Philippine law blog

2012-01-01T20:08:00.000-08:00

DIVORCE: A QUICK ESCAPE TO MARRIAGE…NOT AT ALL!

Ideally, a vow to live and die with your wife or husband will always be a vow. Love should not be as fragile as a glass that when it drops, it breaks. But why do some couples still think of heading themselves to a quick escape out of their hopeful marriages? One of these “escapes” I’m talking about is divorce.

The first thing that comes in my mind when I hear about divorce is termination of marital union. This applies to married couples which take it as a way to get out of theirexisting marriages for any other reason, be it well-grounded or not. Divorce is typically a painful process but ironically, a lot of people, even Filipinos invite the idea of divorce, allowing this to take over Filipino values and culture. Luckily, it is not recognized under Philippine laws. Perhaps, this is one of the very reasons why some Filipinos desire and get married outside the Philippines and later if they decide to, end the marriage as easy as 1, 2, 3.

Let’s try to take a look on how far will this divorce go.

In questions involving the validity of divorce obtained outside the Philippines, we usually apply Article 15of the Civil Code because the matter of validity of divorce affects family rights and duties, status and condition of a person.

Art 15 of the Civil Code says:

“ Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”

Here, if citizens of the Philippines obtained the foreign decree of divorce, the same will not be recognized as valid here in the Philippines even if the said divorce was valid in the place where it was obtained. Two reasons are, it is against public policy and against morality according to the Supreme Court.

But on the other hand, if decree of absolute divorce was obtained by foreigner ina foreign court, Philippine courts may still recognize the validity of the divorce if the same was obtained pursuant to the national law of the foreigner following the nationality principle stated in Art.15 of the Civil Code. There isonly one situation where a foreign decree of divorce can be recognized as valid even to the citizen of the Philippines. This avers the exception provided for in the second paragraph of Article 26 of the Family Code.

Art. 26 2^nd Paragraph provides:

“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

Clearly, this is the only situation under our law where a foreign decree of divorce is recognized as valid even to the citizen of the Philippines.

Things to consider for Article 26, 2^nd par. of the Family Code 26 to apply:

1. Firstly, existence of a valid mixed marriage

A citizen of the Philippines must be married to a foreigner. This is commonly known as mixed marriage.But when do you determine if it is a case of mixed marriage? Is it necessary that it must be a mixed marriage from the very start? What if the two parties involved were previously both citizens of the Philippines at the time of the celebration of marriage but later on one of them applied for a change of citizenship and become a foreign national and that foreign national obtained a foreign decreeof absolute divorce capacitating him or her to remarry, will Article26 of the FC apply so that the other party who remained a citizen of the Philippines will now regain his capacity to remarry? The answer is YES.

Let us relate the case of Republic vs. Obrecido III. In this case, the Supreme Court ruled that in determining whether it is a case of mixed marriagethe reckoning point is the citizenship of the parties at the time where the foreign absolute decree of divorce was obtained and not at the time of the celebration of marriage. Simply put, in determining the validity of divorce obtained abroad, the basis is the citizenship of the divorcee at the time the divorce of marriage was obtained and not the time of the celebration of marriage. Thus, even if thetwo parties are originally Filipinos but later on one of them becomes a foreign national and it is only after becoming a foreign national that he or she has obtained the divorce, this is where the exception under Art 26 applies.

2. Alien spouse obtained the valid divorce decree

The second requirement is that it must be the foreigner who shall obtain thedecreeof absolute divorce in order for Article 26 to apply. If it is the citizen of the Philippineswho obtained the decree of absolute divorce, it is not Art 26 of the Family Code which will apply. Instead,it is Art 15 in relation to art 17 of the Civil Code in which case under our law, divorces obtained by the citizen of the Philippines are not recognized as valid being contrary to public policy and morality.

3. Divorce decree must be absolute

The third requirement is that the nature of foreign decree obtained must be an absolute one. Meaning, it must capacitate the divorcee to remarry.

We have to note that even in foreign jurisdictionsthere are two types of divorces: a divorce may either be absolute, capacitating the divorcee to remarry, or restricting, which restricts the divorcee’s capacity to remarry. So if the foreign divorce obtained by the divorcee restricted his capacity to remarry the Filipino citizen will not likewise regain his capacity to remarry.

With these said, one cannot conclude that simply having a foreign spouse who obtained a divorce decree abroad, automatically capacitates a Filipino to remarry. Otherwise, he or she might be misled of contracting a subsequent marriageat the risk of committing the crime of bigamy.

What then should the Filipino spouse do in order to make the divorce obtained abroad be recognized and made valid in the Philippines, thus allowing her to legally remarry?

Firstly, the citizen of the Philippines must file a petition before the Family Courts to authorize him or her to remarry pursuant to the provision of the 2^nd par. of Art 26 of the Family Code. In that petition the petitioner must able to prove the following:

1. Existence of the foreign divorce decree

Well settled is the rule that before the Court can take cognizance of the existence of a foreign judgment, it must be established as a matter of fact.

2. Divorce decree based on national law

It must also be proven that decree of absolute divorce must be obtained pursuant to the national law of the divorcee which allows foreigndivorces, following the nationality principle embodied in Art 15.

3. Existence of foreign law

In the process, petitioner must prove the existence of the foreign law. The rule in jurisdiction asserts thatbefore foreign law canbe taken cognizance by Philippine courts,it must be specially alleged and proven. If not, our court will presume that foreign law is the same as our domestic or internal law.

In conclusion, divorce is never that easy as others would think. Simply because marriage, being an inviolable social institution, is governed by law and not subject to any stipulation or human ill-will. Divorce therefore should not be taken as a quick escape out of marriage. This cannot be forced to anyone though. This makes divorce a neutral thing. It only gets bad when people take advantage of it but it serves a fine purpose when people use it the way it should be.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

2011-12-25T21:30:00.000-08:00

SUCCESSION MADE EASY

Succession has been one of the most difficult yet the most, if not for some, interesting subject in Civil Law. Others would find it complicated but one of the best ways to understand succession is to know the basic.The reason is, one cannot understand one thing if he or she is a stranger to it. And being in a review class, it’s but important for me to fully understand the basics of law.

In this article, we’ll get a glimpse of succession and somehow get to know the fundamental principles of the law.

Succession, being one of the modes of acquiring ownership, has three (3) kinds. Firstly, the testate succession. It is a type of succession which results from the designation of an heir, made in a will executed in the form prescribed by law. Meaning, the person who died left a will. Secondly, is the legal or intestate succession. It is that which is effected by operation of law in default of a will or aperson died without leaving a will. Thirdly, is the mixed succession. This type of succession is effected partly by will and partly by operation of law. Simple, right?

The decedent or the person who died with inheritance is the most important person in succession. Without him or her, there is no succession to talk about. If the said decedent died and left a will, he is called a testator.

Much more than the heir, or the person who can inherit form the decedent, in succession, as to the rights of the person involved, the most important thing that we need to determine is who is the decedent because from him or from her we would know who are the heirs.

What does these all mean? Let us take a specific case given by one of my law professors. We will call the dead person X. X died leavinga surviving common law wife, a full blood brother and a half blood sister. In his will, X gave his entire estate to his surviving common- law spouse.

The first question in this problem is, “Was his testamentary disposition in accordance with the law on succession. “ This problem would require us to consider whether those who survived are compulsory heirs or not because if the full blood brother or half blood sister are compulsory heirs then the testamentary disposition of X is not valid. However, under the law on testate succession, the full bloodbrother and half blood sister are not compulsory heirs. In fact, they are heirs in the collateral line. In effect, the testamentary disposition of X in giving the entire estate to his common-law spouse is valid. He may give his estate to anyone he pleases who has the capacity to succeed, but subject to the limitations set forth by the law.

The misconception in relation to this problem is about common-law spouse. The misconception here is since the person who survives is only a common law wife, thus she has no capacity to succeed for the reason that he or she is only a paramour. This is not true because as long as they are living together as husband and wife even if without the benefit of marriage theyare considered as common law spouse. Accordingly, one only becomes a paramour when the other party has a legal impediment. Meaning, he or she is legally married to somebody else.

Since X has no legal impediment, then the common law wife is not incapacitated to succeed since there are no compulsory heirs who survive the decedent.

The second question in the problem here is what if X died intestate. Who will share in his inheritance? Obviously if a person dies intestate, he died without a willthereforewe will be considering who the intestate or legal heirs are. If the common–law wife, full-blood brother and the half-blood sister survived the decedent, only the full-blood brother and the half-blood sister shall inherit from the decedent.

Under the law, the common law wife, under intestate succession is not an heir, since she is not married with the decedent. Thus, she will not inherit. As to the full-blood brother and half-blood sister, they will get a share of the inheritance or estate. This is because under the law of INTESTATE SUCCESSION, brothers and sisters are compulsory heirs under certain circumstances. As such, the full-blood brother will get twice the share of the half-blood sister. The full-blood brother will get 2/3 of the estate’s share while the other 1/3goes to the half-blood sister.

These are just few of the basic principles governing succession. The rules may be complicated but these can be made easy once fully understood.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

2011-11-16T16:36:00.001-08:00

I DO…I DON’T THINK SO…

In the Philippines, marriage has been a part of every Filipino family’s good customs. It has been considered as a much awaited event for couples especially the women.

Just when you started to believe that miracles do happen and that fairy tales do come true, --- you have finally found the person to whom you will share the rest of your life with; to whom you will build a family with; to whom you will complete your dreams with --- but as you wait for that someone to come in what supposed to be the most important day of your life, your world crumbles down as you realize that that person, who promised you forever, has decided to pull back. Your greatest dream now turns out to be your worst nightmare. Most often than not, this scenario is commonly seen in Filipino soap operas. I believe you are even familiar with runaway brides. But, how about runaway grooms?

What if as said, the man, who promises you forever, turns his back on you one or two days prior to the wedding or worst on the day of the ceremony? Is there any remedy which the bride-to-be can avail of in exchange of the shame or humiliation that this traumatic experience may bring?

The answer is a big YES.

Under Art. 21 of the Civil Code ” Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

It is a paramount rule that breach of promise to marry is contrary to good customs, hence deemed considered an actionable wrong. But let us qualify so as to give clarifications as to when a breach of promise to marry becomes an actionable wrong and when it is not.

Under the law, if it is simply a breach of promise to marry per se without any attending circumstance, the rule is that the man will not be liable for simply breaking his promise to marry the woman. The reason is that it is the policy of the state. It is the intention of the Congress. Why is that so?

It is worth note taking that when the draft of the Civil Code was presented by the drafters to the Congress, it included that the breach of promise to marry is an actionable wrong. However, this was frowned upon by the Congressmen which resulted to the omission of the said provision from the draft. Such act manifested the intent of the congress not to make the breach of promise to marry an actionable wrong. The reason is one cannot seek specific performance to compel marriage.

On the contrary, the breach of promise to marry becomes an actionable wrong if there is moral seduction. Here, there is moral seduction if the promise of marriage will serve as the proximate cause why a woman surrenders her virginity to the man; where on the outset, the man has no intention of fulfilling the promise for the reason that he is married at the time he made the promise.

In other words, where a man’s promise to marry was the proximate cause of giving herself to him in sexual congress and there is proof he had no intention of marrying her, the promise being a deceptive device, damages may be awarded pursuant to Art 21 NCC because of the fraud and deceit behind it and the wilful injury to her honour and reputation (Baksh vs. C.A. G.R No. 97336, February 19, 1993). But, if it is a case of mutual attraction, mutual love, and mutual lust then the promise of marriage could not be the proximate cause. Hence, there will be no liability for breach of promise of marriage.

Furthermore, sex is not an element for someone to be liable for moral damages under ART 21 in case of breach of promise to marry.

Just like in the case of Wassmer vs. Velez. The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.

In this case, the groom let the wife believe that the marriage will push through. Preparations were made and invitations were sent. Two days prior to the marriage, the groom copped out and informed the wife by simply writing the latter a whimsical note stating that he could no longer marry her. The Court ruled that the act of the groom was palpably and unjustifiably contrary to good customs. He was then made liable for damages pursuant to Article 21 of the Civil Code.

There is also one case where a marriage is supposed to be celebrated. The parties were already right before the priest but when the priest asked the public if there was any objection to the marriage someone from the audience stood up and publicly declared her affection to the groom. Unfortunately, the groom went with her not minding the priest’s reprimand. Out of shame, the bride sought for damages for such humiliation. Applying the case of Wassmer v. Velez , the Court ruled in favor of the wife.

In sum, the beach of promise to marry is not by itself an actionable wrong. To be actionable, there must be another act independent of the breach of promise to marry which gives rise to liability as where there was financial damage, social humiliation and moral seduction.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

2011-06-26T20:29:00.000-07:00

President Aquino as a Water Hyacinth Remover-in-Chief and the
Postponement of the ARMM Elections – Are They Related?

By Atty. Elpidio V. Peria

It was equally dismaying to listen to Cotabato City and Maguindanao Province local officials this week saying they were dismayed at Pnoy not bringing any solution or vision to the water hyacinth or water lily problem that has congested the Rio Grande river in Mindanao which has caused severe flooding in these two areas recently.

In other words, they want Pnoy to be the Remover-in-Chief of these water lilies and they will just follow what he will instruct them.

Why this attitude? From the pronouncements of these local officials, it was obvious the Local Government Code has failed in weaning away the dependency of local officials from what is Imperial Manila.

Their utter helplessness in dealing with their problems and now just waiting for President Aquino to helicopter to them ready-made solutions is pathetic and unbecoming of the vision of what local executives should be under the Local Government Code, one who is resourceful and can find the means to support his own activities with a lessened dependence in the national agencies..

The first sentence of the Declaration of Policy of Republic Act 7160 or the Local Government Code has this to say on the matter :

sec. 2. Declaration of Policy – (a) it is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.

The word “self-reliant” was not placed there by Sen. Pimentel, the father of the Local Government Code, for nothing but to underline the need for local government units not to go to Manila too often to ask for money and anything else needed to run a barangay, city, municipality or province, though local officials sometimes may need the excitement of Manila to perk themselves up and shake the ennui of rural boredom that is seen as a regular feature of life outside the capital.

Come to think of it, in a act of statesmanlike deliberativeness, Pnoy said he will study the issue some more and will consult some experts and on an unspecified date, will come back and propose solutions.

Those who are fond of FVR and GMA miss their intense work ethic and hands-on approach to the minutiae of governing. Those familiar with the work-styles of these former Presidents swear that had it been FVR or GMA who was there visiting the flooded regions, there would have been officials, be it local or line agency, who may have been berated and upbraided already in front of many people, given deadlines or were given marginal notes. Heck, one of them said GMA even will write on a piece of any paper found on the spot, just to scribble down some instructions to underlings, all giving the aura of action and authority fused at that instant aimed at solving the basic problem faced at that time.

