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LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 29 July 2007 Issue

Republic Act No. 9372 entitled “An Act to Secure the State and Our People from Terrorism” took effect on July 15, 2007. It is government’s statutory response to the global fight against terrorism. The law is also known as the Human Security Act of 2007.

As defined, the crime of terrorism, or conspiracy to commit terrorism, takes place when (1) any person or group of persons sows and creates a condition of widespread and extraordinary fear and panic among the populace, (2) for the purpose of coercing government to give in to an unlawful demand, and (3) through the commission of the following felonies already punishable under the country’s penal statutes, namely: (a) piracy, (b) rebellion or insurrection, (c) coup d’etat, (d) murder, (e) kidnapping, (f) crimes involving destruction, (g) arson, (h) hijacking, (i) highway robbery, (j) unlawful dealing and use of hazardous and nuclear wastes, (k) unlawful dealing of atomic energy materials or facilities, and (l) illegal possession and disposition of firearms, ammunitions and explosives.

The law also provides that upon application of the Department of Justice, a Regional Trial Court, after hearing, may declare a group or association of persons as a terrorist or outlawed organization if it is organized for the purpose of committing terrorism or actually commit such acts as defined.

It is obvious that to establish a conviction for terrorism, a person or group of persons who carried out or planned the attack must openly press an illegitimate demand from the government. From this view, those behind the September 11, 2001 attack of the World Trade Center in New York City, or those who perpetrated the December 30, 2000 Rizal Day Bombings or the October 1, 2005 Bali suicide bombings in Indonesia could escape conviction under the law if prosecuted in Philippine courts because there were actually no demands raised to the government when they carried out their despicable acts. In fact, most terrorist plots are normally undertaken without warning, without the usual ‘do this or that or else’.

It seems that it would even be difficult under the law for Philippine courts to declare as a terrorist organization publicly known terrorist networks like al-Qaeda unless its leaders openly make or express an unlawful demand from the government.

But if a group of Filipino reformists take up arms against the government through rebellion or a military coup to pursue a government take-over, they would easily fall within the purview of a terrorist tag. The same is true for a disgruntled hostage taker who vents his ire on the government.

But what if the demand is legitimate like to get rid of corruption in the bureaucracy? Or what if the Abu Sayyaf commits kidnapping and seeks ransom from the victims’ families and not from the government? While there is no doubt that the group could be convicted of existing crimes like rebellion or coup d’etat or kidnapping, there is no certainty that a prosecution for terrorism would succeed if the requisite ‘unlawful demand from the government’ is not present.

Ironically, the real terrorists which the law seeks to punish have a legal justification for not falling within the penal definition of terrorism but persons or group of persons who should only be punished as ordinary criminals could easily be prosecuted as terrorists under the law.

The other focal issue in this definition is what constitutes widespread or extraordinary fear and panic? Does it include a local situation hugging national attention? It appears that this is really a matter which jurisprudence has to define in future prosecutions.

In the meantime, the law provides a penalty of half a million pesos each day of detention against the state for every unproven charge of terrorism and, after the arraignment of the accused, prosecution for terrorism bars another prosecution for the particular offense committed in violation of the penal code. Real terrorists then who should have been punished for committing ordinary crimes may remain scot-free under the anti-terror law.  Worst, they could be handsomely rewarded for committing the act.

Is the Human Security Act then a good law, a farce or a tragedy?

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 22 July 2007 Issue

Tomorrow, the 14th Congress of the Philippines begins its regular session with the State of the Nation Address of the President. 

Thereafter, both the Senate and the House of Representatives are expected to pass legislations that would address the pressing needs of the country or perhaps improve the lives of the Filipino people.

Hopefully in the next three years of the 14th Congress, it enacts legislative measures along these lines:

1.  A enabling law that would finally define, prohibit and dismantle political dynasties in the country’s political environment as mandated by the Constitution.

2.  A law that would strengthen political parties by prohibiting and punishing political turncoats, granting state subsidy and funding of major political blocks, and assuring transparency in electoral campaign spending and contribution.

3.  A law that would at least lessen, if not eliminate, red tape in government particularly in the delivery of frontline public services whereby the general public availing of the services of government is treated as kings and queens by the bureaucracy.

4. A law that would define the appropriate land use classification of every piece of the country’s territory taking into account local and regional profiles and settings and make land as a real engine for economic growth.

5. A law that would impose heavy taxation on idle lands to serve the ends of the economy, the environment and social justice. When land is unproductive, its economic and environmental functions are stifled. What is worse is when landowners derive undue profits from their idle possessions through sheer speculative activities.

6.  A law that would grant the Commission on Human Rights and the Commission on Audit quasi-judicial powers or even the authority to prosecute all cases involving government officials and employees that violate laws within their ambit.

7.  A law that would exempt from income taxation employees earning below the yearly poverty threshold as determined by the National Economic and Development Authority (NEDA), and not merely based on existing minimum wage structures as proposed, and lift taxes or prohibit imposition of charges on small time deposits and investments.

8. A law that would ensure prosecution of tax cheats by prohibiting taxpayers from entering into a compromise with the Bureau of Internal Revenue or the Bureau of Customs after deliberately evading the payment of taxes or duties.
9. A law that would automatically give scholarship to any or all students who demonstrated excellent academic performance in any school of their choice within the Philippines, private or public. 

10. A law that would support, finance, subsidize, or give incentives to Filipino inventors and their inventions.

Of course, this list can go on and on as if there is a shortage of laws in this country.  But the truth is there are tens of thousand of law in the country’s statute books. Many of them are in fact good laws which have long been forgotten or rarely being implemented.

Keen political observers in fact would often say that this country does not need more laws.  What it needs is the difficult task of better and more effective means of demanding obedience to existing laws.

