Legal Notes – Supreme Court Chief Justice Corona Betrayed the Trust Reposed in him by the Filipino People

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

 

Supreme Court Chief Justice Corona Betrayed the Trust Reposed in him by the Filipino People

Did Respondent Corona commit culpable violation of the Constitution and betrayal of public trust?

 

The Constitution expressly provides that “Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”[1] Any act of a public officer which defies the said constitutional mandate and renders the public officer unfit for his or her office is a “betrayal of the public trust”.

The Constitution requires the same accountability to the highest public officials of the land, to wit, the President, Vice-President, Members of the Supreme Court, Members of the Constitutional Commissions and the Ombudsman, and any act of the said public officers which relinquishes the trust of the citizenry is in itself an impeachable offense. Such accountability to the public is required “at all times” and no public officer, including the Chief Justice of the Supreme Court, is immune from such Constitutional mandate.[2] The six (6) exclusive grounds for removal by impeachment are listed and particularly defined below:

1. Culpable Violation of the Constitution – willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment;[3]

2. Treason – as understood under Article 114 of the Revised Penal Code, is an act committed by any person who, owing allegiance to the Government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort;

3. Bribery – as understood under Article 210-211 of the Revised Penal Code, is an act committed by any public officer who shall agree to perform an act, whether or not constituting a crime, or refrain from doing an act which he is officially required to do in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by him personally or though mediation of another, or who shall accept gifts offered to him by reason of his office;

4. Graft and Corruption – as understood under the Anti-Graft and Corrupt Practices Act (RA 3019), is an act which includes receiving any gift in connection with any transaction wherein the public officer in his official capacity has to intervene under the law, or giving any private party any unwarranted benefits through manifest partiality, evident bad faith or gross inexcusable negligence;

5. Other High Crimes – offenses which like treason and bribery, are of so serious and enormous a nature as to strike at the very life or the orderly workings of the government;[4] and

6. Betrayal of Public Trust – catch-all to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes, like inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or, misfeasance, cronyism, favoritism, obstruction of justice.[5]

Unlike criminal offenses or administrative wrongdoings, there is no exclusive enumeration of acts which would constitute impeachable offenses because some of the impeachable offenses do not have strict definitions. The impeachable offenses of “bribery,” “graft and corruption” and “treason” are clearly defined in criminal law books while the meanings of the terms “high crimes,” “betrayal of public trust”, and “culpable violation of the Constitution,” are not exact and “by their nature, cannot be decided simply by reliance on parsing criminal law books”.[6] Although these three grounds for impeachment may be considered “nebulous”, all are considered to pertain to “fitness for public office”, the determination of which allows the exercise of discretion.[7]

The Constitution gives the exclusive power to determine whether or not a public officer’s acts are impeachable offenses to Congress, with the authority to impeach belonging to the House of Representatives and the authority to convict, if warranted, belonging to the Senate.

It is said that the impeachment proceedings involves a political question. This is so because Congress is not only meant to scrutinize the legality of the assailed acts or conduct of the public officer but to examine the wisdom of these as well, in particular, whether or not these acts render the public officer unfit for office and would cause harm to the social structure.[8] Indeed, the impeachment proceedings involves a question of policy, i.e., those issues which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been delegated to either the Legislature or Executive branch of the government. It is concerned with the wisdom, not with the legality, of a particular act or measure.[9]

According to Alexander Hamilton, impeachable offenses must proceed from abuse or violation of some public trust and must “relate chiefly to injuries done immediately to society itself.”[10] These political offenses should be of a nature, which, with peculiar propriety, would cause harm to the social structure.[11] In the end, the test may be whether the public officer’s acts or misconduct necessarily interfere with the performance of his or her official duties or constitute an unacceptable risk to the public so as to constitute an impeachable offense.[12] As such, it can be said that the impeachment proceedings determines the social acceptability of a public officer’s acts and its purpose is to remove seriously unfit public officials to avoid injury to the nation[13] and ,thus, it has been called a “method of national inquest into the conduct of public men.”[14]

Having discussed the basics of Impeachment, the particular eight (8) Articles of Impeachment in the complaint filed against Chief Justice Corona—which used the two (2) grounds of “betrayal of public trust” and “culpable violation of the Constitution”— will be shortly discussed below.

Why is Respondent Corona alleged to have been partial to Gloria Arroyo from the time he was appointed as Justice through his appointment as Chief Justice and up to the present time? May these acts or is his conduct as Supreme Court Chief Justice be considered as betrayal of public trust?

Sec. 15, Article VII of the Constitution clearly prohibits the President from making appointments within 2 months immediately before the next Presidential election as affirmed in the previous case of In Re: Appointments of Valenzuela and Vallarta as RTC Judges.[15] However, in the case of De Castro vs. JBC and President Arroyo[16] which was enunciated in 2010, the Supreme Court oddly reversed the ruling and held that the prohibition does not apply to the Members of the Supreme Court. Despite the obviously negative and confidence-shattering impact of the “midnight-appointment”, respondent Corona accepted his midnight appointment as Chief Justice by then President Gloria Arroyo.

A tabulation of the voting record of respondent Corona will show that he has consistently sided with the Arroyo administration in 15 politically-significant cases[17] involving the Arroyo government’s frontal assaults on constitutional rights prior to his appointment and even during his term as Chief Justice of the Supreme Court. Among others, respondent Corona concurred in the Supreme Court ruling that President Aquino’s order creating the Truth Commission was unconstitutional (Biraogo vs. Philippine Truth Commission) and in the Supreme Court decision stopping the Aquino administration from revoking the appointment of Arroyo’s alleged midnight appointees (Bai Omera D. Dianalan-Lucman vs. Executive Secretary Ochoa). However, in cases involving Arroyo, respondent Corona dissented in the Supreme Court decision declaring Arroyo’s Presidential Proclamation 1017, which put the country under a state of national emergency in 2006, as partly constitutional and partly unconstitutional (David vs. Gloria Macapagal-Arroyo), and in the Supreme Court decision declaring that the tapped conversations between Arroyo and Election Commissioner Garcillano was not prohibited from broadcast (Chavez vs. Gonzales).

Is Corona, as Chief Justice of the Supreme Court and public officer, covered by the requirement of disclosure of his statement of assets, liabilities, and net worth under Sec. 17, Art. XI of the 1987 Constitution? Is his failure to do disclose his SALN a culpable violation of the Constitution and a betrayal of public trust?

Article XI, Section 17 of the Constitution states that “a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.” This requirement covers Corona. However, respondent Corona failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution in violation of the Anti-Graft and Corrupt Practices Act. Respondent Corona is also suspected of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits, among others, a 300-square meter apartment in the Fort in Taguig.

What is the standard of competence and conduct applicable to members of the judiciary of the Supreme Court? Did Corona fail to meet this standard?

Is this tantamount to culpable violation of the Constitution and/or betrayal of public trust?

Sec. 7, Art. VIII of the Constitution provides that a member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

Respondent Corona was appointed by Mrs. Arroyo as Chief Justice of the SC. Previously, respondent served Gloria Arroyo as her Chief-of-Staff and Spokesperson when the latter was Vice-President, Presidential Chief-of-Staff, Presidential Spokesman, and Acting Executive Secretary when she was President. In the following instances, respondent Corona failed to meet the standard required of a member of the judiciary.

A. Flip-flopping rulings in the case of FASAP vs. PAL

In several cases, Respondent Corona showed his partiality especially in the flip-flopping of the Corona Court in the case of FASAP vs. PAL –the recall of the 7 September 2011 Decision denying a Second Motion for Reconsideration of the 2008 ruling in favor of FASAP, acting upon a mere letter from PAL’s counsel Atty. Estelito Mendoza (who is a private counsel of Gloria Arroyo) and without requiring a comment from or notice to the other parties. Respondent Corona caused and allowed the violation of the adverse party’s constitutional right to due process under his watch and without any measure of remorse. This betrays respondent Corona’s lack of ethical principles and leadership and has further eroded the faith of the people in the Judiciary.

B. Mrs. Corona’s appointment as Board of Camp John Hay

Respondent Corona also compromised his independence as magistrate when his wife, Cristina Corona, accepted an appointment from then President Gloria Arroyo to the Board of the John Hay Management Corporation (JHMC), a government owned and controlled corporation (GOCC). This, despite the clear directive provided under Sec. 4 of the Code of Judicial Conduct which provides that “Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment.”[18] Several complaints were filed against Mrs. Corona by her fellow JHMC Board members because of acts of misconduct and negligence. However, the complainants were removed by then President Arroyo from office while Mrs. Corona was promoted as OIC Board Chair of JHMC.