That is what these local officials may have gotten used to, but did not see in Pnoy.

Pnoy, like what the leftists say, is an out and out hacendero or at most, a son of an absentee landlord and at fifty years old, even on women that he'd rather date than commit, he has set habits or work and thought, thus, a lifetime of lethargic existence and easy-going unharried lifestyle refuses to be unsettled by the water hyacinths or water lillies that these dismayed local officials have neglected to manage in the first place, thus, Pnoy appeared to them as someone who has not shown any active interest or clear vision of what he wants to do when confronted with the problem face to face.

Unless what we mean by “solution” or “vision” has some peso sign attached to it.

Clearly, in a DZRH interview of a Cotabato City official, it was clear that Pnoy was not that in a hurry to give money to the local officials in the area, and that it was palpable according to the local official that there was no trust at all in the local officials handling the problem, thus that kind of sense of dismay felt by those officials who are in need of “solutions” or “vision” to solve their water lily problem.

This sense of lack of trust in the local officials in the ARMM, apparent in this incident of the issue of removing the water lilies could be one reason why Pnoy and his party-mates in Congress pushed hard to have the legally scheduled ARMM elections in August re-set and synchronized with the regular local elections in 2013.

It must be noted though that Cotabato City is not a part of this autonomous region, but is instead a host to the offices of the ARMM, in an odd Washington. D.C.-type of political arrangement. A lot of ARMM officials though live in Cotabato City. Just the same, Cotabato City is one of the worst-hit areas by the floods caused by, among others, the water hyacinths clogging the river outlets of the city.

Pnoy and his party-mates actually wants to ensure their party wins the next round of general elections in 2016, thus eschewing the actual legal rationale for synchronization of elections.

Thus, those who wish to make Pnoy take the lead in removing the water lilies should just await his solutions to the problem which may come anytime soon, and like the proverbial saying “be careful what you wish for, it may be granted”, this surrender or holding in abeyance of the exercise of local authority and autonomy will get its full treatment once Pnoy signs this week the law synchronizing the ARMM elections to 2013, in effect, postponing it.

In that way, we can truly see what kind of Water Lily Remover-in-Chief he will be including perhaps becoming an ARMM overlord, which may be tested under the Constitutional vision of the President as having “general supervision” over local government units and autonomous regions.

How that will actually turn out and how he would like things to happen there, a glimpse of that we can see when he makes his oath-taking anniversary speech or the traditional SONA to mark his one year in office in the coming days.

With a sliding popularity that shows a trend of continuous decline, Pnoy may have to resort to something like authoritarian measures to show he has vision, to show he is a leader, not a stranger to action.

The people love it, or perhaps they have gotten used to it, to them that is leadership.

Please check link also at President Aquino as Cotabato Water Hyacinth Remover http://y.ahoo.it/Of4WTA

oOo

2011-06-19T21:17:00.000-07:00

Spratlys Idiosyncrasies:
Does the Philippines Have What It Takes to Prevail Over China?

By Elpidio V. Peria

This write-up will not dwell on the political and military capability of the Philippines over a rising power such as China, but will provide a sketch of the relative legal merits of the Philippine claims over the Spratlys Island or Kalayaan Island Group, in the recently-named West Philippine Sea.

The late Prof. Haydee Yorac of the University of the Philippines College of Law, wrote as early as 1983 in a Philippine Law Journal article that

Persuasive arguments in favor of the Philippine claim are the related notions of abandonment, territorium nullius and effective occupation.

Prof. Yorac explained that the case for abandonment is anchored on the premise that it is Japan, not China, that can be considered to trace their legal title to the islands before World War II, making the earliest categorical claim of sovereign occupation over the islands and actually occupying the islands for a long period of time. The existence of a legal title can also be inferred from the way Japan was made to renounce title to the islands in both the Treaty of Peace with the Allies in 1951 and the Bilateral Treaty of Peace with the Republic of China. Since it was not clear to which country the renunciation was made in favor of, then the islands became what in international law is called as territorium nullius.

Prof. Yorac elaborated on this concept of territorium nullius, defining it as “territory over which there exists no effective sovereignty and which is therefore, subject to acquisition by occupation”. These may include either uninhabited islands or even inhabited ones, if those who inhabit the latter do not constitute a political society.

Thus, when Tomas Cloma, a private citizen, made a declaration in 1956 asserting ownership by discovery and occupation over the "33 islands, sands cays, sands bars and coral reefs and fishing grounds in the Spratlies covering an area of 64,976 square nautical miles”, he was in effect taking advantage of the nature of the islands as either abandoned and/or having the status of a territorium nullius.

Other international law scholars would belittle the Philippine actions and legal claim as this was only recently affirmed on June 11, 1978, when President Marcos issued Presidential Decree No. 1596 declaring most19 of the islands, cays, shaols and reefs as belonging to. the Philippines and forming an integral part of Philippine territory.

Malaysia's claim came much later, in 1980, when it issued a new official map which claimed continental shelf encroaching upon a portion of the Spratly group and part of the Palawan group.

Another set of legal arguments the Philippines is using to bolster its claim in the Spratlys is the UN Convention on the Law of the Sea or UNCLOS, to which it is a signatory and a ratifying country, specifically citing the islands as part of its Exclusive Economic Zone or EEZ.

Xavier Furtado, a visiting Assistant Professor in International Relations at De La Salle University noted in a 1999 paper two idiosyncratic problems when citing UNCLOS to bolster the Philippine claims. According to him:

one such issue is the definition of an island. According to UNCLOS, an island can be used to generate an EEZ. The drafters of the Convention, not wanting small uninhabitable rocks and occasionally submerged features to be used as base points, defined an island as "a naturally-formed area of land, surrounded by water, which is above water at high tide". The Convention is careful to differentiate between legitimate islands and "rocks which cannot sustain human habitation or economic life on their own". In spite of this clear definition, some claimants (the Peoples' Republic of China particular) have used submerged features in the Spratly chain to claim territorial waters and EEZ.

For example, both the PRC and the Philippines claim Scarborough Reef which lies some 215 kilometres west of the Philippines. While some features of the Reef are submerged, others manage to remain above sea level at all times. However, as those features are unable to generate any sort of economic activity and are uninhabitable, they cannot be used to claim an EEZ. In spite of this, the PRC and the Philippines continue to engage in an open confrontation over who has legitimate control over Scarborough Reef. More importantly, this has contributed to further confusion over the definition of an island as outlined in UNCLOS.

Another problematic aspect of UNCLOS as it relates to the Philippines is the Convention's provisions on archipelagic states. Prof. Furtado explains:

Part IV of UNCLOS defines an archipelago as "a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such". UNCLOS affords archipelagic states, such as the Philippines, specific privileges in terms of drawing baselines for territorial/sovereignty purposes. Specifically, such states have the right to draw baselines around the fringes of their outermost islands. In doing so, archipelagic states are allowed to claim the waters within these boundaries as sovereign territory. Having established their periphery, archipelagic states can then claim their territorial sea and other maritime spaces as would any other state. As a result, it is possible that substantial areas of the ocean (which otherwise would be considered part of the high seas) would come under the sovereign jurisdiction of a single state. In the case of the Spratly dispute, the Philippines has benefited the most from these provisions and, at various times, has attempted (rightly or wrongly) to use them to justify its claim to the Kalayaan group.

However, Prof. Furtado says that :

it has proven very difficult to reconcile UNCLOS with existing provisions in the Philippine Constitution regarding internal waters. Article 1 of the 1987 Constitution states that "the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines". To reinforce this assertion, the Philippine Government made the following statement: The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or the high sea from the rights of foreign vessels to transit passage for international navigation.

                On 10 March 2009, President GMA signed into law, RA 9522 or “An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes”.

                The said law was however questioned before the Supreme Court by Profs. Merlin Magallona, and Harry Roque, Akbayan Party-list Rep Rissa Hontiveros and 38 other UP Law students, and among other grounds it asserted, the key point for our discussion from that petition is that RA 9522 has effectively weakened the Philippine claim over the Spratlys or Kalayaan Islands Group as it is called there in such petition, by classifying such islands as a “regime of islands” which means “a group of islands whose ownership is being contested by the Philippines and other claimant countries.” aside from putting these islands effectively outside of the outermost points of the baseline.

The Supreme Court, however, has not yet resolved this case, up until now. Perhaps it may help if the Supreme Court can clarify some of the changes effected by the new law on the Philippine baselines, whether they are legally valid or not, as that will determine whether the Philippine claims to the Spratlys will be helped or not, especially when it involves the interplay of what is in the Philippine Constitution, which has a provision on the national territory based on the Treaty of Paris that gives the Philippines a bigger territory than what is provided for by RA 9522 and interpretation of how far UNCLOS provisions on archipelagic waters can be implemented within Philippine jurisdiction.

Given the intricate link of this case to the Philippine claims over the Spratlys, it is best to await its outcome and then define the subsequent courses of action later.

(The author, Atty. Elpidio V. Peria, is a partner at Cartojano Peria & Associates, a full service law firm in the Philippines)

oOo

PLDT-Digitel Merger : Who Gets To Say It's For the Public Good?

2011-05-29T20:53:00.000-07:00

CURRENT LEGAL CONCERNS 30 May 2011
Atty. Elpidio V. Peria

PLDT-Digitel Merger : Who Gets To Say It's For the Public Good?

President Noynoy Aquino according to a news article yesterday by Philippine Daily Inquirer has recently ordered the Department of Science and Technology (DOST) and the National Telecommunications Commission (NTC) to investigate whether the merger between Philippine Long Distance Telephone (PLDT) and Digitel may have any undue disadvantage to other players in the telecom industry.

Earlier this month, we also have Senator Joker Arroyo asking the Senate Committee on Public Services chaired by Sen. Bong Revilla to determine whether the same merger is in accordance with their respective legislative franchises, especially when there's a provision in the legislative franchise of Digitel, Republic Act 9180, which says that Digitel “cannot lease or transfer its assigned franchise to any other commercial or legal entity nor shall the controlling interest of the grantee be transferred without prior approval of the Congress of the Philippines."

While he's at it, Sen. Joker Arroyo has a barb to the government agencies dealing with the merger, saying : “The NTC, SEC, PLDT, and Digitel are talking among themselves about the merger or sale of the controlling interest of Digitel to PLDT as if Congress does not exist,", as reported by Malaya in its online edition dated May 19, 2011.

Meanwhile, in a May 26, 2011 posting at NEWSBYTES Philippines, it was reported that Party-list Congressman Teddy Casino also filed his opposition to the merger before the NTC saying that : “obviously, a 70 percent market share results in tremendous market power for PLDT-Digitel, giving rise to a situation where they can dominate the market, dictate prices and influence the entire industry in their favor. This is precisely what happened in the past, when PLDT monopolized the telecommunications industry”,

From the news item, it was not only the legislator who opposed the merger, but also industry players GLOBE Telecom, consumer groups and third-party players like Eastern Telecoms which argued before the NTC that with the merger, “PLDT will control 70 percent of the entire telecom market, including mobile, landline, inter-carrier services, international gateway facilities, broadband, and value-added services, including six out seven international cable systems that carry outbound voice and data traffic, and four out of five cable landing stations.”

“With such dominance, PLDT will be able to discriminatorily price its services, subsidize underperforming units with income of dominant brands, and leverage its assets and command of the market in interconnection disputes so as to delay or hinder interconnection,” the Makati-based firm said.

“The dominance will extend to a commanding control of Internet Exchanges and local Internet peering. PLDT will be in a position to restrict access to locally hosted content by disallowing traffic from competitors to pass through its network,” the company added.

PLDT on the other hand, points out in its press releases, like in a statement sent to Sun.Star Cebu, that consumers will benefit from the merger, saying the PLDT Group combined with Digitel will give them higher quality and more affordable services to fixed line, wireless and broadband subscribers.

PLDT also said that it intends to keep the operations of Sun Cellular “separate and intact.” It also wants to maintain and capitalize on Sun Cellular’s operations and brand equity to continue serving specific segments of the market, “especially those who prefer ‘unlimited’ type of services.”

It is good these concerns and commitments to serve the public good are all coming out now, but ultimately, under what rules will the PLDT be really held into account for these commitments including the resolution of these fears and concerns?

In addition to clarifying what these rules are, which of these entities identified earlier, from President Noynoy Aquino, the NTC or the Congress which has two branches, the Senate and the House of Representatives, will have the final say on whether this merger goes ahead or not?

Or maybe it is up to Manuel V. Pangilinan himself, the PLDT CEO, who, perhaps in an act of delicadeza similar to his initiative in owning up to the plagiarized graduation speech he delivered some years back, might just drop this deal, as the opposition to it is now hurting the image of his company.

But will these actions be enough to finally resolve the issue of monopolies or the lack of competition in the telecoms industry?

As pointed out by former NEDA Chief Ciel Habito in his NO FREE LUNCH column, the Philippines does not have the comprehensive competition policy that the US has long had, to give it a strong legal basis to stop the PLDT-Digitel merger.

Ultimately, without an anti-trust law and an anti-trust agency to resolve these concerns in an orderly manner, the oppositors to this deal will just have to go to the Supreme Court to resolve their concerns, and one principle that will guide them is already articulated by the Supreme Court in the case of Tatad v. The Secretary of the Department of Energy, G.R. 124360, November 5, 1997, which said that :

the fundamental principle espoused by section 19, Article XII of the Constitution is competition for it alone can release the creative forces of the market. But the competition that can unleash these creative forces is competition that is fighting yet is fair. Ideally, this kind of competition requires the presence of not one, not just a few but several players. A market controlled by one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where honest-to-goodness competition will prevail. Monopolistic or oligopolistic markets deserve our careful scrutiny xxx...

The constitutional provision cited in that case reads:

Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

Fr. Joaquin Bernas said that “as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The State must still decide whether public interest demands that monopolies be regulated or prohibited. On the other hand, combinations in restraint of trade and unfair competition are prohibited by the Constitution.”

At the end of the day, absent any anti-trust law in our current setting, the key question that should be asked is whether the public interest is served by this merger and all the entities we have mentioned, including President Pnoy will have their take on this issue. It is the Supreme Court then that will become the final arbiter of this issue, unless the parties will find ways to resolve this on their own and drop this deal and just spin themselves off into independent entities that will compete on their own in the currently burgeoning telecoms market.

oOo

Comments are welcome : pingperia16@yahoo.com; pingperia16@gmail.com

Filipinos going bananas on Australia's import restrictions

2011-05-23T21:31:00.000-07:00

EMERGING LAW – TRADE LAW

Atty. Elpidio V. Peria

22 May 2011

Banana Split to Australia ?

