in Section 11, Article XII, of the Constitution.”

During oral arguments of the case, the SEC deferred to the high court’s definition of capital and said that it would comply with its directive with regard to PLDT.

The high court said PLDT must be impleaded in order to fully resolve the issues on whether the sale of the 111,415 Philippine Telecommunications Investment Corp. (PITC) shares in PLDT to First Pacific Co. Ltd. of Hong Kong violated the constitutional limit on foreign ownership; whether the sale of common shares to foreigners exceeded the 40 percent limit on foreign equity and whether the total percentage of PLDT common shares with voting rights complied with the 60-40 ownership requirement in favor of Filipino citizens under the Constitution for the ownership and operation of PLDT.

Since the high court limited its resolution on the legal issue on the definition of the term “capital” and asked the SEC to investigate any violation by PLDT, it said it did not deprive PLDT of any property or deny its right to due process contrary to the “misimpression” of Pangilinan and PLDT president Napoleon Nazareno.

“Due process will be afforded to PLDT when it presents proof to the SEC that it complies, as it claims here, with Section 11, Article XII, of the Constitution,” it said.

The high court had earlier ruled that capital in Section 11 of Article XII of the Constitution referred “only to shares of stock entitled to vote in the election of directors, and thus only to common shares, and not to the total outstanding capital stock (common and nonvoting preferred shares.)

In its decision, the high court maintained that to have “effective control” of a corporation, there should be a right to elect officers as well as beneficial ownership of the firm.

It said this was consistent with Section 3 of the Foreign Investments Act which provides that “where 100 percent of the capital stock is held by “a trustee of funds for pension or other employee retirement or separation benefits,” the trustee is a Philippine national if  at least 60 percent of the fund will accrue to the benefit of Philippine nationals.

The high court underscored the need for such requirement to be applied uniformly and across the board to all classes of shares.

“The 60-40 ownership requirement in favor of Filipinos must apply separately to each class of shares, whether common, preferred nonvoting, preferred voting or any other class of shares,” it said.

The court said the uniform application of the 60-40 ownership requirement in favor of Filipinos to each class of shares “guarantees effective Filipino control of public utilities,” in keeping with the Constitution.

x x x."

September 2012 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG

September 2012 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG

See - http://lexoterica.wordpress.com/2012/10/05/september-2012-philippine-supreme-court-decisions-on-criminal-law-and-procedure/


"x x x.

1.            REVISED PENAL CODE

Conspiracy; evidence. Conspiracy existed here as may be inferred from the concerted actions of the appellants and their co-accused, namely: (1) appellants and their co-accused brought Samuel to a waiting shed located on the left side of the road where the yellow pick-up service vehicle boarded by Mayor Tawan-tawan and his group would pass; (2) appellants and their co-accused, thereafter, assembled themselves on both sides of the road and surreptitiously waited for the aforesaid yellow pick-up service vehicle; (3) the moment the yellow pick-up service vehicle passed by the waiting shed, appellants and their co-accused opened fire and rained bullets thereon resulting in the killing and wounding of the victims; (4) immediately, appellants and their co-accused ran towards the house of Samuel’s aunt to get their bags and other stuff; (5) Samuel followed appellants and their co-accused; and (6) appellants and their co-accused fled. Conspiracy is very much evident from the afore-enumerated actuations of the appellants and their co-accused. They were synchronized in their approach to riddle with bullets the vehicle boarded by Mayor Tawan-tawan and his group. They were motivated by a single criminal impulse ─ to kill the victims. Conspiracy is implied when the accused persons had a common purpose and were united in its execution. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Conspiracy; responsibility. Spontaneous agreement or active cooperation by all perpetrators at the moment of the commission of the crime is sufficient to create joint criminal responsibility. With the presence of conspiracy here, appellants and their co-accused had assumed joint criminal responsibility ─ the act of one is the act of all. The ascertainment of who among them actually hit, killed and/or caused injury to the victims already becomes immaterial. Collective responsibility replaced individual responsibility. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Estafa; elements. Estafaunder Article 315, paragraph 2(a) of the Revised Penal Code is committed by any person who defrauds another by using fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the commission of fraud. The elements of estafa by means of deceit are the following: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage. People of the Philippines v. Melissa Chua @ Clarita NG Chua, G.R. No. 187052, September 13, 2012.

