Sample Mock Bar Exercises and Current Issues on Political Law and

Public International Law

Sample Mock Bar Exercises and Current Issues on Political Law and Public International Law

 Dean ARTURO M. DE CASTRO

 Dean, College of Criminology
 Associate Dean, College of Law
 University of Manila
 LL.B., University of the Philippines, College of Law
 LL.M., S.J.D., University of Michigan

On the Quo Warranto and Impeachment against Chief Justice Ma. Lourdes Sereno.

1. Would Quo Warranto in the Supreme Court filed by the Solicitor General prosper after the Impeachment Complaint
had been initiated before the House of Representatives?

Answer:

YES. The causes of action are different in Quo Warranto and in Impeachment. The issue in Quo Warranto is
the qualifications of the Chief Justice. If she is not qualified, she could be removed through Quo Warranto. On
the other hand, the Impeachment presupposes that Chief Justice Sereno is qualified for the position of Chief
Justice, and the issue is whether she committed impeachable offenses of culpable violation of the Constitution,
bribery, graft and corruption or other high crimes, and/or betrayal of public trust.

2. Submission by public officials of Statement of Assets, Liabilities, and Net Worth (SALN), and the payment of tax
liabilities, are not among the qualifications prescribed by the Constitution, hence, they cannot be considered on the
issue of qualifications of the Supreme Court Chief Justice under the Constitution.

Do you agree that compliance with the filing of SALN and payment of taxes are not proper grounds for Quo Warranto
against the Chief Justice?

Answer:

I disagree because the Constitution provides public accountability for all government officials. A public office is
a public trust. Failure to file SALN and to pay taxes constitute betrayal of public trust, and at the same time a
disqualification from being appointed to public office.

3. Many sitting Justices in the Supreme Court testified in the Impeachment proceedings of Chief Justice Sereno
questioning her qualifications and fitness for the office of the Chief Justice. May the Supreme Court en banc resolve the
Quo Warranto case against Chief Justice Sereno fairly on the merit?

Answer:

YES. The sitting Justices of the Supreme Court are trained in deciding cases fairly and may resolve the Quo
Warranto without fear or favor in accordance with the applicable law.

Inhibition is purely discretionary on the part of the sitting Justices, who may decide to stay if they feel and
resolve to decide the case fairly.

If any of the sitting Justices would voluntarily inhibit to participate in the Quo Warranto proceedings of Chief
Justice Sereno, then Justices from the Court of Appeals may be designated to try and decide the case pro hac
vice.

4. It is argued that the Quo Warranto against Chief Justice Sereno was filed out of time. Would this bar the resolution
of the Quo Warranto petition against the Chief Justice on the merit?
Answer:

NO, if she deserves to be removed based on the merit in order to serve the ends of justice, the argument could
not be sustained.

The technical rules should bow to the paramount requirements of justice.

The rules of procedure ought not to be applied in a very rigid technical sense, as they are used only to help secure,
not override substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be
defeated. (Ramiscal, Jr. v. Sandiganbayan, G. R. Nos. 140576-99, December 13, 2004, 446 SCRA 166; citing Salazar
v. NLRC, G.R. No. 109210, April 17, 1997, 256 SCRA 273)

In highly meritorious cases, the Supreme Court has the plenary authority to set aside technicality to serve the
paramount interest of justice.

In the case of former President GLORIA MACAPAGAL ARROYO, vs. PEOPLE OF THE PHILIPPINES AND
THE SANDIGANBAYAN, (First Division), G.R. No. 220598, April 18, 2017, the Supreme Court en banc
reversed the resolution of the Sandiganbayan denying the Motion to Dismiss on Demurrer to Evidence despite
the express and specific rule under the Revised Rules of Criminal Procedure that a denial of demurrer to
evidence is not reviewable by Certiorari under Rule 65. Such technical rule of procedure was not followed in
light of the overwhelming fact that there is no sufficient evidence against the accused as clearly borne by the
records.

