SC upholds Estrada win

THE Manila Times story predicting that the Supreme Court (SC) will dismiss a disqualification case against Manila Mayor Joseph Estrada was right on target.

Voting 11-3, with one justice inhibiting, the SC en banc on Wednesday junked a petition seeking to reverse a Commission on Elections (Comelec) ruling that Estrada was qualified to run for mayor in the 2013 elections.

The High Court, through Associate Justice Teresita Leonardo-de Castro, dismissed the consolidated petitions filed by former Manila Mayor Alfredo Lim and his lawyer Alicia Risos-Vidal.

Estrada won in the mayoral race in 2013 with 349,770 votes, against Lim’s 307,291 votes.

De Castro is the same justice who convicted Estrada for the crime of plunder De Castro is the same justice who convicted Estrada for the crime of plunder at the Sandiganbayan on September 12, 2007.

Associate Justice Francis Jardeleza took no part in the case because he represented the Comelec during his stint as Solicitor General.

Voting with de Castro were Justices Presbitero Velasco Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, Martin Villarama Jr., Jose Perez, Jose Mendoza, Bienvenido Reyes and Estela Perlas-Bernabe.

Mendoza and Brion have issued separate concurring opinions.

The three SC justices who voted to oust Estrada were Chief Justice Ma. Lourdes Sereno, Senior Associate Justice Antonio Carpio and Associate Justice Marvic Leonen.

Estrada was overjoyed upon learning of the SC decision.

“Masayang-masaya ako at gusto kong magpasalamat…Nagpapasalamat ako sa mga Supreme Court justices,” [I’m so happy and I want to thank the Supreme Court justices.],” he told reporters.

The former President said he immediately relayed the good news to family members.

Although he earlier announced that he will no longer run for mayor in 2016, Estrada said he may seek reelection if Vice Mayor Isko Moreno runs for higher office.

“I have palabra de honor (word of honor). I promised my vice mayor I won’t run. It all depends on Vice Mayor Isko Moreno. If he changes his mind, then I will run for reelection,” he explained.

“If the people will ask for it, then we can do nothing,” Estrada said.

According to him, Moreno is well equipped to succeed him as Manila mayor.

But the vice mayor had said he will not run against Estrada if the latter decides to seek another term. Moreno said he may run for senator or congressman instead.

When asked if he has a message to former mayor Alfredo Lim, Estrada said: “God bless him and may he be empowered in his retirement.”

City’s victory
Estrada’s children celebrated with their father, saying the SC decision is a victory not only for the Manila mayor but for the electorate of the city.

Sen. Jose “Jinggoy” Estrada, who is detained for plunder, expressed hope that the decision of the High Court will finally put all questions and uncertainties over the pardon given to his father and his eligibility to run for public office to rest.

“Now that this issue has been settled, let us focus on helping the local government of Manila to succeed in the next 18 months in restoring the glory and grandeur of our beloved capital city which were lost due to years of mismanagement and negligence,” the senator said.

Sen. Joseph Victor Ejercito also praised the SC for its decision.

“They (SC justices) respected the mandate that was given by the people to Mayor Estrada,” Ejercito said.

With Jaime R. Pilapil And Jefferson Antiporda

source:  Manila Times

May-December recess? We're deliberating, not holidaying, says SC

The Sereno Supreme Court may not be holding sessions for the full-month of May and the second half of December but it does not mean that the justices go on holiday during those stretches, said SC spokesman Theodore Te.

Te was reacting to a Monday item in this space noting that even Cory Aquino spokesman, former Senator Rene Saguisag, had joined the grumbling about the Sereno court's laid-back work schedule as "indolent."

Saguisag, now a law professor in San Beda College, also expressed dismay about the present Supreme Court's penchant to "stage presscons, speechify, travel abroad, socialize, accept accept."

Te also revealed that the Supreme Court has also set aside the whole month of November, in addition to May and the second-half of December, as "court recess" where the justices switch to the writing cycle.

The Supreme Court, by way of background, has two cycles -- the adjudication and the writing cycles, with the latter more commonly known in judicial circles as "recess."

The adjudication cycle goes on the whole year, except in the months of May, November and the second half of December as earlier noted, when the whole bench and its divisions do not meet to decide and deliberate on cases "but the justices continue to report for work in order to catch up on decision-writing and submission of drafts," Te said.