C. Discussing privately with litigants in the Vizconde Case

Respondent Corona also failed to maintain the high standard of independence and propriety when he discussed a case pending before the Supreme Court with one of the parties therein, to wit, People of the Philippines vs. Lejano (Vizconde Massacre Case),[19] thereby breaching the rule on confidentiality. Worse, Respondent Corona intrigued against the honor and integrity of a fellow Supreme Court Justice as allegedly lobbying for the acquittal of Hubert Webb, in violation of Sec. 3(k) of the Anti-Graft and Corrupt Practices Act which prohibits any official from divulging valuable information of a confidential character acquired by his office or releasing such information in advance of its authorized release date. In another case, to wit, Inter-petal Recreational Corporation case,[20] Respondent Corona displayed unethical conduct when he met ex parte with the lawyer of a party to the case in connection with a case pending before him.

Did Corona betray the public trust by encroaching upon the powers of Congress, particularly the House of Representatives, in violation of the Principle of Separation of Powers by allowing the issuance of a “Status Quo Ante” order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Navarro-Gutierrez?

Respondent Corona railroaded the proceedings in the Guttierez case in order to have a Status Quo Ante Order issued in her favor. As stated in Justice Sereno’s dissent, most of the Supreme Court justices received the Petition after the deliberations, while three (3) justices (Velasco, Bersamin and Perez) who voted to issue the Status Quo Ante Order received the petition a day after the status quo ante order had already been granted. The issuance of this TRO violated the principle of separation of powers since the Supreme Court effectively prevented the House from initiating impeachment proceedings which power falls under the latter’s exclusive jurisdiction.

In the cases involving the 16 newly-created cities, and the promotion of Dinagat Island into a province, where he decided in favour of gerry-mandering, did he violate the Principle of Res Judicata? Is this a culpable violation of the Constitution?

Respondent Corona, by allowing the reversals of several supposedly final judgements of the Supreme Court (called “flip-flopping”), violated the principle of the immutability of final judgments. The principle of immutability of final judgments is one of the primordial rules for having a credible and effective system of administration of justice. These reversals were supposedly instigated through personal letters or ex-parte communications addressed to the Respondent Corona, particularly in the following cases: (1) the League of Cities v. COMELEC[21] case involving the creation of 16 new cities; (2) the case of Navarro v. Ermita[22] which involved the promotion of Dinagat Island from municipality to province; and (3) the case of FASAP v. Philippine Airlines, Inc., et al.[23]

Did Corona unjustly arrogate to himself and to a committee he created the authority and jurisdiction to investigate an alleged erring Member of the Supreme Court which power is vested by the Constitution in the House of Representatives via impeachment? Is this a betrayal of public trust?

It was alleged that in the Vinuya vs. Executive Secretary[24] Decision concerning the plight of the surviving Filipino “comfort women” during the Japanese occupation, rampant plagiarism was committed by the ponente, Associate Justice Mariano del Castillo. It appears that, Respondent Corona formed an Ethics Committee for the purpose of determining the culpability of the Supreme Court Justice – an impeachable officer. Very clearly, respondent had no power to do this since under the Constitution, the power to make accountable impeachable officers belonged exclusively to the House of Representatives. Thus, Respondent betrayed the public trust by arrogating unto himself, and to a Committee he created, the authority and jurisdiction to investigate and to subsequently exonerate the said Supreme Court Member.

Did Corona show partiality (i) in granting a Temporary Restraining Order (TRO) in favor of former President Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo and (ii) in distorting the Supreme Court decision on the effectivity of the TRO despite a clear failure to comply with the conditions of the Supreme Court’s own TRO?

The Supreme Court, under Respondent Corona, immediately acted upon the Petition filed by Mrs. Arroyo and granted her request for a TRO despite the fact that there are clear inconsistencies in the latter’s petition. In view of certain objections against the grant of the TRO, a holding of a hearing within the short period of five (5) days was recommended. Despite this recommendation, Respondent Corona engineered a majority of 8 votes (as against five dissenters) for the immediate grant and issuance of the TRO in favor of Mrs. Arroyo and her husband, in blatant violation of the Supreme Court’s own internal rules.

Further, despite the conditions laid down by the SC for the issuance of the TRO, Respondent allowed its issuance notwithstanding the fact there was non-compliance with an essential pre-condition therein, particularly Condition No. 2, to wit: “The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders, and other legal processes on their behalf during their absence. xxx.” The Special Power of Attorney dated 15 November 2011 which they issued to their counsel failed to state that their counsel had the power to receive subpoenas, orders and other legal processes. Instead, they only empowered their counsel to “produce summons or receive documentary evidence.” The Supreme Court, by a vote of 7–6, found that there was no compliance with the second condition of the TRO. Consequently, for failure to comply with an essential condition for the TRO, the TRO is not effective. Surprisingly, however, the SC decided that the TRO was effective despite non-compliance with an essential condition of the TRO.

Did Corona, as the Chief Justice of the Supreme Court, fail and refuse to account for the Judiciary Development Fund (JDF) and Special Allowance for the Judiciary (SAJ) collections thereby committing Graft and Corruption? Is this a betrayal of public trust?

Respondent Corona has reportedly failed and refused to report on the status of the JDF Funds and the SAJ collections. Respondent Corona supposedly also failed, as Chief Justice, to account for funds released and spent for unfilled positions in the judiciary and from authorized and funded but not created courts. In particular, the annual audit report of the Supreme Court of the Philippines contained the observation that unremitted funds to the Bureau of Treasury amounted to P5.38 Billion. Further, the Special Allowance for the Judiciary along with the General Fund, and Judiciary Development Fund in the amount of P559.5 Million were misstated resulting from delayed and/or non-preparation of bank reconciliation statements and non-recording /uncorrected reconciling items.

The general grounds for impeaching a public official (as provided under the Constitution) and the specific articles of impeachment will subsequently be discussed more elaborately.

The materials posted here may be summaries of team outputs or of works of other authors (properly recognized) on the matter of Impeachment. The information materials on the impeachment process and on the impeachment case against Chief Justice Renato Corona seek to educate the people on the bases for the complaint and to give updates regarding the trial at the Senate. The ultimate objective of this forum is to assist the people as they participate in this process of making the Supreme Court and its Members accountable to the people, regardless of the outcome of the trial.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Law Group (ALG), a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

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[1] Sec. 1, Article XI of the Constitution.

[2] Castillo vs. Bellosillo, 354 SCRA 641.

[3] Deliberations on the 1987 Philippine Constitution

[4] Deliberations on the 1987 Philippine Constitution.

[5] Cruz, Isagani. Philippine Political Law. 1996 Edition. Central Lawbook Publishing Co., pp. 334-336.

[6] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Akhil Reed Amar, “On Impeaching Presidents,” Hofstra Law Review, Winter 1999, Vol. 28, No. 2.

[7] Ibid.

[8] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Arthur M. Schlesinger, Jr., “Reflections on Impeachment,” The George Washington Law Review, Vol. 67 (1999).

[9] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Tañada vs. Cuenco, 103 Phil 1051.

[10] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Stephen B. Presser, “Would George Washington Have Wanted Bill Clinton Impeached?”, The George Washington Law Review, Vol. 76, 1999.

[11] Copied verbatim from Supra, Footnote 15

[12] Phrasing copied from Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003.

[13] Footnote No. 20, Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003

[14] By the framers of the Constitution of the United States of America from which the Philippines modelled its own Constitution and Impeachment Proceedings; As quoted in Justice Vitug’s Separate Opinion in the case Davide Impeachment, citing Michael Nelson, ed., “The Presidency A to Z,” Washington D.C. Congressional Quarterly (1998)

[15] 298 SCRA 408.

[16] GR No. 191002, 191032, 191057, A.M. 10-2-5-SC, GR No. 191149, 191342, 191420, 17 March 2010.

[17] Track Record of Respondent Corona’s Voting Pattern in 10 Cases involving Arroyo

1. Information Technology v. COMELEC and Mega Pacific (January 13, 2004)
2. Sanlakas v. Executive Secretary (February 03, 2004)
3. Tecson v. COMELEC (March 03, 2004)
4. Pimentel v. Ermita (December 13, 2005)
5. Senate v. Ermita (April 20, 2006)
6. Gudani v. Senga (August 15, 2006)
7. Lambino v. COMELEC (October 25, 2006)
8. David v. Arroyo (May 03, 2006)
9. Chavez v. Gonzalez (February 15, 2008)
10. Neri v. Senate (March 25, 2008)
11. Akbayan v. Aquino (July 16, 2008)
12. Benigno Simeon Aquino III v. COMELEC, G.R. No. 189793 (April 7, 2010)
13. Biraogo vs. Philippine Truth Commission (G.R. No. 192935, December 7, 2010)
14. Bai Omera D. Dianalan-Lucman vs. Executive Secretary (G.R. No. 193519, October 12, 2010)
15. Gloria Arroyo vs. Leila de Lima (G.R. No. 199046, November 15, 2011)

[18] Sec. 4, Canon 1, Code of Judicial Conduct.

