Finding Out the Location of Some Medicinal Plants in the Philippines

CURRENT BIODIVERSITY CONCERNS
Elpidio V. Peria
8 March 2017

Akapulko, from http://www.philippineherbalmedicine.org/akapulko.htm

For those who may be curious on the subject, it should not be difficult to find where medicinal plants are found in the Philippines as they appear to be everywhere all over the country. The first step is to know how many medicinal plants are there in the country and from there it can be figured out where they may be found based on other information.

As a start, we may look at an overview paper by Eusebio and Umali in 2004, where they said that in the Philippines, there is an estimated over 1500 plant species that have known medicinal value. In a survey conducted by UPLB in 766 barangays or villages in 12 regions of the country, 1687 plants (based on common names) were found being used by local traditional healers or arbularyos. Of this number, only 120 medicinal plants have been scientifically validated for safety and efficacy. This may be a good starting point for drawing up a list where these plants may be found, with the aid of other studies and tools.

There is also the ten medicinal plants endorsed by the Department of Health because they have been scientifically validated by Philippine researchers and if we look at them one by one, from . Akapulko (Cassia alata), Ampalaya (Momordica charantia), Bawang (Allium sativum), Bayabas (Psidium guajava), Lagundi (Vitex negundo), Niyog-niyogan (Quisqualis indica L.), Sambong (Blumea balsamifera), Tsaang Gubat (Ehretia microphylla Lam.), Ulasimang Bato | Pansit-Pansitan (Peperomia pellucida) and Yerba Buena (Clinopodium douglasii), it appears that they are so common as to be most likely available all over the country.

One of these studies that will aid the search for the location of these plants is the use of the local names where these plants may be found. Dr. Domingo A. Madulid, a well-known ethnobotanist, wrote in 2005 about the uses of vernacular plant names, among which is its use in tracing the origin and history of place names, among other uses. The local names, notwithstanding its limitations, is a useful information source for the possible location of a medicinal plant, though if one wants to establish if such plant originated in such a location, it will take a different kind of research to achieve that goal

Still another way of finding out where these medicinal plants may be found is through a focused study of identified areas in the Philippines which are known to be the location of identified indigenous communities. One of these studies was done by Balangcod and Balangcod in 2011, where they looked at the practices of one indigenous society in Ifugao, the Kalanguya, who have a long tradition of using medicinal plants. In this study, they described the ethnomedicinal importance of 125 plant species and healthcare practices done by their Ifugao informers with ages ranging from 16-90 years.

There will be a lot more ways to find out the location of these plants and back in various workshops that we have attended on the topic of biopiracy in over two decades of engagement on this issue, indigenous peoples and the support organizations working with them do not generally welcome these kinds of efforts to systematically search the location of where these plants are found as they are usually seen to facilitate or make easy the biopiracy of their resources.

What will the harried government or even private researcher do in this kind of situation? Perhaps it is best that the free and prior informed consent of communities be secured first before inquiries are made where these resources may be found, though disclosure of a location will not immediately mean that there is already consent to get the plant, that should be clear to the researcher who may wish to undertake an ethical way of doing these things. In case no consent is given, that should be the end of the inquiry, perhaps the researcher may just want to move on to the next subject item in his or her study.

Another way that can be done about this is for government to fund a specific effort to put together all these ethno-botanic studies or databases of various agencies of government and make these studies or databases cross-linked or cross-referenced with each other. In such a situation, a researcher need not have to move from one database to another to gather the information necessary for any research related to medicinal plants.

OoO

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Find Out What This 100-year old Philippine Law Journal Article Said With a Twist on the Death Penalty

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
5 March 2017

death-penalty-horizontal

from : http://www.themediaproject.org

As the return of the death penalty has been hugging the news lately, we looked for some write-ups looks at the issue even-handedly and we found one in an almost a hundred year old law journal article, in the Philippine Law Journal, a student-led law journal of the University of the Philippines College of Law and there in its December 1917 issue (On the Abolition of the Death Penalty, Vol. IV, No. 5, pp 169-175), penned by an Associate Professor, M.H. De Joya, is a prescient and still relevant discussion of the pros and cons of the death penalty , with a surprising twist in the end, he said the prisoner carry out the penalty himself!

