The Republic v. Danding Cojuangco Case : What Chance of a Resurrection for this Loser of a Case for the Government ?

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By Elpidio V. Peria


Last April 12, 2011, the Supreme Court en banc rendered its ruling on one of the most crucial case against the ill-gotten wealth of the Marcoses and their associates dating back from the Martial Law era involving the shares in San Miguel Corporation (SMC) allegedly bought with coconut levy funds exacted from the poor marginal coconut farmers all over the country. This block of shares was purportedly owned by businessman Eduardo “Danding” Cojuangco and is one of many cases filed way back in 1987 by the Presidential Commission on Good Government, as part of its mandate to recover ill-gotten wealth.

In a nutshell, four justices of the Supreme Court ruled that the Government of the Philippines (dubbed as the Republic of the Philippines or Republic, for short, in this case) failed to submit further evidence to prove that the loans from United Coconut Planters Bank (UCPB and the Coconut Industry Investment Fund (CIIF) secured by Eduardo “Danding” Cojuangco to purchase the shares of SMC, were public in character. A dissenting opinion by Justice Conchita Carpio-Morales held the view that it was Dganding who has failed in his burden of showing that such funds were not taken from public funds, while another dissenting opinion, by Justice Brion, takes the view of the majority handing a loss to the Government but urging instead a prosecution of the government lawyers handling the case of Danding, for their mishandling of the case, citing several instances when they could have presented stronger evidence and have taken other steps to bolster their case, but didn't.

To illustrate how significant this SMC-Danding Cojuangco case is, Justice Brion noted that the SMC is a leading food, beverage and packaging company in the country, now with diversified interests and substantial investments in non-related industries like power and other utilities, banking, mining, energy, tollways, infrastructure, and airports with total assets in 2009 amounting to P438.5 billion and income of P57.8 billion – double the amount appropriated in 2010 for health and social welfare, and one-third of that for education. Justice Brion also observed that the SMC generates nearly 4% of the gross national product and pays 6% of the total taxes collected.

According to Justice Brion, the Republic’s Third Amended Complaint, filed in 1995, claimed ownership over the 16,276,545 of SMC shares that were allegedly acquired by Cojuangco in 1983 with the use of coconut levy funds. At the time of acquisition, this Cojuangco block of SMC shares constituted 20% of the total shareholdings of SMC and was purchased for US$49 million. Because of the issuance of new shares, the Cojuangco block’s shareholding was reduced to 17% in 2007 and 15% in 2010. As of December 2010, the remaining 15% shareholding translates to 493,375,183 common shares, and is worth about P84.56 billion or US$1.86 billion. At the current exchange rate, the original acquisition cost of the shares is now equivalent to P2.23 billion, which means that over the past 27 years, the shares have ballooned 38 times its original value.

Farmers' groups all over the land, especially coconut farmers, decried the ruling as it showed how farmers are again being screwed by Government, first during the Marcos era when the coconut levy was exacted from them through the various Marcos Presidential Decrees and now, with this ruling which effectively forfeits their rights to claim a share of this potential windfall, if the disputed SMC shares are sold in the stock market, which, from the point of view of the farmers, belonged to them in the first place.

The core of the case involves involves a simple rule in evidence and is centered on the issue of who now has the burden or the task of showing that one's allegations are correct and are further beyond dispute by the other side and is now supposed to be binding on the court and all the parties?

The majority ruling states that the Republic utterly failed to present evidence to show that the sources of funds used by Eduardo “Danding” Cojuangco are public in character saying that the earlier landmark 2007 ruling by the Supreme Court that such coconut levy funds are “prima facie” public in character does not excuse the government lawyers from presenting further proof that such coconut levy funds were public in character and thus also, ill-gotten by Eduardo “Danding” Cojuangco.

Dissenting Justice Conchita Carpio-Morales holds that the Republic does not have to do anything to prove a “negative averment” (that the coco levy funds are not private) since it behooves on the lawyers of Eduardo “Danding Cojuangco” to show that this is instead private and failing to do this, the presumption that the funds are public had solidified the Republic's claim.

