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

CURRENT SOCIETAL CONCERNS
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

oOo

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GLOBE Cannot Just Send Its Subscribers’s Credit Info to another Government Agency

CURRENT SOCIETAL CONCERNS-PRIVACY
Elpidio V. Peria
12 June 2017

from : http://creditinfo.gov.ph

 

Relaxing at home during this Independence Day, I saw this social media posting from a veteran consumer activist from Davao, which, according to him, is from GLOBE, one of the leading telcos of the country, which reads :

“We’d like to share an important update on RA 9510 or the Credit Information Systems Act (CISA). In compliance with this government mandate, we’ll be sending basic credit information about your Globe account/s, including any overdue balance, to the Credit Information Corporation, a state-run agency, starting June 2017. We at Globe value your awareness on these matters. Learn more at http://www.creditinfo.gov.ph. Data charges may apply.”

This action of GLOBE, cavalierly informing only its clients and purportedly in pursuit of complying with this mentioned law, on credit information of individuals being processed by a specific government entity, the Credit Information Corporation, is VIOLATIVE of a later law, the Data Privacy Act or Republic Act 10173, passed in 2012. This later law came four years after this law on credit information was passed, in 2008. Maybe the lawyers of GLOBE may have overlooked this law or interpreted the law such that they went ahead with their action, but hopefully, with this blog post, citizens may be made aware and will react and tell GLOBE to stop what it is doing.

The Data Privacy Act recognizes the rights of data subjects, actually, us, humans, people, individuals, not computers, to our personal information, such that, this personal information cannot just be immediately processed without our consent. The law in sec. 12 gives the number one criteria for the lawful processing of personal information : that the data subject has given his or her consent.

What GLOBE has done in its announcement, that of merely informing its subscribers that GLOBE will be sending basic credit information of its subscribers, including overdue balance, to another government agency, the Credit Information Corporation, created by Republic Act 9510, is something that is not allowed by the Data Privacy Act as provided for in its sec. 13 dealing with sensitive personal information and privileged information.

The rule in sec. 13 is that the processing of sensitive personal information is PROHIBITED, and there are some instances where the processing of information is allowed, and it may be these exceptions that may be pointed out by GLOBE which enables it to pass on such credit information to the agency created by RA 9510.

Let us analyze the exception closely. It reads:

Sec. 13. Sensitive Personal Information and Privileged Information – the processing of sensitive personal information and privileged information shall be prohibited, except in the following cases:

Xxx (b) The processing of the same is provided for by existing laws and regulations; Provided, that such regulatory enactments guarantee the protection of sensitive personal information and the privileged information; Provided further, that the consent of the data subjects are not required by law or regulation permitting the processing of sensitive personal information or the privileged information.

 

We consulted the provision of RA 9510 on the guarantee of protection of this sensitive personal information and there, in sec. 6 of the law, is the following provision :

Section 6. Confidentiality of Credit Information. – The Corporation, the submitting entities, the accessing entities, the outsource entities, the special accessing entities and the duly authorized non-accessing entities shall hold the credit information under strict confidentiality and shall use the same only for the declared purpose of establishing the creditworthiness of the borrower. Outsource entities which may process and consolidate basic credit data are absolutely prohibited from releasing such data received from the Corporation other than to the Corporation.
xxxxx…

 

While this guarantee of strict confidentiality seems to be stated by this law, the number of entity categories, around six (Corporation, the submitting entities, the accessing entities, the outsource entities, the special accessing entities and the duly authorized non-accessing entities) that deal with a person’s credit information is surely one too many, that this strict confidentiality rule is actually meaningless. Why, these entities are all the entities that matter to a person’s credit history; if you go to the definitions section of the law, these are mainly also private companies who deal in the business of these things. Why bother with strict confidentiality when all those who will be interested will be given a creditors’ information anyway?

With the above-mentioned doubt on whether strictly confidentiality of a person’s credit information is guaranteed by RA 9510, this same law however seems to comply with the second criteria of the Data Privacy Act, which states that the consent of the data subjects are not required by law permitting the processing of the sensitive personal information.

This is because there is nothing in RA 9510 which requires the consent of persons with credit information or history to process their credit information under that law. That is one interpretation of the RA 10173 requirement which may be used by GLOBE to escape any legal liability under RA 10173.