De Joya divided the camps debating the death penalty into three :

– the first group he called the conservatives, who sought for the preservation and effective use of the death penalty, found their justification for the death penalty not only on the grounds of Nature and History, but also on the ground of deterrence and the consequent decrease and diminution of criminality and the so-called artificial selection eliminating the desirable and the unfit to secure the improvement of the individual and society, considering the penalty imposed as a retribution for the proper defense of society;

– the second group he called the radicals, deny the defensive efficiency of the death penalty as a deterrence, and allege that by making public executions more or less dramatic, they tend to increase criminality by force of example and imitation, converting the criminal into a sort of a hero among the uneducated classes; and that, at most it has no effect on the increase or decrease of criminality and its suppression; and that it is inhuman and revolting and might cause irreparable loss in case of mistake or a miscarriage of justice, citing furthermore the reluctance of courts and juries in imposing the death penalty, often-times acquitting the defendant rather than take the responsibility for his death, and invoking likewise the ever-growing regard for human life and personality.

– the third group he called as holding the middle ground, who argue that it should be applied only in extreme cases- in meritorious cases- preserving it as a sword of Damocles, and a warning to everybody as a punishment that might be possibly be inflicted at any time.

The author then proceeded to examine the validity of the arguments of all three camps but he came to the conclusion that the justice and necessity of capital punishment is justified by Nature and History, including the improvement and defense of the individual and of the race, that it deters criminals and tends to reduce criminality. Responding to the abolitionists’s objections, he suggested that executions should not be made publicly or in the view of the multitude and that other means should be employed such as electrocution or the use of poison and that the prisoner should be permitted to choose the manner in which he shall die, provided the one selected by him is one of the two (electrocution or poison) and that his death, if possible, should be brought about by himself. Then there would be no necessity for the executioner, and prison officials would be relieved of their most revolting and undesirable duty.

Save for the surprising way in which the author tried to relieve the undesirable aspects of the death penalty, the suggestion that the accused himself carry out the penalty may most likely now run afoul of our 1987 Constitution which provides in sec. 19 (1), Article III on the Bill of Rights that no “cruel, degrading or inhuman punishment” be inflicted.

That same article of the Constitution actually already abolished the death penalty but provided a qualifier that, for compelling reasons involving heinous crimes, the Congress may hereafter provide for it.

Now, with the emerging picture on the reimposition of the death penalty focusing on drug-related heinous crimes, based on de Joya’s almost-100 years old write-up, the House of Representatives who supported the bill on the reimposition of the death penalty have taken the side of the 3rd group, that we wanted this death penalty as a sword of Damocles, to warn potential offenders of the harsh consequences of their activities.

Would this rationale for the restoration of the death penalty for drug-related heinous crimes truly serve as an effective warning and possible deterrent given our current realities where the much-vaunted Oplan Tokhang was suspended because the police, as shown in the case of the Korean businessman who was also subjected to extortion, were involved in turning the well-meaning program into a mechanism for the preservation and perpetuation of its corrupt practices?

If there’s an unqualified answer to that question, then perhaps this bill should forthwith proceed, but if the answer to that will be couched in numerous conditions and justifications, then, maybe the focus of reform should be on the police and the penal institutions that we currently have. Whatever happened to that supposed updating of our old and creaking 1930 Revised Penal Code? If only Congress focused its attention to that….

oOo

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1 of 3 Things the Commission on Appointments May Do to DENR Sec. Gina Lopez Today

CURRENT POLITICAL CONCERNS
Elpidio V. Peria
1 March 2017

commission-on-appointments

From : http://www.globalnation.inquirer.net.

The Commission on Appointments, a Constitutionally-mandated body tasked to screen identified appointments by the President, can either not act on, suspend or reject DENR Secretary Gina Lopez’s appointment set to be heard by the Commission today.

Checking the Rules of the Commission on Appointments and Rules of the Standing Committees, from the website of the Commission itself, the actions described above are fully set out in secs. 17 (no action), 20 (suspension) and implied from sec. 23 in the said document if the votes against the Cabinet Secretary will outnumber those who are in favor.