[19] G.R. No. 176864, December 14, 2010.

[20] G.R. No. 186711.

[21] League of Cities v. COMELEC, supra.

[22] G.R. No. 180050, April 12, 2011.

[23] G.R. No. 178083 in relation to Administrative No. 11-10-1-SC.

[24] G.R. No. 162230, April 28, 2010.

Legal Notes – Making Sacred Cows Accountable: Impeachment as the most Formidable Weapon in the Arsenal of Democracy

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

Making Sacred Cows Accountable: Impeachment as the most Formidable Weapon in the Arsenal of Democracy

What is an impeachment? Was the Constitutional process fully complied with regards the impeachment complaint filed by the 188 members of the House of Representatives against Supreme Court Chief Justice Renato Corona?

The Philippine democracy, young as it is, has weathered several challenges and has also given rise to a few innovations, so to speak. Among the more important ones is the concept and practice of “people power” which more than 25 years ago helped give back the power to the Filipino people and gave birth to the 1987 Philippine Constitution. Since then, despite certain weaknesses in the fundamental law and unfortunate abuse by officials, both appointed and elected, Philippine democracy has been “tried and tested” and constantly emerged victorious, embattled but reinforced. The cornerstone of this democracy is the fact that the electorate, the Filipino people are always considered to be the ultimate source of power and that public welfare is the be all and end all for all public officials. Thus, breaking the public trust, even by the highest officials of the land had always been met not only by criticism but by reformatory action, which although considered drastic is always within bounds of the law and supported by the people themselves.

We are at such a challenging juncture again, with the three departments of the government being required to step up to defend democratic institutions and more importantly, to draw the lines clearly on accountability and public service vis-à-vis impunity and blind obedience to sacred cows. The people endured almost a decade of discontent and have been ready to put a stop to the abuse of the system but roadblocks have apparently been left within our democratic institutions to deter change and perpetuate impunity. So, the public officials who wield the power must stand up to represent the people and act in their behalf. That, after all, is what we are here for: to represent the people because of the possible triumph of these actions within the bounds of justice and the law and despite the possible risks of taking unpopular actions against the powerful who refuse to be accountable.

That is what the impeachment process is all about, nothing more, nothing less. The House of Representatives is taking part in, leading this affront against a public official to make him answer to the people questions about his loyalties and capability of serving the public. It is not about disrespect for the judiciary, a co-equal branch which has time and again proven to be the most credible and which had held the torch for our nation and people throughout dark times. It is, in fact, about protecting that institution which e all revere and look to for firm guidance and resolute ascendancy. So, let no one be mistaken. We are supporting the efforts to purge the judiciary of powerful officials who denigrate the concept of public trust and we do this with the Constitution as our only non-negotiable guiding force and its provisions on Public Trust and Impeachment as our most formidable weapon. We are not looking for petty, baseless, unnecessary battles. We are fighting for the very reasons why our democracy survived. If the Chief Justice proves himself obedient to his oath and to be subservient only to the public trust, then all the better. After all, our only foe are public officials who refuse to abide by the fundamental law and to serve the people with independence and integrity.

What is impeachment?

Impeachment is a remedy sanctioned by the 1987 Constitution[1] for removing the President, the Vice-President, the Members of the Constitutional Commissions, the Ombudsman, and for purposes of this discussion, the Members of the Supreme Court. As the last bulwark of justice, the Supreme Court exists to administer justice and thus promote the unity of the country, the stability of government, and the well-being of the people.[2]

How is an impeachment initiated?

The House of Representatives shall have the exclusive power to initiate all cases of impeachment based on the following three (3) modes, to wit:

1. A verified complaint for impeachment filed by any Member of the House of Representatives;

2. A verified complaint for impeachment filed by any citizen upon a resolution of endorsement by any Member of the House of Representatives;

In both modes, the complaint shall be included in the Order of Business and referred to the proper committee for a hearing. By a majority vote of all its Members, it shall submit its report to the House. A vote of at least one-third of all the Members of the House may affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution.

3. A verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House.

In the third mode, the complaint or resolution shall constitute the Articles of Impeachment, and the trial by the Senate shall proceed. Unlike the first two (2) modes, there is no need for a plenary discussion of the complaint in the House of Representatives.

The Senate shall have the sole power to try and decide all cases of impeachment. The concurrence of a two-thirds vote of all the Members of the Senate is necessary to convict the respondent. Its judgment shall not extend further than removal from office and disqualification to hold any public office.

Was the initiation of the impeachment process in the House of Representatives railroaded?

No, it was conducted in accordance with the constitution and after compliance with the procedures therein. It should be borne in mind that the impeachment process is a political process. However, it does not necessarily mean that this particular impeachment effort was motivated by partisan politics or by ulterior motives on the part of the legislators who supported it.

The verified impeachment complaint against Chief Justice Corona, which was filed on 12 December 2011, was signed by 188 Members of the House of Representatives who come from different parties, with the common goal of pursuing accountability from our public officers who hold their post in public trust. The concurrence of more than the required one-third vote of all the Members of the House of Representatives automatically constituted the verified complaint as the Articles of Impeachment in accordance with the third mode cited above.

It is to be noted that the complaint against Chief Justice Corona differs from the previous impeachment complaint filed against former Ombudsman Merceditas Guttierez which was filed by Risa Hontiveros and endorsed by Representatives from the Akbayan Partylist. The latter complaint apparently used the second mode of impeachment process, hence the need to duly refer the complaint to the Justice Committee of the House of Representatives for proper deliberations.

It is not true that legislators were forced to assent to this or were lured with pork barrel funds to do so. This impeachment was carefully studied and the legislators supporting it are under the belief that an independent and competent Supreme Court deserves a Chief Justice who is subservient to no one else but the law and the people. To stand by and watch while the final arbiter of the law deteriorates and the Supreme Court loses credibility and integrity would be contrary to our sworn duty as legislators to look after the people’s welfare.

The successful impeachment proceedings at the House show that our Constitution is working and that the system of checks and balances among the three branches of government is in place. The impeachment proceeding was done for the very purpose of protecting our democratic institutions for which purpose, unfortunately, Chief Justice Corona failed to contribute. The impeachment trial at the Senate will help educate our people regarding democracy, the duties of public officials and will show them that there are legal means to remove officials of questionable integrity from office and to seek accountability.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Law Group (ALG), a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

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Section 2-3, Article XI, 1987 Constitution.

[2] Preamble, Code of Judicial Conduct.

SPONSORSHIP SPEECH – HR 1411

SPONSORSHIP SPEECH – HR 1411

Rep. Kaka J. Bag-ao, AKBAYAN Partylist

Committee on Aquaculture and Fisheries Development

November 23, 2011

 

Magandang hapon po sa inyong lahat.

Last May 10, 2011, I delivered a privilege speech on the inadequate protection being given to our fisherfolks.

As I have previously stated in my privilege speech, the Philippines, as an archipelago, has very rich and abundant marine and aquatic resources.  This has made us among the world’s 40 largest fish producing countries, providing a livelihood to more than two million Filipinos. In fact, data shows that fisheries contribute around 4.3 % of our GDP and 18% of the gross-value added. It is also one of the Filipino’s main sources of food, second only to rice.

Despite these crucial factors which highlight the importance of the fishing industry, our fisherfolk sector remains to be one of the poorest among the poor and continues to confront major problems such as the issue of tenurial security.  More than 60% of the people residing in coastal areas are at risk of strong wave surges and typhoons or being claimed by individuals. Traditional routes to fishing grounds, areas for seaweed and fish drying are being privatized and commercialized resulting to displacement of municipal fisherfolks.

The fisherfolks however are not without protection regarding displacement.  Sec. 108 of RA 8850 mandates the government to establish and create fisherfolk settlement areas in coordination with concerned agencies of the government, where certain areas of the public domain, specifically near the fishing grounds, shall be reserved for the settlement of the municipal fisherfolk.

Unfortunately, even after thirteen years from the enactment of the law in 1998, the Department of Agriculture, through the Bureau of Fisheries and Aquatic Resources failed to issue the proper implementing rules to implement the spirit of Section 108.

