October22014

An Exhortation to Serve the People

Graduation Protest Speech 
An Exhortation to Serve the People
April 30, 2014: 5:30PM

Usa ka mapula ug malingkawasnong pagbati kaninyong tanan!

Congratulations sa tanang nilampos karong hapona.
Mabuhi ang kabataang estudyante!
Mabuhi ang mga Iskolar ng Bayan!
Mabuhi ang Pag-asa ng Bayan!
Mabuhi ang katawhang Pilipino!

Today, we celebrate the four or more years of being part of the long-struggle in pushing for our rights and welfare and the victories we reaped through our unified call for the additional budget to State Universities and Colleges during the budget cut issue in 2010, the ouster of our undemocratic dean in 2011, and the improvement of facilities and equipment in our university with our ever supportive Dean Corro. We also struggle to survive UP despite the high tuition rate and the existence of various fees which put into question the public character of the national university.

Today, we leave the gates of our beloved University and go forth into another chapter of life. But as Iskolars ng Bayan, our journey does not end in the four wall of this academe, we continue to be students of Philippine society.

As we end our struggles as students of the University of the People, we face a more challenging struggle. The crisis of Philippine society worsens as the unemployment rate of our country rose to an unprecedented level and the Filipino people are suffering from the neoliberal policies of deregulation, trade liberalization, and privatization. The academic calendar shift is one of the manifestations of this policy which was intended to prioritize the interest of other nations instead of addressing the internal problems of our educational system. The shortage crisis of schools was left unaddressed amidst the controversial pork barrel scam which exposed Tanda, Pogi, Sexy and the others to be misallocating the taxpayers’ money to serve their own selfish interests. While the labor sector continues to experience dismal conditions with only minimal wages and a daily threat of losing the job because of contractualization.

Ang aklat ng isang tunay na mag-aaral ay ang kanyang lipunang ginagalawan. Ang kanyang guro ay ang mamamayan at ang kanyang pagsusulit ay ang pagsasagawa ng mapagpalayang pagkilos.

We are on a crossroad. Two choices lie ahead of us. One road leads to actively participation in realizing national liberation and democracy for our country. And the other, leads to the perpetuation of the status quo—a society that is founded on exploitation, oppression and injustice.

It is in these trying times that our country needs us most.

Let us continue to be vigilant. History is ripe with lessons that the gains of the students and the people are won through determined and collective actions. To do this, we need to link with the majority of the Filipino people—the workers and peasants. We harbor no illusions that the middle class alone can effect genuine change in our society.

We share our hard-earned sablay with the Filipino people. We also offer our sablay to Kristel Tejada and the Filipino youth who were victims of state abandonment and were deprived of their right to quality and accessible education.

We may have earned our degree but that does not mean that our mandate as “iskolars ng bayan” is over. On this day, we also pledge to continue living up to the essence of a true Iskolar ng Bayan, mga tunay na pag-asa ng bayan. We pledge to be relevant and significant in effecting change in our society.

We commit to upholding UP’s tradition of honor and excellence in the service of the people. Excellence is empty without honor and genuine honor lies in selflessly serving the people.

Malayong lupain, amin mang marating. 
Di rin magbabago ang damdamin.

The future belongs to the young. Along with the Filipino masses, we will shape a better future for us and for the people. We must go beyond our personal ambitions and interests. Ating inaalay ang ating husay at talino para sa paglilingkod sa sambayanan.

Humayo’t itanghal, giting at tapang
Mabuhay ang pag-asa ng bayan!

Mainitong pagbati sa tanang milampos!
Mga Iskolar ng Bayan, atong ihalad ang atong kaalam, ang atong katakos alang sa nasud nga Pilipinhon!
Para sa tiunay nga demokrasya ug kagawasan!
Mabuhi kitang mga Pag-asa ng Bayan, mga kabataang makabayan!
Mobalik kita aron pagserbisyo sa nasud, aron pagserbisyo sa katawhan!
MABUHI ANG MGA ISKOLAR NG BAYAN!

11AM

Beyond Prison Bars: UP Cebu 3’s Frisking of the Stink of the State

by: Jun Marr Denila and James Michael Uaminal

(This article is originally written for UP Tug-Ani, the official student publication of the University of the Philippines Cebu)

It was a cold Monday dawn of August 29. Five students from Up Cebu, who were having their Basic Mass Integration at Barangay Bonbon, Aloguinsan, Cebu, were disturbed of their deep slumber and were awakened by a 300-strong group of police elements. Facing truncheons, shields, and a fire truck, the students together with the farmers negotiated for the stoppage of the fencing of the lot by the Gantuangco family, its alleged owner. But the negotiations broke out into chaos which resulted to the arrest of 36 farmers and 3 UP students – namely, Januelle Rontos, Remy Jade Manzon, and Melanie Montaño. What was supposed to be a learning experience BMI turned out to be an experience of harsh arrest and arbitrary detention. This led us to question. To what extent must we integrate and immerse ourselves to the society in order for us to learn? The answer is simple and direct. The society itself is a classroom. What we learn in school parallels to the realities of life. And also, what occurs in society reflects the principles and ideas we got from our education. And in the case of Aloguinsan, we have a lot of lessons to learn, especially on state repression.

 

The basic mass integration served much like an extension of the usual four-walled-classroom education. It sought to let students have a hands-on involvement of what really is happening in the Philippine society. It is a “front-seat, 4D” view of the real plight and pain of our poor fellow citizens. Its purpose was to know and understand the real issue of land ownership of the 168-hectare land dating back from the American colonial period. The farmers have been tilling the land for more than a hundred years. Indeed, in 1970, they were granted the certificate of cadastral ownership which gives them the right to use the lot. The Gantuangco family, on the other hand, only has the tax declaration which does not count as a genuine title of land ownership. Yet the Gantuangcos were able to secure the Temporary Restraining Order (TRO) from the Regional Trial Court. This puts into question the fairness and integrity of our justice system – how can a court grant a TRO without the petitioner presenting an official land title? We could understand from this situation how influential and powerful the Gantuangco family is – the judge favoring this family over hundreds of families of the farmers and the police forces obeying the “rule of law” which is manifestly unjust and unfair.