In case the Commission will not act on the appointment, here is what will happen, from sec. 17 of the Rules :

SECTION 17. UNACTED NOMINATIONS OR APPOINTMENTS RETURNED TO THE PRESIDENT. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission.

In this situation, the appointment will be returned to the President, who may decide to nominate or re-appoint the Secretary anew.

Now, suppose the Commission decides to suspend consideration of the appointment, the rules in sec. 20 state :

SECTION 20. SUSPENSION OF CONSIDERATION OF NOMINATIONS OR APPOINTMENTS. Any member may move for the suspension of action by the Commission on any nomination or appointment favorably recommended by a standing committee and the Chairman shall suspend the consideration of said nomination or appointment: Provided, that, such suspension may be taken up on the next succeeding session of the Commission; Provided, further, that this section shall not apply to nominations or appointments taken up by the Commission during the last session prior to a sine die adjournment of Congress

What will happen in this situation is that the suspension will be taken up in the next succeeding session of the Commission. The second proviso dealing with the sine die adjournment of Congress refers to appointments that were taken up by the Commission before the end of one session, or an adjournment of a previous session of Congress.

For the curious, if we ask Richard S. Beth and Jessica Tollestrup, sine die adjournment means :

xxx.. “an adjournment that ends an annual session.” The literal meaning of “sine die” is “without day;” the implication is that the session is adjourning without having set any day for a subsequent meeting. When a chamber has established no date on which to return for any further meeting of the same annual session, the consequence is that it will not meet again until it assembles for its next annual session.

Accordingly, an adjournment sine die necessarily brings an annual session to an end, and when Congress reconvenes after an adjournment sine die, a new annual session begins; for instance, the sine die adjournment of Congress in December 2009 terminated the first session of the 111th Congress, and when Congress next assembled in January 2010, it thereby began the second session of the 111TH Congress. (author’s note : this refers to the US Congress, from which our own Congress borrows much of its procedures, practices and norms)

The third scenario, of rejection, is the end of DENR Secretary Gina Lopez, though this may take some time, as the Commission is now duty-bound to hear the testimonies of Mr. Rodolfo RJ Javellana, Mr. Manuel J. Galvez and Mr. Marion Karlo R. Cruz, et.al. as can be found in the notice of resetting of the supposed session of the Commission on Appointments last February 13, 2017. This could be a long drawn-out process considering that there could be many more witnesses that may be heard by the Commission.

Interestingly, the rules are not explicit about hearing testimonies FOR the nomination and only those who will OPPOSE the appointment are requirement to make their opposition under OATH, this is to make these oppositors liable to perjury (lying under oath) in case it may be proven that the oppositions talked about untruths and falsehoods. Ultimately, this will boil down to the Commission members if they wish to skip listening to the oppositors and decide as earlier or will give a chance to Sec. Gina Lopez to respond to those opposing her nomination.

Based on the list of the Standing Committee on Environment and Natural Resources to which Sec. Gina Lopez’s appointment is first referred, these are : Chairman – Sen. Emmanuel D. Pacquiao, Vice Chairman – Rep. Benhur L. Salimbangon and members, Rep. Joel Mayo Z. Almario, Sen. Paolo Benigno “Bam” Aquino IV, Sen. Alan Peter “Companero” S. Cayetano, Sen. Franklin M. Drilon, Sen. Joseph Victor G. Ejercito, Rep. Antonio R. Floirendo, Jr., Rep. Wes Gatchalian, Sen. Gregorio B. Honasan II, Sen. Panfilo M. Lacson, Sen. Loren Legarda, Rep. Rosenda Ann Ocampo, Sen. Francis “Kiko” Pangilinan, Rep. Josephine Y. Ramirez Sato and Sen. Juan Miguel F. Zubiri

Ex –officio members of the Committee are : Vice-Chairman Rep. Ronaldo B. Zamora; Majority Floor Leader Rep. Rodolfo T. Albano III, Asst. Majority Floor Leader Sen. Vicento C. Sotto III, Asst. Majority Floor Leader Rep. Abraham “Bambol” N. Tolentino, Minority Floor Leader Sen. Ralph G. Recto, Asst. Minority Floor Leader Rep. Julieta R. Cortuna and Asst. Minority Floor Leader Rep. Jerry P. Trenas. The Commission Chair is Senate President Koko Pimentel.