In my recent consultation with our fisherfolks, I was informed of instances that emphasize the immediate need to implement Section 108 and finally protect them from displacement.  Nanay Rosing from Zambales came home one day and was informed that the land she calls home for her entire life is not hers and was now sold to someone from Quezon City.  Another fisherfolk said that they were removed from their residences near the coast because it was supposedly dangerous without however, providing them a viable settlement where they can continue with their livelihood with similar ease and accessibility.  In fact, this lack of viable settlement and non-implementation of Section 108 may have forced some fisherfolks to set up houses along danger zones.

Mga kasamahan kong mambabatas, our fisherfolks are not asking to be granted new rights. They are merely asking for the implementation of the rights long been granted to them by the Constitution.  Section 7, Article XIII of the 1987 Constitution mandates the State to protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore.  The right of fisherfolks to land tenure also finds basis not only in RA 8550 or the Fisheries Code of 1998 but also in RA 7160 or the Local Government Code and RA 7279 or the Urban Development and Housing Act. Despite this fact, our fisherfolks are still saddled with problems on land tenure and displacement which should have long been remedied by the aforementioned laws.

Fellow lawmakers, the laws that we enact, how noble they may be, are rendered useless if they will not be implemented. With this hearing, we hope to propose a solution to this vacuum in our system of delivering basic services to our underprivileged sectors.

Maraming salamat!

Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Legal Notes of Kaka J. Bag-ao

AKBAYAN Representative

          It has been said that the Supreme Court is the last bulwark of constitutional rights and liberties. But, what happens when the Supreme Court itself transgresses these very rights that it is duty-bound to protect?

The Supreme Court is vested with the power to protect the Constitutionally guaranteed rights of the citizens and provide a redress of wrongs for violations of such rights.  However, the recent decision of the Supreme Court to recall the final and executory judgment in the case between the Flight Attendants and Stewards Association of the Philippines (FASAP) and the Philippine Airlines (PAL) has placed the integrity of the High Court in question.

 

Dissecting the FASAP Case 

The FASAP case has been ongoing for more than thirteen years already starting from 1998 when 1,400 flight attendants were retrenched by PAL.  In 2008, the retrenchment was declared illegal by the Supreme Court. PAL’s first Motion for Reconsideration was denied by the Court in 2009 and its Second Motion for Reconsideration was denied with finality last September 2011.

In an unusual turn of events, the Supreme Court issued a Resolution recalling its second Resolution on the basis of letters sent by PAL’s counsel, Estelito Mendoza.

It must be emphasized that this unexpected development is fraught with more procedural irregularities other than the mere recall of an already final and executory Resolution.  As a member of the legal community, this case has far more damaging implications to our judicial system.

Despite its previous pronouncement that no further pleadings will be entertained, the Supreme Court nonetheless accepted the letters of PAL’s counsel and used them as the subject of a separate administrative proceeding.  To note, the main case is under G.R. No. 178083 but the letters were discussed under Administrative No. 11-10-1-SC.  This creates a very dangerous precedent.

First, the Resolution did not state any justifiable reason for the recall. While the Supreme Court, during its presscon, stated that the recall was due to the fact that it was issued by a wrong division, this never appeared in the Resolution recalling the second Resolution. Nevertheless, the flimsy excuse that it was decided by a wrong division cannot be accepted because the decision of a division is a decision or resolution of the Supreme Court itself. Thus, the Resolution, regardless if it was issued by a wrong division, is still a decision of the Supreme Court itself and thus, valid.

In fact, in a different case involving NUWHRAIN-APL-IUF, the employees union of Dusit Hotel Nikko, the Supreme Court was more than willing to brush aside not only a procedural lapse but a violation of the Constitution when the division which resolved the Motion for Reconsideration was made up of only four justices instead of five and that the division reversed a well established doctrine of labor law which falls within the exclusive power of the Court sitting en banc as provided by Section 4, Article VIII of the 1987 Constitution.  Despite these grave violations of the Constitution, the Supreme Court refused and continues to refuse to rectify these irregularities.  Whereas, in the case of PAL where the infraction was insignificant, the Court was quick to act.  Why the double standard?

Second, the recall of the second Resolution in G.R. No 178083 was done under Administrative Matter (AM) No. 11-10-1-SC which is an entirely different proceeding.  The letters sent by PAL’s counsel were seeking for only one request – be advised on the names of the members of the Court who deliberated and voted on the Resolution denying PAL’s Second Motion for Reconsideration.  The letters were bereft of any statement regarding the authority of the division to issue the Resolution.  Thus, being merely an administrative proceeding, the Supreme Court should have acted in its administrative capacity and should have limited the discussion on whether to advise PAL’s counsel on the names of the members of the Court who deliberated and voted on the Resolution. It cannot touch upon the final Resolution in G.R. No 178083 which is an entirely separate case, unless both are consolidated.

Further, the recall of a judgment is no longer an administrative function but an exercise of judicial power which cannot be the subject of a mere administrative proceeding. According to the internal rules of the Supreme Court, administrative matters include disciplinary actions, transfer of judges or cases, amendment or revocation of administrative circulars issued by the Court, policy consideration, matters involving the JBC and PHILJA and other similar acts.  Clearly, the administrative functions are those related to the general supervision and administration of the judiciary.

The recall of Resolutions is not one of the administrative functions of the Court which may be the proper subject of an administrative proceeding.  It is already an exercise of judicial power.  It would have been different if what was involved is merely the transfer of the case from one division to another.  However, in the case of FASAP, there was already a final resolution on the matter, which as previously discussed is considered as a Resolution of the Supreme Court itself, regardless of which division rendered it.  The Supreme Court cannot violate the established rules of procedure just to rectify a previous deviation from its internal rules. In popular parlance, two wrongs don’t make one right.

Third, neither PAL nor the Supreme Court can claim that the alleged deviation from the internal rules of the court with regard to the composition of the division will have dire consequences on the interest of PAL.  It must be emphasized that the Second Motion for Reconsideration which it filed before the Third Division is already a prohibited pleading under Section 2, Rule 52 of the Rules of Court and under a myriad of jurisprudence. Further, the first Resolution explicitly stated that “no further pleadings will be entertained.” Nonetheless, the Supreme Court still entertained PAL’s Second Motion for Reconsideration. With the denial of the Second Motion for Reconsideration, the doubts of FASAP on the Court were quickly eased. However, in less than just a month, the Supreme Court recalled the Resolution and reopened the case again on the basis of letters from PAL’s counsel. This, in effect, is already a Third Motion for Reconsideration on the case. To this we ask, when does a case really end?

Applicable is the landmark case of Tolentino v. Ongsiako, et al (GR No. L-17938, April 30, 1963) which stated that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. Interes rei publicae ut finis sit litium.

The recall of the second Resolution is a major setback not only for the retrenched employees but for our judicial system as well.  With this case already forming part of our judicial system, what can stop parties or their lawyers from employing stratagems or maneuverings, in the guise of letters or endless Motions for Reconsiderations, in order to delay the termination of cases? Unless the Supreme Court recognizes that it made a mistake in recalling the second Resolution, nothing will.

Finally, the recall of the Resolution was issued ex-parte or without granting the other party an opportunity to contest the letters filed by PAL’s counsel.  Considering that the previous Resolution already vested rights on the members of FASAP who have long been waiting for justice, fairplay dictates that they should at least have been given a chance to dispute the letters of PAL’s counsel which they were never granted.

 

Rule of Law or Rule of Men?

With the Supreme Court’s controversial recall of the Resolution, one cannot help but ask this question: Are we really governed by the rule of law or the rule of men?

If the rule of law was upheld, fairness and equity dictate that the case should have ended after the denial of the FIRST Motion for Reconsideration in 2008 or more than three years ago.  However, that is not the case. One only needs to consider this fact to answer the question: the employees waited for more than a year before the Court dismissed the Second Motion for Reconsideration while their employer PAL only had to wait for a month to have the same recalled through an unusual power of a mere letter.

After having said this, the answer to the question of whether we are governed by the rule of law or rule of men becomes very much obvious and does not necessitate articulation. Res ipsa loquitur.

Sadly, the words of the second Resolution which stated that “the [Court] is duty-bound to finally put an end to the illegality that took place, otherwise, the illegally retrenched employees can rightfully claim that this Court has denied them justice” are now reduced to empty rhetoric and an eloquent example of irony.

 

*** A lawyer by profession, AKBAYAN Representative Kaka J. Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

Gender and Maternal Health

Gender and Maternal Health

Kaka J. Bag-ao, AKBAYAN Partylist

October 14, 2011 / Hyatt Hotel (Asean Conference on Promoting Maternal Health)

 

 

Newsweek has recently ranked the Philippines as the 17th best country for women, giving it a score of 86 out of 100. The Philippines was the only Asian country in the top 20, and it looked into the situation of women in the following areas: justice and treatment under the law; access to health; access to education; economics and workforce participation; and political power.

