3 Ways the DBP May not Perfectly Fit as Secretariat of the Peoples’ Survival Fund

Elpidio V. Peria
13 August 2017

from : http://www.devbnkphl.com

Recent updates from the CSO rep to the Board of the Peoples’ Survival Fund (PSF), a fund created by Republic Act 10174 to finance climate projects of LGUs and communities, indicate that in spite of being warned that such act is premature, the Finance Secretary, Carlos Dominguez, decided to transfer the secretariat function of the Peoples’ Survival Fund from the Climate Change Commission’s Climate Change Office to the Department of Finance, which has planned to outsource some of the Secretariat functions of the PSF to the Development Bank of the Philippines, a government-owned bank infused with a capital of Php 35 billion by the national government back when it was reorganized under Republic Act 8523, in 1998.

While it cannot be denied that such act is filled with good intentions, perhaps the Secretary himself is very much frustrated now that, over five years from its approval on June 6, 2012, the PSF still hasn’t released any single centavo to any of its approved project proponents. His action of deciding that henceforth it is the DBP that will now approve and review project proposals is fraught with several legal questions, notwithstanding the report that such decision by the Finance Secretary was given the go-ahead by the lawyers both of the Department of Finance and the Climate Change Commission.

While we concede that such acts of the Secretary is presumed legal, we hope that there will be further discussion of this development and to search anew for fresh solutions on how to improve the operations of the PSF, particularly on how it can fast-track its fund releases to its approved beneficiaries. Just the same, we believe there are three reasons why the DBP may not be the perfect fit to play the role of the Secretariat of the PSF.

1. It’s what the law, Republic Act 10174,  has clearly stated.

Sec. 23 of the Climate Change Act, as amended by Republic Act 10174, spelled out clearly that :

The Climate Change Office, headed by the Vice-Chairperson of the Commission, shall evaluate and review the proposals, and with the concurrence and endorsement of the majority of Climate Change Commissioners appointed by the President, recommend approval of proposals to the PSF Board, based on policies, guidelines and safeguards, agreed by the PSF Board….xxx”

What this means is that it is the Climate Change Office, not the DBP, that has a clearly specified role as regards the evaluation and review of proposals submitted to the PSF. Now, it appeared in the annexes in the minutes of the 10th PSF Board meeting that the DBP was proposed, among others, to take on the role of “review and evaluation” of proposals, which may have been adopted already by the PSF Board.

That decision of the Board unfortunately cannot override this clear provision of the law, thus perhaps there may need to be a reordering of the tasks of the DBP in relation to the operations of the PSF.

It can be also be argued nonetheless that DBP may have some legal ground to be the PSF Secretariat, since this provision of the law we have cited is not explicit whether such role of the Climate Change Office is the Secretariat function already of the PSF Board. There is also the Revised IRR of the Climate Change Act and the Peoples’ Survival Fund Act, Rule XI, sec. 6, which stated that the Climate Change Commission shall constitute as the Interim Secretariat of the PSF, but it was only until such time that a PSF Board Secretariat has been constituted.

It appears that what the PSF Board should strive eventually to create is a distinct and separate Secretariat that is truly its own, which may be composed of perhaps staff from the Climate Change Commission and eventually the Department of Finance, or even also the DBP.

2. Transferring the whole or part of Secretariat functions of the PSF Board to the DBP affects the maintenance of the fiduciary character of the Board towards the Fund

While the CSO rep thoughtfully raised a lot of sound issues as to the challenges by the DBP in handling the fund, the most basic point that should have been pointed out was that giving the DBP a role in the PSF disbursement may potentially be violative of one key duty of the PSF Board to the Fund, and that is its fiduciary duty, though as written in RA 10174, the duty of the Board is just to “promulgate policies that will maintain the fiduciary character of the Board.” RA 10174 has therefore broadened the duty such that it is not now an individual duty but is attributed to the entire Board, that it has to maintain its “fiduciary character”.

“Fiduciary” was defined in the Revised IRR of the Climate Change Act and it said there that it “refers to the person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it require”.

How can the Board maintain its “fiduciary character” towards the PSF when it will put part of the running of the operations of the PSF to an entity, the DBP, which is primarily accountable to its own Board of Directors, not the PSF Board ? Can the PSF Board in good faith agree to conditions that will be set by the DBP Board as part of its demands to be made part of the process flow of PSF fund approvals? Can the PSF Board still be true towards maintaining its “fiduciary character” towards the Fund by agreeing to arrangements which may be in conflict later with the purposes of the Fund? Suppose the DBP Board considers it an opportunity to be the sole depositary of the funds approved by the PSF and makes it a condition that the depositary banks of the PSF beneficiaries will only be the DBP, should the PSF Board agree?

