Sunday, November 7, 2010

Nagoya Biodiversity Summit Succeeds with new ABS Protocol

Informal Consultative Group (ICG) on ABS
30 October 2010
FINAL Update
Nagoya Biodiversity Summit Succeeds in Approving a Strategic Plan for Conservation
and a new ABS Protocol, though Long Term Financing Support is in Doubt
By Atty. Elpidio Peria
The European Union (EU) tried to hold the adoption of the ABS Protocol hostage in the closing plenary of the UN Convention on Biological Diversity (CBD) here in Nagoya, Japan as it moved to propose that the ABS Protocol, the Strategic Plan for 2011-2020 as well as the draft decisions on the the Financial Mechanism for the Convention be approved together as a package even if the document on Innovative Financial Mechanism has several paragraphs with brackets in it, which means it has no consensus, but this was opposed by Cuba, Ecuador, Bolivia and Kenya and the COP President had no choice but to go through the process of adopting each document one by one, eventually leading to the non-adoption of the document on Financial Mechanism, which contained the innocuously-named Green Development Mechanism as one innovative financial mechanism to raise additional funds for the conservation work of the Convention.
The COP 10 President, Japan's Environment Minister Ryu Matsumoto, had to struggle with several problems in the President's table, from bad translation to ill-timed or sometimes too-energetic banging of the gavel and even the hasty calling for adoption of documents which still have some brackets in it, but on this suggestion by the EU for a one comprehensive adoption of three separate decisions, itself an act of questionable procedure, the COP10 President took the side of the countries who called for going through each of the key remaining decisions item by item.
There was a near-comic moment when the COP 10 President inadvertently asked if the document before the Plenary, which is the draft decision adopting the ABS Protocol, is ready for adoption and he was about to bang his gavel and his aides stopped him from doing so and shouting “ahhh aahhh ahhh” and he appeared to have suffered from serious anxiety as shown by the anguish on his face, but he apparently recovered fast, as he was then smiling afterwards.
Proper procedure would have required that he asked first if anyone on the floor have any objections to the document before it, and it should be only then can he call for the adoption of the said document.
But approve he did, and finally, after having been given up for dead the other night, the ABS Protocol was finally approved, at around 12:25am, based on the digital clock on the wall of the Event Hall of the Nagoya Congress Center where the final plenary session of COP 10 was held.
It nearly did not happen.
The other night, when the ICG Co-Chairs closed the session of the ICG with the assertion that the differences of the Parties on the negotiating table are so fundamental there is not enough time allotted to the ICG for Parties to come to an agreement, Japan made an announcement that on the last day of COP, on 29 October, at 840am, several delegations are to be summoned to be shown a copy of a proposed clean text of a draft ABS Protocol.
That is what exactly happened in the morning of 29 October, and this limited-circulation document was given to Like-Minded Megadiverse Group and Like-Minded Asia-Pacific group of countries and they then repaired to their designated meeting room in the Nagoya Congress Center to discern their position on the document.
The group discussed its concerns and at around 1030am, another document appeared, which contained a correction of the earlier-released document.
Later came an announcement that the COP 10 President would be meeting the group at around 2pm.
The group sent its representatives to the office of the COP10 President, led by Brazil, and followed by Malaysia, Iran, Cook Islands, Colombia, Peru and South Africca.
The group in their discussions had three essential issues to try to bring into the document, after which they could then consider the document balanced.
These issues are : one, the definition of “utilization” and “derivative”; two, the scope of the Convention which, as it appears in article 3 of the draft, is limited only to “genetic resources” which excludes consideration of traditional knowledge; and three, the deletion of some wordings in the article on compliance in order to include the notion of mandatory disclosure requirements and checkpoints.
What actually transpired in the meeting with the COP President came mainly from accounts gathered from Iran, Malaysia, Colombia and Cook Islands, but they are unanimous in saying that it was a difficult discussion, three times they asked the COP 10 President to allow some small changes in the document to make it balanced and they were refused, and they got some agreement on the change in the word “genetic material” such that it will now be “genetic resources”, and they were at the point of arguing and insisting on the further changes needed on the document when the African Ministers got ushered in the room and they were asked by the COP 10 President if the document is agreeable to them which was answered in the affirmative and after that the COP 10 President no longer entertained any changes.
Thus, from the document presented to the Parties concerned, only one change was made, that one on the definition on “utilization”, which should now include research and development on the genetic and/or biochemical composition of “genetic resources”, instead of the earlier-proposed “genetic material”.
With this change, the Protocol would now cover within its rules a broader set of activities relating to genetic resources which will be subject to its provisions on fair and equitable benefit-sharing, access and compliance.
During its adoption, several countries spoke of their non-acceptance or unhappiness of the document, but they did not stand in the way of its eventual adoption.
These countries were Cuba, Venezuela and Bolivia.
Namibia spoke but mainly to endorse the document, including Ukraine.
Argentina, the incoming G77 Chair, was more concerned with its procedural amendments on the draft decision.
What happens now is that the Convention has a more modest set of targets, but without a clear set of targets or indicators for resource mobilization strategy, since a process was approved to confirm these targets at a later time.
The draft decision on innovative financial mechanism which contained the green development mechanism was set aside; instead, what was adopted was a proposal by Bolivia from the floor calling for a proccss to explore further these innovative financial mechanisms at a later date.
Most of the delegates left the plenary hall at way past 2pm, even though some regions were still making their obligatory closing statements, but at the back of the plenary hall, the hardened ABS negotiators who for the past sixteen days since October 13 were arguing with each other, were seen shaking hands and hugging, and chatting, and this time most of them were all smiling.
Earlier in the plenary, there was an adjournment at around past 6pm, to allow the delegations to attend the closing reception by the Indian Government, the host of the next COP meeting in a still unspecified city in India, sometime in October 2012.
Interestingly, the dancing Bollywood dancers were Japanese women, who mimicked the movements of Indian dancers, to the same effect and delight of the delegates.
Gurdial Singh Nijar of Malaysia, wearing a flowing black robe, in the style of an Indian raja, was seen by most delegates dancing along with some members of the Secretariat and those delegates whom he can entice to join him, which many did.
Delegates that night were largely happy, mainly perhaps at the prospect that they will be returning home, most of them were here in Nagoya for already three-weeks, as most of them also attended the COP-MOP of the Cartagena Protocol, and they will just reckon later with the consequences of their actions some other time, but not in that particular night.

