Monday, May 31, 2010

Philippine law blog: Anti-Torture Law Is Passed

Philippine law blog: Anti-Torture Law Is PassedPhilippine Anti-Torture Law

Saturday, May 22, 2010

Why lawyers were 'unhappy' about the May 10 elections

Philippine lawyers during elections
Official Seal of the Commission on ElectionsImage via Wikipedia
After passing the Bar in 1991, I almost 'served' during all national elections in the Philippines, except the last May 10 elections. Not because that I lost my patriotic spirit or the offer was not worth the time, but I wanted a break. Really, a good break from the seemingly mercenary work lawyers do during elections. I also lost my appetite as a result of the senseless Maguindanao massacre, where lawyers were 'conveniently used', so to speak, in a political power struggle by local warlords.
Leading to the May 10 elections, many lawyers were at a loss on their supposed role in the counting and canvassing of votes, as these were taken over by the precinct count optical machines. In the past manual elections, lawyers' role was magnified by their participation in the counting and canvassing votes, so much so that proclamation of local candidates could be delayed or even prevented by lodging a pre-proclamation contest.
Now, politicians could not use election returns and other election documents to protest or halt the proclamation of the winning candidates in the May 10 elections. If a candidate cries foul over perceived irregularities in the counting, he or she can only challenge the election documents after the Comelec has proclaimed the winner of an electoral contest. The change was adopted after the Commission on Elections trimmed down the grounds for pre-election protests, which effectively eliminated the questioning of election documents to protest the count.
In an en banc Resolution dated March 22, 2010, the Comelec said a candidate or a political party can only halt the proclamation of the winner if there is “illegal composition” or “illegal proceedings” in the Board of Canvassers (BoC).
At the municipal level, the BoC is composed of an election officer, the city or town treasurer, and the school district supervisor. At the city and provincial levels, the treasurer is replaced by the city or provincial prosecutor. Under the new rules, the Comelec identified forms of illegal proceedings as precipitate canvassing, terrorism, improper venue, and lack of sufficient notice to the members of the BoCs.
In past elections, candidates could delay the proclamation of a candidate if there appeared to be irregularities in the counting of votes as seen in the election returns and certificates of canvass. These documents, according to past rules, could be challenged and could be used as basis for further election protests. The new guidelines basically have eliminated this avenue of protest, limiting it to the conduct of the BoC during the canvassing of votes.
The new electronic method of counting the election results, unfortunately, made the hiring of many lawyers useless, as manual counting and tallying of votes were already done by machines. The scenario made legal services during last May 10 elections a losing and costly proposition for many ill-advised local candidates.
In the manual system, the Board of Election Inspectors and the BoCs themselves counted the ballots and wrote the tallies on the election documents, which paved the way for various forms of electoral fraud and tampering. In the electronic balloting system, the Precinct Count Optical Scan (PCOS) machines will automatically read the ballots and print out the election returns at the close of voting.
The results would be transmitted electronically to the next canvassing center, removing from the process human intervention, especially participation of election lawyers, which poll officials said was the root of most of electoral cheating that led to proclamation delays and a multitude of protests.
I have a very close lawyer friend who posted in his Facebook account his well intentioned pose pointing to the PCOS machine, as if blaming the electronic gadget of the misfortunes of his profession. But he seemed not unhappy, not at all. As the election losers would have their say, these machines are being blamed of rigging and manufacturing results, and even of transmitting incorrect data.
Now, who says that the services of lawyers would be dispensed or reduced, especially in the light of the fact that for most Filipino politicians, there are only two election results - those who won and those who were cheated.
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Saturday, May 1, 2010

Writ of Kalikasan, hello anyone?

Writ of Kalikasan
Devils Punchbowl Waterfall at Arthurs Pass in ...Image via Wikipedia
I had this rare opportunity of revisiting my law blog after a month of hiatus this lazy Saturday afternoon. I read and heard about this new and rare legal specie called writ of kalikasan. Even to seasoned lawyers, this writ sounds exotic simply because this is new, and ignorance breeds fear as well as silence.
Unknown to many, the Philippine Supreme Court recently approved the ground breaking Rules of Procedure for Environmental Cases which took effect only last 29 April 2010. The Philippines takes pride in having a number of laws protecting the environment but the record of unabated and literally massive rape of natural and environmental resources is equaled only by the magnitude of corruption in government offices. With this backdrop, the recent procedural rules crafted and passed by the Supreme Court are meant to stop these onslaughts on environment destruction, hopefully.
As I read the Rules, I was amused that there is a specific law, particularly Act No. 3572 of several decades ago, possibly of World War II vintage, that prohibits cutting of Molave trees, and even now rare sounding trees such as Tindalo and Akli!
And beware, lest you do not know yet, including myself, that R.A. No. 3571 specifically prohibits the cutting, destroying or injuring of planted or growing trees,flowering plants and shrubs or plants of scenic value along public roads, in plazas, parks, school premises or in any other public ground. As the law is worded, you can be imprisoned for uprooting what seems to be a colorful grass or vine of scenic value in a public street.
Of course, during the Martial Law years, the late dictator Marcos should be credited in passing a number of environmental laws and presidential decrees, namely: (1) P.D. No. 705, Revised Forestry Code; (2) P.D. No. 856, Sanitation Code; (3) P.D. No. 979, Marine Pollution Decree; (4) P.D. No. 1067, Water Code; (5) P.D. No. 1151, Philippine Environmental Policy of 1977; (6) P.D. No. 1433, Plant Quarantine Law of 1978; and (7) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures.
Of recent vintage are the following environment laws: (1)R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (2) R.A. No. 7076, People’s Small-Scale Mining Act; (3) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;
(4) R.A. No. 7942, Philippine Mining Act; (5) R.A. No. 8550, Philippine Fisheries Code; (6) R.A. No. 8749, Clean Air Act; (7) R.A. No. 9003, Ecological Solid Waste Management Act; (8) R.A. No. 9072, National Caves and Cave Resource Management Act; (9) R.A. No. 9147, Wildlife Conservation and Protection Act; (10) R.A. No. 9175, Chainsaw Act; (11) R.A. No. 9275, Clean Water Act; and (12) R.A. No. 9483, Oil Spill Compensation Act of 2007; (13) R.A. No. 7308, Seed Industry Development Act; (14) R.A. No. 7900, High-Value Crops Development Act; (15) R.A. No. 8048, Coconut Preservation Act; (16) R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; (17) R.A. No. 9522, The Philippine Archipelagic Baselines Law; (18) R.A. No. 9593, Renewable Energy Act of 2008; and (19) R.A. No. 9637, Philippine Biofuels Act, among others.
While we have many of these environment laws are in place, prosecution of violators was stifled on account of the fact that the regular Rules of Court may not have the muscle and teeth for effective and expeditious enforcement. In addition, the environmental Rules will introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws.
While the provisions of the regular Rules of Court are applicable, there are many new and innovative provisions under the environmental rules. Firstly, there is the consent decree which refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. Secondly, there is the continuing mandamus which is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. Thirdly, there is the environmental protection order (EPO) refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. Fourthly, there is the precautionary principle which states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. Fifthly, there is the innovative strategic lawsuit against public participation (SLAPP) which refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.
One very interesting provision is the citizen's suit where any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Take note that you can file an action involving an environment case by alleging that you represent minors or even generations yet unborn.
And what about that strange writ of kalikasan? Especially for prospective Philippine Bar examinees, the writ of kalikasan is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
Although it is too early to tell, the passage of the new environment rules is a welcome development in preserving our natural resources and in prosecuting violators of our environmental laws.
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