Random Thoughts

Anything under the sun


Leave a comment

Recent FAQs about proclamation of Martial Law

NB: Here’s my take on the recent LEGAL issues re: Martial Law. Comment if you have something to refute against or concur with. Thanks!

duterte-martial-law-20170119

Source: Rappler

Q: Is the Congress required to convene after the proclamation of Martial Law?

A: Yes, it is. The case of Fortun/Colmenares v. Arroyo, G.R. No. 190293, March 20, 2012 is instructive. This case was pointed out by KABATAAN Partylist Rep. Sarah Elago in one of her Tweets, and reiterated by former Ateneo de Manila School of Law and Governance dean, Prof. Tony La Vina in his newspaper column, weeks ago.

First, the Court said that the Congress’ exercise of its review power vis-a-vis the President’s proclamation of Martial Law is “automatic rather than initiated“. Then it went saying, “[T]he Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress.” In that case, the Court reiterated the procedure under the Constitution, to wit:

“Xxx xxx xxx

  1. The Presidents proclamation or suspension is temporary, good for only 60 days;
  2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress;
  3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and
  4. The Congress, voting jointly, may revoke or affirm the Presidents proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted.”

That the Congress is required to convene is just logical. It is only when the Congress has convened in joint session, and after their own review, would the citizens know that at least a majority of all its Members would want to uphold or revoke, officially, the proclamation. But, until then, any statement to the effect that the members of the Congress would want to uphold the proclamation would only remain as rumor, speculation or conjecture at its best.

 

Q: What if the Congress refuses or fails to convene within 24 hours? May the Supreme Court compel the Congress to convene?

A: Yes, I believe so, since it is “required” of the Congress to convene, as enunciated by the Court in Fortun/Colmenares v. Arroyo. However, it is almost impossible since the Congress only has 24 hours within which to convene and review the proclamation. That means that if a Mandamus petition will be filed before the Supreme Court to compel the Congress to convene, the Court would have to decide as well within 24 hours on whether or not to grant the Mandamus petition. I think, that is almost impossible to achieve.

 

Q: Can a concerned citizen file a petition directly with the Supreme Court to review the proclamation instead of waiting for the Congress to convene within 24 hours?

It depends. If the 24-hour period has not yet lapsed, the Supreme Court cannot entertain the petition for it would then be premature and would be violative of the Principle of Separation of Powers should the Supreme Court decide on the petition.

Fortun/Colmenares v. Arroyo is again instructive on this matter. The Court explained,

“Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated…. The constitutional validity of the Presidents proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.”

In other words, it is only when the Congress failed to Convene within 24 hours may the Supreme Court step into the picture.

“Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart.

Xxx xxx xxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the Presidents action, and ascertain if it has a factual basis.”

 

Q: Recently, a petition has been filed with the Supreme Court assailing President Duterte’s proclamation of Martial Law. In an interview with Inquirer,* Sen. Tito Sotto warned that there might arise a Constitutional crisis if the Supreme Court should order the Congress to convene and review the proclamation and the Congress would defy such order, noting that, for example, the Senate had recently junked the Senate Minority’s resolution calling for a joint session. Would that really happen?

A: I am not sure if there are several petitions filed. In one Inquirer report, a petition was filed assailing the factual basis of Duterte’s proclamation of Martial Law in Mindanao. In another Inquirer report as cited above, it says that Rep. Lagman et al. is asking the Court to compel Congress to convene in joint session. So, maybe there are several petitions filed.

But I think the latter petition will be declared moot since the 24-hour period given by the Constitution to Congress to jointly convene has already lapsed. But, if the said petition also assails the factual basis of the proclamation, I think it will not be dismissed on mere technicality but, on account of transcendental importance, will be consolidated with the other petition(s).

So, in other words, there will be no Constitutional crisis that would arise since, most likely, the Court will not order the Congress to convene, it being already moot. What the Court will do is to exercise its Constitutionally-granted power to review the President’s proclamation of Martial Law. The Constitution provides that the Court has 30 days from the filing of the petition to review whether or not there is sufficient factual basis for the proclamation. “If the Court finds none, then it can annul the proclamation or the suspension (Fortun/Colmenares v. Arroyo, 2012).” In other words, the Supreme Court is the last and ultimate Arbiter on this matter.

However, the Court must decide before the President would lift the proclamation; otherwise, the issue will become moot.

 

PS: It may be argued that the above-cited pronouncements of the Supreme Court may be considered as Obiter Dictum because they do not answer the issues raised in the Fortun/Comlenares’ petitions. Nonetheless, as I said, that the Congress should convene in joint session is just logical.

*http://newsinfo.inquirer.net/903114/sotto-warns-of-possible-constitutional-crisis-over-martial-law-debate?utm_term=Autofeed&utm_campaign=Echobox&utm_medium=Social&utm_source=Facebook#link_time=1496738342

 


Leave a comment

Thesis, chances, and Faith

sleepless-nights-for-thesis

Sleepless nights with my siblings at my brother’s rented space. I never knew that my brother took this photo back then.