Dissenting Justice Brion holds that the Republic's lawyers already have in their possession, among others, the papers showing the loans made by Eduardo “Danding Cojuangco came from the alleged sources UCPB and CIIF, he was mystified why it was not presented when they had an ample opportunity to do so during the trial of the case at the Sandiganbayan.

If you also note the gaps in time in the prosecution of this case, from 1987 and with constant amendments up until 1999, one will really wonder how zealous the government lawyers were in really wanting to finish this case sooner. Unless they were bribed by the other side, which no sector is making openly, this will remain speculation, unless the current administration takes the suggestion of Justice Brion seriously and will take steps to look for evidence if indeed the government lawyers bungled this case.

How will this case be finally resolved? Senator Joker Arroyo, a key stalwart of the first Aquino administration, is aghast at the public's lack of outrage in this dismissal of the government case, save of course the farmers' groups who are up in arms and are taking steps to push the government to file a motion for reconsideration of the Supreme Court ruling. He is also wondering why there is no statement of anger from within the Office of the President, which to him is just a bunch of amateurs like in a high school student government.

The PCGG said they will take their time and go through the decision and perhaps be guided by the Dissenting Opinion of Justice Carpio-Morales and file the expected motion for reconsideration within the given time.

Come to think of it, the fate of this case does not lie squarely in the hands of the Supreme Court Justices, they have already ruled on the merits. The PCGG in turn, has to make a very good argument in showing that the alleged ineptness of government lawyers do not actually harm the case they are supposed to prosecute. If this sounds like going through the eye of a needle, it surely is and if this will not happen, perhaps the next best thing for the Government is to take up Justice Brion's suggestion and take steps to remedy the alleged bungling of this case by the Republic's own lawyers.

Or perhaps in a gesture of magnanimity when this case has come to finality and the decision at present becomes final or becomes unmodified after the motion for reconsideration, Eduardo “Danding” Cojuangco might take it upon himself to set up a Farmers' Relief Fund, taken from the proceeds of part of the disputed SMC shares, to finally write finis to this case and perhaps shame the Marcoses into doing also the right thing and settling the scores of other cases which to this day, are still pending. Perhaps if these people will start to do these things, then the public may took kindly to finally letting Apo Ferdinand Marcos be buried in the Libingan ng Mga Bayani.

This is wishful thinking, but perhaps, because today is Easter Sunday, this optimism, however misplaced, can be indulged in, even just for a day, but really, things can happen, and what we need to do is await the further developments in this case.
oOo

Comments are welcome! Email me at : pingperia16@yahoo.com
(The author is a Partner at Cartojano Peria & Associates, a full service law firm based in the Philippines)

Proposed divorce law in the Philippines

philippine law blogPhilippine divorce lawsImage 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?

Right of minority representation in local Philippine legislative bodies

International Parliamentary UnionRight of minority representation in legislative bodiesImage via Wikipedia

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. 
 

The Case of President Noynoy Aquino's First Memorandum Circular

Noynoy Aquino's First Memorandum CircularTriple ExposureImage via Wikipedia

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.

 

Expanded Senior Citizens Act of 2010

Expanded Senior Citizens Act of 2010Image via Wikipedia

Even when Republic Act No. 9944 otherwise known as the Expanded Senior Citizens Act of 2010 was signed into law by President Gloria Macapagal Arroyo last 15 February 2010, only now is the Implementing Rules and Regulations (IRR) have just been formulated by government agencies especially the Department of Social Work and Development.
Among the benefits and privileges include the grant of 20 percent discount and exemption from value-added tax (VAT) on the purchase of goods and services.  Another benefit is the five (5%) percent discount on electric and water consumption provided that the individual meters for the utilities are registered in the name of the senior citizen and that monthly consumption should not exceed 100 kilowatt hours of electricity and 30 cubic meters of water.
The poor senior citizens will also enjoy free vaccination against the influenza virus and pneumococcal disease. They are also entitled to P2,000 death benefit assistance and monthly social pension of P500 for indigent older persons.
The medical or health-related privileges, on the other hand, whether discounted or for free and the discounts on purchase of goods and services from leisure and recreation centers, should be subjected to the supplemental guidelines to be issued by the Department of Health (DoH) and the Department of the Interior and Local Government, respectively, within 30 days from the effectivity of the IRR.
The discounts on electric and water utilities should also be covered by supplemental guidelines issued by the Energy Regulatory Commission (ERC), the Metropolitan Waterworks and Sewerage System and the Local Water Utilities Administration (LWUA), respectively, six months after the effectivity of the IRR.
On the hand, the monthly social pension of P500 for indigent senior citizens shall be subject to DSWD guidelines which shall include the development of criteria for identification and selection of beneficiaries, the mechanisms for establishing a database, the system for delivery or release of the benefits, as well as monitoring and evaluation to facilitate the implementation of this additional government assistance.
The P2,000 death assistance is intended for indigent senior citizens who should be identified based on DSWD guidelines.
Around 6-million Filipino senior citizens are expected to benefit from the new law.

