Tuesday, June 9, 2020
Executive immunity By: Fr. Joaquin G. Bernas S. J. - @inquirerdotnet
See - https://opinion.inquirer.net/76532/executive-immunity?fbclid=IwAR14mykqJ9r8sxWOE4HYGOCnXZwfFAic2urQmMiCs4jTCV5c5r5ffWeumEI#ixzz6MN87Rrus
"x x x.
Executive immunity
Philippine Daily Inquirer / 12:08 AM July 14, 2014
There is no provision in the Constitution clothing the president with immunity from suit. The 1973 Constitution had a specific provision guaranteeing the president’s immunity but the 1987 Constitution did not preserve this provision.
Nevertheless, executive immunity dates back to the cases of governor generals. The subsistence of this doctrine under the 1987 Constitution was confirmed in Soliven vs Judge Makasiar which assumed that indeed the president, Cory Aquino in this case, enjoys immunity. The Court said: “The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.”
Does executive immunity continue even after the president leaves office? This came up in the case of Estrada vs Desierto. Estrada, prosecuted for plunder after having left the presidency, pleaded presidential immunity from suit as his defense. Moreover, he claimed that he could not be sued before the impeachment could be terminated. On this matter the Court said: “We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting President. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.”
Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US vs Nixon, US President Richard Nixon, a sitting president, was subpoenaed to produce certain recordings and documents relating to his conversations with aides and advisers. Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice. President Nixon himself was named as an unindicted coconspirator. President Nixon moved to quash the subpoena on the grounds, among others, that the president was not subject to judicial process, and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon vs Fitzgerald, the US Supreme Court further held that the immunity of the president from civil damages covers only “official acts.” The US Supreme Court had the occasion to reiterate this doctrine in a case where it held that the US president’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. It declares as a state policy that “(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” It ordains that “(p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.” It sets the rule that “(t)he right of the State to recover properties unlawfully acquired by public officials or employees from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.” It maintains the Sandiganbayan as an antigraft court. It creates the Office of the Ombudsman and endows it with enormous powers, among which is to “(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” The Office of the Ombudsman is also given fiscal autonomy. These constitutional policies will be devalued if we sustain the claim that a nonsitting president enjoys immunity from suit for criminal acts committed during his incumbency.
x x x."
Read more: https://opinion.inquirer.net/76532/executive-immunity#ixzz6OqsqVWBf
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There is no provision in the Constitution clothing the president with immunity from suit. The 1973 Constitution had a specific provision guaranteeing the president’s immunity but the 1987 Constitution did not preserve this provision.
Nevertheless, executive immunity dates back to the cases of governor generals. The subsistence of this doctrine under the 1987 Constitution was confirmed in Soliven vs Judge Makasiar which assumed that indeed the president, Cory Aquino in this case, enjoys immunity. The Court said: “The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.”
Does executive immunity continue even after the president leaves office? This came up in the case of Estrada vs Desierto. Estrada, prosecuted for plunder after having left the presidency, pleaded presidential immunity from suit as his defense. Moreover, he claimed that he could not be sued before the impeachment could be terminated. On this matter the Court said: “We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting President. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.”
Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US vs Nixon, US President Richard Nixon, a sitting president, was subpoenaed to produce certain recordings and documents relating to his conversations with aides and advisers. Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice. President Nixon himself was named as an unindicted coconspirator. President Nixon moved to quash the subpoena on the grounds, among others, that the president was not subject to judicial process, and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon vs Fitzgerald, the US Supreme Court further held that the immunity of the president from civil damages covers only “official acts.” The US Supreme Court had the occasion to reiterate this doctrine in a case where it held that the US president’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. It declares as a state policy that “(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” It ordains that “(p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.” It sets the rule that “(t)he right of the State to recover properties unlawfully acquired by public officials or employees from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.” It maintains the Sandiganbayan as an antigraft court. It creates the Office of the Ombudsman and endows it with enormous powers, among which is to “(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.” The Office of the Ombudsman is also given fiscal autonomy. These constitutional policies will be devalued if we sustain the claim that a nonsitting president enjoys immunity from suit for criminal acts committed during his incumbency.
x x x."
Read more: https://opinion.inquirer.net/76532/executive-immunity#ixzz6OqsqVWBf
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Waiver of rights under Article 125, Rev. Penal Code; effect of. - "Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without a warrant opts for the conduct of preliminary investigation.1âwphi1 The question to be addressed here, therefore, is whether such waiver gives the State the right to detain a person indefinitely. The Court answers in the negative. The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty."
See - https://lawphil.net/judjuris/juri2017/jul2017/gr_232413_2017.html
G.R. No. 232413, July 25, 2017, En Banc,
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS WITH PETITION FOR RELIEF INTEGRATED BAR OF THE PHILIPPINES PANGASINAN LEGAL AID and JAY-AR R. SENIN, Petitioners
vs.
DEPARTMENT OF JUSTICE, PROVINCIAL PROSECUTOR'S OFFICE, BUREAU OF JAIL MANAGEMENT AND PENOLOGY, and PHILIPPINE NATIONAL POLICE, Respondents
"x x x.
The rule pertaining to pre-trial
detainees whose cases are under
preliminary investigation, or
whose cases have been dismissed
on inquest, preliminary
investigation but pending appeal,
motion for reconsideration,
reinvestigation or automatic
review
Although the latest circular of Secretary Aguirre is laudable as it adheres to the constitutional provisions on the rights of pre-trial detainees, the Court will not dismiss the case on the ground of mootness. As can be gleaned from the ever-changing DOJ circulars, there is a possibility that the latest circular would again be amended by succeeding secretaries. It has been repeatedly held that "the Court will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest are involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.5 All four (4) requisites are present in this case.
As the case is prone to being repeated as a result of constant changes, the Court, as the guardian and final arbiter of the Constitution6 and pursuant to its prerogative to promulgate rules concerning the protection and enforcement of constitutional rights,7 takes this opportunity to lay down controlling principles to guide the bench, the bar and the public on the propriety of the continued detention of an arrested person whose case has been dismissed on inquest, preliminary investigation, reinvestigation, or appeal but pending automatic review by the SOJ.
The rule is that a person subject of a warrantless arrest must be delivered to the proper judicial authorities8 within the periods provided in Article 125 of the RPC, otherwise, the public official or employee could be held liable for the failure to deliver except if grounded on reasonable and allowable delays. Article 125 of the RPC is intended to prevent any abuse resulting from confining a person without informing him of his offense and without allowing him to post bail. It punishes public officials or employees who shall detain any person for some legal ground but fail to deliver such person to the proper judicial authorities within the periods prescribed by law. In case the detention is without legal ground, the person arrested can charge the arresting officer with arbitrary detention under Article 124 of the RPC. This is without prejudice to the possible filing of an action for damages under Article 32 of the New Civil Code of the Philippines.
Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without a warrant opts for the conduct of preliminary investigation.1âwphi1 The question to be addressed here, therefore, is whether such waiver gives the State the right to detain a person indefinitely.
The Court answers in the negative.
The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty.
Stated differently, the waiver of the effects of Article 125 of the RPC is not a license to detain a person ad infinitum. Waiver of a detainee's right to be delivered to proper judicial authorities as prescribed by Article 125 of the RPC does not trump his constitutional right in cases where probable cause was initially found wanting by reason of the dismissal of the complaint filed before the prosecutor's office even if such dismissal is on appeal, reconsideration, reinvestigation or on automatic review. Every person's basic right to liberty is not to be construed as waived by mere operation of Section 7, Rule 112 of the Rules of Court. The fundamental law provides limits and this must be all the more followed especially so that detention is proscribed absent probable cause.
Accordingly, the Court rules that a detainee under such circumstances must be promptly released to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-day period (or the thirty 30- day period in cases of violation of R.A. No. 91659 ) for the conduct of the preliminary investigation lapses. This rule also applies in cases where the investigating prosecutor resolves to dismiss the case, even if such dismissal was appealed to the DOJ or made the subject of a motion for reconsideration, reinvestigation or automatic review. The reason is that such dismissal automatically results in a prima facie finding of lack of probable cause to file an information in court and to detain a person.
The Court is aware that this decision may raise discomfort to some, especially at this time when the present administration aggressively wages its "indisputably popular war on illegal drugs." As Justice Diosdado Peralta puts it, that the security of the public and the interest of the State would be jeopardized is not a justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due process of law, to be presumed innocent until the contrary is proved and to a speedy disposition of the case.
x x x."
Legal effect of "waiver" of Article 125 of the Revised Penal Code, re: maxium police detention time while the suspect is under "inquest proceedings" before a prosecutor after undergoing "valid warantless arrest", pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure. - Manuel Laserna Jr.
Legal effect of "waiver" of Article 125 of the Revised Penal Code, re: maxium police detention time while the suspect is under "inquest proceedings" before a prosecutor after undergoing "valid warantless arrest", pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure.
Supreme Court en banc decision c. 2017:
"The rule is that a person subject of a warrantless arrest must be delivered to the proper judicial authorities8 within the periods provided in Article 125 of the RPC, otherwise, the public official or employee could be held liable for the failure to deliver except if grounded on reasonable and allowable delays. Article 125 of the RPC is intended to prevent any abuse resulting from confining a person without informing him of his offense and without allowing him to post bail. It punishes public officials or employees who shall detain any person for some legal ground but fail to deliver such person to the proper judicial authorities within the periods prescribed by law. In case the detention is without legal ground, the person arrested can charge the arresting officer with arbitrary detention under Article 124 of the RPC. This is without prejudice to the possible filing of an action for damages under Article 32 of the New Civil Code of the Philippines.
Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without a warrant opts for the conduct of preliminary investigation.The question to be addressed here, therefore, is whether such waiver gives the State the right to detain a person indefinitely.
The Court answers in the negative.
The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty.
Stated differently, the waiver of the effects of Article 125 of the RPC is not a license to detain a person ad infinitum. Waiver of a detainee's right to be delivered to proper judicial authorities as prescribed by Article 125 of the RPC does not trump his constitutional right in cases where probable cause was initially found wanting by reason of the dismissal of the complaint filed before the prosecutor's office even if such dismissal is on appeal, reconsideration, reinvestigation or on automatic review. Every person's basic right to liberty is not to be construed as waived by mere operation of Section 7, Rule 112 of the Rules of Court. The fundamental law provides limits and this must be all the more followed especially so that detention is proscribed absent probable cause.
Accordingly, the Court rules that a detainee under such circumstances must be promptly released to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-day period (or the thirty 30- day period in cases of violation of R.A. No. 91659 ) for the conduct of the preliminary investigation lapses. This rule also applies in cases where the investigating prosecutor resolves to dismiss the case, even if such dismissal was appealed to the DOJ or made the subject of a motion for reconsideration, reinvestigation or automatic review. The reason is that such dismissal automatically results in a prima facie finding of lack of probable cause to file an information in court and to detain a person.
The Court is aware that this decision may raise discomfort to some, especially at this time when the present administration aggressively wages its "indisputably popular war on illegal drugs." As Justice Diosdado Peralta puts it, that the security of the public and the interest of the State would be jeopardized is not a justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due process of law, to be presumed innocent until the contrary is proved and to a speedy disposition of the case.
WHEREFORE, it is hereby declared, and ruled, that all detainees whose pending cases have gone beyond the mandated periods for the conduct of preliminary investigation, or whose cases have already been dismissed on inquest or preliminary investigation, despite pending appeal, reconsideration, reinvestigation or automatic review by the Secretary of Justice, are entitled to be released pursuant to their constitutional right to liberty and their constitutional right against unreasonable seizures, unless detained for some other lawful cause.
SO ORDERED."
Read:
Supreme Court En Banc Decision.
G.R. No. 232413, July 25, 2017.
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS WITH PETITION FOR RELIEF INTEGRATED BAR OF THE PHILIPPINES PANGASINAN LEGAL AID and JAY-AR R. SENIN, Petitioners.
vs.
DEPARTMENT OF JUSTICE, PROVINCIAL PROSECUTOR'S OFFICE, BUREAU OF JAIL MANAGEMENT AND PENOLOGY, and PHILIPPINE NATIONAL POLICE, Respondents.