But this same provision, sec. 13(b), of RA 10173 may also be interpreted to mean that there has to be a specific provision in any law that should explicitly state that such consent is no longer required. If that interpretation holds, and this kind of provision does not exist in the law, then RA 9510 may breach RA 10173.

Which is which? If you ask me, my view is to provide for a greater right to the person’s data privacy as regards his or her sensitive personal information, particularly his or her unpaid GLOBE accounts which may be compiled to provide an unsavory credit reputation to the person.

RA 9510 however requires the consent of the borrower (not the GLOBE subscriber, mind you) when such credit information is passed on to a special accessing entity, which is defined by RA 9510 as a duly accredited private corporation engaged primarily in the business of providing credit reports, ratings and other similar credit information products and services. But aren’t these precisely the kinds of entities subscribers with bad credit standing avoid? This provision of RA 9510 should also be looked into whether it still accords with the stated policy goals of the Data Privacy Act, which is to protect the identity of an individual from being ascertained, since RA 9510 already gives out not only the identity of the person but also more, especially the credit information of that person.

So, what happens now to what GLOBE will do this month of June, when it will do it, it does not yet say – that it will pass on credit information of its subscribers to the Credit Information Corporation ? That GLOBE purports to easily do it without any express consent of its subscriber speaks badly of its oft-repeated commitment in its ads to keep its customers welfare above its own. GLOBE should not be merely informing or making aware its subscribers that it will do such thing, it should also seek out, expressly, in written form, the subscribers’s consent and if the subscriber does not allow it, then GLOBE should not pass on such information.

But given that subscribers are busy people, the default setting here should be NO sharing of information to the Credit Information Corporation, unless the person consents to such sharing, which should be done in writing.

If the GLOBE does not do this, it is our view that it violates the provisions of the Data Privacy Act in its act of passing on the credit information of its subscribers, including unpaid accounts, to a government entity created by law, the Credit Information Corporation.

Perhaps the National Privacy Commission should step in to propose measures such that the functions of the Credit Information Corporation may be fulfilled, but not at the expense of the violation of the rights of the data subjects, the GLOBE subscribers.

Or, given that agencies, perhaps too occupied with their mundane concerns relating to their mandate, may act not in a prompt manner, and if that is the case, the citizenry, or the disgruntled GLOBE subscribers perhaps, should give the telco a lesson that consumers are not to be trifled with. We haven’t even examined the provisions of the Consumer Code on this.

oOo

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The House-approved tax reform bill is not your TRAIN to SUS(tainability) TRAN (sition)

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
11 June 2017

from : http://sustainability.leeds.ac.uk

The Philippine House of Representatives recently approved the much-awaited tax reform measure of the Duterte administration, the so-called TRAIN (Tax Reform for Acceleration and Inclusion) – aimed at generating the needed resources for the delivery of basic services and providing economic relief to salaried workers and other income earners.

This blog post however will not look at the merits of the new taxation schemes and tax exemptions in their entirety but will instead focus on the whether the measures in this approved House version of the tax reform bill will enable the country to take further steps toward sustainability transition, that long-term effort to enable our economy and society to transform itself so that it can better cope with the challenges of climate change and sustainable development.

If we have this sustainability transition lens in looking at this bill, the immediate item that should catch our attention is the excise tax on diesel fuel which is now increased progressively yearly within the next three years from being taxed at zero (0) now to 3 pesos in Jan 1, 2018; to 5 pesos in Jan, 1, 2019; and to 6 pesos in Jan. 1 2020.

The Department of Finance (DoF) is of the view that this impending diesel price increase will not jack up food prices or jeepney fares that much based on similar abrupt price increases in diesel from January to December 2016 and in the period 2010 and 2012.

Even the National Tax Research Center (NTRC) noted in a study it did recently in January 2017 that even jeepney fare rates will not rise as much as in fact such fares have already increased in anticipation of a fuel tax hike this July 2017. Based on the historical table (Table 13 in the study) that they have come up with, in the period after 2009, if the price increase in diesel fuel will increase by greater than 50%, this will generate an additional Php 1 increase in jeepney fares : this happened between the period February 2009 when diesel price was at Php23.00 and it increased to Php 37.75 in January 2011 and in the period between January 2016 where diesel price is at Php 20.20 and February 2017 where diesel price is at Php 31.00. In these periods, the jeepney fare rate increased at Php1.00. Perhaps with these three year successive increases of diesel prices, the jeepney fare rate may not increase more than Php1.00 within the three year period.