 

I have not written for so long on my WordPress blog due to my Law studies. What I have written today for my first blog post since my last is an #FBThrowback of what happened FOUR years ago.

April 2013. I was struggling with my Undergrad thesis then. It was just few days and sleepless nights before the Graduation Day. I was already prepared that I would “sablay” literally (instead of getting the UP “Sablay” – a symbolic sash worn during Commencement Exercises in the University of the Philippines), that is, not graduating with my batchmates that year. Notwithstanding, I still continued working on my thesis, sensing some hope that GOD gave me those times. Though I did not ask for help (because I grew up doing most of my works independently), still, my entire family came to the rescue. My brother offered his rented space where my sisters and I could work on my thesis. My mother filed a leave of absence from her work and came to Cebu to lend any assistance she could lend. But, since a Computer Science thesis/special problem/capstone is too technical for them, all they could do was to proofread my manuscript, help me pop the ideas out of the corners of my brain, print my manuscript, and have it bound while I continued refining the software that I developed for my thesis. My father also helped in editing my manuscript over e-mail. As I have highlighted in the Acknowledgment section of my thesis, it was all a collective effort. (Read Undergrad Thesis Acknowledgment here: https://www.facebook.com/100000053506248/posts/605367546141690/)

Fast forward: my adviser told me that the UP Cebu University Council, during their deliberation of official candidates for graduation that year, gave me one last chance to have my thesis finalized. I did. We did. Eventually, I graduated that year with my batchmates and officially conferred with a BS Computer Science degree with Latin honor.

Such was a learning experience for me, and the lessons I got from my mistakes back then — I applied them when I was doing my Juris Doctor thesis last year, i.e., four years thereafter. I made a Gannt chart — one thing I learned from my Undergrad days — and tried very much to stick to it. The constant monitoring of our Thesis Committee also helped a lot. Consequently, I finished my Juris Doctor thesis on time, without having to pass through the hell of cramming I once passed through four years ago. Then, my Juris Doctor thesis was awarded Best Thesis together with the thesis of my classmate. But then again, it was another product of a collective effort. (Read Juris Doctor (Law) Thesis Acknowledgment: https://www.facebook.com/100000053506248/posts/1493430364002066/)

Indeed, a photo like this one speaks a thousand words, a story even. Mine is a long story to tell but I had to cut it short here lest everyone be bored. But, I would really love to thank all the persons who gave me chances and trusted me that I would rise from my mistakes. Had my Undergrad adviser and the UP Cebu University Council been stricter and not allow me to graduate that year, I would have not come this far to where I am today. To date, I did not know how the deliberation during that memorable day went — Was the decision of giving me a chance unanimous? Or if it weren’t, who were the persons who vouched for me? — but to the teachers who supported me, I am forever grateful. And of course, to my family, I am more grateful.

And to all of those who are struggling right now, I am telling you to soldier on, to finish what you have started, and to keep the Faith no matter what lies ahead. That is better than quitting at once and do nothing at all. “But, there’s no more hope. Graduation is just few days away.” Well, four years ago, I held onto what GOD reminded me through the Scriptures, “[w]ith man this is impossible, but with GOD all things are possible (Matthew 19:26).”

 

PS: Currently, I am having my review for the Bar Examinations this November 2017. Since the Bar Examinations have not yet been regionalized, we, law students from provinces, will still have to spend around P100,000 to P200,000 for the duration of the review until the examination proper. In this regard, I would like to take this opportunity to knock on your kind hearts for some financial assistance. Any amount will do. I will really cherish your help.

 


Leave a comment

Magra-rally pa ba kayo?

Renato Reyes, Jr.: “Samantala, may isang bagay din na dapat nating bantayan. Ito yung pang-iintriga at panghahati. May mga Dilawan na kontra kay Duterte na ang nais ay udyukan ang Kaliwa na mag-rally para sa kanila. Ngayon pa lang, gusto na nilang ipambala sa kanyon at isubo sa labanan ang Kaliwa habang sila ay manonood lang at nakaabang sa Twitter. Ayos din, ano?

Huwag tayong magpadala sa ganitong pang-uudyok na kunwari ay prinsipyado pero ang totoo’y nang-uupat lang. Buti sana kung nag-rally sila laban sa lahat ng kabalbalan ni Aquino, may ascendancy silang maningil. Eh sa anim na taon ni Noynoy, ni hindi ko sila nakitang mag-rally habang pinapatay ang mga Lumad at mga magsasaka sa Mindanao.

Anyways, so ganun na nga. Madami tayong gagawin. Pagtulungan nating maisulong ang mga adhikaing makabayan at progresibo, sa loob man o labas ng gobyerno. Wala sa kamay ng isang tao ang pagbabago. Kalahok dito ang buong sambayanan. Magkikita-kita pa rin tayo, sa kalsada at kung saan-saan pa.”

 

From: https://natoreyes.wordpress.com/2016/06/01/magra-rally-pa-ba-kayo

like a rolling stone

cropped-img_3701.jpg

Ilang beses kong nabasa ang tanong na ito matapos i-anunsyo ang pagkakatalaga ng ilang mga progresibo sa susunod na Duterte administration. Dalawa sa mga progresibo ang hahawak sa DAR at DSWD. Tinuturing na mga progresibo din ang hahawak ng DOLE at DepEd.

Sa ganitong kalagayan, magra-rally pa ba ang Kaliwa?

Maikling sagot, OO naman. Marami pang problema ang mangangailangan ng sama-samang pagkilos. Hindi naman nalutas ang lahat ng problema ng bansa dahil lamang may bagong gobyerno. At hindi naman ang pag-upo sa gabinete ang katapusan ng ating gawain. Hindi cabinet appointment, kundi panlipunang pagbabago, ang ipinaglalaban natin.

Pero kung ang tanong ay “magra-rally na ba kayo laban kay Duterte?”, ang sagot diyan ay “hindi pa sa kagyat, wala pang dahilan”. Hindi dahil sangayon tayo sa lahat ng kanyang pahayag at lahat ng kanyang appointments. May pagkakaiba pa rin sa pananaw. Pero ang mga pagkakaiba ng pagtingin ay sisikapin idaan sa pag-uusap…

View original post 470 more words


Leave a comment

(Since Then) I Hate the Rain

It has been a very long time since I wrote my last poem. Law school has been so demanding. It’s because it was raining so hard, which I was annoyed at, this afternoon that I was move to write a poem about it.

11705224_1038341559510951_2955600746920343623_n

Also published at: https://www.facebook.com/photo.php?fbid=1038341559510951&set=a.199376053407510.50696.100000053506248&type=1


Leave a comment

Of ‘Torts and Damages’ and Love: ‘Violenti non fit injuria’

While reading Torts and Damages cases for our class tomorrow, a thought came up:
In torts law, one of the principles, and defenses against liability for damages, is “violenti non fit injuria” — to one who is willing, there can be no injury. It means that a person, who voluntarily exposed him/herself to a known risk or danger, must abide by the consequences and cannot be entitled to damages should he/she thereafter suffer injury or damage therefrom (Ilocos Norte Electric Co. v. CAG.R. No. L-53401, November 6, 1989).

Just like LOVE. Yes. Love. With emphasis to “love” in romantic relationships. When we love, we assume the risk of getting hurt or getting rejected. We all know those risks yet we pursue the person or the relationship. Thus, if, at the end of the day, we end up getting hurt in loving someone, we cannot just cry foul and blame that person or God or the concept of love itself. Violenti non fit injuria. To one who is willing to love, he/she must bear the consequences.

So, should we stop loving then? Should I stop going to law school which might not love me back? Definitely not! 😀 The principle only reminds us that we be careful so that we will not end up hurting ourselves too much. Despite the uncertainties and risks in life, just keep loving until we find “the right one”. As the line in a movie goes, “As long as you love, there is hope.” 😀


Leave a comment

Legal Memo on Section 10 of Abolish Pork Barrel Bill through People’s Initiative

‘Issue: Can Congress repeal a national legislation passed through a peoples initiative ? No, Congress cannot repeal a national legislation passed through a people’s initiative as it will violate the letter and spirit of the constitutional provision on initiative.’

Teddy Casiño

In the interest of clarifying concerns regarding the constitutionality of the proposed PI bill abolishing the pork barrel system, I’m posting Bayan Muna Rep. Neri Colmenares’ memo on the controversial Section 10 of the said bill.

THE SOVEREIGN POWER OF THE PEOPLE TO PASS A LAW: Beyond Congressional Power of Repeal and Presidential Power of Veto

By Bayan Muna Rep. Neri Colmenares
(Draft: August 25, 2014)

Introduction

Section 10 of the proposed bill of the peoples initiative provides that:

SEC. 10. Amendment or repeal of this Act. This Act may only be repealed, modified or amended by a law that has been approved by the people under the system of initiative and referendum enshrined in the 1987 Constitution

Certain concerns were raised on whether Section 10 could withstand a constitutional challenge thereby endangering the peoples initiative. The concern is once the Comelec grants the petition and schedules a referendum, the…

View original post 1,832 more words


Leave a comment

China is challenging UNCLOS

“China’s claim is that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. But clearly, the three specific prayers of the Philippines involve only issues of interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, this is not the subject of the Philippines’ claim.” – Atty. Harry Roque, UP Law Professor

Harry Roque's Blog

Following is an excerpt from my discussion in the recently concluded 5th Annual Meeting of the Japan Society of International Law held last June 15, 2014 at Chuo University in Tokyo.

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are aserious and belligerent violations of the UN Convention on the Law of the Sea (UNCLOS), to which it is a party.

Its refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratlys constitute a serious breach of the UNCLOS. As a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention.

The international community took a very long time to agree on the provisions…

View original post 687 more words