Saturday, September 25, 2010

Tentative Agreement on Utilization of Genetic Resources

Developing countries excluding LDCs (Least Dev...Image via Wikipedia
ABS Working Group 9 Further Resumed
Inter-regional Negotiating Group (ING) Meeting
Montreal, Canada
18 September 2010

CBD Parties Come to Tentative Agreement on Utilization of Genetic Resources
By Atty. Ping Peria
Seventy-six Contracting Parties to the Convention on Biological Diversity (CBD) attending the  Inter-regional Negotiating Group (ING) meeting here in Montreal, Canada today came to a  tentative agreement  on the definition of the word “utilization” of genetic resources, part of a series of measures that is aimed at putting to rest the long-running dispute among developed and developing countries on the sharing of benefits arising from the  use of the world's biodiversity.

“We hope you can live with a general consensus...this is a very strong step forward”, said Fernando Casas, Co-Chair of the ING, as he quipped that the ING will eventually come back to the use of terms in Article 2, when every other key item in the draft ABS Protocol.

What was agreed so far by the Parties to the ING is to place the word “utilization” as part of art. 2 of the draft ABS Protocol which can now pave the way for the deletion of the word “derivatives” scattered in various provisions in the emerging international treaty that is expected to stop biopiracy.

The agreement was tentative because developed countries such as Canada, EU, New Zealand, Japan and Switzerland kept on repeating as part of their acceptance of the definition that they will still fine-tune the language of the definition especially when the term is to be used in other parts of the ABS Protocol, like in the provision on access, fair and equitable sharing of benefits, TK andcompliance.

This definition of the word “utilization” has been agreed upon by a small group called by the Co-Chairs of the Working Group which worked on this text last July 2010 and is part of the so-called “core of the core” issues that once resolved should also lead to an agreement on many issues involving the sharing of benefits arising from the use of biodiversity. .

This text however was not yet incorporated in the body of the draft ABS Protocol coming out from that July 2010 meeting of the ABS Working Group, and it was then, still a footnote.

 The text on “utilization” has been extensively discussed in the afternoon going into the night, as some Parties were asked by GRULAC (Latin American and Caribbean group of countries, one of the key UN regional groups) member countries  to withdraw their text proposals that would have included the terms “chemical”, “breeding and selection” and the inclusion of a broad enumeration of what constitutes a list of typical uses of genetic resources in Annex 2 of the draft   on utilization as proposed by South Africa and the phrase “taking into account emerging and future technologies involving genetic resources” made by Philippines in the interest of letting developed countries agree to a emerging text, which in turn was considered by Japan, EU, Canada and Australia as a major advance in the negotiations.

Australia tried to stall saying this is a weekend in their  capital including New Zealand and said that they will again consult their capital about this emerging consensus and suggested a bracketing of the text which was met by a simultaneous raising of flags by  all countries in the Africa, Asia Pacific and GRULAC region to queue up in the speaker's list to respond to Australia.
This trick by Australia was refused by the Co-Chair at this time assuring her that Parties in the ING will have to go back to this emerging agreement on the text when they revisit art. 2 on the use of terms in the last negotiating day of this session on Tuesday, 21 September.

Given this impasse, the Co-chairs decided to move on to other topics, particularly article 4 on the fair and equitable sharing of benefits.

The discussion on art. 4 however also got stuck when there were sharp differences of opinion between developed and developing countries on the provision that “every” utilization of genetic resources should give rise to an obligation to share benefits as according to Canada  this obligation is too “imperative” and thus will cause it a lot of difficulties aside from its observation that it is not what is found in the text of the Convention.

The Philippines responded to this comment saying that this is what has been missing  since the time the CBD took effect in 1993, that there has been no benefits shared to developing countries as the text of the CBD, while mentioning fair and equitable sharing of benefits, still had to require the execution of contracts which is called “mutually agreed terms” in the Convention and the taking of various “legislative, policy and administrative” measures when in reality very few countries have legislation or any other measure in place to ensure benefit-sharing and that most utilization of genetic resources, particularly in the classic sense of the term 'biopiracy” has been without any contracts.

Malaysia expressed broad support to the formulation in Article 4  since it explicitly sets out the fact of the obligation which is to share benefits for “every” utilization of genetic resources and that it  also spells out with whom it must be shared which is with countries of origin of the genetic resources and that this is to be shared through the mechanism of mutually agreed terms or contracts.

India and Peru however expressed their contentment in deleting the word “every” for the obligation to share benefits as to them the more important concept is that these benefits must be shared with “countries of origin” of these genetic resources.

The EU has a completely different view of the matter, citing art. 15.7 of the Convention on Biological Diversity which states that it is the providing countries that will be sharing these benefits.