But perhaps the DoF is only looking at diesel fuel, but there are also a full range of other petroleum products (lubricating oils and greases, processed gas, waxes and petrolatum, denatured alcohol to be used for motive power, naphtha, regular gasoline and other similar products of distillation, leaded or unleaded petroleum gasoline, aviation turbo jet fuel, kerosene and liquefied petroleum gas, the latter are those that are used in homes for cooking and lighting, asphalts, bunker fuel oil) that will also be taxed in an increasing manner within a three-year time frame. The Senate should look closely how the totality of these petroleum products will contribute to price increases on all other goods and services the production of which will depend on the use of these other petroleum products. This will also serve as a check to validate these assurances of the DoF and NTRC on negligible price increases from these measures.

In that same study of the National Tax Research Center we have seen, these taxes on petroleum products are already accounted for and they foresee no problem with increasing the tax rates in these products since they haven’t been increased since 1996 and the Philippines has the 2nd-lowest excise tax rates in the ASEAN region.

While the House-approved tax measure provided for some earmarking of not more than 40% of the yearly incremental revenues from the petroleum excise tax for a social benefits program, it has not provided for specific funding to develop research and development into alternative fuels in order that there is a clear effort towards developing alternatives to fossil fuels and hence facilitate behavioral shifts in the use of diesel and similar fossil fuels.

In our earlier post on this topic, we proposed to make the increase in these excise taxes gradual, even suggesting the totality of the 6-pesos increase be fully implemented even beyond the entire term of President Duterte. This is to enable other coordinative measures by other agencies to kick in, like an accompanying measure to accelerate the development of alternative fuels so that the population will have an alternative to these fossil fuels or some incentives to assist the shift towards a fully-electricity based transportation system.

Ok, hybrid electric vehicles are exempt from excise taxes, but the way it is defined as a four-wheel vehicle in the House-approved tax reform bill leaves out alternatives that may run on two or three wheels. The Senate should look into this again. What about the jeepneys? There should be a clear phase out that should reduce dependence on diesel-guzzling jeepneys , but this should be coordinated with the preferential tax treatment in this bill given to hybrid vehicles in the House-approved measure.

Then we have to look at the other categories of activities that seem to have been left out, what about the coal-fired operating plants, are they exempted from any increases in taxes? The House-approved bill does not seem to touch these entities, especially the taxing of coal and coal substitutes used in these plants.

Looking at other provisions that may not immediately appear to induce efforts towards sustainability transition but in our view will gradually contribute to such efforts, the House should have also given preferential tax treatment to donations to initiatives that promote renewable energy or sustainable agriculture as these are activities that hasten our shift to a more sustainably-run economy or food system that increases our ability to adapt to a warming climate.

Finally, even the constitution of family home could be an opportunity, like giving higher value to houses that have installed energy-saving equipment or are constructed using green architecture principles subject to criteria that may be set up by the Department of Energy and the National Housing Authority. This kind of higher valuation for family homes induces entire Filipino households to use LED bulbs or install solar panels while potentially creating a market that further brings down the prices of these renewable-energy products. This is the kind of up-scaling nationwide that was not there before when the DoE pushed for a shift in compact fluorescent lamps nationwide.

The Philippine Senate has a chance to enhance this TRAIN so that this will truly proceed towards the SUS (trainability) TRAN (sition) of the country in the coming years.

oOo

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3 Ways Donald Trump Put the US At a Disadvantage in its Exit of the Paris Agreement

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
4 June 2017

from : http://montrealsimon.blogspot.com/2017/06/donald-trump-and-end-of-american-world.html

Many commentators already expressed their dismay at how the US has ceded its leadership on this globally important issue of climate change, but from where we sit, here are the ways his short-sighted decision will put the US at a disadvantage :

1) The US loses a seat at the negotiating table where discussions are ongoing to further flesh out how the commitments to the Paris Agreement are to be fulfilled

The Paris Agreement is set to take effect after 2020 and the countries which are Parties to the Agreement are hard at work, more recently in its Subsidiary Bodies meeting in Bonn, Germany just last month in May, to come up with various guidelines for following through with the commitments under the Agreement, like how the Nationally Determined Contributions are to be prepared or what elements of the technology transfer framework are to be further detailed.

