CODAL: Counsels for the Defense of Liberties

Legal analyses, studies, statements and news

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Location: Metro Manila, Philippines

CODAL convenors include the following: (Lawyers) Atty. Florisa Almodiel, Prof. Victoria Avena, Comm. Remedios Balbin, Atty. Hubert Bustos, Atty. Emilio Capulong Jr., Atty. Neri Javier Colmenares, Atty. Charmaine de la Cruz, Atty. Edwin de la Cruz, Atty. Cora Fabros, Atty. Gregorio Fabros, Atty. Robert Figueroa, Atty. Alnie Fojas, Atty. Ingrid Gorre, Prof. Marvic Leonen, Atty. Bernie Luceres, Atty. Nenita Mahinay, Comm. Nasser Marohomsalic, Atty. Noel Neri, Atty. Edre Olalia Atty. Julian Oliva Jr., Atty. Jobert Pahilga, Atty. Rachel Pastores, Atty. Ma. Luz Rañeses-Raval, Atty. Amelyn Sato, Judge Cleto Villacorta, Judge Fred Ampuan; (Law Students) Ms. Jo Abaya - Ateneo, Ms. Cherryl Aguilar - UST, Mr. Jonell Torregosa - Arellano, Ms. Shirley Nuevo - San Beda, Ms. Jill Santos - UP; (Paralegals) Mr. Daniel Javier, Mr. Cesar Arellano

Friday, January 20, 2006

Constitution Proposed by House: Bribery as Highest Law of the Land

CODAL is concerned that the Constitution proposed by the House of Representatives and currently used as a ‘Working Draft’ by the Constitutional Amendments Committee, seeks to gain support through bribery by doling economic and political favors.

It seeks to bribe the Senators and opposition members of Congress by dangling the ‘no election’ scenario which will extend their terms to 2010.

It hopes to bribe all public officials by extending their terms to 5 years and removing term limits. Its provision increasing the retirement age of the Supreme Court is nothing more than an attempt to influence its decision in support of the proposed Constitution should it be challenged in the judiciary.

The proposal also shocked anti-corruption advocates when it deleted the 1987 constitutional provision absolutely prohibiting the reappointment of members of the COMELEC, COA, CSC and the Ombudsman.

The proponents also seek to bribe all political parties, including the opposition, by providing for ‘subsidies’ to political parties.

It even wants to bribe the Vice-President by giving him at least a ceremonial role and an assured cabinet post in the interim parliament.

The way the House Majority and the Arroyo administration crafted the unpopular ‘working draft’, the proposed Constitution may be approved and ratified, not on the merits of its proposals but rather on the amount of benefits it doles out.

No Election and No Term Limits

The proposed Constitution seeks to dangle possible term extension to Senators and ALL public officials by providing for a ‘no election’ scenario under Art. XVIII, Sec. 3 :

Sec. 3. However, if in the Plebiscite for the ratification of the foregoing proposed amendments, the people shall decide to set the first elections under the parliamentary system to the second Monday of May 2010, then the interim parliament shall be extended until June 30, 2010.

The deceptive phrase ‘the first election under the parliamentary system’ actually includes all elections—including that of local officials. This is meant to ensure total support by local officials during the ratification campaign for the Constitution. Sec. 3 is also intends to attract support from Senators, including opposition members in the Lower House, whose terms end in 2007. The Senators, however, will be MPs without a district and second class citizens of the ‘Interim Parliament’, a recipe for defeat should these Senators run against the incumbent District MP in the 2010 district elections.

Section 3 of Article VI and Sec. 8, Art. X are additional carrots for all local officials, including current members of Congress as these not only increase their term to ‘five’ years but also abandons the constitutional rule on term limits. Sec. 3 Art. VI provides that “ The Members of Parliament shall be elected … for a term of five years without limit as to the number thereof…”

Sec. 8, Art. X also provides that “ The term of office of elective officials … shall be five years”. The ‘no election’ scenario virtually creates an unaccountable government—a ruthless attack on the principles of democracy and people participation in governance. The ‘no election’ provision and the resulting extension of terms of all elective officials are nothing more than undisguised attempts to bribe members of Congress, including the opposition, in exchange for its support of the proposal and also ensure that Pres. Gloria Arroyo stays in power until 2010.

Increase in Retirement Age of Judiciary

A cause for concern among the legal profession is the threat on the independence of the courts by the sudden increase from the current retirement age of members of the entire judiciary including the Supreme Court in Sec. 11, Art. VIII which provides that :

Sec. 11. The Members of the Supreme Court, and Justices and judges of lower courts shall hold office during good behavior until they reach the age of Seventy-Five (75) years or become incapacitated to discharge the duties of their office. They shall have the option to retire at the age of seventy years with full benefit.

