Saturday, November 30, 2019

Who will conduct inquest proceedings on criminal cases against government officials?

ADMIN Law
For more “efficient and effective investigation and prosecution of cases involving government officials and employees,” the Department of Justice (DOJ) and the Office of the Ombudsman signed a memorandum of agreement (MOA) giving the anti-graft office sole jurisdiction over complaints against government employees tried before the Sandiganbayan.
In a press release from the Office of the Ombudsman, it clarified the delineation of responsibilities between both offices.
“Under the MOA, the Office of the Ombudsman will have primary jurisdiction in the conduct of preliminary investigation and inquest proceedings over complaints for crimes cognizable by the Sandiganbayan,” the Ombudsman statement reads.
Cases considered under the jurisdiction of the Sandiganbayan are those involving violations of Republic Act (RA) 3019 known as Anti-Graft and Corrupt Practices Act, RA 1379 which involves illegally acquired wealth as well as crimes committed by public officers such as Direct Bribery, Indirect Bribery, Qualified Bribery and Corruption of Public Officials.
Also under the jurisdiction of the Sandiganbayan are other crimes committed in relation to office with salary grade of 27 and above and violations of the Code of Conduct and Ethical Standards, Plunder Law, Heinous Crime Law, violation of Anti-Money Laundering when committed by a public officer, prohibition against gift-giving and law granting immunity to bribe-givers who voluntarily gives information.
As for complaints filed outside the jurisdiction of the Sandiganbayan, the DOJ and the Office of the Ombudsman has the authority to conduct the preliminary investigation and inquest proceedings. These complaints may then be filed to either of the two offices.
“The two officials also agreed that the Office of the Ombudsman and the DOJ shall have concurrent jurisdiction over cases involving public officials falling outside the exclusive jurisdiction of the Sandiganbayan,” the press release reads.
The Prosecutor’s Office or the DOJ will then resolve the complaint without any approval from the Office of the Ombudsman.
SOURCE:
https://www.philstar.com/cebu-news/2012/04/23/799504/doj-ombudsman-moa-clarifies-jurisdiction-over-sandiganbayan-cases#BgKpZpc3xKO3hQ12.99
Who will conduct inquest proceedings on criminal cases against government officials?

Who will conduct preliminary investigation on criminal cases against government officials?

ADMIN Law
For more “efficient and effective investigation and prosecution of cases involving government officials and employees,” the Department of Justice (DOJ) and the Office of the Ombudsman signed a memorandum of agreement (MOA) giving the anti-graft office sole jurisdiction over complaints against government employees tried before the Sandiganbayan.
In a press release from the Office of the Ombudsman, it clarified the delineation of responsibilities between both offices.
“Under the MOA, the Office of the Ombudsman will have primary jurisdiction in the conduct of preliminary investigation and inquest proceedings over complaints for crimes cognizable by the Sandiganbayan,” the Ombudsman statement reads.
Cases considered under the jurisdiction of the Sandiganbayan are those involving violations of Republic Act (RA) 3019 known as Anti-Graft and Corrupt Practices Act, RA 1379 which involves illegally acquired wealth as well as crimes committed by public officers such as Direct Bribery, Indirect Bribery, Qualified Bribery and Corruption of Public Officials.
Also under the jurisdiction of the Sandiganbayan are other crimes committed in relation to office with salary grade of 27 and above and violations of the Code of Conduct and Ethical Standards, Plunder Law, Heinous Crime Law, violation of Anti-Money Laundering when committed by a public officer, prohibition against gift-giving and law granting immunity to bribe-givers who voluntarily gives information.
As for complaints filed outside the jurisdiction of the Sandiganbayan, the DOJ and the Office of the Ombudsman has the authority to conduct the preliminary investigation and inquest proceedings. These complaints may then be filed to either of the two offices.
“The two officials also agreed that the Office of the Ombudsman and the DOJ shall have concurrent jurisdiction over cases involving public officials falling outside the exclusive jurisdiction of the Sandiganbayan,” the press release reads.
The Prosecutor’s Office or the DOJ will then resolve the complaint without any approval from the Office of the Ombudsman.
SOURCE:
https://www.philstar.com/cebu-news/2012/04/23/799504/doj-ombudsman-moa-clarifies-jurisdiction-over-sandiganbayan-cases#BgKpZpc3xKO3hQ12.99
Who will conduct preliminary investigation on criminal cases against government officials?


