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She’s alive!

The nation is in celebration mode. Who ever thought that one woman would have such a uniting effect on our people? Mary Jane Veloso, formerly part of the faceless and nameless Filipino diaspora, is now in the hearts and minds of every Filipino. And for good reason. She represents the modern-day Filipino who was forced by economic hardship to seek employment abroad, was apparently duped, made into a drug mule, and has landed in Indonesian death row for it. And to those who have doubts on the power of prayers- think again. For in the final analysis, it could only have been the prayers of the nation that saved her from the firing squad.

But the reprieve is just that—temporary. What should make it permanent for Mary Jane is to apprehend the people behind the drug syndicate preying on the hardships of others in making them modern-day drug mules. Unless we can prove that Mary Jane’s only fault was to agree to carry that suit case to alleviate her hardship, she may find herself back again before the firing squad.

Government should hopefully also learn from this experience. Despite Flor Contemplacion and the other drug mules already put to death in China, government apparently has not learned it lessons.

First, we need to modernize and rejuvenate our consular personnel. Our humble contribution in saving Mary Jane was an Application with prayer for provisional measures, which we hope would be filed with the International Court of Justice. The ground for it is rather unique—breach of the Vienna Convention on Consular Relations. Under this Treaty, the nearest Philippine consular official should have been informed of the arrest and investigation of Veloso at the outset, and not when the case was already in Court. Although seemingly trite, it was this reason that prompted the International Court of Justice to issue provisional measures directing the United States not to proceed with the implementation of the death penalty against Mexican and German nationals in the case of Mexico and Germany vs. United States, that is referred to as the “Avena” case.

Here, the government should learn that with a diaspora of 11 million Filipinos working overseas, we should have a dynamic and well-funded consular service in every state where there is an OFW. If only because the sweat, blood and tears of our OFWs have kept us economically afloat, we owe it to them that our consuls should have the resources to invoke violations of the Vienna Convention as a ground for vacating judgments against our nationals. Moreover, it is absolutely unacceptable that Mary Jane faced trial being defended by pro-bono counsel. The DFA must have sufficient legal funds to retain the best possible lawyers in foreign jurisdictions to defend our OFWs. This is   investing on the goose that has been laying the golden eggs for us. No ifs, no buts. It was wrong that our embassy paid for Mary Jane’s counsel only after she had been found guilty.

With other nationals also facing the death penalty worldwide, we should also now be at the forefront of the struggle to abolish the death penalty worldwide. We are in the best position for this since we too had the death penalty until recently. Perhaps we should focus on the drug syndicates preying on the hardship of our people and using them as drug mules as the theme for our campaign.  Perhaps we should highlight that the drug syndicates are the real criminals, and not the drug mules.

Perhaps the biggest lesson that government should heed is: DO NOT WAIT FOR THE ABSOLUTE LAST MINUTE. If you’re going to call in favors and spend goodwill, you might as well do it as early as possible. We might not be as lucky the next time.

Babes Romualdes and I appeared in Malou Tiquia’s new debate program on CNN Philippines. The topic was whether the Philippines’ diplomatic efforts have been sufficient in resolving the West Philippines Sea dispute. I didn’t feel that I was in debate since Babes appears to be in agreement with me on every point that I raised. For instance, I said the problem was not whether diplomatic initiatives have been exhausted. Instead, I argued that the problem is we do not have a concrete policy on the West Philippine Sea, to begin with. I recalled the time when the DFA was split on whether we should resort to arbitration. The policy group thought that arbitration was mutually exclusive with diplomatic initiatives since China, culturally, allegedly does not want to be sued. The maritime group, which prevailed, thought that arbitration was the lone remedy since we cannot continue to negotiate with a superpower that has a gun pointed at our heads. In reality, a concrete policy on how to deal with China should have told us that the Chinese antipathy against all sorts of litigation is a farce given the many cases that it has filed to date with the World Trade Organization. Likewise, a coherent policy would have made us realize that running to Uncle Sam at every opportunity has only further muddled the issue since China today does not eve recognize us as a party to the dispute. In their minds, we are nothing but stooges for the Americans.

Babes wrote about a reader allegedly complaining about persons like me who will talk against the Americans but seemingly oblivious against China. Babes: tell your friend that I am not such a person. All he has to do is to check out my many writings against the Chinese on this issue.

I am a Filipino and will of course only espouse the Filipino interest.

UP PROF: “CHINA CHALLENGING UNCLOS”

REF. Atty Romel Bagares 09166679802

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (UNCLOS), of which it is a member, according to an outspoken Filipino legal academic at an international law conference in Tokyo.

Speaking at the 5th Annual Meeting of the Japan Society of International law at the Chuo University Law School last Sunday, University of the Philippines professor Harry L. Roque Jr. said that China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitutes a “serious breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention”.