oOo

 

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The Debate on Which Court Has Jurisdiction Over Sen. de Lima’s Case

CURRENT POLITICAL CONCERNS
Elpidio V. Peria
26 February 2017

sandiganbayan

from : http://www.philstar.com

Should it be the Sandiganbayan or the Regional Trial Court? How this conundrum is resolved will depend on how the drug trafficking cases filed by the DOJ against Sen. Leila de Lima will be decided by the three branches of the Regional Trial Court in Muntinlupa. This, in turn, will depend on what criminal offense against Sen. De Lima will have probable cause, a legal standard which does not mean absolute certainty over what crime has been committed, but only the most likely crime she may be guilty of based on the evidence presented.

News reports indicate Sen. De Lima has already filed motions to quash (similar to a motion to dismiss in civil cases) on these cases asserting that it is the Sandiganbayan that has jurisdiction over her.

Examining closely the law creating the Sandiganbayan, a special court created in 1978 during the time of President Marcos tasked to handle exclusively cases against government officials, its most recent iteration in 2015, through Republic Act 10660, from the original Presidential Decree 1486, which got amended by Presidential Decree 1606, and later by Republic Act 8249 in 1997, lists down the cases on which it has exclusive original jurisdiction :

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a. of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986

We looked up what these Executive Orders in 1986 refer to and they deal with the ill-gotten wealth relating the Marcoses and their cronies.

Most likely, the lawyers of the lady Senator are arguing that what she should be tried on should be bribery, which is what is what is referred to in that seemingly innocuous Chapter II, Section 2, Title VII, Book II of the Revised Penal Code.

In filing these cases, the DOJ seemed to have adopted a more expansive strategy, filing 3 cases in 3 different salas or courts will make it difficult to have a uniform outcome that can be uniformly appealed, there will always the possibility of an outlier result that will not be favorable to her. Most likely, Sen. De Lima may have her way in one or two courts ruling in her favor but three, that is a tough, uphill climb.

Eventually, her lawyers may ask that these cases l be consolidated in one sala so that the diversity of outcomes will be avoided, it will be an interesting education in legal strategy how these cases will unfold.

The DOJ or the President’s legal team, maybe Atty. Panelo, can also open up another front in the Senate, where they may try to censure Sen de Lima for ethics violations or perhaps the House of Representatives, where an impeachment complaint may be initiated against her.

These moves however will depend on the outcome of the current court cases against her, so, to prevent us from further speculating, let us await what will happen in the regional trial court in Muntinlupa. Why Muntinlupa, of all places? It is the place where the National Bilibid Prison is located, and in criminal cases, where the crime is committed, in this case, bribery or drug trafficking, was alleged to have been committed, will be the venue or location of the court where the case will be handled.

What is guaranteed here, given our snail-paced justice system, and the various legal maneuvers that will be employed here that will reach up to the Supreme Court, is Sen. De Lima continued media exposure for the next, perhaps the entire six year term of President Duterte.

They may have jailed her for now, but, judging from the way Sen. De Lima waved to her supporters as she was being transported to her place of custody from the court, President Duterte may have only clarified in the public’s mind who will be up against Sen. Manny Pacquiao (given that President Duterte has been egging on the neophyte Senator to run) in 2022.

oOo

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Were the Miners in the Philippines Given Fair and Equitable Treatment by DENR Sec. Gina Lopez ?

CURRENT INVESTMENT CONCERNS
Elpidio V. Peria
22 February 2017

secgina

from : http://philnews.ph

The mining companies in the Philippines whose operations were closed by DENR Secretary Gina Lopez recently should now be content that their due process rights are being taken cared of by the Office of the President. While they may be hoping that the President may reverse the decision of the DENR Secretary, there was one distraught-looking lawyer of a mining company on TV we saw last week who vowed they will sue the Philippine government for affecting their investments in the country.

When we heard this, our first reaction was, this fellow is not bluffing – he appeared to be determined in doing it and most likely he is already researching the legal arguments that he will use that will go beyond the due process argument they are saying were violated by Sec. Gina Lopez. With the Office of the President already reviewing the DENR Secretary’s decision, the due process argument is passé, or to put it in legal terms, that point is moot and ineffective.