Tuesday, November 26, 2019

Freedom of the Fress, Freedom of Speech: 2019 En Banc Decision

Re: News report of Mr. Jomar Canlas in the Manila Times issue of 8 March 2016

A.M. No. 16-03-10-SC. October 15, 2019

Tuesday, October 22, 2019

1987 PH Constitution: Is "Service Contract" allowed in EDU of natural resources?

Yes, for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils ONLY not all natural resources.

The deliberations of the ConCom and some commissioners' explanation of their votes leave no room for doubt that the service contract concept precisely underpinned the commissioners' understanding of the "agreements involving either technical or financial assistance."


SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the notification of Congress by the President? That is the only difference, is it not? 
MR. VILLEGAS. That is right. 
SR. TAN. So those are the safeguards. 
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.



Agreements Involving Technical
or Financial Assistance Are
Service Contracts With Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or "owner" of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements:


(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.


SUMMATION
From the foregoing, it is clear that agreements involving either technical or financial assistance referred to in paragraph 4 are in fact service contracts, but such new service contracts are between foreign corporations acting as contractors on the one hand, and on the other hand government as principal or "owner" (of the works), whereby the foreign contractor provides the capital, technology and technical know-how, and managerial expertise in the creation and operation of the large-scale mining/extractive enterprise, and government through its agencies (DENR, MGB) actively exercises full control and supervision over the entire enterprise.

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant of such service contracts is subject to several safeguards, among them: (1) that the service contract be crafted in accordance with a general law setting standard or uniform terms, conditions and requirements; (2) the President be the signatory for the government; and (3) the President report the executed agreement to Congress within thirty days.




ARTICLE XII - National Economy and Patrimony
Sec 2. xxx The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

La Bugal-B'laan Tribal Association vs Ramos
GR 127882 (2004, En Banc on MR)


Sunday, December 9, 2018

The legal argument against martial law

By: ,  

Who sends Tyrion Lannister to a sword fight and Jaime Lannister to a negotiating table? Sadly, this is what the most vocal legal critics of martial law have done in the past 18 months.

Martial law is our most formidable emergency power. Deploying it merits serious political and legal questions.

The political asks: Is martial law correct? The legal asks a more basic question: Is it even permitted given the facts?

Law sets minimums but cannot decide for us.

How confused has the legal debate been?

Initially, for example, critics argued a president may not declare martial law if not recommended by his defense secretary.

No judge could accept this. Our Constitution has no such requirement and it is illogical because a president may overrule or even replace his defense secretary any time.

Sensible legal advocates frame:
1. What actual powers does martial law grant?
2. How has martial law actually been used since May 23, 2017?
3. What military plans for 2019 cannot be pursued without martial law?

Visualize the Marawi siege.

At its height, Mayor Majul Gandamra and policemen barricaded themselves in Marawi’s City Hall, preventing the Islamic State flag from being flown there. City hall reopened days later, although it was too dangerous for staff to come to work daily.

This is the extreme scenario martial law solves. With the mayor fighting for his life and other officials dead or in hiding, martial law empowers a general to intervene and restore government.
But this picture equally demonstrates when martial law is irrelevant.

If no bullets are flying and City Hall is open, what does martial law authorize the general to do that he cannot normally do? Remember, the military already has broad powers, to match its broad responsibilities.

Article VII, Section 18 of our Constitution primarily requires an “actual” — this is the technical legal term, contrasted with threatened or imminent — rebellion to declare martial law.

Our Supreme Court’s Lagman decision, in February 2018, allowed a second martial law extension. It accepted that an “actual” rebellion tried to remove territory from the government. The military is still chasing rebels across Mindanao as they try to regroup, recruit new members and restart the fighting.
How does one dissect planned action in 2019 in a legal context?

If the plan is for a general to run Marawi due to a new attack, this may meet Article VII, Section 18.
But if the plan is to chase rebels into mountains and swamps, troops may be transferred to Mindanao under normal powers. And generals do not need to temporarily take control of mountains and swamps from civilian leaders.

If the plan is to step up intelligence and counter terrorist recruitment, the military is also already authorized. And only new legislation, not martial law, would give them additional budgets and new legal tools for intelligence.

If the plan is to improve peace and order and scour the countryside for loose firearms, then this is a job for police, not the military. Peace and order is a civilian task and the police is a civilian agency.
Remember, the military may be deployed to assist police under normal powers, without martial law, as they are to help build roads in remote areas and rescue flood victims.