With the US now deciding to exit from the Paris Agreement, the US immediately loses the right to effectively participate in shaping up the rules of the various commitments under the Agreement. This was among the reasons why US business leaders wanted the US to remain in the Agreement so that the US can water down these various guidelines and it will not affect the US as much. Paris Agreement may come out eventually stronger without the US trying to dilute its mechanisms of implementation.

Having experienced in the negotiating table of the UNFCCC on technology transfer how formidable the US negotiators are, these seasoned US negotiators and legal drafters will now mainly stay on the sidelines of further discussions and they will not be able to shape it along US interests. When negotiations move to a setting where only Parties to the Agreement can join, then the US will be like the NGOs and other observers who will just remain outside the negotiating room and they will only enter once the main protagonists are finished in their negotiations.

Australian, Japanese and Canadian negotiators, who are part of the UMBRELLLA negotiating group of which the US is a guiding hand, are formidable by themselves, but without a leader like the US with political and economic clout, they may not have such a strong voice now as before, though any one of these countries may come out as the leader of this negotiating group to replace the US.

2) With the market for renewable or clean energy technologies expanding worldwide, it cannot be avoided that trade rules will be increasingly affected by what the Paris Agreement will require countries to do to achieve their climate mitigation and adaptation objectives.

Determining what aspects of trade will be affected by the rules being set up under the Paris Agreement is difficult, but based on an initial analysis by Clara Grodin of the German Development Institute of submitted nationally determined contributions, the following trade elements may play a role in the implementation of a country’s commitments under the Paris Agreement, which the US will now not have anything to do at all, to their disadvantage :

a) Reduction of trade barriers – Parties to the Paris Agreement may agree to have a package of beneficial reduction of trade barriers among them to facilitate the uptake of clean energy technologies;

b) Regulation of timber trade – this involves the determination of how sustainably produced the timber being exported are, which may vary among Parties to the Paris Agreement and now rules may be arrived at on how to give preferential treatment among those who are Parties to the Paris Agreement;

c) Standards and labeling – this involves determination of embodied carbon in products that will then be given preferable trade treatment under the rules of the World Trade Organization;

d) Border carbon adjustments or border taxes – these are taxes that are imposed on products from countries will less stringent climate policies, of which the US will surely become one as it is now out of the Paris Agreement; EU and China will only be too happy to impose these taxes on US export products given how lousy environmental regulations will now be under the Trump administration;

e) Renewable energy subsidies – these are the support given by governments to their renewable energy sector which may be subject to rules on subsidies under the WTO;

f) Fossil fuel subsidy reform – this is similar to the subsidies given to renewable energy above but this time it may be given to phase out the over-all national consumption of fossil fuels, similar to what the Duterte Administration is doing now in its Comprehensive Tax Reform Package in Congress where the prices of diesel are taxed in order to discourage its consumption;

g) International market mechanisms – these are the carbon trading arrangements that are still being discussed at the moment inside the UNFCCC but may now be expanded under the Paris Agreement in various iterations;

h) International technology transfer including intellectual property rights – this involves rules on how developing countries may gain access to patented technologies, either by relaxing the rules on how the patents may apply on these technologies, or by giving interested countries some subsidies so these technologies may be used and applied in developing country markets;

i) Response measures – these are the totality of actions a country trying to implement climate change mitigation and adaptation policies will have to do including the wholesale transformation of a country’s entire energy grid or substituting its food supply which are mainly producing export commodities to one that more or less approximates its sustainable agriculture goals.

3) The governance architecture of the Paris Agreement will effectively exclude the US now that is has to evolve to give increasing roles to sub-national entities including non-state actors like corporations, to offset the emissions gap that will not now be fulfilled by the US

Professors Charles F. Sabel and David G. Victor talked about experimentalist governance which underpins the mechanism behind the Paris Agreement, where various ways are attempted to find the best way of achieving bottom-up international policy-making.