Notes:
Section 125, Revised Penal Code:
"Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent."
Section, Rule 112, Rules of Criminal Procedure:
"Section 7. When accused lawfully arrested without warrant. - When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule."
Section 90, R.A. 9165, "Comprehensive Dangerous Drugs Act of 2002":
Republic Act No. 9165, Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.
The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing.
When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case.
Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution.
The Implementing Rules and Regulations of the law further states:
Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of the Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.
The DOJ, through its provincial/city prosecution offices, shall designate special prosecutors to exclusively handle cases involving violations of the Act.
The preliminary investigation of cases filed under the Act shall be terminated within a period of thirty (30) days from the date of their filing.
When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case.
However, when the prosecutor disagrees with the finding of the Municipal Trial Court and he/she finds the need to conduct a formal reinvestigation of the case to clarify issues, or to afford either party the opportunity to be heard to avoid miscarriage of justice, the prosecutor has to terminate the reinvestigation within fifteen (15) days from receipt of the records, and if probable cause exists, to file the corresponding information in court within forty-eight (48) hours from termination of the reinvestigation.
Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution."
Supreme Court en banc decision c. 2017:
"The rule is that a person subject of a warrantless arrest must be delivered to the proper judicial authorities8 within the periods provided in Article 125 of the RPC, otherwise, the public official or employee could be held liable for the failure to deliver except if grounded on reasonable and allowable delays. Article 125 of the RPC is intended to prevent any abuse resulting from confining a person without informing him of his offense and without allowing him to post bail. It punishes public officials or employees who shall detain any person for some legal ground but fail to deliver such person to the proper judicial authorities within the periods prescribed by law. In case the detention is without legal ground, the person arrested can charge the arresting officer with arbitrary detention under Article 124 of the RPC. This is without prejudice to the possible filing of an action for damages under Article 32 of the New Civil Code of the Philippines.
Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without a warrant opts for the conduct of preliminary investigation.The question to be addressed here, therefore, is whether such waiver gives the State the right to detain a person indefinitely.
The Court answers in the negative.
The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty.
Stated differently, the waiver of the effects of Article 125 of the RPC is not a license to detain a person ad infinitum. Waiver of a detainee's right to be delivered to proper judicial authorities as prescribed by Article 125 of the RPC does not trump his constitutional right in cases where probable cause was initially found wanting by reason of the dismissal of the complaint filed before the prosecutor's office even if such dismissal is on appeal, reconsideration, reinvestigation or on automatic review. Every person's basic right to liberty is not to be construed as waived by mere operation of Section 7, Rule 112 of the Rules of Court. The fundamental law provides limits and this must be all the more followed especially so that detention is proscribed absent probable cause.
Accordingly, the Court rules that a detainee under such circumstances must be promptly released to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-day period (or the thirty 30- day period in cases of violation of R.A. No. 91659 ) for the conduct of the preliminary investigation lapses. This rule also applies in cases where the investigating prosecutor resolves to dismiss the case, even if such dismissal was appealed to the DOJ or made the subject of a motion for reconsideration, reinvestigation or automatic review. The reason is that such dismissal automatically results in a prima facie finding of lack of probable cause to file an information in court and to detain a person.
The Court is aware that this decision may raise discomfort to some, especially at this time when the present administration aggressively wages its "indisputably popular war on illegal drugs." As Justice Diosdado Peralta puts it, that the security of the public and the interest of the State would be jeopardized is not a justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due process of law, to be presumed innocent until the contrary is proved and to a speedy disposition of the case.
WHEREFORE, it is hereby declared, and ruled, that all detainees whose pending cases have gone beyond the mandated periods for the conduct of preliminary investigation, or whose cases have already been dismissed on inquest or preliminary investigation, despite pending appeal, reconsideration, reinvestigation or automatic review by the Secretary of Justice, are entitled to be released pursuant to their constitutional right to liberty and their constitutional right against unreasonable seizures, unless detained for some other lawful cause.
SO ORDERED."
Read:
Supreme Court En Banc Decision.
G.R. No. 232413, July 25, 2017.
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS WITH PETITION FOR RELIEF INTEGRATED BAR OF THE PHILIPPINES PANGASINAN LEGAL AID and JAY-AR R. SENIN, Petitioners.
vs.
DEPARTMENT OF JUSTICE, PROVINCIAL PROSECUTOR'S OFFICE, BUREAU OF JAIL MANAGEMENT AND PENOLOGY, and PHILIPPINE NATIONAL POLICE, Respondents.
Notes:
Section 125, Revised Penal Code:
"Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent."
Section, Rule 112, Rules of Criminal Procedure:
"Section 7. When accused lawfully arrested without warrant. - When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule."
Section 90, R.A. 9165, "Comprehensive Dangerous Drugs Act of 2002":
Republic Act No. 9165, Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.
The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing.
When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case.
Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution.
The Implementing Rules and Regulations of the law further states:
Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of the Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.
The DOJ, through its provincial/city prosecution offices, shall designate special prosecutors to exclusively handle cases involving violations of the Act.
The preliminary investigation of cases filed under the Act shall be terminated within a period of thirty (30) days from the date of their filing.
When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case.
However, when the prosecutor disagrees with the finding of the Municipal Trial Court and he/she finds the need to conduct a formal reinvestigation of the case to clarify issues, or to afford either party the opportunity to be heard to avoid miscarriage of justice, the prosecutor has to terminate the reinvestigation within fifteen (15) days from receipt of the records, and if probable cause exists, to file the corresponding information in court within forty-eight (48) hours from termination of the reinvestigation.
Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution."
What to expect in areas under GCQ, MGCQ
See - https://newsinfo.inquirer.net/1283024/list-what-to-expect-in-areas-under-gcq-mgcq
"x x x.
What to expect in areas under GCQ, MGCQ
By: Darryl John Esguerra - Reporter / @DJEsguerraINQ
INQUIRER.net / 01:57 PM May 29, 2020
MANILA, Philippines — Three days from today, May 29, the Philippine government will start enforcing less stringent community quarantine measures after more than two months of strict movement restrictions to prevent the further spread of the novel coronavirus.
Metro Manila, Cagayan Valley, Central Luzon, Calabarzon, Pangasinan, Albay, and Davao City will be under general community quarantine or GCQ starting Monday, June 1.
The rest of the country, meanwhile, will be placed under a modified general community quarantine (MGCQ) – the lowest form of community quarantine enforced by the government.
According to Executive Secretary Salvador Medialdea, there’s no need for President Rodrigo Duterte to issue another executive order on the imposition of the GCQ and MGCQ as the government will adopt the guidelines long released by the Inter-agency Task Force (IATF) for the Management of Emerging Infectious Diseases.
Here’s what to expect under GCQ and MGCQ:
Public health standards
Under GCQ and MGCQ, all residents are required to observe minimum public health standards at all times.
People movement
Movement of people in GCQ areas will be limited to accessing essential goods and services, and for work in the offices or industries permitted to operate except for leisure purposes.
Senior citizens and those below 21 years old, those with immunodeficiency, comorbidities, or other health risks, and pregnant women will be required to stay home at all times unless for the provision of essential goods and services, or are allowed to work in permitted industries.
In MGCQ areas, all persons, regardless of age and health status, are allowed outside their residence.
Gov’t work
Work in government offices in areas under GCQ may be at full operational capacity or under alternative work arrangements as agencies may deem proper in accordance with the Civil Service Commission (CSC) rules and regulations.
Physical reporting for work in government offices in MGCQ areas may also be at full capacity with alternative arrangements for those 60 and above, those with immunodeficiency, comorbidities, or other health risks, and pregnant women.
Sectors allowed
In GCQ areas, the following can operate at full capacity: (Category I industries) Power, energy, water, utilities, agriculture, fishery and forestry industries, food manufacturing and food supply chain businesses, food retail establishments such as supermarkets, food preparation establishments limited to take-out and delivery services, health-related establishments, logistics, information technology and telecommunications, and the media.
From 50 percent to full capacity, the following can operate in areas under GCQ: (Category II Industries) Mining and other manufacturing, electronic commerce, delivery, repair and maintenance, and housing and office services
The following can operate up to 50 percent capacity in areas under GCQ: (Category I industries) Financial services, legal and accounting, auditing services, professional services, scientific services, technical services, non-leisure services, non-leisure wholesale and retail
Industries under Category I to III are allowed to operate at full capacity in areas under MGCQ, while the following may operate at 50 percent capacity: barbershops, salons, and other personal care establishments, and dine-in services in food retail establishments.
Transportation
Road, rail, maritime, and aviation sectors of public transportation shall operate at a reduced operational and vehicle capacity in areas under GCQ, given that minimum health standards are observed. A minimum 1-meter physical distancing in public transport is required.
Meanwhile, road, rail, maritime, and aviation sectors of public transportation will be allowed to operate in accordance with the guidelines of the Department of Transportation (DOTr). A minimum of 1-meter physical distancing is likewise required in public transportation.
As of posting time, DOTr has yet to release the guidelines for public transportation reopening in MGCQ areas. However, the full mass transport guidelines for GCQ areas may be viewed here.
School opening
For basic education in GCQ and MGCQ areas, the Department of Educations’ Basic Education Learning Continuity Plan will be enforced with schools adopting various learning delivery options such as, but not limited to, face-to-face, blended learning, distance learning, homeschooling, and other modes of delivery depending on the local COVID Risk Severity Classification of their areas and compliance with minimum health standards.
As for higher education, the opening of classes in GCQ areas will be based on the higher education institutions’ (HEIs) delivery mode. No face-to-face classes until August 31 although private HEIs are encouraged to open in August.
Face-to-face or in-person classes may be conducted by HEIs in MGCQ areas but with strict compliance to minimum health standards. HEI activities that involve the mass gathering of students are still prohibited.
Mass gatherings
Mass gatherings such as but not limited to, movie screenings, concerts, sporting events, and other entertainment activities, community assemblies, religious gatherings, and non-essential work gatherings will be prohibited in areas under GCQ. Mass gatherings essential for the provision of government services or authorized humanitarian activities will be allowed.
On the other hand, public gatherings in areas under MGCQ are allowed provided that participants will be limited to 50 percent of the venue or seating capacity.
INQUIRER.net / 01:57 PM May 29, 2020
MANILA, Philippines — Three days from today, May 29, the Philippine government will start enforcing less stringent community quarantine measures after more than two months of strict movement restrictions to prevent the further spread of the novel coronavirus.
Metro Manila, Cagayan Valley, Central Luzon, Calabarzon, Pangasinan, Albay, and Davao City will be under general community quarantine or GCQ starting Monday, June 1.
The rest of the country, meanwhile, will be placed under a modified general community quarantine (MGCQ) – the lowest form of community quarantine enforced by the government.
According to Executive Secretary Salvador Medialdea, there’s no need for President Rodrigo Duterte to issue another executive order on the imposition of the GCQ and MGCQ as the government will adopt the guidelines long released by the Inter-agency Task Force (IATF) for the Management of Emerging Infectious Diseases.
Here’s what to expect under GCQ and MGCQ:
Public health standards
Under GCQ and MGCQ, all residents are required to observe minimum public health standards at all times.
People movement
Movement of people in GCQ areas will be limited to accessing essential goods and services, and for work in the offices or industries permitted to operate except for leisure purposes.
Senior citizens and those below 21 years old, those with immunodeficiency, comorbidities, or other health risks, and pregnant women will be required to stay home at all times unless for the provision of essential goods and services, or are allowed to work in permitted industries.
In MGCQ areas, all persons, regardless of age and health status, are allowed outside their residence.
Gov’t work
Work in government offices in areas under GCQ may be at full operational capacity or under alternative work arrangements as agencies may deem proper in accordance with the Civil Service Commission (CSC) rules and regulations.
Physical reporting for work in government offices in MGCQ areas may also be at full capacity with alternative arrangements for those 60 and above, those with immunodeficiency, comorbidities, or other health risks, and pregnant women.
