Saturday, April 28, 2012

CAGAYAN DE ORO EARTH DAY DOCUMENT Joaquin G. Bernas, S.J. Last April 21 2012, Cagayan de Oro City celebrated Earth Day. Quite obviously it was in the aftermath of the calamity wrought by Typhoon Sendong, last December. What is the situation today? Let me share with you the answer to and reflection on this question given by six prelates of different Christian denominations working in the area. Archbishop Antonio Ledesma, S.J. of Cagayan de Oro passed on the document to me. “More than four months have passed. At present more than 5,000 evacuee families are still living in transitional shelter arrangements in our city as they await the construction of permanent housing units. “The loss of more than a thousand lives and the washed-out destruction of more than 10,000 homes in Cagayan de Oro and Iligan cities are grim reminders of the other side of Earthday: how the earth itself groans and weeps in the face of man’s abuse of the environment. “Sacred Scripture tells us that God created the world in an orderly manner and ‘found it very good.’ (Genesis 1). The integrity of creation was Yaweh’s gift to the first man and woman in Paradise. In its cosmic harmony, nature itself became the first book of revelation of God’s infinite goodness to humankind. “In this light, human beings were given ‘dominion over all other creatures’ – not to abuse nature, but to become stewards of creation. We are also reminded that in our efforts at sustainable development, we should engage in intergenerational justice – namely, that our present generation should not deprive succeeding generations of the bounty of natures nature’s resources. Our Christian faith impels us to uphold the dignity of every human person and the supremacy of the common good over the individual interests of a few.” Obviously the writers of this document are familiar not just with theological teaching but also with the Supreme Court jurisprudence on environmental law. Oposa v. Factoran, Jr. spoke of intergenerational justice and upheld the right of minors to challenge the validity of logging permits. The Court said: “The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. . . The said right implies, among many other things, the judicious management and conservation of the country’s forests. Without such forests, the ecological environmental balance would be irreversibly disrupted.” The writers of the Earthday document continue: “The widespread destruction brought about by typhoon Sendong was due not only to natural causes but also to man-made malpractices -- such as indiscriminate logging in the watershed areas over the past decades, and more recently irresponsible mining practices, whether small-scale or disguisedly large-scale, on the upland and riverside areas of Cagayan de Oro. “Aerial photographs and first-hand reports by residents in the more remote areas attest to the extensive damage already done to the environment. This is brought about by practices such as hydraulic flush mining, dynamiting of hillside, and massive excavations of the topsoil. There are also confirmed reports that the unprocessed soil is then shipped to another country – a stark example of how our country compromises its own territorial integrity, leaving the landscape scarred and depleted.” I do not have the expertise to be able to affirm or challenge the veracity of the reports contained in this Cagayan de Oro Earth Day document. But I have confidence in the integrity of the report of authors of the document based on facts seen by them from actual day to day contact with the people about things happening in their area of pastoral responsibility and not from comfortable corporate offices. It is also noteworthy that they are not asking for a national policy. They are asking for a remedy for what they know first hand about the ecologically threatened areas of Cagayan de Oro. It may be that what they are asking for are of national application. But they do not presume to speak about other areas. Concretely they ask for the following: “1) We call for an independent, multi-sectoral monitoring body to periodically examine the actual state of mining and logging activities in the watershed areas of Cagayan de Oro. This multi-sectoral body should include representatives of civil society organizations, upland and lowland communities. church leaders and academe. “2) We call for a comprehensive scientific study of the river basin and watersheds of the Cagayan de Oro River and adjoining tributaries. In particular we need an impact assessment of mining and logging, including large-scale upland plantations, on environmentally fragile areas within a proximate radius from the city center, the implications of a ridge-river-reef approach in conserving our waterways, and how extractive activities impact on an island ecology. “3) We need to broaden the meaning of “free, prior, and informed consent” to include not only the upland communities but also the downstream communities that will be affected by mining and logging activities . . . “4) The issue of environmenetal governance has to be clarified . . . e.g. in terms of the prior role of the Department of Environment in issuing prior clearances, the collective responsibility of city council and chief executive, and the need for transparency and accountability . . . “5) Finally, we invoke the precautionary principle [in environmental jurisprudence] – that in the face of so many unsolved issues, the more prudent recourse is safety first for the larger community. . .” 30 April 2012