Why lawyers were 'unhappy' about the May 10 elections

Philippine lawyers during elections

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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.

The Copenhagen Accord and the Philippines

The Copenhagen Accord and the Philippines :
Collecting on a Promissory Note on the Climate Debt of Developed Countries
By Atty. Elpidio Peria
The Philippines, in the aftermath of its endorsement of the Copenhagen Accord which was merely noted, not adopted, in the contentious closing plenary of the 15th Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen, Denmark last 19 December 2009 now faces the challenge of what it must do next, either to further qualify such endorsement in a manner that protects its national interest and ensures that the existing multilateral processes on climate change are strengthened or to withdraw such endorsement if it can foresee that it results in the sidelining of the UNFCCC process or the Kyoto Protocol.
One way the Philippines may approach this task of qualifying its endorsement of the Accord is by looking at it as if it were a promissory note which recognizes in no uncertain terms the climate debt of developed countries and these countries should pay up at a certain time in the future. The concept of climate debt was proposed by Bolivia supported by several developing countries in recognition of the historical responsibility of developed countries – the US, the European Union including Japan – for generating most, if not all, of the greenhouse gas emissions in our atmosphere that is causing the warming of the earth leading to climate change, but there appears to be no operational mechanism on which to carry out the concept, until this Accord.
At the outset, there are a lot of things going against the implementation of the Accord given its non-legally binding nature. As there are very few countries that have signed on to it, the game is on to get as many countries to endorse it though most likely there will be very few developing countries that will sign up and have enough political clout to exact compliance with the obligations or commitments in the Accord. With this possible scenario, it is important that the Philippines link the enforcement of the commitments of developed country endorsers of this Accord to what is currently going on in the UNFCCC process, including that of the Kyoto Protocol, which are legally-binding instruments. Putting the implementation of the Accord within the framework and process of the UNFCCC and Kyoto Protocol is the Philippines’ assurance that it will always have the moral high-ground to insist that the creditors, in this case, the developed countries, should always make good on their obligations first, especially on emissions targets, financing commitments and technology transfer, before the developing countries which signed on to the Accord can be made to comply with its obligations under the Accord.
Those who are saying that the UNFCCC or the Kyoto Protocol process is dead and that the group of countries under the Accord represents the formation of country-groupings that herald a new global order are trying to pull a fast one on the people and the decision-makers - how can a voluntary agreement between a smaller group of like-minded countries make real the long-unfulfilled commitments of developed countries on emissions cuts, finance and technology transfer and sustain them for quite some time in order to make a difference ? Shouldn’t our efforts focus more on finding remedies to what ails the multilateral process of climate change negotiations and narrowing the issues on the table such that agreements can be secured within given realistic timeframes?
Like the acknowledgment of debt in a promissory note, the Philippines should spell out in its interpretative statement to the Accord that the climate debt is the historical responsibility of the Annex 1 countries to the Kyoto Protocol. Furthermore, the Philippines should state that the “pledge and review” process envisioned in paragraph 4 of the Accord be subjected to review by the Subsidiary Body on Implementation (SBI) of the UNFCCC. If countries signing on to the Accord will have to reinvent the wheel and come up with their own procedures, just wrangling on what the rules will be on compliance will take up their time, and this will render the Accord a useless platform to exact real action on the problem of climate change. Paying up a debt should not be up to the whim of the debtor, but is done in such a way there is a clear process and schedule of payment that may be reviewed anytime by another body, like a court, and in this case, the SBI can act like such a court that will find ways to ensure that the debtor will pay up on the debt.
When we come to the issue of the amount that must be paid in a promissory note, there should be a clear indication of the amount of the money to be paid, in clear periods of time. The Accord fails spectacularly in this aspect – it does not specify where the money will be coming from, its paragraph 8 only speaks of “international institutions” including “wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance”, and the time frame for paying up is also not specific, which in the language of promissory note, should be a day certain, with a specification of when the debt or its installments will be paid. The Philippines can propose a specific date on which all those commitments for financing and technology will fall due.
The Accord may have added further obligations for developing countries like the conduct of national inventories of greenhouse gas emissions every two years and the acquiescence to international consultations and analysis of its mitigation actions which does not appear anywhere in the UNFCCC. These add-on obligations however should not impair the duty of the creditors, in this case the developed countries, to pay up their debt, or to make good their mitigation commitments under the Accord
In sum, if we liken the Accord to a promissory note, we should ensure that the promissory note contain provisions that will ensure that the debtor will pay up on the climate debt in a manner that is clear and enforceable, without further efforts on our part. If the Philippines cannot get its way on these qualifications and interpretations of the Accord, then it should be ready to disassociate itself with the Accord and return to the existing process under the UNFCCC where there are already near-complete proposals for long-term cooperative action and the renewal of commitments under the Kyotol Protocol that only need to be further elaborated on until the next meeting of the Conference of the Parties to the UNFCCC in Mexico in December 2010.
The proponents of the Accord suggest that our interest in the Accord lies in the Philippines getting money for its climate change adaptation efforts which is a national priority given that the Climate Change Act has been approved. However, the Climate Change Commission under the said Act has only P50 million for its initial appropriations and the rest is up to the annual appropriations of all relevant government agencies and local government units. The Accord will also affect the identification of the national priorities which are part of the components of the National Framework Strategy and Program on Climate Change. If the money from the Accord is not clear, and worse, if they contain conditions and are even in the form of loans, then it will not really contribute to an honest-to-goodness implementation of the Act.
Finally, given that countries signing on to the Accord have to indicate what their economy-wide emissions targets will be for 2020 (for a developed country) or their nationally-appropriate mitigation actions (if a developing country, like the Philippines), this will have a significant impact on the way our economy is organized and run. In this sense, identifying these targets would mean wide-ranging discussions with all affected sectors, including the identification of the peaking year for national emissions and the adoption of a low-emission development strategy. It is here where science-based discussions of policy will get real and politicians will provide figures not based on guesses and predilections but on hard data and clear estimates of possible impacts on all sectors and the consideration of the best, next-best and the worst scenarios for the country.
Are we even ready to provide that figure by January 31, 2010 or should our initial response to this obligation consist of requesting an extension to such a deadline?
oOo

Is there legal basis for declaration of martial law in Maguindanao?

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Martial Law In Maguindanao

Early today, 05 December 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 placing the province of Maguindanao under martial law.

Article VII, Section 18 of the 1987 Constitution provides that the President as Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Obviously, there is no invasion in Maguindanao to warrant the declaration of martial law which leaves only rebellion as the basis for its declaration.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968, states that rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Prior to the declaration of martial law, a sizable arms cache was recovered near the residence of the Ampatuan clan enough to arm more than a thousand men. Yesterday, the Ampatuans were able to secure a favorable ruling from the Court of Appeals in Cagayan De Oro City granting their application for a writ of amparo. Government forces also took into custody the patriarch of the Ampatuan clan, Andal Sr., and the ARMM Governor Zaldy Ampatuan. Subsequently, the government received intelligence reports that allegedly armed men started to group in various part of Maguindanao.

The last alleged event of armed men grouping apparently ignited the declaration of martial. Whether that alleged event constitutes "rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government" is a question of fact that goes into the basis for the declaration of martial law. Simply put, was there a state of rebellion as defined under the law to justify martial rule?
The declaration of martial law appears to be, first and foremost, a clever political decision, even with very minimal legal basis. When the President visited General Santos City last Thursday to condole with the victims of the massacre, she was faced with grieving families who communicated to the President their sentiments and disappointments on how the government has treated the suspects with kid's gloves, considering the scale and barbarism of the incident.

By declaring martial law, the President, who is least concerned now with popularity, has deflected serious criticisms on her anemic responses to the massacre, as most critical of her handling of the incident are now focused on whether there is legal basis to her declaration or not. In effect, the declaration is a classic political maneuver to silence mounting criticisms of the massacre, and shift public attention to the legal basis of the declaration of martial law, as the latter appears to have profound impact on a national scale more than the massacre.

The shift in attention and media focus will be clearer in the coming days as the President will submit a report in Congress within forty-eight (48) hours from the declaration of martial law. The debates will be in Congress, voting jointly, by a vote of at least a majority of all its members, to revoke such declaration or even extend it for such period if the invasion or rebellion shall persist and public safety requires it.

We just hope that the declaration of martial law will not muffle the cries for justice of those massacred, or that justice be sidelined in the arena of political convenience.

The Maguindanao massacre and Philippine law on terror

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Maguindanao Massacre

With the unprecedented scale of barbaric violence in the recent Maguindanao massacre, the question arises if the situation calls for the applicability of Republic Act No. 9372 otherwise known as the Human Security Act of 2007 which imposes stiffer penalties than the common crime of murder.


Under Section 2 of the above-named law, it is declared a policy of the State to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.

Terrorism is defined under Section 3 thereof as any act of any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

One of the elements of the crime of terrorism is the creation of condition of widespread and extraordinary fear and panic among the populace which clearly the Maguindanao massacre is squarely situated. Unfortunately, the qualifying clause thereof is "in order to coerce the government to give in to an unlawful demand" is not applicable, as there was no coercion at all on the government on the part of the perpetrators. In fact, the suspects appeared to be local government leaders, policemen and their armed civilian militias.

The latest moves from government prosecutors appear to be not to prosecute the perpetrators under the anti-terror law, as public pronouncements point to a 36-hour deadline in the filing of case in court in contrast to the 72-hour deadline under Section 18 of the anti-terror law.

Assuming that prosecutors will invoke the anti-terror law, the same will be a costly legal mistake as the move will only help the perpetrators resulting in the latter's possible, if not, inevitable acquittal.

In addition, with the clamor of speedy resolution of the dastardly crime, the invocation of the anti-terror law may be further delayed with the advent of the May 2010 elections as the accused may request for suspension of the proceedings or trial as the provisions of the said anti-terror law are deemed suspended one month before and two (2) month after the holding of any election.

Anti-Torture Law Is Passed

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Philippine Anti-Torture Law

Unknown to many and caught in many political headlines was the passage into law two weeks ago of Republic Act 9745, or the Anti-Torture Act of 2009, which criminalizes all forms of torture and prohibiting state authorities from using secret detention center.

The Philippines, which has been fighting communist and Muslim insurgencies, has come under severe criticism from international rights groups, the U.S. State Department, and a U.N. investigator on extrajudicial killings in the deaths of hundreds of left-wing activists.

The announcement came as U.S. Secretary of State Hillary Rodham Clinton was visiting the country.
The law defines torture as acts consisting of systematic beating, food deprivation, electric shock, cigarette burning, rape, among others. Mental and psychological torture, meanwhile, refers to acts such as blindfolding, prolonged interrogation, maltreating a member or members of a person's family, and denial of sleep, among others.

It provides penalties of up to life imprisonment, depending on the gravity of the offense, and renders evidence obtained through torture as inadmissible in any proceeding.
The law also requires the military and police to submit a monthly report listing all detention centers to the independent Commission on Human Rights.

The new statute also put emphasis on the command responsibility of superiors over the acts committed by their subordinates.