 

The Newsweek list provides a certain perspective to where Filipino women stand nowadays. The basis of the ranking may be crude, and the gap between the top countries like Sweden, Norway, and Canada and the Philippines may be vast, but the inclusion of the Philippines in the list pays tribute to the heroines of our country. It honors the Filipino women: those crazy enough to think that the status quo is unacceptable, those who sacrificed to give birth to change.

 

We must not cease to draw inspiration from Filipino women who dared to build their own paths. From the women of Malolos that challenged the friars in their passion and desire to learn and improve their lot to the progressive women of Gota de Leche, the origin of the women’s movement in the Philippines, Filipino women never refused to push the envelope further. From Cory Aquino to the women of Sumilao farmers, one could only be amazed by how, despite the struggle and the battles that Filipino women constantly face, we have managed to do our part in building our nation.

 

But recognizing and honoring our triumphs is different from taking comfort from such country ranking by the media or by any institution for that matter. In fact, my first agenda in this meeting is to question the rank of the Philippines in the list. As a lady legislator, I believe that we should not fall into a sense of complacency because of standards that could have used a different lens. The only yardstick that matters is the dignity of Filipino women, and not Newsweek’s ranking: that Filipino women are able to reach their full potentials, that they enjoy the same entitlements and rights, and that they live free of fear and abuse – these, for me, are the real barometer of the state of Filipino women.

 

For our gathering today, let me focus on three aspects: the issue of human rights, in particular violence against women; the issue of women in governance and the political participation of women; and reproductive health, especially maternal health.

 

By criminalizing violence against women, and through other legislative gains like the enactment of the anti-rape law and the Magna Carta of Women, we have established a policy environment where the prevention and remedy of violence against women could be accomplished. We have significantly harmonized our domestic laws on violence against women with our international and constitutional commitments to eliminate gender-based violence.

 

Yet the impact of our policy gains in this area remains to be seen. Reported cases of rape has not significantly gone down, with 770 incidents in 2009 from 811 in 2008. Wife battering is still common, with almost 1,500 reported cases in 2009. Law enforcers have likewise noted an increase in reported acts of lasciviousness.^[1]

 

Note that these are reported cases. In our society, a climate of invisibility still surround violence against women, an indication that gender-based violence is still committed with impunity because of perceived second-class status of women. It also points to the challenges we face in dealing with violence against women with a more holistic approach. Clearly, legislation is not enough. The redress mechanisms that we have established by law could only be effective as the gender empowerment program that would help women to speak out against violence. VAW doesn’t end with law making or even law enforcement.

 

The more fundamental problem is the climate that made it conducive for violence against women to proliferate. A few days ago, a female UPLB student was reportedly raped and killed, a harrowing incident that should not have happened. While the law maybe sufficient in ensuring that justice is served, the more crucial issue is how we should address the vulnerabilities of women that allow violence to happen. It is not a simple security question, or even a morality question. Violence begins with dehumanization, a problem that requires educating the public and changing the consciousness that makes it easy for others to think that it is ok to commit gender-based violence.

 

On political participation, that two women politicians have become president is seen by many a big accomplishment. Indeed, compared to countries where the political participation of women is curtailed through draconian rules and oppressive laws, our accomplishment seems astounding. Women representation in politics has gradually increased, with 17% of elective posts won by female candidates after the 2010 elections.

 

But the number of women presidents or elected female politicians doesn’t complete the picture. Public service and politics remain to be a macho country. Gloria Macapagal Arroyo may have been the second woman President of the Philippines, but one could hardly call her administration as pro-women. It was under GMA’s watch that the RH bill’s enactment was prevented, with GMA giving up the bill in favor of getting the support of the Bishops. In that regard, GMA was more macho and anti-women than other male Presidents.

 

In the judiciary, the participation of women is also dismal, with women comprising only 26% of judges in the country. While the top most political positions mainly reserved for men, women dominate the bureaucracy, with females holding 58% of the total appointive government position. This shows that we still need to break the glass ceiling that has prevented the empowerment of women politically.

 

One concrete proposal is the enactment of the gender quota bill, an affirmative action that progressively increases the quota of women in elective and appointive positions. In many countries, from Scandinavian countries to developing countries like India and Nepal, this strategy contributed in mainstreaming women politically. We practice the same approach in Akbayan and we could attest to its impact.

 

The biggest gap in terms of women’s welfare is the absence of an RH policy and program. No woman rights advocate should rest easy until the RH bill is enacted.  The quality of debate in Congress and Senate has deteriorated into dilatory sectarianism. Abortion is an apt metaphor: what’s being aborted by the continuing refusal of many anti-RH legislators to see the necessity of approving the bill, and approving it now, is common sense. They are aborting common sense.

 

The bill is not just about common sense, it is about human sense. We can debate forever whether it’s really seven or eleven maternal deaths that take place every day, but one death is one too many. If we wish to curb maternal death, then let’s pass the RH bill. If we want to lessen abortion, then lessen unwanted pregnancy. If we wish to fully integrate women in our own development, then give women the choice to plan their family.

 

These challenges are not easy. Machismo and patriarchy still create barriers to women empowerment and gender equality. But if we look at the lives of our heroines,   from Gabriela Silang to Lorena Barros, we’d realize that nobody said that it’s going to be easy. But if we are keen enough to learn from their lives, we’d discover this lesson: that in the end, we shall triumph.

---

^[1] Source: 2010 Factsheet on Filipino Men and Women (PCW).

Sponsorship speech for HB 515 – Anti-Discrimination Bill

Fulfilling the promise of basic fairness

Sponsorship speech of Akbayan Rep. Kaka Bag-ao for the Anti-Discrimination Bill (HB515)

September 27, 2011 / Committee on Women and Gender Equality

 

 

Good afternoon, Madam Chair and honorable members of the committee.

 

In an interview in New York during the Asia Society Forum last month, President Noynoy Aquino reiterated his position on LGBT rights: that while the Aquino government is not ready to tackle the issue of same-sex marriage, it believes that LGBTs should not be discriminated.^[1]

 

The statement of the President breaks the atmosphere of invisibility and silence that the previous GMA administration has build around the issue of equal rights. For almost a decade, the Philippine government turned a blind eye to the plight of Filipino lesbians, gays, bisexuals, and transgenders, and instead of engaging in meaningful dialogues about the inclusiveness of human dignity, it allowed divisive sectarianism to trump equal rights. Not everyone would be pleased about the stance that President Aquino made on same-sex marriage: by stating that it is not his administration’s priority, those who are opposed to it would see the stand as tepid; on the other hand, those pushing for same-sex marriage would see it as a concession to the Catholic Church.

 

But whether one is anti or pro same-sex marriage, it is important for all of us to step out of the hostile atmosphere that has marked our discussions on LGBT rights and go back to where the debate should be situated: within the context of human rights and equality. This is why the pronouncement of President Aquino is important: that whether we believe in same-sex marriage or not, we should all make a stand for equality.

 

The nature of the bill that we are tackling today, Madam Chair, is precisely that: basic fairness, and realizing the promise of equality guaranteed in our constitution. It reflects the yearning of many Filipinos for that chance to be treated as equals, and to live in a nation where dignity is not determined by one’s gender, or the sex of the person we found ourselves loving.

 

Basic fairness is the prayer of any mother whose child is being bullied in school for being too effeminate, for cross-dressing, for being “bakla”. It is the common aspiration of lesbian and gay students who, having faced prejudice in their schools and communities because of their sexuality, fear that they would encounter the same gender-based biases once they’ve entered the labor force.

 

When a gay man goes home after spending three nights in jail, where he suffered extortion, physical abuse, and humiliation in the hands of policemen who arrested him for vagrancy or prostitution, solely on the basis of the presence of condoms, his thoughts would be on the ordeal that he went through. This incident of police abuse would sear on his mind how dignity could be taken away easily and arbitrarily by abusive law enforcers. Same-sex marriage would be the last thing he’d think about.

 

Reducing LGBT rights to same-sex marriage renders invisible the inequality and abuse faced by Filipino LGBTs. This is the status quo, Madam Chair, that the Anti-Discrimination Bill aims to cure: we hope to provide a remedy for the inequality experienced by LGBTs by ensuring that human rights violations committed against them are penalized.