Strangely, this increase from the current retirement age of seventy (70) was never explained by the House proponents especially since this was never raised as an issue against the 1987 Constitution. This is no other than a bribe to members of the Supreme Court who will inevitably tackle the constitutional issue on the constituent assembly and the ratification of the Constitution.

Allows Reappointment for Members of COMELEC, COA, CSC and Ombudsman

The proposed Constitution also seeks to get the support of even the members of the COMELEC, Commission on Audit and the Ombudsman by deleting the phrase ‘without reappointment’ provided for in the 1987 Constitution which absolutely prohibits their reappointment and replacing it with the innocuous “without immediate reappointment” in Art. IX of the House “Working Draft”. The proposed Constitution provides in Article IX [C], Sec. 1 (2) on the Commission on Elections (COMELEC) states:

(2) The Chairman and the Commissioners shall be appointed by the Prime Minister ..for a term the seven years without immediate reappointment. The incumbent chairman and commissioners shall be allowed to serve out their respective terms.

This means that Chairman Benjamin Abalos may be reappointed to the COMELEC after he sits out one term after the end of his tenure. This ‘insertion’ is without any basis considering that the non reappointment of officers like the ‘Ombudsman’ has never been an issue under the 1987 Constitution. This will only make members of the COMELEC, COA or the OMBUDSMAN who hopes to be reappointed, beholden to the Prime Minister and the ruling party during their first term.

Subsidizing Election Campaign of Political Parties

The proposed Constitution also seeks to gain the support of political parties by shockingly providing in Art. IX [C] Sec. 6 that political parties will receive ‘subsidy’ courtesy of the empoverished Filipino people:

Sec. 6. Political parties must be strengthened and must receive equitable subsidy from Government. ..

This broad, unqualified and mandatory provision will surely get the support of political parties who will benefit from the subsidy given them for their election campaigns. While politicians spend money during previous elections, the proposed Constitution makes the people and tax payers spend for the reelection of politicians.

Cabinet Membership for VP De Castro until 2010

Lastly, the proposed Constitution seeks to gain the support of Vice-President Noli de Castro by assuring him of a cabinet post under Sec. 2, Art. XVIII on the Transitory Provisions:

Sec. 2. The incumbent Vice-President shall automatically become Member of Parliament and of the Cabinet until 2010. He shall preside over the Parliament for the immediate election of the Prime Minister, upon nomination of the incumbent President. Thereafter, the Parliament shall elect the Speaker, and both shall assume their respective offices immediately.

Firstly, this provision may be interpreted to grant Pres. Gloria Arroyo the power to nominate the Prime Minister, making the Prime Minister beholden to Pres. Arroyo. Secondly, VP de Castro after presiding for one day over the Parliament, immediately becomes an ordinary MP without a constituency—which makes it difficult for him to successfully run in his district in Mindoro in the 2010 elections. Lastly, since the appointment of cabinet members is at the discretion of the Prime Minister, he may not even be assured of a cabinet post until 2010.

The proposed ‘charter change’ is unpopular according to surveys. The people believe that charter change will not solve poverty as long as the system of corruption and subservience to powerful vested interests remain intact. To circumvent the people’s will, the House Majority plans to get support for its passage by providing provisions that has no relations at all in economic and political reforms, but merely meant to bribe public officials to support the proposed Constitution. This certainly does not augur well for the Filipino people and our aspiration for a better society. CODAL condemns this attempt to win support through bribery in order for powerful politicians to gain and maintain their stranglehold to power.

Neri Javier Colmenares
CODAL Spokesperson

Sunday, January 01, 2006

Killing of Judge Guingoyon: An attack against the legal profession and civil liberties

CODAL strongly condemns the slaying of Judge Henrick Guingoyon and the impunity that rages in the Philippines with the unsolved killing of members of the legal profession, journalists and activists. Judge Guingoyon’s controversial decisions as a judge or his previous involvement as counsel of BAYAN and KMU does not justify his killing. Members of the legal profession, like journalists and activists, must not be attacked for the practice of their profession or political beliefs. The attacks against lawyers and judges are attacks against the legal profession and civil liberties.