The only days last month that the Supreme Court did not work, aside from the national holidays, was on December 12 (Te actually said it was a "no transaction" day), when the justices held their Christmas party, on December 23 afternoon and on December 29, the latter having been declared by the Sereno court as a judicial holiday.

This January, the Supreme Court like all government offices will have lost six working days to holidays, including four to Catholic Church-related functions.

Asked why the current Supreme Court had resorted to the May and December recess when the previous SC administrations had deliberated and issued decisions for the whole month of May and even in the second half of the merry month of December, Te replied, "I cannot comment for lack of knowledge on the matter."

source:  Philippine Star Column of Victor Agustin

Support the Supreme Court and save our Republic

Last of two parts

Will the Supreme Court stand up against President Benigno Aquino 3rd and his administration’s violations of law and constitutional democratic institutions?

In fact, it has done so more than once — prompting Aquino to launch the first of his assaults on the law and democratic institutions. The magistrates ruled against Executive Order No. 1, issued on June 30, 2010, singling out the past government for investigation and thus violating equal protection under the law. Then in November 2011, the High Court voided Justice Secretary Leila de Lima’s travel ban on the former First Couple.

Within days of the travel ban voiding, Arroyo was under arrest without bail on rushed electoral sabotage charges. Two weeks later on December 7, Chief Justice Renato Corona was impeached by the House of Representatives, with little reading of the charges and lots of pork barrel disbursements.

From the foregoing episodes as well as the anger of Aquino and his allies over last year’s rulings against pork barrel and the Disbursement Acceleration Program (DAP), the Supreme Court almost surely faces virulent excoriation and attack if it again rules against the administration.

Hence, the Integrated Bar of the Philippines (IBP), the Catholic Bishops Conference of the Philippines (CBCP), and other national and sectoral institutions and groups advocating rule of law and republican democracy must even now make clear and tangible their support for the High Court in its duty of setting legal limits on government.

Without this unequivocal and unrelenting support, the justices are on their own, and some could falter under pressures from the Palace, its impeachment-brandishing allies, and pro-Aquino segments of maintstream media. Hence, the call on the Supreme Court to defend democracy and law, is also a trumpet blast for the IBP, the CBCP, and other advocates of justice and freedom to defend the Judiciary.

EDCA: Illegal and unfair?
Pressures will be aplenty when petitions questioning the Enhanced Defense Cooperation Agreement (EDCA), the Bangsamoro Agreements and Basic Law, and the automated elections of 2010 come up for judgment. Already, there are moves to spare Aquino another unconstitutional ruling by just referring the defense deal to the Senate.

Last time we checked, the Supreme Court is supposed to rule on issues raised before it, such as whether EDCA was concluded in a constitutional way or not. Referring the deal to the Senate does not resolve the question of the legality of EDCA’s forging.

Plus: referring the deal to the Senate may usurp a presidential prerogative. Only the Executive can decide what to do with its treaties and agreements, including those ruled illegal, not the Judiciary. All the latter can and should do is affirm or void the pacts.

So bottom line: The Supreme Court should decide whether EDCA was forged in the manner laid out in the Constitution. That’s part of the separation of powers and checks and balances — the same paramount principle violated by pork barrel and DAP. And the Supreme Court must make doubly sure that this tenet is clearly affirmed and stressed in the EDCA ruling.

Sacrificing the law for ‘peace’
If the Aquino camp may go ballistic over decisions suspending suspect pork in the 2015 budget or voiding EDCA for lack of Senate ratification, expect multiple warheads raining down on the High Court if the Bangsamoro law and agreement as well as the 2010 automated elections are struck down.

The administration would blame the Supreme Court if fighting resumes in Mindanao over a voided Bangsamoro pact. Malacañang would also lambast as irresponsible and destabilizing a decision declaring the polls that elected Aquino null and void for failing to comply with key provisions of the Election Code governing them.

The argument that would sway many, if not most Filipinos is that the justices should allow some liberties with the law to avoid political conflict and instability. The very same thinking behind DAP: The end justifies the mincemeat that key statutes are reduced to.

Except that letting Bangsamoro and automated elections issues through without serious review would grind not just crucial provisions of the Constitution, but the Republic’s sovereignty, security and suffrage themselves — all foundations of our nationhood.