The view of the developing countries is that in art. 15.3 of the same Convention, the genetic resources being referred to in the Convention are 'those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

The problem with the concept of “providing country” is that this can be an excuse for those countries that are not the countries of origin of the genetic resources but nonetheless have these resources in abundance, like the former colonial masters UK, or Netherlands or the US who collected genetic resources throughout its history with its colonies, to claim benefits each time they also provide access to these genetic resources.

The countries who are the countries of origin of most of these resources claim otherwise, saying that if this notion of benefits accruing to countries of origin is not enshrined in the draft ABS Protocol then it would be a hollow instrument without any significance to the generation of benefits which should contribute  to the conservation and sustainable use of biodiversity.

Co-Chair Fernando Casas decided to break at around 11pm for countries to  further reflect on the interventions made, saying that countries are near agreement on these issues, perhaps a night's rest might enable countries find a compromise on these variant positions.

Earlier in the day, the ING also tackled the institutional provisions of the draft ABS Protocol, from Art. 20 to 31, coming to agreement on most of the bracketed text, only disagreeing on how the Meeting of the Parties to the Protocol would hold its first meeting side by side with the Conference of the Parties to the Protocol as Egypt was insisting that this meeting should not be held together in time as one-person delegations particularly from developing countries would have a hard time attending if both meetings will happen at the same time.

There is however bracketed language here from either “held together” or “in conjunction” and it is the EU that is raising an issue of legal ambiguity if the word “in conjunction” is used, as that phrase was lifted from the Cartagena Protocol on Biosafety, the said Protocol being an international instrument also arising from the Convention on Biological Diversity.

The Philippines however was alone in its proposal to set up a stand-alone provision on non-compliance, calling for the establishment of a subsidiary body on implementation.

The view of the Megadiverse Countries on this on the sidelines  is that this is a matter best left to the Meeting of the Parties.

 The Co-Chairs left is as such for the meantime as this is the only remaining bracketed text on the provisions on institutional provisions  aside from the other one mentioned earlier  where the EU and Egypt had differing views.

Over-all, while very slow, the ING has made some progress on its opening day of session, which was made possible through the generous donation of support by Japan, Norway, Germany and Switzerland.


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Saturday, September 18, 2010

Impeaching the Ombudsman

Floor proceedings of the U.S. Senate, in sessi...Image via WikipediaMany consider the filing of the second impeachment complaints by Akbayan and Bayan Muna against Ombudsman Merceditas Gutierez a litmus test for the new presidency of Benigno 'Noynoy' Aquino.  Or is it?

Under the 1987 Philippine Constitution, grounds for impeachment include culpable violation of the Constitution, bribery, graft and corruption, and betrayal of public trust.. Sections 2 and 3, Article XI of the Constitution  states that the House of Representatives has the exclusive power to initiate all cases of impeachment against the President, Vice President, members of the Supreme Court, members of the Constitutional Commissions (Commission on Elections,Civil Service Commission Commission on Audit), and the Ombudsman. The House of Representatives can endorse the articles of impeachment by a vote of one-third of its members and transmit the said articles to the Senate of the Philippines which tries and decide the case as an impeachment tribunal.

Reasons for impeaching
Ombudsman Gutierrez is accused of sitting on graft and corruption complaints against former president and now Pampanga Rep. Gloria Macapagal-Arroyo and her husband, Jose Miguel Arroyo who was Gutierrez' law school classmate of Mr. Arroyo at Ateneo.

In a rare and swift move, the House of Representatives’ justice committee has found the impeachment complaint against Gutierrez sufficient in form and substance and the next step would have been for the justice committee to hold hearings in preparation for reporting the complaint against Gutierrez to the plenary. Unfortunately for the justice committee of the House of Representatives, the Supreme Court upon petition by Ombudsman Gutierez issued a status quo ante order suspending the impeachment proceedings.

Iloilo Representative Niel Tupas Jr., chairman of the justice committee, and Deputy Speaker and Quezon Representative Lorenzo “Erin” Tanada III, said they will push through with the hearing set September 28 and 29, citing it is the constitutional mandate of the House to act on complaints against impeachable officials in 60 session days. Fortunately though, Speaker Feliciano Belmonte averted a possible constitutional crisis by issuing a timely statement that the House of Representatives will abide by the order of the Supreme Court.

With the quick intervention of the Supreme Court in stopping the impeachment of the beleaguered Ombudsman, many speculations are circulating. First is whether the Supreme Court, which is practically filled with appointees of the past President Gloria Macapagal-Arroyo, will issue an injunction dismissing the impeachment proceedings, or simply delay its resolution after the recess of the House of Representatives, thereby moving transmittal of the articles of impeachment to the Senate possibly next year.  The first scenario is obviously a victory for the Ombudsman, and a setback for the administration of President Aquino who has made as one of his political platforms the eradication of graft and corruption.

Second and the most important part is whether the Senate will rule on the removal of the Ombudsman assuming that the impeachment complaint will reach it, as the vote needed to remove and convict is 2/3rds of all members of the Senate who will act as Judges, or around 16 Senators.  For the record, Liberal Party which is the political party of the President, although in numbers can already transmit the articles of impeachment from the House of Representatives, does not have a commanding presence in the Senate to secure the commanding 2/3rds vote to convict and remove the Ombudsman.  This will be a litmus test for the President to secure the support of independent Senators, and this will not be an easy matter.

Another interesting twist is that the Chief Justice of the Supreme Court, Renato Corona, who is very close to the former President Gloria Macapagal-Arroyo, will jointly sit as co-presiding officer of the impeachment trial with Senate President Juan Ponce Enrile.  The Supreme Court Chief Justice will be asked to rule on legal issues during the impeachment trial, and his position may spell the difference between conviction or acquittal.