 

The students held their immersion there because they were concerned on the condition of the farmers. They found out that the farmers were already organizing their mass action early this year. The farmers had already prepared wood sticks for self-defense in case tensions would arise. But the accusations made by the police elements include statements that they have been poured with acid, hot water, teargas, and the like, which is much unfounded and untrue. In fact, they were the ones who beat the farmers and the students – those who resisted dispersing. They even confiscated the possessions of some students including the camera which would prove their grave violation of human rights.

 

Instead of struggling for reconsideration of the order from the court, the UP Cebu 3 together with the farmers, found themselves incarcerated behind prison bars for 4 days with the case of disobedience to higher authority, direct assault, and resisting arrest. Who would believe that the police forces were the ones being on the disadvantage out of the conflict with their armaments at hand? And how come the fiscal on the said case found a probable cause to arrest those innocent people? The answer still is simple. Time and again, the richer and more influential clan always prevails over the poor.

 

But despite the principle and psychological harm gone through by the arrested farmers and students, the principles prevailed over any form of bodily torture and remained unswayed by any oppressive force. Hence, Melanie Montaño, one of the UP Cebu 3, said that her experience was not entirely an unfortunate event. She has learned too much from that experience and it reaffirmed her principles.”Sakto gyud diay ang ako aim to National Democracy. Sakto ang akong gidapigan ug pag-immerse sa masa.” Although she faced the sanctions of challenging the repressive system of the State, she made the cause of the farmers as an experience worth-taking. To quote, North District Cebu City Councilor Alvin Dizon said, “When we side with the poor and social justice, we would never go wrong”. The UP students in Aloguinsan were never wrong as Mrs. Phoebe Zoe Sanchez said in an interview, “They are of the right age to exercise academic freedoms. They did not just dwell in theories but they also stood on praxis. You are not truly intelligent if you only memorize the theories. You must rationalize accordingly and you must appropriate it in real application. That is what the three students did. They are exemplary intelligent youths because they had proven their thesis by living with the masses ” The students were there to serve the farmers’ interest and to know the real issue though it also means to challenge the government structure on which that responsibility rests.

 

Indeed, what they went through that cold morning of August 29 was not done in vain. The sacrifices of the three UP Cebu students and the farmers of Aloguinsan, their bravery in face of the coercive and oppressive powers of the government and their nationalism exhibited even in the coldness of prison bars served its noble causes. They, and the many others who are political prisoners and victims of extrajudicial killings, brought into light the horrible shadows of fascism and the state abuses. They unearthed the evils done by the government. They exposed the stink of the state. Without guns, truncheons, shields and the fire trucks, they were able to defeat the Leviathan State.

11AM

Structural Adjustment Policies: SAPping our National Budget

by: Jun Marr Denila and James Michael Uaminal

(This article is originally written for UP Tug-Ani, the official student publication of the University of the Philippines Cebu)

Dilapidated classrooms, lack of armchairs and other school facilities, obsolete textbooks, meager salaries for teachers, TOFI - these characterize the current face of our rotting Philippine education system. Visit a public school in your community and you will wonder if this is really what they call as quality education. You would be surprised by the large number of students sharing a single room. You might even notice that in worst cases, two sets of classes are in one room, simultaneously. Read their books and you will see how sugar-coated, old and traditional their lessons are. Look for science laboratories, computer rooms and even libraries-unfortunately, you will see none (it is a miracle if there is). Ask our noble public school teachers on the amount of their salary and whether this enables them to make ends meet. Their answers would definitely be “No!”

Now you are here in the University of the Philippines, you are an Isko/Iska, have you ever felt, considering our school facilities and buildings that we are in the “premiere National University”?

Why is this so?

We keep on over-using our National Hero’s utterance that the youth is the hope of fatherland. But the way our education sector appears now, we are far from nurturing that “hope.” And our annual budget serves as a monumental proof to this.

According to the General Appropriations Act of 2012, 40.67% of the Php 1.816 Trillion national budget goes to debt servicing-payment for debts incurred to our country decades ago. Another 5.89% is channeled to defense spending. The remaining balance (roughly 53.44% or Php 97.05 Billion) is partitioned among other government services like health (owning a lowly 2.36%) and education (11.17%). The numbers tell us that a huge chunk of our budget is allotted to bloated and questionable items such as the Conditional Cash Transfer program, the dole-out mechanism of the current administration, paying foreign debts and improving a military which, as scandal after scandal surfaced, lacks transparency and accountability. Sadly, two vital services, health and education, seemed to be forgotten. Further into this litany of the oppressive, anti-developmental budget, funds for state universities and colleges like UP are annually scrapped. For 2012, SUCs all over the country will be sharing the meager amount of Php 22.09 B. From this, imagine how much is left for our university.

But who is to blame for this budgeting disaster? Who is SAPping our national budget?

The real culprits are what World Bank and the International Monetary Fund calls as structural adjustment policies or SAPs.

Structural Adjustment Policies (SAPs) are the economic guidelines imposed by the World Bank – International Monetary Fund to debtor countries to qualify for their loans and programs. Two of their main requirements include; 1) low budget deficit (fiscal balance) and 2) low inflation rate (price stability). It is for this reason that our annual budget is in some sense dictated by this international financial organization because our country adheres to this policy with utmost faith. Low budget deficit entails balancing of budget and refraining from overspending. More so, since our country has a law that automatically appropriates large portion of our Gross Domestic Product (GDP) to debt servicing plus the enormous share for militarization, the budget for public expenditures were compromised. This results to deep cuts of budget for education, health services, and the gradual removal of state subsidies to maintain the balance of our annual national budget.

Sarah Raymundo, an Assistant Professor from the UP Diliman’s Department of Sociology, labeled these policies as a “U.S imperialist imposition” and that it “aligns the country’s economy and culture to the demands of neoliberal globalization”. The Philippines could not disobey this policy for fear that this international financial organization would not give future aid and debt reliefs in times of our country’s emergency needs. Our government is only pursuing short-term ends by subordinating public investments less as a priority needed for long-term developmental goals. This system of monetarism entrenched the field of economics so much that the idea of SAPs as an upright course of action to follow continues. However, in reality, SAPs hurt the poor most which only depends on services and subsidies by the government. Not to mention the effects on the standards of living, employment, and the environment of the country conforming to this erroneous policy.