Numerous cause-oriented groups and organizations have documented hundreds of cases where members of left-leaning political groups and the clergy as well as outspoken activists and journalists were either kidnapped or killed since 2001. A number of cases of extrajudicial killings, torture and harassment have been blamed on the police and the military, but families of victims have complained that no one has been prosecuted yet.
The bill had languished in the legislative mill although the Philippines was a signatory to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The measure actually took 22 years in Congress before it was passed.

Under the law, the Commission on Human Rights will see through its implementation and, together with the Department of Justice and in consultation with human rights groups, it will draft the implementing rules and regulations.

Under the law, wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment.

Pacquiao conquers Cotto!

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Pacquiao rules! as he captures seven world boxing titles

Pacquiao captured the welterweight crown held by Miguel Cotto after the referee stop the fight before the end of the 12th round. Pacquiao, a native of General Santos City, Philippines, became the first man in boxing history to capture seven world boxing titles in different divisions. The fight was controlled by Pacquiao from the start as he completely mastered the hapless Cotto.

Crisis Averted On Whether to Include a Definition of Biopiracy

Definition of BiopiracyImage by John & Mel Kots via Flickr

Definition of Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
13 November 2009
Day 4 Update
Crisis Averted On Whether to Include a Definition of Biopiracy
By Elpidio Peria

MONTREAL, Canada – 12 November 2009 – Negotiations for the International Regime on ABS nearly got unraveled today, when the EU insisted that its proposed definitions on misappropriation/misuse be included in the negotiations on the text of compliance, but eventually a compromise was arrived at by inserting a footnote in the text that this can be done later after the Montreal meeting of the ABS Working Group.
It was difficult for the LMMC to agree to the compromise but the agreement had the effect of unblocking one of the impediments to the negotiations.

During the plenary this morning another key negotiation impediment clarified involved the so-called “parking lot” and subheadings in the text currently before the delegates.
This so-called “parking lot” was the term used by the various contact groups this week to refer to the destination of various texts on compliance, traditional knowledge, access and benefit-sharing which they cannot agree to place within the existing subheadings and components in the current text of the International Regime on ABS.

The Co-Chairs decided there are three categories of these “parking lots” at the moment, one category refers to operative text on a main component but should belong to another component.
An example of this is the the African Group proposal made on the component on traditional knowledge involving disclosure requirements in applications for intellectual property rights, product registration and plant variety registration but should properly belong to the component on compliance.
Another type of “parking lot” involved text that does not belong in the contact group which took it up, but does not also belong either to any other component but one Party wants it taken up and for this type of “parking lot”, a category was created called “implementing and other operative text for further discussions and negotiations”.

The Co-Chairs clarified that this category can be dealt with later in the subsequent negotiations of the International Regime, but the text in this category will not be negotiated at this stage.
The Mexican proposal made in the compliance contact group creating an international compliance mechanism patterned after a similar mechanism under the Cartagena Protocol is an example of text belonging to this “parking lot”.

Finally, the Co-Chairs referred to “bridging elements” containing cross-over issues, which require further thought but difficult to approach in a compartmentalized fashion.
The EU proposal made in the compliance contact group on the definition of misappropriation/misuse can belong to this category of “parking lot” but the EU is insisting that its proposal rightfully belongs in the compliance component of the International Regime.

The fluidity of the negotiations and the challenges of dealing with the various concepts and ideas on how to deal with the key issues of the International Regime is challenging negotiators here in Montreal, but these things will eventually sort itself out in the last day of this meeting.
This is true on the issue of subheadings, which has somehow become superfluous in the negotiations on the text on capacity-building, but is still useful for giving precision to the discussions on compliance and on access and benefit-sharing, while giving some headaches to the negotiations in the text on traditional knowledge for being repetitive.

This appears to be the reason for the EU to keep on insisting that it be retained, to prevent the emergence of a clear form and content of the International Regime.

These subheadings were the “bricks and bullets” previously arrived at during the 6th meeting of the ABS Working Group in Geneva in January 2008, which proved crucial in clarifying the consensus of the Parties then on what may constitute the various components of the International Regime.
In the 7th ABS Working Group meeting in Paris, France in April 2009, these “bricks and bullets” were deemed also to be an impediment to the negotiations as it gave unequal status to the proposed text to those that have consensus among the Parties and those which did not.

