Lessons from three executions

It’s easy to apprehend the outburst of public sympathy for the three death convicts executed yesterday in China: Ramon Credo, 42; Sally Villanueva, 32; and Elizabeth Batain, 38. They were, like many of us, our relatives and our friends, overseas Filipino workers, forced by poverty to venture into foreign lands to support their families in the Philippines. Like the rest of the Filipino diaspora, they have been making both ends meet and enduring the loneliness of working in foreign lands, including in China with the formidable language barrier, to feed and support their loved ones in the country. And while lack of knowledge is not a defense generally for possession of large quantities of prohibited drugs anywhere, we cannot help but feel sympathy for those who were unwittingly used as drug mules just to earn the extra buck because modern day slave wages are simply not enough.
But while their deaths should indeed be a reason for national mourning, the fact remains that unless we learn from this latest painful experience, it will happen over and over again given the sheer number of our countrymen working as cheap laborers in foreign lands. What are these lessons?

First, while the Marcos policy to aggressively pursue the export of manpower as a tool of economic development has proven to be hugely successful, at least in terms of increasing our gross national product; the time has come for the nation to reevaluate the wisdom of this policy. The export of labor as an economic strategy was formulated at a time when the country’s economy was in shambles owing to the lack of business confidence under conditions of martial law. I submit that this is no longer the case. With a population of almost a hundred million, ours is now a market that can be self-sufficient, albeit the export market, specially the Asean common market, is still an attractive destination for our goods and services. The time, in other words, has come to provide jobs domestically so that Filipinos no longer have to endure slave like conditions in foreign lands. Of course, there are some of us who have been luckier and have been working as professionals and skilled workers enjoying very high living standards in developed economies. These individuals should stay where they are. What I am advocating is for Filipinos earning measly salaries even by Philippine standards; the domestic helpers in particular, should now be provided jobs in this country. If Laos, Vietnam, and Cambodia have attracted more foreign investors compared to us, the time has come to ask ourselves why foreign investors are averse to investing in the Philippines. Here, the lack of predictability arising from a weak rule of law, lack of consistency in economic policies, and the illegal taking of alien property rights as in the case of NAIA Terminal 3, are some of the major reasons behind this aversion.

Two, the country should pursue the protection and promotion of fundamental human rights as the cornerstone of our foreign policy. Ultimately, these rights will provide the much-needed protection for our countrymen wherever they may be. Not too long ago, the Aquino administration decided to snub the Nobel awards rites honoring a Chinese activist purportedly because we wanted to please China in an effort to spare the three from the lethal injection. Yesterday proved that the decision to snub the Nobel was a fatal mistake. Not only did we abdicate our traditional role as a leading advocate for the protection and promotion of fundamental human rights, such as the freedom of expression; but as yesterday proved, also for naught.

Ultimately, what is at issue with these executions is not just Philippine-Chinese relations, but also the legality of the death penalty itself as being inconsistent with the right to life. What is so abhorrent with this latest experience is the fact that while there exists the possibility of mistake committed by Chinese courts, the imposition of the death penalty, on the other hand, is irrevocable. Furthermore, the views expressed by the Human Rights Committee on the right to life is that this right is absolute and that countries that are still imposing the death penalty should take steps to abolish the same.

Domestically, it is hence important for our legislators to resist the temptation to re-impose the death penalty. Here the arguments against it are just too many: the lack of empirical evidence to show that it has a deterrent effect and the fact that courts are more often than not, incompetent in their appreciation of law and evidence. While the Philippines under the past dispensation has signed the second optional protocol to the International Covenant on Civil and Political Rights which would mandate us never to re-impose the death penalty, this may not have been concurred in yet by the Senate. Hopefully, the tragedy that befell our countrymen in China will hasten this process of Senate concurrence.

Three, there is an imperative need to undertake major revamp of personnel and systems in our airports and in the Bureau of Immigration, as well as the Bureau of Customs. How kilos and kilos of heroine could pass through our airports is just deplorable. Better jail these mules in the Philippines for a lifetime rather than witness many more of them put to death in foreign countries for drug trafficking.