Or how about the fees that the DBP will charge as part of its services to the PSF, can the PSF Board agree to it and while for now it appeared from the update of the CSO rep that the Department of Finance will shoulder the amount of Php7 million that the DBP has asked to be the Secretariat of the PSF, in later years of PSF operation, where will that payment to DBP be coming from, or maybe it will have to be made part of a special provision of the General Appropriations Act, so that it will be above-board and no other agency that is currently member of the Board will fork out its own money to pay for this administrative fee that the DBP will charge? Again, can the members of the PSF Board maintain their fiduciary character towards the Fund with this kind of arrangement?

All these and other concerns can easily be solved though by developing and negotiating a MOA between the two Boards, that of the DBP and the PSF, but that may take up some time and will only delay the further processing of the disbursement of funds to the beneficiaries of the PSF. Just the same, this duty of the PSF Board to maintain its fiduciary character may be a principle to ward off potential conflicts of interest that it may confront as it negotiates these matters with the DBP Board.

3. While the DBP may eventually build its internal capacity to handle climate finance projects, DBP’s long-term role in this will eventually require a modification of its charter, but what about the other government banks who may also get interested in this new economic activity?

Starting out on new initiatives take some time, but eventually the culture of the organization takes over and if the DBP’s own internal capacity to deal with the challenges of PSF implementation is sturdy, it will eventually master the tasks needed to discharge its duties to the PSF Board. Long term however, based on lessons to be learned, the charter of the DBP may have to be amended so that it takes on a greater role in climate financing in the Philippines.
For now, however, the DBP may have a leg up vis-à-vis other government banks who may also be interested in funding climate adaptation projects and how they may be accommodated will be up to the PSF Board, if they put forward such interest before the PSF Board.


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Modernizing the Pinoy Jeepney By Upgrading its Technological Innovation System (TIS)

Elpidio V. Peria
19 July 2017

from : https://www.pinterest.com/pin/524669425310165108/

The government has recently come up with designs to modernize the ever-reliable Jeepney, but it looked liked a truck or a mini-bus and if environmental advocates would be asked, they would surely go directly towards converting all these jeepneys into electric versions of itself. To resolve how fast we should move towards totally overhauling our existing jeepneys into something that will address our needs, including the reduction of polluting and global-warming-inducing carbon dioxide emissions, perhaps what is needed is for the Department of Transportation and the Department of Science and Technology, as well as the Climate Change Commission, to examine first the technological innovation system underlying our existing jeepneys and from that analysis, identify ways how our jeepney fleet may be modernized, examining what may be needed for electricity-driven jeeps to flourish in our streets.

This idea of looking at a technological innovation system or TIS in the academic literature, is a way of looking at the socio-technical system underlying the development, diffusion and use of a particular technology. It does not look only at the specifics of the technology but also the bigger social context on which the technology is used. Understanding a technological innovation system behind a particular product or technology would enable a clearer idea of what policies need to be formulated for the replacement technology to take over an existing technology.

Bergek, et.al. (2008) says that to identify the central policy issues in a specific innovation system, there is a need to supplement a structural focus with a process focus. These processes or “functions” will have a direct and immediate impact on the development, diffusion and use of the new technologies. It is in these processes where policymakers need to intervene, not necessarily the set-up of the structural components (actors, networks, institutions). This allows the policy maker to separate structure from content and to formulate both policy goals and policy problems in functional terms.

As laid out by the mentioned academics, the following are the steps which may be undertaken to analyze the TIS involving our jeepney so that later policy interventions may be pinpointed as necessary to improve or modernize the jeepney. Of course, the government may have already done sufficient studies to decide on the modern design of the jeepney that was recently unveiled, but this process of analysis laid out here, which needs more work and data eventually, if picked up by these agencies, could help in further identifying what policies are needed to sustain the necessary transition to the modern technologies that will run our jeepneys.

Step 1 : Defining the TIS in focus

This involves looking at either the knowledge field or the product, its breadth and depth and its spatial dimension.

For the jeepney, we can focus on the product if we wish to preserve the jeepney as it is or in the alternative, we can look at the underlying technology running the jeepney, which is the engine running the contraption, which is the internal combustion engine which may be gasoline or diesel-fed. As for the breadth and depth and spatial dimension of the TIS, we can focus on the jeepneys plying all the roads in the Philippines, which may vary from the traffic-heavy EDSA to the mountainous roads in the Cordillera or even here in the hinterlands of Sarangani province.

Step 2 : Identifying the structural components of the TIS

This involves looking at the actors, the networks and the institutions that sustain the jeepney as a mainstay in Philippine roads. The actors here can either be the drivers and/or the operators who operate and manage the jeepneys. The networks may either be the linkages between the people in the permitting system in the LTFRB or the suppliers and gasoline networks or the various socio-political networks, like the jeepney associations allied with existing political formations in the country, that promote the interests of jeepney drivers and/or operators.