With various US states like California and cities like New York, including giant TNCs like Apple, Google, General Electric and Walt Disney committing to act to address climate change, various mechanisms will have to be developed within the Paris Agreement, including perhaps its amendment in due time, to enable these entities to let its efforts on climate change mitigation and adaptation count. This will need to be a long-term and sustained effort and with the entire world demanding action on climate change, Trump’s deplorable decision the past few days may just become a footnote of history in the long term.

oOo

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Mindanao Martial Law Declaration May be Fatally Defective

CURRENT POLITICAL CONCERNS
Elpidio V. Peria
25 May 2017

Government troops  moving into position in Marawi City (from :http://interaksyon.com)

Proclamation No. 216 declaring martial law in Mindanao has recently been circulated in the web and looking at its WHEREAS clauses which serves as justification for the martial law declaration, it appears that such declaration is fatally defective for the following reasons :

1) the Maute stand-off in Marawi City is characterized as a rebellion when apparently it is terrorism

The 3rd and 4th Whereas clause describes the Maute Group as a “terrorist” group and as such the crimes to which they should be charged with is terrorism, which is actually penalized by Republic Act 9372, but the Constitution is explicit in allowing the invocation of the President’s martial law powers only in cases of lawless violence, invasion or rebellion. The wisecracks may point to terrorism as lawless violence, but given that there is a law defining terrorism, terrorism cannot now be easily equated with lawless violence easily, this will most likely not withstand legal scrutiny.

If we go by the cases cited by the great Revised Penal Code commentator Luis B. Reyes (18th edition, 2012), he described the nature of the crime of rebellion as a crime of the masses, of a multitude and a vast movement of men and a complex net of intrigues and plots. A handful of Maute group warriors spread widely over certain portions of Marawi City and those doing the acts described in the 5th whereas clause is clearly not such multitude and vast group of men.

2) the declaration referred to other reasons under the previous Proclamation of national emergency from the Davao City bombing in Feb 2016 which are not completely spelled out in this martial law Proclamation.

The 4th whereas clause reads : “part of the reasons for the issuance of Proclamation No. 55” means there are another set of reasons that are not spelled out in this Proclamation, what are they? Are they the acts enumerated in the 5th whereas clause? If we look for the connective word between the 4th and 5th whereas clause, it is the reference to the Maute group as the “same” Maute terrorist group and if we take on the implications of this reference, meaning the first effort under the first Proclamation actually failed since here is the same group again, doing the same thing that they are doing, but this time the Government response is different. Sen. Saguisag appears to be right in saying over ANC cable news channel  that this martial law declaration is an admission of failure on the part of the government in stopping the Maute group the first time. The  other reasons, including reasons for the failure of the original Proclamation, should have been clearly spelled out here now, justifying the martial law declaration.

 

WHY THIS MATTERS : Any citizen who may wish to question the sufficiency of the factual basis for the declaration of martial law will only have to look at the four corners of the Proclamation and point these out to the Supreme Court so that this Proclamation may be knocked down legally for lack of sufficient factual basis.

Just to be sure, however, let’s watch out for the President’s report to Congress as he may put forward other information, including perhaps classified intelligence information there justifying the martial law declaration before or within 48 hours from the issuance of the Proclamation and if we look at the date when he issued the Proclamation, straight from Russia, on 23 May 2017, his 48 hours should be up within today.

oOo

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Martial Law in Mindanao : What Happens Now?

CURRENT POLITICAL CONCERNS
Elpidio V. Peria
24 May 2017

from : http://update.ph

The President has just declared Martial Law, the ANC cable news has been reporting apparently repeatedly which I only paid attention to only now, at around 10am, and though a quick search of the government’s Official Gazette website has not yet yielded any official proclamation issued for this declaration.