When that lawyer talked about laws protecting investments in the country , the immediate legal principle that will be put in play in this soon-to-be suit that will most likely be filed, among other legal arguments, but for this post we will only focus on this, is the fair and equitable treatment or FET principle.

According to Prof. Moshe Hirsch of the Hebrew University of Jerusalem writing in the Journal of World Investment and Trade (Research Paper No. 07-13, June 2013), the FET clause has existed as a ‘sleeping beauty’ in bilateral treaties since the end of World War II but it is only since 2000 that investment tribunals have applied it to a broad range of circumstances. Currently, this principle is included (though in diverse contexts and different wordings) in the great majority of bilateral investment treaties (BITs) as well as in major multilateral investment treaties (such as the NAFTA and the Energy Charter Treaty) and it is the most frequently invoked standard in investment disputes.

In the case of the Philippines, one regional agreement where this principle is found is the ASEAN Comprehensive Investment Agreement (ACIA) signed by the Philippines with other ASEAN member-states in 2009 and in that regional treaty, fair and equitable treatment requires each Member State not to deny justice in any legal or administrative proceedings in accordance with the principle of due process.

Considering our earlier point that the due process argument is already moot given that President Duterte through the Office of the President has already provided that relief and is currently reviewing the DENR Secretary’s decision, the FET principle is one legal argument that may still be pursued by the mining companies.

The United Nations Conference on Trade and Development (UNCTAD) came up with an update of its backgrounders on key principles of international investment agreements in 2011 and its study of the cases in investment tribunals that dealt with the FET principle identified some state actions that are not considered fair and equitable treatment :

(a) Defeating investors’ legitimate expectations (in balance with the host State’s right to
regulate in public interest);

(b) Denial of justice and due process;

(c) Manifest arbitrariness in decision-making;

(d) Discrimination;

(e) Outright abusive treatment.

Of all these actions, it seems the only argument that may be pursued by the mining companies is the item dealing with the investors’ legitimate expectations, but even that has some elements to it as pointed out too by UNCTAD :

(1) Legitimate expectations may arise only from a State’s specific representations or commitments made to the investor, on which the latter has relied;

(2) The investor must be aware of the general regulatory environment in the host country;

(3) Investors’ expectations must be balanced against legitimate regulatory activities of host countries.

We cannot comment, as we don’t have information, on what may have been the representations made by the Government or any of its agencies, to the companies when they made their investments in the country but items (2) and (3) above will make the mining companies’ arguments of legitimate expectations difficult. The UNCTAD update even emphasized that the FET obligation does not prevent host States from acting in the public interest even if such acts adversely affect investments. This is an important qualification to the legitimate expectations approach, according to UNCTAD.

For all intents and purposes, Sec. Gina Lopez was acting in the public interest when she said that these closed mining operations were not complying with the rules set by the DENR, like operating in watersheds, among other violations. Any state action that involves enforcement of existing rules that were violated is something that no legitimate expectation of an investor can overcome. Notwithstanding this, in all likelihood, this FET argument will still be tried and there may be facts that may put other elements of the FET principle in play but for all appearances, this is not one strong argument that may carry the day for the mining companies.

oOo

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The Public May Access Project NOAH’s Weather Data Anytime and It Is Subject to Fair Use

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
19 February 2017

noah

from : http://noah.dost.gov.ph

Lost in the bunong-braso (arm-wrestling) of a debate between the DOST and Project NOAH scientists on what should happen to the weather data generated by the project is the discussion of fair use, a key principle of our law on copyright that should have been clarified at the outset by the DOST when it brandished its data sharing policy that somehow reiterated the DOST’s imprimatur on any form of sharing of the data, which according to a news report, enables the DOST to “restrict the release of proprietary data (and) maintain confidentiality of proprietary Information.”

That same news report noted that this stance is borne about by DOST’s Data Sharing Policy that is spelled out in DOST Administrative Order No. 003, series of 2015.