What is the point of all these analyses? This is to lay the basis for a further scrutiny of the various processes on which these various actors, networks and institutions interact with each other and enable us to understand the various processes or functions in which they relate to specific goals relevant to the development of the technology. That is the purpose of the next step.

Step 3 : Mapping the functional patterns of the TIS

a) Knowledge development and diffusion

This looks at the knowledge base for the jeepney technology , how it has changed over time and how such knowledge is diffused, or spread across various users and makers of the jeepney; different kinds of knowledge may be distinguished, be it scientific, technological, production, market, logistics or design knowledge. Is there still knowledge about the jeepney that we need to know; or suppose we want to shift to electric jeepneys, what are the things we need to do to hasten the diffusion of the technology – would courses in TESDA have to include lessons in electric propulsion systems and the like, how easily can it be learned? These, among other things related to the knowledge base on the underlying technology for the jeepney, is what we are after here.

b) Influence on the direction of search

This refers to the set of incentives or impediments that affect the entry of businesses in the particular field of technology. So looking at existing jeepney techhologies and the supposed shift to electric jeepneys, what tax breaks are there that are available so that investors will go into the production of electric jeepneys?

c) Entrepreneurial experimentation

This refers to the efforts by entrepreneurs to minimize the uncertainties in the technology o that their businesses may thrive. A TIS without vibrant experimentation will stagnate and will not evolve. The analysis here may involve looking at

• Number of entrants, including diversifying established firms
• Number of different types of applications
• The breadth of technologies used and the character of the complementary technologies employed

d) Market formation

There are three markets to look into here, a very early “nursing market”, where the size of the market is very limited but this may give way to a “bridging market” which allows for volumes to increase and for an enlargement of the TIS in terms of number of actors. Finally, in a successful TIS, mass markets may evolve, often several decades after the formation of the initial market.

e) Legitimation

This involves a matter of social acceptance and compliance with relevant institutions. The new technology and its proponents need to be considered appropriate and desirable by relevant actors in order for resources to be mobilized, for demand to form and for actors in the new TIS to acquire political strength.

f) Resource mobilization

This involves looking at the extent to which the TIS is able to mobilize competence/human capital through education in scientific and technological fields as well as in entrepreneurship, management and finance, financial capital and complementary assets such as complementary products, services , network infrastructure, etc.

g) Development of positive externalities

This refers to the entry of new firms which may resolve at least some of the initial uncertainties with respect to technologies and markets, thereby strengthening the functions influence on the direction of the search and market formation. Their entry may also legitimize the new TIS or strengthen the political power of advocacy coalitions that, in turn, enhance the opportunities for a successful legitimation process.

Step 4 : Assessing the functionalities of the TIS and setting process goals

When looking at the results from the various processes in step 3, a key question to ask is : how well is the system functioning, which involves what is the phase of the development of the technology, is the technology on the upswing or is it maturing; what is the goal that one seeks to achieve if we want the technology to grow and move up to the next level of adoption or market dominance? This goal must be identified as it is crucial to the application of the next step.

Step 5 : Identifying inducement and blocking mechanisms

To achieve the identified process goals, what are the various mechanisms in our functional analysis that promote the achievement of these goals; these are our inducement mechanisms; what about those factors that impede our progress towards these process goals, these are our blocking mechanisms.
As an example, an inducement mechanism that may hasten the shift to electric vehicles may be this pending comprehensive tax reform bill undergoing discussion in the Senate that increases the prices of diesel, thus making it uneconomic in the long-run to use engines dependent on. But the blocking mechanism is that there is no clear path towards the mass adoption of electric jeepneys, is it the cost that must be addressed or how about the skeptical attitude of people towards these new vehicles, especially when these electric jeeps are deployed in mountainous areas, or is that ever possible? These are the things that must be identified in this part of the analysis.

Step 6 : Specify key policy issues

In this last step, the ways how these inducement mechanisms may be enhanced or reinforced is subject of another policy intervention by government, or it may be the removal of blocking mechanisms, like, enabling the importation or technology transfer, of technologies that hasten the manufacture of electric jeepneys, for example. Of course, these examples will need to be further refined by technologists who are familiar with both the old technologies running our existing jeepneys and the new technologies on which our electric jeepneys may need so that they will spread.

This kind of analytical effort using the TIS framework towards identifying the various technologies that we need to shift to a new technology may need to be done at the national level by key agencies of government, in order to guide our efforts towards upgrading our technologies into something that will assist us attain our sustainability transition goals.



Anna Bergek, S. Jacobsson, B. Carlsson, S. Lindmark and A. Rickne, Analyzing the functional dynamics of technological innovation systems : A scheme of analysis. 2008. Research Policy, (37), 3, 407-429. http://dx.doi.org/10.1016/j.respol.2007.12.003, accessed 22 August 2016.

