THE MOMENT OF TRUTH

The principal charge now against Chief Justice Corona is his failure to declare his dollar accounts in his various SALNs.  While admitting that he did not declare his dollar accounts,  his defense presented last Tuesday and Friday was that under the law his dollar accounts are absolutely confidential and he did not have to declare them.

Let us look at the he relevant laws on the subject. We can begin with the constitutional provision found in Article XI of the Constitution which says:

Section 17. 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, the Congress, the Supreme Court, the Constitutional Commissions 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.

Clearly the Chief Justice is covered by the constitutional provision commanding declaration of assets, liabilities and net worth.  That is not all, however.  The same provision says that in the case of high ranking national officers including the Chief Justice “the declaration shall be disclosed to the public in the manner provided by law.”

How do I read the limitation that the declaration shall be made “in the manner provided by law”?  I take this to mean in the manner provided by law either already existing in 1987 when the Constitution was promulgated or promulgated after 1987. Let us therefore look at the various laws on the subject.

The 1960 law, R.A. 3019, already required public officials to submit annually “a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year.”  This was affirmed in subsequent laws prior to 1987.

After 1987 came the 1989 R.A. 6713.  Like earlier laws it reiterated the duty to submit periodic declaration of assets and liabilities and net worth.  Moreover, according to Section 8, Justices of the Supreme Court submit their SALN to the Clerk of the Supreme Court.  Chief Justice Corona claims that he has done this religiously.  But what should the declaration contain?  This is where there is controversy.

The contention of the Chief Justice is that there is no legal obligation to include dollar accounts in the SALN because of their absolute confidentiality provided for in the  Foreign Currency Law, R.A. 6426 which says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.” 

R.A. 6426 is a 1974 law.  It is therefore older than the 1987 provision. But, as I stated earlier, the constitutional phrase “in the manner provide by law” means provided by law either before 1987 or after 1987. 

The question whether the absolute confidentiality of foreign deposits is something that prevents the impeachment court from looking into dollar accounts is now before the Supreme Court.  The Supreme Court has issued a TRO on the subject and the Senate has voted to honor the TRO.  In the case of Corona, however, this issue is now moot because Corona has issued an unconditional waiver of the confidentiality of his bank accounts.

Similarly, the issue whether the general waiver Corona signed in his SALN also covered dollar accounts has also been rendered moot by his unconditional waiver.

What remains for the Senate to assess is whether the non-disclosure of dollar accounts was done in good faith and not in defiance of public policy and therefore not an impeachable offense.

With the dropping of eight Articles of Impeachment what remain now are “culpable violation of the Constitution, other high crimes or betrayal of public trust.” Under the eiusdem generis principle their gravity must be as high as treason and bribery, the paradigmatic impeachable offenses. 

In an earlier column I also offered the view that “high crimes” already cover “culpable violation of the Constitution and betrayal of public trust” But I have also taken Charles Black, Jr’s position that “high crimes” refer to “those offenses which are rather obviously wrong, whether or not ‘criminal,’ and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.”  This is what the eiusdem generis principle requires. 

Now comes the moment of truth.  Will the Senate consider Corona’s omission of dollar accounts such a “rather obviously wrong offense” and a “high crime” and therefore an impeachable offense?  Will the disagreement among senators and the public confusion about the meaning of the SALN law be factored into the characterization of the offense as an “obviously wrong offense”?

28 May 2012

INADMISSIBLE EVIDENCE??

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the legality of how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained and released the evidence to the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts and release what has been found?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, no one of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what are involved in the Corona case are dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).

The earlier Bank Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.” 

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted. 

But we should ask whether the required general waiver in the SALN form is sufficient “written permission of the depositor.” Is it? 

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

21 May 2012

INADMISSIBLE EVIDENCE??

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the legality of how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained and released to the evidence for the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).

The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.” 

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted. 

But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it? 

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

21 May 2012

IMPEACHMENT

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 cardinal sin that triggered it all.  But there is turning that back.  After he assumed office the decision was made that he must go.  Thus the demonizing started. 

The go-signal was 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 message to the body trying the impeachment the 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.  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 only on one.

The unpreparedness of the prosecution, which often found itself groping, 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 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 coaching,  at least in public!

It is good to remember the number of votes needed to determine the final outcome.  Eight 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 Holy Week.  What effect the Holy Week had, if any, on the impeachment actors, can also affect the impeachment proceeding up to its conclusion.  Only the Almighty can measure this one.

TRIAL ONLY

TRIAL ONLY

TRIAL TRIAL

INADMISSIBLE EVIDENCE?
 Joaquin G. Bernas, S.J.
   During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.
   This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?
   To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?
   The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”
   However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.
   Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.
   The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.
   Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).
   The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”
   The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.”
   Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted.
   But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it?
   For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”
   Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.
   To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?
   21 May 2012
 

SCARBOROUGH

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

SCARBOROUGH

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

SCARBOROUGH ISSUES

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

INADMISSIBLE EVIDENCE

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).

The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.” 

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted. 

But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it? 

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

21 May 2012

INADMISSIBLE EVIDENCE

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA). 

The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.”  

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted.  

But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it?  

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering. 

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

• 21 May 2012

INADMISSIBLE EVIDENCE?

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).

The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.” 

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted. 

But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it? 

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

21 May 2012