In a bigger picture, we can see a system of domination in this case. The rich countries lend money to the third world countries along with its conditions. And these conditions are directly affecting the economic policy of the debtors which in turn, aligns for the efficiency of international free market by allowing privatization, deregulation, and liberalization of its economy. Who gets to benefit more? – The rich countries. These countries then do not allow the third world countries to prosper and shall make them more indebted due to their impositions and threats of economic sanctions if they disobeyed. The poor countries, such as the Philippines, will be getting the worst.

If the government continues to adapt this imperialist grip of our national budget, we can expect to see our right to education becoming a privilege to only those who can afford, we can experience reduced access to health and social services, and we can feel the lasting and exacerbating problem of poverty in our nation. Only then when our political leaders would stand up for the people and break the chains of imperialism can our country pursue a policy which is oriented to national development free from external intervention. This is our country and it is high time to assert our sovereignty to decide what’s good for our nation and the people because we have nothing to lose but our chains.

11AM

Human Rights? Is it MORE FUN in the Philippines?

by: Jun Marr Denila, James Michael Uaminal, and Mark Jeeg Jamin

(This article is originally written for UP Tug-Ani, the official student publication of University of the Philippines Cebu)

1215- English Magna Carta
1789- French Declaration of the Rights of Man and of the Citizen
1791- American Bill of Rights
1948- Universal Declaration of Human Rights

No one would dispute that indeed a lot of declarations, statements and laws were made and are currently being made for the concept of “human rights.” And the Philippines was never left behind. We have enshrined in our 1987 Constitution our very own Bill of Rights and our country is also a signatory to various human rights documents like the Convention on the Rights of the Child, and the UDHR. Truly, many words were written and said about human rights. But no one would also dispute that violations still exist at a high rate.

Human rights violations such as extrajudicial killings, torture, human trafficking and forced disappearances continue to being bannered in headlines of most newspapers nowadays. Throughout society, human rights are discussed-in streets, dinner tables, conference halls and courtrooms. But these discussions all seem to be futile. There are still people brave and wicked enough to bend the rule of law and justice and commit the gravest unimaginable sins. What is alarming is that there are many people like them who trespass into the realm of human rights violations.

And Philippines, as usual, was never left behind in this aspect.

What is now the status of human rights in our country? We have here a check-up of how effectively (or ineffectively) our government and fellow citizens uphold these rights.

Human Rights violations as mentioned has been very vibrant here in our country and to lessen the burden of hearing them, we covered up  the status and cases of violation of civil and political rights under the Noynoy Aquino administration from July 2010 to September 2011. As of the latest statistics of Karapatan, a non-government organization-a human rights watch group, in their Third Quarter Report, there have been 55 victims of extrajudicial killings; 8 victims of enforced disappearances; 41 of torture; 20 of frustrated extrajudicial killing; 151 of illegal arrest without detention; 95 illegal arrest with detention; 91 of illegal arrest and seizure; 60 of physical assault and injury; and 6,108 of demolition. 


The report also included cases of violation of domicile (216 victims);  destruction of properties (5,401); divestment of property (171); forced evacuation (4,224); indiscriminate firing (5,047); threat/harassment/intimidation (10,811); forced/fake surrender (32); forced labor/ involuntary servitude (33); use of civilians in police/ military operations as guides and/or shields (16); use of schools, medical, religious and other public places for military purpose (10, 077); and in the restriction or violent dispersal of mass gatherings (83).

The above data contains the known-cases of Morong 43, Aloguinsan 39, and Kananga 3 among others. But it does not include the killings of Fr. Fausto Tentorio, an Italian priest who served indigenous peoples in Mindanao, and Ramon Batoy, an active supporter of environment movement in Arakan Valley, North Cotabato; and the recent violent demolition in Corazon de Jesus, San Juan City where 17 residents and supporters who fought for their rights to housing were arrested and detained. Not to mention, the several undiscovered cases of underground human rights violations which was not publicized by the media.

This mountainous height of human rights violation cases happen only in a year and so, under one administration.  This is just one report manifesting the sways of the justice system here in our country; either we consider it fast in some cases or slow in most.  And this slow-paced justice system with the culture of impunity only exacerbates the worsening situation of the supposed protection and promotion of human rights afforded by our government. 

The continued cry for justice for the death of two UP students – Sharlyn Cadapan and Karen Empeno, while, the culprit retired General Jovito Palparan, is nowhere to be found. The already four-year disappearance of activist and peasant leader Jonas Burgos and all other activists who only asserted their rights were put into silence. Plus the number of years of the massacre-case trials – escalante massacre (26 years), mendiola massacre (24 years), visconde massacre (20 years), and the infamous maguindanao massacre which the lead prosecutor Atty. Harry Roque said, that if the rules of court are to be followed, it would take the trial for 55,000 years! These prolonged massacre-cases are a clear violation of the right to impartial and speedy trial entitled to the victims and petitioners.

Then again, who are to be blamed by the persistent violation of human rights?

The perpetrators of human rights violations are divided by state and non-state actors. State actors are identified as belonging to the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) including the private armies and goons of notorious politicians. While non-state actors are classified as those terrorist and rebel groups such as the Moro Islamic Liberation Front (MILF), Abu Sayyaf Group (ASG), Jemaah Islamiyah (JI), and the New People’s Army (NPA) – the military wing of the Communist Party.

The clashes between these two groups as well as the conflicts within the groups are the general causes on why human rights violations are sustained. The Oplan Bayanihan, a counter-insurgency program of the PNoy administration, is tasked to suppress rebel groups, thus, including those activists who are suspected as a threat to the government are either detained or much worst, killed. While in detention, most of them were tortured and harassed, forcing them to admit what they were not in order to end the suffering, as one of the Morong 43 attested. More so, during election period, some politicians used their private army to harass voters and to threaten political opponents to ensure their political success. On the other hand, terrorist groups especially in Southern Mindanao at times abduct local government officials and confiscate properties of local communities. These are just some circumstances where violations of human rights were apparently manifested. Of course none of them would ever say they are the real perpetrators of human rights violations, each of them have reasons to cover up their doings.