 

The Anti-Discrimination bill introduces the language of sexual orientation and gender identity in our laws and defines these concepts. This is not entirely novel, in a sense, since both sexual orientation and gender identity have been mentioned in some of our laws already. Currently, there are four laws where the above terms have been mentioned:

 

• Under Section 59 of the PNP Reform Act of 1998, the NAPOLCOM is mandated to establish a gender sensitivity program that includes the prohibition of discrimination on the basis of sexual orientation;
• Section 17 of the Magna Carta for Public Social Workers (2007) includes protection against discrimination on the basis of sexual orientation as one of the rights of government social workers;
• The Magna Carta of Women (2009) has included sexual orientation as a protected category in its human rights principles (Section 3, para 4) and gender identity in its women in sports provision (Section 14);
• The definition of crimes against humanity under the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (2009) includes widespread persecution against any groups or collectivity on the basis of several grounds, including sexual orientation.

 

However, neither sexual orientation nor gender identity have been defined under these laws. Furthermore, since their scope is limited, they do not provide comprehensive protection against discrimination on the basis of sexual orientation and gender identity.

 

By defining sexual orientation and gender identity in our laws on gender equality and human rights, we likewise harmonize our domestic laws with binding international laws and covenants that we have signed, among them the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women.

 

These international human rights instruments have already been applied to cases of human rights violations against LGBTs. For instance, as early as 1994, the UN Human Rights Committee, the committee that monitors the enforcement of the ICCPR, declared in Toonen vs Australia that the anti-sodomy law of the Australian State of Tasmania goes against the Covenant.

 

Madam Chair, the bill likewise explicitly prohibits acts of discrimination in areas where LGBTs often meet prejudice.

 

In public service, the bill aims to address illegitimate and unconstitutional barriers to access to public service, one of which is the continuing refusal of the armed forces to allow the entry of LGBTs. The AFP has repeatedly claimed that it is open to LGBTs, and yet under its policies, ‘homosexual tendency’ is a basis for removal from the active force or rejection of one’s application to serve the country as a soldier.

 

The same arbitrary and unconstitutional bias could be seen in the case of Ang Ladlad, whose application for accreditation was rejected by COMELEC due to ‘immorality’.

 

The bill also aims to penalize discrimination in the workplace. In some private schools, teachers found to be in a relationship with people of the same sex could be dismissed from work. The first documented case of LGBT-related discrimination in the workplace involved a lesbian couple who were dismissed by their employer, a human rights NGO, because of their decision to come out as a couple. A case was filed against the NGO but it was dismissed by the NLRC due to the absence of any protective laws against discrimination based on sexual orientation and gender identity.

 

The bill also aims to enforce equality in educational institutions. Some schools still impose discriminatory admission policies through ‘masculinity tests’ that rate student applicants according to their behavior. Some schools also include patently discriminatory policies in their student handbooks, among them prohibitions on expressions of effeminacy among male students. Some private and public schools also impose rules against organizing of LGBT groups, thus curtailing the right to freedom of assembly, another form of discrimination that the bill aims to penalize.

 

The persistence of stigma is also one barrier to universal healthcare. The growing HIV infection among gays, bisexuals, transgenders, and other men who have sex with men proves that life-saving health services, especially those linked to sexual health, are not accessed due to the persistence of stigma and discrimination. According to the United Nations, the perception that HIV is a gay disease and discrimination based on sexual orientation and gender identity make it harder for HIV prevention services to reach these communities.

 

Discrimination is likewise experienced by lesbians in healthcare. A lesbian organization reported before, for example, that OB-gynes would refuse to treat lesbians because they’re not women.

 

HB 515 also aims to penalize harassment and abuse committed by law enforcers against LGBTs. Some law enforcers use their position to reinforce biases against LGBTs through the wrongful application of the law: lesbian couples, for instance, are arrested using our anti-kidnapping policy on the wrong and homophobic assumption that no decent woman would get into a consensual relationship with a lesbian unless she was kidnapped by the lesbian. Gay men and transgenders are arrested through the wrong enforcement of our anti-prostitution laws, using condoms as sole evidence to rationalize police operations that lead to the detention of gay men and transgenders. Some policemen assume that condoms indicate sexual activity, and sexual activity between men could only be transactional or paid because no decent man would have sex with another man.

 

Finally, the bill wants to prohibit mandatory psychiatric treatments that aim to ‘correct’ one’s homosexuality. There is a consensus in the medical field already that homosexuality is not a pathological condition, and therefore it should not be cured.  Alarmed by the growing popularity of conversion therapies in the US, the American Psychological Association established a Task Force on Appropriate Therapeutic Responses to Sexual Orientation in 2009 and concluded that such therapies cannot change one’s sexual orientation. The Task Force even found evidence that such conversion therapies could be harmful.

 

The bill, as you can see, doesn’t grant additional rights to LGBTs. It merely corrects practices and policies that deny the full enjoyment of rights and freedoms that are supposedly accorded equally to all members of the human family. The alarming incidents of discrimination on the basis of sexual orientation and gender identity also indicate that we do need an anti-discrimination law to enable the guarantees provided in our constitution and in various international human rights instruments that the Philippines has signed.

 

To close my sponsorship speech, let me share with you what UN Secretary General Ban Ki Moon said in a statement supporting the call for the recognition of LGBT rights in the UN. He said that “it is not the ‘Partial’ or ‘Sometimes’ Declaration of Human Rights, but the ‘Universal’ Declaration of Human Rights.” As members of this esteemed committee, I appeal to you to help fulfill this promise of basic fairness and equality not just for a few Filipinos, or some Filipinos, but for all Filipinos.

 

Maraming salamat, Madam Chair.

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^[1] Aquino’s exact words: “Gays shouldn’t be discriminated against in terms of occupation and other aspects. I am not prepared to support it (gay marriage).” – Philippine Star interview, 2010

A View from Row Four: Ruling the Majority

A View from Row Four: Ruling the Majority

By Kaka J. Bag-ao

Row 4 is usually the last row of seats in a classroom. Its occupants are usually the noisy, unruly and the boisterous members of the class. Row 4, however, has also become synonymous with fun. As a student, from elementary to law school, I have always been a permanent resident of Row 4.  This distinction has followed me even into the plenary hall of the House of Representatives where I sit as a neophyte party-list representative of Akbayan. I am literally seated, together with my colleague, Rep. Walden Bello in the last row of the 284-seat plenary hall. Not unlike the row 4 of a high school classroom, the last row of the plenary hall is also one of the places where congressmen and women converge for small talks.

But Row 4 in the House of Representatives is not all fun and gossip. It is also where fellow representatives come to discuss, exchange opinions and informally debate on the issues of the day. Hence, my seat in the back row has its advantage since we get a glimpse of the debates in the sidelines and the inside stories of such debates.

My back row seat provides me with a vantage where I can see the whole session hall with all its comings and goings and the dynamics on the floor especially during debates on controversial pieces of legislation and issues of the day.

As neophyte legislator, one of the challenges that I have faced was getting to know the Rules of the House of Representatives and its processes. As a lawyer, formal rules and processes are of interest to me. As an advocate, the informal rules, process, traditions and relationships within the House are important to me. Mastering both the formal and informal rules and processes of this House is essential if I am to be an effective representative of Akbayan’s constituents.

One of the things that fascinated me immensely during my first year in the House of Representatives is the workings of the majority. Just like myself, my party Akbayan is a neophyte in the majority as we have always been in the opposition. With the election of President Noynoy Aquino, we have found ourselves joining the Majority in the House of Representatives. Again this is something new to us and in fact we are still struggling to act like and look like members of the Majority.

Being members of the opposition for a long time, my party, knows too well that the rule of the Majority may be harsh. We are veterans of many instances where the Majority used the tyranny of numbers to drown and railroad us in the past. We know too well that no amount of strength of arguments or moral ascendancy can block the tyranny of the Majority if they choose to wield it.  This is the kind of tyranny that I do not want to be part of as a member of the majority.

From my vantage point in Row 4, I have keenly observed the working of the Majority in every critical and controversial debate and vote in the plenary floor. From my view in the back, I have observed how the majority wielded its strength in numbers and I cannot help but notice the Majority Floor Leader – Rep. Neptali Gonzales II.

Knowing the diversity of the more than 280 members of the House of Representatives and our diversity of personalities, styles and inclinations, I do not envy his role as leader of the Majority and as the facilitator who needs to ensure that the legislative mill will continue to run.

The Majority Floor Leader is elected from the ruling majority party.  He/She functions as the spokesperson of the majority party. Being also the concurrent Chairperson of the Committee on Rules, the Majority Floor Leader also is responsible for the calendar of bills, the preparation of the Order of Business and Calendar of Business and all other matters relevant to the Rules of the House . Most importantly, the Majority Floor Leader directs the floor deliberations in the House of Representatives.