Sectors allowed
In GCQ areas, the following can operate at full capacity: (Category I industries) Power, energy, water, utilities, agriculture, fishery and forestry industries, food manufacturing and food supply chain businesses, food retail establishments such as supermarkets, food preparation establishments limited to take-out and delivery services, health-related establishments, logistics, information technology and telecommunications, and the media.
From 50 percent to full capacity, the following can operate in areas under GCQ: (Category II Industries) Mining and other manufacturing, electronic commerce, delivery, repair and maintenance, and housing and office services
The following can operate up to 50 percent capacity in areas under GCQ: (Category I industries) Financial services, legal and accounting, auditing services, professional services, scientific services, technical services, non-leisure services, non-leisure wholesale and retail
Industries under Category I to III are allowed to operate at full capacity in areas under MGCQ, while the following may operate at 50 percent capacity: barbershops, salons, and other personal care establishments, and dine-in services in food retail establishments.
Transportation
Road, rail, maritime, and aviation sectors of public transportation shall operate at a reduced operational and vehicle capacity in areas under GCQ, given that minimum health standards are observed. A minimum 1-meter physical distancing in public transport is required.
Meanwhile, road, rail, maritime, and aviation sectors of public transportation will be allowed to operate in accordance with the guidelines of the Department of Transportation (DOTr). A minimum of 1-meter physical distancing is likewise required in public transportation.
As of posting time, DOTr has yet to release the guidelines for public transportation reopening in MGCQ areas. However, the full mass transport guidelines for GCQ areas may be viewed here.
School opening
For basic education in GCQ and MGCQ areas, the Department of Educations’ Basic Education Learning Continuity Plan will be enforced with schools adopting various learning delivery options such as, but not limited to, face-to-face, blended learning, distance learning, homeschooling, and other modes of delivery depending on the local COVID Risk Severity Classification of their areas and compliance with minimum health standards.
As for higher education, the opening of classes in GCQ areas will be based on the higher education institutions’ (HEIs) delivery mode. No face-to-face classes until August 31 although private HEIs are encouraged to open in August.
Face-to-face or in-person classes may be conducted by HEIs in MGCQ areas but with strict compliance to minimum health standards. HEI activities that involve the mass gathering of students are still prohibited.
Mass gatherings
Mass gatherings such as but not limited to, movie screenings, concerts, sporting events, and other entertainment activities, community assemblies, religious gatherings, and non-essential work gatherings will be prohibited in areas under GCQ. Mass gatherings essential for the provision of government services or authorized humanitarian activities will be allowed.
On the other hand, public gatherings in areas under MGCQ are allowed provided that participants will be limited to 50 percent of the venue or seating capacity.
For more information on COVID-19, call the DOH Hotline: (02) 86517800 local 1149/1150.
x x x."
Read more: https://newsinfo.inquirer.net/1283024/list-what-to-expect-in-areas-under-gcq-mgcq#ixzz6Oqkz2csH
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Treaties and domestic law - "Medellín v. Texas, 552 U.S. 491 (2008), is a United States Supreme Court decision that held that even if an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing".[1] Also, the Court held that decisions of the International Court of Justice are not binding domestic law and that, without authority from the United States Congress or the Constitution, the President of the United States lacks the power to enforce international treaties or decisions of the International Court of Justice.[1]."
See - https://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas#:~:text=Medell%C3%ADn%20v.,is%20%22self%2Dexecuting%22.
"x x x.
Medellín v. Texas, 552 U.S. 491 (2008), is a United States Supreme Court decision that held that even if an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing".[1] Also, the Court held that decisions of the International Court of Justice are not binding domestic law and that, without authority from the United States Congress or the Constitution, the President of the United States lacks the power to enforce international treaties or decisions of the International Court of Justice.[1]
x x x.
The United States ratified the United Nations Charter on October 24, 1945.[2] Article 92 of the Charter established the International Court of Justice.[3] The ICJ Statute, which established the procedures and jurisdiction of the ICJ and was attached to the U.N. Charter, delineates two ways in which a nation may consent to ICJ jurisdiction: It may consent generally to jurisdiction on any question arising under a treaty or general international law, or it may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty.[4]
In 1969, the United States ratified the Vienna Convention on Consular Relations of April 24, 1963,[5] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention of April 24, 1963.[6] Article 36 of the Vienna Convention requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. The Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention "shall lie within the compulsory jurisdiction of the International Court of Justice".[7]
The United States withdrew from general ICJ jurisdiction on October 7, 1985.[8]
On June 24, 1993, José Ernesto Medellín (an 18-year-old Mexican citizen) and several other gang members participated in the murders of Jennifer Ertman and Elizabeth Peña, when they raped a 14-year-old and 16-year-old girl for an hour in Houston, Texas. Both girls were killed to prevent them from identifying their assailants. Medellín strangled one of the girls with her own shoelaces.[9][10]
Hours after Medellin's arrest he admitted to his part in the crime and boasted of having "virgin blood" on his underpants.[11]
Medellín was arrested five days later, and signed a confession after being given his Miranda warning. Texas authorities did not, however, advise him of his right to contact his consulate under the terms of the Vienna Convention.[9][10] Medellín was convicted of rape and murder, and sentenced to death in 1997. He appealed, and raised the issue of his Vienna Convention rights as part of his appeal, but his conviction was upheld by the trial court and by the Texas Court of Criminal Appeals.[12]
In 2003, Medellín filed a petition for habeas corpus in United States district court. The district court denied relief, holding that Medellín's Vienna Convention claim should have been raised at trial (not on appeal) and he had failed to show prejudice against his case arising from the Vienna Convention violation.[13]
Also in 2003, Mexico brought suit against the United States in the ICJ, claiming that the United States had failed to notify 51 defendants (all Mexican citizens having been accused in state courts of committing crimes in the U.S.) of their Vienna Convention right to notify their consulate. Medellín was one of the 51 Mexican nationals named in the suit. The following year, the ICJ ruled in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March 31) (Avena) that the 51 Mexican nationals were entitled to review and reconsideration of their convictions and sentences.[14]
Medellín's appeal now found its way to the Fifth Circuit Court of Appeals. Medellín raised the ICJ's ruling in Avena before the Fifth Circuit, but the federal appellate court denied relief.[15]
On March 7, 2005, after the ICJ's judgment in Avena, the United States withdrew from the Optional Protocol.[16][17]
Medellín appealed to the U.S. Supreme Court, which granted a writ of certiorari.[18]
Before the Supreme Court could hear the case, however, President George W. Bush issued a Memorandum to the United States Attorney General.[19] In the Memorandum, President Bush asserted authority under the Constitution and the various laws of the United States to order states to review the convictions and sentences of foreign nationals who had not been advised of their Vienna Convention rights. Because of the President's Memorandum, Medellín filed a second case in state court for habeas corpus.[20] The U.S. Supreme Court then dismissed Medellín's first petition for certiorari in a per curiam decision, Medellín v. Dretke, 544 U.S. 660 (2005) (Medellín I).[21]
The Texas Court of Criminal Appeals dismissed Medellín's second appeal,[20] and the U.S. Supreme Court granted certiorari a second time.[22]
As Medellín's second appeal was under consideration in Texas, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon.[23] Although the decision did not involve individuals named in the Avena judgment, the Court held the ICJ's ruling in Avena to be in error. Absent a clear and express statement to the contrary in either the Vienna Convention and the Optional Protocol, the Court held in Sanchez-Llamas, the procedural rules of each nation govern the implementation of the treaty. Since Sanchez-Llamas' rights had been observed under both state and federal law as well as various rulings of the Supreme Court, the High Court upheld his conviction.[23] The ruling in Sanchez-Llamas did not control Medellín's case, however, since his claim was based on the rights accorded him as one of the individuals in the ICJ's judgment, rather than on the Vienna Convention. Since the ICJ had jurisdiction to render the decision in Avena at the time under the Optional Protocol, no one argued that Sanchez-Llamas alone foreclosed Medellín's claim.
The case was argued before the Supreme Court of the United States on October 9, 2007, with Texas Solicitor General Ted Cruz appearing for the state and U.S. Solicitor General Paul Clement appearing as a friend in support of Medellín.[24]
Opinion of the Court[edit]
On March 24, 2008, the Court affirmed 6-3, with Chief Justice John G. Roberts writing for a five justice majority. The Court held that the Avena judgment is not enforceable as domestic law. A treaty is not binding domestic law, it said, unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it is "self-executing."[25] None of the relevant treaties – the Optional Protocol, the U.N. Charter, or the ICJ Statute – were self-executing, and no implementing legislation had been enacted, the Court found.[26]
The Court also rejected Medellín's claim that Article 94 of the U.N. Charter requires the United States to "undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article 94(2) of the Charter provides for explicit enforcement for noncompliance by referral to the United Nations Security Council, and for appeals to be made only by the aggrieved state (not an individual such as Medellín).[27] Even so, the United States clearly reserved the right to veto any Security Council resolutions.[27] The majority also held that the ICJ statute contained in the U.N. Charter also forbade individuals from being parties to suits before the International Court. The ICJ statute is a pact between nations, Justice Roberts said, and only nations (not individuals) may seek its judgment.[28]
Relying on Sanchez-Llamas, the Supreme Court then held that, absent a clear and express statement to the contrary in the relevant treaties, domestic procedural rules govern a treaty's implementation.[29]
The Court also rejected Medellín's argument that the President's February 28, 2005 Memorandum was binding on state courts. The Court relied on Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), recognizing that "plainly compelling interests" were at stake in the Medellín case. Yet:
Such considerations, however, do not allow us to set aside first principles. The President's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'[30]
The majority concluded that neither condition had been met. Neither the government nor the defendant had cited any statutory authority which authorized the President to act. Instead, the President claimed that the Optional Protocol and U.N. Charter implicitly gave him the authority to act. The Court disagreed: "The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them."[31] The President also claimed that Congress had acquiesced in the exercise of presidential power by failing to act following the resolution of prior ICJ controversies. But, Roberts held, "A review of the Executive's actions in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise of Presidential authority, for none of them remotely involved transforming an international obligation into domestic law and thereby displacing state law."[32] The President also founded his action on "related" statutory responsibilities and an "established role" in litigating foreign policy concerns. But none of the examples cited in the government's brief supported that conclusion, the majority ruled, and none of the examples remotely indicated that the President may pre-empt state law.[33]
The government had also claimed that the Memorandum was an exercise of the President's authority to resolve international claims under his executive authority. The Court recognized that this was a long-standing practice "never-before questioned."[34] But relying on Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court observed that "[p]ast practice does not, by itself, create power."[34] Prior uses of executive authority to settle international disputes all occurred in narrow circumstances, and did not involve the complete setting aside of state law, as the defendant sought in the present case.[35]
Finally, Medellín argued that the President's Memorandum was a valid exercise of presidential power based on the president's authority to "take Care that the Laws be faithfully executed", as granted in the Article II, §3 of the United States Constitution. The majority observed that the government refused to rely on Article II, §3, which undercut Medellín's claim. Justice Roberts then concluded that, since the ICJ's decision in Avena was not domestic law, the "take care" clause did not apply.[36]
The judgment of the Texas Court of Criminal Appeals was affirmed.
Justice Roberts' opinion was joined by Justices Scalia, Kennedy, Thomas, and Alito.
Justice Stevens' concurrence[edit]
Justice John Paul Stevens concurred with the majority, but in his concurring opinion he stated that even though he concurs with the result of majority he thinks "this case presents a closer question than the Court's opinion allows." He concludes that the Supreme Court cannot enforce the ICJ opinion in Avena. To support that conclusion he maintains that "terms of the United Nations Charter do not necessarily incorporate international judgments into domestic law."
Dissent[edit]
Justice Breyer wrote in the dissent that in his view, the ICJ treaty was "self-executing", based on a reading of other treaties that had gone into effect without additional Congressional action; and therefore, he wrote, "I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature.'"
One similar example Breyer cited was the 1796 case Ware v. Hylton, which, Breyer wrote, was illustrative of what "the Founders meant when they wrote [in the Supremacy Clause of the United States Constitution] that 'all Treaties ... shall be the supreme Law of the Land.'" In Ware v. Hylton, the Supreme Court had agreed with a British creditor that a provision of the Treaty of Paris of 1783, which had been ratified by the United States's Congress of the Confederation, overruled a Virginia state law regarding the repayment of debts to Britons; and, as the treaty was "addressed to the Judicial Branch", Congress had not had to enact a domestic law enforcing the treaty provision.