One concludes martial law is the wrong legal tool to achieve many military goals, as opposed to new legislation, increased budgets and troop redeployments. It is thus crucial to set politics and egos aside and have the separate legal debate free of drama.

The goal must be to deploy the best legal tools to allow our soldiers to complete their mission safely and allow Marawi to rebuild with dignity.

Further, we have an obligation to the next generation to document how the new martial law was implemented in fidelity to our Constitution.

But we must understand the difference between political and legal arguments, as we do the difference between standing beside Tyrion and beside Jaime in a sword fight.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.

Tuesday, September 11, 2018

Barry Gutierrez saves ICC withdrawal case

If the International Criminal Court (ICC) withdrawal hearings on Aug. 28 and Sept. 4 were “Infinity War,” Centerlaw veterans Romel Bagares and Gilbert Andres were Captain America and Black Panther, fighting on after teammate Ray Paolo Santiago completely surrendered to Justice Marvic Leonen’s Thanos-like opening punch.

Former Akbayan Rep. Barry Gutierrez was Thor, arriving in the nick of time with bolts of lightning to even the odds.

This is not a human rights case. It is a highly technical, sleep-inducing structure-of-government case about who authorizes termination of a treaty, whether ICC, military defense or double tax.
The president must sign a treaty, then two-thirds of the Senate must concur.

The Avengers argue that Senate concurrence is necessarily required to terminate. A president should not be able to single-handedly terminate the ICC treaty, subjected to 11 years of political debate. If a new president could after an election, it would undermine the Senate as a check-and-balance institution.

The rebuttal is, if the Constitution is silent, we should not infer new powers for the Senate.
Detained Sen. Leila de Lima could not argue for petitioning senators. They drafted Gutierrez only after the first hearing, frustratingly leaving Thor out of half the movie.

Leonen pounced on this. He spent the first belabored hour asking Santiago whether his clients (cause-oriented groups, not senators) could prove “direct injury.”

This is a standard freshman midterm question.

Direct injury must be shown in a constitutional case. Senators could, since they were given no chance to vote on the ICC withdrawal.

As an exception, ordinary citizens may question lack of authority as “public right.” In the 2003 Francisco case, citizens blocked Chief Justice Hilario Davide Jr.’s impeachment when Davide refused to sue in his own court.

Astoundingly, Santiago repeatedly but unqualifiedly conceded there was no direct injury. He then reframed the issue as a loss of citizens’ ICC remedies, not the narrow question of who authorizes treaty termination.

Santiago went so far out of bounds that he argued to Justice Andres Reyes that the United States, Russia and China must join the ICC.

Leonen devastatingly asked if he compels the Supreme Court to uphold his politics. When Santiago backpedaled, Leonen accused him of changing theories midway.

Sympathetic justices spoke as the experienced Bagares and Andres held their ground.
Senior Associate Justice Antonio Carpio argued that a treaty has a law’s status, and the president alone may not repeal laws. Justice Francis Jardeleza posited that the loss of ICC remedies amounts to a loss of the constitutional right to liberty. Justice Alfredo Caguioa argued that this loss amounts to direct injury for any citizen (the public right exception).

Bagares impressively rode Jardeleza’s US Youngstown Steel vs Curtiss-Wright framework. Caguioa commended him as petitioner in the 2005 Pimentel Jr. case to compel ICC ratification.
Gutierrez opened strong in the second hearing, discarding Santiago’s tangents. His argument was that if a mere executive agreement cannot amend a treaty, surely a president cannot terminate one alone.
Leonen pounded on procedure for half the hearing, with Justice Noel Tijam. They argued that the Senate never formally adopted a resolution asserting a need to concur, even if 14 out of 23 senators signed.

This dangerously alluded to the US Goldwater case, where one justice argued to dismiss because Congress as a body never officially opposed a termination. Gutierrez countered with Philippine cases where the senators’ right to sue is individual.

Jardeleza added that we do not follow US tolerance of unilateral termination. More recent concurrences now state a need to concur in terminations.

Will the Avengers fall before Leonen? Despite other receptive justices, he did cosmic damage, outlining how to dismiss purely on procedure. Leonen would even cut off Gutierrez and Bagares when they replied beyond his narrow, leading questions.