Besides, the deadline to file Quo Warranto against the Chief Justice was impossible of performance, hence, the
same may not be applied. Under the Civil Code, any condition impossible of performance is null and void
(Articles 727, 873 and 1183). It could not be expected that President Benigno Aquino or the Solicitor General at
the time would file a Quo Warranto proceeding against Chief Justice Sereno for lack of her qualifications for the
position of Chief Justice because it was former President Aquino who orchestrated her appointment as Chief
Justice Sereno despite her lack of qualifications. Former President Aquino cannot wash hands now, and blame
the Judicial and Bar Council for recommending Chief Justice Sereno despite her lack of qualifications.

In any event, the issue to be resolved on the merit in the Quo Warranto proceedings before the Supreme Court
boils down to whether Chief Justice Sereno has the qualifications to the position of the Chief Justice of the
Supreme Court under the Constitution.

ANNOUNCEMENT/S

RE: Rome Statute

As Dean of the University of Manila (UM) – College of Criminology, and Associate Dean of the UM College of Law, I
am preparing a seminar on the current issues relating to the Rome Statute creating the International Criminal Court
with universal jurisdiction on crimes against humanity, including genocide, violation of international humanitarian law,
and enforced disappearances, which cover extrajudicial killings.

There is no question that the President has the power to ratify a treaty under the Constitution which includes the power
to withdraw from it1, in the exercise of his sovereign power over foreign relations for which the President is
answerable only to the People of the Philippines. The Sovereign People support overwhelming the campaign of the
President against prohibited drugs and surely also, against the raw, discourteous and insulting treatment of the
International Criminal Court (ICC) prosecutors related to the Drug Campaign of the President in the Philippines.

The seminar will be scheduled after the opening of classes in June 2018, at the University of Manila Auditorium.
Invited lecturers shall be announced later. Attached is my Political and Public International Law Bar Review Study
Guide (2010) on the Rome Statute entitled “salient features of the ROme Statute on Universal Criminal
Jurisdiction as adopted by Philippine Congress under Republic Act No. 9851 (approved December 11, 2009 by
then President Gloria Macapagal-Arroyo)”
Re: Charter Change and Federalism

Another project of Dean De Castro is a seminar on Federalism. Former Chief Justice Hilarion Davide, Jr. has been
going around in schools and mass media demonizing federalism. It is the goal of the seminar to place the issues in their
proper perspective so the people can decide fairly and intelligently in the exercise of their sovereignty on the matter of
federalism as a form of government for the Philippines.

Former Chief Justice Davide opines that the people would be burdened with double taxes by the Federal National
Government and the Federal State. With due respect, he is grossly mistaken in fact and in law. There would be no
double taxation under the generally accepted principle of pre-emption in Taxation becasue the matters already subject
to taxes of the Federal National Government cannot be taxed anymore by the Federal State. The principle of pre-
emption is well-enshrined in Philippine case law and in the present Constitution that prohibits double taxation.

The assumption of the former Chief Justice that there would be double taxation is grossly unfounded.

Former Chief Justice Davide further opines that the Federal form of Government would be divisive and would promote
Political Dynasties. Precisely, these are the evils sought to be solved by revising the Constitution by shifting to Federal
form of Government.

The Federal States shall not be independent but autonomous states within the sphere of their internal affairs to govern
themselves and develop their economies under the general guidelines and supervision of the Federal National
Government so that what a federal state earns would remain within itself for its own further economic, social and
political development.

One of the salutary goals of shifting to Federalism form of Government is precisely to address the problem of political
dynasties not effectively governed by the present Constitution under its provisions which are not self-executing but
dependent upon the discretionary act of Congress for its implementation.

I shall discuss the benefits of Federal Form of Government as it excellently works in the United States, in some
European Countries and our neighboring countries at the proper forum.