If we were to judge immediately past impeachment complaints, the picture is very gloomy.  In 2005, 2006, 2007, and 2008, impeachment complaints were filed against President Arroyo, but none of the cases reached the required endorsement of 1/3rds of the members of the House of Representatives for transmittal to and trial by the Senate. But the situation now is different, as the person being impeached is not an elected President but an appointed constitutional officer who is the Ombudsman.  In addition, the 1/3rds vote needed for transmittal is almost a certainty, with the Liberal Party of the sitting President in the House of Representatives leading the way.

There appears only two scenarios that Ombudsman Gutierez can escape impeachment conviction.  Either the Senate trial will go her way with acquittal, or the Supreme Court will issue now an injunction against proceedings in the House of Representatives with a dismissal order.  But then, will the position of President Aquino on the issue influence a supposed independent Senate, or that the rule of law will be upheld by a co-equal branch as the Supreme Court?
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Thursday, September 16, 2010

$50-million damage suit filed in US vs. Lacson, Erap for Dacer-Corbito slay

Sen. Panfilo M. LacsonImage via Wikipedia
Atty. Errol Zshornack, lawyer of the family of the slain PR man Bobby Dacer, in an interview live on ANC today revealed that that they have filed in the United States a whooping $50-million suit for compensatory and punitive damages against Senator Panfilo Lacson and former President Joseph Estrada for the Dacer-Corbito murders.  The filing of the case is similar to the cases filed by human rights victims against the late dictator President Marcos where a United States court awarded millions of dollars in damages.

For coverage of the interview, please check on the video link below.


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Saturday, August 14, 2010

Proposed divorce law in the Philippines

philippine law blogPhilippine divorce lawsVector image of two human figures with hands i...Image via WikipediaBy Rey Cartojano
For a predominantly Catholic country as the Philippines, the refiling by the Gabriela women's party-list group of a controversial bill to legalize divorce in the country drew mixed reactions.

The refiled measure, now renamed House Bill No. 1799 (An Act Introducing Divorce in the Philippines), lists down five grounds for the filing of a petition for divorce:
1. Petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable;
2. Petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable;
3. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage;
4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations;
5. Any of the grounds for legal separation that has caused the irreparable breakdown of the marriage.
Under the present law, particularly Article 36 of the Family Code of the Philippines, only psychological incapacity is the only ground for annulment of marriage, and the process of securing annulment is not only tedious but expensive as well, making the provision biased in favor of those who have the financial means to sustain costly litigation.
Under the proposed divorce bill, separation in fact (de facto) for five (5) years and legal separation for two (2) years are already grounds for divorce, as long as reconciliation of the spouses is highly improbable.  Separation in fact is a widespread phenomenon in the Philippines, especially for couples who could not afford the legal process of annulment, thus providing these separated couples a ground to formally and legally severe their marital ties.  On the other hand, legal separation for two (2) years is thought by the proponents of the divorce bill enough basis to proceed to divorce, considering that the spouses already passed the ordeal and process of legal separation.
The third ground is irreconcilable differences that caused irreparable breakdown of marriage.  What these irreconcilable differences are not clear, for as long as they caused irreparable breakdown of marriage, again without sufficiently defining what irreparable breakdown of marriage means.  The third ground provides possible judicial interpretation based on the facts of the case, which can be questioned as unwarranted delegation of legislative authority, i.e., judicial legislation, or simply unconstitutional for being vague.
The fourth ground of psychological incapacity is feared to be a useless provision if the proposed divorce bill is passed into law, as the other grounds will be easier to establish and less costly for the parties. In fact, the existence of the third ground of irreconcilable differences, which is broader in scope, will be sufficient to absorb this ground of psychological incapacity.
The last ground for divorce, which can be any of the grounds of legal separation under existing law that caused irreparable breakdown of marriage, provides an opening for the broadening in the scope of the coverage for divorce in the Philippines. The Family Code provides the following as grounds for legal separation:
[1] Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
[2] Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
[3] Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
[4] Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
[5] Drug addiction or habitual alcoholism of the respondent;
[6] Lesbianism or homosexuality of the respondent;
[7] Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
[8] Sexual infidelity or perversion;
[9] Attempt by the respondent against the life of the petitioner; or
[10] Abandonment of petitioner by respondent without justifiable cause for more than one year.
In effect, the proposed divorce bill added ten (10) more specific grounds for divorce as enumerated above, as long as the said grounds caused irreparable breakdown of marriage, again without clearly defining what irreparable breakdown means. 
The Philippine Daily Inquirer reported that the refiling of the bill quickly elicited an objection from Parañaque Rep. Roilo Golez, who said, “That is like giving a married couple a weapon of mass destruction that they can use against each other even for petty, solvable marital problems.”   
Buhay party-list Rep. Erwin Tieng also said his group was against divorce because it was tantamount to giving troubled marriages an “exit clause from a very important union.”   He suggested “preempting” the dissolution of marriages by effective counseling or “better family relations” programs from the Church, government and volunteer groups.
The bill’s authors, however, said a divorce law would address the issue of domestic violence. Police statistics in 2009 showed that 19 women a day fell victim to marital violence.  Gabriela Representatives Luzviminda Ilagan and Emerenciana De Jesus stressed legalizing divorce would give “married couples in irreparable marriages another legal remedy that they can resort to in addition to the country’s existing laws on legal separation and annulment.”
Ilagan and De Jesus said a divorce law could help put an end to domestic violence still prevalent among married Filipino couples.  The Philippines is one of only two countries in the world (excluding the Vatican) that has not legalized divorce.  “For women in abusive marital relationships, the need for a divorce law is real. It is high time that we give Filipino couples, especially the women, this option,” said Ilagan and De Jesus in the bill’s explanatory note.
It appears that the proponents of the divorce bill anchor principally their arguments on domestic violence, citing several alarming statistics to establish convincingly their points.  However, the grounds being proposed under the divorce law encompass areas outside of domestic violence, as for instance the addition of the ten (10) grounds under legal separation as grounds also for the filing of divorce.
Although it is really high time that the Philippines takes a second very serious look on our outdated and unresponsive law on annulment, the proposed bill on divorce appears too revolutionary and unwieldy for most Filipinos.  While we are cognizant that our various tribal and cultural communities had already indigenous customs and practices similar to the divorce being practiced by the Muslims especially in southern Philippines which ALL predated the advent of Spanish, American and Japanese colonizers, we have to face the reality that a revolutionary and unwieldy divorce bill as proposed now may not pass into law especially with the strong opposition of the Catholic hierarchy.  
But tempering and limiting its provisions, and making it cover only to very specific and defined grounds, such as for instance repeated domestic violence, may probably cause a rethinking by the local Catholic hierarchy of its position on the issue.  After all, if Italy and Spain, which are supposed to be centers of global Catholicism have their own versions of divorce laws, why can't we have here also in the Philippines?
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Saturday, July 17, 2010

