Office of the Solicitor General: The Tribune of the People

                  The Office of the Solicitor General (OSG), as mandated by law, is tasked to “represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer”[1] and is, naturally, widely known as such. However, it may not be as well known that the OSG is also the Tribune of the People and, at times, may take a position contrary to that of the Government in fulfilling its duty in advancing and protecting the rights of the People.

                  Unfortunately, there is few jurisprudence that would mention the OSG as such. Majority of such cases would focus merely on procedural matters, i.e., when the OSG is permitted to sign the verification and certificate of non-forum shopping in behalf of its client agency. More substantial matters would include the case of Freedom from Debt Coalition vs. Energy Regulatory Commission[2] (wherein the OSG agreed that the EPIRA IRR should be void for non-publication). In a more recent case (although the Court did not mention the OSG as the Tribune of the People), the Court was “surprised” that the OSG supported the petitioners, Ang Ladlad, in their accreditation as party-list despite being disqualified by the COMELEC.[3]

                  The Supreme Court, in Gonzales v. Chavez[4], has recognized this discretion of the Solicitor General to “dismiss, abandon, discontinue or compromise suit”. However, it held that it was not absolute and must be for valid and legal reasons exercised within parameters set by law and, more importantly, “with the best interest of the State as an ultimate goal.”  

                  Being the People’s Tribune is truly of noble cause, but it is apparent that there are not too many cases where the OSG would go against the Government. After all, the Solicitor General (SG) is also an executive official of the Government. These two obligatory roles are most difficult to fulfill when one is against the other. Arguably, the scales are tilted more often in favor of the Government because of the nature of the SG’s appointment. The SG is in ranks with the cabinet members and is appointed and removed at the pleasure of the President. Moreover, since the President is tasked with the appointment of Supreme Court (SC) Justices, it is quite possible that those vying for a seat in the SC would have to get on the good side of the appointing authority.

                  This possible politicking has been recognized in explanatory notes of bills filed before the Senate and House of Representatives, to wit: The President’s insulation from political pressure is crucial and necessary for the proper performance of his duty to uphold the interest of the State and to faithfully carry out his role as Tribune of the People.[5] Thus, both Bills sought the seven-year term of the SG without reappointment as well as its fiscal autonomy (vis-à-vis its current attachment to the Department of Justice for budgetary purposes).  

                  Both bills envision concrete ways to depoliticize the OSG. However, even Judge Learned Hand had once said that there is no concrete and royal road to the tolerable accommodation of conflicting interest of society. [6]  When conflict of interest kicks in, we cannot entirely depend on laws and regulations to help the Solicitor General make a choice because, at the end of the day, it is his/her discretion on which side to take. Hopefully, it would be the choice to be the Tribune of the People. 

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[1] Executive Order No. 292 (Administrative Code of 1987), Book IV, Title III, Chapter 12, Section 35

[2] G.R. No. 161113, June 15, 2004

[3] G.R. No. 190582, April 8, 2010

[4] G.R. No. 97351, February 4, 1992

[5] Senate Bill No. 3564 Explanatory Note (Introduced by Senate President Juan Ponce Enrile), January 10, 2011

[6] The Great Judge by Philip Hamburger (1946)

Fighting Online Child Pornography: R.A. 9775, " Anti-Child Pornography Act of 2009" consolidated with R.A. 10175, "Cybercrime Prevention Act of 2012"

"Child pornography" according to the definition stated in the Republic Act 9775 or the "Anti-Child Pornography Act of 2009," refers to any representation whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic, or any other means, of child engaged or involved in real or simulated explicit sexual activities.[1]

According to  Virtual Global Taskforce (VGT), a group of international agencies against child pornography, the Philippines is among the top ten countries with rampant cyber pornographic activities involving mostly boys and girls ages 10-14.[2]

To combat the modern problem in child exploitation through computers, Republic Act 9775 or the “Anti-Child Pornography Act of 2009” was enacted, defining the crime of child pornography and prescribing penalties and to further strengthen the fight against online child pornography, Republic Act 10175 or the “Cybercrime Prevention Act of 2012” imposes a higher degree of penalty to the perpetrators of the said unlawful or prohibited acts.

The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual, emotional, psychological and social well-being. 