Former Chief Justice Davide and other objectors to the Consitutent Assembly as a mode to revise the Constitution and
to the shift of Federal form of Government itself should hold their breath, wait and see, and even participate in the
public hearings on the Constitutional Amendments and Revisions to be conducted by the Constitutional Commission
and by Congress itself acting as Constituent Assembly to propose revisions of the Constitution.

After all, it would be for the People to decide, in the exercise of their sovereign will, on the shift to Federal form of
Government and other changes in the Constitution when the new Constitution is presented to the People for ratification.

The Consititution should be by the People and for the People in whom soveriegnty resides and from whom all
government authorities emanate.

Re: South China Sea

Still another seminar on the pipeline is on the Arbitral Award on Disputed Islands in the South China Sea on which
Dean De Castro has published an article entitled “Brief Summary and Legal Analysis of the Final Award of the
Permanent Court of Arbitration in Republic of the Philippines vs. the People’s Republic of China Arbitration
Case No. 2013-19. July 12, 2016 in favor of the Philippines under the United Nations Convention on the Law of
the Sea” in Volume IX, No. 2 of the Journal of the Philippine Association on Voluntary Arbitration, herein attached.

Dean De Castro has written another article as a sequel to the foregoing publication entitled "Lack of Jurisdiction in
the Award on the South China Sea: A Brief Legal Analysis" reproduced below.

I do not agree with the advisory opinion of Acting Chief Justice Antonio Carpio that joint exploration of the disputed
islands within our exclusive economic zone (EEZ) in the South China Sea with China would violate the Philippine
Constitution under the strict interpretation that the use and enjoyment of the natural resources within the exclusive
economic zone (EZZ) is reserved only to Filipino nationals.
 Under the Foreign Investment Act of 1991, "Philippine national" includes “a domestic partnership or association
wholly owned by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at
least sixty percent (60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the
Philippines; or a trustee of funds for pension or other employee retirement or separation benefits, where the trustee is a
Philippine national and at least sixty (60%) of the fund will accrue to the benefit of the Philippine nationals: Provided,
That where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission
(SEC) registered enterprise, at least sixty percent (60%) of the capital stocks outstanding and entitled to vote of both
corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of
the Board of Directors of both corporations must be citizens of the Philippines, in order that the corporations shall be
considered a Philippine national” (Section 3 (A), Republic Act No. 7042, June 13, 1991).

It is my opinion that a joint agreement for exploration of the disputed islands with China would not violate the
Constitution. A treaty between sovereign nations on the international plane has primacy over the domestic law of a
country including its Constitution. Where there is a conflict between the Constitution and a treaty obligation, if the case
is filed in the Philippines, the Supreme Court will declare the treaty obligation unconstitutional for being in violation of
the Constitution. If the case is filed before an international tribunal, the Constitution would be declared null and void if
the Constitution violates a treaty obligation. A State cannot invoke its internal law as justification for a failure to
perform a treaty obligation.2

In any event, I agree with Presidential Legal Counsel, Atty. Salvador Panelo, and Presidential Spokesperson Atty.
Harry Roque that joint exploration of natural resources within our EEZ is allowed under the Constitution and the
Foreign Investments Act.

END NOTES:

1 1969 Vienna Convention on the Law of Treaties, Art 67, requiring that notices of withdrawal, denunciation, or
termination be in writing and be made by officials with actual treaty-making powers or those possessing full powers.

2A rule which now finds express articulation in Art 27 of the Vienna Convention on the Law of Treaties, see Shaw
(2008: 133–7); Jennings and Watts (1992: 84); Aust (2007: 180–1); Brownlie (2008: 34–5), cited in page 3, “The Legal
Effects of EU Agreements”, Mario Mendez, published 2013 by Oxford University Press.

