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The Presumption of Innocence and the Due Process of Law

My theory is this: The reason why the Presumption of Innocence of a person accused of committing a crime is recognized as a fundamental freedom and guaranteed by many States in the world through their constitutions, laws, rules and regulations is that human beings, including myself, have this TENDENCY TO BE IRRATIONAL enough to be biased in throwing their judgments against a person. This is exemplified by the posts and comments of many Diehard Duterte Supporters (DDS) we have recently observed both online and offline.

Another instance was during our One Billion Rising Cebu 2018 event, last March 8, for the International Women’s Day at Fuente Osmeña Circle, Cebu City. An old man, clad in a long-sleeved polo barong who turned out to be a DDS, entered the Circle and attempted to interrupt the person who was delivering a solidarity message on stage. A colleague, with a smile on his face, calmly told the old man to just respect the opinion of the speaker. Apparently, the old man got annoyed by the speaker’s message which contained criticisms against President Duterte’s and pro-imperialist/pro-oligarchs/anti-poor policies. Our colleague kept on telling him to respect the speaker’s views.

The old man, on the other hand, kept on calling the speaker’s attention, asking aloud, “Kinsa imong kontra? (Who is your enemy?)”. He also kept on telling us statements like: “Pataka lang man na siya (He does not know what he’s talking)”, “I came from Malacanang” as if to scare us. UNTIL he repeatedly uttered, “Unsa man, ipa-TOKHANG ta na siya (What now, shall we have him killed)?” That struck us and prompted our colleague to call for the assistance of our own marshals. Our marshals succeeded in calming him down and the event ended successfully and peacefully.

Imagine that any person could just easily condemn another using the force of the law or the bullet of a gun WITHOUT DUE PROCESS. THIS IS DANGEROUS as it could take one’s life away, actually or constructively, without the benefit of an in-depth investigation and the opportunity for him/her to defend himself/herself. It is for this reason, as well, why many justice systems in the world, except those that adopt the jury system, leave the judgments of conviction or acquittal to persons (judges) who are supposedly learned of the law and with demonstrable capacity to sift through the evidence presented for and against the accused without any taint of partiality as the blindfolded Lady Justice depicts.

Section 1, Article III (Bill of Rights) of the 1987 Philippine Constitution expressly provides that [n]o person shall be deprived of life, liberty, or property without DUE PROCESS of law. Section 14, Article III of the Constitution likewise provides:

Section 14. (1) No person shall be held to answer for a criminal offense without DUE PROCESS of law.

(2) In all criminal prosecutions, the accused shall be PRESUMED INNOCENT until the contrary is proved, and shall enjoy the RIGHT TO BE HEARD by himself and counsel, TO BE INFORMED of the nature and cause of the accusation against him, TO HAVE SPEEDY, IMPARTIAL, and PUBLIC TRIAL, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.

In the same manner, the Universal Declaration of Human Rights guarantees the right to be presumed innocent and the right to due process as follows:

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

May we IMPREGNATE these FUNDAMENTAL rights in our minds and may we UPHOLD the RULE OF LAW rather than the rule of the mob, DEMOCRACY rather than mobocracy.

****************

On another note, albeit late, I would like to express my warmest congratulations to our sisters and brothers in GABRIELA CEBU as well as the other convenors and organizers for successfully holding ONE BILLION RISING CEBU 2018 with a timely theme “RISE! RESIST! UNITE!” and in time for the International Women’s Day.

I was a graduating U.P. student when I volunteered to assist GABRIELA CEBU, UP Cebu GAD, and others in organizing the FIRST ever ONE BILLION RISING CEBU which was graced by around 2,000 women, men, youth and children at the Ayala Cebu Terraces last February 14, 2013.

As women hold up half the sky, said Mao Zedong, women hold up half of the struggle towards national liberation and democracy since the Spanish conquest until at present.

Abante, Babae! Palaban, militante!

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Cebu takes part of the annual worldwide event One Billion Rising with this year’s theme, “Rise! Resist! Unite!” One Billion Rising was first launched on February 14, 2013, spearheaded by feminist-activist Eve Ensler.