Finally, perhaps the time has come to create the post of legal aid officer in all of our diplomatic and consular missions abroad. While these lawyers cannot practice law in foreign jurisdictions, these lawyers could at least study what the local laws. Moreover, they could liaison with foreign lawyers and hence, provide better consular assistance to many of our migrant workers who have kept our economy afloat all these years. Surely, these workers have already earned the right to have this additional service even if it means granting the Department of Foreign Affairs additional budget for this purpose.

Is the resolution on Libya a lawful use of force?

IThe media reported recently that 110 missiles were fired by the United States and its allies against unspecified targets in Libya. These missiles were presumably fired pursuant to United Nations Security Council Resolution 1973 which, among others, gave member-nations of the United Nations a mandate to “to take all necessary measures x x x to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi”; and further, “to take all necessary measures to enforce compliance with the ban on flights”. These measures were enacted by the Security Council pursuant to Chapter 7 of the UN Charter. They are aimed at addressing a “threat to international peace” and are legally enforceable. Resolution 1973, although an unusual way of enforcing international humanitarian and human rights law, is far from being novel. It has been the technique of the Security Council, commencing with the humanitarian crisis that struck the former Yugoslavia and Rwanda in the mid-1980’s, to characterize gross and systematic violations of human rights as threats to international peace to justify the imposition of sanctions. This includes military sanctions of the type that we are currently witnessing in Libya. But commendable as the practice has been, resort to coercive sanctions even for the most noble of purposes has been legally controversial, if not actually fraught with infirmities.When member-nations of the UN vowed to end wars by making them illegal, it was also their intention that in an effort to promote international peace, the UN itself, in addition to the long established right of states to resort to self-defense, would have a monopoly on the lawful use of force.

This was the contemplation behind these provisions under Chapter 7 of the Charter, which has been referred to as “collective security measures”. Again, intent-wise, the drafters of the Charter envisioned this to be implemented through a UN Force under the collective leadership of the Chiefs of Staff of the 5 permanent member-nations of the United Nations Security Council. The Charter also specified that the UN Force would be manned pursuant to an “agreement” to be entered into by UN member nations. Unfortunately, history would prove that the UN Force—its collective leadership, and the manner it would be manned—would prove elusive. In fact, since the establishment of the UN, there has only been one instance when the UN Force functioned as contemplated. This was during the Korea conflict in the 1950s. Since then, all resort to collective security measures have been done either through UN “peacekeeping forces” whose existence and composition have not been pursuant to the language of Chapter 7 itself. The legal justification is that these forces were activated pursuant to resolutions which authorized “all necessary means” to compel a state to cease and desist from its breach of an international law norm. Likewise, it has been argued that these forces, albeit not pursuant to the language of the Charter, are nonetheless not prohibited by the Charter, and hence are permissible.

As we witness the continuing military engagement by US and its allied forces in Libya, I cannot help feel a bit uneasy over the fact that military action conducted by individual sovereign states may be conducted coincidentally because of Security Council authorization; but also on the basis of a country’s oftentimes selfish national interest. This is why the drafters of the UN Charter wanted a formation of a UN Force outside the influence of a single country.

Moreover, if it is the case that the literal provisions of the Charter have proven to be unrealistic, there exists a procedure by which the Charter itself may be amended. Unless and until it is in fact amended, the reality remains that while collective security measures are the subject of existing state practice, the fact that it is not in compliance with the language of the charter itself may weaken, rather than strengthen the normative value of the prohibition on the use of force. This, in turn, will cause irreparable injury to world peace.

The last Jurassic Bar examinations

Congratulations to the barristers who passed this year’s Bar examinations. While the Supreme Court still has to promulgate the passing percentage for this year’s examination as I am writing this column, already it is apparent that this year’s successful batch passed what should be one of the toughest bar exams ever.

I was an examiner for this year’s examinations in the subject of Remedial Law. This is the “heaviest” subject in the Bar exams since it is given the heaviest weight of all eight subjects of examinations. With me as co-examiner was lawyer Rodrigo Lope “Reggie” Quimbo, who was valedictorian of the batch ahead of me at the UP College of Law. The amiable Bar Confidant, Atty. Cristina Layusa, told me that Remedial Law had the second highest passing rate. This is welcome news since at the onset, I had decided that in checking the exam papers, I will apply the same standards that I had for my students at UP. It cannot hence be said that I am guilty of grade inflation.