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What We Should Watch Out For in the Supreme Court’s Mindanao Martial Law Ruling

Elpidio V. Peria
9 July 2017


photo : EVPeria

The Supreme Court has beaten by a day its 30 day deadline to issue a ruling on the Mindanao Martial Law petitions and in bullet points are what the Supreme Court said in a decision dated 4 July 2017, in an 11-3-1 result which affirmed President Duterte’s Proc. 216 declaring martial law all over Mindanao

• The petitioners, particularly the legislators, have standing, that requirement in litigation which allows any court case to proceed;

• The petitions are proper and the “appropriate proceeding” to question the sufficiency of the factual basis of martial law; these petitions are characterized by the Supreme Court as “sui generis”, or what is usually meant as a unique or “of its own kind” category independent from the enumeration of the powers of the Supreme Court in article VIII of the 1987 Constitution; Justice Leonen, the lone dissenter, whose opinion for now matters only for purposes of academic discussion, said that petitions under Rule 65 of the Rules of Court, which questions any decision of a government official on the ground of grave abuse of discretion, may also proceed;

• In reviewing the sufficiency of the factual basis, the Court considers only that the information and data available to the President prior to or at the time of the declaration. It is not allowed to undertake an independent investigation beyond the pleadings.

• The SC can simultaneously exercise its power of review with, which is independent from, the power of Congress to revoke or extend the declaration

• The judicial power to review sufficiency of the factual basis does not extend to the calibration of the President’s decision of which among his graduated powers he will avail of in his decision; but later in this part of the decision, there is this paragraph that we should watch out for as it may be prone to abuse later :

“In a state of martial law, the President exercises police power which is normally a function of the legislature, with the military’s assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality which remains under the control of the State”

• Proclamation No. 216 cannot be challenged using the vague for vagueness doctrine as Proc. 216 does not regulate speech, religious freedom or other fundamental rights. It regulates conduct, not speech. This is a head scratcher – isn’t speech not conduct by voice and actions and words? But here is another paragraph in this part of the ruling we should watch out for :

“.. the lack of guidelines (for the Proc. 216) does not make it vague; there is no need to determine the constitutionality of the operational guidelines; any act committed under said orders in violation of the Constitution should be resolved in a separate proceeding.”

Justice Leonen, in his dissent, point out that in these operational guidelines, the military is also given the authority to : dismantle the NPA, illegal drug syndicates, peace spoilers and other lawless armed groups which are not in any way linked to the purported rebellion in Marawi; so, if any abuses are committed in pursuit of these actions by the military, one has to file separate cases for these, this is what the SC is saying.

• As to the scope of the Supreme Court’s power to review, the Court merely said that : “the Court cannot go further than satisfy itself not that the President is correct but whether it did not act arbitrarily; the Court is limited only to the “sufficiency of the factual basis” text which is based on facts or information known by or available to the President at the time he made the declaration, which facts or information are found in the proclamation as well as the written report submitted by him to Congress; … in determining the sufficiency of factual basis, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. But after this lengthy discussion, this is the one that takes the cake, sort of, here the Supreme Court as a whole prostrates itself before the President as it says: “ neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written report of the President”. Here’s another surreal statement after that surrender : “ it is irrelevant if subsequent events prove that the situation had not been correctly reported to him.”

Justice Leonen, in his lonesome dissent, was scathing as he said the government’s presentation of facts and their arguments of their sufficiency are wanting; first, there are factual allegations that find no relevance to the declaration of martial law; second, there are facts that have been contradicted by open-intelligence sources; third, there are facts that have no basis as they are not supported by credible evidence; Justice Leonen put forward his own test for factual sufficiency, he said, facts are sufficient when :

(a)It is based on credible intelligence;
(b)Taken collectively establishes that there is actual rebellion and that public safety requires the suspension of the privilege of the writ of habeas corpus

• The main ruling’s prerequisites for determining the sufficiency of factual basis are the following :

(a) Actual rebellion or invasion;
(b) Public safety requires it; these (a) and (b) must concur
(c) There is probable cause for the President to believe that that is actual rebellion or invasion

• The SC said there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for symbolic and strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in the Report, “[l]awless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages;” there is also the plan to establish a wilayat in Mindanao by staging the siege of Marawi

• The SC said that terrorism neither negates nor absorbs rebellion. To expand on this heading, the SC said rebellion may be subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate crimes. In fact, rebellion is only one of the various means by which terrorism can be committed.

Later on its explanation on this, the SC said this: even assuming that the insurgency in Marawi City can also be characterized as terrorism, the same will not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the Human Security Act of 2007 expressly provides that  “[n]othing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government.” Thus, as long as the President complies with all the requirements of Section 18, Article VII, the existence of terrorism cannot prevent him from exercising his extraordinary power of proclaiming martial ‘ law or suspending the privilege of the writ of habeas corpus. After all, the “extraordinary powers of the President are bestowed on him by the Constitution. No act of Congress can, therefore, curtail or diminish such powers.