Estafa; elements. Here, the prosecution has established that appellant defrauded the complaining witnesses by leading them to believe that she has the capacity to send them to Taiwan for work, even if she does not have a license or authority for the purpose. Such misrepresentation came before private complainants deliveredP80,000 as placement fee to appellant. Clearly, private complainants would not have parted with their money were it not for such enticement by appellant. As a consequence of appellant’s false pretenses, the private complainants suffered damages as the promised employment abroad never materialized and the money they paid was never recovered. People of the Philippines v. Melissa Chua @ Clarita NG Chua, G.R. No. 187052, September 13, 2012.

Murder; damages. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages. Article 2206 of the Civil Code provides that when death occurs as a result of a crime, the heirs of the deceased are entitled to be indemnified for the death of the victim without need of any evidence or proof thereof. Moral damages like civil indemnity, is also mandatory upon the finding of the fact of murder. Therefore, the trial court and the appellate court properly awarded civil indemnity in the amount ofP50,000.00 and moral damages also in the amount of P50,000.00 to the heirs of each deceased victims. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Murder; exemplary damages. Article 2230 of the Civil Code states that exemplary damages may be imposed when the crime was committed with one or more aggravating circumstances. Here, treachery may no longer be considered as an aggravating circumstance since it was already taken as a qualifying circumstance in the murder, and abuse of superior strength which would otherwise warrant the award of exemplary damages was already absorbed in the treachery.  However, in People v. Combate, the Supreme Court (“SC”) still awards exemplary damages despite the lack of any aggravating circumstance to deter similar conduct and to serve as an example for public good. To deter future similar transgressions, the SC finds that an award of P30,000.00 as exemplary damages in favor of the heirs of each deceased victims is proper. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Murder; temperate damages. Actual damages cannot be awarded for failure to present the receipts covering the expenditures for the wake, coffin, burial and other expenses for the death of the victims. In lieu thereof, temperate damages may be recovered where it has been shown that the victim’s family suffered some pecuniary loss but the amount thereof cannot be proved with certainty as provided for under Article 2224 of the Civil Code. In this case, it cannot be denied that the heirs of the deceased victims suffered pecuniary loss although the exact amount was not proved with certainty. Thus, the SC similarly awards P25,000.00 as temperate damages to the heirs of each deceased victims. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Rape; penalty. Article 266-B of the Revised Penal Code provides that the penalty of death shall be imposed upon the accused if the victim of rape is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim. To justify the imposition of the death penalty, however, it is required that the special qualifying circumstances of minority of the victim and her relationship to appellant be properly alleged in the information and duly proved during the trial. All these requirements were duly established here. In the two Informations, it was alleged that AAA was 16 years old when the incidents happened. Her minority was buttressed not only by her testimony during trial but likewise by her Certificate of Live Birth showing that she was born on August 3, 1985. With respect to her relationship to appellant, it was likewise specifically alleged in the Informations that appellant is AAA’s father. During trial, appellant categorically admitted that AAA is his daughter. Since the death penalty for heinous crimes has been abolished by RA 9346, the appellate court correctly modified the trial court’s imposition of the death penalty by reducing death as a penalty to reclusion perpetua without eligibility for parole. People of the Philippines v. Antonio Venturina, G.R. No. 183097, September 12, 2012.

Rape; penetration required. The Supreme Court (“SC”) ruled that the prosecution failed to prove appellant’s guilt beyond reasonable doubt of the crime of consummated rape. The SC instead convicted him of attempted rape, as the evidence on record shows the presence of all the elements of this crime. The SC found that appellant’s penis did not penetrate, but merely ‘touched’ (i.e., “naidikit”) AAA’s private part. AAA confirmed on cross-examination that the appellant did not succeed in inserting his penis into her vagina. AAA’s Sinumpaang Salaysay also disclosed that the appellant was holding her hand when he was trying to insert his penis in her vagina. This circumstance – coupled with AAA’s declaration that she was resisting appellant’s attempt to insert his penis into her vagina – makes penile penetration highly difficult, if not improbable. AAA’s testimony did not establish that the appellant’s penis touched the labia or slid into her private part. Without any showing of penetration, there can be no consummated rape; at most, it can only be attempted rape or acts of lasciviousness. Thus, appellant cannot be convicted of consummated rape. People of the Philippines v. Christopher Pareja y Velasco, G.R. No. 188979, September 5, 2012.