ATTACHMENTS:

ARTICLE#1

salient features of the ROme Statute on Universal Criminal Jurisdiction as adopted by Philippine Congress
under Republic Act No. 9851 (approved December 11, 2009 by then President Gloria Macapagal-Arroyo)

By: Prof Arturo M. de Castro

(Ll.B., UP Cum Laude, Class Salutatorian [1970]; Ll.M. [1976], SJ.D. [1982], University of Michigan Law
School; Professor, UP, Ateneo, PCU; MCLE Lecturer on Alternative Dispute Resolution and other subjects;
Managing Partner, De Castro and Cagampang Law Office, 7th Flr. LTA Bldg., 118 Perea St., Legaspi Vill.,
Makati City, Tel. Nos. (02) 892-1277/812-7129/816-2380)

RA No. 9851. An act defining and penalizing crimes against International Humanitarian Law, Genocide and other
crimes against humanity, organizing jurisdiction, designating special courts, and for related purposes.

1. What are the purposes and objectives of the new law?

Ans: The new law is a domestic adoption of the Rome Statute, the Hague Conventions of 1907, the Geneva Convention
on the protection of victims of War and International Humanitarian Law as part of the law of the land in order to
protect the dignity of every human person and to guarantee full respect for human rights of indigenous cultural
communities and other vulnerable groups, such as women and children.
 The law seeks to put an end to impunity for the perpetrators of most serious crimes of concern to the international
community as a whole that must not go unpunished by taking measures at the national level to exercise local criminal
jurisdiction over those responsible for international crimes under standards of fair and speedy trial protective of the
witnesses and their families with appropriate redress to victims and their families, ensuring that the legal systems of the
place provide accessible and gender sensitive avenues of redress for victims of armed conflict.

1. Define the following for purposes of the law (Section 3):

2. Apartheid

“Apartheid” means inhumane acts committed in the context of an institutionalized regime of systematic oppression and
domination by one racial group or groups and committed with the intention of maintaining that regime.

1. Armed conflict

“Armed conflict” means any use of force or armed violence between States or a protracted armed violence between
governmental authorities and organized armed groups or between such groups within that State: Provided, That such
force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949,
including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States,
including belligerent occupation; or non-international, that is, between governmental authorities and organized armed
groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.

1. Effective command and control or effective authority and control

“Effective command and control or effective authority and control” means having the material ability to prevent and
punish the commission of offenses by subordinates.

1. Enforced or involuntary disappearance of persons

“Enforced or involuntary disappearance of persons” means the arrest, detention, or abduction of persons by, or with the
authorization support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time

1. Enslavement

“Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of trafficking in persons, in particular women and children.

1. Forced pregnancy

“Forced pregnancy” means the unlawful confinement of a women to be forcibly made pregnant, with the intent of
affecting the ethnic composition of any population carrying out other grave violations of international law.

1. Hors de Combat

“Hors de Combat” means a person who:

(1) is in the power of an adverse party;

(2) has clearly expressed an intention to surrender; or

(3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of
defending himself: Provided, that in any of these cases, the person form any hostile act and does not attempt to escape.

1. Perfidy

“Perfidy” means acts which invite the confidence of an adversary to lead him/her to believe he/she is entitled to, or is
obliged to accord, protection under the rules of International Humanitarian Law, with the intent to betray that
confidence, including but not limited to:
 (1) feigning an intent to negotiate under a flag of truce;

(2) feigning surrender;

(3) feigning incapacitation by wounds or sickness;

(4) feigning civilian or noncombatant status; and

(5) feigning protective status by use of signs, emblems or uniforms of the United Nations or of a neutral or other State
not party to the conflict.

1. What are war crimes?

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against International Human
Humanitarian Law" means:

1. In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949,
namely, any of the following acts against persons or property protected under provisions of the relevant
Geneva Convention:

1. Willful killing;

2. Torture or inhuman treatment, including biological experiments;

3. Willfully causing great suffering, or serious injury to body or health;

4. Extensive destruction and appropriation of property not justified by military necessity and carried out
unlawfully and wantonly;

5. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

6. Arbitrary deportation or forcible transfer of population or unlawful confinement;

7. Taking of hostages;

8. Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power;
and

9. Unjustifiable delay in the repatriation of prisoners of war or other protected persons.

1. In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva
Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active part in
the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention or any other cause;

1. Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

2. Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

3. Taking of hostages; and

4. The passing of sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

2. Other serious violations of the laws and customs applicable in armed conflict, within the established framework of
international law, namely:

1. Internationally directing attacks against the civilian population as such or against individual civilians not
taking direct part in hostilities;

2. Intentionally directing attacks against civilian objects, that is, object which are not military objectives;

3. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using
the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional
law;
4. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as
ling as they are entitled to the protection given to civilians or civilian objects under the international law of
armed conflict;

5. Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians
or damage to civilian objects or widespread, long-term and severe damage to the natural environment which
would be excessive in relation to the concrete and direct military advantage anticipated;

6. Launching an attack against works or installations containing dangerous forces in the knowledge that such
attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or
serious injury to body or health.

7. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended
and which are not military objectives, or making non-defended localities or demilitarized zones the object of
attack;

8. Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who,
having laid down his/her arms or no longer having means of defense, has surrendered at discretion;

9. Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the
United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs
under International Humanitarian Law, resulting in death, serious personal injury or capture;

10. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable
purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they
are not military objectives. In case of doubt whether such building or place has been used to make an
effective contribution to military action, it shall be presumed not to be so used;

11. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific
experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by
the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and
which cause death to or seriously endanger the health of such person or persons;

12. Killing, wounding or capturing an adversary by resort to perfidy;

13. Declaring that no quarter will be given;

14. Destroying or seizing the enemy's property unless such destruction or seizure is imperatively demanded by
the necessities of war;

15. Pillaging a town or place, even when taken by assault;

16. Ordering the displacements of the civilian population for reasons related to the conflict, unless the security
of the civilians involved or imperative military reasons so demand;

17. Tranferring, directly or indirectly, by the occupying power of parts of its own civilian population into the
territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory
within or outside this territory;

18. Commiting outrages upon personal dignity, in particular, humiliating and degrading treatments;

19. Commiting rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of
common Article 3 to the Geneva Convensions;

20. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces
immune from military operations;

21. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indespensable
to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions
and their Additional Protocols;
22. In an international armed conflict, compelling the nationals of the hostile party to take part in the operations
of war directed against their own country, even if they were in the belligerent's service before the
commencement of the war;

23. In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;

24. Commiting any of the following acts:

1. Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed
forces;

2. Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or
group other than the national armed forces; and

3. Using children under the age of eighteen (18) years to participate actively in hostilities; and

25. Employing means of warfare which are prohibited under international law, such as:

1. Poison or poisoned weapons;

2. Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

3. Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not
entirely cover the core or are pierced with incisions; and

4. Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous
injury or unecessary suffering or which are inherently indiscriminate in violation of the international law of
armed conflict.

Any person found guilty of commiting any of the acts specified herein shall suffer the penalty provided under Section 7
of this Act.

1. What is genocide?

Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of the following acts with intent to
destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group
as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;

4. Imposing measures intended to prevent births within the group; and

5. Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite others to commit genocide.

Any person found guilty of committing any of the acts specified in paragraphs (a) and (b) of this section shall suffer the
penalty provided under Section 7 of this Act.

1. What are the other crimes against humanity?

Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other crimes against humanity" means any of
the following acts when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:

1. Willful killing;

2. Extermination;
3. Enslavement;

4. Arbitrary deportation or forcible transfer of population;

5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of

international law;

6. Torture;

7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity;

8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or any crime defined in this Act;

9. Enforced or involuntary disappearance of persons;

10. Apartheid; and

11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or
to mental or physical health.

Any person found guilty of committing any of the acts specified herein shall suffer the penalty provided under Section
7 of this Act.

1. What other crime is punishable?

Ans: Inciting others to commit genocide.