Saturday, April 21, 2012

SCARBOROUGH SHOAL Joaquin G. Bernas, S.J. It would be foolhardy for the Philippines to think that it can maintain its claim to the Scarborough Shoal by force of arms. And our people know it. Thus the Philippines has made the only rational choice, namely to seek resolution of the controversy with China through peaceful means. But what is the bone of contention? It is about a group of islands, reefs and rocks and waters possibly rich in natural resources. Jurisdiction over waters is necessarily dependent on jurisdiction over land to which the waters adjoin. This is governed by the 1982 Convention on the Law of the Seas (UNCLOS). Although the Scarborough Shoal is outside the limits set by the Treaty of Paris for Philippine territory, the Philippine has had a long history of activities related to the area. The area’s official Philippine name is Bajo de Masinloc, which in English means “below Masinloc,” Masinloc being a town in Zambales. The waters have been treated as fishing area of Filipino fishermen. The Philippine Air Force, together with United States planes when the US still had bases in the Philippines, used the area for target practice. It has been the practice of the Philippine Navy to chase away foreign fisher vessels intruding into the area. Our Constitution declares that Philippine territory consists of the archipelago and “and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas,” that is, other territories which, depending on available evidence, might belong to the Philippines. The 1973 Constitution referred to these as “other territories belonging to the Philippines by historic right or legal title." The extent of the archipelago can be verified by reference to the lines draw by the Treaty of Paris. But the Constitution does not specify where the “other territories” over which the Philippines has jurisdiction are. Scarborough Shoal lies outside the limits of the Treaty of Paris. The latest move of the Philippines to assert its claim over Scarborough Shoal, among other areas, was the enactment of R.A. 9822, the New Baseline Law. Baselines are lines drawn along the low water mark of an island or group of islands which mark the end of the internal waters and the beginning of the territorial sea. Each country must draw its own baselines following the provisions of the Law of the Sea. R.A. 9522 provides for one baseline around the archipelago and separate baselines for a “regime of islands,” that is, islands other then those within the archipelago. Like the archipelago, islands within a “regime of islands” outside the archipelago have their own “territorial sea, contiguous zone, exclusive economic zone and continental shelf.” R.A. 9522 places the Scarborough Shoal within a Philippine regime of islands. The enactment of RA 9522 was immediately met with protest from China and Vietnam, both of which also claim historic title over the area. At the moment, national interest is focused on the activities of Chinese fishing vessels and patrol planes in the area of the Scarborough Shoal. Although the land area may be relatively insignificant, the waters are not. From the baseline are measured the territorial sea (12 nautical miles outward), the contiguous zone (24 miles from the outward edge of the territorial sea), and the exclusive economic zone (200 miles from the outward edge of the territorial sea). A coastal state has control over fishing, mining, oil exploration, and other economic resources within the exclusive economic zone. These are what the Philippines wants to protect. When one considers the vastness of the territory and the riches that lie within it, it is understandable why states should quarrel over their control. This is where we are today in relation to China. How will the quarrel be resolved? The Philippines has invited China to submit the case to the International Tribunal on the Law of the Sea (ITLOS). The Tribunal is an independent judicial body established by the UNCLOS. It can adjudicate disputes arising from the Law of the Sea. So far it seems that China has rejected submission to the International Tribunal for the Law of the Saw. All is not lost, however. Part XV of the Convention provides for a comprehensive system for the settlement of disputes. It requires parties to settle their disputes by peaceful means. They have a choice of four alternatives. Submission to the International Tribunal on the Law of the Sea, which, it seems, has been rejected by China, is just one of them. There still remain three: the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention. But the parties must agree on the choice of the method of settlement to be used. This is a major challenge to the legal and diplomatic skills of the administration. 23 April 2012