Statutory rape; Pruna guidelines. Accused Lupac appeals the decision of the Court of Appeals (“CA”) which affirmed his conviction for the crime of rape but modified the characterization of the offense as statutory rape because of the failure of the prosecution to properly establish that the victim is under 12 years of age at the time of the rape. In convicting Lupac of statutory rape as defined and penalized under Paragraph 1(d), Article 266-A of the Revised Penal Code, as amended by RA 8353, the Regional Trial Court concluded that although the qualifying circumstance of relationship had not been proven, AAA’s testimony showing her age of only 11 years at the time of the rape sufficed to prove her age as an essential element in statutory rape. The Supreme Court (“SC”) concurred with the CA. Although the information alleged that AAA had been only 10 years of age at the time of the commission of the rape, the prosecution did not reliably establish the age of the victim in accordance with the guidelines for competently proving such age laid down by the SC in People v. Pruna. People of the Philippines v. Edgardo Lupac y Flores, G.R. No. 182230, September 19, 2012.

Statutory rape; Pruna guidelines. The evidence adduced by the prosecution did not satisfy two of the Pruna guidelines, namely: [i] In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused; and [ii] it is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.People of the Philippines v. Edgardo Lupac y Flores, G.R. No. 182230, September 19, 2012.

Treachery. Treachery, which was alleged in the Information, attended the commission of the crime. The Supreme Court in a plethora of cases has consistently held that there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution without risk to himself arising from the defense that the offended party might make. There are two (2) conditions that must concur for treachery to exist, to wit: (a) the employment of means of execution gave the person attacked no opportunity to defend himself or to retaliate; and (b) the means or method of execution was deliberately and consciously adopted. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Treachery. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape. The deadly successive shots of the appellants and their co-accused did not allow the hapless victims any opportunity to put up a decent defense. The attack was executed by appellants and their-co-accused in such a vicious manner as to make the defense virtually impossible. Appellants had murder in their hearts when they waylaid their unwary victims. Thus, appellants should be held liable for murder.People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

2.         SPECIAL PENAL LAWS

Illegal recruitment; elements. In order to hold a person liable for illegal recruitment, the following elements must concur: (1) the offender undertakes any of the activities within the meaning of “recruitment and placement” under Article 13(b)20 of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the Labor Code (now Section 6 of RA 8042) and (2) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers. In the case of illegal recruitment in large scale, a third element is added: that the offender commits any of the acts of recruitment and placement against three or more persons, individually or as a group. All three elements are present in the case at bar. People of the Philippines v. Melissa Chua @ Clarita NG Chua, G.R. No. 187052, September 13, 2012.

Illegal recruitment; elements. Inarguably, appellant Chua engaged in recruitment when she represented to private complainants that she could send them to Taiwan as factory workers upon submission of the required documents and payment of the placement fee. The four private complainants positively identified appellant as the person who promised them employment as factory workers in Taiwan for a fee ofP80,000. The Senior Labor Employment Officer of the POEA presented a certification to the effect that appellant Chua is not licensed by the POEA to recruit workers for overseas employment. The prosecution witnesses were positive and categorical in their testimonies that they personally met appellant and that the latter promised to send them abroad for employment. Appellant cannot escape liability by conveniently limiting her participation as a cashier of Golden Gate. The provisions of Article 13(b) of the Labor Code and Section 6 of RA 8042 are unequivocal that illegal recruitment may or may not be for profit. It is immaterial, therefore, whether appellant remitted the placement fees to “the agency’s treasurer” or appropriated them. People of the Philippines v. Melissa Chua @ Clarita NG Chua, G.R. No. 187052, September 13, 2012.