By the end of this negotiations, there could be a decision whether it is ripe to have another breakthrough on this issue of sub-headings.

In the contact group on capacity building, the Philippines was given a chance to re-insert its proposal for a capacity-building measure involving training in tracking the use of biological resources and genetic resources across sectors including understanding cases of biopiracy and the 'digitalization of biopiracy'.

These proposals came out from the conference organized recently by the ASEAN Center for Biodiversity in Singapore in September 2009.

There was a lot of consternation among delegates on what “digitalization” meant but this was understood by the proponent to refer to the burgeoning field of bioinformatics, where fragments of genes and compounds are being placed in various databases that are used and exchanged among research centers worldwide and developed into something more useful, like diagnostic kits for certain diseases or a new medicine to deal with emerging diseases, or simply to advance the frontiers of biological/genetics research which have evolved into the various “omics” field- genomics, proteomics, metagenomics, etc.

Another proposal raised by Philippines for capacity-building involved the use by academia and research institutions of alternatives to intellectual property rights systems such as open-source licenses and a study of their impacts on realizing benefit-sharing.

As is usual in these meetings, these new concepts are bracketed by other delegates which gives it time to be further reflected and studied upon until the next meeting of the ABS Working Group.
In the contact group on traditional knowledge, the Philippines tried to push the concept of 'traditional knowledge associated with genetic resources' as one of the concepts that will be taken up when definitions are dealt with, but this caused a lot of dismay among developed country delegates that it was eventually withdrawn.

The delimitation of the concept of traditional knowledge to this category, that it is only “associated with traditional knowledge' is seen as an attempt to chop the concept of traditional knowledge and genetic resources into several pieces when it is an accepted notion in bioprospecting, that where plants and other biological material are explored for their medicinal and other industrial uses, they cannot be identified unless the traditional knowledge of indigenous peoples have been tapped to determine where they may be located.
It is also a fact that there are also chemical compounds, like the ones taken from marine species, that are identified without the use of traditional knowledge.

This is also important to clarify the eventual scope of the International Regime, considering that the General Assembly of the World Intellectual Property Organization or WIPO, has given a renewed mandate to the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore or IGC, to negotiate a legal instrument to deal with the misappropriation and misuse of traditional knowledge.

These and other matters will get sorted out in the subsequent meetings of the ABS Working Group which is now said to have been transferred to Rome, Italy, and not anymore in Colombia.
oOo

Countries Start Working on Rules Against Biopiracy

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Rules Against Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
12 November 2009
Day 3 Update

Countries Start Working on Rules Against Biopiracy
By Atty. Elpidio Peria

MONTREAL, Canada – 11 November 2009 – Parties to the Convention on Biological Diversity (CBD) took almost two hours agreeing on a procedure on how they will proceed in their negotiations on the various elements of the International Regime on Access and Benefit-Sharing, an international instrument that will stop biopiracy and ensure that countries and indigenous peoples get a share from the use of their biological resources and traditional knowledge.

“This is the longest five minutes in the history of the CBD,” said Tim Hodges of Canada, one of the Co-Chairpersons of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing (ABS), the subsidiary body of the CBD charged with negotiating an instrument which may either become a Protocol to the CBD, or a set of voluntary guidelines.

There was disagreement between the LMMC and the EU on how they will carry the new submissions made in this meeting on compliance into the so-called Paris text, a document developed from submissions made during the 7th Meeting of the ABS Working Group in Paris last April 2009.

Tension was palpable in the room as Brazil and the EU was called by the Co-Chairs to agree on how work shall proceed on the text on compliance.

Later, Brazil called on Malaysia and delegates in the room asked the representative of the African Group from Namibia and a few minutes, several Parties belonging to the protagonists, Canada, Malawi, Ethiopia, Colombia, Canada and Philippines joined the huddle.
Eventually, it was agreed that all new proposals made during this meeting will be integrated into the Paris text, attempting to preserve its structure and headings, but streamlining the document that will be transmitted to the final and last meeting of the ABS Working Group next year in March 2009.

