Saturday, June 29, 2013


Gay Marriage on Front Page
On billboards along EDSA you will see the ad for My Husband’s Lover.  It is shaking up some elements of the Church, probably fans of Be Careful with My Heart.
If you look into the debates in the House of Lords, you will find Catholic peers disagreeing about same sex marriage. 
Last week the US Supreme Court came out with a decision on the subject of gay marriages.
The first case to reach the Philippine Supreme Court about gays was not about gay marriage but about the Comelec’s challenge to the party Ang Ladlad.  The Comelec wanted Ang Ladlad banned from participating in the party lists elections.  The Comelec lost that one with the Supreme Court saying: “We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval.  It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle.  Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct.”
If ever we should reach the point of debating about same sex marriage, I am sure we will be hearing about the constitutional provision which says “The state recognizes the sanctity of the family life and shall protect  and strengthen the family is a basic social institution.”  Certainly the question of how the state will protect and strengthen the family as a social institution will be a subject of debate.  We will also be debating about the constitutional meaning of family and  marriage.
But let us leave that for now and go to the legal debate going on in the United Kingdom and in the United States.
What interests me very much is the split among Catholic British peers on the issue of gay marriage.  A couple of weeks after the Marriage (Same Sex) Bill passed the House of Commons, it was sent to the House of Lords for debate.  How to deal with it was a dilemma for Catholic peers.  The split among them went three ways – six in favor, at least seven against and at least six abstained.  What was behind their vote?
Among those who expressed opposition to the Act one argued that, whatever the constitutional implications might be, she opposed the redefinition of marriage.  She said that marriage was between two people of the opposite sex “and I don’t think you can make things the same by an Act of Parliament”. Another said that the bill was flawed because appropriating the word “marriage” could not change its true meaning. “I believe that, in time, LGBT [lesbian, gay, bisexual and transgendered] people will regret attaching their unions to heterosexual marriage.”  A third argued that the bill would cause disharmony, anger and long-lasting hurt.  “Far from creating equality in marriage, he warned peers that the bill would establish two different sorts of marriage – statutory  gay marriage and traditional marriage.”
Of those who supported gay marriage one argued that homosexuality was not “heterosexuals behaving badly, but gay people behaving naturally”. He
believed it was possible to distinguish between state marriage and Catholic marriage. “The State has got to make different arrangements from the Church because it has different concerns,” Another argued that he had a “strong impulse” towards equality.  And a Baroness who was consulted on the legal implications of the bill for religious organizations was firmly of the view that the bill protected the Church. “That people, gay or straight, should want to be part of the whole that is our society is surely an advance on marriage as it is currently constructed,” she said. “It means that, in fact, we are enhancing
rather than diminishing the meaning of marriage.”
That is a sampling of how things might go should the subject of gay marriage come up for debate in Congress and in the larger Philippine society.  It is perhaps worth noting that our Constitution does not speak of protecting marriage but “protecting the family.”
Going now to the United States, we can look at a recent Supreme Court decision promulgated only last June 26.  I quote the first paragraph of the Court’s decision:  “Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of ‘spouse’ as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.”
That is the short of it.  The long of it, however, is complicated and not for one column.  It involves not only differences between federal and state law but also delicate equal protection principles. But mainly it iterates that marital relations from earliest times have been regulated by the states and not by the federal government.  Since ours is a unitary system of government, we do not have that kind of allocation of powers.  At present thirteen US states and the District of Columbia allow same-sex marriage and the Federal Supreme Court will not touch them.
1 July 2013

Saturday, June 15, 2013


                                                     More on Vat Refund
A couple of weeks ago I ended my column with the question: “As applied to VAT refund, do the equities of the case demand only prospective application of the rule?”
The rule I was referring to, of course, was the “operative fact” rule.  The rule, which is of American origin, says: ““"The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official."  
Clearly, the rule does not say prospectivity only. Prospectivity or retroactivity will depend on “various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official."  As recently shown by the Luisita case, the invalidation of the stock transfer system was first applied prospectively only, but was later reversed to make the invalidation retroactive as demanded by the equities of the case.  Even American decisions do not apply the rule in a unidirectional case.
The background for my article which I ended with a question was this: Under the law, for investors to be able to bring in capital equipment, they must pay the VAT but with the promise that the VAT will be refunded upon the filing of a proper claim. 
There are two steps in the refund process.  The first step is administrative: filing  a claim for refund with the BIR.  The second step, when needed, is filing for refund with the Court of Tax Appeals.  The law says that the investor has 120 + 30 days from denial of the claim by the BIR or from the inaction of the BIR to file the claim for refund with the Court of Tax Appeals.
The practice allowed in the past was that the investor need not wait for the lapse of 120 days before going to the Court of Tax Appeals or CTA.  But if he does go to the CTA early and in the mean time the BIR approves his claim for refund, that terminates the case of before the CTA.  This was the practice followed by the BIR and the Court of Appeals for several years and it had the approval of the Supreme Court.
A recent decision of the Court, however, held that this practice was all wrong and that investors who had filed their claim following the old practice could not avail of the “operative fact rule” and must suffer invalidation of their still pending claims.  The decision, in other words, was applied retroactively and not prospectively.  Thus my question: Do the equities of the case demand only prospective application of rule?
I deliberately did not answer my own question because weighing the equities of the case is not a simple matter.
A concurring opinion on the case, however, had a simple answer: “The capacity to bear the costs of these [official] mistakes in interpretation is generally better internalized by the private taxpayers rather than carried by the public as a whole.”
The question, however, is not about who has the better capacity to bear the cost of official mistakes.  The question is:
What is fair?  The fact that a taxpayer has a bottomless pocket does not mean that he has no right to be treated fairly.
The taxpayer, after all, will receive the refund only after a finding that the VAT already paid was not due; that is, it did not belong to the government.  In the first place, the taxpayer had paid the tax in advance because he had no other choice if he wanted to do business.  Advance payment was required by law.
A letter of the Chambers of Comemerce to Secretary Purisima said: ““The rule established by the Supreme Court should only be given a prospective effect. Otherwise, it will result to grave damage and prejudice of . . . taxpayers who have complied fully and in good faith with the then prevailing procedures sanctioned by the BIR and accepted by the courts. The long line of decisions by the Supreme Court, the Court of Appeals and the Court of Tax Appeals clearly indicate that prior to the [latest] ruling, the BIR and the CTA did not observe the 120+30 day periods in actual practice. We believe that if these decisions are taken into consideration, it will radically change the outcome of the case. We also believe that the failure of the courts to rule in favor of a prospective application will undeniably result in an unwitting yet palpable and grave violation of the constitutional guarantee of due process (notice requirement) as well as equal protection. . . .” 
It is understandable that the Chambers of Commerce should speak in such categorical terms.  But they were speaking mainly of the San Roque et al cases and what they claimed was that the equities of the case should favor San R.oque et al.  But there are other Vat Refund cases awaiting decision.  They should be reviewed individually to determine where the equities of the case are. 
In all fairness, this is probably also what the concurring opinion I cited also meant when it said that the cost is “generally better internalized by the private taxpayers rather than carried by the public as a whole.”  The language admits of exceptions.  True, the life blood of a state are taxes; but they should be collected fairly.
10 May 2013