Examining closely the said policy, the policy can be said to have an amnesia on, or it has clearly overlooked, the public or the general data user’s right to fair use, a key principle of copyright law that is mandated by our Intellectual Property Code, or Republic Act 8293, as amended.

What is fair use and is it the same as free use ?

Fair use, as explained by Patricia Aufderheide and Peter Jaszi in their book Reclaiming Fair Use : How to Put Balance Back in Copyright (2011, University of Chicago), is an exemption that applies to all of a copyright owner’s monopoly rights, including the owner’s right to control adaptation, distribution and performance.

Aufderheide and Jaszi also said that there are actually two kinds of fair use, one is your right to do with copyrighted material what you will for personal purposes and another is when you reuse copyrighted material in the process of making something else.

Fair use is the same as free use, if what we mean by free use is a situation where the copyright owner cannot ask for money in exchange for the invocation of said right, as it is the law on copyright itself that gives the public such right.

But fair use has certain limits so it is not exactly the same in operational terms as free use, like unfettered use or use without any conditions.

In fact, the current Philippine Intellectual Property Code provision on fair use which is in sec. 185.1, the ability to get “multiple” copies of any copyrighted material for classroom use, scholarship, research and similar purposes has now been restricted to “limited”, though it is not clear if there are guidelines already on what the word “limited” means. Perhaps this is what is meant by the DOST Administrative Order on the restrictions that it may impose on the sharing of data from researches funded by the DOST.

For the NOAH scientists and their supporters who argue for open data or open access to the data generated by Project NOAH, they would be on firmer legal ground even if they invoke former President Noynoy Aquino’s open data executive order, if they also cite the provisions of the Philippine Intellectual Property Code on fair use in sec. 185, including other statutory fair uses there enumerated in sec. 184 which serve as clear limitations on the right of DOST to assert its “proprietary rights” over the data generated by Project NOAH.

To reiterate, in the Data Sharing Policy of the DOST, the words “fair use” don’t appear at all in any of its provisions, which may be the reason why there is this debate whether DOST-funded data, like the weather data of Project NOAH, should be freely made available to the public or not.

This amnesia or oversight seems to have been due to the invocation by the Data Sharing Policy of a law, the Technology Transfer Act or Republic Act 10055, which, while it is a laudable law that gives an incentive to our government scientists to become co-owners of the intellectual property generated by their publicly-funded research, has not clearly spelled out the kinds of intellectual property exceptions that may be invoked by the public, to balance the privileges being given out by the law to the government scientist.

The Technology Transfer Act does not clarify or even spell out what are those intellectual property that may be covered by the Technology Transfer Act and therein lies the cause of future heartaches of the public and even the government scientists which the law is supposed to help.

Richard Stallman, the father of the free software movement asserted that the term “intellectual property” is a confusing mirage, and is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

This is not actually the case, Stallman emphasizes, as the laws usually lumped together as intellectual property – patents, copyrights, and trademarks, for example – originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

While the Technology Transfer Act may have some merit in putting forward some restrictions, this would best apply to patents, but to apply that same principle of putting restrictions to copyright may actually be an overreach of the law since, in the first place, if you look at sec. 176 of the Intellectual Property Code, it is there clearly stated : “No copyright shall subsist in any work of the Government of the Philippines” and it states in the second sentence a qualifier, which says that “prior approval of the government or office wherein the work is created shall be necessary for exploitation of such work for profit.” Perhaps that is what the DOST’s Data Sharing Policy meant to say, when it wants to restrict access to Project NOAH’s weather data, but that should have been spelled out clearly so as not to confuse the researchers who may want to access the data.

To conclude, the public’s access to Project NOAH’s weather data, which is a matter of application of our existing law on copyright found in the Intellectual Property Code, is guaranteed, being a work of the government, no copyright can be asserted over it though the government, in this case, the DOST, may restrict or require its prior approval if the exploitation of the data is for profit. If the DOST insists it has some proprietary right over it which in a sense is its copyright, then the public or those who may want to do research on the data should assert their right to fair use over it, fair use being a general exception to copyright which is provided to the public by the law itself, in secs. 184 and 185, of the Intellectual Property Code.

oOo

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The Non-Human Living Creatures Affected by Mining Are Also Knocking on Your Door, Mr President. Will You Give Them Their Due Process Rights, Too?