Perhaps, one of the important things that this present Congress should also do is to take an inventory of all the laws of the Republic and start proceeding with the tedious task of codifying them for better implementation.

What Greek philosopher Arcesilaus observed as early as before the birth of Christ, when he said: “Where you find the laws most numerous, there you will find also the greatest injustice” should also provoke the thoughts of Filipino solons. 

It is hoped that the people of this beautiful country still finds sense in the existence of Congress.

“In the hearts of men, there lies the majesty of the law.” – JNS (the shibboleth I conceived for the use of my law firm, 28 February 2007)

Illegitimate children, as a general rule, shall use the surname and shall be under the parental authority of their mother. But pursuant to the ”Act Allowing Illegitimate Children to Use the Surname of their Father” (R. A. 9255 – approved: 24 February 2004), which amended Article 176 of the Family Code, illegitimate children may however use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. The father however has the right to institute an action before the regular courts to prove non-filiation during his lifetime.

PUBLISHED: ‘Note Verbale‘, Manila Times (Sunday-Career Section) – 21 January 2007 Issue

Who will not agree that there is no such thing as a perfect law?

It is not uncommon to see laws being used as a convenient tool for oppression.

It is understandable if governments use law to legitimately restrict individual liberties when they conflict with the general welfare. This assumes that it is permissible for the state to use its coercive powers presumably to promote the common good. But the same justification is also held by many autocrats who pretend to do it in the name of the people. And to complete the validity of state action, common good in many jurisdictions has assumed a new dimension, that is – the preference of economic interests over the worth of human dignity and freedom.

Laws are meant to be the harbinger of justice, in the same vein that it becomes the root of injustices. 

Racial discrimination for instance is abhorred by civilized societies. But even the United States which is known for being the bastion of democracy and freedom of the world justified racial prejudice for centuries through its racial segregation statutes. If not for the triumphant protests of civil rights movement in the early sixties, the inequalities would have been valid until today simply because the law allows it.

Some laws are good but they become meaningless because society takes them for granted.

In this country, who takes traffic laws or even the recent ‘Seat Belt Law’ (RA 8750) seriously? Despite the ‘Clean Air Act of 1999’ (RA 8749), there appears to be no significant improvement in the levels of pollution in Metro Manila before and after the passage of the law. The simplest explanation perhaps why they are taken for granted is inconvenience, both personal and economic.

Laws are always susceptible to various interpretations that jeopardize the consistency of their application.

The recent initiative of the House of Representatives to push charter amendments on its own is indicative of how the wordings of the law can be twisted to suit one’s interest. This predicament is obviously brought about by poor statutory craftsmanship. And this leads to a situation where favored individuals escaping from the majesty of the law while those who are not easily fall prey to it. But the more laws are put on the table of the courts for judicial determination speaks badly of the kind of lawmakers this country has.

Many laws are too complicated and complex for the understanding of the common man.

Yet, it is axiomatic that “Ignorance of the law excuses no one from compliance therewith”.  Just look at how complicated the country’s tax laws and yet every Filipino is expected to pay the correct taxes. This is the reason perhaps why law has always been, and will continue to be, a thriving profession, especially in these times where almost every human activity is within the ambit of the law.

Some laws are well-meant but in the process may also encourage lawlessness.

Take for instance the ‘Juvenile Justice and Welfare Act of 2006’ (RA 9344). Law practitioner Plaridel J. Bohol II pointed out that while the law laudably seeks to promote and protect the well-being of the youth, criminal elements of society may take advantage of the exemption from criminal responsibility accorded to children above 15 but below 18 years old who acted without discernment and those 15 years of age and below. He hopes that these children do not end up as runners for peddling of illegal drugs, as hit men of terrorist groups, or as a pack of thieves and robbers of crime syndicates.

The biggest pitfall of all perhaps is what Lao Tzu observed centuries ago: “The more prohibitions there are, the poorer the people will be. The more laws are promulgated, the more thieves and bandits there will be.”

“Law is the effort of humanity to create principles. So it’s difficult to find law that applies to every situation. Focus on principles!  Not cases! That’s what you need to look for.” – Harvard Law Prof. John H. Keynes (a character in the romantic 16-episode Korean drama television series, “Love Story in Harvard”, in a conversation with Harvard law student, Kim Hyun-Woo, in Episode 6)

“To correct a mistake is a beauty. To repeat the same mistake is a tragedy.” – Law Dean Jose Sundiang (in a casual conversation at the faculty room of Arellano School of Law, 26 August 2006)

“I may have the right to destroy my name but not my children’s name.” – Law Dean Jose Sundiang (in a conversation at the faculty room of Arellano Law School, 22 July 2006)  

THAT business entities or enterprises registered as ”Barangay Micro Business Enterprise”, or BMBE, under the “Barangay Micro Business Enterprises Act of 2002” (R. A. 9178 – approved: 13 November 2002) are entitled to the following incentives: (a) tax exempt from income arising from operations [Sec. 7]; (b) exemption from the payment of minimum wage [Sec. 8]; and (c) special credit window from some government financial institutions [Sec. 9].

To qualify as BMBE, the company must be engaged in the production, processing or manufacturing of products or commodities, including agro-processing, trading and services, and its total asset, including those arising from loans but exclusive of the land on which the particular business entity’s office, plant and equipment are situated, is not be more than Three Million Pesos (P3,000,000.00) [Sec. 3 (a)].

Food outlets, restaurants, and stores are required by the “An Act for Salt Iodization Nationwde (ASIN) Law” (R. A. 8172 – approved: 20 December 1995) to make available to customers only iodized salt in their establishment [Sec. 5 (c)]. A violation is punishable by a fine of not less than P1,000 nor more than P100,000, including a possible revocation of business permits and/or ban of its product from the market [Sec. 9].