These violations do not merely affect one point but these target everything. If the servicing of justice here in our country would not change then every aspect of our country would be greatly disturbed, one of which would be the tourism industry.

It’s fun in the Philippines, yes it is, but when it comes to this area, the Department of Tourism should have thought of anything better other than that slogan, taking into account our capacity to hold justice. Those human rights violations aren’t just destroying the lives of the victims but also destroying the pride and the beauty of our country. Just remember what happened to our country after the Quirino Grandstand Hostage Incident, we were banned, our people were discriminated.

Now, what are we really in this country, in the case of upholding human rights? How are our human rights served and catered to us Filipinos? Is it still fun to live in the Philippines, considering the justice system we are in?

Justice? Human Rights? It is definitely not fun in the Philippines.

September142014
1AM

In The Name of the Law

Jun Marr M. Denila

Bachelor of Laws (1A)

Statutory Construction

 

In the Name of the Law

(A Movie Review of Judgment at Nuremberg applying the rules of Statutory Construction)

 

            The movie is based on a true story of the series of Nuremberg trials in 1947 which included the prosecution of the judges who served under the Nazi regime and helped in the enforcement of laws through judicial acts of sexual sterilization and imprisonment and execution of people by reason of their racial identities and political beliefs. The judges were later found guilty and sentenced to life imprisonment. The primary question that the movie attempts to critically examine is that “Are the judges liable for the consequences of the laws they had enforced as part of their duty?” Notwithstanding the abundant facts that were sufficiently established for their conviction, this issue can be resolved using the principles of statutory construction.

Ernst Janning, one of the defendants of the trial, admitted in open court their responsibility in the enforcement of the Nuremberg laws because they themselves believed, during that time, that the laws were for the best interest of their people as a German nation. However, this argument proves to be untenable. It is a well-settled rule in statutory construction that laws for the general welfare or growth of civilization are to be construed liberally. Although the defendant was correct in pointing out that what they did was merely to effectuate legislative intention and executive action, their decision in the Feldenstein case, where the defendant was the presiding judge, failed to manifest this intention. In that case, the accused, as the chairman of the Jewish Organization, was convicted for violation of the Racial Protection Law on extramarital sexual relation which was punishable by life imprisonment. Yet, the judge sentenced the accused to a death penalty even though there was not enough evidence to prove his guilt. It runs counter to the rule that penal laws are strictly construed against the State and liberally in favor of the accused. The reason for this is that the decision had already been reached even before the trial started. Moreover, in the decision of Judge Haywood convicting the defendants, he said “The real complaining party at the bar in this courtroom is civilization”. So, the contention of the defendant that they believed it was for the growth of the civilization was not taken into consideration.

Another defendant, Friedrich Hofstetter, justified his actions by saying “I followed the concept that I believed to be the highest in my profession, the concept that says: to sacrifice one’s own sense of justice to the authoritative legal order, to ask only what the law is, and not to ask whether or not it is also justice. As a judge, I could do no other”. This is quite reasonable because judicial power to construe only includes the interpretation of the ambiguous provision of the law and not to inquire into the wisdom of the law. However, it must be noted the laws are made for man, not otherwise. It is also a fundamental principle of statutory construction to observe in the interpretation the promotion of social justice. It means that interpretation should coincide with the underlying principle that the purpose of the law is to realize the potential of the people as active contributors in the community. Yet, the defendants took part in the enactment of laws and decrees - the purpose of which was the extermination of human beings. They actively participated in the enforcement of these laws which were illegal even under German law. The murder of the children can never be justified or any murder of innocent people for that matter. Although in most legal systems it is presumed that the legislative body intended right and justice to prevail, the actions of the defendants in applying the law as it is stood against truth, justice, and the value of a single human being, as Judge Haywood puts it, in blind obedience to what they call an authoritative legal order.

The prosecution of the trial began their opening statement with these words, “The case is unusual, in that the defendants are charged with crimes committed in the name of the law” While it is true that when the language of the law is clear there is no more need for construction, the problem arises when the plain reading of the text is justified “in the name of the law” without considering if that plain meaning evinces the legislative purpose in the promotion of general welfare. The defendants became subservient to formalism over the preservation of the substantive rights of the people. There is no truth that there is no moral significance in every law. It ought to have a moral significance with transgressors accountable for their own action. Otherwise, the law is devoid of meaning as Judge Haywood likened the situation to an earthquake or any natural disaster, departing the spirit of the law to its text and never to return again. But the reality is that laws are created to preserve the social and moral fabric of the society. Thus, when the “name of the law”, which perverted the very nature of the rules governing the system and the people, resulted to millions of casualties, Ernst Janning told Judge Haywood that he never knew that the laws they enforced would come to that, the latter replied “It came to that the first time you sentenced a man to death you knew to be innocent”. The “name of the law” is not sufficient unto itself since a strict or liberal construction of the spirit of the law is needed to accomplish the end desired and the progress of the nation be advanced.

1AM

Balancing Rights and Responsibilities

Jun Marr M. Denila

Bachelor of Laws (1A)

Statutory Construction

 

Balancing Rights and Responsibilities

(A Movie Review of Erin Brockovich applying the rules of Statutory Construction)

 

            A statute of limitations is a legal term that refers to the last point in time in which the legal proceedings may be initiated. This is also known as statutes prescribing time to take action. Erin Brockovich, a legal clerk and environmental activist, is pushing for its amendment to prevent states from limiting suits. She was instrumental in building a case with 634 plaintiffs against Pacific Gas and Electric Company (PG&E) in 1996 which was settled for $333 Million - the largest settlement ever paid in a direct-action lawsuit in US History. This inspired the film entitled “Erin Brockovich” narrating the story of a single mother of three children who fought side by side with victims suffering from cancer and diseases due to the water contamination caused by the big corporation. The problem with the case is that the plaintiffs may be barred from filing a lawsuit by virtue of the statute of limitations. It was found out that PG&E used hexavalent chromium in their power plants which accidentally produced a leak contaminating the groundwater of the community in Hinkley, California as early as 1966. However, the company only informed the community about their “unsafe” water, without disclosing the effects of it, in the early 1990s, thereby, commenced the running of the statute of limitations.