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
15 February 2017

20170204_090829

Mt. Matutum and its surrounding  biodiversity (EVPeria)

It was strange to read in the news the mining industry thanking the President for giving them their due process rights when on the face of it, as reiterated by Sec. Gina Lopez, the mining industry and its affected members were given enough opportunity to make their views known during the mining audit. For a law practitioner to hear such invocation, like what we usually encounter in run-of-the-mill labor or criminal case, this kind of plea is usually the basis for later asking for the nullification (pagpapawalang-bisa) of the entire proceedings that resulted in the alleged harm to the petitioner, in this case, the closure of the mining companies. The news yesterday indicated the list has grown to 75 companies.

The alleged failure by the DENR to give these companies a copy of the full audit report is something that the DENR should not have done though we are not familiar with the nitty-gritty aspects on how the DENR followed through on the procedural and substantive due process rights of the mining companies, the DENR has a legion of lawyers to respond to the lawyers of the mining companies on that issue, we leave that issue to them.

What we will do instead in this blog post is to speak in behalf of the non-human living creatures (the mountains, rivers, streams, forests, flora and fauna, even microbes and fungi, all of which assemblage of life which are not human and are collectively known these days as “biodiversity”) whose voices seem to be absent in all this debate whether to accord due process rights to the miners closed down by DENR Secretary Gina Lopez.

If we follow Sec. Gina Lopez’s pronouncements, she did what she has done because of the communities living near mining sites that suffer as a result of the mining operations in the closed sites.

The companies also decry the supposed and some say, inflated, number of employees that will lose their jobs though I heard a suggestion from a call-in listener last Saturday in a radio program in DZRH hosted by the rowdy group of Amb. Teddy Boy Locsin that these companies should show whether they were that religious in paying the SSS contributions of these employees, to show and prove the actual number of people who will lose their jobs.

Amidst all the noise and din, who has spoken directly in behalf of the non-living creatures that were already or are about to be destroyed by mining?

There is none for the moment, but it can be the President who may act in their behalf, especially when he was quoted in a news report that if mining companies cannot restore the sites they have mined, then they should just remain closed, which view indicates some sense of an ethical concern by the President towards the environment, as such.

In the realm of environmental ethics, the central problem being debated is the anthropocentrism (human-centric) of the news report supposed rationale for our actions towards the earth, all of which boils down to the supposed benefits of the bounties of the earth for the well-being of the human species.

As explained by Andrew Brennan in Stanford Encyclopedia of Philosophy, environmental ethics questioned the assumed moral superiority of human beings to members of other species on earth and in the second place, it investigated the possibility of rational arguments for assigning intrinsic value to the natural environment and its non-human contents.

Some of these arguments he mentioned to favor the value of non-human living creatures at least equal to that of human beings range from the “deep ecology movement”, which endorses “biospheric egalitarianism”, the view that all living things are alike in having value in their own right, independent of their usefulness to others, to the feminist view that human exploitation of nature may be seen as a manifestation and extension of the oppression of women, in that it is the result of associating nature with the female, which had been already inferiorized and oppressed by the male-dominating culture.

Another strand of environmental ethics cited by Brennan is Murray Bookchin’s “social ecology” perspective which takes the “outer” physical world as constituting what he calls “first nature”, from which culture or “second nature” has evolved. Environmentalism, in his view, is a social movement, and the problems it confronts are social problems. Bookchin regards human intervention in nature as necessary, to be placed at the service of natural evolution, to help maintain complexity and diversity, diminish suffering and reduce pollution. For him, the exploitation of nature should be replaced by a richer form of life devoted to nature’s preservation.

All or some of these philosophical perspectives may be picked up by the President and his advisers as gems of wisdom that should inform how the exploitation of the country’s natural resources through mining should be carried out from hereon, which gives equal footing to biodiversity vis-a-vis mineral resources and  people, especially now that the President has to decide whether to uphold DENR Secretary Gina Lopez’s closure order on the mining companies in the country.

Should the President uphold the order in its entirety, this is the kind of change that will signal to the mining industry that in this administration, non-human living creatures (also known as biodiversity) are assiduously taken into account in government decisions.

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