1. Who are principals under the law?

1. Principal by direct participation jointly or through another person, even if the latter is not criminally liable;

2. Principal by inducement even if the crime is only attempted.

3. In any other way contributes to the commission or attempted commission of such a crime by a group of
persons acting with a common purpose. Such contribution shall be intentional and shall either:

2. be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity
or purpose involves the commission of a crime defined in this Act; or

3. be made in the knowledge of the intention of the group to commit the crime.

4. Who are liable as accomplices under the law?

Ans: A person shall be criminally liable as accomplice for facilitating the commission of a crime defined and penalized
in this Act is he/she aids, abets or otherwise assists in its commission or attempted commission, including providing the
means for its commission.

1. Who are liable as principal even though they commit only the frustrated stage of the crime?

Ans: A person shall be criminally liable for a crime defined and penalized in this Act if he/she attempts to commit such
a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur
because of circumstances independent of the person’s intention.

1. Who are not liable after initially commencing the commission of the crime punishable under the law?

Ans: A person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not
be liable for punishment under this Act for the attempt to commit the same if he/she completely and voluntarily gave up
the criminal purpose.

1. Do heads of state and diplomatic officials have immunity from suit?

Ans: No.
 Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any distinction based
on official capacity. In particular, official capacity as a head of state or government, a member of a government or
parliament, an elected representative or a government official shall in no case exempt a person from criminal
responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

1. Immunities or special procedural rules that may be attached to the official capacity of a person under
Philippine law other than the established constitutional immunity from suit of the Philippine President
during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

2. Immunities that may be attached to the official capacity of a person under international law may limit the
application of this Act, nut only within the bounds established under international law.

1. When is a superior liable for the criminal acts of his subordinate?

Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for crimes defined and
penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by
subordinates under his/her effective command and control, or effective authority and control as the case may be, as a
result of his/her failure to properly exercise control over such subordinates, where:

1. That superior either knew or, owing to the circumstances at the time, should have known that the
subordinates were committing or about to commit such crimes;

2. That superior failed to take all necessary and reasonable measures within his/her power to prevent or
repress their commission or to submit the matter to the competent authorities for investigation and
prosecution.

1. When is obedience to an unlawful order of a superior exempting?

Section 12. Orders from a Superior. - The fact that a crime defined and penalized under this Act has been committed
by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that
person of criminal responsibility unless all of the following elements occur:

1. The person was under a legal obligation to obey orders of the government or the superior in question;

2. The person did not know that the order was unlawful; and

3. The order was not manifestly unlawful.

For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful.

1. How are the victims and witnesses protected under the law?

Section 13. Protection of Victims and Witnesses. - In addition to existing provisions in Philippine law for the protection
of victims and witnesses, the following measures shall be undertaken:

1. The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-
being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant
factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where
the crime involves sexual or gender violence or violence against children. The prosecutor shall take such
measures particularly during the investigation and prosecution of such crimes. These measures shall not be
prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial;

2. As an exception to the general principle of public hearings, the court may, to protect the victims and
witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence
by electronic or other special means. In particular, such measures shall be implemented in the case of the
victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court,
having regard to all the circumstances, particularly the views of the victim or witness;

3. Where the personal interests of the victims are affected, the court shall permit their views and concerns to be
presented and considered at stages of the proceedings determined to be appropriate by the court in manner
which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such
 views and concerns may be presented by the legal representatives of the victims where the court considers it
appropriate in accordance with the established rules of procedure and evidence; and

4. Where the disclosure of evidence or information pursuant to this Act may lead to the grave endangerment of
the security of a witness for his/her family, the prosecution may, for the purposes of any proceedings
conducted prior to the commencement of the trial, withhold such evidence or information and instead
submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or
inconsistent with the rights of the accused and to a fair and impartial trial.