What the Filipino Banana Exporter May Do to Make Sense

of Australia's Sanitary and Phytosanitary (SPS) Measures

Malaya's online edition last May 20, 2011 headlined that Filipino banana growers are “going bananas” over Biosecurity Australia's requirement that the Philippine bananas exported to Australia should be plants that have eight leaves, and these eight leaves should be there in the plant before the bananas are harvested and not only that, the Filipino exporters are also required to use a non-perforated plastic to wrap the fruits.

The application of this strict or strange rule, whichever way one looks at it, not only threatens the export prospects of Philippine bananas to Australia but highlights an obscure part of trade law dealing with sanitary and phytosanitary (SPS) measures which is part of a set of agreements in the World Trade Organization (WTO), to which both the Philippines and Australia are members.

According to a handbook from the World Trade Organization (WTO) website, The WTO Agreements Series, the Agreement on the Application of Sanitary and Phytosanitary Measures (“the SPS Agreement”) sets out the basic rules for food safety and animal and plant health requirements.

The Series says that while the SPS Agreement allows countries to set their own standards on food safety and animal and plant health requirements, it also specifies that regulations must be based on scientific findings and should be applied only to the extent that they are necessary to protect human, animal or plant life or health; they should not unjustifiably discriminate between countries where similar conditions exist.

The question that must be asked here is whether the eight-leaf rule as well as the non-perforated plastic requirement is a reasonable requirement in accord with WTO rules and one approach which Filipino banana exporters may do to clarify this is to recall art. 2.2 of the SPS Agreement which states:

2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.

This provision, among its other details, deals mainly with the question on whether there is enough scientific evidence to justify the SPS requirement.

From the WTO analytical index on the SPS Agreement found in the WTO website, based on the WTO Dispute Settlement Panel on Japan-Apples case, the kind of scientific evidence to be considered here is

evidence gathered through scientific methods, excluding by the same token information not acquired through a scientific method. We further note that scientific evidence may include evidence that a particular risk may occur … as well as evidence that a particular requirement may reduce or eliminate that risk ….

What this means is that there has to be a clear scientific basis for the eight-leaf rule, including that of the non-perforated plastic requirement, which is based on a study which uses the scientific method. There must also be scientific evidence that a particular risk may occur if the banana is harvested not from an eight-leaf plant and it should also be shown that the eight-leaf requirement will reduce this risk.

Who has the burden of proof in raising this matter relating to scientific evidence?

In the same Japan-Apples case found in the WTO website analytical index, the Appellate Body said that : “although the complaining party bears the burden of proving its case, the responding party is responsible for proving the case it seeks to make in response”.

What the Filipino exporter has to do is to raise a presumption that there were no relevant scientific studies or reports to prove that the measure at issue imposed by Australia was not supported by sufficient scientific evidence.

Another aspect of the WTO SPS rules that the Filipino exporter can raise against Australia is whether the disputed rule is in accord with art. 2.3 of the SPS Agreement which reads :

3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.

From the same WTO analytical index, this provision has the following elements based on the Panel on Australia — Salmon (Article 21.5 — Canada) :

“[T]hree elements, cumulative in nature, are required for a violation of this provision:

(1) the measure discriminates between the territories of Members other than the Member imposing the measure, or between the territory of the Member imposing the measure and that of another Member;

(2)the discrimination is arbitrary or unjustifiable; and

(3)identical or similar conditions prevail in the territory of the Members compared

There are a lot more things to be considered in relation to these provisions and also a thoroughgoing assessment of emerging legal principles from WTO jurisprudence, and the Filipino exporters' lawyers familiar with the nuances of world trade law would know all of these things.

If only to clarify these matters so as to guide the actions of the rest of the Filipino banana exporting community, there must be initiated some action here, actions which are not limited to diplomatic initiatives but also to other means at our disposal to address the concerns of Australia on Filipino banana exports not limited to the implementation mechanisms established under the ASEAN-Australia New Zealand Free Trade Agreement (AANZFTA) of which this issue is a legitimate concern.

The said bilateral trade agreement is based on the parties' commitments to the WTO's SPS Agreement, there should be no problem raising the same principles outlined above as both of the parties to this case are WTO members.

Short of this, if this issue is not resolved, the exporters concerned should take this issue, with the help of the DTI and the DFA and our Permanent Mission to the WTO, before the WTO and initiate legal action before the dispute settlement body of such organization, to clarify the application of this rule, once and for all.

Now, if the exporters find this process tedious costly or too complicated beyond their understanding and experience, why don't they just repackage instead those fresh bananas and export processed bananas, like, among other incarnations of the fruit, banana splits, though that will most likely require another discourse on what sorts of trade rules will apply to these kinds of products.

oOo .

Comments are welcome : pingperia16@yahoo.com

A Test For Congressman Pacquiao

2011-05-21T09:31:00.000-07:00

CURRENT LEGAL CONCERNS

16 May 2011

Atty. Elpidio V. Peria

Double Prosperity Amidst Adversity in Sarangani Bay :

A Test Case for Congressman Manny Pacquiao ?

While the Panamanian vessel M/V Double Prosperity that has run aground the coral reefs off the coast of Kiamba town, in Sarangani Province recently may seem like a harmless incident with the Philippine Coast Guard already making assurances that the vessel will be towed soon, the incident may be an opportunity for Congressman Manny Pacquiao to demonstrate if he may have learned some sense about environmental protection and recovery from one of his early patrons, former DENR Secretary Lito Atienza.

A Manila Bulletin news item from 14 May 2011 quoting the Protected Area Superintendent (PASu) of the area, yes, the area is protected by law, the National Integrated Protected Areas System (NIPAS) Act or Republic Act 7586, shows initial estimates of damage to the coral reef at Php 30 million.

How the PASu came up with his estimates it would be surely enlightening for the people to know as it indicates how rich the marine resources of the area is, though these same people may be disheartened to realize that such amount is something that is not easily convertible to cash, especially with so many poor people along the coast in that part of Sarangani Province, and lest it be missed, Sarangani Province is one of the “poorest of the poor” provinces in the country.

So, how can Congressman Pacquiao, showcase his ability as a legislator in this situation?

One thing that he can do, and this is in the realm of unsolicited advise as he has able and competent advisers in his Congressional staff, is for him to file a House Resolution to conduct an inquiry in aid of legislation, to determine the causes of the grounding and the steps so that this incident will not happen again.

While not really constituting a Board of Marine Inquiry, which is only constituted in cases of severe mishaps with many lives lost, this legislative inquiry should gather the facts which led to the grounding of the ship and to determine the culpability of those involved, be it the ship captain, the one in charge of the wheel at the time of the grounding, and even the ship owners or those who have chartered the boat that appeared to have wandered into the coral reefs in a manner of being off-course from its usual route. .

While the data gathered from this legislative inquiry may be used by the managers of the Sarangani Bay Protected Seascape, the Protected Area Management Board, by which they can make a decision on any legal action they may wish to take against those who may have caused the damage, the inquiry may also bring to light the various steps which can now be taken to ensure that the Sarangani Bay will be adequately protected from these types of navigational mishaps.

But another thing that the inquiry can do is identify the various ways in which the Bay can sustain its recovery so that the resource will bring double the prosperity to the province by way of sustainable fisheries, but also ecotourism, and other forms of ecosystem services that ensure the well-being of the people in the area and its surrounding environment.

Given that he may wish to conduct his public hearings on this item on-site, near Kiamba town itself, that in itself is a worthwhile endeavor as it brings to national attention the natural beauty of the place including the innate warmth of its people. With Manny Pacquiao's media-drawing ability, the projection of the province will not only be up to the limits of Manila, but also in places where Paris Hilton or Bob Arum resides, in the USA, and beyond.

Now, while national attention is riveted on how the hearings are being conducted by the Congressman and the Congressional Committee that may be tasked to do it, this may also be an opportune time for this legislative inquiry to move the process of enacting the legislation to upgrade the current legal basis for protection of the Bay, Presidential Proclamation 756 issued by then President Fidel V. Ramos, so that the current Sarangani Bay Protected Seascape will become a full-blown protected area with a stronger legal mandate.

Once it has a legislative enactment behind it, the Protected Area Management Board of the Bay will now have the necessary funds and enforcement powers to ensure that incidents like these, among other things, will never happen again.

The law on the Protected Seascape will also help to clarify and delineate the roles and responsibilities of the stakeholders in the area from the local government officials, the fisherfolk as well as indigenous and local communities and the civil society organizations and the business sector who also depend on the Bay for various activities from transportation, food and water supply, solid waste management, and others.

Another thing that the boxer-legislator can do is to prod the Provincial Board of the Province to finally adopt an Environment Code for the Province, which has stagnated for quite some time in the august halls of the legislative chambers of the Province, due to various reasons but some say it is also due to the aversion of various businesses in the province for any type of regulatory measure that will hamper their operations and affect their profit margins.

South Cotabato may have some hiccups in its anti-open pit mining ban in its Environment Code, but implementation of the other noteworthy provisions of the said measure is proceeding at its usual pace and is leading the other provinces in environmental stewardship and protection.

Of course, all these suggestions are not only for the Congressman's attention, but to all well-meaning citizens of the Province, who wish to take action on this important issue, which, even though may not immediately bring food to the table, will however ensure that that food on the table is capable of being eaten without any adverse side-effects to the eater, among other beneficial effects of a clean and healthy environment.

oOo

The Republic v. Danding Cojuangco Case : What Chance of a Resurrection for this Loser of a Case for the Government ?

2011-05-03T19:15:00.000-07:00

Image via Wikipedia
By Elpidio V. Peria

Last April 12, 2011, the Supreme Court en banc rendered its ruling on one of the most crucial case against the ill-gotten wealth of the Marcoses and their associates dating back from the Martial Law era involving the shares in San Miguel Corporation (SMC) allegedly bought with coconut levy funds exacted from the poor marginal coconut farmers all over the country. This block of shares was purportedly owned by businessman Eduardo “Danding” Cojuangco and is one of many cases filed way back in 1987 by the Presidential Commission on Good Government, as part of its mandate to recover ill-gotten wealth.

In a nutshell, four justices of the Supreme Court ruled that the Government of the Philippines (dubbed as the Republic of the Philippines or Republic, for short, in this case) failed to submit further evidence to prove that the loans from United Coconut Planters Bank (UCPB and the Coconut Industry Investment Fund (CIIF) secured by Eduardo “Danding” Cojuangco to purchase the shares of SMC, were public in character. A dissenting opinion by Justice Conchita Carpio-Morales held the view that it was Dganding who has failed in his burden of showing that such funds were not taken from public funds, while another dissenting opinion, by Justice Brion, takes the view of the majority handing a loss to the Government but urging instead a prosecution of the government lawyers handling the case of Danding, for their mishandling of the case, citing several instances when they could have presented stronger evidence and have taken other steps to bolster their case, but didn't.

To illustrate how significant this SMC-Danding Cojuangco case is, Justice Brion noted that the SMC is a leading food, beverage and packaging company in the country, now with diversified interests and substantial investments in non-related industries like power and other utilities, banking, mining, energy, tollways, infrastructure, and airports with total assets in 2009 amounting to P438.5 billion and income of P57.8 billion – double the amount appropriated in 2010 for health and social welfare, and one-third of that for education. Justice Brion also observed that the SMC generates nearly 4% of the gross national product and pays 6% of the total taxes collected.

According to Justice Brion, the Republic’s Third Amended Complaint, filed in 1995, claimed ownership over the 16,276,545 of SMC shares that were allegedly acquired by Cojuangco in 1983 with the use of coconut levy funds. At the time of acquisition, this Cojuangco block of SMC shares constituted 20% of the total shareholdings of SMC and was purchased for US$49 million. Because of the issuance of new shares, the Cojuangco block’s shareholding was reduced to 17% in 2007 and 15% in 2010. As of December 2010, the remaining 15% shareholding translates to 493,375,183 common shares, and is worth about P84.56 billion or US$1.86 billion. At the current exchange rate, the original acquisition cost of the shares is now equivalent to P2.23 billion, which means that over the past 27 years, the shares have ballooned 38 times its original value.

Farmers' groups all over the land, especially coconut farmers, decried the ruling as it showed how farmers are again being screwed by Government, first during the Marcos era when the coconut levy was exacted from them through the various Marcos Presidential Decrees and now, with this ruling which effectively forfeits their rights to claim a share of this potential windfall, if the disputed SMC shares are sold in the stock market, which, from the point of view of the farmers, belonged to them in the first place.

The core of the case involves involves a simple rule in evidence and is centered on the issue of who now has the burden or the task of showing that one's allegations are correct and are further beyond dispute by the other side and is now supposed to be binding on the court and all the parties?

The majority ruling states that the Republic utterly failed to present evidence to show that the sources of funds used by Eduardo “Danding” Cojuangco are public in character saying that the earlier landmark 2007 ruling by the Supreme Court that such coconut levy funds are “prima facie” public in character does not excuse the government lawyers from presenting further proof that such coconut levy funds were public in character and thus also, ill-gotten by Eduardo “Danding” Cojuangco.

Dissenting Justice Conchita Carpio-Morales holds that the Republic does not have to do anything to prove a “negative averment” (that the coco levy funds are not private) since it behooves on the lawyers of Eduardo “Danding Cojuangco” to show that this is instead private and failing to do this, the presumption that the funds are public had solidified the Republic's claim.

Dissenting Justice Brion holds that the Republic's lawyers already have in their possession, among others, the papers showing the loans made by Eduardo “Danding Cojuangco came from the alleged sources UCPB and CIIF, he was mystified why it was not presented when they had an ample opportunity to do so during the trial of the case at the Sandiganbayan.

If you also note the gaps in time in the prosecution of this case, from 1987 and with constant amendments up until 1999, one will really wonder how zealous the government lawyers were in really wanting to finish this case sooner. Unless they were bribed by the other side, which no sector is making openly, this will remain speculation, unless the current administration takes the suggestion of Justice Brion seriously and will take steps to look for evidence if indeed the government lawyers bungled this case.

How will this case be finally resolved? Senator Joker Arroyo, a key stalwart of the first Aquino administration, is aghast at the public's lack of outrage in this dismissal of the government case, save of course the farmers' groups who are up in arms and are taking steps to push the government to file a motion for reconsideration of the Supreme Court ruling. He is also wondering why there is no statement of anger from within the Office of the President, which to him is just a bunch of amateurs like in a high school student government.

The PCGG said they will take their time and go through the decision and perhaps be guided by the Dissenting Opinion of Justice Carpio-Morales and file the expected motion for reconsideration within the given time.