Considering that my grading was apparently even more liberal compared to the other examiners, I reckon that unless the Court lowers the passing rate from the current 75 percent, the passing percentage for this year should be lower than the average. I am confident though that as in the past, the Court will again do this. As a practitioner myself, I submit that we need a lot more lawyers in the market right now.

This year also marked the end of a very long tradition. Since the Bar examination was first administered by the Supreme Court, it has always been in the form of essay questions. In the beginning and with only a handful of candidates, the task of checking these papers used to be manageable. But over the years, the numbers of barristers increased tremendously such that in recent years, we have had an average of 5000 barristers taking the Bar exams annually. This prompted the Court to make the task of correcting these papers more “humane” by appointing two instead of just one examiner per subject. Beginning next year though, the Court will do away with the traditional bar examiners, whose identities are amongst the best kept secrets until the announcement of the bar examination results. Instead, the Court will administer, for the first time, an automated multiple choice bar examination. For what its worth, I am certainly happy that I became part of history: I was among the last “archaic” bar examiners in the last jurrasic bar exam.

Another examiner in civil law is my fellow Manila Standard columnist, Linda Jimeno. This is also history since this is a first time that two columnists from one newspaper had the honor of being bar examiners at the same time.

My gratitude to Supreme Court Senior Associate Justice Conchita Carpio-Morales, Chair of this year’s Bar Examination Committee, for the trust reposed in me.

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Banco Filipino, an all too familiar institution to my generation since many of us were members of its Junior Savers Club, is in peril. Media reports have said that many of its branches have closed. This comes as a result of the Monetary Board’s refusal to extend to the thrift bank an emergency loan of at least P1 billion to cover the recent rush of withdrawals following what appears to be a smear on the bank. Instead, the Board voted to grant BF a loan of only P130 million. This despite the fact that the amount sought to be borrowed by Banco Filipino was fully covered by collaterals.

The bank won in 1994 a final and executory Supreme Court judgment ruling that its earlier closure led by then Central Bank Governor Jobo Fernandez, whose minions are still at the Bangko Sentral, was illegal. Consequently, the Court ordered that the bank be reopened and for the then-Central Bank to do everything necessary to enable the bank to resume its operations. This, presumably, includes implementing a rehabilitation plan. Recently, the bank was also granted an injunction by the Makati Regional Trial Court enjoining the Bangko Sentral from doing “any acts prejudicial to the bank”. This was appealed by the BSP to the Court of Appeals.

Recently, and despite the BSP’s approval of a rehabilitation plan for Banco Filipino, the Monetary Board has refused to implement the rehabilitation plan unless Banco Filipino waives all its damage claims against the BSP. This is unusual given the BSP’s defense in the pending damage case that it is not the successor-in-interest of the Central Bank. If this is indeed the case, why should it demand for this waiver?

Many have criticized Banco Filipino for being mismanaged by polo-playing Albert “Bobby” Aguirre. Officially and in fact, Aguirre is not involved in the day-to-day management of the bank. Moreover, the bank has been under Central Bank comptrollership since it’s reopening. This means that if there is indeed mismanagement, then it is ultimately the BSP that is responsible for this.

Banco Filipino’s woes come amidst the economic uncertainties resulting from the Libyan situation and the tragedy that struck Japan. I could only hope the BSP Governor Amando M. Tetangco Jr. made the correct assessment that the BSP can contain the closure of Banco Filipino even despite these uncertainties.

Meeting of two presidents

I was witness to a historic meeting between two presidents: President Noynoy Aquino and Judge Sang-Hyun Song, President of the International Criminal Court, last Monday at Malacañang’s “yellow room”. Since the year 2000, the Philippines, under then-President Joseph Estrada, signed the Rome Statute of the International Criminal Court. This is the first permanent international tribunal […] More →

The United Nations and the International Criminal Court

The recent decision of the United Nations Security Council to impose sanctions and an asset freeze on Libya for its violent dispersal of protesters is the latest instance where systematic breaches of human rights were made subject to collective security measures under Chapter 7 of the UN Charter. Members of the UN envisioned that wars […] More →