Illegal sale of drugs; elements. After a buy-bust operation conducted by the police operatives, accused were charged with illegal sale and illegal possession of shabu. In ruling against the accused, the Supreme Court (“SC”) cited People of the Philippines v. Ricky Unisa y Islan, where it held that the sale of prohibited drugs is consummated upon delivery of the drugs to the buyer: “For a successful prosecution of the offense of illegal sale of dangerous drugs, like shabu, the following elements must first be established: (1) the identity of the buyer and the seller, the object and consideration of the sale; and (2) the delivery of the thing sold and the payment therefor. What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. Clearly, the commission of the offense of illegal sale of dangerous drugs, like shabu, merely requires the consummation of the selling transaction, which happens the moment the buyer receives the drug from the seller. As long as the police officer went through the operation as a buyer, whose offer was accepted by appellant, followed by the delivery of the dangerous drugs to the former, the crime is already consummated.” As borne by the records, all the above elements constituting the sale of shabuby the appellants were clearly testified to by PO Hamdani who averred that he received P1,000.00 worth of shabufrom accused after the latter gave the buy-bust money to De Jesus. Accordingly, the SC found the accused guilty of violating Section 5, Article II of RA 9165. People of the Philippines v. Ronald De Jesus y Apacible and Amelito Dela Cruz y Pua, G.R. No. 191753, September 17, 2012.

Illegal sale of drugs; elements. Accused cites several irregularities in the conduct of the buy-bust operation and in the presentation of the corpus delicti. The Supreme Court (“SC”) gave no credence to his arguments. The elements necessary for the prosecution of illegal sale of drugs are: (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. Sistemio, the poseur-buyer in this case, positively testified that the sale of shabu actually took place when he himself parted with the marked money and received the shabu from appellant. Yu corroborated Sistemio’s narration, as he also personally witnessed the transaction given that he was posted a few meters away from Sistemio and the accused. The SC also found that the integrity and the evidentiary value of the seized items were properly preserved by the buy-bust team under the chain of custody rule. Under these circumstances, the prosecution has established beyond doubt an unbroken link in the chain of custody. Hence, it has been established by proof beyond reasonable doubt that appellant here sold shabu.People of the Philippine v. Mohamad Angkob y Mlang, G.R. No. 191062, September 19, 2012.

Illegal sale of drugs; elements. The Supreme Court affirmed the conviction of the accused for illegal sale of dangerous drugs after finding that the following elements were sufficiently proved beyond reasonable doubt: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment thereto. The identity of the buyer and the seller were both established by the prosecution, appellant being the seller and PO1 Soquiña as the poseur-buyer. The object of the transaction was the five sachets of Methylamphetamine Hydrochloride orshabu and the consideration was the P500.00 marked money. Both such object and consideration have also been sufficiently established by testimonial and documentary evidence presented by the prosecution. As to the delivery of the thing sold and the payment therefor, PO1 Soquiña caught appellant in flagrante delicto selling and delivering the prohibited substance during a buy-bust operation. He also personally handed to appellant the marked money as payment for the same. Clearly, the above-mentioned elements are present in this case. People of the Philippines v. Calexto D. Fundales, G.R. No. 184606, September 5, 2012.

3.         CRIMINAL PROCEDURE

Arrest; warrantless arrest. Under Section 5 (a), Rule 113 of the Rules of Court, a person may be arrested without a warrant if he “has committed, is actually committing, or is attempting to commit an offense.” Accused contends that the police officers arrested him without securing a warrant of arrest, and because his arrest was unlawful, the sachets of shabuallegedly seized from him were inadmissible in evidence. Accused was caught in the act of committing an offense during a buy-bust operation. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police officers are not only authorized but duty-bound to arrest him even without a warrant. An arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid “warrantless arrest.” Accused argues that force and intimidation attended his arrest when four police officers arrested him and one of them pointed a gun at him. However, the Court of Appeals found that the defense neither objected to the accused’s arrest nor filed any complaint against the police officers. Considering that an arrest was lawfully made, the search incidental to such arrest was also valid. A person lawfully arrested may be searched, without a search warrant, for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense. Accordingly, the two sachets of shabu seized in the present case are admissible as evidence. People of the Philippines v. Jose Almodiel alias “Dodong Astrobal,” G.R. No. 200951, September 5, 2012.