Breyer's dissent was joined by Justices Souter and Ginsburg.
x x x."
In 1969, the United States ratified the Vienna Convention on Consular Relations of April 24, 1963,[5] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention of April 24, 1963.[6] Article 36 of the Vienna Convention requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. The Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention "shall lie within the compulsory jurisdiction of the International Court of Justice".[7]
The United States withdrew from general ICJ jurisdiction on October 7, 1985.[8]
On June 24, 1993, José Ernesto Medellín (an 18-year-old Mexican citizen) and several other gang members participated in the murders of Jennifer Ertman and Elizabeth Peña, when they raped a 14-year-old and 16-year-old girl for an hour in Houston, Texas. Both girls were killed to prevent them from identifying their assailants. Medellín strangled one of the girls with her own shoelaces.[9][10]
Hours after Medellin's arrest he admitted to his part in the crime and boasted of having "virgin blood" on his underpants.[11]
Medellín was arrested five days later, and signed a confession after being given his Miranda warning. Texas authorities did not, however, advise him of his right to contact his consulate under the terms of the Vienna Convention.[9][10] Medellín was convicted of rape and murder, and sentenced to death in 1997. He appealed, and raised the issue of his Vienna Convention rights as part of his appeal, but his conviction was upheld by the trial court and by the Texas Court of Criminal Appeals.[12]
In 2003, Medellín filed a petition for habeas corpus in United States district court. The district court denied relief, holding that Medellín's Vienna Convention claim should have been raised at trial (not on appeal) and he had failed to show prejudice against his case arising from the Vienna Convention violation.[13]
Also in 2003, Mexico brought suit against the United States in the ICJ, claiming that the United States had failed to notify 51 defendants (all Mexican citizens having been accused in state courts of committing crimes in the U.S.) of their Vienna Convention right to notify their consulate. Medellín was one of the 51 Mexican nationals named in the suit. The following year, the ICJ ruled in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March 31) (Avena) that the 51 Mexican nationals were entitled to review and reconsideration of their convictions and sentences.[14]
Medellín's appeal now found its way to the Fifth Circuit Court of Appeals. Medellín raised the ICJ's ruling in Avena before the Fifth Circuit, but the federal appellate court denied relief.[15]
On March 7, 2005, after the ICJ's judgment in Avena, the United States withdrew from the Optional Protocol.[16][17]
Medellín appealed to the U.S. Supreme Court, which granted a writ of certiorari.[18]
Before the Supreme Court could hear the case, however, President George W. Bush issued a Memorandum to the United States Attorney General.[19] In the Memorandum, President Bush asserted authority under the Constitution and the various laws of the United States to order states to review the convictions and sentences of foreign nationals who had not been advised of their Vienna Convention rights. Because of the President's Memorandum, Medellín filed a second case in state court for habeas corpus.[20] The U.S. Supreme Court then dismissed Medellín's first petition for certiorari in a per curiam decision, Medellín v. Dretke, 544 U.S. 660 (2005) (Medellín I).[21]
The Texas Court of Criminal Appeals dismissed Medellín's second appeal,[20] and the U.S. Supreme Court granted certiorari a second time.[22]
As Medellín's second appeal was under consideration in Texas, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon.[23] Although the decision did not involve individuals named in the Avena judgment, the Court held the ICJ's ruling in Avena to be in error. Absent a clear and express statement to the contrary in either the Vienna Convention and the Optional Protocol, the Court held in Sanchez-Llamas, the procedural rules of each nation govern the implementation of the treaty. Since Sanchez-Llamas' rights had been observed under both state and federal law as well as various rulings of the Supreme Court, the High Court upheld his conviction.[23] The ruling in Sanchez-Llamas did not control Medellín's case, however, since his claim was based on the rights accorded him as one of the individuals in the ICJ's judgment, rather than on the Vienna Convention. Since the ICJ had jurisdiction to render the decision in Avena at the time under the Optional Protocol, no one argued that Sanchez-Llamas alone foreclosed Medellín's claim.
The case was argued before the Supreme Court of the United States on October 9, 2007, with Texas Solicitor General Ted Cruz appearing for the state and U.S. Solicitor General Paul Clement appearing as a friend in support of Medellín.[24]
Opinion of the Court[edit]
On March 24, 2008, the Court affirmed 6-3, with Chief Justice John G. Roberts writing for a five justice majority. The Court held that the Avena judgment is not enforceable as domestic law. A treaty is not binding domestic law, it said, unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it is "self-executing."[25] None of the relevant treaties – the Optional Protocol, the U.N. Charter, or the ICJ Statute – were self-executing, and no implementing legislation had been enacted, the Court found.[26]
The Court also rejected Medellín's claim that Article 94 of the U.N. Charter requires the United States to "undertake to comply" with the ICJ ruling. Chief Justice Roberts observed that Article 94(2) of the Charter provides for explicit enforcement for noncompliance by referral to the United Nations Security Council, and for appeals to be made only by the aggrieved state (not an individual such as Medellín).[27] Even so, the United States clearly reserved the right to veto any Security Council resolutions.[27] The majority also held that the ICJ statute contained in the U.N. Charter also forbade individuals from being parties to suits before the International Court. The ICJ statute is a pact between nations, Justice Roberts said, and only nations (not individuals) may seek its judgment.[28]
Relying on Sanchez-Llamas, the Supreme Court then held that, absent a clear and express statement to the contrary in the relevant treaties, domestic procedural rules govern a treaty's implementation.[29]
The Court also rejected Medellín's argument that the President's February 28, 2005 Memorandum was binding on state courts. The Court relied on Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), recognizing that "plainly compelling interests" were at stake in the Medellín case. Yet:
Such considerations, however, do not allow us to set aside first principles. The President's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'[30]
The majority concluded that neither condition had been met. Neither the government nor the defendant had cited any statutory authority which authorized the President to act. Instead, the President claimed that the Optional Protocol and U.N. Charter implicitly gave him the authority to act. The Court disagreed: "The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them."[31] The President also claimed that Congress had acquiesced in the exercise of presidential power by failing to act following the resolution of prior ICJ controversies. But, Roberts held, "A review of the Executive's actions in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise of Presidential authority, for none of them remotely involved transforming an international obligation into domestic law and thereby displacing state law."[32] The President also founded his action on "related" statutory responsibilities and an "established role" in litigating foreign policy concerns. But none of the examples cited in the government's brief supported that conclusion, the majority ruled, and none of the examples remotely indicated that the President may pre-empt state law.[33]
The government had also claimed that the Memorandum was an exercise of the President's authority to resolve international claims under his executive authority. The Court recognized that this was a long-standing practice "never-before questioned."[34] But relying on Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court observed that "[p]ast practice does not, by itself, create power."[34] Prior uses of executive authority to settle international disputes all occurred in narrow circumstances, and did not involve the complete setting aside of state law, as the defendant sought in the present case.[35]
Finally, Medellín argued that the President's Memorandum was a valid exercise of presidential power based on the president's authority to "take Care that the Laws be faithfully executed", as granted in the Article II, §3 of the United States Constitution. The majority observed that the government refused to rely on Article II, §3, which undercut Medellín's claim. Justice Roberts then concluded that, since the ICJ's decision in Avena was not domestic law, the "take care" clause did not apply.[36]
The judgment of the Texas Court of Criminal Appeals was affirmed.
Justice Roberts' opinion was joined by Justices Scalia, Kennedy, Thomas, and Alito.
Justice Stevens' concurrence[edit]
Justice John Paul Stevens concurred with the majority, but in his concurring opinion he stated that even though he concurs with the result of majority he thinks "this case presents a closer question than the Court's opinion allows." He concludes that the Supreme Court cannot enforce the ICJ opinion in Avena. To support that conclusion he maintains that "terms of the United Nations Charter do not necessarily incorporate international judgments into domestic law."
Dissent[edit]
Justice Breyer wrote in the dissent that in his view, the ICJ treaty was "self-executing", based on a reading of other treaties that had gone into effect without additional Congressional action; and therefore, he wrote, "I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature.'"
One similar example Breyer cited was the 1796 case Ware v. Hylton, which, Breyer wrote, was illustrative of what "the Founders meant when they wrote [in the Supremacy Clause of the United States Constitution] that 'all Treaties ... shall be the supreme Law of the Land.'" In Ware v. Hylton, the Supreme Court had agreed with a British creditor that a provision of the Treaty of Paris of 1783, which had been ratified by the United States's Congress of the Confederation, overruled a Virginia state law regarding the repayment of debts to Britons; and, as the treaty was "addressed to the Judicial Branch", Congress had not had to enact a domestic law enforcing the treaty provision.
Breyer's dissent was joined by Justices Souter and Ginsburg.
x x x."
Former CJ Panganiban on enforcesability of VFA, MDT. - " However, I believe this argument was blown away on March 25, 2008 when the US Supreme Court, voting 6-3, held in Medellin v. Texas “that a treaty, EVEN IF RATIFIED BY THE US SENATE, is not enforceable as domestic federal law in the US, unless the US enacts the implementing legislation, or the treaty BY ITS TERMS is self-executory and ratified by the US Senate as such.” (Caps supplied) Under this ruling, penned by Chief Justice John G. Roberts, the VFA is not enforceable (or binding) in the US because the US Congress has not enacted any implementing law and because the VFA “by its terms” is not self-executory. In fact, it has not even been ratified by the US Senate. Given the supervening Medellin decision on March 25, 2008, the VFA is no longer enforceable here (even if earlier ruled constitutional in Bayan v. Zamora on Oct. 10, 2000) since its enforcement would now violate Sec. 25, Art. XVII of our Constitution, which requires that “foreign military bases, TROOPS, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.” (Caps supplied)."
See - https://opinion.inquirer.net/130548/vfa-mdt-not-enforceable-in-us-ph
"x x x.
VFA, MDT not enforceable in US, PH
By: Artemio V. Panganiban - @inquirerdotnet
Philippine Daily Inquirer / 05:08 AM June 07, 2020
To my surprise, President Duterte suspended for six months his abrogation of our Visiting Forces Agreement (VFA) with the United States (US) via Diplomatic Note No. 2020-2622 dated June 1, 2020.
Historically, the VFA was approved by our Senate on May 27, 1999 and entered into force on June 1, 1999. In Bayan v. Zamora (Oct. 10, 2000), a divided Supreme Court upheld its constitutionality (with me taking “no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga”).
Earlier, on Aug. 30, 1951, a Mutual Defense Treaty (MDT) was concluded under which the Philippines and the US agreed “to respond to any external armed attack on their territory, armed forces, public vessel or aircraft.”
Recall that on Dec. 4, 2006, the Makati Regional Trial Court convicted visiting US Lance Cpl. Daniel Smith of rape, a nonbailable offense, and ordered his detention at the Makati City Jail. Smith immediately appealed to the Court of Appeals (CA).
However, 25 days later, on Dec. 29, 2006, “a contingent of Philippine law enforcement agencies…” stealthily brought Smith to a detention facility in the US Embassy in Manila per an agreement on Dec. 19, 2006 between then Foreign Secretary Alberto G. Romulo and then US Ambassador Kristie A. Kenney.
Nicolas v. Romulo (Feb. 11, 2009) invalidated the Romulo-Kenney accord because, under the VFA, an American soldier-appellant should be detained by “Philippine authorities” within our territory. Nonetheless—and this was the strange part of the decision—he was to remain in the US Embassy until the diplomats of both countries could agree on which local jail he should be transferred pending appeal. After the CA acquitted him on April 23, 2009, he flew to the US.
Amid this seething imbroglio, it was discovered that the VFA was never ratified by the US Senate. Its defenders argued that, anyway, the VFA was just an adjunct of the MDT which was ratified by the US Senate.