After the plenary adjourned, the contact group on capacity-building met briefly right until over lunch time where the text was assessed on whether all interventions made by the Parties during the meeting of the contact group were already in the text.

The contact group on capacity-building considered a separate reworking of the African Group submission outlining the capacity requirements for governments, academia and research institutions and the private sector.
The delegate from Philippines also asked to be allowed to re-insert the submission it made in plenary and initially he was ignored, but later he was told to do it when the contact group reconvenes later in the week.
The Philippines submission was taken from the Singapore Conference on Biodiversity last September organized by the ASEAN Center for Biodiversity which proposed suggestions on what kinds of capacity-building may be undertaken, ranging from ICT to deal with biopiracy and the digitalization of biodiversity, among others.

In the afternoon, the contact groups on traditional knowledge and compliance met.  The contact group on traditional knowledge proceeded by classifying the collected submissions into whether they are of preambular nature or a statement of general principle, or whether they can be considered operational, which may constitute specific obligations for Parties.

A lengthy discussion happened on the matter of protection of traditional knowledge which will have to be subjected to the customary laws of indigenous and local communities at all times, and that this protection of traditional knowledge shall ensure that the traditional knowledge protected will remain to be vital and useful in the day-to-day lives and cultural context of the indigenous and local communities.

This proposal was objected to by the EU who said they did not understand what it meant thus it proposed it be sent to the section on community-level procedures or in other parts of the International Regime but not on the section on traditional knowledge.

The Philippines explained that its proposal is one means of ensuring there is fair and equitable benefit-sharing, especially when the subject matter of the ABS agreement, be it biological resources or traditional knowledge, is protected by way of intellectual property rights, such as patents or trademarks.

The Co-Chairs agreed it was an operational provision and moved on to consider other sections on traditional knowledge, such as the measures to address the use of traditional knowledge in the context of benefit-sharing arrangements, among others.

The contact group on compliance had a tougher discussion determining what to do with the new proposals tabled for this meeting.

After lengthy back and forth between delegates and the Co-Chairs, it was agreed that delegations who wanted to include their proposals in the Paris text had to explain what are the new elements in their intervention that added value on the existing text.

It was also necessary that Parties in the contact group would have to agree that it be included in the text, otherwise, it may either be deleted or ignored, but not yet subjected to rewording or bracketing, as that will happen in the subsequent stages of the negotiations.

Once these submissions are compiled, then they will be subjected to further negotiations in subsequent meetings of the contact group.

There was resistance from the developed countries such as Japan and the EU on the insertion of new text from the LMMC on the measure to ensure access to justice aimed at enforcing ABS agreements, but eventually it was accepted after a commitment from the LMMC that it will be reworded later.

The EU text on the international understanding of misappropriation and misuse was also extensively discussed as it was scattered throughout the text on compliance, but EU explained the rationale for it and it was also eventually accepted.

There were also various proposals from observers, such as the ESRC Centre for Economic and Social Aspects of Genomics, relating to open-source licenses on ABS, which was supported by Africa.
The rule in the CBD is that any proposal from any observer will be taken on-board once it is supported by a Contracting Party to the CBD.

The proposals from the International Indigenous Forum on Biodiversity (IIFB) were alternatively supported by countries or regional groups.

The IIFB proposals on the insertion of new items of information on the internationally recognized certificate and the duty of states to respect customary laws were accepted after it was initially resisted by the Co-Chairs and Canada.

A lengthy discussion ensued on the Mexican proposal on an international compliance mechanism, which is of a voluntary nature but gives incentives for users of genetic resources and traditional knowledge by way of giving them simplified procedures to collect material from a country providing such genetic resources.
The Mexican proposal, lifted from the Cartagena Protocol on Biosafety, does not belong to any established categories in the text on compliance, so it was sent to the Plenary for further deliberations.

The last proposal taken up, from the African Group, on the setting up disclosure requirements in applications relating to intellectual property rights, product registration and plant variety protection, was also transmitted to the Plenary for further discussion.
oOo