Evidence; denial and alibi. Both denial and alibi are inherently weak defenses which cannot prevail over the positive and credible testimonies of the prosecution witnesses that appellants committed the crime. For alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that appellants were somewhere else when the crime happened. They must also demonstrate by clear and convincing evidence that it was physically impossible for them to have been at the scene of the crime at the approximate time of its commission. Unless substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving of any weight in law. A mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Evidence; denial and alibi. In this case, both appellants claimed that they were just in their respective houses in Poblacion, Salvador, Lanao del Norte, when the ambush incident happened and they have no involvement whatsoever in the commission thereof. The defense of alibimay not prosper if it is established mainly by the appellant himself and his relatives, and not by credible persons. Mere denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law. Between the categorical and positive assertions of the prosecution witnesses and the negative averments of the accused which are uncorroborated by reliable and independent evidence, the former indisputably deserve more credence and are entitled to greater evidentiary weight. Withal, it was not physically impossible for the appellants to be at the scene of the crim. Poblacion, Salvador, Lanao del Norte, where both appellants’ reside, is only about seven (7) kilometers away from San Manuel, Lala, Lanao del Norte, where the ambush took place. People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012.

Leave to file demurrer; period to file demurrer. One of the issues raised by Reyes in this case is whether the Sandiganbayan gravely abused its discretion in counting the period to file a motion for leave to file demurrer from the receipt of the Order admitting the prosecution’s formal offer of evidence. Reyes insists that the counting of the 5-day period to file the motion must be from the denial of her opposition to the order admitting the prosecution’s documentary evidence. Section 23, Rule 119 of the Rules of Criminal Procedure provides that a “motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case.” This period runs, according to Cabador v. People, only after the court shall have ruled on the prosecution’s formal offer for that is when it can be deemed to have rested its case. Here, Reyes filed a timely motion for reconsideration of the Sandiganbayan’s ruling on the prosecution’s formal offer, which is allowed, thus preventing the prosecution from resting its case. When the Sandiganbayan denied Reyes’ motion for reconsideration, she filed with it, within the required five days of her receipt of the order of denial, her motion for leave to file demurrer to evidence. Elsa B. Reyes v. Sandiganbayan and People of the Philippines/Artemio C. Mendoza v. Sandiganbayan and People of the Philippines/Elsa B. Reyes v. People of the Philippines/Caridad A. Miranda v. People of the Philippines, G.R. No. 148607/G.R. No. 167202/G.R. No. 167223/G.R. No. 167271, September 5, 2012.

Leave to file demurrer; discretion of court to deny filing of demurrers. Still, the Sandiganbayan’s error in not allowing Reyes to ask for leave to file a demurrer to the evidence cannot be regarded as capricious and whimsical as to constitute grave abuse of discretion. Courts have wide latitude for denying the filing of demurrers to evidence. An order denying a motion for leave of court to file demurrer to evidence or the demurrer itself is not subject to appeal or certiorari action before judgment. The remedy is to assign the order of denial as an error on appeal after judgment. Elsa B. Reyes v. Sandiganbayan and People of the Philippines/Artemio C. Mendoza v. Sandiganbayan and People of the Philippines/Elsa B. Reyes v. People of the Philippines/Caridad A. Miranda v. People of the Philippines, G.R. No. 148607/G.R. No. 167202/G.R. No. 167223/G.R. No. 167271, September 5, 2012.

(Lindy thanks Janette R. Ancog and Izabel F. Serina for assisting in the preparation of this post.)

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Daniel Wagner: Monkey Business as Usual in the Philippines

Daniel Wagner: Monkey Business as Usual in the Philippines
See - http://www.huffingtonpost.com/daniel-wagner/monkey-business-as-usual_b_1967520.html

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In July we pondered whether and to what degree former Philippine President Arroyo's release on bail would be indicative of the eventual verdict in the electoral sabotage and plunder charges against her. We also wondered to what extent public perception of the prosecution's evidence in both cases will ultimately stand or be torn apart by a combination of evidentiary weakness, a corrupt judiciary, or both. In a country where the legal and judicial culture is allergic to pre-trial discovery and habitually backslides into court-enforced fishing expeditions or the marshaling of evidence during trial, it may still be that the element of surprise is the rule in the Philippines, and transparency the exception.

Following eight months of hospital arrest, the regional trial court -- a court of plenary jurisdiction -- released Arroyo on bail in July, on the ground that the evidence in the electoral sabotage case against her was "weak." But on Oct. 4, the Sandiganbayan -- the specialized anti-graft court where her plunder case is pending -- issued an order again placing her under arrest. Arroyo's defense attorneys immediately moved for a bail hearing, and to place her, as before, under hospital arrest, instead of in a regular detention facility. This bail hearing is slated for Thursday this week.

While media circles are quick to point out that Arroyo was "rearrested," this can be misconstrued to mean that the same judge simply changed his mind, which isn't the case. "Plunder" and "electoral sabotage" are distinct offenses under Philippine criminal statutes which require different venues and courts. If one were to stay close to the law-in-the-books, one criminal case ought to have no bearing upon the other. But the two cases have naturally become politicized -- so much so that black letter statutes and fine print criminal procedure may be bent, depending on a judge's own political persuasion and/or inclination toward self-promotion.

A conviction in just one of the charges will carry years (if not decades of imprisonment) for Arroyo, but a disaggregated judicial system such as that of the Philippines may bode well for the prosecution for the simple reason that the cases are severable: If the government were to fail in knocking down the accused in one charge in one court, it may still resort to case building for another charge under a different judge. In Arroyo's electoral sabotage case, where she has been on bail since July, the discretion of only one ordinary trial court judge was at stake, whereas the plunder cases are under the Sandiganbayan (roughly translated as the "People's Advocate" under the local vernacular). Unlike ordinary trial courts, the Sandiganbayan is a specialized collegial court, equivalent to an appeals court, and consists of 14 associate "justices" and one "presiding justice." One can thus make a case that the recent arrest order had gone through greater deliberative scrutiny than the July bail order, with the latter issued by a lone judge.

On the count of plunder, Arroyo was charged with plundering the national treasury by diverting Php 316 million (approximately $7.5 million) from the funds of the Philippine Charity Sweepstakes Office. Arroyo is also facing a second plunder charge which alleges that she unduly intervened in a state contract with the Chinese firm ZTE Corporation -- a contract involving the national broadband network. Whereas in the electoral sabotage case pending before the ordinary courts, Arroyo is accused of conspiring with officials in Mindanao, the southern region of the country, of rigging the 2004 and 2007 national elections.

With the element of surprise as the rule in criminal trials, we think it is too early to tell whether an eventual conviction will follow. On its face, the fact that a former president is facing a string of charges operating in several criminal courts under a disaggregated judicial system will certainly allow prosecutors to play several hands of several cards. But in highly politicized cases such as this, public perceptions and expectations can bear upon judicial findings across the board -- one charge in one court, if lacking in evidence, being eventually dropped, can affect another judge's mind elsewhere.

Indeed this may have been the case in the impeachment trial of former Philippine Chief Justice Corona, an Arroyo appointee accused of taking up a "midnight appointment." In the impeachment trial, the House prosecution panel dropped five of the eight Articles of Impeachment, with just three formally submitted to the Senate impeachment court for judgment. In May, the Senate, voting 20-3, convicting Corona under Article II, which charged him of failing to disclose an accurate statement of his assets, liabilities, and net worth -- a requirement that arguably rises to the level of a constitutional obligation for Philippine public officials great and small.

The other impeachment charges, while dropped, accused Corona of unduly influencing the other members of the Supreme Court and of distorting the decisional process occurring between the genuine result of the deliberation and the formal promulgation of judgment -- all to favor Arroyo and her husband. Corona was, in fact, the chief of staff and spokesperson of Arroyo prior to her rise to the presidency. While charges were dropped, the media and the public mind however had been shaped in no small part by the associations and insinuations those very charges made. Certainly a Senate, sitting as an impeachment court, is no judicial court in the strict sense, but Arroyo's trial can showcase whether meaningful change in Philippine society is indeed taking place, or whether Filipinos are backsliding into the same monkey business that has occurred since the days of Marcos's Martial Law.

Looking at the machinations occurring -- which had Arroyo under 'hospital' arrest for what was a previously undisclosed condition prior to charges having been made (she had no neck brace or 'ailment' as president) rather than in a jail cell, and which have her sprung from her private hospital room on bail, while her lawyers and supporters presumably attempt to work their 'magic' behind the scenes in making it all disappear -- one has to wonder if justice can truly stand a chance of being served in this case, and just how much progress has truly been made, or can be made, in such a judicial system. We have our doubts.

The authors acknowledge a forthcoming article on the topic under JURIST.org.

Edsel Tupaz was a private prosecutor of the House prosecution panel in the recently concluded impeachment trial of Philippine Chief Justice Renato Corona.

Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consultancy based in Connecticut (USA), and author of the new book 'Managing Country Risk.'

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