Saturday, April 14, 2012


I do not recall it happening to President Estrada when he was undergoing impeachment; nor for that matter was it the case with Mercy Gutierrez. But the demonizing that the Chief Justice has been undergoing is something I would not wish on myself or anybody else for that matter.
Let me say, however, that I believe this would not have happened if he had not been offered and had not accepted the office of Chief Justice. That, it would seem to me, may have been the original sin that triggered it all. But, of course, it was his right to make that choice and there is no turning back now. It was only after he assumed office that the decision was made that he must go. Thus the demonizing started.
The implied go-signal was first given by the President himself when he refused to take his oath before the Chief Justice. It did not take long before 188 Congressmen and Congresswomen quickly came running to answer the call. And even as the impeachment trial was already ongoing, the President continued to convey his clear desire to the body trying the impeachment that Corona must go.
As the impeachment trial proceeded, little by little everything, including the kitchen sink, began to be thrown at him. Media also did its part gobbling every bit of dirt that came from Congress. Surveys showed that the demonization was having an effect on the thinking of the public. The Chief Justice was already being seen as a convict and a lame duck.
Could this outcome have been avoided? Not completely, I believe. But I believe that the deluge could have been mitigated if the process followed had been worked out differently. For instance, a pre-trial could have weeded out allegations which seem to be turning out to be without foundation. The prosecution itself trimmed down the allegation of forty-five pieces of offending properties to twenty-one, but only after the damage to the person had been done. Likewise, the eight articles of impeachment were trimmed down by the prosecution to three with concentration on only one.
The unpreparedness of the prosecution, who often found themselves fumbling and groping and almost crying to be rescued by senators, also had the effect of delaying the chance of the defense to present their answer. This, together with the often and prolonged intervention of the senator judges, and the long Lenten recess, have allowed what are turning out to be false impressions to simmer long in the minds of observers.
How will this end? The spokespersons of the prosecution are saying that the it is all over but the shouting. Others, however, are saying that it is too early to tell.
There are a number of factors that can affect the final outcome. The first of these, of course, is what the defense can do. They have an herculean task to perform and they have only started to do their work. Like the spokespersons of the prosecution, they too seem confident of being able to show that the Chief Justice is not all that bad. Meanwhile, the Palace has decided to let the process run its course without presidential coaching, at least not publicly!
It is good to remember the number of votes needed to determine the final outcome. Only eight favorable votes are needed for the Chief Justice to escape conviction. Sixteen votes are needed to convict. It is not difficult to tell how some of the senators will vote. For the rest, it is a guessing game. What you seem to see may not necessarily be what you will get.
There are a number extraneous factors that can be working in the minds of the senator judges. The obvious one of these is the coming 2013 elections. Some of the senators are re-electionists. You can be sure that they have their ears to the ground.
Another extraneous factor is more delicate. The Senate recess has lasted very long and it also coincided with the season of Lent and Easter. What effect the Holy Season has had, if any, on the impeachment actors, can also affect the impeachment proceeding up to its conclusion. Only the Almighty can measure this one.
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Ordinations. Over the weekend I took part in two ceremonies which had some similarities. The first was the ordination of seven young Jesuits to the priesthood. The ceremony, as always, was more solemn than the rites you may have witnessed in the Lord of the Rings. There was a presentation of the candidates for ordination to the ordaining Bishop, there was a laying of hands on the ordinands signifying the conferral of the Holy Spirit, there was annointing of the hands, and there was a solemn pronouncement of the mandate -- to serve the people as Christ the model priest served the people. For us older priests attending the ceremony, it was an occasion for assessing our own adherence to old commitments and renewing them.
Being partial to the legal profession myself, I like to think that the other ceremony I attended – Baccalaureate Mass and graduation from the Ateneo Law School -- was also a kind of ordination. Ordination to what? No, not to a life of celibacy, of course. We would not know how to prepare energetic young stallions for that. Rather, ordination to a life of service as servants of the law, of God, and of the people.
16 April 2012