The show resumes on Oct. 9.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.

source:  Philippine Daily Inquirer Column By:

Meanness of spirit

In the dark days of apartheid in South Africa, detainees who, despite being white, resolutely opposed the white supremacist regime, were often subjected to mean punishment. The scholar and writer Ruth First, charged with treason, was the first white woman to be jailed under the so-called 90-Day Detention Law.

In her memoir, “117 Days,” she recalls how, after being held in solitary confinement for 90 days, she was told she was free to go. Her jailers let her make a phone call to her family so she could be fetched. Then, as she prepared to leave, all dressed up for that joyous day, she was told she was being rearrested.

She writes: “Left to face my second round of ninety days, I was filled with loathing and bitterness against the Security Branch detectives who had stage-managed my humiliating phony release and then rearrest; but I was also overcome, for perhaps the first time since my initial arrest, by a wave of self-pity… I sat on the edge of the bed, still in my navy outfit, and shook with sobs.”

One can only suppose that this is more or less how President  Duterte wants Sen. Antonio Trillanes to feel after invalidating the amnesty the previous administration had granted to the young senator, and ordering his immediate rearrest. He probably expects to see this angry rebel, who has minced no words in his attacks against him, lower his head, helpless in his loathing and bitterness.

If so, Mr. Duterte and his willing band of enablers and implementers do not know a thing about the spirit of defiant heroism. Ruth First never gave her captors “the satisfaction of an outburst that would reveal my feelings.” She struggled to keep a “tight hold on my emotions and to let no sound of them escape me,” until she knew she was completely by herself.

One expects no less from Sonny Trillanes or, for that matter, from another jailed senator, Leila de Lima. They may occasionally cry or feel depressed.  But they have proven themselves to be brave souls beyond intimidation. Trillanes, a veteran of prison life and an irrepressible rebel against all injustice and corruption, seems to flourish even more when he is targeted. Bolstered by her unshakable faith in God and by the steady support of family and friends, De Lima keeps busy in detention issuing her own critical analysis of the nation’s situation, and shows no signs of despair, exhaustion or regret.

If an assassin’s bullet or poison does not stop them, they will surely outlive Mr. Duterte.
In contrast, by allowing his primal thirst for vengeance to define his presidency, and by finding common cause with those who seek to regain public esteem after the people had rejected them for betraying the public’s trust, Mr. Duterte has hardly any time left for the urgent matters that demand the singular attention of the nation’s highest office. Rushing back from another overseas trip, he is no doubt haunted by the thought that some of history’s tyrants lost their positions while they were abroad.

He comes home to a country reeling from the effects of rapid inflation, the sharp depreciation of the peso, and, amid a sustained decline in the value of stock market shares, a growing skepticism about the nation’s future. The people may care little for what happens to De Lima and Trillanes, perhaps even seeing in their travails a warranted comeuppance. But, they will not keep quiet when the prices of food and other basic necessities begin to rise way beyond their earning capacities, when the purchasing power of their money is depleted daily, when they lose their jobs, and when they see their children die from lack of medicines and medical care. That is when they begin to ask where the President is, or whether he knows what he is doing.

For many people, the economy, the law, and politics itself, are complex things that only a few can really fathom.  But, they can quickly sense when their leaders are being honest with them, or when they are feeding them nonsense.

Revoking the amnesty that freed Senator Trillanes in 2010 on the ground that he never filed an application for amnesty and never admitted guilt is utter nonsense. Ignoring news videos showing him swearing to the truthfulness of the information he wrote in his amnesty application, the government insists he must produce a certified true copy of his application for amnesty because the original allegedly could not be found in the government’s files. Unless there is valid reason to think that Trillanes’ amnesty had been fraudulently obtained, to demand to see the application form is sheer persecution and harassment.

We apply for all kinds of documents during our lifetime—passport, a driver’s license, a clearance, a marriage license, etc.—knowing fully well that we are not expected to keep a certified true copy of the application itself. We make sure we have the passport, license, permit or certificate at hand when demanded by persons in authority. But, the duty to keep the various forms that have to be accomplished in the course of the application process lies solely with the government office or agency concerned.

The primary function of the law in any society is to stabilize expectations about what is allowed and what is not. Without law, behavior would be subject to the whims of the powerful. All contracts, licenses, passports and government-issued permits would be treated as fake, unless the bearer could prove that he or she went through the entire process of applying. There is no apt word to describe this Kafkaesque attitude but meanness of spirit.

public.lives@gmail.com

source:  Philippine Daily Inquirer Column By: