Sunday, December 25, 2011

Succession has been one of the most difficult yet the most, if not for some, interesting subject in Civil Law. Others would find it complicated but one of the best ways to understand succession is to know the basic.The reason is, one cannot understand one thing if he or she is a stranger to it. And being in a review class, it’s but important for me to fully understand the basics of law.

In this article, we’ll get a glimpse of succession and somehow get to know the fundamental principles of the law.

Succession, being one of the modes of acquiring ownership, has three (3) kinds.  Firstly, the testate succession.  It is a type of succession which results from the designation of an heir, made in a will executed in the form prescribed by law. Meaning, the person who died left a will. Secondly, is the legal or intestate succession. It is that which is effected by operation of law in default of a will or aperson died without leaving a will. Thirdly, is the mixed succession.  This type of succession is effected partly by will and partly by operation of law. Simple, right?
The decedent or the person who died with inheritance is the most important person in succession. Without him or her, there is no succession to talk about. If the said decedent died and left a will, he is called a testator.

Much more than the heir, or the person who can inherit form the decedent,  in succession, as to the rights of the person involved, the most important thing that we need to determine is who is the decedent because from him or from her we would know who are the heirs.
What does these all mean? Let us take a specific case given by one of my law professors. We will call the dead person X. X died leavinga surviving common law wife, a full blood brother and a half blood sister. In his will, X gave his entire estate to his surviving common- law spouse.

The first question in this problem is, “Was his testamentary disposition in accordance with the law on succession. “ This problem would require us to consider whether those who survived are compulsory heirs or not because if the full blood brother or half blood sister are compulsory heirs then the testamentary disposition of X is not valid. However, under the law on testate succession, the full bloodbrother and half blood sister are not compulsory heirs. In fact, they are heirs in the collateral line. In effect, the testamentary disposition of X in giving the entire estate to his common-law spouse is valid. He may give his estate to anyone he pleases who has the capacity to succeed, but subject to the limitations set forth by the law.
The misconception in relation to this problem is about common-law spouse. The misconception here is since the person who survives is only a common law wife, thus she has no capacity to succeed for the reason that he or she is only a paramour. This is not true because as long as they are living together as husband and wife even if without the benefit of marriage theyare considered as common law spouse.  Accordingly, one only becomes a paramour when the other party has a legal impediment. Meaning, he or she is legally married to somebody else.

Since X has no legal impediment, then the common law wife is not incapacitated to succeed since there are no compulsory heirs who survive the decedent.
The second question in the problem here is what if X died intestate. Who will share in his inheritance? Obviously if a person dies intestate, he died without a willthereforewe will be considering who the intestate or legal heirs are.   If the common–law wife, full-blood brother and the half-blood sister survived the decedent, only the full-blood brother and the half-blood sister shall inherit from the decedent. 

Under the law, the common law wife, under intestate succession is not an heir, since she is not married with the decedent.  Thus, she will not inherit. As to the full-blood brother and half-blood sister, they will get a share of the inheritance or estate. This is because under the law of INTESTATE SUCCESSION, brothers and sisters are compulsory heirs under certain circumstances. As such, the full-blood brother will get twice the share of the half-blood sister. The full-blood brother will get 2/3 of the estate’s share while the other 1/3goes to the half-blood sister.
These are just few of the basic principles governing succession. The rules may be complicated but these can be made easy once fully understood.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

Wednesday, November 16, 2011

In the Philippines, marriage has been a part of every Filipino family’s good customs. It has been considered as a much awaited event for couples especially the women.
Just when you started to believe that miracles do happen and that fairy tales do come true, --- you have finally found the person to whom you will share the rest of your life with; to whom you will build a family with; to whom you will complete your dreams with --- but as you wait for that someone to come in what supposed to be the most important day of your life, your world crumbles down as you realize that that person, who promised you forever, has decided to pull back. Your greatest dream now turns out to be your worst nightmare.  Most often than not, this scenario is commonly seen in Filipino soap operas.  I believe you are even familiar with runaway brides.  But, how about runaway grooms?

What if as said, the man, who promises you forever, turns his back on you one or two days prior to the wedding or worst on the day of the ceremony? Is there any remedy which the bride-to-be can avail of in exchange of the shame or humiliation that this traumatic experience may bring?

The answer is a big YES.

Under Art. 21 of the Civil Code ” Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

It is a paramount rule that breach of promise to marry is contrary to good customs, hence deemed considered an actionable wrong. But let us qualify so as to give clarifications as to when a breach of promise to marry becomes an actionable wrong and when it is not.

Under the law, if it is simply a breach of promise to marry per se without any attending circumstance, the rule is that the man will not be liable for simply breaking his promise to marry the woman. The reason is that it is the policy of the state. It is the intention of the Congress. Why is that so?

It is worth note taking that when the draft of the Civil Code was presented by the drafters to the Congress, it included that the breach of promise to marry is an actionable wrong.  However, this was frowned upon by the Congressmen which resulted to the omission of the said provision from the draft. Such act manifested the intent of the congress not to make the breach of promise to marry an actionable wrong. The reason is one cannot seek specific performance to compel marriage.

On the contrary, the breach of promise to marry becomes an actionable wrong if there is moral seduction. Here, there is moral seduction if the promise of marriage will serve as the proximate cause why a woman surrenders her virginity to the man; where on the outset, the man has no intention of fulfilling the promise for the reason that he is married at the time he made the promise.

In other words, where a man’s promise to marry was the proximate cause of giving herself to him in sexual congress and there is proof he had no intention of marrying her, the promise being a deceptive device, damages may be awarded pursuant to Art 21 NCC because of the fraud and deceit behind it and the wilful injury to her honour and reputation (Baksh vs. C.A. G.R No. 97336, February 19, 1993). But, if it is a case of mutual attraction, mutual love, and mutual lust then the promise of marriage could not be the proximate cause.  Hence, there will be no liability for breach of promise of marriage.

Furthermore, sex is not an element for someone to be liable for moral damages under ART 21 in case of breach of promise to marry.

Just like in the case of  Wassmer vs. Velez. The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.

In this case, the groom let the wife believe that the marriage will push through. Preparations were made and invitations were sent. Two days prior to the marriage, the groom copped out and informed the wife by simply writing the latter a whimsical note stating that he could no longer marry her. The Court ruled that the act of the groom was palpably and unjustifiably contrary to good customs. He was then made liable for damages pursuant to Article 21 of the Civil Code.

There is also one case where a marriage is supposed to be celebrated. The parties were already right before the priest but when the priest asked the public if there was any objection to the marriage someone from the audience stood up and publicly declared her affection to the groom. Unfortunately, the groom went with her not minding the priest’s reprimand. Out of shame, the bride sought for damages for such humiliation. Applying the case of Wassmer  v. Velez ,  the Court ruled in favor of the wife.

In sum, the beach of promise to marry is not by itself an actionable wrong. To be actionable, there must be another act independent of the breach of promise to marry which gives rise to liability as where there was financial damage, social humiliation and moral seduction.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

Sunday, June 26, 2011

President Aquino as a Water Hyacinth Remover-in-Chief and the
Postponement of the ARMM Elections – Are They Related?

By Atty. Elpidio V. Peria

            It was equally dismaying to listen to Cotabato City and Maguindanao Province  local officials this week saying they were dismayed at  Pnoy not bringing any solution  or vision to the water hyacinth or water lily problem that has congested  the  Rio Grande river in Mindanao which has caused severe  flooding in these two areas recently.

            In other words, they want Pnoy to be the Remover-in-Chief of these water lilies and they will just follow what he will instruct them.

            Why this attitude? From the pronouncements of these local officials, it was obvious the Local Government Code has failed in weaning away the dependency of local officials from what is Imperial Manila.

            Their utter helplessness in dealing with their problems and now just waiting for President Aquino to helicopter to them ready-made solutions is pathetic and unbecoming of the vision of what local executives should be under  the Local Government Code, one who is resourceful and can find the means to support his own activities with a lessened dependence in the national agencies..

            The first sentence of the Declaration of Policy of Republic Act 7160 or the Local Government Code has this to say on the matter :

            sec. 2. Declaration of Policy – (a) it is hereby declared the policy of the State that the territorial   and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to   enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.

             The word “self-reliant” was not placed there by Sen. Pimentel, the father of the Local Government Code, for nothing but to underline the need for local government units not to go to Manila too often to ask for  money and anything else needed to run a barangay, city, municipality or province, though local officials sometimes may need the excitement of Manila to perk themselves up and shake the ennui of rural boredom that is seen as a regular feature of life outside the capital.

            Come to think of it, in a act of statesmanlike deliberativeness,  Pnoy said he will study the issue some more and will consult some experts and on an unspecified date, will come back and propose solutions.
            Those who are fond of FVR and GMA miss their intense work ethic and hands-on approach to the minutiae of governing. Those familiar with the  work-styles of these former Presidents swear that had it been FVR or GMA who was there visiting the flooded regions, there would have been officials, be it local or line agency, who may have been berated and upbraided already in front of many people, given deadlines or were given marginal notes. Heck, one of them said  GMA even will write on a piece of  any paper found on the spot, just to scribble down some instructions to underlings, all giving the aura of action and authority fused at that instant  aimed at solving the basic problem faced at that time.

            That is what these local officials may have gotten used to, but did not see in Pnoy.
            Pnoy, like what the leftists say, is an out and out hacendero or at most, a son of an absentee landlord and at fifty years old, even on women that  he'd rather date than commit, he has set habits or work and thought, thus, a lifetime of lethargic existence and easy-going unharried lifestyle refuses to be unsettled by the water hyacinths or water lillies that these dismayed local officials have neglected to manage in the first place, thus, Pnoy appeared to them as someone who has not shown any active interest or clear vision of what he wants to do when confronted with the problem face to face.

            Unless what we mean by “solution” or “vision” has some peso sign attached to it.

            Clearly, in a DZRH interview of a Cotabato City official, it was clear that Pnoy was not that in a hurry to give money to the local officials in the area, and that it was palpable according to the local official that there was no trust at all in the local officials handling the problem, thus that kind of sense of dismay felt by those officials who are in need of “solutions” or “vision” to solve their water lily problem.

            This sense of lack of trust in the local officials in the ARMM,  apparent in this incident of the issue of removing the water lilies could be  one reason why Pnoy and his party-mates in Congress pushed hard to have the legally scheduled ARMM elections in August re-set and synchronized with the regular local elections in 2013.

            It must be noted though that  Cotabato City is not a part of this autonomous region, but is instead a host to the offices of the ARMM, in an odd Washington. D.C.-type of political arrangement. A lot of ARMM officials though live in Cotabato City.  Just the same, Cotabato City is one of the worst-hit areas by the floods caused by, among others, the water hyacinths clogging the river outlets of the city.

            Pnoy and his party-mates actually wants to ensure their party wins the next round of general elections in 2016, thus eschewing the actual legal rationale for synchronization of elections. 

            Thus, those who wish to make Pnoy take the lead in removing the water lilies should just await his solutions to the problem which may come anytime soon, and like the proverbial saying “be careful what you wish for, it may be granted”, this surrender or holding in abeyance of the exercise of local authority and autonomy will get its full treatment once Pnoy signs this week the law synchronizing the ARMM elections to 2013, in effect, postponing it.

            In that way, we can truly see what kind of Water Lily  Remover-in-Chief he will be including perhaps becoming an ARMM overlord,  which may be tested under the Constitutional vision of the President as having “general supervision” over local government units and autonomous regions.

            How that will actually turn out and how he would like things to happen there,  a glimpse of that we can see when he makes his oath-taking anniversary speech or the traditional SONA to mark his one year in office in the coming days.

            With a sliding popularity that shows a trend of continuous decline, Pnoy may have to resort to something like authoritarian measures to show he has vision, to show he is  a leader, not a stranger to action.

            The people love it, or perhaps they have gotten used to it, to them that is leadership.

Please check link also at President Aquino as Cotabato Water Hyacinth Remover


Sunday, June 19, 2011

Spratlys Idiosyncrasies:
Does the Philippines Have What It Takes to Prevail Over China?

By Elpidio V. Peria
            This  write-up will not dwell on the political and military capability of the Philippines over a rising power such as China, but will  provide a sketch of the relative legal merits of the Philippine claims over the Spratlys Island or Kalayaan Island Group, in the recently-named West Philippine Sea.

            The late Prof. Haydee Yorac of the University of the Philippines College of Law, wrote as early as 1983 in a Philippine Law Journal article that 

              Persuasive arguments in favor of the Philippine claim are the related notions of abandonment, territorium nullius   and effective occupation.
                Prof. Yorac explained that the  case for abandonment is anchored on the premise that it is Japan, not China, that can be considered to trace their legal title to the islands  before World War II, making the earliest categorical claim of sovereign occupation  over the islands and actually occupying the islands for a long period of time. The existence of a legal title can also be inferred from the way Japan was made to renounce title to the islands in both the  Treaty of Peace with the Allies in 1951 and the Bilateral Treaty of Peace with the Republic of China. Since it was not clear to which country the renunciation was made in favor of, then the islands became what in international law is called as territorium nullius.

            Prof. Yorac elaborated on this concept of territorium nullius, defining it as “territory over which there exists no effective sovereignty and which is therefore, subject to acquisition by occupation”. These may include either uninhabited islands or even inhabited ones, if those who inhabit the latter  do not constitute a political society.

            Thus, when Tomas Cloma, a private citizen, made a declaration in 1956 asserting ownership by discovery and occupation over the "33 islands, sands cays, sands bars and coral reefs and fishing grounds in the Spratlies covering an area of 64,976 square nautical miles”,  he was in effect taking advantage of the nature of the islands as either abandoned and/or having the status of a territorium nullius.

            Other international law scholars would belittle the Philippine actions and legal claim as this was only recently affirmed on June 11, 1978, when President Marcos issued Presidential Decree No. 1596 declaring most19 of the islands, cays, shaols and reefs as belonging to. the Philippines and forming an integral part of Philippine territory.

            Malaysia's claim came much later, in 1980, when  it issued a new official map which claimed continental shelf encroaching upon a portion of the Spratly group and part of the Palawan group.

            Another set of legal arguments the Philippines is using to bolster its claim in the Spratlys is the UN Convention on the Law of the Sea or UNCLOS, to which it is a signatory and a ratifying country, specifically citing the islands as part of its Exclusive Economic Zone or EEZ.
                Xavier Furtado, a visiting Assistant Professor in International Relations at De La Salle University noted in a 1999 paper two idiosyncratic problems when citing UNCLOS to bolster the Philippine claims. According to him:

                one such issue is the definition of an island. According to UNCLOS, an island can be used to generate an EEZ. The   drafters of the Convention, not wanting small uninhabitable rocks and occasionally submerged features to be used      as base points, defined an island as "a naturally-formed area of land, surrounded by water, which is above water at                 high tide".  The Convention is careful to differentiate between legitimate islands and "rocks which cannot            sustain                   human habitation or economic life on their own".  In spite of this clear definition, some claimants (the Peoples'     Republic of China particular) have used submerged features in the Spratly chain to claim territorial waters and                EEZ.

                For example, both the PRC and the Philippines claim Scarborough Reef which lies some 215 kilometres west of         the Philippines. While some features of the Reef are submerged, others manage to remain above sea level at all                times. However, as those features are unable to generate any sort of economic activity and are uninhabitable, they     cannot be used to claim an EEZ. In spite of this, the PRC and the Philippines continue to engage in an open          confrontation over who has legitimate control over Scarborough Reef.  More importantly, this has contributed               to further confusion over the definition of an island as outlined in UNCLOS. 

            Another problematic aspect of UNCLOS as it relates to the Philippines is the Convention's provisions on archipelagic states.  Prof. Furtado explains:

            Part IV of UNCLOS defines an archipelago as "a group of islands, including parts of islands, interconnecting              waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as             such". UNCLOS affords archipelagic states, such as the Philippines, specific privileges in terms of drawing        baselines for territorial/sovereignty purposes. Specifically, such states have the right to draw baselines around the            fringes of their outermost islands. In doing so, archipelagic states are allowed to claim the waters within these       boundaries as sovereign territory. Having established their periphery, archipelagic states can then claim their               territorial sea and other maritime spaces as would any other state. As a result, it is possible that substantial areas of           the ocean (which otherwise would be considered part of the high seas) would come under the sovereign jurisdiction     of a single state. In the case of the Spratly dispute, the Philippines has benefited the most from these provisions     and, at various times, has attempted (rightly or wrongly) to use them to justify its claim to the Kalayaan group. 

                 However, Prof. Furtado says that :

            it has proven very difficult to reconcile UNCLOS with existing provisions in the Philippine Constitution regarding       internal waters. Article 1 of the 1987 Constitution states that "the waters around, between, and connecting the          islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the              Philippines". To reinforce this assertion, the Philippine Government made the following statement: The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and          removes straits connecting these waters with the economic zone or the high sea from the rights of foreign vessels to            transit passage for international navigation.

                On 10  March 2009, President GMA signed into law, RA  9522 or “An Act to Amend Certain Provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes”.
                The said law was however questioned before the Supreme Court by Profs. Merlin Magallona, and Harry Roque,  Akbayan Party-list Rep Rissa Hontiveros and 38 other UP Law students, and among other grounds it asserted, the key point for our discussion from that petition is that RA 9522 has effectively weakened the Philippine claim over the Spratlys or Kalayaan Islands Group as it is called there in such petition, by classifying such islands as a  “regime of islands” which means “a group of islands whose ownership is being contested by the Philippines and other claimant countries.”  aside from putting these islands effectively outside of the outermost points of the baseline.

            The Supreme Court, however, has not yet resolved this case, up until now. Perhaps it may help if the Supreme Court can clarify some of the changes effected by the new law on the Philippine baselines, whether they are legally valid or not, as that will determine whether the Philippine claims to the Spratlys will be helped or not, especially when it involves the interplay of what is in the Philippine Constitution, which has a provision on the national territory based on the Treaty of Paris that gives the Philippines a bigger territory than what is provided for by RA 9522 and interpretation of how far UNCLOS provisions on archipelagic waters can be implemented within Philippine jurisdiction.
            Given the intricate link of this case to the Philippine claims over the Spratlys, it is best to await its outcome and then define the  subsequent courses of action later.

(The author, Atty. Elpidio V. Peria, is a partner at Cartojano Peria & Associates, a full service law firm in the Philippines)


Sunday, May 29, 2011

PLDT-Digitel Merger : Who Gets To Say It's For the Public Good?

Atty. Elpidio V. Peria

PLDT-Digitel Merger : Who Gets To Say It's For the Public Good?

            President Noynoy Aquino according to a news article yesterday by Philippine Daily Inquirer has recently ordered the Department of Science and Technology (DOST) and the National Telecommunications Commission (NTC) to investigate whether the merger between Philippine Long Distance Telephone (PLDT) and Digitel may have any undue disadvantage to other players in the telecom industry.

             Earlier this month, we also have Senator Joker Arroyo asking the Senate Committee on Public Services chaired by Sen. Bong Revilla to determine whether the same merger is in accordance with their respective legislative franchises, especially when there's a provision in the legislative franchise of Digitel, Republic Act 9180, which says that Digitel “cannot lease or transfer its assigned franchise to any other commercial or legal entity nor shall the controlling interest of the grantee be transferred without prior approval of the Congress of the Philippines."

            While he's at it, Sen. Joker Arroyo has a barb to the government agencies dealing with the merger, saying : “The NTC, SEC, PLDT, and Digitel are talking among themselves about the merger or sale of the controlling interest of Digitel to PLDT as if Congress does not exist,", as reported by Malaya in its online edition dated May 19, 2011.

             Meanwhile, in a May 26, 2011 posting at NEWSBYTES Philippines, it was reported that  Party-list Congressman Teddy Casino also filed his opposition to the merger before the NTC saying  that :  obviously, a 70 percent market share results in tremendous market power for PLDT-Digitel, giving rise to a situation where they can dominate the market, dictate prices and influence the entire industry in their favor. This is precisely what happened in the past, when PLDT monopolized the telecommunications industry”, 

            From the news item, it was not only the legislator  who opposed the merger, but also industry players GLOBE Telecom, consumer groups and third-party players like Eastern Telecoms which argued before the NTC that with the merger, “PLDT will control 70 percent of the entire telecom market, including mobile, landline, inter-carrier services, international gateway facilities, broadband, and value-added services, including  six out seven international cable systems that carry outbound voice and data traffic, and four out of five cable landing stations.”

             “With such dominance, PLDT will be able to discriminatorily price its services, subsidize underperforming units with income of dominant brands, and leverage its assets and command of the market in interconnection disputes so as to delay or hinder interconnection,” the Makati-based firm said.

            “The dominance will extend to a commanding control of Internet Exchanges and local Internet peering. PLDT will be in a position to restrict access to locally hosted content by disallowing traffic from competitors to pass through its network,” the company added.

            PLDT on the other hand, points out in its press releases, like in a statement sent to Sun.Star Cebu, that consumers will benefit from the merger, saying the PLDT Group combined with Digitel will give them higher quality and more affordable services to fixed line, wireless and broadband subscribers.

            PLDT also said that it intends to keep the operations of Sun Cellular “separate and intact.” It also wants to maintain and capitalize on Sun Cellular’s operations and brand equity to continue serving specific segments of the market, “especially those who prefer ‘unlimited’ type of services.”

            It is good these concerns and commitments to serve the public good are all coming out now, but ultimately,  under what rules will the PLDT be really held into account for these commitments including  the resolution of these fears and concerns?

            In addition to clarifying what these rules are, which of these entities identified earlier, from  President Noynoy Aquino, the NTC or the Congress which has two branches, the Senate and the House of Representatives, will have the  final say on whether this merger goes ahead or not?

            Or maybe it is up to Manuel V. Pangilinan himself, the PLDT CEO, who, perhaps in an act of delicadeza similar to his initiative in owning up to the plagiarized graduation speech he delivered some years back, might just drop this deal, as the opposition to it is now hurting the image of his company.

            But will these actions be enough to finally resolve the issue of monopolies or the lack of competition in the telecoms industry?

            As pointed out by former NEDA Chief Ciel Habito in his NO FREE LUNCH column, the Philippines does not have the comprehensive competition policy that the US has long had, to give it a strong legal basis to stop the PLDT-Digitel merger.

            Ultimately, without an anti-trust law and an anti-trust agency to resolve these concerns in an orderly manner, the oppositors to this deal will just have to go to the Supreme Court to resolve their concerns, and one principle that will guide them is already articulated by the Supreme Court in the case of Tatad v. The Secretary of the Department of Energy, G.R. 124360, November 5, 1997, which said that :

            the fundamental principle espoused by section 19, Article XII of the Constitution is competition     for it alone can release the creative forces of the market. But the competition that can unleash           these creative forces is competition that is fighting yet is fair. Ideally, this kind of competition            requires the presence of not one, not just a few but several players. A market controlled by   one        player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where           honest-to-goodness competition will prevail. Monopolistic or oligopolistic markets deserve our       careful scrutiny xxx...
            The constitutional provision cited in that case reads:

            Sec. 19. The State shall regulate or prohibit monopolies when the public interest so  requires. No combinations in restraint of trade or unfair competition shall be allowed.

            Fr. Joaquin Bernas said that “as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The State must still decide whether public interest demands that monopolies be regulated or prohibited. On the other hand, combinations in restraint of trade and unfair competition are prohibited by the Constitution.”

            At the end of the day, absent any anti-trust law in our current setting, the key question that should be asked is whether the public interest is served by this merger and all the entities we have mentioned, including President Pnoy will have their take on this issue. It is the Supreme Court then that will become the final arbiter of this issue, unless the parties will find ways to resolve this on their own and drop this deal and just spin themselves off into  independent entities that will compete on their own in the currently burgeoning telecoms market.

            Comments are welcome :;

Monday, May 23, 2011

Filipinos going bananas on Australia's import restrictions

Atty. Elpidio V. Peria
22 May 2011

Banana Split  to  Australia ?
What the Filipino Banana Exporter May Do to Make Sense
of Australia's Sanitary and Phytosanitary (SPS) Measures

            Malaya's online edition last May 20, 2011 headlined that Filipino banana growers are “going bananas” over Biosecurity Australia's requirement that the Philippine bananas exported to Australia  should be plants that have eight leaves, and these eight leaves should be there in the plant before the bananas are harvested and not only that,  the Filipino exporters are also required to use a non-perforated plastic to wrap the fruits.

            The application of this strict or strange rule, whichever way one looks at it,  not only threatens the export prospects of Philippine bananas to Australia  but highlights an obscure part of trade law dealing with sanitary and phytosanitary (SPS)  measures which is part of a set of agreements in the World Trade Organization (WTO), to which both the Philippines and Australia are members.

            According to a handbook from the World Trade Organization (WTO) website, The WTO Agreements Series, the Agreement on the Application of Sanitary and Phytosanitary Measures (“the SPS Agreement”) sets out the basic rules for food safety and animal and plant health requirements.

            The Series says that  while the SPS Agreement allows countries to set their own standards on  food safety and animal and plant health requirements, it also specifies that regulations must be based on scientific findings and should be applied only to the extent that they are necessary to protect human, animal or plant life or health; they should not unjustifiably discriminate between countries where similar conditions exist.

            The question that must be asked here is whether the eight-leaf rule  as well as the non-perforated plastic requirement  is a reasonable requirement in accord with WTO rules and one approach which Filipino banana exporters may do to clarify this is to recall art. 2.2 of the SPS Agreement which states:

            2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent    necessary to protect human, animal or plant life or health, is based on scientific            principles and is not       maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.

            This provision, among its other details, deals mainly with the question on whether there is enough scientific evidence to justify the SPS requirement.

            From the WTO analytical index on the SPS Agreement found in the WTO website, based on the WTO Dispute Settlement Panel on Japan-Apples case,  the kind of scientific evidence to be considered here is

            evidence gathered through scientific methods, excluding by the same token information not           acquired through a scientific method. We further note that scientific evidence may include evidence that a particular risk may occur … as well as evidence that a particular requirement        may reduce or eliminate that risk ….

            What this means is that there has to be a clear scientific basis for the eight-leaf rule, including that of the non-perforated plastic requirement, which is based on a study which uses the scientific method. There must also be scientific evidence that  a particular risk may occur if the banana is harvested not from an eight-leaf plant and it should also be shown that the eight-leaf requirement will reduce this risk.

            Who has the burden of proof in raising this matter relating to scientific evidence?
            In the same Japan-Apples case found in the WTO website analytical index, the Appellate Body said that : “although the complaining party bears the burden of proving its case, the responding party is responsible for proving the case it seeks to make in response”.

                What the Filipino exporter has to do is to raise a presumption that there were no relevant scientific studies or reports to prove that the measure at issue imposed by Australia was not supported by sufficient scientific evidence.
            Another aspect of the WTO SPS rules  that the  Filipino exporter can raise against Australia is whether the disputed rule is in accord with art. 2.3 of the SPS Agreement which reads :
            3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or            unjustifiably discriminate between Members where identical or similar conditions prevail,           including between their own territory and that of other Members. Sanitary and phytosanitary      measures shall not be applied in a manner which would constitute a disguised restriction on     international trade.        
            From the same WTO analytical index, this provision has the following elements based on the Panel on Australia — Salmon (Article 21.5 — Canada) :
            “[T]hree elements, cumulative in nature, are required for a violation of this provision:
            (1) the measure discriminates between the territories of Members other than the Member imposing the         measure, or between the territory of the Member imposing the measure and that of another Member;
            (2)the discrimination is arbitrary or unjustifiable; and
            (3)identical or similar conditions prevail in the territory of the Members compared

            There are a lot more things to be considered in relation to these provisions and also a thoroughgoing assessment of emerging legal principles from WTO jurisprudence, and the Filipino exporters' lawyers familiar with the nuances of world trade law would know all of these things.
            If only to clarify these matters so as to guide the actions of the rest of the Filipino banana exporting community, there must be initiated some action here, actions which are not limited to diplomatic initiatives but also to other means at our disposal to address the concerns of Australia on Filipino banana exports not limited to the implementation mechanisms established under the ASEAN-Australia New Zealand Free Trade Agreement (AANZFTA) of which this issue is a legitimate concern.
            The said bilateral trade agreement is based on the parties' commitments to the WTO's SPS Agreement, there should be no problem raising the same principles outlined above as both of the parties to this case are WTO members.
            Short of this, if this issue is not resolved, the exporters concerned should take this issue, with the help of the DTI and the DFA and our Permanent Mission to the WTO, before the WTO and initiate legal action before the dispute settlement  body of such organization, to clarify the application of this rule, once and for all.
            Now, if the exporters find this process tedious costly or too complicated beyond their understanding and experience, why don't they just repackage instead those fresh bananas and export processed bananas, like, among other incarnations of the fruit, banana splits, though that will most likely  require another discourse on what sorts of trade rules will apply to these kinds of products.

oOo .

 Comments are welcome :

Saturday, May 21, 2011

A Test For Congressman Pacquiao

16 May  2011
Atty. Elpidio V. Peria

 Double Prosperity Amidst Adversity in Sarangani Bay :
A Test Case  for Congressman Manny Pacquiao ?

            While the Panamanian vessel M/V Double Prosperity  that has run aground the coral reefs off the coast of Kiamba town, in Sarangani Province recently may seem like a harmless  incident with the Philippine Coast Guard already making assurances that the vessel will be towed soon, the incident may be an opportunity for Congressman Manny Pacquiao to demonstrate if he may have learned some sense about environmental protection and recovery from one of his early patrons, former DENR Secretary Lito Atienza.

            A Manila Bulletin news item from 14 May 2011  quoting the Protected Area Superintendent (PASu) of the area, yes, the area is protected by law, the National Integrated Protected Areas System (NIPAS) Act or Republic Act 7586, shows initial estimates of damage to the coral reef at Php 30 million.

            How the PASu came up with his estimates it would be surely enlightening for the people to know as it indicates how rich  the marine resources of the area is, though these same people  may be disheartened to realize that such amount is something that is not easily convertible to cash, especially with  so many poor people along the coast in that part of Sarangani Province, and lest it be missed, Sarangani Province is one of the “poorest of the poor” provinces in the country.

            So, how can Congressman Pacquiao, showcase his ability as a legislator in this situation?

            One thing that he can do, and this is in the realm of unsolicited advise as he has able and competent advisers in his Congressional staff, is for him  to file a House Resolution to conduct an inquiry in aid of legislation, to determine the causes of the grounding and the steps so that this incident will not happen again.

            While not really constituting a Board of Marine Inquiry, which is only constituted in cases of severe mishaps with many lives lost, this legislative inquiry should gather the facts which led to the grounding of the ship and to determine the culpability of those involved, be it the ship captain, the one in charge of the wheel at the time of the grounding, and even the ship owners or those who have chartered the boat that appeared to have wandered into the coral reefs in a manner of being off-course from its usual route. .

            While the data gathered from this legislative inquiry may be used by the managers of the Sarangani Bay Protected Seascape, the Protected Area Management Board, by which they can make a decision on any legal action they may wish to take against those who may have caused the damage, the inquiry may also bring to light the various steps which can now be taken to ensure that the Sarangani Bay will be adequately protected from these types of navigational mishaps.

            But another thing that the inquiry can do is identify the various ways in which the Bay can sustain its recovery so that the resource will  bring double the prosperity to the province by way of sustainable fisheries, but also ecotourism, and other forms of ecosystem services that ensure the well-being of the people in the area and its surrounding environment.

            Given that he may wish to conduct his public hearings on this item on-site, near Kiamba town itself, that in itself is a worthwhile endeavor as it brings to national attention the natural beauty of the place including the innate warmth of its people.  With Manny Pacquiao's media-drawing ability,  the projection of the province  will not only be up to the limits of Manila, but also in places where Paris Hilton or Bob Arum resides, in the USA, and beyond.

            Now, while national attention is riveted on how the hearings are being conducted by the Congressman and the Congressional Committee that may be tasked to do it, this  may also be an opportune time for this legislative inquiry to move the process of enacting the legislation to upgrade the current legal basis for protection of the Bay, Presidential Proclamation 756 issued by then President Fidel V. Ramos, so that the current Sarangani Bay Protected Seascape will become a full-blown protected area with a stronger legal mandate.

            Once it has a legislative enactment behind it, the Protected Area Management Board of the Bay will now have the necessary funds  and enforcement powers to ensure that incidents like these, among other things, will never happen again.

            The law on the Protected Seascape will also help to clarify and delineate the roles and responsibilities of the stakeholders in the area from the local government officials, the fisherfolk as well as indigenous and local communities and the civil society organizations and the business sector who also depend on the Bay for various activities from transportation, food and water supply, solid waste management, and others.

            Another thing that the boxer-legislator can do is to prod the Provincial Board of the Province to finally adopt an Environment Code for the Province, which has stagnated for quite some time in the august halls of the legislative chambers of the Province, due to various reasons but some say it is also due to the aversion of  various businesses in the province for any type of regulatory measure that will hamper their operations and affect their profit margins.

            South Cotabato may have some hiccups in its anti-open pit mining ban in its Environment Code, but implementation of the other noteworthy provisions of the said measure is proceeding at its usual pace and is leading the other provinces in environmental stewardship and protection. 

            Of course, all these suggestions are not only for the Congressman's attention, but to all well-meaning citizens of the Province, who wish to take action on this important issue, which, even though may not immediately bring food to the table, will however ensure that that food on the table is capable of being eaten without any adverse side-effects to the eater, among other beneficial effects of a clean and healthy environment.

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