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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

 


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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.” 😀


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Human Rights Month: Inherent Right to Die?

If we have an inherent Right to Life, do we also have an inherent RIGHT TO DIE?

“NO”, says, at least, a European court. The European Court of Human Rights in Pretty v. UK DID NOT allow the petitioner suffering from a motor neuron disease to commit suicide with the help of her husband because she did not have the right to die and that there is NO such thing as Right to Die which can be derived from the Right to Life. The Court explained:

The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention (European Convention on Human Rights) is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.

 


December is considered internationally as Human Rights Month. Specifically, December 10 is internationally known as Human Rights Day since it was on that day in 1948 when the Universal Declaration of Human Rights (UDHR) was proclaimed.

If I have time, I may post Human Rights Law trivia every Wednesday of December this year as we are currently taking up Human Rights Law this semester. Know your rights! 😀

Source: Hunger Response

Source: Hunger Response


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Sabi ng BATAS | How Many Islands Does Philippines Have?

 

Since gradeschool, we were taught that the number of islands that our Philippine Archipelago has depends on the tide: we have 7,107 islands during low tide while we only have 7,100 islands during high tide.

However, under Public International Law, we actually have 7,100 islands only. In his reviewer book on Public International Law, International Law legal luminary Atty. Ralph Sarmiento clarified:

“If asked how many islands does the Philippines have, do not reply with ‘high tide or low tide?!’ The number of islands does not change whether it’s high tide or low tide because an island is always above water at high tide.”

Atty. Sarmiento anchors his explanation on Art. 121 of the United Nations Convention of the Law of the Sea (UNCLOS) which defines “island” as a naturally formed mass of land, surrounded with waters, which is above water at high tide. In other words, the so-called seven islands of the Philippine Archipelago which appear during low tide cannot actually be considered as islands for they are submerged during high tide.

Kaya next time, whenever you will be asked again how many islands does Philippines have, just answer “7,100 islands”, no more, no less, until some of these islands would be submerged under water due to melting of the ice caps as a consequence of the rapid climate change caused by us. 😉


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Sigalot sa Lupa

Credits to the owner of this photo.

Credits to the owner of this photo.

 

In issue herein are property and property rights, a familiar subject of controversy and a wellspring of enormous conflict that has led not only to protracted legal entanglements but to even more bitter consequences, like strained relationships and even the forfeiture of lives.

It is a question that likewise reflects a tragic commentary on prevailing social and cultural values and institutions, where, as one observer notes,wealth and its accumulation are the basis of self-fulfillment and where property is held as sacred as life itself.

– Justice Abraham Sarmiento, Sr. in Adille v. CA, G.R. No. L-44546, January 29, 1988


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Statement of concern on the RP-US Agreement on Enhanced Security Cooperation (AEDC)

“The agreement apparently aims to increase and prolong the presence US troops in the country, and as government has already announced, allow the US access to Philippine bases, the prepositioning of US arms, military supplies and equipment as well as the construction and maintenance of US military facilities inside these Philippine bases.

Given these apparently new features, there is valid concern that the new pact may be going beyond the scope of previous military agreements. That contrary to the negotiators’ claims, this is not a mere implementing agreement of the 1951 Mutual Defense Treaty, the 1999 Visiting Forces Agreement nor the periodic arrangements on mutual logistics and support. The AEDC as reported by media threatens to reverse the historic Senate vote that removed the US bases in 1991.”

Teddy Casiño

The following is the statement issued by former senators Guingona, Saguisag and Tañada plus several lawyers and concerned citizens regarding the military agreement to be signed between PH and US officials this morning.

We express our grave concern over news that a new military agreement called the Agreement on Enhanced Defense Cooperation (AEDC) will be signed between the Philippines and the United States during next week’s visit of US President Barack Obama.

The agreement apparently aims to increase and prolong the presence US troops in the country, and as government has already announced, allow the US access to Philippine bases, the prepositioning of US arms, military supplies and equipment as well as the construction and maintenance of US military facilities inside these Philippine bases.

Given these apparently new features, there is valid concern that the new pact may be going beyond the scope of previous military agreements. That contrary to…

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