First things first, people should not panic. From the 1987 Constitution, readers of this blog should be mindful of para. 4, section 18, ArticleVII which explicitly spells out that a state of martial law :

a) Does not suspend the operation of the Constitution, and the important thing to note here is that Filipino’s Bill of Rights there are NOT set aside, so there should be no warrantless arrests and unreasonable searches and seizures made as a result of this proclamation as the right of the people to be secure in their persons, houses, papers and effects are still in effect;

b) nor supplant the functioning of the civil courts or legislative assemblies, this means those who have cases in court should continue to go to the courts as scheduled as they continue to exist and the Congress and all the other legislative bodies in the local government units are still functioning and should continue in their regular conduct of business;

c) nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, this means that civilians like all of us in Mindanao would continue to go about our own affairs today and till the day this declaration is lifted as no military court or government agency will have the right to make decisions on what civilians can and cannot do;

d) nor automatically suspend the privilege of the writ, which refers to the writ of habeas corpus, which is the remedy for those who may be illegally picked up when military checkpoints may be set-up, so those who may be picked up as a result of this martial law declaration can still avail of this legal remedy but as per recent experience on this, those picked up should NEVER sign any waiver that may be put in front of them in case they may be arrested without warrant. Those picked up should NEVER sign and ask for their own lawyer and if a PAO lawyer may be provided to them, this lawyer should explain to them the consequences if they sign such waiver.

Under the same provision of the Constitution, what happens now are the following :

a) within 48 hours from his proclamation, though there may be debate when this countdown will start as it is not sure when the official proclamation was made, the President shall submit a report in person or in writing to Congress;

b) the Congress, voting jointly or by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation, which revocation shall not be set aside by the President.

c) Upon the President’s initiative, the Congress may, in the same manner, extend such proclamation for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it.

Any citizen may question the sufficiency of the factual basis of the proclamation of martial law direct to the Supreme Court and the Supreme Court must promulgate its decision within 30 days from filing.

For those who have experienced Martial Law, President Duterte’s assurance in the ANC news clip that it will be just like the Martial Law during the 70s is precisely the kind of statement that only fuels greater anxieties among the people.

People should also watch out for OA (over-acting, thus excessive or unnecessary) actions of the police and military in setting up checkpoints in key thoroughfares in Mindanao and perhaps they may be emboldened in being more intrusive and arrogant during these usual check-ups, so these should be resisted and they can only ask that the side-mirror be opened but they cannot actively search into the glove compartment nor ask for bags to be opened up. For me, my worry is my younger brother who has to return my vehicle from Cotabato City to General Santos City, hopefully he may be able to get here tomorrow and included here is a wish for him to travel safely tomorrow.

oOo

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CLIMATE CHANGE LITIGANTS WIN IN SOUTH AFRICA and GETS STARTED IN INDIA and S.KOREA

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
9 April 2017

S. Africa’s climate activists taking action related to their climate suit  against their government and a coal-fired power plant company

from : http://thegreentimes.co.za

A news article heralded one of the first climate change litigation efforts in South Africa whereas in India, a 9-year old girl sued the Government so it may speed up its climate change efforts, while in South Korea, a woman who is suffering from asthma along with her children, sued her government and China, so that the two countries will undertake common efforts to reduce the fine particulate dust resulting from the two country’s numerous cars and industries that exacerbate mainly air pollution in the two countries.

On 8 March 2017, the North Gauteng High Court handed down a landmark ruling in Earthlife Africa Johannesburg’s (ELA) case against the Minister of Environmental Affairs, the Department of Environmental Affairs (DEA), and Thabametsi Power Company (Pty) Limited.

The court said that Earthlife Africa (ELA) was correct in claiming that the Minister should have considered the new power station’s climate change impacts before deciding whether to authorise it.

The report also noted that no appeal has been lodged by any of the parties against the judgment, and the deadline for the lodging of an appeal has now expired, which makes such ruling, barring any other development, for all purposes, final.

In South Korea, Choi Yul, president of the Korean Green Foundation along with his attorney Ahn Kyung-jae, motivated five other individuals to lodge a joint lawsuit against Seoul and Beijing on Wednesday for physical and mental damages caused by the “fine dust” particles filling the air.

Each of the plaintiffs are demanding 3 million South Korean won ($2647) in compensation, but they say the money is only symbolic — what they really want to accomplish is to induce the two governments to reduce toxic smog, a result of too much dependency on carbon fuels and millions of cars.

In India, a 9-year old child, Ridhima Pandey, filed a petition with the National Green Tribunal (NGT), a special court for environment-related cases, asking the tribunal to direct the government “to take effective, science-based action to reduce and minimize the adverse impacts of climate change.”

These actions should encourage like-minded citizens all over the world to also take their own similar initiatives to spur their governments into action in addressing climate change.

oOo

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