            The statute of limitations for cases of injury to person in the state of California is 2 years from the date of injury. However, there were already records of injuries or diseases way before 1990s. The only applicable provision for this case is that the plaintiffs are barred after 1 year from the date the injury was discovered. Again, it was also disclosed by PG&E more than a year ago through the distribution of pamphlets and the free medical examination that the water is unsafe. Although the company was only misleading the victims, what is required for the statute of limitations to run is constructive notice that the facts are ascertainable from the public which was sufficiently provided through the pamphlets. Fortunately, the judge upheld the causes of action for the reason that what was provided by the company in the pamphlets was misleading the victims that hexavalent chromium is actually good for them. Later on, through the unwavering passion of Erin to help the victims, they won the case by settlement. It must be noted though that had it not been for the approval of the cause of action, the lawsuit would not have been granted because of the statute of limitations. Like in the other cases in the US, victims were deprived of their right to claim for damages because of the said limitations with a mandatory character that once the statute of limitations on a case “runs out,” the legal claim is not valid any longer.

            The use of the term “must” commands an act which is generally imperative or mandatory as opposed to the term “may” which signifies directory or permissive. Statutory requirements intended for the protection of the citizens and by a disregard of which their rights are injuriously affected are regarded as mandatory. However, in the instant case, if the statute of limitations is mandatory, it affects the rights of its citizens to health and healthful ecology or even right to life as the diseases developed into cancer which can cause the death of the victim. The raison d’ eter of such a mandatory character is to avoid delay in the proceedings and that if the action is not instituted earlier, the defendant might have lost the evidence to disprove the claim. This makes sense as expressed in the legal maxim that the laws aid the vigilant, not those who slumber on their rights – vigilantibus et non dormientibus jura subveniunt. Setting a limitation to the date for filing of an action is to make the plaintiff responsible for needless delays. But such is not the case here. There was misleading of facts. Constructive notice was not enough for the victims to entertain the suspicion that they might have been infected by the water. Lastly, their life continues to be at stake even if their right to file a lawsuit ceases.

            The statutes prescribing time to take action cannot be made directory as well for the reasons stated above. If ever it be made permissible, there is no alternative action to guarantee the right of the defendant to a speedy trial if there are new plaintiffs added every single day, therefore, producing more demurrers at any stage of the proceedings. Filing an action cannot be left with the discretion of the plaintiffs to the prejudice of the defendant because public interest also requires there must be an end to a legal controversy. In view of the foregoing, there should be a balance between the rights and responsibilities of both the plaintiffs and the defendant. A period of 1 year or 2 years, in the case of the movie, is only a short time to file an action. There should have been additional determining factor on when does the statute of limitations commences the running taking into consideration the degree of the injury caused or the number of the possible victims and similar circumstances to safeguard the rights of both plaintiffs and defendant. Along the process of ensuring that the rights of both parties are not prejudiced, the mandatory character of simple rules and regulations must also be observed in order to discourage one from taking for granted their respective responsibilities in the said case.

September62014

Legal Opinion: Double Jeopardy

Jun Marr M. Denila

Bachelor of Laws (1A)

Legal Research and Writing

Legal Opinion: Double Jeopardy

Ted Crawford shot her wife in the face after finding out she has an illicit affair with a certain Lieutenant Nunally. This resulted to her coma while Ted was arrested by Lieutenant Nunally, as part of his work as hostage negotiator, for the crime of attempted murder. While on trial, Ted revealed that Lieutenant Nunally was having a relationship with his wife. By the principle of Fruit of the Poisonous Tree, Ted’s confession to Nunally has been rendered inadmissible as evidence, thus, new evidence must be presented to establish the guilt of the accused. However, the murder weapon showed that it has not been fired. Beachum, the public prosecutor, did not find the real murder weapon on the crime scene and no new evidence was found to prove the guilt of the accused. Hence, the judge acquitted the accused on the grounds of insufficiency of evidence. Later, Ted went to the hospital and stopped the life support of his wife resulting to the latter’s death. He was confronted by Beachum in his house where Beachum said that Ted could be prosecuted for another crime of murder using the bullet that was pulled out of the deceased wife as evidence. Beachum figured out that Ted switched his identical gun with Lieutenant Nunally before and after the commission of the offense and the real murder weapon was carried by the latter until the latter’s suicide after the accused was acquitted. The issue is whether or not the accused may still be prosecuted of murder after he was acquitted in attempted murder based on the same facts and circumstances.

            The question presents itself if the accused is entitled to the constitutional right against double jeopardy. Section 21 of the Bill of Rights of the 1987 Philippine Constitution provides “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution”. In order for the right against double jeopardy to be invoked as a defense, (1) the first jeopardy must have attached prior to the second, (2) the first jeopardy must have been validly terminated, and (3) the second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information, or in an attempt to commit the same or a frustration thereof (Cudia vs CA, Guerrero vs. CA, and Dizon-Pamintuan vs. People). In the instant case, the first two requisites are present in the acquittal of attempted murder of the accused. However, the last requisite is not yet clear whether the second jeopardy (i.e. murder) is included in the offense charged in the first information of attempted murder and not the other way around since the second jeopardy results from the eventual death of the deceased wife after the judgment of acquittal has been rendered. It must be noted though that the same facts and circumstances attended the second jeopardy since the termination of the life support of the wife in coma does not constitute an act that is illegal. So, the evidence necessarily revolves around the bullet that has been taken out in order to prove that the murder weapon was switched. On the premise that the accused may be prosecuted based on the same facts and circumstances, the “same-evidence” test is not a conclusive, much less exclusive, test in double jeopardy cases (Santiago, 1999: p. 292). The important inquiry, therefore, relates to the identity of offenses charged and the question of identity is addressed by examining the essential elements of each of the two offenses charged (Santiago, 1999: p. 292).