Right of minority representation in local Philippine legislative bodies

By Rey Cartojano
After partisan politics was supposed to be settled in the last May 10 elections, the next order of the day especially for local officials is the process of formulating and passing ordinances and other legislative work.
Section 50 of the Local Government Code sets the tone of this process by requiring the concerned legislative body, or Sanggunian, to adopt or update its existing internal rules of procedure starting its first regular session and within ninety (90) days thereafter. The adoption or updating of the internal rules of procedure is a critical process in local legislative work as it prescribes assignments in chairmanships and memberships of committees where most legislative work take place.  In addition, the internal rules of procedure can decisively prescribe the manner on how local legislative business will be conducted especially to favor the dominant political party or grouping.
A question of controversial impression is whether the internal rules of procedure can prescribe the process of appointments of committee chairmanships and memberships to favor only a dominant political party or grouping.  Stated directly, is it legal and in accordance with parliamentary practice to limit chairmanship and membership of all committees to the members of a dominant political party?
In answering queries for legal opinions especially covering issues in the interpretation of internal rules of procedures, the Department of Interior and Local Government (DILG) has always outlined the hierarchy of sources of authorities as follows: (1) 1987 Constitution; (2) Laws, especially the Local Government Code; (3) Court decisions; (4) Internal Rules of Procedures of the concerned Sanggunian; and (5) Parliamentary customs, usage and authors.
Suffice it to state at this stage that in international parliamentary customs and usage, and even bolstered by multitude of scholars and authors, the rule is settled that in a parliamentary set-up working through many committees, apportionment of committee chairmanships and memberships is allocated in proportion to the percentage of minority representatives vis-a-vis the total elected representatives. In fact, this formula is even followed by the present Philippine Congress in the distribution of committee assignments, which means that a congressman coming from minority parties and groups is always assured of a committee assignment, with or without him asking for it.
If we follow the hierarchy of authorities stated in many DILG legal opinions, it seems that minority representation in local legislative committees is doomed if the internal rules of procedure will favor committee appointments of chairmen and members highly dependent on the will of the majority, as the Philippine Constitution, laws and court decisions which are supposed to occupy higher level of authorities on the matter on minority representation do not yet have a clear coverage and resolution.
However, the International Parliamentary Union (IPU), a global organization of various state parliaments of which the Philippines is a member, cited Article 25 of the International Convention on Civil and Political Rights, which the Philippines ratified last 1986, on the right of the citizens to be heard through their elected representatives.  The right of the citizens to be heard through their elected representatives is interpreted to include the right of the said representatives to be given fair representation in parliamentary committees, which almost all parliaments in the world already are adopting.
By the doctrine of incorporation found in Article 2, Section 2 of the 1987 Constitution (where the Philippines adopts by incorporation international laws as part of our domestic laws), the International Convention on Civil and Political is already part and parcel of the laws of the land.  As such, then, it is submitted that any internal rules of procedure of any local legislative assembly in the Philippines which infringe on the right of minority political groups to be represented in parliamentary committees, for that matter, is not only illegal but not in accordance with internationally accepted parliamentary customs and practices.
At the end of the day, representative democracy is not all about what the majority wills government to be as it is about giving the right of other elected representatives to be heard, participate and check the process of legislation. 
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Saturday, July 10, 2010