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Some Not-so-Uplifting Questions About UP’s “Lady Oblation”

Elpidio V. Peria
28 June 2017

from : http://politics.com.ph/look-ups-oblation-statue-gets-uplift-female-version/

What was initially thought of as an enchanting work of art by artist Ferdinand Cacnio of UP’s “Lady Oblation” has just turned into a brawl on social media, pitting the supporters of the work against those who question the effort of the artist. We don’t want to contribute to the aggravation of the parties here as we hope to clarify what is the law that may be relevant to this situation, aware that this is merely one of many legal opinions on the issue that will eventually sprout, with the caveat that if push comes to shove and this goes to litigation, only the Philippine Supreme Court, as it should be, will have the last say on this matter.

We will approach this by directly answering some of the questions that may be lurking in the subconscious of all those who may be inclined to take sides on this issue :

1) Is it plagiarism?

This is the word that has been bandied about among those who attack the artist and those who claim otherwise, but if we ask Judge Richard A. Posner, a well-known US jurist sitting in the US Seventh Circuit Court of Appeals and a senior lecturer at the University of Chicago Law School, in his book, what else should it be named but The Little Book of Plagiarism, he admits the word is difficult to define. He cited the usual dictionary definition of the word which is “literary theft”, but that definition is incomplete because there can be plagiarism of music, pictures or ideas as well as of verbal matter. The definition is also inaccurate as there can be plagiarism without theft, and it is imprecise, because it is unclear what should count as “theft” when one is not taking anything away from someone but simply making a copy. Plagiarism is different from copyright infringement as there is considerable overlap among them.

For him, it is better to confine the meaning of the word to “nonconsensual fraudulent copying.” Ultimately, for Judge Posner, there is no legal wrong named “plagiarism” though it can become the basis of a lawsuit if it infringes copyright or breaks the contract between author and publisher. For our own intellectual integrity, when we proceed further discussing this, let us take the cue from Judge Posner and perhaps agree to call what Cacnio did as “creative imitation” via sheer coincidence.

2) What law applies here?

The artwork being done by a Filipino and apparently done here in the Philippines, the law on copyright, that species of intellectual property law dealing with creative works, Republic Act 8293, or the Intellectual Property Code, apply in this case.

3) Who has the burden of proving there is copyright infringement in this case?

Philippine laws on copyright, embedded in Republic Act 8293, is a special law, but with criminal penalties. Those who may allege copyright infringement is engaging in a criminal proceeding, thus the burden is on the side asserting there was copyright infringement, which may be the artist from whose work in the Netherlands the UP Lady Oblation was purportedly copied, or any of her supporters.

4) Can such Dutch artist, living abroad, enforce  her copyright,  on the Filipino artist, in the Philippines?

A requirement in Philippine law, to be able to sue for copyright infringement, is that one must have a valid copyright. In a recent case of Sison Olaño, et.al v. Lim Eng Co, G.R No. 195835, March 14, 2016, for a claim of copyright infringement to prevail, the evidence on record must demonstrate: (1) ownership of a validly copyrighted material by the complainant; and (2) infringement of the copyright by the respondent.

In another Supreme Court case, Ching v. Salinas, Sr. (500 Phil 628, 639 [2005]), ownership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least same minimal degree of creativity. Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. The applicant must thus demonstrate the existence and the validity of his copyright because in the absence of copyright protection, even original creation may be freely copied.

The question here is, does the Dutch artist have a copyright over her work ? Assuming she has such copyright which we should presume is granted to her under her law, which is Dutch, the more important question is : can such rights arising from a foreign law be enforced here in the Philippines? The answer will have to be no, since intellectual property laws are territorial in application, meaning they can only be asserted and enforced in the country where is it issued.

Questions on what or how International law may apply should proceed with an inquiry whether both Philippines and the Netherlands have ratified the Berne Convention for the Protection of Literary and Artistic Works, the relevant international treaty on copyright, and since the main parts of this Convention is also made part of the TRIPS Agreement of the World Trade Organization or WTO, then, perhaps, if the plaintiff is determined, her country will take this up under the dispute settlement process of the WTO. This is a far-fetched thing so we should leave it at that.

5) What does this say about the bigger question concerning creativity and the creative process, are we really that free to create things and be inspired by what has come to our senses, without acknowledging them and claiming it as our work?

As free and capable individuals, we should be able to create any work that should suit our desires, but Judge Posner in his book that we have cited noted the rise of a cult of personality in this era of modernity where each of us think that our contribution to society is unique and so deserves public recognition, which is clouded by plagiarism. He did not condemn it though, which was not his style, but proceeded merely to find ways where such tendency does not go overboard and is tempered by existing laws and norms, including the existing laws on copyright.