            The offenses charged are attempted murder and murder which resulted from the acts of the accused to kill the deceased. In the case of People vs. Miraflores, the Court held that prosecution for the same act is not prohibited; what is forbidden is prosecution for the same offense. Apparently, the offenses charged are the same – the former being committed directly by overt acts but did not perform all the acts of execution for the commission of the offense. With this information alone, the accused may properly invoke his right against double jeopardy. Only when the subsequent information charges another with different offense, although arising from the same act or set of acts that there is no prohibited double jeopardy (Santiago, 1999: p. 300). So, it must necessarily be a different offense.

In the Philippine context, the Revised Penal Code defines the crime of killing of husband of his wife as parricide under Article 246 of the same code. Assuming that the crime of parricide is charged in the second offense, the two offenses now charged are not the same (i.e. attempted murder and parricide). Where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other (People vs. Tiozon). Under Article 246, parricide has the following elements: (1) a person is killed, (2) deceased is killed by the accused, and (3) deceased is [the legitimate spouse] of the accused. On the other hand, attempted murder as the first stage of the crime of murder has the following elements: (1) person was killed, (2) accused killed him, (3) killing was attended by any of the qualifying circumstance (in this case, evident premeditation), and (4) killing is not parricide or infanticide (Reyes, 2012). Clearly, the two offenses could not co-exist from the same act. If the second offense is parricide, in line with the facts and circumstances, the first offense should have been attempted parricide qualified by evident premeditation – the same constituting the same offense, thus, can rightfully be barred by double jeopardy. Indeed, it is immaterial to the basic purpose of the constitutional provision against double jeopardy when a crime is divided into different degrees carrying different punishment or allows the court to fix different punishments for the same crime (Halls et al, 1966, p. 723).

            In view of the fact that the first ten constitutional Amendments, which are known collectively as US Bill of Rights, have been incorporated in the 1987 Philippine Constitution, the imported provisions of law, such as the right against double jeopardy, must be interpreted in the light of their understanding in the country of origin (Cruz, 2005: p. 2). Hence, the leading case of US vs. Ball is controlling in the interpretation of double jeopardy which held that the prohibition is not against being twice punished, but against being twice put in jeopardy (Halls et al, 1966: p. 725). In the case at bar, the crime of attempted murder and crime of murder must not necessarily result either in the imposition of the prescribed punishment or acquittal thereof to be considered as a violation of constitutional right against double jeopardy, it being sufficient that the accused is subjected twice to the danger when on trial for a criminal offense. Therefore, the prosecution is barred from bringing Ted Crawford into another trial for the same facts and circumstances and for an offense similar or intimately related to the subsequent offense charged for infringing his constitutional right against double jeopardy.

Authorities/Sources used as Basis for Opinion

Cruz, I. (2005). Philippine Political Law. Central Books

Hall, L. et al (1966). Modern Criminal Procedure. West Publishing Co.

Reyes, L. (2012). The Revised Penal Code Book Two. Rex Book Store

Santiago, M. (1999). Constitution Annotated. Central Books

6AM

Legal Opinion: Child Neglect

Jun Marr M. Denila

Bachelor of Laws (1A)

Legal Research and Writing

Legal Opinion: Child Neglect

The facts of the case are indisputable. Isabel had two children, aged eight and twenty-two months. She left the children alone to go to a party at a local tavern. While she was away, the children were killed in a fire, the cause of which is unknown. Isabel is charged with child neglect. The issue is whether or not the mother is criminally liable for the death of her children. In order to establish the guilt of the accused, we must use pertinent laws which are applicable to such state of facts as well as commentaries of legal experts with the similar case.

First, the child is sufficiently protected under our laws. Not only does the child exempt from criminal liability under Article 12 (1) and (2) of our Revised Penal Code as amended by RA 9344 (Juvenile Justice and Welfare Act) but also looked after in several important laws such as RA 7610, otherwise known as the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and PD No. 603, also known as the Child and Youth Welfare Code. The said laws outline the responsibility of the parents and the government to afford protection to the child and for the care and maintenance of the youth offender. However, there is no mention about incurring criminal liability through child neglect by a parent resulting in death by accident. The Child and Youth Welfare Code only punish the circumstance when the parent neglects the child by not giving him the education under Article 59 (4). It is also stipulated in RA 7160 that the child is protected against abuse, neglect, and discrimination but it is not shown that such neglect results to death other than the willful and malicious wrongdoing of the parent. Even the Quasi-Offenses under Criminal Negligence of the Revised Penal Code do not explicitly provide for the punishment of such case. With this, there is insufficiency of the laws because there is also no jurisprudence which substantially has the same facts in order to rule according to the doctrine of stare decisis. Unlike the West Virginia Code in the US that expressly provided the punishment of child neglect under Subsection 61-8D-4a (a) which states that “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars or committed to the custody of the division of corrections for not less than three nor more than fifteen years, or both such fine and imprisonment”, there is no similar provision here in the Philippines. Although the child is sufficiently protected under these laws, there are no sufficient laws to punish the parental negligence on the child resulting in death by accident.

Second, legal commentaries with the similar case, although not substantial, are enough for the resolution of the case. There is a recent tragedy in Houma in the state of Louisiana, US where two children were killed in a fire of the house while the parent was away. This happened last March 2014 and the case is still pending for the court’s decision. The parent is incarcerated while the prosecution is still ongoing. According to one of the prosecutors, “You can’t leave your child in a situation where it is foreseeable that a danger may exist for which that child cannot protect themselves”. The prosecution emphasized that the resolution of this case with similar facts requires a case-to-case basis by “deciding whether a parent is criminally responsible for a child’s death depends on the person’s state of mind at the time of death” (Houmatoday.com). In the case at bar, it is not clear what the mother had in mind other than going to the party at the local tavern and leaving her children alone. The cause of the fire is still unknown and the dangerous condition of the house is not present, at least in the stipulation of facts. The insufficiency of the facts preclude us from deciding whether the parent is criminally negligent (i.e. deserves to be punished) or is diligent enough to ensure the safety of her children but by reason of cause or accident other than her act resulted to the death of her children.