Dubious provisions in the Bangsamoro pact could give secessionist elements the door to breakaway and belligerency, especially the provision stripping the Armed Forces of the Philippines of its law enforcement function in the region and scaling the AFP down.

If the future regime declares independence, protected by its police, that would give separatists the belligerency and international recognition they crave. That would be a far greater security threat than even a resumption of hostilities with Muslim rebels.

As for elections, the Supreme Court must declare automated polls invalid if indispensable and legally mandated safeguards are voided. Otherwise, they would be set aside again and again, knowing that results would be affirmed for fear of disorder.

No, the justices must rule that dispensing with basic safeguards would void the polls, especially procedures absolutely necessary to ensure that only valid returns are counted and votes are correctly tabulated,.

Even the 2010 and 2013 elections? Sure. Those polls may be declared void, while allowing officials proclaimed in good faith to exercise full authority till the end of their terms. Much like the decision voiding DAP, but letting its ongoing projects continue.

That messy resolution is far better than allowing the voiding of election safeguards that are as fundamental as canvassing only verified tally sheets and tabulating votes as written in ballots in manual polls.

Backed by the IBP, the CBCP and other civil society, the Supreme Court must not allow potentially fatal blows against the body democratic, blackmailed by Palace and Congress warnings of war and instability.

Our forefathers braved those very threats to bequeath a free, democratic, constitutional Republic of the Philippines to us. We must protect our nation, our Constitution and our institutions — even if we must fight more battles. Especially against the abusive elites burdening our people since time immemorial.

(The first part was published two days ago.)

source:  Manila Times' Column of Ricardo Saludo

SC says it’s final: ‘Pork’ is dead

THE Supreme Court (SC) en banc has hammered the final nail on the coffin to officially declare the death of the Priority Development Assistance Fund (PDAF) or pork barrel.

The PDAF being declared unconstitutional has become “final and executory,” according to a copy of a three-page entry of judgment obtained by The Manila Times.

The document, signed by Corazon delos Reyes, deputy Clerk of Court and chief of the Judicial Records Office, was subsequently recorded in the Book of Entries of Judgment.

The PDAF case ruling of the High Court on November 19, 2013 is now part of the Supreme Court Reports Annotated (SCRA) under the case Pedrito M. Nepomuceno vs. President Benigno Simeon C. Aquino 3rd ad Secretary Florencio Abad of the Department of Budget and Management.

Petitioners in the case included lawyer Samson Alcantara of the Social Justice Society, former Manila Councilor Greco Belgica and former congressman Augusto Syjuco.

The declaration has become final and executory since no motion for reconsideration of the November 19, 2013 ruling handed down by Associate Justice Estela Perlas-Bernabe was filed by Malacanang.

An SC source said no appeal was made by the Palace in order to save the presidential pork that was said to be funds under the controversial Disbursement Acceleration Program or DAP.

“The court hereby directs all prosecutorial organs of government to, within the bounds of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds under the pork barrel system,” the tribunal said.

The justices voted 14-0, with one inhibition made by Associate Justice Presbitero Velasco since his wife, Lorna Velasco, was a party-list member of the House of Representatives and his son Lord Allan Velasco was a former representative of Marinduque province.

The SC en banc also declared unconstitutional:

“All legal provisions of past and present congressional pork barrel laws such as the previous PDAF and CDF (Countrywide Development Fund, later called PDAF) articles and various congressional insertions, which authorize/d legislators–whether individually or collectively organized into committees–to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and /or fund realignment, unrelated to the power of congressional oversight;

“All legal provisions of past and present congressional pork barrel laws, such as the previous PDAF and CDF articles and the various congressional insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine;

“All informal practices of similar import and effect, which the court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of discretions; and

“The phrases “and for such other purposes as may be hereafter directed by the president under (Section) 8 of PD (Presidential Decree) 910 to finance the priority infrastructure (development) projects under (Section) 12 of PD 1869 as amended by PD 1993 , for both failing the sufficient standard test in violation of the principle of non-delegability of legislative powers.”

The 15-man tribunal has made permanent the temporary restraining order (TRO) it earlier issued against PDAF.

“Accordingly, the court’s temporary injunction dated September 10, 2013 is hereby declared to be permanent.”