Come to think of it, the fate of this case does not lie squarely in the hands of the Supreme Court Justices, they have already ruled on the merits. The PCGG in turn, has to make a very good argument in showing that the alleged ineptness of government lawyers do not actually harm the case they are supposed to prosecute. If this sounds like going through the eye of a needle, it surely is and if this will not happen, perhaps the next best thing for the Government is to take up Justice Brion's suggestion and take steps to remedy the alleged bungling of this case by the Republic's own lawyers.

Or perhaps in a gesture of magnanimity when this case has come to finality and the decision at present becomes final or becomes unmodified after the motion for reconsideration, Eduardo “Danding” Cojuangco might take it upon himself to set up a Farmers' Relief Fund, taken from the proceeds of part of the disputed SMC shares, to finally write finis to this case and perhaps shame the Marcoses into doing also the right thing and settling the scores of other cases which to this day, are still pending. Perhaps if these people will start to do these things, then the public may took kindly to finally letting Apo Ferdinand Marcos be buried in the Libingan ng Mga Bayani.

This is wishful thinking, but perhaps, because today is Easter Sunday, this optimism, however misplaced, can be indulged in, even just for a day, but really, things can happen, and what we need to do is await the further developments in this case.
oOo

Comments are welcome! Email me at : pingperia16@yahoo.com
(The author is a Partner at Cartojano Peria & Associates, a full service law firm based in the Philippines)

The Review of the Japan-Philippines Economic Partnership Agreement (JPEPA)

2011-04-04T01:50:00.000-07:00

EMERGING LAW – TRADE LAW

Atty. Elpidio V. Peria
2 April 2011

The Review of the Japan-Philippines Economic Partnership Agreement (JPEPA) Amidst the Japanese Trifecta of Disasters

Philippine trade officials were keen to remain optimistic on their forecasts of the country's export performance for this year in the light of Japan's triple whammy of earthquake, tsunami and nuclear disasters which it is mightily struggling to recover in spite of fears within its business sector that this could be another “lost decade” for Japan.

In a Manila Times news item 1 April 2011, DTI Undersecretary Adrian Cristobal Jr said that they are reviewing the country's export targets to assess whether they will have to make adjustments even as private sector leaders such as Sergio Ortiz-Luis Jr, the Philippine Exporters Confederation Inc. President and Vice Chairman of the Export Development Council, a public-private body said that the target of attaining US$ 120 billion exports by the year 2016 under the Philippine Export Development Plan 2011-2013 would stand.

This comes as a good time as any to review the Philippines' trade prospects with Japan given that 2011 is the year where a general review of the Japan-Philippines Economic Partnership Agreement (JPEPA) is supposed to take place as mandated by section 161 of the agreement itself, after which the next opportunity this can be done will be only after a period of five years, and subsequently, in similar five-year intervals.

If one is to judge the efforts of the DTI in raising the awareness of the benefits from this bilateral free trade agreement and from news reports, it appears that Filipino exporters are having difficulties in complying with the administrative and procedural requirements necessary to avail of the bilateral free trade benefits of lowered tariffs.

Business World reported in 23 February 2011 that only 2% of shipments to Japan enjoyed the lower duties provided by the Japan-Philippines Economic Partnership Agreement (JPEPA) versus 4% in 2009, based on National Statistics Office (NSO) data made available to the paper.

As to the much-heralded expectation of nurses and caregivers going in droves to Japan to work, this it seems has not happened, as many were turned off by the difficult struggle to master the Japanese language.

Should the Philippines take steps to scrap the agreement at this stage or should it just make some adjustments to deal with the problems of implementation of this first-ever bilateral free trade agreement entered into by the country ?

This decision should come from the people, all sorts of them, not only the exporters, but also the various sectors of the Philippine economy and society, environmentalists included.

This general review should also be thorough, and comprehensive, and ask the hard question : has this bilateral agreement worked to the benefit of the country as a whole, not only limited to the usual export and investment figures.

The DTI is giving itself sufficient time to conduct consultations nationwide and to update its data on the actual implementation as well as the impacts, both the good and the bad, of the bilateral treaty.

While preparing for the review, DTI should keep its consultative processes open to the public, including even to the various NGO groups which opposed JPEPA the first time it was deliberated upon in the Philippine Senate for ratification.

While it is no longer certainly applicable in this situation of the impending review of JPEPA, DTI should not be guided by the Supreme Court ruling in 2008 (G.R.No. 170516, July 16, 2008) involving JPEPA in a case led by the Akbayan party-list and other key personalities where the Court ruled in favor on the legality of the denial of the right to public information by the Petitioners by then DTI Undersecretary Tomas Aquino as disclosing the details of the diplomatic negotiations of the treaty constitute a kind of violation of executive privilege of the same category which then NEDA Secretary Romulo Neri used to refuse to disclose what he actually told then President GMA on the NBN-ZTE deal.

Without need to belabor the point at this stage, it is quite obvious the review of an effective bilateral trade treaty is of a different category than the one when it is still being negotiated, there should be no invocation of secrecy on matters that are of public concern, especially when the country as a whole needs to assess whether this bilateral trade agreement has been beneficial to all sectors.

It's a pity the Supreme Court did not rule on the legality of the breadth of the scope of what the bilateral treaty contains, as said treaty was set to cut tariffs and customs duties on almost all kinds of goods subject to trade with Japan, including the question on whether entering into the bilateral agreements constituted a derogation of our commitments to the broader multilateral trade arena, the World Trade Organization and the further question on whether these bilateral obligations should have preference in our compliance with our multilateral obligations.

These questions will remain hanging, until it is raised in a proper case, at a proper time.

Absent any guidance from the Court, the Philippines will just have to continue performing its international obligations in good faith, at both the bilateral and multilateral arena, ensuring that the interests of the broadest sectors of the economy are protected and secured, at the same time.

oOo

Comments are welcome! Email me at : pingperia16@yahoo.com

WOMEN VIOLATED AND SILENCED

2011-03-30T19:03:00.000-07:00

By Rosanna Javier

March 2011 marked the 100th year centennial of the celebration of International Women’s month. Gabriella included the elimination of violence against women in their 10-pt challenge to the Aquino administration. Despite the passage into law of Republic Act 9262 on Anti-Violence against Women and their Children Act of 2004 or VAWC, Davao City’s records on incidence of violence against women has steadily increased. Lorna Mandin of the Integrated Gender Development Division (IGDD) reports that in 2004 the city recorded 107 cases, 120 cases in 2005, 399 in 2006, 497 in 2008, and 611 in 2009, for a total of 2097 for six years.

In the past, like in rape cases, the victim is guilty until proven innocent and the overall process is skewed to the accused’s favor. In contrast, RA 9262 is supposed to be more gender sensitive and is pro-woman/pro-victim. RA 9262 brought to fore the phenomenon of “violence against women”. This piece of legislation supposedly adequately defends and protects women from their abusive aggressor’s physical, emotional, sexual, psychological and economic abuses. Those suffering from marital battery, a form of violence that is most prevalent in the Philippines (rape being the second), can now seek justice under RA 9262.

While rape may be a one-time occurrence, the abuses sustained by women (covered under RA 9262) are often continuing crimes happening over several stages of a woman’s life. This is a source of major concern. Women need to be more educated about RA 9262 - the types of abuses that can be committed against them, if they are at risk or are potentially at risk and how to seek help when indeed they are already violated.

Judge Adoracion P. Cruz-Avisado in her 2006 dissertation “Republic Act 9262 & the Women Victims of Violence in Davao City” claims that because of the sensitivity of the cases, a lot of violations of RA 9262 go unreported.” She surmises that “women victims of violence are oftentimes fearful for their lives and are still unempowered.”

Michael Tan, of Manila Health Action Information Network (HAIN), says that there exists a culture of silence and violence. He says that “Violence against women exists because we refuse to face up to the roots of the problem and our social norms continue to encourage violence against women.” Tan says Filipino men are only expected to be gentlemen, for as long as the woman is loyal and servile. When a woman starts talking or asking for too much, his “gentleman façade” is dropped giving way to machismo --- the woman must be put “in her place”, through a beating if needed.

Many times, it is the silence of the victim that makes the abuser feel more controlling and fearless. Many women are silenced by their fears and societal pressures. Many times it is not the acts of abuses that may devastate a woman but “It is the reaction of others who hear what happened to her. Most victims remain silent or anonymous because they rightly fear they will be misunderstood or judged” (Candace Walters, “Invisible Wounds; What Woman Should Know About Sexual Assault””).

Arugaan ng Kalakasan, a crisis intervention agency in Quezon City found that some of the reasons women keep silent about their experiences and remain in violent relationships are: "shame, the hope that the abusive partner will change, threats from or the moral ascendancy of the abuser, lack of financial resources, lack of support from relatives, concern for the children, and social pressure to keep the family together."

As a society we should be more belligerent against the violence that is committed against our women.
We must consider that the damage done to the victims is not limited to physical injuries. The wounds may be invisible and leave marks on the minds and souls of the women violated. We shouldn’t be insensitive just because we believe that violence can only happen to other women - the young, the slut and the immoral. In reality it doesn’t happen to those who we think deserves it. It can happen to anyone!

Why do we misunderstand VAW? Is it because we are in self denial and we prefer not to confront it because it is just too depressing? We choose to believe that violence against women does not happen that often and if it does happen, we blame the woman and claim that she should have been able to prevent it. Or are we just plain ignorant and thereby have become passive to the plight of these women?

Because of our apparent lack of concern for the victims, the victim becomes more victimized and the perpetrator is protected and goes scot free. The women violated may lack the maturity to deal with violence and their families may likewise lack the knowledge to help them. Sometimes the women are blamed for what happened to them and urged to forget the whole thing; to “move on”. Where would women get comfort if their family support systems are weak? Some women may self-destruct. She may turn to prostitution, promiscuity, alcohol and drugs.

It is the duty of family, social workers, hospitals and the community to report violations, to lend a voice to the victim even one who refuses to speak out. By allowing these violent and abusive men to thrive and not report about known offenses, we are by default consenting to the crimes. Cora Sta. Ana and Dee Dicen Hunt in their work “Filipino Women and Sexual Violence: Speaking Out and Providing Services” observes that “Increasingly, as the culture of violence is broken, women are coming forward and reporting their experiences of violation.“

Women who dare bring the matters to court are sometimes made to feel embarrassed about “coming out of silence”, sometimes even made to feel the shame by her more powerful aggressor. Some friends who are not sensitive and who don’t even know the complete story would contend, “What are you doing it for? You should just move on!” Hardly would anyone believe the atrocities that happened to the woman. Documented cases show that many women are suffering in silence because they do not want to put their families in shame.

Despite the drawbacks of an RA 9262 trial, there are some benefits to prosecuting. A trial can offer the victim a constructive outlet to ventilate her anger and pain. Research has shown that women who prosecute often recover from the trauma of the violence sooner that those who don’t. There is a satisfaction that everything has been undertaken so that the offender will not victimize or harm someone else.

It is hard for a woman to come out with her tragic story. “Prosecuting the abuser can be a frightening and frustrating experience”. The abuser may inflict further harm and harassment. The legal process can be seen as both intimidating and troublesome.

Sometimes the women are being convinced that it may not be worthwhile to have the offender convicted. In order for the victim to succeed, she needs to be aware of the court system. She should be well informed about her legal rights; the frustrations, delays and complications in the legal system; and be sufficiently prepared before she goes to court. Otherwise, her ill-preparation may result in an impaired testimony and she might just give up all together and lose the case by default. (Morton Bard and Dawn Sangrey, “The Crime Victim’s Book.)

“Problems call forth our courage and our wisdom; indeed, they create our courage and wisdom. It is only because of problems that we grow mentally and spiritually….It is through the pain of confronting and resolving problems that we learn.” M. Scott Peck

(Rosanna Javier is a regular columnist at Mindanao Journal and contributor at Gensan Exchange. She can be reached at rosannajavier_ge@yahoo.com)

Apocalypse When? Liability for Damages Arising from Nuclear Incidents

2011-03-21T19:42:00.001-07:00

CURRENT LEGAL CONCERNS
Atty. Elpidio V. Peria
19 March 2011

Apocalypse When?
Liability for Damages Arising from Nuclear Incidents

Consumers in China were shown in CNN today to be emptying their grocery shelves of salt, driven by the belief that taking in salt would spare them from the ill-effects of radiation from the disabled Fukushima Nuclear Power Plant in Japan, damaged by the earthquake and tsunami which hit the Northeastern part of Japan last March 11, 2011. The CNN news anchor however said that one will have to take in 80 tablespoons of salt in order to get the beneficial effects of one tablet of iodine, the chemical supposed to shield the body from the ill-effects of wayward radiation from the Japanese nuclear plant.

Right now, it is far-fetched for Filipinos to worry about the ill-effects of radiation from a malfunctioning nuclear plant since we don't have any nuclear plant in the Philippines that is operating.

We do have, however, the mothballed Bataan Nuclear Power Plant, which figured prominently as one of the issues against former President Ferdinand Marcos during Martial Law which was about to be the subject of heated debate among environmentalists and proponents. However, the staunchest proponent of the revival of the operation of the mothballed Bataan Nuclear Power Plant, Congresswoman Kimi Cojuangco of Pangasinan, has shelved her House Bill 1291 calling for the reopening of the nuclear plant “indefinitely” right after the magnitude 9.0 earthquake hit Japan.

In spite of this, we have to be aware that, we, as a country, deals with nuclear materials, and has been actively doing nuclear-related researches, right in the heart of the National Capital Region, in Quezon City, where a government agency dealing with these issues is based.

How's that again?

Yes, the Philippines, through the Philippine Nuclear Research Institute, an attached agency of the Department of Science and Technology, is currently and has long been engaged in research involving nuclear materials or methodologies, as can be seen from the website (http://www.pnri.dost.gov.ph) of this agency whereby applications, for example, in food and agriculture are routinely done, from crop improvement through mutation breeding, soil quality improvement, pest control (through sterile insect technique), improvement of animal production through the use of radioimmunoassay (a nuclear technique of measuring reproductive hormone) in the breeding and nutritional management of dairy cattle.

There are also applications in human health and medicine, environmental protection and management, water management and protection and industry.

This just goes to show that we, as a country, is prepared, and have even passed laws dealing with the liabiility arising from damage due to nuclear incidents, which is not limited to what is currently happening in Japan.

Such law is Republic Act 5207, dating from 1969, and it defines nuclear incidents as “any occurrence or series of occurrence having the same origin which causes nuclear damage”.

Nuclear damage on the other hand is “loss of, life, any personal injury or any loss of, or damage to, or loss of use of property, which arises out of or results from the radioactive, toxic, explosive or other hazardous properties, or any combination thereof, of nuclear fuel or radioactive products or any waste in, or of nuclear materials coming from, originating in, or sent to, a nuclear installation or from the ionizing radiation emitted by any other source of
radiation inside a nuclear installation.”

This definition seems broad enough to contemplate contamination of food products arising also from radiation generated by the nuclear incident.

We seem to have a good safety record, judging from the lack of any case law involving the use of this law, which was amended by President Marcos himself in 1978, through Presidential Decree 1484, in 1978.

As written, this law deals with liabiility by installation operators, those who operate nuclear facilities or handle or transport nuclear materials, like the ones currently used in research, and limits their liability in the amount of US$ 5 million from any one nuclear incident, exclusive of an interest or costs which may be awarded by the Court in actions for compensation of such nuclear damage.

The Clean Air Act, Republic Act 8749, passed in 1999, has a provision dealing with radioactive emissions, which reads as follows:

Section 33. Radioactive Emissions. - All projects which will involve the use of atomic and/or nuclear energy, and will entail release and emission of radioactive substances into the environment, incident to the establishment or possession of nuclear energy facilities and radioactive materials, handling, transport, production, storage, and use of radioactive materials, shall be regulated in the interest of public health and welfare by the Philippine Nuclear Research Institute (PNRI), in coordination with Department and other appropriate government agencies.

Now, in case of damage arising from radiation that may traverse Philippine territory, through the movement of natural elements, wind, air, rainfall, etc. from the Fukushima Nuclear Power Plant, which is now in the category of the Three Mile Island Nuclear Accident in the US from the scale of severity of nuclear incidents of the International Atomic Energy Agency (IAEA), that is a rare apocalyptic scenario that, in all circumstances should not be expected but something that we all should prepare for.

This discussion however, will require a separate write-up for some future date, as it deals with transboundary liabiility for nuclear harm, which is underpinned by several principles of customary international law as there is currently no specific or definite international legal regime that deals with these issues specifically.

oOo

Comments are welcome! Email me at : pingperia16@yahoo.com

RIGHTS OF OFWs in Extremis

2011-03-10T19:39:00.000-08:00

By Atty. Elpidio Peria

The past few weeks should bring home the realization to all of us that we have become an OFW nation, as indeed we already are, many years back, what with US$18.763 billion remittances in 2010, exceeding even the Bangko Sentral ng Pilipinas (BSP) forecast of US$18 billion.

The Asian Development Bank did a study in 2008 and found out that OFW remittances in that year constituted around 12% of the country's GDP, making foreign remittances the “single most important source of foreign exchange to the economy and a significant source of income for recipient families.”

Looking at the haggard faces of newly-arrived OFWs from Libya and the distressed faces of relatives of Pinay nurses apparently already considered dead by the authorities in Christchurch, New Zealand, one is never surprised with comments from these faces : “where is the Government of the Philippines in these times of distress of the supposed “Bagong Bayani” ?

Of course, as a show of high-profile political action, the newly-appointed DFA Secretary Rodolfo del Rosario, “aging” as described by an equally high-profile columnist in a well-known newsdaily, went to Libya and back, apparently leaving the rest of the DFA contingent there to help our countrymen find their way back home, amidst an emerging or perhaps already a full-blown humanitarian crisis in the Libyan borders, with all other OFWs of other countries (Egypt, Bangladesh, etc.) all wanting to get out, with estimates of around 70,000 individuals and steadily rising by the hour, even as of this writing.

The Government of Pnoy is trying all its might to do all it can, but perhaps it may also be useful for OFW families to know their rights under international conventions or our national laws, to push into action our already harassed, underpaid and undermanned DFA or Labor attache personnel in the countries where OFWs are deployed.

First thing to be realized is that these OFWs have the right to leave their country of employment anytime, and they should not be subjected to any form of restriction to exercise this right, though, of course, in these dire circumstances, the stampede and the political turmoil adds to the difficulty of exiting wtihout any impediment.

This right is in Article 8 of an international human rights instrument called the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families adopted by UN General Assemby Resolution 45/158 of 18 December 1990, which entered into force, meaning it is already with legal effect to those countries which have ratified it, last 1 July 2003, with the Philippines ratifying it 5 July 1995 and the Libyan ArabJamahiriya (this is the name of Libya in the UN website of ratifications of this instrument) acceded to this instrument 18 June 2004.

Scrutinizing this international treaty further, it does not however contain any other provision in these dire circumstances, like, perhaps, the countries with planes and ships, should help those countries without those planes and ships, to also carry on board the nationals of all those who want to get out.

Looking at BBC and CNN newscasts, however, some UK and French frigates have been helping out other nationals not their own, though of course, not with extreme urgency and dispatch, as they would treat their own nationals.

Where, o where, are the mighty US ships and planes? Are we not supposed to be helped by the US in these types of circumstances to carry our own nationals to safety?

The International Convention does not state so and even if may have such provisions, too bad, the US is not a signatory to this Convention. Perhaps we should just invoke our “special relationship” with the US, to persuade them to lend their planes and ships in these emergencies.

Another relevant right that is guaranteed by this Convention is the right in Article 16, the liberty and security of person in par. 1 and in par. 2 of that same provision, “ Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.”

This obligation applies to State agents but also to private groups, like what has proliferated in the liberated Eastern part of Libya where there is no functioning government or some emergent political infrastructure at the moment, not to harm the person of our OFWs, like intimidating them or confiscating what is in their person, though many OFWs report their passports as having been confiscated from them, which is a violation of this international right.

Should our OFWs be invoking these rights? Yes, but more forcefully, this is what should come out from our diplomats presumably still based in the capital in Tripoli,Libya, as it does not seem politically wise to sever our diplomatic relations with Libya at this severely trying phase.

Looking at our national legislation, one other thing that should come to the forefront now is this thing called “Filipinos Resource Center”, established by the Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042), whenever there are at least 20,000 migrant workers in a country, and established within the premises of the Embassy.

Under the Omnibus Rules and Regulations of RA 8042, this Resource Center should be able to, among other services, provide counseling and legal services, welfare assistance including the procurement of medical and hospitalization services, and more importantly, the monitoring of daily situation, circumstances and activities affecting migrant workers and other overseas Filipinos.

In this chaotic situation,however, one is never sure if this entity under the law is still functioning, but this should be asked by responsible news agencies and NGOs. The problem actually now are those OFWs that are outside the capital and working in the desert of Libya with no communications to the Embassy. No wonder the DFA people will always say they are still monitoring the situation of these people who are incommunicado.

The other relevant provision of the rules under RA 8042 are :

sec. 56. Emergency Repatriation. - The OWWA, in coordination with DFA, and in appropriate situations, with international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency within sixty (60) days of notice. In such case, POEA will simultaneously identify and give notice to the agencies concerned.

Sec. 58. Other Cases of Repatriation. - In all cases where the principal or agency of the worker cannot be identified, cannot be located or had ceased operations, and the worker is in need and without means, the OWWA personnel at jobsite, in coordination with the DFA, shall cause the repatriation. All costs attendant to repatriation borne by the OWWA are chargeable to the Emergency Repatriation Fund provided in the Act, without prejudice to the OWWA requiring the agency/employer or the worker to reimburse the cost of repatriation, in appropriate cases.

It is but proper that the OWWA has been announcing there is something like Php 100 million to put into effect this repatriation as soon as possible.

Summing up the situation, it is clear we need to beef up our DFA and Labor attache personnel not only during times of crisis but to regularly administer support to our OFWs.

Perhaps all this is just practice for bigger poltiical conflagrations ahead, what with Saudia Arabia where there is an estimated 1.3 million Filipinos, also up and agog, with an announcement in March 11 of their own Day of Rage against their political leaders.

We should be more ready this time. Hopefully.
oOo

Legislative Bans to Protect the Environment : Are They Worth the Hassle?

2011-01-25T19:38:00.001-08:00

CURRENT LEGAL CONCERNS

Elpidio V. Peria

23 January 2011

Legislative Bans to Protect the Environment :

Are They Worth the Hassle?

The week that passed was full of news reports about the recent Muntinlupa City Ordinance that took effect January 18 2011 banning the use of plastic bags and polystyrene items (also known as styrofoam) as packaging materials. As an alternative, the ordinance, Ordinance No. 10-109, fosters the use of environment-friendly bags like those made of recycled and reusable materials like cloth.

One of the rationale cited by the promoters of the ordinance was the fact that plastic bags do not degrade well and get mixed up in solid waste, and as the experience of typhoon Ondoy has shown, and others like it, have contributed to the clogging of esteros and other waterways in Metro Manila, leading to flooding and all the other miseries associated with it.

It is hoped that with this ban, plastics will become less and less be a part of the solid waste stream in Metro Manila, hopefully improving the flow in the waterways that are usually clogged.

To ensure that this is followed through, the Metro Manila Development Authority (MMDA) issued a press release urging other local government units (LGUs) in Metro Manila to do the same.

The Philippine Daily Inquirer noted that it is a landmark measure as it is the first of its kind in Metro Manila.

First here means on the banning of plastics.

Many years back, in the early nineties, I can recall then Green Forum, an environmental NGO based in Manila, advocating the use of “bayong” and other similar bags made of indigenous materials, to do away with plastic, especially in high-end groceries in Makati.

Come to think of it, there were other similar local legislative measures banning other things, all in the aim of protecting the environment.

We have an existing ordinance banning the entry, planting and even selling of genetically-modified organisms (GMOs) in the province of Negros Occidental, which evolved from a joint declaration by the two Negros provinces making Negros Oriental and Occidental an “Organic Island” back in 2006 whereby organic agriculture will be practiced, to tap the export markets for these types of products.

Much earlier, if you will also call it that, as it has the same effect, is the moratorium on mining, in the province of Mindoro. I can't recall now which part of Mindoro was it but it was a 25-year moratorium, perhaps our readers will be so kind to update us what has happened to this legislative measure.

A more recent moratorium is the indefinite ban on metallic mining in Romblom Province, the ordinance of which was signed only last January 10, 2011 by Romblon Governor Eduardo Firmalo.

If you count the ban on smoking also as a measure to protect the environment, then we have gone this way before, with Davao City assiduously implementing it, with one municipal trial court judge even penalizing a lawyer for violating it.

While we're at this, let us not forget the ban on open-pit mining here in South Cotabato which is still being opposed by pro-mining groups and those who stand to lose a large amount of income from mining.

There is also an existing ban on fishing pelagic fish species, or those taken from the high seas going beyond the 15km limit currently imposed in the waters in South Central Mindanao agreed upon by our officials in the Bureau of Fisheries and Aquatic Resources with the Western Pacific Fisheries Commission, an inter-governmental body taking care of fisheries matters in Western Pacific and the reason was that the fish stocks need this ban in order for the fish to grow to a size where it can reproduce and that the entire fish population can continue till the next generation, enough for it to be “economically useful” to the consuming public.

It is also important to stabilize the already depleted fish stocks in the country.

Ultimately, as this column asks - these bans - are they worth the hassle?

It must be said that these bans starts out with good intentions, and with a serious purpose, in all types of legislative measures, a ban on something is tantamount to a death sentence or a maximum penalty on a certain activity.

But there appears to be no serious study or evaluation if they have really attained their stated aims.

Of course, the answer to this is that they have not been given the chance to work.

The debate is clouded by complaints by those affected by the ban, either in the loss of livelihood and other existing trade and other benefits existing prior to the ban.

There should however be a serious evaluation, perhaps either by NGOs or academic institutions, especially those involved in public administration, to objectively assess these bans, when they are implemented, and see if they really work, and if not, to find ways to remedy the situation it is also trying to solve.

But to say these bans are useless should not be the way to go, they should be given all the chance to be effective, and after a certain period of implementation, if they are proven, after a serious study to really not work, then, by all means, it's about time to try something else.

The Department of Interior and Local Government, instead of acting like a court giving its own opinion to LGUs on the legal merits of such bans, should rather instead study closely these bans while it is in effect, and recommend measures later how to regenerate the natural resources, which the ban seeks to achieve, among other things.

oOo

Exploring Other Duty-Free Exporting Schemes

2011-01-16T19:09:00.000-08:00

CURRENT LEGAL CONCERNS

Elpidio V. Peria
15 January 2011

Exploring Other Duty-Free Exporting Schemes
to Other Countries under GSP or GSTP Schemes

While DTI Usec Adrian Cristobal, Jr, in a Business Mirror online news article dated 13 January 2011 urged Filipino exporters to continue exporting to the US under its duty-free scheme called the Generalized System of Preferences (GSP) which even if it expired last December 2010 will most likely be renewed, Filipino exporters should also consider exploring the other GSP schemes of other countries, or the duty-free schemes among developing countries, called the Generalized System of Trading Preferences. (GSTP).

According to the UN Conference on Trade and Development (UNCTAD), the original international body tasked by the United Nations to tackle issues relating to trade and development, the GSP, is a scheme of preference-giving done by developed countries whereby “selected products originating in developing countries are granted reduced or zero tariff rates over the most favored-nation or MFN rates. The least developed countries (LDCs) receive special and preferential treatment for a wider coverage of products and deeper tariff cuts.”

The so-called most favored-nation or MFN rate is a rate that is provided by countries that are trading with each other, which means a preferential rate that is not usually given to countries that don’t have a trading partner relationship with such country.

Under the rules of the World Trade Organization, such concept has been enshrined as key principle of the global trading system whereby each country trading with each other are supposed to give such treatment to each other. There are other trading principles such as “national treatment”, among others, which can be discussed in later columns.

The UNCTAD website also notes that “the idea of granting developing countries preferential tariff rates in the markets of industrialized countries was originally presented by Raul Prebisch, the first Secretary-General of UNCTAD, at the first UNCTAD conference in 1964. The GSP was adopted at UNCTAD II in New Delhi in 1968”.

According to UNCTAD, there are currently “ 13 national GSP schemes notified to the UNCTAD secretariat. The following countries grant GSP preferences: Australia, Belarus, Bulgaria, Canada, Estonia, the European Union, Japan, New Zealand, Norway, the Russian Federation, Switzerland, Turkey and the United States of America.”

Checking further the GSP handbooks from the same website, the Philippines is a beneficiary of GSP schemes of Belarus, Canada, EU, Japan, New Zealand, Norway, Russia, Switzerland, Turkey, and of course, the US.

In the case of Australia, the trade preferences given out by this country could be seen in the recently signed EU-ASEAN Free Trade Agreement, of which the Philippines is a signatory, being an ASEAN member country.

Exporters therefore should consider also the possibility of exporting to these countries as they are also eligible for duty-free or low-tariff preferences in these countries. It might be useful for them to consult further the websites or embassies of these countries here in the Philippines for the details of these trade preferences, which may either include duty-free entry of export products to these countries or preferential tariff rates.

The Global System of Trade Preferences among Development Countries or GSTP, meanwhile is also another trade preference agreement among developing countries, of which Philippines is an original signatory on April 13, 1988, with 48 developing countries, in then unified Yugoslavia.

A check on the GSTP website within the UNCTAD website shows that as of 1989, a total of 43 countries have provided their tariff concessions to members, including, as a matter of surprise considering their developed-country status now, South Korea and Singapore.

The GSTP is a South-South trading scheme that predated the WTO trading system, thus it remains, on top of the developing countries’ respective commitments in the WTO.

Data from UNCTAD’s trade analysis unit show that intra-GSTP exports are growing faster than GSTP countries’ exports to the rest of the world, where between 2000-2005, intra-GSTP exports increased by 50%, while exports by GSTP to the rest of the world increased by 39%.

Total GSTP exports to the world (2005) were 17.5% of total world exports or 48.7% of total DC exports to the world. Total exports from GSTP to the rest of the world totaled $1.8T in 2005.

oOo

Appointing Election Losers After the One-Year Election Ban

2011-01-09T16:19:00.000-08:00

CURRENT LEGAL CONCERNS

Elpidio V. Peria
10 January 2011

Appointing Election Losers After the One-Year Election Ban
– Who Loses, Who Wins?

Losing VP Candidate Mar Roxas recently figured in this weekend’s news cycle because President Noynoy Aquino recently indicated he is willing to appoint him as his “trouble-shooter”, what with the lackluster performance of some of his people in Malacanang, with the exception only perhaps of Sec. Leila de Lima, who, among all his appointees, had favorable approval ratings when 2010 ended.

The appointment of Mar brings to the fore a lot of issues, but given that this is already 2011, this will become a regular staple of news items eventually this year, as the lapse of the one-year election ban approaches, and we will more or less get to see what will eventually happen to those Liberal Party candidates or other allies of the President who lost in the May 2010 get appointed to positions in government.

To enable Juan and Juana dela Cruz make sense of where this election ban comes from, and whether will it really work for his or her own good or that of the losing candidate, it may be useful to examine again this ban item and assess who benefits or who loses in the implementation of this legal provision.

The one-year election ban derives from the Local Government Code, specifically in sec. 94 (b) thereof,which states:

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or -controlled corporations or in any of their subsidiaries

So, those who ran in the recent barangay elections in October 2010 and lost is not under a one-year ban from being appointed in Pnoy’s government.

The prohibition is from being appointed to (a) any office in government; (b) any GOCC or (c) any subsidiaries of these GOCCs.

My copy of the Local Government Code dating back from my law-school days show a notation in the provision from the my law professor on the subject, UP College of Law local government law expert. Prof. Samilo Barlongay, who indicated that such prohibition is unconstitutional. I can no longer recall the reason why but consulting the 1987 Constitution indicates that the relevant prohibitions on appointment relate only to : (a) the appointment of elective officials to appointive positions (art. IX, sec. 7); (b) appointive officials being appointed to more than one position (art. IX-B, sec. 7); and (c) members of the armed forces from being appointed to certain positions in government (art. XVI; sec. 5(4).

The one-year election ban appears to have no constitutional basis, though a specific law, the Local Government Code, has provided it. Searching the relevant law websites do not indicate that this issue has been questioned before the Supreme Court thus it subsists, and there is further interpretation on how it may apply given specific facts.

There are policy reasons, however, for the ban, since losing candidates in an election can be recycled immediately after election though the harsh fact is that the public has rejected the fellow for the said elective position, thus, the fellow’s consolation prize is an appointive position. In the US, if they have such an election ban, then Hillary Clinton would not have been appointed Secretary of State by then 2008 US Presidential election winner Barack Obama.

The rationale it seems is to let the losing candidates think twice about getting back to public service so soon, or perhaps not let the losing candidate use his perks from the appointive office to pay back his election debts so soon.

But perhaps the one-year ban may be too short; a ban of two years may already be futile as the year after is already an election year, and the losing candidate may, in all likelihood, just use his position to prepare for another run in public office.

The flipside of doing away with the ban is that the public may no longer be deprived of the sterling qualities of the losing candidates. But the fact that the candidate lost in an election is already an indication of the public’s perception of the person’s fitness to public office. In spite of what the public thinks, all these losers will be appointed anyway, and there are reports that some losing Liberal Party Senatoarial candidates are already throwing their weight in line agencies to which they are in line to assume office come July 1 this year. A year therefore is too short for the ban to be useful in attaining its policy objectives.

So, who wins in the one-year election ban? It seems nobody, except perhaps the losing fellow who eventually will get appointed anyway. But nobody also loses, as the public is not deprived of the services of a person who was already rejected in an election, though. Ultimately, however, this one-year ban should just be done away with, to be replaced by a permanent ban for the duration of the term of office of the appointee. This is to give the chance for all Filipinos to be appointed, and also to strengthen the civil service. It should not be littered by political has-beens and also-rans. No one can be a better judge of fitness for public office, except the voters themselves, for as long as their votes were not bought, but that’s another column, for another day. What will the losers do? Well, with their clout and connections, in the Philippine setting, they can always enter showbiz! In that way, they will be more visible come next election cycle…

oOo

Nagoya Biodiversity Summit Succeeds with new ABS Protocol

2010-11-07T19:02:00.000-08:00

COP 10-CBD
Informal Consultative Group (ICG) on ABS
30 October 2010
FINAL Update
Nagoya Biodiversity Summit Succeeds in Approving a Strategic Plan for Conservation
and a new ABS Protocol, though Long Term Financing Support is in Doubt
By Atty. Elpidio Peria
The European Union (EU) tried to hold the adoption of the ABS Protocol hostage in the closing plenary of the UN Convention on Biological Diversity (CBD) here in Nagoya, Japan as it moved to propose that the ABS Protocol, the Strategic Plan for 2011-2020 as well as the draft decisions on the the Financial Mechanism for the Convention be approved together as a package even if the document on Innovative Financial Mechanism has several paragraphs with brackets in it, which means it has no consensus, but this was opposed by Cuba, Ecuador, Bolivia and Kenya and the COP President had no choice but to go through the process of adopting each document one by one, eventually leading to the non-adoption of the document on Financial Mechanism, which contained the innocuously-named Green Development Mechanism as one innovative financial mechanism to raise additional funds for the conservation work of the Convention.
The COP 10 President, Japan's Environment Minister Ryu Matsumoto, had to struggle with several problems in the President's table, from bad translation to ill-timed or sometimes too-energetic banging of the gavel and even the hasty calling for adoption of documents which still have some brackets in it, but on this suggestion by the EU for a one comprehensive adoption of three separate decisions, itself an act of questionable procedure, the COP10 President took the side of the countries who called for going through each of the key remaining decisions item by item.
There was a near-comic moment when the COP 10 President inadvertently asked if the document before the Plenary, which is the draft decision adopting the ABS Protocol, is ready for adoption and he was about to bang his gavel and his aides stopped him from doing so and shouting “ahhh aahhh ahhh” and he appeared to have suffered from serious anxiety as shown by the anguish on his face, but he apparently recovered fast, as he was then smiling afterwards.
Proper procedure would have required that he asked first if anyone on the floor have any objections to the document before it, and it should be only then can he call for the adoption of the said document.
But approve he did, and finally, after having been given up for dead the other night, the ABS Protocol was finally approved, at around 12:25am, based on the digital clock on the wall of the Event Hall of the Nagoya Congress Center where the final plenary session of COP 10 was held.
It nearly did not happen.
The other night, when the ICG Co-Chairs closed the session of the ICG with the assertion that the differences of the Parties on the negotiating table are so fundamental there is not enough time allotted to the ICG for Parties to come to an agreement, Japan made an announcement that on the last day of COP, on 29 October, at 840am, several delegations are to be summoned to be shown a copy of a proposed clean text of a draft ABS Protocol.
That is what exactly happened in the morning of 29 October, and this limited-circulation document was given to Like-Minded Megadiverse Group and Like-Minded Asia-Pacific group of countries and they then repaired to their designated meeting room in the Nagoya Congress Center to discern their position on the document.
The group discussed its concerns and at around 1030am, another document appeared, which contained a correction of the earlier-released document.
Later came an announcement that the COP 10 President would be meeting the group at around 2pm.
The group sent its representatives to the office of the COP10 President, led by Brazil, and followed by Malaysia, Iran, Cook Islands, Colombia, Peru and South Africca.
The group in their discussions had three essential issues to try to bring into the document, after which they could then consider the document balanced.
These issues are : one, the definition of “utilization” and “derivative”; two, the scope of the Convention which, as it appears in article 3 of the draft, is limited only to “genetic resources” which excludes consideration of traditional knowledge; and three, the deletion of some wordings in the article on compliance in order to include the notion of mandatory disclosure requirements and checkpoints.
What actually transpired in the meeting with the COP President came mainly from accounts gathered from Iran, Malaysia, Colombia and Cook Islands, but they are unanimous in saying that it was a difficult discussion, three times they asked the COP 10 President to allow some small changes in the document to make it balanced and they were refused, and they got some agreement on the change in the word “genetic material” such that it will now be “genetic resources”, and they were at the point of arguing and insisting on the further changes needed on the document when the African Ministers got ushered in the room and they were asked by the COP 10 President if the document is agreeable to them which was answered in the affirmative and after that the COP 10 President no longer entertained any changes.
Thus, from the document presented to the Parties concerned, only one change was made, that one on the definition on “utilization”, which should now include research and development on the genetic and/or biochemical composition of “genetic resources”, instead of the earlier-proposed “genetic material”.
With this change, the Protocol would now cover within its rules a broader set of activities relating to genetic resources which will be subject to its provisions on fair and equitable benefit-sharing, access and compliance.
During its adoption, several countries spoke of their non-acceptance or unhappiness of the document, but they did not stand in the way of its eventual adoption.
These countries were Cuba, Venezuela and Bolivia.
Namibia spoke but mainly to endorse the document, including Ukraine.
Argentina, the incoming G77 Chair, was more concerned with its procedural amendments on the draft decision.
What happens now is that the Convention has a more modest set of targets, but without a clear set of targets or indicators for resource mobilization strategy, since a process was approved to confirm these targets at a later time.
The draft decision on innovative financial mechanism which contained the green development mechanism was set aside; instead, what was adopted was a proposal by Bolivia from the floor calling for a proccss to explore further these innovative financial mechanisms at a later date.
Most of the delegates left the plenary hall at way past 2pm, even though some regions were still making their obligatory closing statements, but at the back of the plenary hall, the hardened ABS negotiators who for the past sixteen days since October 13 were arguing with each other, were seen shaking hands and hugging, and chatting, and this time most of them were all smiling.
Earlier in the plenary, there was an adjournment at around past 6pm, to allow the delegations to attend the closing reception by the Indian Government, the host of the next COP meeting in a still unspecified city in India, sometime in October 2012.
Interestingly, the dancing Bollywood dancers were Japanese women, who mimicked the movements of Indian dancers, to the same effect and delight of the delegates.
Gurdial Singh Nijar of Malaysia, wearing a flowing black robe, in the style of an Indian raja, was seen by most delegates dancing along with some members of the Secretariat and those delegates whom he can entice to join him, which many did.
Delegates that night were largely happy, mainly perhaps at the prospect that they will be returning home, most of them were here in Nagoya for already three-weeks, as most of them also attended the COP-MOP of the Cartagena Protocol, and they will just reckon later with the consequences of their actions some other time, but not in that particular night.
oOo

Tentative Agreement on Utilization of Genetic Resources

2010-09-25T18:16:00.001-07:00

Image via Wikipedia

ABS Working Group 9 Further Resumed

Inter-regional Negotiating Group (ING) Meeting

Montreal, Canada

18 September 2010

CBD Parties Come to Tentative Agreement on Utilization of Genetic Resources

By Atty. Ping Peria

Seventy-six Contracting Parties to the Convention on Biological Diversity (CBD) attending the Inter-regional Negotiating Group (ING) meeting here in Montreal, Canada today came to a tentative agreement on the definition of the word “utilization” of genetic resources, part of a series of measures that is aimed at putting to rest the long-running dispute among developed and developing countries on the sharing of benefits arising from the use of the world's biodiversity.

“We hope you can live with a general consensus...this is a very strong step forward”, said Fernando Casas, Co-Chair of the ING, as he quipped that the ING will eventually come back to the use of terms in Article 2, when every other key item in the draft ABS Protocol.

What was agreed so far by the Parties to the ING is to place the word “utilization” as part of art. 2 of the draft ABS Protocol which can now pave the way for the deletion of the word “derivatives” scattered in various provisions in the emerging international treaty that is expected to stop biopiracy.

The agreement was tentative because developed countries such as Canada, EU, New Zealand, Japan and Switzerland kept on repeating as part of their acceptance of the definition that they will still fine-tune the language of the definition especially when the term is to be used in other parts of the ABS Protocol, like in the provision on access, fair and equitable sharing of benefits, TK andcompliance.

This definition of the word “utilization” has been agreed upon by a small group called by the Co-Chairs of the Working Group which worked on this text last July 2010 and is part of the so-called “core of the core” issues that once resolved should also lead to an agreement on many issues involving the sharing of benefits arising from the use of biodiversity. .

This text however was not yet incorporated in the body of the draft ABS Protocol coming out from that July 2010 meeting of the ABS Working Group, and it was then, still a footnote.

The text on “utilization” has been extensively discussed in the afternoon going into the night, as some Parties were asked by GRULAC (Latin American and Caribbean group of countries, one of the key UN regional groups) member countries to withdraw their text proposals that would have included the terms “chemical”, “breeding and selection” and the inclusion of a broad enumeration of what constitutes a list of typical uses of genetic resources in Annex 2 of the draft on utilization as proposed by South Africa and the phrase “taking into account emerging and future technologies involving genetic resources” made by Philippines in the interest of letting developed countries agree to a emerging text, which in turn was considered by Japan, EU, Canada and Australia as a major advance in the negotiations.

Australia tried to stall saying this is a weekend in their capital including New Zealand and said that they will again consult their capital about this emerging consensus and suggested a bracketing of the text which was met by a simultaneous raising of flags by all countries in the Africa, Asia Pacific and GRULAC region to queue up in the speaker's list to respond to Australia.

This trick by Australia was refused by the Co-Chair at this time assuring her that Parties in the ING will have to go back to this emerging agreement on the text when they revisit art. 2 on the use of terms in the last negotiating day of this session on Tuesday, 21 September.

Given this impasse, the Co-chairs decided to move on to other topics, particularly article 4 on the fair and equitable sharing of benefits.

The discussion on art. 4 however also got stuck when there were sharp differences of opinion between developed and developing countries on the provision that “every” utilization of genetic resources should give rise to an obligation to share benefits as according to Canada this obligation is too “imperative” and thus will cause it a lot of difficulties aside from its observation that it is not what is found in the text of the Convention.

The Philippines responded to this comment saying that this is what has been missing since the time the CBD took effect in 1993, that there has been no benefits shared to developing countries as the text of the CBD, while mentioning fair and equitable sharing of benefits, still had to require the execution of contracts which is called “mutually agreed terms” in the Convention and the taking of various “legislative, policy and administrative” measures when in reality very few countries have legislation or any other measure in place to ensure benefit-sharing and that most utilization of genetic resources, particularly in the classic sense of the term 'biopiracy” has been without any contracts.

Malaysia expressed broad support to the formulation in Article 4 since it explicitly sets out the fact of the obligation which is to share benefits for “every” utilization of genetic resources and that it also spells out with whom it must be shared which is with countries of origin of the genetic resources and that this is to be shared through the mechanism of mutually agreed terms or contracts.

India and Peru however expressed their contentment in deleting the word “every” for the obligation to share benefits as to them the more important concept is that these benefits must be shared with “countries of origin” of these genetic resources.

The EU has a completely different view of the matter, citing art. 15.7 of the Convention on Biological Diversity which states that it is the providing countries that will be sharing these benefits.

The view of the developing countries is that in art. 15.3 of the same Convention, the genetic resources being referred to in the Convention are 'those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

The problem with the concept of “providing country” is that this can be an excuse for those countries that are not the countries of origin of the genetic resources but nonetheless have these resources in abundance, like the former colonial masters UK, or Netherlands or the US who collected genetic resources throughout its history with its colonies, to claim benefits each time they also provide access to these genetic resources.

The countries who are the countries of origin of most of these resources claim otherwise, saying that if this notion of benefits accruing to countries of origin is not enshrined in the draft ABS Protocol then it would be a hollow instrument without any significance to the generation of benefits which should contribute to the conservation and sustainable use of biodiversity.

Co-Chair Fernando Casas decided to break at around 11pm for countries to further reflect on the interventions made, saying that countries are near agreement on these issues, perhaps a night's rest might enable countries find a compromise on these variant positions.

Earlier in the day, the ING also tackled the institutional provisions of the draft ABS Protocol, from Art. 20 to 31, coming to agreement on most of the bracketed text, only disagreeing on how the Meeting of the Parties to the Protocol would hold its first meeting side by side with the Conference of the Parties to the Protocol as Egypt was insisting that this meeting should not be held together in time as one-person delegations particularly from developing countries would have a hard time attending if both meetings will happen at the same time.

There is however bracketed language here from either “held together” or “in conjunction” and it is the EU that is raising an issue of legal ambiguity if the word “in conjunction” is used, as that phrase was lifted from the Cartagena Protocol on Biosafety, the said Protocol being an international instrument also arising from the Convention on Biological Diversity.

The Philippines however was alone in its proposal to set up a stand-alone provision on non-compliance, calling for the establishment of a subsidiary body on implementation.

The view of the Megadiverse Countries on this on the sidelines is that this is a matter best left to the Meeting of the Parties.

The Co-Chairs left is as such for the meantime as this is the only remaining bracketed text on the provisions on institutional provisions aside from the other one mentioned earlier where the EU and Egypt had differing views.

Over-all, while very slow, the ING has made some progress on its opening day of session, which was made possible through the generous donation of support by Japan, Norway, Germany and Switzerland.

oOo

Impeaching the Ombudsman

2010-09-18T21:36:00.000-07:00

Image via WikipediaMany consider the filing of the second impeachment complaints by Akbayan and Bayan Muna against Ombudsman Merceditas Gutierez a litmus test for the new presidency of Benigno 'Noynoy' Aquino. Or is it?

Under the 1987 Philippine Constitution, grounds for impeachment include culpable violation of the Constitution, bribery, graft and corruption, and betrayal of public trust.. Sections 2 and 3, Article XI of the Constitution states that the House of Representatives has the exclusive power to initiate all cases of impeachment against the President, Vice President, members of the Supreme Court, members of the Constitutional Commissions (Commission on Elections,Civil Service Commission Commission on Audit), and the Ombudsman. The House of Representatives can endorse the articles of impeachment by a vote of one-third of its members and transmit the said articles to the Senate of the Philippines which tries and decide the case as an impeachment tribunal.

Reasons for impeaching
Ombudsman Gutierrez is accused of sitting on graft and corruption complaints against former president and now Pampanga Rep. Gloria Macapagal-Arroyo and her husband, Jose Miguel Arroyo who was Gutierrez' law school classmate of Mr. Arroyo at Ateneo.

In a rare and swift move, the House of Representatives’ justice committee has found the impeachment complaint against Gutierrez sufficient in form and substance and the next step would have been for the justice committee to hold hearings in preparation for reporting the complaint against Gutierrez to the plenary. Unfortunately for the justice committee of the House of Representatives, the Supreme Court upon petition by Ombudsman Gutierez issued a status quo ante order suspending the impeachment proceedings.

Iloilo Representative Niel Tupas Jr., chairman of the justice committee, and Deputy Speaker and Quezon Representative Lorenzo “Erin” Tanada III, said they will push through with the hearing set September 28 and 29, citing it is the constitutional mandate of the House to act on complaints against impeachable officials in 60 session days. Fortunately though, Speaker Feliciano Belmonte averted a possible constitutional crisis by issuing a timely statement that the House of Representatives will abide by the order of the Supreme Court.

With the quick intervention of the Supreme Court in stopping the impeachment of the beleaguered Ombudsman, many speculations are circulating. First is whether the Supreme Court, which is practically filled with appointees of the past President Gloria Macapagal-Arroyo, will issue an injunction dismissing the impeachment proceedings, or simply delay its resolution after the recess of the House of Representatives, thereby moving transmittal of the articles of impeachment to the Senate possibly next year. The first scenario is obviously a victory for the Ombudsman, and a setback for the administration of President Aquino who has made as one of his political platforms the eradication of graft and corruption.

Second and the most important part is whether the Senate will rule on the removal of the Ombudsman assuming that the impeachment complaint will reach it, as the vote needed to remove and convict is 2/3rds of all members of the Senate who will act as Judges, or around 16 Senators. For the record, Liberal Party which is the political party of the President, although in numbers can already transmit the articles of impeachment from the House of Representatives, does not have a commanding presence in the Senate to secure the commanding 2/3rds vote to convict and remove the Ombudsman. This will be a litmus test for the President to secure the support of independent Senators, and this will not be an easy matter.

Another interesting twist is that the Chief Justice of the Supreme Court, Renato Corona, who is very close to the former President Gloria Macapagal-Arroyo, will jointly sit as co-presiding officer of the impeachment trial with Senate President Juan Ponce Enrile. The Supreme Court Chief Justice will be asked to rule on legal issues during the impeachment trial, and his position may spell the difference between conviction or acquittal.

If we were to judge immediately past impeachment complaints, the picture is very gloomy. In 2005, 2006, 2007, and 2008, impeachment complaints were filed against President Arroyo, but none of the cases reached the required endorsement of 1/3rds of the members of the House of Representatives for transmittal to and trial by the Senate. But the situation now is different, as the person being impeached is not an elected President but an appointed constitutional officer who is the Ombudsman. In addition, the 1/3rds vote needed for transmittal is almost a certainty, with the Liberal Party of the sitting President in the House of Representatives leading the way.

There appears only two scenarios that Ombudsman Gutierez can escape impeachment conviction. Either the Senate trial will go her way with acquittal, or the Supreme Court will issue now an injunction against proceedings in the House of Representatives with a dismissal order. But then, will the position of President Aquino on the issue influence a supposed independent Senate, or that the rule of law will be upheld by a co-equal branch as the Supreme Court?

http://www.bigextracash.com/aft/53cf46c8.html

$50-million damage suit filed in US vs. Lacson, Erap for Dacer-Corbito slay

2010-09-16T17:15:00.000-07:00

Image via Wikipedia
Atty. Errol Zshornack, lawyer of the family of the slain PR man Bobby Dacer, in an interview live on ANC today revealed that that they have filed in the United States a whooping $50-million suit for compensatory and punitive damages against Senator Panfilo Lacson and former President Joseph Estrada for the Dacer-Corbito murders. The filing of the case is similar to the cases filed by human rights victims against the late dictator President Marcos where a United States court awarded millions of dollars in damages.

For coverage of the interview, please check on the video link below.

http://www.bigextracash.com/aft/53cf46c8.html

Proposed divorce law in the Philippines

2010-08-14T20:09:00.000-07:00

philippine law blogPhilippine divorce lawsImage via WikipediaBy Rey Cartojano
For a predominantly Catholic country as the Philippines, the refiling by the Gabriela women's party-list group of a controversial bill to legalize divorce in the country drew mixed reactions.

The refiled measure, now renamed House Bill No. 1799 (An Act Introducing Divorce in the Philippines), lists down five grounds for the filing of a petition for divorce:
1. Petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable;
2. Petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable;
3. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage;
4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations;
5. Any of the grounds for legal separation that has caused the irreparable breakdown of the marriage.
Under the present law, particularly Article 36 of the Family Code of the Philippines, only psychological incapacity is the only ground for annulment of marriage, and the process of securing annulment is not only tedious but expensive as well, making the provision biased in favor of those who have the financial means to sustain costly litigation.
Under the proposed divorce bill, separation in fact (de facto) for five (5) years and legal separation for two (2) years are already grounds for divorce, as long as reconciliation of the spouses is highly improbable. Separation in fact is a widespread phenomenon in the Philippines, especially for couples who could not afford the legal process of annulment, thus providing these separated couples a ground to formally and legally severe their marital ties. On the other hand, legal separation for two (2) years is thought by the proponents of the divorce bill enough basis to proceed to divorce, considering that the spouses already passed the ordeal and process of legal separation.
The third ground is irreconcilable differences that caused irreparable breakdown of marriage. What these irreconcilable differences are not clear, for as long as they caused irreparable breakdown of marriage, again without sufficiently defining what irreparable breakdown of marriage means. The third ground provides possible judicial interpretation based on the facts of the case, which can be questioned as unwarranted delegation of legislative authority, i.e., judicial legislation, or simply unconstitutional for being vague.
The fourth ground of psychological incapacity is feared to be a useless provision if the proposed divorce bill is passed into law, as the other grounds will be easier to establish and less costly for the parties. In fact, the existence of the third ground of irreconcilable differences, which is broader in scope, will be sufficient to absorb this ground of psychological incapacity.

The last ground for divorce, which can be any of the grounds of legal separation under existing law that caused irreparable breakdown of marriage, provides an opening for the broadening in the scope of the coverage for divorce in the Philippines. The Family Code provides the following as grounds for legal separation:
[1] Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
[2] Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
[3] Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
[4] Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
[5] Drug addiction or habitual alcoholism of the respondent;
[6] Lesbianism or homosexuality of the respondent;
[7] Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
[8] Sexual infidelity or perversion;
[9] Attempt by the respondent against the life of the petitioner; or
[10] Abandonment of petitioner by respondent without justifiable cause for more than one year.
In effect, the proposed divorce bill added ten (10) more specific grounds for divorce as enumerated above, as long as the said grounds caused irreparable breakdown of marriage, again without clearly defining what irreparable breakdown means.
The Philippine Daily Inquirer reported that the refiling of the bill quickly elicited an objection from Parañaque Rep. Roilo Golez, who said, “That is like giving a married couple a weapon of mass destruction that they can use against each other even for petty, solvable marital problems.”

Buhay party-list Rep. Erwin Tieng also said his group was against divorce because it was tantamount to giving troubled marriages an “exit clause from a very important union.” He suggested “preempting” the dissolution of marriages by effective counseling or “better family relations” programs from the Church, government and volunteer groups.
The bill’s authors, however, said a divorce law would address the issue of domestic violence. Police statistics in 2009 showed that 19 women a day fell victim to marital violence. Gabriela Representatives Luzviminda Ilagan and Emerenciana De Jesus stressed legalizing divorce would give “married couples in irreparable marriages another legal remedy that they can resort to in addition to the country’s existing laws on legal separation and annulment.”
Ilagan and De Jesus said a divorce law could help put an end to domestic violence still prevalent among married Filipino couples. The Philippines is one of only two countries in the world (excluding the Vatican) that has not legalized divorce. “For women in abusive marital relationships, the need for a divorce law is real. It is high time that we give Filipino couples, especially the women, this option,” said Ilagan and De Jesus in the bill’s explanatory note.
It appears that the proponents of the divorce bill anchor principally their arguments on domestic violence, citing several alarming statistics to establish convincingly their points. However, the grounds being proposed under the divorce law encompass areas outside of domestic violence, as for instance the addition of the ten (10) grounds under legal separation as grounds also for the filing of divorce.
Although it is really high time that the Philippines takes a second very serious look on our outdated and unresponsive law on annulment, the proposed bill on divorce appears too revolutionary and unwieldy for most Filipinos. While we are cognizant that our various tribal and cultural communities had already indigenous customs and practices similar to the divorce being practiced by the Muslims especially in southern Philippines which ALL predated the advent of Spanish, American and Japanese colonizers, we have to face the reality that a revolutionary and unwieldy divorce bill as proposed now may not pass into law especially with the strong opposition of the Catholic hierarchy.

But tempering and limiting its provisions, and making it cover only to very specific and defined grounds, such as for instance repeated domestic violence, may probably cause a rethinking by the local Catholic hierarchy of its position on the issue. After all, if Italy and Spain, which are supposed to be centers of global Catholicism have their own versions of divorce laws, why can't we have here also in the Philippines?