1. What are the additional provisions for the reparation of victims under the law?

Section 14. Reparations to Victims. - In addition to existing provisions in Philippine law and procedural rules for
reparations to victims, the following measures shall be undertaken:

1. The court shall follow the principles relating to the reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation. On this basis, in its decision, the court may, wither upon
request or on its own motion in exceptional circumstances, determine the scope and extent of any damage,
loss and injury to, or in respect of, victims and state the principles on which it is acting;1avvphi1

2. The court may make an order directly against a convicted person specifying appropriate reparations to, or in
respect of, victims, including restitution, compensation and rehabilitation; and

3. Before making an order under this section, the court may invite and shall take account of representations
from or on behalf of the convicted person, victims or other interested persons.

Nothing in this section shall be interpreted as prejudicing the rights of victims under national or international law.

1. When may Philippine Courts exercise jurisdiction over war crimes, genocide and other crimes against
humanity committed anywhere in the world?

Section 17. Jurisdiction.- The State shall exercise jurisdiction over persons, whether military or civilian, suspected or
accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of
the following conditions is met:

1. The accused is a Filipino citizen;

2. The accused, regardless of citizenship or residence, is present in the Philippines; or

3. The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable
extradition laws and treaties.

No criminal proceedings shall be initiated against foreign nationals suspected or accused of having committed the
crimes defined and penalized in this Act if they have been tried by a competent court outside the Philippines in respect
of the same offense and acquitted, or having been convicted, already served their sentence.

Section 18. Philippine Court, Prosecutors and Investigators. - The Regional Trial Court of the Philippines shall have
original and exclusive jurisdiction over the crimes punishable under this Act. Their judgments may be appealed or
elevated to the Court of Appeals and to the Supreme Court as provided by law.

The Supreme Court shall designate special courts to try cases involving crimes punishable under this Act. For these
cases, the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned
law enforcement agencies shall designate prosecutors or investigators as the case may be.

The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of this Act,
receive effective training in human rights, International Humanitarian Law and International Criminal Law.
ARTICLE#2

Lack of Jurisdiction in the Award on the South China Sea: A Brief Legal Analysis

By

Dean Arturo M. de Castro

University of Manila

LI.M. 1976 S.J.D. 1982

University of Michigan School of Law

China did not participate in the arbitration proceedings in China Arbitration Case No. 2013-19, July 12, 2016 initiated
by the Republic of the Philippines before the Permanent Court of Arbitration (the Tribunal) under the United Nations
Convention of the law of the Sea (UNCLOS) on the South China Sea. China’s firm position from the very start is that
the Tribunal does not have jurisdiction over principally territorial disputes in the South China Sea.

There is no question that the Tribunal has no jurisdiction over territorial disputes, territorial delimitation and activities
involving military matters. While the Tribunal recognizes its lack of jurisdiction over these issues, it nonetheless
assumed jurisdiction and rendered an award on maritime entitlements and sovereign rights of the Philippines over its
Exclusive Economic Zones (EEZ) in the South China, at the same time declaring the 9-line territorial claims of China
based on historical rights unfounded and baseless. The Tribunal likewise ignored the undisputed reality subject to
judicial notice and common knowledge of the International Community that China has militarized the area by
installation of military facilities heavily guarding the area ready to ignite war if China’s dominion is challenged by any
power, like a rooster ready to fight any belligerent approach by any rival.

The Tribunal intrudes on forbidden ground bereft of jurisdiction in ruling that the historical rights of China as basis for
its territorial claim and 9-line as its territorial delimitation are baseless and unfounded. It also closes its eyes to the fact
that there is military involvement that renders it without jurisdiction, despite the categorical formal official
communication of Vietnam that the Tribunal has no jurisdiction over the case because of military involvement in the
international dispute in the South China Sea between China and other claimants in the South China Sea. China is
heavily guarding its territorial claim and actual physical possession over South China Sea with military might ready to
ignite war if other claimants disturb its claims of dominion and exclusive possession and control over the South China
Sea.