The law on copyright was intended to balance the right of the creator and that of the public since, after a certain period of time, all creative works pass into what is called the “public domain”, a different concept from what natural resources advocates are pushing, but it consists all creative works whose copyright has expired and are thus free for others to use or appropriate for their works of creation.

How then should we resolve this? ABS-CBN has helpfully posted a report of other “Levitating Ladies”, which we would encourage the detractors and supporters of UP’s “Lady Oblation” to examine. We have seen those other ladies and if we may be allowed to hazard an opinion, Cacnio’s work has that mystical quality absent in all similar floating sculptures be it in the Netherlands, the UK or the US. For whatever it is worth, let us instead congratulate him for what he has done, it seems his work will become eventually famous, this kind of controversy is a good way to introduce these kinds of work that will not only enhance the prominence of the work but will encourage more people to examine the work closely and take their obligatory selfies with it, which is what we will do if we happen to pass by UP Diliman once we get there sometime.

There’s another thing we would say that this controversy has become reflective of our modern or is it post-modern sensibilities, no one seemed to have been bothered that the lady is naked and has taken that for granted. That is one advance we should also applaud.


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Perhaps the Crime is Cyber-Inciting to Sedition, but it may be unconstitutional

Elpidio V. Peria
21 June 2017

from : http://dict.gov.ph

DICT Secretary Rodolfo Salalima was in the news lately as he said his Department may use the Cybercrime Act to arrest individuals for posting seditious materials online, and the crime is cyber sedition. Is there such a crime?

A basic rule in criminal law is encapsulated in the Latin maxim “nulla poena sine lege” or what is commonly translated as “no penalty without a law” which means one cannot be punished for doing something that is not prohibited by law. Is Sec. Salalima correct in what he was saying recently?

First thing we have to examine is the Cybercrime Act itself or Republic Act 10175 and it there says in sec. 6 and also sec. 7 :

All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The DICT Secretary is correct in saying that the crime of sedition, being a crime penalized under the Revised Penal Code, in sec. 139, if committed through and with the use of information and communications technologies, may come under sec. 6 of the Cybercrime Act, thus his term cyber sedition, minus the hypen, or that may be the editorial judgment of the newspaper editors who wrote up such news report.

But let’s examine further if posting seditious material online can really be considered seditious. Let’s look at the elements of the crime of sedition and per our handy Revised Penal Code hornbook Luis B. Reyes (2012 18TH ed.) indicates, they are the following :

1. That the offenders rise (1) publicly and (2) tumultuously;
2. That they employ force, intimidation, or other means outside legal methods
3. That the offenders employ any of these means to attain any of the following objectives:

a) To prevent the promulgation or execution of any law or the holding of any popular election;
b) To prevent the national government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any executive order;
c) To inflict any act of hate or revenge upon the person or property of any public officer or employee
d) To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and
e) To despoil, for any political or social end, any person, municipality or province, or the national government, of all its property or any part thereof.

The immediate problem from this enumeration is that, can the element of rising publicly and tumultuously be done, using the key operative verbs of the Cybercrime Act, “by through and with the use of” online methods ? We believe it cannot be done in such manner, thus any criminal prosecution for cyber sedition will most likely fail because of the failure to prove this key first element of the crime of sedition.

The remedy for the lawyers of the DICT here may be to cite instead art. 142 of the Revised Penal Code, the crime of inciting to sedition, which has the following elements :

1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.
2. Uttering seditious words or speeches which tend to disturb the public peace;
3. Writing, publishing or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

What the lawyers of the DICT may also invoke is that when the words uttered or speeches delivered or scurrilous libels published have the tendency to disturb any lawful officer in executing the functions of office, etc., it is not necessary, to constitute a violation of art. 142, that the purpose of the offender is to accomplish any of the acts of sedition. This is because, according to Luis B. Reyes, the second part of art. 142, which defines other modes of committing the crime of inciting to sedition, does not require it.

But looking further at the big picture regarding the Cybecrime Act, the Supreme Court in the case of Disini, et.al. v. The Secretary of Justice, et.al. G.R. No. 203335, February 11, 2014, actually nullified some of its provisions and in the case of sec. 7, one of the legal anchor of DICT Sec Salalima for filing cyber sedition or cyber inciting to sedition, the Supreme Court has this to say about this provision:

the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,

For those who may now be prosecuted for cyber inciting to sedition, one approach for the defense may be to use the same argument as what the Supreme Court said in this case cited above on the constitutionality of the Cybercrime Act, in declaring as unconstitutional the cybercrime acts of online libel in art. 353 of the Revised Penal Code and child pornography on the ground of double jeopardy, the prohibition stated by the Constitution against being prosecuted twice for the same acts.

It is all up to the trial court though, to decide and perhaps, if the defense counsel is determined, to see whether the Supreme Court may agree.