The Case of President Noynoy Aquino's First Memorandum Circular

By Rey Cartojano

In what could be a bold and decisive move to weed from public service Presidential appointees of the previous administration, President Noynoy Aquino acting through his Executive Secretary Paquito Ochoa declared in Memorandum Circular No. 1 that "ALL CO-TERMINOUS THIRD LEVEL POSITIONS VACANT AS OF JUNE 30, 2010; DIRECTING ALL NON-CAREER EXECUTIVE SERVICE OFFICIALS (NON-CESO) OCCUPYING CAREER EXECUTIVE SERVICE (CES) POSITIONS TO CONTINUE TO PERFORM THEIR DUTIES AND RESPONSIBILITIES; AND EXTENDING THE SERVICES OF CERTAIN CONTRACTUAL AND/OR CASUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON JUNE 30, 2010."
The Memorandum Circular immediately created fears and apprehensions from many sectors, even as the new administration made its position clear on midnight appointments irresponsibly rushed by the past government.  But the issuance of Memorandum Circular No. 1 substantially missed the controversial issue of rescinding and nullifying midnight appointments, which is a popular move for the new Aquino administration, as public perceptions will easily confuse the main thrust of Memorandum Circular No. 1 as covering midnight appointments.
And so, as fast as an embarrassed cowboy, a shorter, revised and amended version of the said Memorandum Circular No. 1 was issued and now declared ALL NON-CAREER EXECUTIVE SERVICE POSITIONS VACANT AS OF 30 JUNE 2010, AND EXTENDING THE SERVICES OF CONTRACTUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON 30 JUNE 2010.  Aside from the fact that both Memorandum Circulars are identically numbered 1 issued by the same authority, probably a first in the history of Philippine executive directives,  despite differences in presentation, language and scope, Presidential spokesman Edwin Lacierda said Malacañang had to "fine-tune" the memorandum circular since it was supposed to affect only political appointees and not all non-career officials in government.  Even if were so, the administration could have easily issued a new Memorandum Circular revising Memorandum Circular No. 1, but to have two Memorandum Circulars denominated as No. 1 with the new MC No. 1 'fine-tuning' the old MC No. 1 is a poor display of draftsmanship, no less.  
Let us dissect the scopes of both new and old Memorandum Circular No. 1.  In the old MC No. 1, the first part of the caption speaks of third level positions whose appointments are coterminous with that of the appointing power, who is no other than the President of the Philippines.  These third level positions refer to positions in the Career Executive Service  that above division chief level that exercise managerial functions, to include the following positions of Undersecretary, Assistant Secretary, Bureau Director, Bureau Assistant Director, Regional Director, Assistant Regional Director and Department Service Chief.  While the said caption brings fear to those duly qualified CESO career officials appointed by the President, as it presumes that they could be included in the clause, the contents of the old Memorandum Circular No. 1 categorically covers only non-CESO officials appointed by the past President. as they are given at the latest until 31 July 2010 to vacate their posts.  In short, the old Memorandum Circular No. 1 actually respects the rights of CESO career officials appointed by the President, so that these officials will have security of tenure even beyond the term of the appointing past President.   
The most feared provision, especially for the lowly rank and file government employees, is the directive on contractual and casual government employees, numbering in the tens of thousands to vacate their posts at the latest on 31 July 2010.  The only consolation though, is if the contracts of these contractual and casual employees already expired last 30 June 2010.  Interestingly and quite obviously, if the contracts of these contractual and casual employees expired on a date after and other than 30 June 2010, they will not be included in the coverage of the old Memorandum Circular No. 1.
The ultimate question then is this:  what is the difference between the old Memorandum Circular No. 1 and the the 'fine-tuned' new Memorandum Circular No. 1?
While the 'fine-tuned' new MC No. 1 eliminated the excess verbiage of the old MC No. 1 on the scope of the termination of Presidential appointees who are non-CESO holders (i.e., if the official is a presidential appointee of the past administration but holds a CESO qualification, he is not covered), the said new 'fine-tuned' MC No. 1 did not include from its coverage casual government employees.  In effect, the new 'fine-tuned' MC No. 1 revised and amended the old MC No. 1 as it excludes from its coverage thousands of casual rank and file government employees.
Despite the confusion that the new and old of the same Memorandum Circular No. 1 brought to government officials and employees, it is too early to be harsh on a very young administration which appears to be serious and determined in cleaning the ranks of the government of appointments based on political expediency rather than qualifications.  From the many career and qualified officials, the clarification brought sighs of relief and hope.  But even so, it will be unforgivable if this same mistake of 'fine tuning' and double talk will be repeated for succeeding presidential directives in the future.  After all, and as the popular saying goes, you can fool the people some of the time, but not all the time.
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Thursday, July 8, 2010

Promoting Farmers' Rights in ADB's NRM Projects and Investments

By Elpidio Peria

For quite some time, even as farmers are asked about the matter of natural resources management, some have said this as an issue for the governments only though it cannot be denied there are also active groups of farmers worldwide who have fought for the recognition of their rights, especially on the farmer's right to own the land, especially at the international level. Indeed, farmers have rights, not only from Art. 9 of the International Treaty on Plant Genetic Resources on Food and Agriculture of the FAO which talks about Farmers' Rights, but also from the UN Human Rights instruments, which includes the Right to Food.
With unabated biodiversity loss, climate change, lack of funds of developing country governments in Asia-Pacific, and the uncritical tendency to use modern biotechnologies to meet food security challenges, it is important to ensure and institutionalize the rights of farmers on matters relating to agriculture and natural resources management, more importantly on their rights to land, which is best concretized by the recognition of farmers’ right to land and to directly manage productive resources. This is the only way to ensure inclusive and sustainable growth.
In the context of a tendency to use modern biotechnologies to foster productivity improvements in the farm, the rights of farmers are also an important complement to the forthcoming international instrument shepherded into completion by the Convention on Biological Diversity's Cartagena Protocol, the Supplementary Protocol on Liability and Redress from Damage caused by GMOs - shielding the small farmers from liability or enabling them to claim for redress and compensation for crop loss and any untoward effects on their health and their farming environment.
A clear articulation of what the rights of farmers are also ensures that farmers, along with indigenous peoples and local farming communities, have clear rights to recognition as well as to benefit-sharing from the uses of plant and animal genetic resources. It also guarantees their participation and decision-making on matters that relate to their well-being, including access to financial and other resources and technology. Ultimately however, the rights of farmers to manage natural resources are best guaranteed by the recognition and institutionalization of their rights to land and productive resources in agriculture. This should be the fundamental principle where any initiative of ADB on NRM should stand. If the ADB cannot change its ways now to address this, then it should be considered a failure.
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Wednesday, July 7, 2010