Fifteen (15) violent attacks against lawyers were recorded by CODAL in 2005. Other than Judge Guingoyon, seven lawyers many of whom were human rights lawyers, were killed in 2005: Atty. Felidito Dacut (Leyte), Atty. Norman Bocar (Samar), Atty. Ambrosio Matias and his son Leonard (Nueva Ecija), PAO lawyer Teresita Vidamo (Las Pinas), Atty. Victor Padilla (Manila) and Atty. Reuel Dalguntas (Davao). Human rights lawyer Charles Juloya was seriously wounded in an assassination attempt last March 2005. Atty. Romeo Capulong. Judge ad Litem to the Yugoslavian International Criminal Tribunal and head of the Lawyer-Presentors of the Peoples Congress on Truth and Accountability (CCTA), was also the subject of an assassination attempt in Nueva Ecija. PAO lawyer Armando Cabalida was ambushed in February 2005 resulting in the death of his driver. CODAL members, and other members of public interest lawyers groups, were also subjected to threats and harassment.

Three judges namely RTC Judge Paterno Tiamson, Judge Milnar Lammawin and Judge Voltaire Rosales were brutally killed in 2004. Four lawyers were also shot to death in 2004. The killing of Judge Guingoyon brings to ten (10) the number of judges who suffered violent deaths since 1999. CODAL has recorded eleven (11) lawyers, mostly public interest and human rights practitioners, killed since Pres. Arroyo came to power in 2001. The killing of human rights lawyer Atty. Juvy Magsino in February 2004 by suspected elements of the AFP remains unresolved until now.

CODAL reiterates its demand for Pres. Gloria Arroyo to move swiftly and decisively to investigate and prosecute the perpetrators of these acts. Pres. Arroyo has yet to act on the Manifesto on the killing of lawyers submitted by CODAL in August 2005 urging her to publicly condemn the killing and harassment of members of the legal profession.

CODAL, which was originally organized by judges, lawyers and law students as the Committee for the Defenses against Attacks on Lawyers to protests the killing and harassment of members of the legal profession, circulated a Manifesto signed by hundreds of lawyers including IBP provincial chapters nationwide and international lawyers groups. CODAL lobbied for the passage of resolutions on the issue from the National IBP in April 2005, the International Association of Peoples’ Lawyers (IAPL) and the International Association of Democratic Lawyers (IADL). These international lawyers groups condemned the killings and declared the Philippines one of the most dangerous place for lawyers in the world. Former Chief Justice Hilario Davide, in a letter to CODAL on May 19, 2005 condemned the killing of lawyers and judges and supported CODAL’s advocacy to protect members of the legal profession from attacks and harassment.

These brazen attacks undermine the practice of law and the ability of lawyers to fulfill their sworn obligation to serve their clients to the fullest. The capacity of the legal profession to uphold Canon 2, Canon 18 and Canon 19 of Code of Professional Responsibility is diminished when its members face threats by reason of their profession and are paralyzed into playing passive roles instead of vigorously serving their clients and aiding in the administration of justice. These Canons require lawyers to represent their client ‘in an efficient manner compatible with independence, integrity and effectiveness of the profession’ (Canon 2) and ‘with competence and diligence’ (Canons 18 and 19).

Judges are expected to promulgate their decision without fear or favor based on their evaluation of the evidence presented. Their decisions should not be influenced by the consideration of the capacity of one of the parties to physically eliminate them. The recent attacks, however, threaten the independence and integrity of judges thus making the effective administration of justice even more difficult or elusive. Canon 1 (Rule 1.03) of the Code of Judicial Conduct requires that a judge should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source.

According to Paragraph 18 of the Basic Principles on the Role of Lawyers, adopted by the Eight United Nations Congress on the Prevention of Crime and Treatment of Offenders (1990) “lawyers shall not be identified with their clients or their client’s causes as a result of the discharge of their functions.” The Philippine government is required to protect lawyers under Paragraph 16 of the above Principles which declares that “governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and consult with their clients freely; (c) shall not suffer, or be threatened with, prosecution or administrative, economic and other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”

Any attack on lawyers and judges ultimately constitute a threat to legal profession and civil liberties including the constitutional principle that grants everyone access to courts and the right to counsel to protect or promote their rights.

We urge decisive action from Pres. Gloria Arroyo who has not only failed to respond to the spate of killings but has also refused to publicly condemn the impunity existing in the Philippines today. We demand that Justice Secretary Raul Gonzales desist from his political work as press relations defender of Pres. Arroyo and focus on his work in the investigation and prosecution of the unabated killings. We call on members of the legal profession to unite and protest against these attacks and threats on the legal profession and the justice system in the Philippines. We must end impunity and the breakdown of the justice system in the Philippines.

Neri Javier Colmenares
CODAL Spokesperson
January 1, 2006

Thursday, December 29, 2005

Police serving arrest warrant may force US Embassy to surrender accused US soldiers; VFA cannot trump RP constitution

Under Sec. 6 Rule 110 of the Rules of Criminal Procedure, the Olongapo Regional Trial Court, “within ten days from the filing of the information” against the US soldiers accused of rape, “shall issue a warrant of arrest” upon finding probable cause in the offense charged against the accused.