Roque, who is also Director of the UP Law Center’s Institute of international Legal Studies, said that the international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”.

“By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” said Roque.

Debunking the view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice that states that made declarations when they ratified the UNCLOS, China included, are deemed to have opted out of the dispute settlement procedure of the Convention, Roque noted that China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures proves that China agreed to be bound by the procedure. “This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

More worrisome, according to Roque, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

“These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings”, Roque said.

The Philippines is the International Tribunal on the Law of the Sea to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague -based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has build artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim, Roque added.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. NIishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands, which the Philippines claimed should form part of the Philippine continental shelf. At least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, and thus may not form part of the Philippine continental shelf, according to the Japanese academic.

He supported however the Philippines position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

Prof. Roque’s power point presentation at the conference may be found in www.harryroque.com

Scenarios for the accused

Now that it appears imminent that the Motion for Reconsideration from a finding of probable cause against “Tanda”, “Sexy” and “Pogi” would be dismissed, what are some of the likely scenarios that may happen soon?

First, on the issue of how the three Information will be heard by the Sandiganbayan, it is certain that these would be raffled separately since the three were indicted for separate acts, not as part of a conspiracy. Chances are that three separate divisions of the Sandiganbayan will then hear the cases separately.

Second, on the issue of detention, it appears that all three would respect the jurisdiction of the Sandiganbayan when and if it issues warrants of arrest against them. I predict all three would surrender. Nonetheless, as I have repeatedly complained, the rich and powerful are never detained in local jails and made to share a small cell with at least 39 other inmates. Instead, it is almost inevitable that they would be detained in special detention facilities. After all, even former President Gloria Macapagal Arroyo agreed to have Senator Jinggoy Estrada detained in an office of the Philippine National Police in Camp Crame. It is a foregone conclusion that all there senators may be housed in similar offices.

Former Senate President Juan Ponce Enrile, owing to his advanced age, should also have no problem getting a medical certificate attesting to an illness. He will probably get hospital arrest not only because of precedents, but also because of real health issues.

It is almost certain that all three accused would file motions to allow them to post bail to secure their arrest pending the hearing of their cases. The rule is that bail is a matter of right except in capital offenses where the evidence of guilt is strong.

I have written before about the innovations introduced by the Supreme Court en banc that now makes it mandatory for judges to rule on motions for bail expeditiously. Unlike, therefore, the Ampatuans who have been waiting for almost five years before a ruling could be made on their petitions for bail, it is now certain that the rulings on the three senators would be made anywhere from six months to a year.

What are the chances for the three to be granted bail?

Objectively, JPE appears to be certain to be granted bail since there is no direct testimony that he received money directly from Napoles, nor that be benefited from the allegedly malversed public funds. Jinggoy’s fate will depend exclusively on the weight that the Court will give to the lone testimony of Ruby Tuason. While she will testify that she personally delivered money to Sen. Jinggoy, her testimony is tenuous since she does not even know how much she delivered. Anent Senator Revilla, his fate will depend on the weight that the Court will give to handwriting experts who will testify that all the signatures purporting to be those of the senator are in fact forged.

I predict a 75 percent chance for bail for Enrile; and 50 percent chance of bail for both Estrada and Revilla.

In any case, all three accused are entitled to the presumption of innocence and it is the burden of the Special Prosecutors of the Office of the Ombudsman to prove that they are guilty beyond reasonable doubt. Given though that the Ombudsman has had a below-10 percent conviction rate, I doubt if any of the accused are really losing sleep over their cases.

Forgive me for being pessimistic. But if the prosecution for the gruesome murder of 58 people have been moving at a snail’s pace, how much more for a crime that does not involve murder?

The bottom-line is this: unless and until the five pillars of the country’s criminal justice system get their act together, no rich or powerful individual will be punished for their criminal acts.

***

I cannot help but admire the Vietnamese for the manner that they have been standing up to China. When the Chinese hosed their vessels, their vessels hosed them back, even if they were terribly outnumbered. And yes, I also admire the fury of its people. I am not condoning the senseless targeting of Chinese businesses in Vietnam, many of whom turned out to be Taiwanese-owned anyway. But the fact is ordinary people are infuriated at China’s expression and they have made their views widely known, especially by the policy makers in Beijing.

Will the Filipinos have the same fury as our Vietnamese brothers? Probably not. When China took control of Mischief Reef away from us, our leaders cried and whimpered but there was nothing heard from the general public.

Its high time that we Filipinos take the issue of our national territory personally. At stake after all, courtesy of the estimated 2 billion to 200 billion barrels of oil in the contested area, is the economic future of all our descendants.

The Vietnamese are correct: the West Philippine Sea is a personal issue to those being bullied.

This post first appeared in http://manilastandardtoday.com/2014/05/22/scenarios-for-the-accused/

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