“Thus, the disbursements/release of remaining PDAF funds allocated for year 2013, as well as for all previous years and the Malampaya funds under the phrase ‘And for such other purposes as may hereby directed by the (P)resident’ pursuant to Section 8 of PD 910 which are, at the time of this decision is promulgated, not covered by Notice of Cash Allocation but only by Special Allotment Release Orders, whether obligated or not, are hereby enjoined.”

In addition, the SC en banc “also enjoins the release of funds sourced from the Presidential Social Fund under the phrase ‘to finance the priority infrastructure development projects pursuant to Section 12 PD 1869 as amended by PD 1993.’ Said funds covered by this permanent injunction shall not be disbursed/released but instead returned to the general coffers of government except for the funds covered by the Malampaya funds and the Presidential Social Fund (that) shall remain therein to be utilized for their respective special purposes not otherwise declared unconstitutional.”

Meanwhile, the court junked a plea of the petitioners to summon the Commission on Audit, Malacanang, and Congress on the book of accounts pertaining to PDAF since it can be done via separate petition for mandamus or it can be obtained directly from the respective government agencies.

source:  Manila Times

Macalintal says Pacquiao is not yet qualified to run for the vice presidential post in 2016

Filipino boxing icon and Sarangani Rep. Manny Pacquiao is not yet qualified to run for the vice presidential post in the 2016 elections because of the age requirement.

Noted election lawyer Romulo Macalintal said that Pacquiao, who is reportedly being considered as the running mate of Vice President Jejomar Binay in the coming national polls, will only be 38 years old in 2016.

“Having been born on December 17, 1978, Pacquiao will only be 38 years old in 2016. Clearly, he is not yet qualified to run for vice president or to be the running mate of Binay in 2016,” Macalintal said in a statement.

Section 3, Article VII of the 1987 Constitution provides that a candidate for president or vice president must be at least 40 years of age on the day of the election.

Speculations on the Binay-Pacquiao tandem in the next elections floated after Pacquiao welcomed Binay in General Santos City when the latter visited the province to oversee the government’s housing projects last Monday.

But Macalintal noted that Pacquiao is qualified to run in the senatorial race.

“He is qualified to run for senator, where the age qualification is at least 35 years of age,” the lawyer said.

Section 3, Article VI of the 1987 Constitution states that a senatorial candidate must be 35 years of age on the day of the election.

Earlier, Binay already announced that Pacquiao will be included in his senatorial lineup in the 2016 polls. PNA

source:  Manila Times

Jardeleza removable only by impeachment – SC

A sitting justice of the Supreme Court (SC) like Associate Justice Francis Jardeleza can only be removed by impeachment.

This was the ruling of the SC en banc in a disbarment case filed against Jardeleza amid the filing of motion for reconsideration of the Judicial and Bar Council (JBC) questioning the recent SC ruling that Jardeleza should be included in the short list that paved way for his appointment.

The 15-man tribunal junked the disbarment case lodged against Jardeleza, contending that he is now an “impeachable officer.”

A resolution dated August 26, 2014, signed and promulgated by lawyer  Enriqueta Vidal, Clerk of Court of the SC en banc,  dismissed the complaint filed by lawyer Reynaldo Cortes against Jardeleza when he was the then- Solicitor General.

The High Court argued that in view of the appointment of Jardeleza as justice of the SC, he is now considered an impeachable officer under the 1987 Constitution.

This means that Jardeleza can only be removed from office via impeachment proceedings.

Cortes filed the disbarment case, citing Jardeleza’s alleged violation of the Code of Professional Responsibility when he was still the Solicitor General.

His case supports Chief Justice Maria Lourdes Sereno dropping Jardeleza from the shortlist of nominees when he was applying as Associate Justice of the SC.

Cortez filed an Opposition in Intervention in the SC by also questioning the integrity of Jardeleza as a lawyer.

Sereno and Associate Justice Antonio Carpio blocked the nomination of Jardeleza in connection with the “Itu Aba” property dispute in Taiwan and the Chief Justice  even raised an “immorality” issue against Jardeleza.

According to an SC insider who talked to The Manila Times on condition of anonymity, this ruling of the High Court will be echoed in the motion for reconsideration filed by the JBC against Jardeleza.

The source said it was only Sereno who cannot accept that Jardeleza is now in the SC.