The Majority Floor Leader should be one of great experience in the parliamentary proceedings in the House of Representatives, and should be trusted and respected as well by his or her colleagues to be able to facilitate floor deliberations, as every single legislator brings to the session hall their own political and parochial concerns.

As I sit in my in Row 4 and observe the proceedings, I cannot but keenly observe Cong. Boyet going about his job as the Majority Floor Leader. More than his achievements as an elected official, I admire him with how he subtly but ably control the deliberations not because of any secret agenda, but because it is his job to make sure we do our job as legislators during House sessions.

There were certain instances I can relate which I really admire him for, and for which I consider him as a sort of political mentor in my first term as a lawmaker.

In many instances, he personally approaches those who have concerns on parliamentary proceedings. He takes time to talk with the representative who has those concerns, and explains thoroughly the Rules of the House, and he stresses on the importance of certain procedures not only for the orderly conduct of House business, but also for the benefit of all of our constituents. Along with his colleagues in the Committee on Rules, he was actually the person chiefly responsible for House Bill 4146 (which synchronizes the ARMM elections with the regular national elections) to be read on 3rd reading and transmitted to the Senate, and now enacted into law by President Noynoy Aquino.

During the plenary deliberations on the impeachment case filed against then Ombudsman Merceditas Gutierrez, he studied the facts of the case and the grounds presented. He also studied not only the legal aspects and legality of the impeachment case sponsored by the Committee on Justice, but also took into consideration the grave impact on the public of this particular political exercise.

In the Ethics case filed against my colleague and party mate, Cong. Walden Bello, he was accused of having behaved against parliamentary rules when he called Cong. GMA and her allies certain names during his first privilege speech.  During the hearings of the Committee on Ethics, I was awed when Cong. Boyet took leadership and argued like a brilliant lawyer in defending Cong. Walden, saying that the Committee on Ethics had no jurisdiction over what Cong. Walden did in his privilege speech. I was a neophyte, Cong. Walden was only on his second term, and AKBAYAN Partylist only became part of the majority during this 15th Congress, and we thought we would be left on our own. But Cong. Boyet involved himself in Cong. Walden’s case and helped us defend the case against GMA’s allies in Congress.

All these  made me realize that  as a legislator, knowledge about the laws is not the only way to become brilliant. You also need to have the skills necessary to be able to push for the passage of bills, especially during times when opposition was heavy and a lot of delaying tactics are being done. These skills involve a lot of time talking to House members and making them understand that this bill is not only politically valuable but also concerns the betterment of our constituents. And seeing Cong. Boyet in action every day during my first year, I was inspired to do my job well, and I look forward to the next two regular sessions to learn more about floor work from him.

Observing Cong. Boyet made me realize that wielding the strength of the Majority need not necessarily be tyrannical, the power of the majority can be wielded with grace, reason and intelligence.

SPONSORSHIP SPEECH HB 3763 (Minerals Management Bill)

SPONSORSHIP SPEECH HB 3763 (Minerals Management Bill)

Rep. Kaka J. Bag-ao, AKBAYAN Partylist

Delivered on August 24 2011 / RV Mitra 3 and 4

 

Magandang Hapon po Mr. Chair, at Members of the Committee!

It was 7:15 pm of September 29 1993, when House Bill No. 10816, entitled “AN ACT INSTITUTING A NEW SYSTEM OF MINERAL RESOURCES EXPLORATION, DEVELOPMENT, UTILIZATION AND CONSERVATION” was under consideration in the plenary of the 9th Congress. The Honorable Renato A. Yap, Chairman of the Committee on Natural Resources began his sponsorship speech,

“Mr. Speaker, allow me to convince my colleagues today, that we are a rich country whose wealth remains buried under its grounds. The author of the Miner’s Praise in Job 28 of the Holy Bible may have had the Philippines in mind: There is a mine for silver and a place where gold is refined. Iron is taken from Earth and copper is smelted from ore.”

The Honorable Yap was correct. Indeed, we are a rich country. “Third in gold, fourth in copper, fifth in Nickel, sixth in Chromite.” But such is not the wealth which is our most important resource.  Mr. Chair and members of the Committee, if there is any wealth which Filipinos should be proud of, it is the Philippine biodiversity.

Our country is one of the “17 Megadiversity Countries” which claims two-thirds of the entire earth’s biological diversity, home to more than 20,000 endemic species of plants and animals. Biodiversity provides us with a range of food and nutrient sources. According to Goodland and Wicks, authors ofPhilippines, Mining or Food?, it is biodiversity which provides an agriculture gene pool that will produce food amidst climate variations. It cannot be gainsaid that biodiversity is a valuable resource because it is crucial to food security.  In essence, Philippine Biodiversity is the lactating mother who breastfeeds us.

So it then begs the question, why are Filipinos hungry?

Mr. Chair and members of the Committee, a case in point is mining in Mount Hilong-hilong in Cantilan, Surigao del Sur. Declared as one of the nine (9) Key Biodioversity Areas in the Philippines by the Department of Environment and Natural Resources (DENR), a Water Forest Reserve pursuant to Presidential Proclamation 1747, protected by one of the only two Temporary Environmental Protection Order (TEPO) issued in this country, home to five (5) major water systems and the few remaining old growth and primary forest, but still hauled, bulldozed, dug by the Marcventures Mining and Development Corporation.

In Tampakan, South Cotabato, 20,000 hectares of sustainable farmlands are under the mercy of Western Mining Corporation and Sagittarius Mining, Inc. Five major rivers, including the Padada River alone which irrigates 33,000 hectares of lowland farms would be polluted. Also to be affected, is the 4,954-hectare Lake Buluan whose tilapia, milk fish, big head carp and eel feed 27, 000 households.

In Didipio, Nueva Vizcaya, the Oceana Gold Project needs to divert 3.8 Billion liters of freshwater to extract gold and copper while the same amount of water is needed to produce 1,538, 592 kg of rice.

These are only three cases, Mr. Chair and Members of the committee. According to the Mines and Geosciences Bureau (MGB), there are currently 482 approved mining applications covering more than one million hectares in the country.

While the Philippine Mining Act of 1995 continues to believe in the mythical nexus between mining and development, the ironies of hunger are becoming patent:   while more than 60% of the Philippine rice production is irrigated, that is second in Asia, we were number one rice importer in 2008. While we have 78 river systems, 50 are biological dead due to pollution. While an agricultural country, rice is planted only in 30% of the total arable area and we allow mining companies to encroach our farmlands, watersheds and forests, instead of using them for food production.  Only to realize that while we cannot eat gold, copper or nickel, we spent more than $ 2 Billion for rice importation in 2008, and received only about $ 1 Billion for exportation of these mineral resources.

Mr. Chair and members of the Committee, it is no doubt that after sixteen years, mining has not given us the economic development that maybe Hon. Yap and members of the 9th Congress envisioned. The Philippine Mining Act of 1995 is indeed a failure.

Today, Akbayan presents for the committee’s consideration, HB 3763, a new minerals management policy which puts premium in the ecological value of our country’s resources, shifting the land use priority towards sustainable development and food security.

Mr. Chair, members of the Committee, our current mining policy has exacerbated the Filipinos’ hunger. I disagree, with all due respect, to Cong. Yap. The wealth of our country is not buried under our grounds, it is what we can plow from our lands and drink from our rivers. It is with this vision that the immediate passage of the Philippine Mineral Resources Act of 2011 is earnestly sought.

Sponsorship Speech HB 3836 (EIA Bill)

Sponsorship Speech HB 3836 (EIA Bill)

Rep. Kaka J. Bag-ao, AKBAYAN Partylist

Delivered on August 17, 2011 / RV Mitra 3 & 4

 

 

Magandang Umaga sa Inyong Lahat!

The Environmental Impact Assessment system was introduced in Philippine Legislation in 1978, as Presidential Decree 1586. The policy of reconciling “exigencies of socio-economic undertakings with the requirements of environmental quality” was the cornerstone of this seminal regulatory measure.

The idea was set. A license in the form of an Environmental Compliance Certificate (ECC) must be secured before an entity can undertake a project with adverse effects to the environment. ‘An EIA is required before an ECC can be issued. No ifs. No buts.’ seemed to be a staunch commitment to environmental protection in the 70s. Since then, implementing agencies were established. Environmentally critical areas were identified. Funds were allocated. It was the birth of a green era, of decision-makers taking into consideration environmental repercussions of development, and the Environmental Impact Assessment (EIA) was part of it.  But as its birth saw the promise of a green Philippines, its evolution, as any of our environmental laws, soon cowered into our very own investment-hungry policies.