Nonetheless, the gravity of the tragedy undeniably warrants that someone should be responsible with since it would affect the moral and social fabric of the society. In fact, the insufficiency of laws and insufficiency of facts do not render the case for dismissal since it is apparent that there was child neglect in this case. Here, we are referring to children aged eight and twenty-two months. The parent should have been mindful of their playful and helpless nature. And no matter how child-friendly the house may be, the children should have been kept under supervision. If we allow dismissing the case, it will serve as a precedent to future cases of child neglect by parents with the authority to ensure their protection. It would defeat the purpose of the whole title of parental authority under our Family Code. This is in keeping with the responsibility of the parents to their children under Art 220 (1) To keep them in their company and (4) To protect their physical health at all times. While it is true that the punishment for child neglect resulting in death by accident is not expressly provided by law, the purpose of the laws mentioned in the preceding paragraphs for the protection of the children suffices it to say that the legislature could not have intended that a mother who failed to do her responsibility for the protection of her children gets away with her negligent act without punishment. It is a well-settled ruled in statutory construction that a law should be interpreted with a view of upholding rather than destroying it. Therefore, Isabel is guilty of child neglect resulting in death.

Sources:

Primary

Article 59 of Child and Youth Welfare Code (PD No. 603, as amended)

Article 220 of the Family Code (EO No. 209)

Article 6 of Special Protection of Children against Abuse and Discrimination (RA 7610)

Title 14 of the Revised Penal Code

Secondary

Agpalo, R. (2009). Statutory Construction. Sixth Edition

Subsection 61-8D-4a of the West Virginia Code

Houmatoday.com retrieved from

http://www.houmatoday.com/article/20140403/ARTICLES/140409810?tc=ar

 

September12014

Deconstructing the “Bosses”

Jun Marr M. Denila

Bachelor of Laws (1A)

Statutory Construction

Deconstructing the “Bosses”

(Resolving the delusional speech in favor of reality and sincerity and against half-truths and lies)

 

Speaking on his Fifth State of the Nation Address, President Aquino started his speech by this maxim “my resolve is firm because my primary goal is clear - to serve the Filipino people always”. I call this as a maxim because this is consistently what the past presidents refer to their policies and programs - that it will be for the benefit of the people. President Aquino fondly calls the people as his “bosses” as manifested by including this term in his speech 13 times. But whether or not what he meant as his “bosses” are the marginalized sectors remains unseen in the light of recent events that beset our nation. In deconstructing the “bosses”, one does not need to resort to extraneous facts and circumstances because it is simply found in the printed script of the speech.

At first, it is quite clear what he meant by his “bosses” when he said, “It is only right that we focus on the needs of the poorest in our society”. He outlined his plans on extending the Conditional Cash Transfer Program, the Comprehensive Agrarian Reform Law, K to 12 Basic Education Program, Bangsamoro Basic Law, and the LGU Rehabilitation and Recovery Plan. However, he also said about increasing the flights of the airlines to other countries and other Public Private Partnerships (PPPs) that more often than not, do not benefit the farmers, fisherfolks, workers, urban poor and the downtrodden sectors of our country. So, how do we reconcile these two conflicting claims of his service to his “bosses”? The general rule in statutory construction is to look into the purpose of the law in order to discover the meaning and the intention of its authors – in this case, the President through his priority agenda. Yet, not only do we deem it necessary to construct but also to deconstruct in order to reveal the flaws or inconsistencies of the said programs and projects to its stated objectives.

Let us then examine the abovementioned programs. I must say, I have the “standing”, at least in my experience in field research and community organizing to comment on these issues. First, the Conditional Cash Transfer Program through the Department of Social Welfare and Development aims to give cash to the poorest of the poor once every two months. This is to support their family and alleviate poverty especially one of its conditions is to send every child to school. Yes, this is good when you look at it in the surface level. But when we, our class in environmental policy, conducted a baseline data gathering in the oil-spill stricken area of Cordova, Cebu, we found out that the Conditional Cash Transfer is not enough. Some of the funds were instrumental for perpetrating political patronage at the barangay level. Other people do not receive the actual amount they should suppose to have and some receive an amount they should not suppose to have simply because they are not poor. In the words of President Aquino, he said “Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime”. In this case, our government seems to find this as an exception.

            Second, the Comprehensive Agrarian Reform Program Extension with Reforms (CARPER) is again extended which aims to distribute the lands to the farmers until 2014. It must be noted though that CARPER is already an extended program of CARP which expired after 20 years from 1988. Some jokingly said that the next extension will be named CARPEST to illustrate the point that the government has not been sincere to distribute their lands to the farmers. In the words of President Aquino, he said “Another problem is that the previous administration had distributed land that was easy enough to distribute—like government-owned land, or land already settled between the farmers and the deed-holders. We were left with land that came with too many complications—that only spawned endless debates and legal disputes”. I would like to dispute the fact that the disputed lands came with complications. The Hacienda Luisita, the 6,000 hectare land of the Cojuangcos, has not been distributed despite the ruling of the Supreme Court to distribute the lands. It is the vested interest of President Aquino, a family of the Cojuangcos, which creates complications and not the legal impediments that came with those lands. It would have been a legacy of President Aquino in the land reform program had Hacienda Luisita been distributed with the farmers who risked themselves in the Hacienda Luisita Massacre in 2004 to assert their right to own the land and to give justice where justice is due.

            Third, the K to 12 Basic Education Program which is the flagship program of President Aquino aims to achieve quality education and global competitiveness by reforming the basic education structure. In the words of President Aquino, he said “The inherited backlog in books, chairs, and classrooms: erased; while we are working to fulfill the new needs brought about by the implementation of K to 12”. This really caught my ire in the speech. I’m knowledgeable with this issue because my undergraduate thesis entitled “Roadmap to Quality and Globally Competitive Education: A policy implementation monitoring and analysis of the K to 12 Program in Selected Secondary Public Schools in Cebu City (April 2014)” found out that the perennial problem of education shortages is far from erased or at least in the possibility of closing the resource gaps provided that the trend of budget allocation remains the same. The student-to-classroom ratio which per UN recommendation must not exceed to 45:1 extends to 60:1 as the average in Philippine public schools. It must be stressed that this structural reforms in our educational system is one of the conditionalities of the World Bank-International Monetary Fund as part of Structural Adjustment Programs (SAPs) to continue borrowing money from this International Financial Institutions. The K to 12 curriculum is patterned to the curriculum according to “world standards” in supplying the global demand of cheap labor of semi-skilled workers in which the said program is proud to produce.