Saturday, June 1, 2013


All About Fish and Fishing
What can legally be said about the incursions of Chinese fishing and other vessels into Philippine waters?  The first thing, of course, is to look into the laws that govern the seas. 
The importance of the seas flows from two factors: first, they are a medium of communication, and second, they contain vast natural resources.  In the seventeenth century the Portuguese proclaimed vast areas of sea as belonging to itself.  But it was Grotius who elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all.  The doctrine, however, recognized as  permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain. 
In international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS), there is such a thing as the exclusive economic zone  of a state or a state’s “patrimonial sea.”.  Both the Philippines and China are among the signatories to the UNCLOS and are therefore bound to respect its provisions.
To understand the extent of the authority of states over waters one must begin with an understanding of baselines.  The baseline is “the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.” It is from this line that the various areas of a state’s authority over the sea are measured: the territorial sea, twelve nautical miles from the baseline; the contiguous zone, 24 miles from the baseline; and exclusive economic zone, 200 nautical miles.  The Philippines recently revised its Baseline Law to make it conform to the requirements under UNCLOS.
The doctrine on the exclusive economic zone is a recent development.  Prior to the acceptance of this doctrine, all waters beyond the contiguous zone were considered as high seas over which no state  had control.  The exclusive economic zone doctrine developed owing to the desire of coastal states for better conservation and management of coastal fisheries.
The coastal state has rights over the economic resources of the exclusive economic zone, that is, over its seabed, subsoil and waters. But the provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.
Coastal states have two primary obligations.  First, they must ensure through proper conservation and management measures that the living resources of the EEZ are not subjected to over-exploitation.   This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a "maximum sustainable yield."  Second, they must promote  the objective of "optimum utilization" of the living resources.  They therefore should determine the allowable catch of living resources.  If the coastal state does not have the capacity to harvest the allowable catch, it must grant access to other states. 
The claim of the Philippine government is that Chinese fishing vessels continue to foray into the excusive economic zone of the Philippines without the needed consent from the Philippine government and in fact against the wishes of the Philippine government and to the prejudice of the economic rights of the Philippines over the patrimonial sea.
Considering the width of the patrimonial sea which a state may claim and the distances between states, it is inevitable that the different claimed areas will overlap.  China, for its part, bases its claim on what it calls the “nine-dash map,” the demarcation lines used by both the governments of the People's Republic of China and the Republic of China (Taiwan).  The demarcation lines include, among others, the Spratly Islands disputed by the Philippines, China, Brunei, Malaysia, Taiwan, and Vietnam and the Panatag Shoal in Zambales.  At stake here are believed to be not just fishing resources but also vast mineral resources, including oil.  The Chinese date their claim under the “9-dotted line” to as early as 1948.
In the face of conflicting claims and in the light of international law against resort to force, the Philippines obviously cannot enforce by force of arms what it believes to be its right.  The Philippines therefore hopes that arbitration will solve the problem.  Will it?
Peaceful settlement of disputes is compulsory. Under Part XV of the 1982 Convention on the Law of the seas states are required to settle peacefully disputes concerning the Convention.  If a bilateral settlement fails, Article 285 requires submission of the dispute for compulsory settlement to one of the tribunals clothed with jurisdiction.  The alternatives are the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), or a voluntary arbitral tribunal constituted  under the Convention.
Assume, however, that the Philippines wins, how will the decision be enforced?  Submission to the ICJ may be declined by a state.  But if a state submits to the ICJ, decision of the ICJ maybe enforced by the Security Council.  But China has veto power in the Security Council.  For its part, ITLOS does not contain an enforcement mechanism.  Associate Justice Antonio Carpio calls the situation a “legal black hole” and suggests that our only hope is that the bully China will yield to international public opinion.
3 June 2013