However, I believe this argument was blown away on March 25, 2008 when the US Supreme Court, voting 6-3, held in Medellin v. Texas “that a treaty, EVEN IF RATIFIED BY THE US SENATE, is not enforceable as domestic federal law in the US, unless the US enacts the implementing legislation, or the treaty BY ITS TERMS is self-executory and ratified by the US Senate as such.” (Caps supplied)
Under this ruling, penned by Chief Justice John G. Roberts, the VFA is not enforceable (or binding) in the US because the US Congress has not enacted any implementing law and because the VFA “by its terms” is not self-executory. In fact, it has not even been ratified by the US Senate.
Given the supervening Medellin decision on March 25, 2008, the VFA is no longer enforceable here (even if earlier ruled constitutional in Bayan v. Zamora on Oct. 10, 2000) since its enforcement would now violate Sec. 25, Art. XVII of our Constitution, which requires that “foreign military bases, TROOPS, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.” (Caps supplied)
Even the MDT, though ratified by the US Senate, is not enforceable in the US because it is not “by its terms” self-executory. Neither is there any US law implementing it. Thus, under the Medellin doctrine, both the VFA and the MDT are not enforceable in the US as federal law.
Small wonder, when I visited then senior US Justice Antonin Scalia (now deceased) in Washington DC on May 17, 2006, he declined my invitation to participate in the Global Forum on Liberty and Prosperity that our high court was sponsoring later that year.
As the leader of the conservatives who dominated, and still dominate, 5-4, the US Court up to now, he explained, “… I am useless in international meetings because I believe that our Supreme Court is tasked to enforce only the US Constitution and US laws, not cross-border concepts that do not find implementing US statutes.”
Obviously, there are many treaties entered into by the US, including the Vienna Convention on Consular Relations (April 24, 1963) invoked by the petitioner in Medellin v. Texas, that are not, by their terms, self-executory and have no implementing laws. What then is the remedy? CJ Roberts suggested that the US Congress should enact enabling laws for them.
However, the US Congress has not done so. Inevitably then, the Philippines, as a self-respecting sovereign nation, has no choice but to apply the Medellin decision and likewise deem the VFA and the MDT unenforceable here. I wonder if President Duterte had this conundrum in mind when he abrogated the VFA last Feb. 11.
Comments to chiefjusticepanganiban@hotmail.com
x x x."
Read more: https://opinion.inquirer.net/130548/vfa-mdt-not-enforceable-in-us-ph#ixzz6Oqfulgdi
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Philippine Daily Inquirer / 05:08 AM June 07, 2020
To my surprise, President Duterte suspended for six months his abrogation of our Visiting Forces Agreement (VFA) with the United States (US) via Diplomatic Note No. 2020-2622 dated June 1, 2020.
Historically, the VFA was approved by our Senate on May 27, 1999 and entered into force on June 1, 1999. In Bayan v. Zamora (Oct. 10, 2000), a divided Supreme Court upheld its constitutionality (with me taking “no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga”).
Earlier, on Aug. 30, 1951, a Mutual Defense Treaty (MDT) was concluded under which the Philippines and the US agreed “to respond to any external armed attack on their territory, armed forces, public vessel or aircraft.”
Recall that on Dec. 4, 2006, the Makati Regional Trial Court convicted visiting US Lance Cpl. Daniel Smith of rape, a nonbailable offense, and ordered his detention at the Makati City Jail. Smith immediately appealed to the Court of Appeals (CA).
However, 25 days later, on Dec. 29, 2006, “a contingent of Philippine law enforcement agencies…” stealthily brought Smith to a detention facility in the US Embassy in Manila per an agreement on Dec. 19, 2006 between then Foreign Secretary Alberto G. Romulo and then US Ambassador Kristie A. Kenney.
Nicolas v. Romulo (Feb. 11, 2009) invalidated the Romulo-Kenney accord because, under the VFA, an American soldier-appellant should be detained by “Philippine authorities” within our territory. Nonetheless—and this was the strange part of the decision—he was to remain in the US Embassy until the diplomats of both countries could agree on which local jail he should be transferred pending appeal. After the CA acquitted him on April 23, 2009, he flew to the US.
Amid this seething imbroglio, it was discovered that the VFA was never ratified by the US Senate. Its defenders argued that, anyway, the VFA was just an adjunct of the MDT which was ratified by the US Senate.
However, I believe this argument was blown away on March 25, 2008 when the US Supreme Court, voting 6-3, held in Medellin v. Texas “that a treaty, EVEN IF RATIFIED BY THE US SENATE, is not enforceable as domestic federal law in the US, unless the US enacts the implementing legislation, or the treaty BY ITS TERMS is self-executory and ratified by the US Senate as such.” (Caps supplied)
Under this ruling, penned by Chief Justice John G. Roberts, the VFA is not enforceable (or binding) in the US because the US Congress has not enacted any implementing law and because the VFA “by its terms” is not self-executory. In fact, it has not even been ratified by the US Senate.
Given the supervening Medellin decision on March 25, 2008, the VFA is no longer enforceable here (even if earlier ruled constitutional in Bayan v. Zamora on Oct. 10, 2000) since its enforcement would now violate Sec. 25, Art. XVII of our Constitution, which requires that “foreign military bases, TROOPS, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.” (Caps supplied)
Even the MDT, though ratified by the US Senate, is not enforceable in the US because it is not “by its terms” self-executory. Neither is there any US law implementing it. Thus, under the Medellin doctrine, both the VFA and the MDT are not enforceable in the US as federal law.
Small wonder, when I visited then senior US Justice Antonin Scalia (now deceased) in Washington DC on May 17, 2006, he declined my invitation to participate in the Global Forum on Liberty and Prosperity that our high court was sponsoring later that year.
As the leader of the conservatives who dominated, and still dominate, 5-4, the US Court up to now, he explained, “… I am useless in international meetings because I believe that our Supreme Court is tasked to enforce only the US Constitution and US laws, not cross-border concepts that do not find implementing US statutes.”
Obviously, there are many treaties entered into by the US, including the Vienna Convention on Consular Relations (April 24, 1963) invoked by the petitioner in Medellin v. Texas, that are not, by their terms, self-executory and have no implementing laws. What then is the remedy? CJ Roberts suggested that the US Congress should enact enabling laws for them.
However, the US Congress has not done so. Inevitably then, the Philippines, as a self-respecting sovereign nation, has no choice but to apply the Medellin decision and likewise deem the VFA and the MDT unenforceable here. I wonder if President Duterte had this conundrum in mind when he abrogated the VFA last Feb. 11.
Comments to chiefjusticepanganiban@hotmail.com
x x x."
Read more: https://opinion.inquirer.net/130548/vfa-mdt-not-enforceable-in-us-ph#ixzz6Oqfulgdi
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New Anti-Terrorism Bill/Law: Some Initial Notes
See - https://www.eurasiareview.com/08062020-philippines-on-new-anti-terrorism-bill-law-some-initial-notes/
"x x x.
Philippines: On New Anti-Terrorism Bill/Law: Some Initial Notes
June 8, 2020 PIPVTR 0 Comments
PIPVTR
By Soliman M. Santos, Jr.*
These are only some initial notes relevant to, not a comprehensive assessment of, the new Anti-Terrorism Bill (ATB, Senate Bill No. 1083/ House Bill No. 6875) poised to be passed as “The Anti-Terrorism Act of 2020” (ATA) which would repeal R.A. No. 9372, the Human Security Act of 2007 (HSA).
1. Much concerns have been raised not only in Congress but also in various media about the ATB passing soon into the ATA, be these concerns in terms of its substantive content, its legislative process, its timing, its prioritization amidst a pandemic lockdown and, perhaps most importantly, its likely significant consequences for Philippine democracy, fundamental freedoms, civil liberties and human rights, especially about the Sec. 29 Detention Without Judicial Warrant of Arrest on mere suspicion of committing terrorist acts or of membership in a proscribed terrorist organization. We need not repeat, for the most part, those raised concerns which are serious. If only to give just due to these serious concerns, which are not limited to issues of constitutionality, the prudent thing now would be for the Congress leadership to withhold transmitting the ATB to the President for him to sign it into law but instead reopen legislative deliberations (like was done for the ABS-CBN franchise renewal) OR, IF the ATB has already been transmitted to the President, for him to veto it purposively to reopen legislative deliberations. It will not do for him to merely not sign it, as it would then automatically lapse into law 30 days from transmittal to him.
2. In the meantime, the HSA will still be there as the existing anti-terrorism law which is the domestic law which primarily addressees terrorism, aside from R.A. No. 10168, The Terrorism Financing Prevention and Suppression Act of 2012 (TFPSA). It is interesting to note that the TFPSA makes reference to the HSA such as when it comes to designated terrorist organizations and persons. However, while the ATB would repeal the HSA, it would not repeal the TFPSA which the ATB in fact reiterates in Secs. 16, 35 and 36 when it comes to surveillance of suspects and interception of communications, and to investigation and freezing of bank deposits, related to the financing of terrorism. So, even without an ATA, there will still be an anti-terrorism law which is the HSA. As it is, there has not been much implementation experience of this 2007 anti-terrorism law, not much cases filed, hardly any jurisprudence on it and no congressional oversight review that would ordinarily be the basis for the amendment and especially repeal of the HSA.
3. The only Supreme Court Decision on the HSA that I am personally aware of, as the lead individual petitioner, is that in Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146 (2010), which dismissed several petitions, including those of KMU, BAYAN, KARAPATAN et al., questioning the constitutionality of the HSA immediately after its passage, declining to rule on this on procedural grounds basically of un-ripeness for adjudication. The Decision practically required that the petitioners must first be charged with violation of the HSA so that they may be said to have legal standing in an actual controversy and only then can the Court take cognizance of the case. My old friends Atty. Edre U. Olalia of the National Union of Peoples’ Lawyers and Rep. Carlos Isagani Zarate of the Bayan Muna party-list group who have announced their intentions to challenge the ATA’s constitutionality upon its signing by the President should take that requirement into consideration.
It may be also interesting to note that there is a pending (?) February 2018 Petition by the Department of Justice (DOJ) against the Communist Party of the Philippines (CPP) and New People’s Army (NPA) for their proscription as terrorist organizations under Sec. 17 of the HSA docketed as Case No. R-MNL-18-00925-CV before RTC Branch 19 Manila. I am not aware of any successful service of summons to the respondents CPP and NPA which have no permanent address, much less of any entry of appearance by any counsels for respondents and their submission of a Comment. If the HSA is repealed shortly, that proceeding would no longer proceed. If ever, a new Petition for proscription of the CPP and NPA as terrorist organizations, this time under Sec. 26 of the ATA,would have to be filed. And again, there will be interesting questions of service of summons, appearance of counsels for respondents and their Comment against the Petition. Or it could be a default Order of Proscription?!?
4. Unlike the HSA which has only Sec. 17 on Proscription of Terrorist Organizations involving proceedings before a competent Regional Trial Court (RTC), the ATA would have Sec. 25 on Designation of Terrorist Individuals and Organizations, and Sec. 26 on Proscription of Terrorist Organizations. Under the ATA Sec. 25 on Designation, there are basically three modes, all unilateral by the Anti-Terrorism Council (ATC, with the Executive Secretary as Chairperson and the National Security Adviser as Vice-Chairperson) and with no court proceedings:
a. The ATC shall automatically adopt the United Nations Security Council (UNSC) Consolidated List of designated terrorist individuals and organizations.
b. The ATC may adopt requests for designations by other jurisdictions after determination that it meets the criteria in UNSC Resolution 1373.
c. The ATC may designate an individual or organization upon a finding of probable cause that the latter commits, or attempts or conspires to commit, acts defined and penalized under the ATA Secs. 4 to 12.
Under the ATA Sec. 26 on Proscription, this is upon application by the DOJ before the authorizing Division of the Court of Appeals against organizations which commit the same acts under the ATA Secs. 4 to 12, or which are organized for the purpose of engaging in terrorism. The application must be with the authority of the ATC upon recommendation of the National Intelligence Coordinating Agency (NICA) which shall be the Secretariat of the ATC. The Court shall give due notice and opportunity to be heard to the organization sought to be declared as terrorist. Under Sec. 27, the Court shall issue a Preliminary Order of Prescription within 72 hours from the filing of the application where it has determined that probable cause exists on the basis thereof.