Right of minority representation in local Philippine legislative bodies

2010-07-17T21:21:00.000-07:00

International Parliamentary Union Right of minority representation in legislative bodiesImage via Wikipedia

By Rey Cartojano
After partisan politics was supposed to be settled in the last May 10 elections, the next order of the day especially for local officials is the process of formulating and passing ordinances and other legislative work.
Section 50 of the Local Government Code sets the tone of this process by requiring the concerned legislative body, or Sanggunian, to adopt or update its existing internal rules of procedure starting its first regular session and within ninety (90) days thereafter. The adoption or updating of the internal rules of procedure is a critical process in local legislative work as it prescribes assignments in chairmanships and memberships of committees where most legislative work take place. In addition, the internal rules of procedure can decisively prescribe the manner on how local legislative business will be conducted especially to favor the dominant political party or grouping.
A question of controversial impression is whether the internal rules of procedure can prescribe the process of appointments of committee chairmanships and memberships to favor only a dominant political party or grouping. Stated directly, is it legal and in accordance with parliamentary practice to limit chairmanship and membership of all committees to the members of a dominant political party?
In answering queries for legal opinions especially covering issues in the interpretation of internal rules of procedures, the Department of Interior and Local Government (DILG) has always outlined the hierarchy of sources of authorities as follows: (1) 1987 Constitution; (2) Laws, especially the Local Government Code; (3) Court decisions; (4) Internal Rules of Procedures of the concerned Sanggunian; and (5) Parliamentary customs, usage and authors.
Suffice it to state at this stage that in international parliamentary customs and usage, and even bolstered by multitude of scholars and authors, the rule is settled that in a parliamentary set-up working through many committees, apportionment of committee chairmanships and memberships is allocated in proportion to the percentage of minority representatives vis-a-vis the total elected representatives. In fact, this formula is even followed by the present Philippine Congress in the distribution of committee assignments, which means that a congressman coming from minority parties and groups is always assured of a committee assignment, with or without him asking for it.
If we follow the hierarchy of authorities stated in many DILG legal opinions, it seems that minority representation in local legislative committees is doomed if the internal rules of procedure will favor committee appointments of chairmen and members highly dependent on the will of the majority, as the Philippine Constitution, laws and court decisions which are supposed to occupy higher level of authorities on the matter on minority representation do not yet have a clear coverage and resolution.
However, the International Parliamentary Union (IPU), a global organization of various state parliaments of which the Philippines is a member, cited Article 25 of the International Convention on Civil and Political Rights, which the Philippines ratified last 1986, on the right of the citizens to be heard through their elected representatives. The right of the citizens to be heard through their elected representatives is interpreted to include the right of the said representatives to be given fair representation in parliamentary committees, which almost all parliaments in the world already are adopting.
By the doctrine of incorporation found in Article 2, Section 2 of the 1987 Constitution (where the Philippines adopts by incorporation international laws as part of our domestic laws), the International Convention on Civil and Political is already part and parcel of the laws of the land. As such, then, it is submitted that any internal rules of procedure of any local legislative assembly in the Philippines which infringe on the right of minority political groups to be represented in parliamentary committees, for that matter, is not only illegal but not in accordance with internationally accepted parliamentary customs and practices.
At the end of the day, representative democracy is not all about what the majority wills government to be as it is about giving the right of other elected representatives to be heard, participate and check the process of legislation.

The Case of President Noynoy Aquino's First Memorandum Circular

2010-07-10T22:01:00.000-07:00

Noynoy Aquino's First Memorandum CircularTriple ExposureImage via Wikipedia

By Rey Cartojano

In what could be a bold and decisive move to weed from public service Presidential appointees of the previous administration, President Noynoy Aquino acting through his Executive Secretary Paquito Ochoa declared in Memorandum Circular No. 1 that "ALL CO-TERMINOUS THIRD LEVEL POSITIONS VACANT AS OF JUNE 30, 2010; DIRECTING ALL NON-CAREER EXECUTIVE SERVICE OFFICIALS (NON-CESO) OCCUPYING CAREER EXECUTIVE SERVICE (CES) POSITIONS TO CONTINUE TO PERFORM THEIR DUTIES AND RESPONSIBILITIES; AND EXTENDING THE SERVICES OF CERTAIN CONTRACTUAL AND/OR CASUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON JUNE 30, 2010."

The Memorandum Circular immediately created fears and apprehensions from many sectors, even as the new administration made its position clear on midnight appointments irresponsibly rushed by the past government. But the issuance of Memorandum Circular No. 1 substantially missed the controversial issue of rescinding and nullifying midnight appointments, which is a popular move for the new Aquino administration, as public perceptions will easily confuse the main thrust of Memorandum Circular No. 1 as covering midnight appointments.

And so, as fast as an embarrassed cowboy, a shorter, revised and amended version of the said Memorandum Circular No. 1 was issued and now declared ALL NON-CAREER EXECUTIVE SERVICE POSITIONS VACANT AS OF 30 JUNE 2010, AND EXTENDING THE SERVICES OF CONTRACTUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON 30 JUNE 2010. Aside from the fact that both Memorandum Circulars are identically numbered 1 issued by the same authority, probably a first in the history of Philippine executive directives, despite differences in presentation, language and scope, Presidential spokesman Edwin Lacierda said Malacañang had to "fine-tune" the memorandum circular since it was supposed to affect only political appointees and not all non-career officials in government. Even if were so, the administration could have easily issued a new Memorandum Circular revising Memorandum Circular No. 1, but to have two Memorandum Circulars denominated as No. 1 with the new MC No. 1 'fine-tuning' the old MC No. 1 is a poor display of draftsmanship, no less.

Let us dissect the scopes of both new and old Memorandum Circular No. 1. In the old MC No. 1, the first part of the caption speaks of third level positions whose appointments are coterminous with that of the appointing power, who is no other than the President of the Philippines. These third level positions refer to positions in the Career Executive Service that above division chief level that exercise managerial functions, to include the following positions of Undersecretary, Assistant Secretary, Bureau Director, Bureau Assistant Director, Regional Director, Assistant Regional Director and Department Service Chief. While the said caption brings fear to those duly qualified CESO career officials appointed by the President, as it presumes that they could be included in the clause, the contents of the old Memorandum Circular No. 1 categorically covers only non-CESO officials appointed by the past President. as they are given at the latest until 31 July 2010 to vacate their posts. In short, the old Memorandum Circular No. 1 actually respects the rights of CESO career officials appointed by the President, so that these officials will have security of tenure even beyond the term of the appointing past President.

The most feared provision, especially for the lowly rank and file government employees, is the directive on contractual and casual government employees, numbering in the tens of thousands to vacate their posts at the latest on 31 July 2010. The only consolation though, is if the contracts of these contractual and casual employees already expired last 30 June 2010. Interestingly and quite obviously, if the contracts of these contractual and casual employees expired on a date after and other than 30 June 2010, they will not be included in the coverage of the old Memorandum Circular No. 1.

The ultimate question then is this: what is the difference between the old Memorandum Circular No. 1 and the the 'fine-tuned' new Memorandum Circular No. 1?

While the 'fine-tuned' new MC No. 1 eliminated the excess verbiage of the old MC No. 1 on the scope of the termination of Presidential appointees who are non-CESO holders (i.e., if the official is a presidential appointee of the past administration but holds a CESO qualification, he is not covered), the said new 'fine-tuned' MC No. 1 did not include from its coverage casual government employees. In effect, the new 'fine-tuned' MC No. 1 revised and amended the old MC No. 1 as it excludes from its coverage thousands of casual rank and file government employees.

Despite the confusion that the new and old of the same Memorandum Circular No. 1 brought to government officials and employees, it is too early to be harsh on a very young administration which appears to be serious and determined in cleaning the ranks of the government of appointments based on political expediency rather than qualifications. From the many career and qualified officials, the clarification brought sighs of relief and hope. But even so, it will be unforgivable if this same mistake of 'fine tuning' and double talk will be repeated for succeeding presidential directives in the future. After all, and as the popular saying goes, you can fool the people some of the time, but not all the time.

Promoting Farmers' Rights in ADB's NRM Projects and Investments

2010-07-08T20:31:00.000-07:00

Convention on Biological Diversity's Cartagena ProtocolImage by _ Krystian PHOTOSynthesis (wild-thriving) _ via Flickr

By Elpidio Peria

For quite some time, even as farmers are asked about the matter of natural resources management, some have said this as an issue for the governments only though it cannot be denied there are also active groups of farmers worldwide who have fought for the recognition of their rights, especially on the farmer's right to own the land, especially at the international level. Indeed, farmers have rights, not only from Art. 9 of the International Treaty on Plant Genetic Resources on Food and Agriculture of the FAO which talks about Farmers' Rights, but also from the UN Human Rights instruments, which includes the Right to Food.

With unabated biodiversity loss, climate change, lack of funds of developing country governments in Asia-Pacific, and the uncritical tendency to use modern biotechnologies to meet food security challenges, it is important to ensure and institutionalize the rights of farmers on matters relating to agriculture and natural resources management, more importantly on their rights to land, which is best concretized by the recognition of farmers’ right to land and to directly manage productive resources. This is the only way to ensure inclusive and sustainable growth.

In the context of a tendency to use modern biotechnologies to foster productivity improvements in the farm, the rights of farmers are also an important complement to the forthcoming international instrument shepherded into completion by the Convention on Biological Diversity's Cartagena Protocol, the Supplementary Protocol on Liability and Redress from Damage caused by GMOs - shielding the small farmers from liability or enabling them to claim for redress and compensation for crop loss and any untoward effects on their health and their farming environment.

A clear articulation of what the rights of farmers are also ensures that farmers, along with indigenous peoples and local farming communities, have clear rights to recognition as well as to benefit-sharing from the uses of plant and animal genetic resources. It also guarantees their participation and decision-making on matters that relate to their well-being, including access to financial and other resources and technology. Ultimately however, the rights of farmers to manage natural resources are best guaranteed by the recognition and institutionalization of their rights to land and productive resources in agriculture. This should be the fundamental principle where any initiative of ADB on NRM should stand. If the ADB cannot change its ways now to address this, then it should be considered a failure.

oOo

Natural Resources Management in ADB

2010-07-07T18:17:00.000-07:00

Natural Resources Management in Asian Development BankImage by Virens (Latin for greening) via Flickr

By Elpidio Peria

Natural Resources Management or NRM is nowhere in the priorities or core areas of operation of ADB's Long-Term Strategy (2008-2020) or Strategy 2020. In that document, the environment is next to infrastructure, but it deals mainly with issues relating to urban environment issues, such as climate mitigation, livable cities, etc. The ADB's own Evaluation Report in 2008 however states that Strategy 2020 has placed the sustainable management of natural resources high in its agenda particularly as it seeks to achieve sustainable and inclusive growth in developing member countries (DMCs).

The ADB's Agriculture and Natural Resources Research (ANRR) agenda derives from ADB's own 1995 paper on Agriculture and Natural Resources Policy, which has the following items : (1) developing remunerative farming systems for poor farmers; (2) enhancing income and living standards of women; (3) improving sustainable management of agriculture and natural resources; (4) enhancing the productivity of agriculture; (4) enhancing the capacity of national agriculture research stations (NARS); and (5) conducting research on socioeconomics and public policy.

ADB's own assessment of the current challenges in Asia-Pacific include : population growth and rapid urbanization, increasing competition for resources, trade liberalization and globalization of markets, including globalization of agricultural food systems where the specific challenge now is on the ability of small producers to overcome the barriers posed by concerns of food safety and quality standards and inevitably, climate change. But the real key challenges of the region relate to increasing poverty and inequality, worsening environmental degradation, growing competition for resources and climate change, all of which are actually outlined as the challenges confronted by the Strategy 2020.

The ADB's Operations Evaluation Department in a 2008 report recommended that the current ANRR Policy must be updated, to align it more closely with Strategy 2020, in addition to giving the usual support for short- and long-term research, restoring the level of ANRR funding such that it will be at US$5million per specific technical assistance and lastly, to promote the wider utilization of ANRR products.

Before CSOs may be persuaded to support these recommendations at their face value, they, and the public in general should be aware of the following :

1) for now, ADB has categorized agriculture under "Other Areas of Operation" when the bulk of Asia's poor are in the agriculture sector (including fisheries and forestry). In the ADB's 2009 Annual Report, "Agriculture and Food Security" is categorized as "Cross-Cutting Initiatives", with only 7 loans allotted with a measly $443 million in 2009, including ANR as a whole. This is a dismal failure, considering that ADB targeted to increase its lending for agriculture and rural development to more than US$2 billion in 2009

If ADB is serious in actualizing its vision of “inclusive” economic growth, agriculture should be part of its Core Area of Operation. Even in the Environment core area, the key areas there have nothing to do with forestry, fisheries and agriculture which comprise the area/sector of "Natural Resource". It should not be that ADB's notion of environment be limited only to the urban environment, as that is not where the bulk of Asia-Pacific's poor live.

2) the ADB's support for short- and long- term research, and even restoring the level of ANRR funding at US$5 million should be reconsidered. The ADB's ANRR investments are virtually allocated to the International Agricultural Research Centres (IARCs), specifically the Consultative Group on International Agricultural Research (CGIAR).

What must be asked here is : what kinds of projects has the CGIAR implemented using the technical assistance money from the ADB? The CGIAR has been mainly responsible for the environmental, social and economic problems attributed to its active push for the Green Revolution and now with this recommendation that the bulk of ADB's support to the CGIAR are "restricted funds" - which means that the funds have to be spent exclusively for specific projects that the ADB agreed to fund, we have to ask, what are those projects that are allocated with "restricted funds" from the ADB? From ADB's own documents, we can see that most of these projects are in advanced rice genomics, biotechnology, seeds extension programs, etc. involving partnerships between the CGIAR and NARS and increasingly with the private sector. The ADB believes that the future of ANRR should be based on public-private partnership (PPP), but this open push for this kind of collaboration should be reviewed. For example, IRRI's PPP, the Hybrid Rice Consortium, the public and the political leaders of the region should be made aware of the details of auctioning out the hybrid parentals to the highest bidders from the private sector.

Another aspect of this research support relates to the National Agriculture Research Systems (NARS), which the ADB does not fund directly, unless one of these NARS, like, for example, PhilRice, has a long-time partnership with the CGIAR or the project will involve co-implementation with the CGIAR. ADB says this is done to reduce project transaction costs and to avoid thinly spreading already limited resources for ANRR, thus they want to deal only with the CGIAR.

The problem with this set-up is that the NARS cannot then develop their capacity to do agricultural R&D tailored for the specific needs and situation of the country and their farmers; what is worse, they will now become eternally dependent on the CGIAR for expertise and technical capacity since that's the only way for them to access funds from the ADB.

3) The capacity building priorities on ADB's ANRR are on advanced genomics, applied genomics (marker development), and seeds extension training for farmers, which are what the CGIAR capacity building is all about. To address the concerns on the lack of participatory approaches in CGIAR research, ADB funded the Consortium for Unfavorable Rice Environments (CURE) in 2002 which uses participatory modes of problem identification and solution. The ADB also boasts of supporting the CGIAR's project promoting zero tillage in wheat and rice production which they say has reduced the use of diesel by more than 50 liters per hectare, but silent on the increased use of herbicides in zero-till systems.

This kind of top-down capacity building priorities, palliative participatory approaches in agricultural research, and technology fixes to the problems of farmers should not be continued. It must be noted that it was the ADB that funded the development and promotion of hybrid rice seeds in the Philippines, Indonesia, Bangladesh, India, etc. under a program coordinated by IRRI. It was ADB too that funded the Asia Maize Biotechnology Network in 1998 which bore the fruit of commercially introducing GM corn in the Philippines. These are projects that has leveraged private sector investments in rice, corn and wheat in Asia. Who has benefited from the foray of these giant companies, definitely not the poor farmers whose numbers have not been reduced.