The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual, emotional, psychological and social well-being.[3]

Aside from the government, international agencies and non-governmental organizations, hand in hand, extensively work hard to mitigate this widespread child abuse. The negative side of technology, aggravates this problem because children are exploited through computer systems in just a second and this kind of offense is not just proliferating in the country but in all parts of the world.

According to Terre de Hommes, an organization in Netherlands which provides direct emergency assistance to children, webcam child sex tourism involves tens of thousands of children in the Philippines alone. Researchers discovered how adult men are able to seek contact with a poor Filipino child for instance, that will perform sexual activities on request of the viewer. The man who is viewing will pay - or not - and then leave the child to the next customer. The research team was helped by a fictitious, virtual, 10-year old Filipino child called Sweetie. As soon as the girl sowed her virtual face in freely accessible chat programs, numerous adult men would contact her with requests for online sexual activity. These chat rooms are easily accessed by everyone, yet they are under strict supervision by a monitor. There was not much monitoring done. However, and in reality the said monitor would sometimes be involved in the sexual abuse. Sweetie would never let herself be abused however. There was a way out of her. Not for thousands of extremely poor children however; for them this is the harsh reality of supply and demand.

[1 ]“Child Pornography,” Republic Act No. 9775 An Act defining the Crime of Child Pornography, prescribing penalties therefor and for other purposes

[2] PHL among top producers of child pornography, international task force says at http://www.gmanetwork.com/news/story/344345/news/nation/phl-among-top-producers-of-child-pornography-international-task-force-says

[3] Declaration of Policy, Republic Act No. 9775 An Act defining the Crime of Child Pornography, prescribing penalties therefor and for other purposes

All Women Need Protection Against Violence

INTRODUCTION

All Women Need Protection Against Violence

Across the world—in rich and poor countries alike—women are being beaten, trafficked, raped and killed. These human rights abuses not only inflict great harm and suffering on individuals—they tear at the fabric of entire societies.[1] Women of color, older women, young women, lesbians, poor and working-class women, and women with disabilities, to name a few, are especially vulnerable[2] to violence.

Violence against women is a form of discrimination and a violation of human rights. It causes untold misery, cutting short lives and leaving countless women living in pain and fear in every country in the world. It harms families across the generations, impoverishes communities and reinforces other forms of violence throughout societies. Violence against women stops them from fulfilling their potential, restricts economic growth and undermines development. The scope and extent of violence against women are a reflection of the degree and persistence of discrimination that women continue to face. It can only be eliminated, therefore, by addressing discrimination, promoting women’s equality and empowerment, and ensuring that women’s human rights are fulfilled.[3]

Oftentimes, violence occurs in sexual, physical, moral or pshyscho;ogical and economic nature. Women and girls are subjected to violence because of their gender, lack of knowledge of their rights and fear.

The adoption and enforcement of national laws to address and punish all forms of violence against women and girls, in line with international human rights standards, [4] our government finally acted and made efforts to eradicate violence in our society and provide for protection to women. As emulated in the 1987 Philippine Constitution, under Section 14, The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.[5] Also, with the number of reported violence against women in the Philippines, Republic Act No. 9262 otherwise known as Violence Against Women And Their Children was enacted to provide for their protection and remedies.

As we face the era of technology, globalization and huge change in culture, there are still different forms of violence where women are still not given priority and their rights are still compromised. Then, are all women given the required protection against violence?

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[1] Legislation on Violence Against Women.

http://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf. Last visited, Jan. 16, 2015.

[2] Race, Class, and Violence Against Women, http://www.feminist.com/resources/ourbodies/viol_race.html. Last visited Jan. 16, 2015

[3]  Ending violence against women: from words to action

Study of the Secretary-General.  http://www.un.org/womenwatch/daw/vaw/launch/english/v.a.w-exeE-use.pdf. Last visited Jan. 16, 2015

[4] For further information regarding the Secretary-General’s campaign “UNiTE to End Violence against Women”

please visit the website at: http://endviolence.un.org/.

[5] Section 14, 1987 Philippine Constitution

BIR’s power to allocate gross income among related taxpayers

I.  INTRODUCTION

 

With the promising benefits of globalization, businesses began to expand business operations on a worldwide level, either through setting up a subsidiary, branch, representative office, or other business structures. Undeniably, however, the dramatic increase in globalization brings as well the harmful tax practices that have resulted in tremendous losses of tax revenues for governments. This is true as multinationals have learned how to exploit globalization and take advantage of the tax loopholes allowing them to evade their tax obligations.