Police authorities serving the warrant against the accused has all the powers of the Philippine legal system to execute the warrant, by force if necessary, within 10 days from receipt of the warrant issued by the court, as required by Section 4 of the same Rule 110. Rule 110 (Sec. 3) categorically declares that ‘it shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.”

The police or any government official, including the VFA Commission, who fails to or obstructs the execution of the warrant is liable under Sec. 1 (d) of PD 1829 or an Act Penalizing the Obstruction or Apprehension of Criminal Offenders which penalizes with prision correccional anyone who ‘delays the prosecution of criminal cases by obstructing the service of process or court orders”. Any US official, not so registered with the DFA as a consular or embassy agent as provided for under RA 75, may also be arrested by the police for violating Sec. 1 ( c ) of PD 1829 which penalizes any person who “obstructs or impedes, frustrates or delays the apprehension of suspects and the investigation or prosecution of criminal cases”.

Under Section 13 of the 1987 Constitution, anyone who commits a capital offense in the Philippines cannot post bail nor be released on recognizance, when the evidence of guilt is strong. Section 6 of the VFA agreement granting custody of an accused US national to the US cannot trump Section 13. Considering that the evidence of guilt against the US soldiers is very strong, they have to be placed in Philippine prison like everybody else in similar circumstances.
Rape is a capital offense and since the rape they were accused of was committed by ‘two or more’ persons’, with the use of ‘superior force’ on the intoxicated victim, the accused may get the death penalty if convicted under Sec. 11 of RA 7659 or the heinous crimes law. Allowing the accused to remain in US custody whether here or abroad is releasing them on ‘recognizance’ to the US government, clearly not allowed under the Constitution.

The Visiting Forces Agreement, a mere Executive Agreement under US laws not having been ratified by the US Senate, cannot override the 1987 Constitution, the Rules of Court or any Philippine law.

The US will in fact be violating their obligations under the VFA if they continue exercising absolute custody over the accused as provided in Art. II (VFA):

“Art. II It is the duty of the US personnel to respect the laws of the Republic of the Philippines x x x The US Government shall take all measures within its authority to ensure that this is done.”

It is treacherously incorrect for the DOJ to claim that Philippine laws applicable to all Filipinos, cannot be applied to US nationals by virtue of the VFA. By recognizing the right of the US to maintain custody of the accused, Pres. Gloria Arroyo and the Department of Justice has placed the acquisition of jurisdiction over the crime at the discretion of the US. Under Philippine criminal laws, local courts can only try a case if they have jurisdiction over the offense charge, in this case rape, and the person of the accused. Unless the accused is arrested or surrenders to the Court, no court can try the rape case for failure to have jurisdiction over the ‘person’ of the accused. Trial in absentia is prohibited in the Philippines before the accused is arraigned. Should the accused fail or refuse to appear before the Olongapo RTC, the criminal case cannot prosper.

It must be noted that the US can immediately imprison any Filipino soldier who commits a crime in US territory, and may waive said right only upon ‘request’ of the Philippine government. Article VIII, Sec. 2 of the VFA Counterpart Agreement in the US (VFA Part II) merely requires the US government to request US ‘authorities’ detaining a Filipino to release that Filipino to Philippine custody:

Sec. 2 (VFA II) x x x The (US) Department of Defense will ask the appropriate authorities in the United States having jurisdiction over an offense committed by Republic of the Philippines personnel to waive in favor of the Republic of the Philippines their right to exercise jurisdiction, except in cases where the Department of State and the Department of Defense, after special consideration, determine that United States interests require the exercise of United States federal or state jurisdiction.

Since the US maintains the right to refuse the Philippine ‘request’ for custody, the Philippines should also do the same under the terms of the counterpart agreement—and refuse any US request for custody. Any act of the US, therefore, to withhold custody of the accused from the Philippine government immediately clashes with the Constitution, the rights of the victim, legal provisions on bail and the equal protection clause.

This disparity in treatment is magnified by the fact that arrested Filipino “TNT’s” in the US are immediately detained and deported like cattle for not having a visa, while the US soldiers stay in comfortable rooms in their embassy or hotels. If the government pursues its current deference to US custody, and the US embassy fails to produce the accused soldiers in court, we may end up with a trial against the Filipino driver only while the accused US nationals go free—another statistic in the long list of US soldiers who escaped from the porous clutches of the Philippine judicial system.

By Neri Javier Colmenares
CODAL Spokesperson
Dec. 29, 2005