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Secrecy in the SC Martial Law Hearings Was Not What the Constitution Intended

Elpidio V. Peria
18 June 2017

TV and other media crew excluded from the executive session in the Supreme Court last June 15, 2017  (PHOTO : EV Peria)

The 3rd day of oral arguments for the Mindanao martial law petitions before the Philippine Supreme Court was mainly done in executive session thus the media and the public was denied the opportunity to look at the supposed disclosure of matters relating to national security that was presented that day by DND Secretary Lorenzana to the Justices of the Supreme Court.

To assuage the concerns that may result from excluding the public from these deliberations, the Supreme Court allowed nonetheless petitioner Congressman Edcel Lagman and Solicitor-General Calida in the executive session.

This is a problem since the public was not able to get a clear glimpse of the sufficiency of the factual basis for this declaration of martial law and understand fully what is happening in the country unless the Justices may mention it in their ponencia later as justification for whatever they may rule on this issue. But if the Justices will mention those secret matters in their decision to justify their ruling, then what was the point for the secrecy anyway, and whatever happened to transparency in governance if, on grounds of national security, certain facts and information relating to an important matter of public interest such as martial law may be excluded from the public?

If we follow the logic for such exclusion of the public in the 3rd day of oral arguments on the martial law case, then the Justices cannot disclose such sensitive information when they write their decision on this case, and if that is so, then how may the public fully understand the ruling which the Supreme Court will have to do by July 5? More importantly, the public may not forever get a glimpse of what may have actually swayed the President into declaring martial law and get a full sense of the gravity of the situation as the President has seen it. To the critics of the President, this may confirm their suspicion that the President acted rashly, but to the devotees of the President, this will only confirm that the President acted decisively. Both these groups of Filipinos were short-changed by the Supreme Court when they were excluded when Sec. Lorenzana made his presentation.

Let us remember that the Marcos Martial Law declaration was built on exaggerations and false pretenses and outright lies, including that ambush by then DND Secretary Juan Ponce Enrile who admitted it was faked, so that it will foster a sense of panic nationwide that served as one of the justifications for such declaration.

The framers of the 1987 Constitution was aware of that fact thus, they empowered any citizen, to petition the Supreme Court to inquire upon the sufficiency of the factual basis for the declaration of martial law. With that executive session held last Thursday, 15 June, this constitutional mandate was not followed.

This act of excluding the public in that important phase of the hearing may result in the public not really accepting the final result, whether it may be for upholding or revoking the declaration of martial law. If this happens, then it is quite unfortunate, there was a chance for the Supreme Court to really put to life this 1987 Constitutional provision on martial law, it may have bungled it somewhat.


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Mindanao Martial Law Petitioners Had A Difficult Day Fielding Procedural Questions in the SC

Elpidio V. Peria
13 June 2017

(PHOTO: EVPeria)

In day 1 of the Philippine Supreme Court oral arguments today on the Mindanao Martial Law petitions questioning the sufficiency of the factual basis for the declaration of martial law by President Duterte, we left while Justice Bersamin, the fifth Justice to interpellate from the morning’s oral argument, was still grilling Atty. Cortez, one of the lawyers of the Petitioners, as we don’t want to get stuck in traffic from Taft Ave to Banlat, T. Sora, but what stood out from the exchanges today between the Justices and the lawyers of the petitioners was the uncertainty faced by the Supreme Court Justices on whether there is an “appropriate proceeding” before the Supreme Court, for them to review the President’s declaration of martial law in Mindanao.

In the initial presentation of the petitioners’s arguments led by Congressman Edcel Lagman in the morning, he briefly touched on what is the procedural basis for their legal action and he just said that this is the appropriate proceeding as there is a special and specific grant of jurisdiction by the 1987 Constitution to the Supreme Court which is different from what is provided for in sec. 1, Art. VIII of the 1987 Constitution to the Judicial Department. That provision in sec. 1, Art. VIII is usually memorized by law students for the bar exam as the ultimate grant of authority by the 1987 Constitution to the Supreme Court to exercise its judicial power “which includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amount to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

While this appeared to be clear-cut and easy, the series of questions by the second Justice to interpellate Congressman Lagman, Justice Bernabe, laid out the problems with that stance, who initially asked : how will you treat this petition, to which Cong. Lagman said, in a class by itself, your Honor.

She then followed up, she said that in the 1987 Constitution, the term used is “appropriate proceeding”, isn’t this a special proceeding to establish a status or fact, to which Cong. Lagman said : the transcript of the Constitutional Commission should have clarified that, but this is only with respect to the sufficiency of the factual basis for the declaration of martial law.

Not satisfied, Justice Bernabe quipped : couldn’t the framers have used the term “appropriate action” instead? Cong. Lagman said that but such a term is for ordinary petitions but this petition is not such petition.