After PD 1586, the EIA system has evolved into a cobweb of administrative issuances sans a single framework for implementation. We have had Proclamation 2146, DENR Circulation No. 3, series of 1983, EO 291, DENR Administrative Order 37 series of 1996, 21 series of 1992, EO 342, Golf Course Committee Resolution 1 of 1997, all issued in the vague attempt to “strengthen” EIA. The current implementing order, and the relatively most comprehensive, DENR Administrative Order No. 30, series of 2003 merely streamlined the EIA process. Environmentalists say that it was done so, so that investors could easily comply.

EIA still regulates individual activities disregarding the cumulative effects of several projects, uses an insufficient mapping of environmentally critical areas, and lacks penal provisions making compliance only directory and not mandatory. For industrialists and corporations, the EIA is just another paper work, they can hurdle, no sweat.

It is without surprise that even if we have laid down the principles for EIA since the 70s, we still have mining sites in watersheds, quarrying in key biodiversity areas, logging in wildlife reserves. Isn’t it because our EIA system, in reality, is just a tokenistic concession to an environmental we do not sincerely intend to protect?

Mr. Chair, members of the Committee, House Bill No. 3836 or the “EIA Act of 2011” addresses the core problems of our current EIA system. The coverage of the potential adverse impact test of this proposed version enumerates projects and areas which are environmentally critical. Included are the “No Go Zones” which are in conformity with other proposed green legislations pending in this House: the Land Use Act, the Forest Resources Bill, and the Minerals Management Bill. HB 3836 forms part of the grand legislative intent to establish a uniform green framework to govern our different and emerging environmental concerns and vulnerabilities.

Moreover, HB 3836 also provides that a single ECC shall be required of all co-located projects in order to assess their synergistic and cumulative environmental impact. Community consent, also, shall be a condition precedent to the approval of any program and project.

Furthermore, aside from cancellation of ECC and Certificates of Non-Coverage (CNC), this bill proposes different penalties for corresponding violations of the ECC, to wit: criminal liability to the Chief Operating or Executive officer of the errant firm for five (5) years to ten (10) years, a fine in the amount of 200% of its authorized capital or 400% of its gross profits, as well as financial guarantees for clean-up rehabilitation of areas damaged and injuries to communities.

Finally, Mr. Chair and Members of the Committee, the ultimate import of this bill is to put a congressional fiat to the EIA system. Our vision of a green Philippines should not subjected to vacillating pronouncements of government agencies, oftentimes conflicted with the interest to accelerate investment flow in the country. Our commitment to sustainable development should not be subject of any compromise. We should pass HB 3836 and other proposed legislations aiming to protect our environment. Protection of the environment sure was a well-meaning vision in the 70s, but today in 2011, with climate change and the onslaught of unprecedented environmental disasters, my dear colleagues, we might not actually have a choice.

Privilege Speech of Rep. Kaka Bag-ao, August 9 2011

Earth Borrowed From Our Children

Rep. Kaka J. Bag-ao, AKBAYAN Partylist

Delivered on August 9, 2011, Session Hall

I rise on a matter of personal and collective privilege.

Mr. Speaker, the World Indigenous Peoples Day, which we commemorate today, should be a celebration of multiculturalism and mutual recognition of rights amidst diversity and adversity. While the Philippine Constitution and the Indigenous Peoples Rights Act (IPRA) recognize the rights of indigenous peoples, our vibrant ethnicity also chronicles the unromanticized tale of cultural communities who are historically marginalized by our very own state policies.

The policy, which this representation is referring to, is the state perpetrated plunder of our national patrimony which we commonly refer to as the “Philippine Mining Act of 1995.”

Mr. Speaker, my dear colleagues, the stories of exploitation of IPs and natural resources by mining companies are not novel to us. It is often considered both a blessing and a curse, that the Philippines holds the 3rd largest gold deposit in the world, 4th largest in copper, and the 6th largest in nickel deposits. However, the bulk of the country’s mineral wealth, timber, and other raw materials are found in the last frontier of lands inhabited and protected by our indigenous peoples. According to the Mines and Geosciences Bureau (MGB), there are 482 approved mining applications covering 1,046,350.87 hectares in the country. Of this number, an estimated 595,058.11 (56.87%) will cover indigenous peoples’ territories.

This has been the perennial conflict that our IPs have been struggling with since the colonial times. When the state began granting rights of ownership to their ancestral domains, it nevertheless kept ownership of natural resources. When Mining Act of 1995 was passed, the state effectively gave them to foreign corporations in exchange for a measly sum, flattened mountains, dried rivers, poisoned waters and displaced communities.

Its exploitative provisions are patent. The Philippine Mining Act of 1995 allows 100% foreign ownership of mining projects which could use up to 81,000 hectares of land and could last for 50 years. Mining companies are also given priority access to water resources within their concession, and can repatriate all profits subject only to 2% excise tax with tax holidays and deferred payments incentives. It is as if the government is selling our minerals in a bargain sale and even subsidizing exploitation. In 2008, in fact, the reported contribution of the mining industry to the gross domestic product (GDP) is only 1.28%.

While the government imposes this absurd policy of mendicancy, the IPs, on the other hand,become more susceptible to abuse. When mining companies bury their claws to extract our mineral deposits, the Earth bleeds and indigenous peoples bleed with it. Their rights over their ancestral domain were even once characterized by the Supreme Court only as “parochial interests” which according to them should not strangle economic growth (La Bugal B’laan Tribal Association, Inc. v Ramos).

The condition of IPs is the best indicator of this inequity. As the UN Special Rapporteur Professor Rodolfo Stavenhangen reported, the human development indicators of IPs are lower and poverty indicators are higher than those of the rest of the society. Indeed, the billions of profits raked by mining corporations failed to reach the community which has preserved it. The environmental disaster, however reach them first, such as the landslides in Itogon and Mankayan, Benguet Province due to massive ground subsidence, and the mercury poisoning in Sibuyan.

Perhaps, the only right left to IPs against these extractive industries is the right to Free, Prior, and Informed Consent (FPIC). However, the exercise of this right is also subject to restrictions and manipulations. Some mining companies were reported to have obtained FPIC through a group of IPs which were allegedly not representative of their community. The Subanen in Mount Canatuan and the Palawan in Brooke’s Point experienced such classic divide and conquer ploy by mining companies allegedly facilitated by the National Commission on Indigenous Peoples, the very agency mandated to protect their rights.

And the exploitation never ends. When mining companies bury their claws to extract our mineral deposits, the Earth bleeds and the indigenous peoples bleed with it, in many cases, literally. Mr. Speaker, my dear colleagues, the militarization of mining sites further aggravates abuse. State forces often act as mining security, and are tolerated to employ paramilitary groups. Last June 30, Mr. Speaker,my dear colleagues, the paramilitary group Salakawan killed anti-mining Lumad leader Arpe Belayong and his nephew Solte San-ogan in Esperanza, Agusan del Sur, host to several mining applications.

The Commission on Human Rights issued a resolution in favor of the Ifugao tribe in Didipio, Nueva Vizcaya calling for the revocation of the Financial or Technical Assistance Agreements (FTAA) of Oceana Gold but such was not implemented. In 2010, the Ifugaos and the Subanens filed a communication before the UNCERD, but the national government ignored the recommendations of the international body.

Today, Mr. Speaker and distinguished colleagues, our guests, the Subanen leaders from Zamboanga Peninsula in their continued search for relief filed a petition before the Supreme Court for the issuance of a writ of kalikasan to stop mining in Zamboanga Peninsula. Currently, there are 170 mining tenements in the peninsula which would cover 51% of its total land mass. The current law on mining allowed such massive coverage without regard to the apparent damage it would cause.

Mr. Speaker, my dear colleagues, repealing the Philippine Mining Act of 1995 is imperative.

A new minerals management law which declares the primacy of the rights of our Indigenous Peoples should be enacted. Their sacred grounds, burial sites, areas inhabited for their subsistence, and communal forests should be declared a no-go zone for mining operations. The FPIC processes should be conducted strictly in accordance with their customary laws. And this representation is sure that a 1.28% GDP contribution, Mr. Speaker, distinguished colleagues, should not be considered an obstacle for these reforms.

Mr. Speaker, my dear colleagues, our new minerals management policy should adopt the thrusts of stewardship that our Indigenous Peoples uphold–that the land, as they taught us, should be one day returned to our children, that the resources we have are not commodities but valuable possessions, that there should be preservation, instead of exploitation and that our lands are not properties but a domain where life thrives and from where the entire community benefits.

Thank you very much.