Aside from the different procedures for designation under the ATA Sec. 25 (unilateral by the ATC and covering both individuals and organizations) and for proscription under Sec. 26 (with court proceedings and covering only organizations), it is not so clear whether there are different implications or consequences between designated terrorist organizations and proscribed terrorist organizations.
5. It is interesting to note that there is an existing Presidential Proclamation No. 374 dated 5 December 2017 “declaring the CPP-NPA as an entity designated and/or identified as a terrorist organization pursuant to Section 3(e)(1) of RA No. 10168” [the TFPSA]. It cites as basis for this that “on 09 August 2002, the United States of America (USA) designated the CPP-NPA as a foreign terrorist organization (FTO) and to date continues to include the CPPA-NPA in its list of FTOs” and also “Article VII, Section 17 of the Constitution [which] provides that the President shall ensure that the laws are faithfully executed.” The obvious questions are: given this, would a designation or proscription of the CPP-NPA as a terrorist organization under the ATA Secs. 25 or 26 still be necessary? And would Presidential Proclamation No. 374 be already sufficient basis to apply the rest of the ATA to the CPP-NPA?
6. While we are at it, we might as well bring into the discussion the “twin” Presidential Proclamation No. 360 dated 23 November 2017 “declaring the termination of peace negotiations with the National Democratic Front (NDF)-CPP-NPA and all its adjuncts and organizational units.” It cites as basis for this that “in spite of the best efforts exerted by this Administration, the NDF-CPP-NPA failed to show its sincerity and commitment in pursuing genuine and meaningful peace negotiations as it engaged in acts of violence and hostilities…” and also “Executive Order No. 292 (s. 1987) [the Revised Administrative Code] provides that the President may, by way of proclamation, declare a status or condition of public moment or interest.” Obviously, the stated basis did not include the declaration of the CPP-NPA as a terrorist organization, for the proclamation of which came 12 days later. But the latter declaration can be reasonably expected to be an additional impediment to the resumption of peace talks, an important concern expressed by a close family friend Filomeno S. Sta. Ana III of the Action for Economic Reforms.
In theory, the conventional wisdom is that “we do not negotiate with terrorists.” But in practice, it happens. Even after Proclamations Nos. 360 and 374 in late 2017, the have been urong-sulong or atras-abante peace talks resumption explorations (currently, it is urong or atras) and actual short-term ceasefires on the local communist armed conflict front up until the end of April 2020, including attempted “Local Peace Engagements” with local units of the “Communist Terrorist Groups” (CTGs) at the local level pursuant to Presidential Executive Order No. 70 dated 4 December 2018 on the “Whole-of-Nation Approach in Attaining Inclusive and Sustainable Peace and… to End the Local Communist Armed Conflict.” In other words, terrorist designation in itself is not a decisive counter-factor against peace negotiations. There are other, more decisive factors, like lack of trust and confidence and the politico-military situation. Perhaps the best recent counter-example to the said conventional wisdom is the breakthrough agreement between the U.S. and the Afghan Taliban, a U.S.-designated FTO, for peace in Afghanistan. Negotiating with so-called “terrorists” (just like successfully done with the Moro Islamic Liberation Front once tagged as “terrorist”) may soon become the “new normal.”
7. Speaking of so-called “Islamist terrorist organizations,” like say the most notorious Abu Sayyaf Group (Al-Harakatul Al-Islamiyyah) or the remnants of the Maute Group (Daula Islamiya fi Ranao), I doubt whether there will be any real fuss about their designation or proscription under the ATA or under whatever purported legal basis. It seems different as far as the current strong critical voices against the ATA are concerned, whereby there is even an expectation that the ATA is primarily intended against the CPP-NPA “and all its adjuncts and organizational units.” Let us not kid each other about this. The CPP-NPA is the first to admit that expectation, given the most recent Presidentially declared “all-out war” against them, “you S.O.B.s… [English translation, with much of the bile lost in the translation].”
Those current strong critical voices who are not CPP-NPA “and all its adjuncts and organizational units,” because of their serious concerns about the ATA’s likely significant consequences for Philippine democracy, fundamental freedoms, civil liberties and human rights, are perhaps well aware of German Lutheran pastor Martin Niemoller’s famous 1946 post-war confession: “They came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.” If a communist revolution can swallow its own children, so can a fascist dictatorship.
8. The mention of the Abu Sayyaf Group, the Maute Group and the CPP-NPA in the same breath brings us to the definition of terrorism, especially its legal definition, which should be the basis for the designation or proscription of terrorist organizations. The current strong critical voices against the ATA contend that the definition of terrorism in Sec. 4 of the ATA is over-broad or vague (constitutional issues to be raised) such as to endanger even what are truly non-terrorist organizations and individuals. The key to the ATA Sec. 4 definition is not the five enumerated acts (a) to (e) in the first part of the Section (e.g. “Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life”) but rather the “purpose of such act, by its nature and context” which may be any of the following that would make it terrorism:
“to intimidate the general public or a segment thereof”
“create an atmosphere or spread a message of fear”
“to provoke or influence by intimidation the government or any of its international organization (sic)”
“seriously destabilize or destroy the fundamental political, economic or social structures of the country”
“create a public emergency”
“seriously undermine public safety”
These formulations appear to be in accord with the UN’s 2004 description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.”
From my own earlier study of the matter, I had in 2002 come up with this proposed core legal definition of terrorism: “the systematic employment by states, groups or individuals of acts or threats of violence or use of weapons deliberately targeting the civilian population, individuals or infrastructure for the primary purpose of spreading terror or extreme fear among the civilian population in relation to some political or quasi-political objective and undertaken with an intended audience.” You will see at the outset that the concept that states are just as capable of committing terrorist acts as are non-state armed groups. And so, if the Philippine government, particularly Congress, is truly sincere in suppressing terrorism in all its forms or sources, including state terrorism, I challenge it to incorporate this concept in our anti-terrorism law. Of course, this would need more legislative as well as public deliberation and , yes, debate, for which reasonable time should be given.
But going back to the ATA Sec. 4 definition of terrorism, to its credit, it makes clear that it “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.” (underscorings supplied) This is a clear improvement over the HSA definition of terrorism.
9. While non-state armed groups or rebel groups are capable of committing terrorist acts, not all such groups are ipso facto terrorist organizations. It depends on their conduct of armed hostilities, on whether or not its acts of armed violence meet the elements of terrorism, as discussed above, especially in terms of deliberately targeting the civilian population, individuals or infrastructure for the primary purpose of spreading terror or extreme fear among the civilian population in relation to some political or quasi-political objective. The group’s track record on this must be fairly examined. Only if there is a clear and consistent pattern, plan or policy (in short, something systematic) of terrorist acts or methods by the group would it be justified to designate it as a “terrorist organization.” One terrorist act does not necessarily make a terrorist organization, unless the act is based on a policy of employing terrorist acts (for example, a policy of suicide-bombing targeting innocent civilians, or a policy of reprisal aerial bombing or artillery/tank shelling targeting the civilian mass base of the enemy).
As I said, there would likely be not much fuss when it comes to designation or proscription of the Abu Sayyaf Group or the remnants of the Maute Group as terrorist organizations. They may even welcome it as some sort of perverse badge of honor. But there would likely be much fuss when it comes to the CPP-NPA, also because of the possible impact on those who might be deemed its accessories or its support or front organizations in case it is designated or proscribed as a terrorist organization under the ATA. The CPP-NPA will definitely oppose any further designation or proscription of it as a terrorist organization under the ATA. It will likely again cite, among others, what it had previously dishonestly referred to as a United Nations Development Program (UNDP) report in 2005 that stated “In fairness to the CPP-NPA’s historical record of armed struggle, it has not, as a policy – and has not generally in practice – engaged in terrorism or acts of terrorism by deliberately targeting civilians.” This did not come from a UNDP report but from the Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines done by the independent local academe-based NGO Human Development Network (HDN) with only the cooperation support of the UNDP; it is not a UNDP report as the CPP-NPA made it out to be. At any rate, the quoted HDN statement was only one, albeit informed, view as of 2005. The ATA itself in its Sec. 27 provides that a Permanent Order of Proscription shall be valid for only 3 years, after which a review shall be made on whether it is to be extended or lifted. Because of the serious implications of designation or proscription of terrorist organizations under the ATA, this process must be characterized by fairness, perhaps academic-like or judicial-like rigor, and indubitable historical evidence.
10. At this point, there should be no issue about terrorism being among the most serious crimes of concern to the international community as a whole, including the Philippines which has its international obligations to cooperate in its suppression. Terrorism violates the basic right to life and the fundamental freedom from fear. The May-October 2017 Marawi Siege and the January 27, 2019 Jolo Cathedral Bombing are still fresh wounds to remind us of this. There should be no issue about the need for a domestic law defining and penalizing terrorism. This was among the rulings in the Supreme Court Decision in David vs. Arroyo, 489 SCRA 160 (2006). Thus, the HSA of 2007.
11. Comes now the ATA of 2020 to replace the HSA in our statute books. To somehow counter-balance the current strong critical voices against the ATA, another friend Prof. Rommel C. Banlaoi of the Philippine Institute for Peace, Violence and Terrorism Research, proffers what he admits to be a “very unpopular” view of “progressive provisions” in the ATA. Foremost to him is its Sec. 2 Declaration of Policy, particularly these aspects:
“… to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.”
“In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.”
“The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism…”
“Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…”
“… shall not prejudice respect for human rights which shall be absolute and protected at all times.”
ATA provisions to ensure respect for human rights include Secs. 17 & 19 on Judicial Authorization by the authorizing division of the Court of Appeals, Sec. 23 on inadmissibility or exclusion of evidence secured in violation of pertinent provisions, Sec. 24 on penalty of 10 years imprisonment for law enforcement agents or military personnel for unauthorized surveillance and making available to the aggrieved party any information maliciously procured, Sec. 29 on written notification of the judge nearest the place of apprehension of the latter’s details, Sec. 30 on rights of a person under custodial detention, Sec. 31 on penalty of 10 years imprisonment for violations of the rights of a detainee, Sec. 33 on no torture or coercion in investigation and interrogation with reference to R.A. No. 9745 or the Anti-Torture Act of 2009, Sec. 37 on penalty of 4 years imprisonment for malicious or unauthorized examination of bank accounts, Sec. 41 on penalty of 4 years imprisonment for unauthorized revelation of classified information, Sec. 43 on penalty of 6 years imprisonment for furnishing false evidence, forged documents or spurious evidence, Sec. 47 on the Commission on Human Rights to “give the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act,” Sec. 48 on ban on extraordinary rendition to another country, and Sec. 51 on protection of most vulnerable sectoral groups.
There is, however, a dearth of ATA provisions that flesh out its declared policy of a “comprehensive approach, comprising political, economic, diplomatic, military and legal means,” except for the latter which constitutes the meat of the ATA. There is nothing that fleshes out in particular “Such measures… [as] conflict management and post-conflict peacebuilding, addressing the roots of conflict… duly taking into account the root causes of terrorism…” This dearth warrants the reopening of legislative deliberations in order to address it.
12. In the final analysis, only implementation and practice will tell whether “the basic rights and fundamental liberties of the people as enshrined in the Constitution” would be upheld, and whether “respect for human rights, which shall be absolute and protected at all times,” would not be prejudiced, pursuant to the ATA’s declared policy. The general and historical experience in the Philippines has been that the law and its implementation two, sometimes very, different things. The difference may be attributed to the criminal justice system and its several pillars, most crucially that of law enforcement led by the police. And in the particular case of the ATA, it is “law enforcement agents or military personnel” who would be the front-liners in its implementation. Given particularly the recent experience of this administration’s “war against drugs,” it should not be seen as asking too much that a certain necessary measure or level of police reform be achieved first before passing or implementing the ATA. Let this be our counter-part to the call for police reform in the U.S. now arising from the killing of George Floyd, one too many among Blacks who have lost their lives in the brutal hands of predominantly White policemen, as a function of systemic racism.