Natural Resources Management in ADB

By Elpidio Peria
Natural Resources Management or NRM is nowhere in the priorities or core areas of operation of ADB's Long-Term Strategy (2008-2020) or Strategy 2020. In that document, the environment is next to infrastructure, but it deals mainly with issues relating to urban environment issues, such as climate mitigation, livable cities, etc. The ADB's own Evaluation Report in 2008 however states that Strategy 2020 has placed the sustainable management of natural resources high in its agenda particularly as it seeks to achieve sustainable and inclusive growth in developing member countries (DMCs).
The ADB's Agriculture and Natural Resources Research (ANRR) agenda derives from ADB's own 1995 paper on Agriculture and Natural Resources Policy, which has the following items : (1) developing remunerative farming systems for poor farmers; (2) enhancing income and living standards of women; (3) improving sustainable management of agriculture and natural resources; (4) enhancing the productivity of agriculture; (4) enhancing the capacity of national agriculture research stations (NARS); and (5) conducting research on socioeconomics and public policy.
ADB's own assessment of the current challenges in Asia-Pacific include : population growth and rapid urbanization, increasing competition for resources, trade liberalization and globalization of markets, including globalization of agricultural food systems where the specific challenge now is on the ability of small producers to overcome the barriers posed by concerns of food safety and quality standards and inevitably, climate change. But the real key challenges of the region relate to increasing poverty and inequality, worsening environmental degradation, growing competition for resources and climate change, all of which are actually outlined as the challenges confronted by the Strategy 2020.
The ADB's Operations Evaluation Department in a 2008 report recommended that the current ANRR Policy must be updated, to align it more closely with Strategy 2020, in addition to giving the usual support for short- and long-term research, restoring the level of ANRR funding such that it will be at US$5million per specific technical assistance and lastly, to promote the wider utilization of ANRR products.
Before CSOs may be persuaded to support these recommendations at their face value, they, and the public in general should be aware of the following :
1) for now, ADB has categorized agriculture under "Other Areas of Operation" when the bulk of Asia's poor are in the agriculture sector (including fisheries and forestry). In the ADB's 2009 Annual Report, "Agriculture and Food Security" is categorized as "Cross-Cutting Initiatives", with only 7 loans allotted with a measly $443 million in 2009, including ANR as a whole. This is a dismal failure, considering that ADB targeted to increase its lending for agriculture and rural development to more than US$2 billion in 2009
If ADB is serious in actualizing its vision of “inclusive” economic growth, agriculture should be part of its Core Area of Operation. Even in the Environment core area, the key areas there have nothing to do with forestry, fisheries and agriculture which comprise the area/sector of "Natural Resource". It should not be that ADB's notion of environment be limited only to the urban environment, as that is not where the bulk of Asia-Pacific's poor live.
2) the ADB's support for short- and long- term research, and even restoring the level of ANRR funding at US$5 million should be reconsidered. The ADB's ANRR investments are virtually allocated to the International Agricultural Research Centres (IARCs), specifically the Consultative Group on International Agricultural Research (CGIAR).
What must be asked here is : what kinds of projects has the CGIAR implemented using the technical assistance money from the ADB? The CGIAR has been mainly responsible for the environmental, social and economic problems attributed to its active push for the Green Revolution and now with this recommendation that the bulk of ADB's support to the CGIAR are "restricted funds" - which means that the funds have to be spent exclusively for specific projects that the ADB agreed to fund, we have to ask, what are those projects that are allocated with "restricted funds" from the ADB? From ADB's own documents, we can see that most of these projects are in advanced rice genomics, biotechnology, seeds extension programs, etc. involving partnerships between the CGIAR and NARS and increasingly with the private sector.  The ADB believes that the future of ANRR should be based on public-private partnership (PPP), but this open push for this kind of collaboration should be reviewed. For example, IRRI's PPP, the Hybrid Rice Consortium, the public and the political leaders of the region should be made aware of the details of auctioning out the hybrid parentals to the highest bidders from the private sector.
Another aspect of this research support relates to the National Agriculture Research Systems (NARS), which the ADB does not fund directly, unless one of these NARS, like, for example, PhilRice, has a long-time partnership with the CGIAR or the project will involve co-implementation with the CGIAR. ADB says this is done to reduce project transaction costs and to avoid thinly spreading already limited resources for ANRR, thus they want to deal only with the CGIAR.
The problem with this set-up is that the NARS cannot then develop their capacity to do agricultural R&D tailored for the specific needs and situation of the country and their farmers; what is worse, they will now become eternally dependent on the CGIAR for expertise and technical capacity since that's the only way for them to access funds from the ADB.
3) The capacity building priorities on ADB's ANRR are on advanced genomics, applied genomics (marker development), and seeds extension training for farmers, which are what the CGIAR capacity building is all about. To address the concerns on the lack of participatory approaches in CGIAR research, ADB funded the Consortium for Unfavorable Rice Environments (CURE) in 2002 which uses participatory modes of problem identification and solution.  The ADB also boasts of supporting the CGIAR's project promoting zero tillage in wheat and rice production which they say has reduced the use of diesel by more than 50 liters per hectare, but silent on the increased use of herbicides in zero-till systems.
This kind of top-down capacity building priorities, palliative participatory approaches in agricultural research, and technology fixes to the problems of farmers should not be continued. It must be noted that it was the ADB that funded the development and promotion of hybrid rice seeds in the Philippines, Indonesia, Bangladesh, India, etc. under a program coordinated by IRRI.  It was ADB too that funded the Asia Maize Biotechnology Network in 1998 which bore the fruit of commercially introducing GM corn in the Philippines. These are projects that has leveraged private sector investments in rice, corn and wheat in Asia. Who has benefited from the foray of these giant companies, definitely not the poor farmers whose numbers have not been reduced.
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Tuesday, July 6, 2010