            Fourth, the Bangsamoro Basic Law which aims to reconcile the conflicts between the Philippine Government and the Moro community by enacting legislation that both parties would agree has been pushed through. However, whether the government is sincere in resolving the issue cannot be determined. It is not a guarantee when peace talks have been initiated that real solution is at hand as exemplified by the previous negotiations of MILF and MNLF that proved to be futile. Recently, the Kuala Lumpur negotiations did not produce results for the reason that there are certain provisions that both parties could not agree of. We just hope this is not just a publicity stunt that the government has been progressing in the peace process.

            Fifth, the LGU Rehabilitation and Recovery Plan for Cebu, Iloilo, Eastern Samar, Leyte, and Tacloban City is already submitted for their corresponding budget appropriation in relation to the strongest typhoon and earthquake that hit the Visayas region. I was there during the typhoon and earthquake in Cebu and I can disprove the “efficiency” of the government in disaster preparedness and response. In the words of President Aquino, he said:

 “Your government wasted no time in responding. We immediately cleared the airport, which is why, within 24 hours after the storm, three C130s were able to bring in aid. However, in just a span of eight months, the United Nations declared the Philippines to be in the rehabilitation state. In fact, Mr. Yuri Afanasiev of the United Nations Development Program said, “We have never seen a recovery happen so quickly. And many of us have been in many different disasters.” 

I really don’t know why he said this while the people were watching in their TV screens. This part has been the most controversial topic of the government, aside from the pork barrel scam, which shows its incompetence. From the international news agency such as CNN and BBC criticizing the government for its delayed response to the people themselves who feel the arrogance of President Aquino in a press conference when he told one survivor “You are still alive, right?” there is no way he can fool the people about the disaster that plagued the government as well. I was part of the core group in the Yolanda Relief Drive in our school which was one of the most active drop-off centers in Cebu. We repacked 16,000 packs of relief goods in a span of 7 days with the help of the Alumni Association to deliver these packs to the affected areas in Northern Cebu, Tacloban, Ormoc, Biliran, and Samar. Four months after the typhoon, we also conducted a rapid appraisal of the needs of women’s organization in Sitio Mayho, Barangay Paypay, Bogo, Cebu where we found out that they did not receive any help from the government but from the international organizations and their own initiative in creating networks. In the end, whatever may be the twisted view of the government in their “efficiency” in disaster response, still, a thousand deaths cannot be offset by the statement from UNDP.

            In view of the foregoing, where are the marginalized sectors which are supposed to be the “bosses”? To answer that question categorically, the marginalized sectors are left behind contrary to President Aquino’s pronouncement that “The Filipino people are moving even faster along the straight path to lasting and inclusive growth. The future we desire is on the horizon: one where justice reigns supreme, and where no one will be left behind”. The supposed good intentions for the marginalized sectors are used as justification to perpetuate the unconstitutional Disbursement Acceleration Program. Previously, President Aquino made televised attacks and speculations against the Supreme Court questioning the highest arbiter of legal questions on their unanimous decision against DAP that “We must not deprive our countrymen of benefits, and that these should reach them in the soonest possible time. This is why: We are proposing the passage of a supplemental budget for 2014, so that the implementation of our programs and projects need not be compromised.” So, it is definitely possible that a supplemental budget be passed so it would not violate the checks and balances power of the branches of government by allowing discretionary lump sum funds from the executive government. Now, the executive and legislative departments together with the “independent” constitutional commissions are “colluding” to review the JDF of the judiciary.

            I cannot seem to expound the “noble intentions” of the government in insisting that DAP is constitutional by declaring “We are calling on the cooperation of Congress for the passage of a Joint Resolution that will bring clarity to the definitions and ideas still being debated upon, and to the other issues that only you in the legislature—as the authors of our laws—can shed light on”. While the legislature may indicate its construction of a statute in the form of a resolution or declaratory act, it cannot preclude the courts from giving the statute a different interpretation. The problem is this is not a statute. This is the Constitution that everyone must bow down including the President. That is why it is not far from impossibility that President Aquino recently announced his openness in amending the constitution. So, one might ask, whose intentions are we talking here? Who are the “bosses”?

            The “bosses” are the Armed Forces of the Philippines whose equipments are supposed to be funded by DAP – that instead of providing 1:1 student-to-book ratio, a 1:1 police-to-pistol ratio has been prioritized; that instead of modernizing the infrastructures and equipment of school laboratories and classrooms, the modernization of the Armed Forces is currently ongoing; and while State Universities and Colleges receive series of budget cuts, the AFP has been exalted by purchasing helicopters that can easily crash and armors to prepare for another epic fail hostage drama.

            The “bosses” are the political parties whose reelection will depend on the funds they will receive for their political ambitions and wholesale irregularities during elections and the public officials with vested interest to protect and promote their businesses – that instead of ending political patronage and local bossism, the dependency and mendicancy of the uninformed masses are being taken advantage to continue the vicious cycle of poverty of the indigent people. Where the widening gap of the rich and the poor is now clearly defined and the escape to Neverland is not just possible.

            The “bosses” are the international financial institutions which are imposing their economic and political structural reforms to us at the expense of our local domestic industries and the actual needs of our country for a nationalist and independent economy. It would have been commendable if these were true in the words of President Aquino when he said, “our ambitions are now being fulfilled one by one: universal healthcare, classrooms, jobs, harbors, roads, airports, security, and peace. In addition to the national integrity we have restored is the world’s recognition of a new Philippines. The nation’s coffers, which come from the sweat of our citizens, are being spent ONLY [emphasis added] for their benefit

Now more than ever, let us use the words of President Aquino against him. The bosses “oppose the countless students who no longer have to study in overcrowded classrooms. They oppose the Filipinos who have found jobs because of [quality] training; the Filipinos who have been safely evacuated before typhoons strike; they oppose the informal settlers who have been removed from danger because of housing resettlement programs; they oppose the poor who can receive treatment from public hospitals free of charge; they oppose the Moros and indigenous peoples who, today, see a just and lasting peace on the horizon”. The sovereign Filipino people, the bosses are against us! 

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