“The move to attack Jardeleza again is an exercise in futility… because everybody in the court knows that it will be moot and academic,” the SC source added.

With a vote of 7 against 4, the SC granted a petition of then Solicitor General Francis Jardeleza to be included in the shortlist of nominees for a vacant post in the tribunal.

The seven justices who granted the petition of Jardeleza believed that Sereno and the JBC deprived Jardeleza of his right to due process by excluding his name from the shortlist despite his garnering the required majority vote.

source:  Manila Times

Stopping ISIS: What international law and the Pope have to say

THE OUTRAGE generated by ISIS’ atrocities effected unity of sorts among people of different persuasions. Except for the Left in the United States, which is incapable of grasping the notion that President Obama’s foreign policy is effete at best and likely nurtured ISIS’ rise, many are of the belief that the world’s governments should do something concrete to stop the terrorist onslaught. Right that sentiment may be, but in international law terms it’s easier said than done.

Which is ironic, as Pope Francis himself was reported to have approved of the air strikes against ISIS (more on that later). The legality, however, of the air strikes (or any military move by a foreign power) against ISIS is, believe it or not, questionable at this time.

Colum Lynch in a Foreign Policy piece correctly pointed out:

“International legal experts say the United States has an uphill battle convincing many of its allies that there is a legal rationale for extending strikes into Syria. The UN Charter offers two major paths to military action. A government is permitted, under Article 51, to use force against an armed aggressor in self-defense. It can also invite foreign powers to help it defend itself, as Iraq has done. The UN Security Council can, under Article 42, authorize a military intervention. But those roads may be blocked for the time being.

“The Syrian government has not approved American air power. Syrian Foreign Minister Walid Muallem warned that Bashar al-Assad’s regime would consider American military intervention in its territory an ‘act of aggression’ unless it coordinated its activities with Damascus -- a condition Washington has rejected. And Russia -- while no friend of the Islamic State -- may not be inclined to approve a Security Council resolution granting Washington a blank check in Syria.”

Ryan Goodman, on the other hand, stated:

“In conducting attacks against ISIS, the United States might assert either (1) the right of individual self-defense due to ISIS’ direct threat to the United States; or (2) the right of collective self-defense in coming to the aid of Iraq. At this point, the former is a weak one -- without a truly imminent or actual ‘armed attack’ against the United States. The latter is solid.

“But what about US forces crossing the border into Syria? The US government would likely assert that Syria is ‘unwilling or unable’ to deal effectively with the ISIS threat. This is the same prerogative that the United States invokes in other parts of the world (think: the US operation to kill Osama bin Laden without seeking Pakistan’s approval). The ‘unwilling or unable’ test is now a fairly well settled part of the US government’s legal position. Nevertheless, it remains controversial under international law.”

Regarding “collective self-defense” that Goodman indicated above, the same could be legally defensible but politically difficult. Considering the dynamics involved in Security Council votes, as well as Obama’s continuing inability to show leadership in this matter, for it to authorize actual military force is currently improbable.

As for the Pope himself agreeing to the use of force, what he actually said was aptly described by Think Progress as follows: “‘I can only say this: It is licit to stop the unjust aggressor,’ the pontiff said in reference to ISIS, according to CNN. ‘I underline the verb: stop. I do not say bomb, make war, I say stop by some means.’ ‘But we must also have memory,’ he added. ‘How many times under this excuse of stopping an unjust aggressor the powers [that intervened] have taken control of peoples, and have made a true war of conquest.’”

Indeed, under the teachings of the Church, military force may be morally permissible if “the following conditions are simultaneously present:

• the suffering inflicted by the aggressor must be lasting, grave and certain;

• all other peaceful means must have been shown to be ineffective;

• there are well-founded prospects of success;

• the use of arms, especially given the power of modern weapons of mass destruction, must not produce evils graver than the evil to be eliminated.”

And even then, “during a war the moral law always remains valid. It requires the humane treatment of noncombatants, wounded soldiers and prisoners of war. Deliberate actions contrary to the law of nations, and the orders that command such actions are crimes, which blind obedience does not excuse. Acts of mass destruction must be condemned and likewise the extermination of peoples or ethnic minorities, which are most grievous sins. One is morally bound to resist the orders that command such acts.”

Which just goes to show that, even in war, what is moral is not necessarily legal. And vice versa.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com