Both police and military personnel who will be assigned to ATA implementation work, such as surveillance of suspects, interception and recording of communications, filing of written applications with the authorizing division of the Court of Appeals, custody of intercepted and recorded communications, joint affidavits for this purpose, written notifications of the judge nearest the place of apprehension, informing detained persons of their rights, maintaining an official custodial logbook, and filing of the appropriate cases before the Public Prosecutor’s Office, will need some special training for this. There is no ATB provision for this as well as for the special training of designated specific divisions of the Court of Appeals or certain branches of the RTC as anti-terror courts to handle ATA cases. As a rule, the Implementing Rules and Regulations cannot fill the substantive gaps in the law itself.
And so, all told, the better part of anti-terror valor is some prudence. To reiterate our call, reopen legislative deliberations on the ATB for a better and more socially acceptable ATA, and for the necessary institutional preparation for its implementation, in the interest of Philippine democracy, fundamental freedoms, civil liberties, human rights, and the right fight against terrorism.
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*About the author: Soliman M. Santos, Jr, is presently a Judge of the Regional Trial Court of Naga City, Camarines Sur. He is a long-time human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books.
Source: This article was published by PIPVTR
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Philippines: On New Anti-Terrorism Bill/Law: Some Initial Notes
June 8, 2020 PIPVTR 0 Comments
PIPVTR
By Soliman M. Santos, Jr.*
These are only some initial notes relevant to, not a comprehensive assessment of, the new Anti-Terrorism Bill (ATB, Senate Bill No. 1083/ House Bill No. 6875) poised to be passed as “The Anti-Terrorism Act of 2020” (ATA) which would repeal R.A. No. 9372, the Human Security Act of 2007 (HSA).
1. Much concerns have been raised not only in Congress but also in various media about the ATB passing soon into the ATA, be these concerns in terms of its substantive content, its legislative process, its timing, its prioritization amidst a pandemic lockdown and, perhaps most importantly, its likely significant consequences for Philippine democracy, fundamental freedoms, civil liberties and human rights, especially about the Sec. 29 Detention Without Judicial Warrant of Arrest on mere suspicion of committing terrorist acts or of membership in a proscribed terrorist organization. We need not repeat, for the most part, those raised concerns which are serious. If only to give just due to these serious concerns, which are not limited to issues of constitutionality, the prudent thing now would be for the Congress leadership to withhold transmitting the ATB to the President for him to sign it into law but instead reopen legislative deliberations (like was done for the ABS-CBN franchise renewal) OR, IF the ATB has already been transmitted to the President, for him to veto it purposively to reopen legislative deliberations. It will not do for him to merely not sign it, as it would then automatically lapse into law 30 days from transmittal to him.
2. In the meantime, the HSA will still be there as the existing anti-terrorism law which is the domestic law which primarily addressees terrorism, aside from R.A. No. 10168, The Terrorism Financing Prevention and Suppression Act of 2012 (TFPSA). It is interesting to note that the TFPSA makes reference to the HSA such as when it comes to designated terrorist organizations and persons. However, while the ATB would repeal the HSA, it would not repeal the TFPSA which the ATB in fact reiterates in Secs. 16, 35 and 36 when it comes to surveillance of suspects and interception of communications, and to investigation and freezing of bank deposits, related to the financing of terrorism. So, even without an ATA, there will still be an anti-terrorism law which is the HSA. As it is, there has not been much implementation experience of this 2007 anti-terrorism law, not much cases filed, hardly any jurisprudence on it and no congressional oversight review that would ordinarily be the basis for the amendment and especially repeal of the HSA.
3. The only Supreme Court Decision on the HSA that I am personally aware of, as the lead individual petitioner, is that in Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146 (2010), which dismissed several petitions, including those of KMU, BAYAN, KARAPATAN et al., questioning the constitutionality of the HSA immediately after its passage, declining to rule on this on procedural grounds basically of un-ripeness for adjudication. The Decision practically required that the petitioners must first be charged with violation of the HSA so that they may be said to have legal standing in an actual controversy and only then can the Court take cognizance of the case. My old friends Atty. Edre U. Olalia of the National Union of Peoples’ Lawyers and Rep. Carlos Isagani Zarate of the Bayan Muna party-list group who have announced their intentions to challenge the ATA’s constitutionality upon its signing by the President should take that requirement into consideration.
It may be also interesting to note that there is a pending (?) February 2018 Petition by the Department of Justice (DOJ) against the Communist Party of the Philippines (CPP) and New People’s Army (NPA) for their proscription as terrorist organizations under Sec. 17 of the HSA docketed as Case No. R-MNL-18-00925-CV before RTC Branch 19 Manila. I am not aware of any successful service of summons to the respondents CPP and NPA which have no permanent address, much less of any entry of appearance by any counsels for respondents and their submission of a Comment. If the HSA is repealed shortly, that proceeding would no longer proceed. If ever, a new Petition for proscription of the CPP and NPA as terrorist organizations, this time under Sec. 26 of the ATA,would have to be filed. And again, there will be interesting questions of service of summons, appearance of counsels for respondents and their Comment against the Petition. Or it could be a default Order of Proscription?!?
4. Unlike the HSA which has only Sec. 17 on Proscription of Terrorist Organizations involving proceedings before a competent Regional Trial Court (RTC), the ATA would have Sec. 25 on Designation of Terrorist Individuals and Organizations, and Sec. 26 on Proscription of Terrorist Organizations. Under the ATA Sec. 25 on Designation, there are basically three modes, all unilateral by the Anti-Terrorism Council (ATC, with the Executive Secretary as Chairperson and the National Security Adviser as Vice-Chairperson) and with no court proceedings:
a. The ATC shall automatically adopt the United Nations Security Council (UNSC) Consolidated List of designated terrorist individuals and organizations.
b. The ATC may adopt requests for designations by other jurisdictions after determination that it meets the criteria in UNSC Resolution 1373.
c. The ATC may designate an individual or organization upon a finding of probable cause that the latter commits, or attempts or conspires to commit, acts defined and penalized under the ATA Secs. 4 to 12.
Under the ATA Sec. 26 on Proscription, this is upon application by the DOJ before the authorizing Division of the Court of Appeals against organizations which commit the same acts under the ATA Secs. 4 to 12, or which are organized for the purpose of engaging in terrorism. The application must be with the authority of the ATC upon recommendation of the National Intelligence Coordinating Agency (NICA) which shall be the Secretariat of the ATC. The Court shall give due notice and opportunity to be heard to the organization sought to be declared as terrorist. Under Sec. 27, the Court shall issue a Preliminary Order of Prescription within 72 hours from the filing of the application where it has determined that probable cause exists on the basis thereof.
Aside from the different procedures for designation under the ATA Sec. 25 (unilateral by the ATC and covering both individuals and organizations) and for proscription under Sec. 26 (with court proceedings and covering only organizations), it is not so clear whether there are different implications or consequences between designated terrorist organizations and proscribed terrorist organizations.
5. It is interesting to note that there is an existing Presidential Proclamation No. 374 dated 5 December 2017 “declaring the CPP-NPA as an entity designated and/or identified as a terrorist organization pursuant to Section 3(e)(1) of RA No. 10168” [the TFPSA]. It cites as basis for this that “on 09 August 2002, the United States of America (USA) designated the CPP-NPA as a foreign terrorist organization (FTO) and to date continues to include the CPPA-NPA in its list of FTOs” and also “Article VII, Section 17 of the Constitution [which] provides that the President shall ensure that the laws are faithfully executed.” The obvious questions are: given this, would a designation or proscription of the CPP-NPA as a terrorist organization under the ATA Secs. 25 or 26 still be necessary? And would Presidential Proclamation No. 374 be already sufficient basis to apply the rest of the ATA to the CPP-NPA?
6. While we are at it, we might as well bring into the discussion the “twin” Presidential Proclamation No. 360 dated 23 November 2017 “declaring the termination of peace negotiations with the National Democratic Front (NDF)-CPP-NPA and all its adjuncts and organizational units.” It cites as basis for this that “in spite of the best efforts exerted by this Administration, the NDF-CPP-NPA failed to show its sincerity and commitment in pursuing genuine and meaningful peace negotiations as it engaged in acts of violence and hostilities…” and also “Executive Order No. 292 (s. 1987) [the Revised Administrative Code] provides that the President may, by way of proclamation, declare a status or condition of public moment or interest.” Obviously, the stated basis did not include the declaration of the CPP-NPA as a terrorist organization, for the proclamation of which came 12 days later. But the latter declaration can be reasonably expected to be an additional impediment to the resumption of peace talks, an important concern expressed by a close family friend Filomeno S. Sta. Ana III of the Action for Economic Reforms.
In theory, the conventional wisdom is that “we do not negotiate with terrorists.” But in practice, it happens. Even after Proclamations Nos. 360 and 374 in late 2017, the have been urong-sulong or atras-abante peace talks resumption explorations (currently, it is urong or atras) and actual short-term ceasefires on the local communist armed conflict front up until the end of April 2020, including attempted “Local Peace Engagements” with local units of the “Communist Terrorist Groups” (CTGs) at the local level pursuant to Presidential Executive Order No. 70 dated 4 December 2018 on the “Whole-of-Nation Approach in Attaining Inclusive and Sustainable Peace and… to End the Local Communist Armed Conflict.” In other words, terrorist designation in itself is not a decisive counter-factor against peace negotiations. There are other, more decisive factors, like lack of trust and confidence and the politico-military situation. Perhaps the best recent counter-example to the said conventional wisdom is the breakthrough agreement between the U.S. and the Afghan Taliban, a U.S.-designated FTO, for peace in Afghanistan. Negotiating with so-called “terrorists” (just like successfully done with the Moro Islamic Liberation Front once tagged as “terrorist”) may soon become the “new normal.”
7. Speaking of so-called “Islamist terrorist organizations,” like say the most notorious Abu Sayyaf Group (Al-Harakatul Al-Islamiyyah) or the remnants of the Maute Group (Daula Islamiya fi Ranao), I doubt whether there will be any real fuss about their designation or proscription under the ATA or under whatever purported legal basis. It seems different as far as the current strong critical voices against the ATA are concerned, whereby there is even an expectation that the ATA is primarily intended against the CPP-NPA “and all its adjuncts and organizational units.” Let us not kid each other about this. The CPP-NPA is the first to admit that expectation, given the most recent Presidentially declared “all-out war” against them, “you S.O.B.s… [English translation, with much of the bile lost in the translation].”
Those current strong critical voices who are not CPP-NPA “and all its adjuncts and organizational units,” because of their serious concerns about the ATA’s likely significant consequences for Philippine democracy, fundamental freedoms, civil liberties and human rights, are perhaps well aware of German Lutheran pastor Martin Niemoller’s famous 1946 post-war confession: “They came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.” If a communist revolution can swallow its own children, so can a fascist dictatorship.
8. The mention of the Abu Sayyaf Group, the Maute Group and the CPP-NPA in the same breath brings us to the definition of terrorism, especially its legal definition, which should be the basis for the designation or proscription of terrorist organizations. The current strong critical voices against the ATA contend that the definition of terrorism in Sec. 4 of the ATA is over-broad or vague (constitutional issues to be raised) such as to endanger even what are truly non-terrorist organizations and individuals. The key to the ATA Sec. 4 definition is not the five enumerated acts (a) to (e) in the first part of the Section (e.g. “Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life”) but rather the “purpose of such act, by its nature and context” which may be any of the following that would make it terrorism:
“to intimidate the general public or a segment thereof”
“create an atmosphere or spread a message of fear”
“to provoke or influence by intimidation the government or any of its international organization (sic)”
“seriously destabilize or destroy the fundamental political, economic or social structures of the country”
“create a public emergency”
“seriously undermine public safety”
These formulations appear to be in accord with the UN’s 2004 description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.”
From my own earlier study of the matter, I had in 2002 come up with this proposed core legal definition of terrorism: “the systematic employment by states, groups or individuals of acts or threats of violence or use of weapons deliberately targeting the civilian population, individuals or infrastructure for the primary purpose of spreading terror or extreme fear among the civilian population in relation to some political or quasi-political objective and undertaken with an intended audience.” You will see at the outset that the concept that states are just as capable of committing terrorist acts as are non-state armed groups. And so, if the Philippine government, particularly Congress, is truly sincere in suppressing terrorism in all its forms or sources, including state terrorism, I challenge it to incorporate this concept in our anti-terrorism law. Of course, this would need more legislative as well as public deliberation and , yes, debate, for which reasonable time should be given.
But going back to the ATA Sec. 4 definition of terrorism, to its credit, it makes clear that it “shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.” (underscorings supplied) This is a clear improvement over the HSA definition of terrorism.
9. While non-state armed groups or rebel groups are capable of committing terrorist acts, not all such groups are ipso facto terrorist organizations. It depends on their conduct of armed hostilities, on whether or not its acts of armed violence meet the elements of terrorism, as discussed above, especially in terms of deliberately targeting the civilian population, individuals or infrastructure for the primary purpose of spreading terror or extreme fear among the civilian population in relation to some political or quasi-political objective. The group’s track record on this must be fairly examined. Only if there is a clear and consistent pattern, plan or policy (in short, something systematic) of terrorist acts or methods by the group would it be justified to designate it as a “terrorist organization.” One terrorist act does not necessarily make a terrorist organization, unless the act is based on a policy of employing terrorist acts (for example, a policy of suicide-bombing targeting innocent civilians, or a policy of reprisal aerial bombing or artillery/tank shelling targeting the civilian mass base of the enemy).
As I said, there would likely be not much fuss when it comes to designation or proscription of the Abu Sayyaf Group or the remnants of the Maute Group as terrorist organizations. They may even welcome it as some sort of perverse badge of honor. But there would likely be much fuss when it comes to the CPP-NPA, also because of the possible impact on those who might be deemed its accessories or its support or front organizations in case it is designated or proscribed as a terrorist organization under the ATA. The CPP-NPA will definitely oppose any further designation or proscription of it as a terrorist organization under the ATA. It will likely again cite, among others, what it had previously dishonestly referred to as a United Nations Development Program (UNDP) report in 2005 that stated “In fairness to the CPP-NPA’s historical record of armed struggle, it has not, as a policy – and has not generally in practice – engaged in terrorism or acts of terrorism by deliberately targeting civilians.” This did not come from a UNDP report but from the Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines done by the independent local academe-based NGO Human Development Network (HDN) with only the cooperation support of the UNDP; it is not a UNDP report as the CPP-NPA made it out to be. At any rate, the quoted HDN statement was only one, albeit informed, view as of 2005. The ATA itself in its Sec. 27 provides that a Permanent Order of Proscription shall be valid for only 3 years, after which a review shall be made on whether it is to be extended or lifted. Because of the serious implications of designation or proscription of terrorist organizations under the ATA, this process must be characterized by fairness, perhaps academic-like or judicial-like rigor, and indubitable historical evidence.
10. At this point, there should be no issue about terrorism being among the most serious crimes of concern to the international community as a whole, including the Philippines which has its international obligations to cooperate in its suppression. Terrorism violates the basic right to life and the fundamental freedom from fear. The May-October 2017 Marawi Siege and the January 27, 2019 Jolo Cathedral Bombing are still fresh wounds to remind us of this. There should be no issue about the need for a domestic law defining and penalizing terrorism. This was among the rulings in the Supreme Court Decision in David vs. Arroyo, 489 SCRA 160 (2006). Thus, the HSA of 2007.
11. Comes now the ATA of 2020 to replace the HSA in our statute books. To somehow counter-balance the current strong critical voices against the ATA, another friend Prof. Rommel C. Banlaoi of the Philippine Institute for Peace, Violence and Terrorism Research, proffers what he admits to be a “very unpopular” view of “progressive provisions” in the ATA. Foremost to him is its Sec. 2 Declaration of Policy, particularly these aspects:
“… to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.”
“In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.”
“The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism…”
“Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…”
“… shall not prejudice respect for human rights which shall be absolute and protected at all times.”
ATA provisions to ensure respect for human rights include Secs. 17 & 19 on Judicial Authorization by the authorizing division of the Court of Appeals, Sec. 23 on inadmissibility or exclusion of evidence secured in violation of pertinent provisions, Sec. 24 on penalty of 10 years imprisonment for law enforcement agents or military personnel for unauthorized surveillance and making available to the aggrieved party any information maliciously procured, Sec. 29 on written notification of the judge nearest the place of apprehension of the latter’s details, Sec. 30 on rights of a person under custodial detention, Sec. 31 on penalty of 10 years imprisonment for violations of the rights of a detainee, Sec. 33 on no torture or coercion in investigation and interrogation with reference to R.A. No. 9745 or the Anti-Torture Act of 2009, Sec. 37 on penalty of 4 years imprisonment for malicious or unauthorized examination of bank accounts, Sec. 41 on penalty of 4 years imprisonment for unauthorized revelation of classified information, Sec. 43 on penalty of 6 years imprisonment for furnishing false evidence, forged documents or spurious evidence, Sec. 47 on the Commission on Human Rights to “give the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act,” Sec. 48 on ban on extraordinary rendition to another country, and Sec. 51 on protection of most vulnerable sectoral groups.
There is, however, a dearth of ATA provisions that flesh out its declared policy of a “comprehensive approach, comprising political, economic, diplomatic, military and legal means,” except for the latter which constitutes the meat of the ATA. There is nothing that fleshes out in particular “Such measures… [as] conflict management and post-conflict peacebuilding, addressing the roots of conflict… duly taking into account the root causes of terrorism…” This dearth warrants the reopening of legislative deliberations in order to address it.
12. In the final analysis, only implementation and practice will tell whether “the basic rights and fundamental liberties of the people as enshrined in the Constitution” would be upheld, and whether “respect for human rights, which shall be absolute and protected at all times,” would not be prejudiced, pursuant to the ATA’s declared policy. The general and historical experience in the Philippines has been that the law and its implementation two, sometimes very, different things. The difference may be attributed to the criminal justice system and its several pillars, most crucially that of law enforcement led by the police. And in the particular case of the ATA, it is “law enforcement agents or military personnel” who would be the front-liners in its implementation. Given particularly the recent experience of this administration’s “war against drugs,” it should not be seen as asking too much that a certain necessary measure or level of police reform be achieved first before passing or implementing the ATA. Let this be our counter-part to the call for police reform in the U.S. now arising from the killing of George Floyd, one too many among Blacks who have lost their lives in the brutal hands of predominantly White policemen, as a function of systemic racism.
Both police and military personnel who will be assigned to ATA implementation work, such as surveillance of suspects, interception and recording of communications, filing of written applications with the authorizing division of the Court of Appeals, custody of intercepted and recorded communications, joint affidavits for this purpose, written notifications of the judge nearest the place of apprehension, informing detained persons of their rights, maintaining an official custodial logbook, and filing of the appropriate cases before the Public Prosecutor’s Office, will need some special training for this. There is no ATB provision for this as well as for the special training of designated specific divisions of the Court of Appeals or certain branches of the RTC as anti-terror courts to handle ATA cases. As a rule, the Implementing Rules and Regulations cannot fill the substantive gaps in the law itself.
And so, all told, the better part of anti-terror valor is some prudence. To reiterate our call, reopen legislative deliberations on the ATB for a better and more socially acceptable ATA, and for the necessary institutional preparation for its implementation, in the interest of Philippine democracy, fundamental freedoms, civil liberties, human rights, and the right fight against terrorism.
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*About the author: Soliman M. Santos, Jr, is presently a Judge of the Regional Trial Court of Naga City, Camarines Sur. He is a long-time human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer; and author of a number of books.
Source: This article was published by PIPVTR
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COVID-19: The CCP Lied, the WHO Lied, Thousands Died
See - https://bitterwinter.org/covid-19-the-ccp-lied-the-who-lied-thousands-died/
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COVID-19: The CCP Lied, the WHO Lied, Thousands Died
06/04/2020
bitterwinter.org
New documents leaked to the Associated Press confirm that the WHO, while praising China in public, knew the CCP was lying about the virus.
by Massimo Introvigne
New documents leaked to the Associated Press confirm that the WHO, while praising China in public, knew the CCP was lying about the virus.
by Massimo Introvigne
Media around the world are commenting the publication by the Associated Press of new confidential documents by the World Health Organization (WHO), confirming that the WHO, while it was telling the world how cooperative and transparent China was, knew that this was not true. It also knew the CCP’s lies would likely result in the loss of thousands of human lives.
The basic story is known, and Bitter Winter told it as early as March 27. The Associated Press documents, however, add new details. On December 27, 2019, one Chinese laboratory, Vision Medicals, had managed to sequence “most” of the genome of the new virus, and sent it to the authorities in Wuhan and the Chinese Academy of Sciences. By January 2, Shi Zhengli, a famous virologist in Wuhan, had detected the full sequence of the genome. On January 5, the Shanghai Public Clinical Health Center, led by another well-known virologist, Zhang Yongzhen, was the third laboratory to sequence the virus’ genome. It also correctly concluded that it was transmitted from human to human. Other two laboratories followed.
Rather than informing other countries and the WHO, on January 3, China’s National Health Commission issued an order, asking the laboratories to destroy the samples and forbidding them to divulge their results. Based on comments by Chinese doctors on social media, on January 8, the Wall Street Journal reported the outbreak of a SARS-like pneumonia in Wuhan. The AP documents reveal that the article greatly embarrassed the WHO. “Dr. Tom Grein, chief of WHO’s acute events management team, said the agency looked ‘doubly, incredibly stupid,’” and Michael Ryan, executive director of the WHO Health Emergencies program, started realizing that China was lying about the events in Wuhan.
In a few hours, on January 8, after the Wall Street Journal had published its article, two events happened. First, Chinese authorities announced they had just “discovered” a new coronavirus—a lie, since they had an almost complete sequence of its genome since December 27. Second, a suspicious passenger from Wuhan was stopped by Thai health authorities upon entering Thailand. She was examined by a team lead by Professor Supaporn Wacharapluesadee, who found a new coronavirus. In 24 hours, Supaporn had obtained a partial genetic sequence of the virus, and shared it with Thai authorities. She did not know that a full sequence was available in China. On January 11, Shanghai’s Zhang Yongzhen posted the full sequence on the specialized Web site virological.org. He did so without permission from the Chinese authorities, who reacted by closing his laboratory. Zhang’s brave move, however, allowed the Thai scientists to confirm that their case matched the findings in China, and to alert the WHO. Only after Zhang’s publication and communications from Thailand, China finally officially transmitted the sequence to the WHO, on January 12, but still tried to hide for several days that human-to-human transmission was a proved fact.
In the first two weeks of January, WHO’s Michael Ryan continuously asked WHO’s top authorities to put pressure on China, telling them this was a remake of Chinese reticence to share data about SARS. “This is exactly the same scenario, endlessly trying to get updates from China about what was going on,” he said according to the Associated Press, “WHO barely got out of that one with its neck intact given the issues that arose around transparency in southern China.” Ryan also commented that what was happening in China “would not happen in Congo and did not happen in Congo and other places,” referring to Congo’s more cooperative attitude when Ebola hit.
The WHO representative in Beijing, Dr. Gauden Galea, is from Malta, a country with close ties with China. Yet, he also told the WHO leaders that China was not cooperating. According to the Associated Press, on January 9 he stated that, “We have informally and formally been requesting more epidemiological information, but when asked for specifics, we could get nothing.”
This led to catastrophic mistakes. On January 14, the WHO tweeted that “Preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the novel #coronavirus (2019-nCoV) identified in #Wuhan, #China.” The contrary was true, and the WHO was consciously or unconsciously spreading the CCP’s lies.
Faced with China’s lack of cooperation, finally Dr Tedros Adhanom Ghebreyesus, the WHO’s Director-General and a staunch Chinese ally, traveled to Beijing with other WHO officers, including Ryan. Tedros finally received enough information to declare a world emergency on January 30. Yet, rather than blaming the CCP for the deadly delay in informing the world, Tedros insisted that, “We should have actually expressed our respect and gratitude to China for what it’s doing. It has already done incredible things to limit the transmission of the virus to other countries.” WHO’s credibility was at its lowest. Preserving the image of China and supporting Chinese propaganda had been more important than saving human lives.
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