The Non-Establishment Clause in the Debate in the Reproductive Health Bill

By Elpidio Peria
           The Reproductive Health Bill (RHB) has encountered stiff opposition from religious groups, specifically the Roman Catholic Church (RCC), thus hindering its passage in the 14th Congress of the Republic of the Philippines. With the incoming 15th Congress set to resume its session this 26 July, there is guarded optimism among its advocates that this Bill will advance in the legislative mill, and inevitably hurdle all debates in and out of the halls of Congress, until it will finally be passed.
            Now, to prepare for the lengthy debates ahead, would it be possible to argue that this stiff opposition to the Bill by the RCC on moral grounds is tantamount to a violation of the non-establishment clause of the 1987 Constitution ? If the bill  is not passed, and the main reason for its non-approval is due to the fact that the arguments of the RCC has prevailed, then in effect, what has been made State policy is the view of the RCC,  which is not to have that bill passed. This is tantamount to establishing  the view of one religion over another, and given the fact that other religious groups in the country, from the Iglesia, UCCP, and even the Muslims are in favor of the RHB, clearly the non-establishment clause has been violated.
            Of course, advocates of the RHB kept on insisting on the constitutional principle of the separation of the  Church and State[1], but it seems they have not been that assertive about its operative mechanisms, the clauses on the free exercise of religion and the non-establishment of religion. This latter principle, also called the   non-establishment clause,  is also a constitutional command, with even more operative  force, as it is found in the Bill of Rights, which protects individuals from the great powers of the State while laying down specific obligations on what the State may not do to the individuals comprising the Philippine polity.
            Fr. Joaquin Bernas[2], S.J., has this to say about the non-establishment clause which is found in sec. 5 of the 1987 Constitution[3] :
            xxx..what non-establishment calls for is government neutrality in religious matters. Such             government neutrality may be summarized in four general propositions :
(1)   Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension;
(2)   government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension;
(3)   Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension;
(4)   Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.
            He also talked about the two values that the non-establishment  clause seeks to protect, which is voluntarism and the insulation of the political process from interfaith dissension.
            According to Fr. Bernas, voluntarism as a value is both personal and social. As a personal value, it is nothing more than the inviolability of the human conscience which is also protected by the free exercise clause. As a social value, it means that the growth of a religious group as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process  is insulated from religion and unless religion is insulated from politics.
            Interfaith dissension apparently refers to the State not taking any action that will promote religious discord or disharmony.
            In its essence, the non-establishment clause is government neutrality in religious matters. Neutrality here means, as Fr. Bernas already stated,  that : :
-        the government will not prefer one religion over another;
-        government funds will not be applied for religious purposes; 
-        government actions must not aid religion; and
-        government actions must not result in excessive entanglement with religion.
            Applying this to the debates in the RHB, it can be stated that, should the RCC bishops express a view against the RHB on the ground that it is against the teachings of the RCC, then all these aspects of government neutrality over religious matters  is violated.
            This is because if legislators agree to that kind of view of the RCC, the State has already preferred the view of the RCC over that of the other groups, which is tantamount to preferring one religion over another;   this stance of pro-life legislators must be respected as a matter of the free exercise of their religion but for it to be made state policy is tantamount to  aiding the view of the RCC  when the principle states that government action must not aid religion; this also results in government action being excessively entangled with religion.
            The  matter of government funds not being applied for religious purposes may not have any bearing in this discussion, but it can be argued that the current funding for a policy of providing materials on family planning at the LGU level is somehow applying the funds in pursuit of a religious purpose which is not to have any policy on reproductive health. This argument though needs further reworking and hopefully, further discussion should illuminate how it actually is violated in practice with the way things are at present, especially in matters relating to population development and policy.     
            Ultimately, the essence of the RHB is the right of the woman to decide what to do with her own body, in an exercise of her rights as a woman. It is also a developmental policy issue, how would the Philippines develop as a nation given its current state of resources, limitations and endowments. In all of these concerns, the Roman Catholic Church as well as other churches in the Philippines, can have a say on what their church-goers may do, and in the free exercise of their religion, the State cannot, and should not, interfere. However, the views of these religious groups should not be made into a State policy or a state policy should not contain any of these views as state policy is for all religious groups, even to those who don't profess to have any religions. It is certain that the Philippines, being a free and democratic society, will have its own share of religious skeptics and agnostics, even atheists, even if they may not be as vocal as the religious fanatics of all stripes, and all of them are entitled  to a State policy where no religious group is favored. This  is what the non-establishment clause should be about.
            Perhaps to state this as an expression of principle in the RHB, it may be stated thus:
            The State policy on reproductive health shall respect the  non-establishment clause of the 1987 Constitution. 

[1]    This is a distinct Constitutional principle found in sec. 6, Article II, Declaration of Principles and State Policies. The non-establishment clause is part of the Bill of Rights, in Article III, sec. 5, of the 1987 Constitution.
[2]    Bernas, Joaquin G.,  The 1987 Constitution of the Philippines : A Commentary, 1996 edition, Rex Book Store, Manila
[3]    Sec. 5 reads : No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.
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