Justice Bernabe then asked, what do you mean by “sufficient factual basis”, isn’t this the same as “proof beyond reasonable doubt” or “preponderance of evidence”, to which Cong. Lagman responds, the Constitution gives freedom to the Supreme Court to decide what kind of standard to apply in determining the sufficiency of factual basis. Later, Cong, Lagman adds, it should be probable cause based on the dissent of Justice Carpio in the Fortun v. Macapagal-Arroyo.

This kind of question by Justice Bernabe indicated one of the procedural issues faced by the Supreme Court, on what kind of evidentiary standard they should apply to this kind of petition. This evidentiary standard is the usual standard used by Philippine courts in deciding cases, if it’s “proof beyond reasonable doubt”, it’s usually used in criminal cases where the liberty of a person is about to be deprived and this is a high threshold of evidence such that if there is any small amount, which courts and lawyers usually call scintilla or very small amount, of doubt, on the guilt of the accused, the accused is set free. If it’s preponderance of evidence, which is used in civil cases, this is determined by how many pieces of evidence are there to support the winning side, compared to the losing side, which usually does not have as many pieces of evidence compared to the winning side.

On this point of probable cause mentioned by Cong. Lagman, Justice Bernabe retorted, but that’s for the President to use when she gathers facts which she may then use as basis to declare martial law, that is not for the Supreme Court.

She then asked, who has the burden of proving sufficiency of factual basis, to which Cong. Lagman says, the respondents, or the Party that makes the declaration of martial law.

To which response, Justice Bernabe asked, so you don’t apply the dictum that who alleges something has to prove what he is saying and on this, we somehow noticed that Cong. Lagman seemed at a loss for words and then Justice Bernabe followed that up with : what about the dictum that government actions are presumed valid and the burden is on the other side which alleges the reverse of that presumption? Actually here, it seemed Cong. Lagman did not answer or we may have missed taking notes at this stage.

Justice Bernabe was just warming up, she asked another point – what’s the deference that the Court should give to the President given that he has access to the facts, to which Cong. Lagman said the Court should give the President ample deference but the Supreme Court will have to exercise its special and specific jurisdiction to determine the sufficiency of the factual basis of the declaration. Hearing Cong. Lagman say this at this stage indicates to the skeptic that actually Cong. Lagman does not anymore know what he is saying and he is now relying on formulaic words from the Constitution hoping perhaps that this kind of questioning will stop.

But here’s more from Justice Bernabe : should we not give weight to those reports made by the President to Congress? Cong. Lagman said that the sufficiency of the factual basis should be based on Proclamation 216 and the President’s Report to Congress.

There were a lot more questions asked by Justice Bernabe on other aspects of the case but one important procedural point asked by Justice Bernabe which surprisingly she did not press as hard as the other procedural issues she raised was her question on the source of the reports of petitioners for their allegations that some incidents in the President’s report to Congress was inaccurate, particularly the incidents in the Amay Pakpak Hospital and in the Marawi Public Elementary School, to which Cong. Lagman only said these are from the disclaimers of the people involved in these mentioned entities.

Later in the afternoon, this was hammered on by Justice Bersamin, particularly on whether the Court can take judicial notice of these incidents, but we did not anymore take note what Atty. Cortez had to say on it as we already left, it was already 4pm. What stuck out to our recall in the earlier exchanges between the two was the difficulty encountered by Atty. Cortez in giving concrete answers to Justice Bersamin, like when he asked, so how many pages do you think the Proclamation should be so that there is sufficient factual basis for such declaration, to which Atty. Cortez did not give any concrete answer.

One final point on the procedural issue pointed out in the exchange between Justice Leonen and Atty. Marlon Manuel of the Alternative Law Groups was on the question by Justice Leonen that since the grant of power to the Supreme Court by the 1987 Constitution is supposed to be exclusive, and this is what is stated in sec. 1 of Article VIII which deals with the Judicial Department, but if the Supreme Court will then now agree with petitioners that the grant of power to the Supreme Court in the martial law provision of the 1987 Constitution in sec. 18 is another grant of power to the Supreme Court, but of its own sui generis or specific, particular kind which is not the same as what is stated in sec. 1 of Article VIII, then, all along the Supreme Court is wrong in understanding that such enumeration in sec. 1 of Article VIII is exclusive, since in reality it is not exclusive.

The answer by Atty. Manuel to this is brilliant, he just said, yes, that power is not exclusive, especially so when the statement granting that power is predicated by the verb “includes”. To one reading this sentence, to have that word means there are other enumerated powers which can be found in the document we are reviewing, in this case the 1987 Constitution.

Over-all, it was a great day for the 1987 Constitution today at the Supreme Court, and we are lucky, or perhaps we are now benefiting from the lessons of the previous Martial Law, that the Supreme Court can still function as it did today and it is not in any way in danger of being rendered irrelevant by these so-called vicissitudes and passions of the times


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