Jurisdiction in arbitration proceedings of the Permanent Court of Arbitration is conferred by voluntary consent of the
parties. Membership alone in the UNCLOS is not sufficient consent over issues other than entitlement to sovereign
rights over the EEZ. Issues of territorial dispute, territorial demarcation and territorial delimitation such as China’s 9-
Line, and military activities involved are outside the jurisdiction of the Tribunal under the UNCLOS.

Furthermore, absence from the case of other claimants in the South China who are indispensable parties renders the
arbitral award null and void and without legal force effect and does not constitute res judicata and may be subject to
collateral attacks in subsequent cases.

In view of the foregoing consideration from the legal view point and the hard position taken by the Chinese
Government, the courage, wisdom and statesmanhip of President Duterte may be appreciated in pursuing the policy
under the Constitution to promote amity of nations by befriending China and Russia, instead of joining the joint patrol
espoused by US President Obama in the South China Sea that may ignite war in the area which may annihilate the
Philippines from the face of the earth. It is wisdom as well as prudence and not cowardice, to pursue pacific settlement
and promote amity and friendship with all nations of the world to resolve the territorial disputes in the South China Sea.

The Philippines is not turning its back from the US, which granted to the Filipinos the Philippine territory purchased by
the US from Spain under the Treaty of Paris of 1898, which includes the Scarborough Shoal in its territorial
delineation. The Philippine Military had been in actual control of the Scarborough Shoal which used to be the site of
joint military exercises between the Philippines and the US until 2012 when China occupied the area and has
maintained military control therein ever since without the opposition of the Aquino Administration at that time when
Senator Trillanes was making back door negotiations with China.

The Philippines cannot effectively assert exclusive sovereign rights in the South China Sea under the Award of the
Tribunal under the UNCLOS, which is vitiated by lack of jurisdiction, and anyway is toothless and not enforceable in
any way.

Pursuing modes of Pacific Settlement of international disputes is the only prudent, practical and viable alternative to the
devastation, cruelties, miseries and atrocities of War condemned by all the civilized nations of the world.

Bilateral negotiations with China is the most viable and prudent solution to the disputes between the Philippines and
China on the South China Sea.

Diplomatic negotiations by the Philippines with China and other claimant countries in the South China Sea are not
prohibited by either the Philippine Constitution or the UNCLOS. As noted in the earlier article on the subject, the
President is authorized by the Philippine Constitution to enter into agreements involving either technical or financial
assistance for large scale exploration, development and utilization of minerals, petroleum and other mineral oils and all
other natural resources which include natural resources under our Exclusive Economic Zone (Sec. 2, Article XII, 1987
Philippine Constitution).

As clearly enunciated by the Tribunal in the Arbitral Award, the creation of artificial islands and installations of
military establishments within the Exclusive Economic Zone of the Philippines violates the UNCLOS because the same
were undertaken without the consent and permission of the Republic of the Philippines. Any bilateral agreement
between the Philippines and China would have the curative effect on such purported violation of the UNCLOS.

It is settled that the conduct of foreign relations of the President is a purely and highly political act for which he is
accountable only to the people, and is even immune from judicial review under the Political Question Doctrine
(Pimentel, Jr. vs. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005).

The Filipino people overwhelmingly support the initiatives of President Duterte to pursue independent foreign
economic trade policies with all the nations of the World and bilateral negotiations with China on the West Philippine
Sea in order to serve the best interest of the Filipino people.

Despite the humility of the President, he is a natural hardworking, courageous genius leading the country to peace and
prosperity despite the great odds along the way, with the popular support of the Filipino people, despite the local and
international media campaign to derail his programs save the country and the Filipino people from the menace of drugs
and to pursue an independent foreign policy to arrest the catastrophe of War.

Nota Bene: Dean Arturo M. de Castro is currently the Dean of the College of Criminology and Associate Dean of the
College of Law and Bar Review Director of the University of Manila. He belongs to the private academic sector who
supports the programs of the Duterte Administration on the Anti-Drugs Campaign and independent foreign policies for
the promotion of amity, friendship and economic cooperation with all the nations of the World to serve the best interest
of the Filipino people.