 

As one of the common practices, multinationals organize offshore centers in tax haven countries primarily to hold the assets of these multinationals. In tax haven countries, as you already know, multinationals are sheltered from the payment of huge amount of taxes as they assess little or no taxes on income. Even more important and critical is the transfer pricing schemes and methods used by these multinationals giving them a venue to allocate and shift profits among members of its corporate organization, in a less noticeable way.

 

It is due to these growing transactions and its negative impact to the government’s tax collection that the tax authorities of different countries have coherently implemented rules and regulations to intensify its tax collection efforts on global transactions. Currently among different countries, tax treaties were created to ensure double-taxation and double non-taxation did not occur, rules on information sharing and enforcement were implemented to facilitate the free flow of information among tax authorities of different countries, and effective regional tax rules were issued such as the transfer pricing regulations drafted in accordance with the Organization for Economic Cooperation and Development (OECD) model.

 

At this juncture, it is but necessary to discuss how our own country addresses this global concern through the enacted laws and implemented regulations and assess whether these have been sufficiently and effectively applied to resolve the issue. It is important especially considering the increasing investment placed by multinationals in the Philippines and the volume of domestic and cross-border transactions entered into by these entities with their related parties.

Judicial Reformation: A promising government move

Judiciary is one of the three great branches of the government which is tasked to interpret the laws, settle actual disputes and to administer justice. These tasks are delegated to the Judiciary by virtue of separation of powers enshrined in the 1987 Philippine Constitution. The Judiciary includes the Supreme Court, special courts and other lower courts. More so, Associate Justice Carpio said in one of his speeches, “Judiciary is only one of the pillars of the broader justice system that includes the community as well as the agencies of the Executive branch.”[1]

 

Every day, each branch of the government is faced with tremendous issues and one of the enormous problems confronting the judiciary is docket congestion. Many of those who come to the court would not understand why it takes a long time for their cases to be resolved. This is one possible explanation why cases are dragging on.

Often we hear the line: “justice delayed is justice denied.” This dilemma regarding docket congestion is one reason why there is slow administration of justice in the country. Other reasons would be failure of the prosecutor or public defendant to attend the hearing, absence of the witnesses, quality of court services, lack of judges and the use of regular judges as acting judges which has been proven to be unproductive because they do not have sufficient time to devote to the cases in vacant or congested courts since they have their respective salas to attend to.[2]

This dilemma in one way or another leads to infringing people’s right to speedy disposition of their case. “All persons shall have the right to speedy disposition of the cases before all judicial, quasi –judicial, or administrative bodies.”[3] This Constitutional provision mandates a speedier dispensation of justice and guarantees the right of all persons to a speedier disposition of their case; this includes the periods before, during and after trial.[4] Clogged dockets impair social justice, hinder economic development, and erode public confidence in the Justice System and ultimately in the entire government.[5]

Public office is a public trust and the Judiciary is mindful to their duties to the public as regards docket congestion dilemma. The solution to clogged dockets is a combination of measures to address case management, performance, procedure, case filtering, personnel and judge-population issues.[6]

There are wide array of dilemma facing the Judiciary. Another is upholding the integrity, independence and competence amongst the judges and justices. [7] There is a certain high form of standard expected form the vanguard of justice…of law and it is a Constitutional mandate that they possess such qualities and standards. 

Judicial reformation is indeed a necessary movement to be taken by the government as well as its people. Not only will it lead to the improvement of court services, but will advance the economical development of the country as well.

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[1] www.ibp.ph/PDF/IBP Speeches/Justice Carpio.pdf

[2] HB 2712, An Act Amending Batas Pambansa 129

[3] Sec.16 Art. III of the 1987 Constitution

[4] Coscolluela vs. Sandiganbayan, G.R. 191441, July 15, 2013

[5] Id.

[6] Id.

[7] Id

The Illegal Migration of Filipinos from Mindanao to Kota Kinabalu, Malaysia

INTRODUCTION:

The Philippines is a very diverse nation. Its tradition, culture and way of living can be considered as a result of a grand mixture of different races that came into the country as a result of trade, migration and colonization. Such development went through because the country is one of the studded islands in the South-East Asia region and its location is one of the ideal trade routes going to the Pacific and China. Due to those established connections, new ties are born between the country’s neighboring and distant countries. Moreover, it is not only entrepreneurship that went on between these countries but also the spread of religion and beliefs together with the marriage and engagement of different nations’ people.

One of the countries that built such connection with the country is Malaysia. The capital of Malaysia is only 2,402 km away from the southest tip of the country (Mindanao). Though, the nearest point (Sabah) of Malaysia is only 844 km away from Mindanao [1]. It is just an hour or two of boat ride across the Celebes Sea. A great interaction was instituted between Mindanao and Sabah. Both areas share almost the same culture and a common religion. According to historical accounts, Islam arrived in the country from the southern areas, it could be possibly theorized that the Malays’ interactions with the natives molded them into being Muslims. Furthermore, due to such short distance between islands, a regular crossing of boarders made strong ties [2].

Time has passed but it has never severed the ties made. It only bonded two different nationalities deeply. Though, there came a time that the territory of Sabah was disputed by the two countries. The Philippines claim that they have legal and historical accounts that would support their claim to the territory. Records show that Sabah or formerly known as North Borneo was granted to the Sultanate of Sulu after it helped the Sultanate of Brunei against his enemies, however, it was relinquished due to the intervention of Spain and United Kingdom during the Colonial Age. Nevertheless, the dispute between the countries’ government never affected the good relations of the locals. As of today, those good relations resulted into the issue of illegal migrations of Filipinos from Mindanao into that Malaysian region [3]. And the record of the most inhabited region by illegal migrant Filipinos is the region of Kota Kinabalu [4].

[1] http://www.philstar.com/education-and-home/2013/03/14/919440/historical-facts-about-sabah-filipinos-must-know

[2] http://philippineclaimoversabah.blogspot.com/

[3] http://www.slideshare.net/JewelMercader/illegal-immigrants-in-sabah

[4] http://www.sayangsabah.com/en/permanent-committee-on-illegal-immigrants-to-be-established/

The never ending problem: Why the government cannot solve squatting problem.

The government of the Philippines is having a hard time finding a solution to the squatting problem. This is because they will have to evict 21% of the population of Metro Manila and they will have to comply with the proper demolition and eviction set by Republic Act 7279 which states that eviction or demolition may be allowed only when:

a. persons/entities occupy danger areas
b. persons/entities occupy public places
c. place occupied is a government infrastructure project site
d. there is a court order for eviction or demolition
e. construction falls under the category: new illegal structure (construction after March 29, 1992)
f. structure belongs to a professional squatter or a member of a squatting syndicate

- In the execution of eviction or demolition involving underprivileged and homeless citizens, the following are mandatory: (Sec. 28, UDHA, Implementing Rules and Regulations)

• 30-day notice
• adequate consultation
• only during office hours and good weather
• presence of LGU officials
• all those participating in demolitions must have proper ID
• the Philippine National Police shall be in proper uniform (their task is not to demolish but for law enforcement and disturbance control only)
• heavy equipment shall not be used except for concrete structures

UDHA Resettlement Program

• resettlement of persons living in danger areas (esteros, railroad tracks, garbage dump, riverbanks shorelines and waterways) and public places (sidewalks, roads, parks and playgrounds) 
• The LGUs, in coordination with the National Housing Authority, are tasked to provide relocation or resettlement sites with basic services and facilities and access to employment opportunities sufficient to meet the basic needs of the affected families. [1]

The set of rules and procedure established by Republic Act 7279 made eviction of informal settlers to be harder since the government does not allocate enough budget for relocation or resettlement site of the affected families hence eviction and demolition were delayed causing informal settler to longer occupy idle lands.

 Republic Act 7279 was created to help the underprivileged to own and live freely however because of lack of political will of the government to apply the real intention of the law; Informal settlers found a way to circumvent the law and made it appear that the government has no right to evict them because there were no adequate consultation and no concrete plans for their relocation. The government concede to the ideas of these informal settlers so that they could satisfy their political careers because as I mentioned the slum consists of 21% of the population in the Metro Manila.

The creation of RA 7279 along side with RA 8356 where it decriminalize squatting made informal settlers more arrogant and created professional squatting common as the government has no real action to penalized the people who conduct such act. Although, the law gives the very best intention to help the underprivileged however it does not solve the real squatting problem of the Philippines because the government needs to learn that more than the informal settlers the real problem is poverty and lack of development in rural areas.


[1] http://www.pdhre.org/materials/learning4.html