Inside Philippine politics & beyond

Victory in Round 1 on the South China Sea arbitration, but not really a knockout

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By Dr. Alfredo C. Robles, Jr.

Guest-Post-web

I’m posting this piece in the hope that it will be an input for the Philippines to Round 2 of the ongoing arbitration on the South China Sea. 

First a disclosure. This is written by my brother-in-law, the certified nerd in the family. He is a retired Professor of International Studies from De la Salle University. He holds two doctorates – a   Ph.D. in International and European Studies from the Université de Paris I (Panthéon-Sorbonne) and a Ph.D. in Political Science from Syracuse University. He was asked at the last minute to be the interpreter for both French President François Hollande and Philippine President Benigno Aquino for their joint press conference at the presidential palace during Hollande’s visit last February.  In 2013, he was one of Metrobank Foundation’s 10 Outstanding Teachers. I forgot to say – when he graduated summa cum laude from the University of the Philippines, he broke the record then for having the highest grade point average. 

Most of all, he took the trouble to read ALL THE TRANSCRIPTS of the arbitration and the ENTIRE decision of the arbitral court in order to draw out the following implications of the decision to the Philippine case. Please note that the words highlighted in blue lead to links of the sources he is referring to. 

I know this is somewhat hard to read. It will remind you of your college. But do take the time out because it explains what the Philippines needs to do in Round 2, to achieve victory. 

The award (decision) issued by the Arbitral Tribunal in the Philippines v. China arbitration creates the impression that this was a knockout (as a reporter for the Philippine Daily Inquirer put it) for the Philippines because of the following reasons: the award was adopted unanimously; the Solicitor General declared that China’s preliminary objections have been eliminated ; and China rejected the award.

The award is undoubtedly a triumph for the Philippines, in that China’s preliminary objections to the jurisdiction of the Tribunal, which were intended to terminate the proceedings, failed to prevent the Tribunal from proceeding to the next phase, the merits phase. In the latter, the Tribunal will hear the arguments on the substantive issues over Submissions 3 (Scarborough Shoal generates no entitlement to an Exclusive Economic Zone, EEZ or continental shelf), 4 (Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ, or continental shelf), 6 (Gaven Reef and McKennan Reef, including Hughes Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ or continental shelf), 7 (Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an EEZ or continental shelf), 10 (China has prevented Filipino fishermen from fishing at Scarborough Shoal) and 13 (China operates law enforcement vessels in a dangerous manner causing risk of collision to Philippine vessels in the vicinity of Scarborough Shoal).

Nevertheless, the award does not represent a total victory for the Philippines. In the first place, the Philippines, as the award makes very clear, was opposed to the bifurcation – the separation into two phases (jurisdiction/admissibility and merits) – of the proceedings and wished to argue jurisdiction and merits at the same time, in part to save money, as the Solicitor General admitted in April 2014.  The holding of the hearings on jurisdiction and admissibility was not part of the Philippine strategy. More importantly, if we read the text of the award, or even just the summary , we realize that the Tribunal did not decide that it had jurisdiction on 8 of the 15 submissions by the Philippines, including the submission on the nine-dash line. Rather it asked the Philippines to clarify the content and narrow the scope of Submission 15 (China shall desist from further unlawful claims and activities) and decided that the preliminary objections to Submissions 1, 2, 5, 8, 9, 12 and 14 do not possess an exclusively preliminary character. Consequently it postponed consideration of jurisdiction to rule on these submissions to the merits phase. This means that in the merits phase, the Tribunal could still decide that it has no jurisdiction to rule over these submissions and might therefore end up not ruling on them after all.

To understand the situation, we have to clarify the nature of preliminary objections. Settlement of international disputes by international courts is based on consent given by states parties to the dispute. A state may give its consent to have a dispute with another state submitted to an international tribunal in several ways, but when a dispute is actually submitted to a tribunal, it may nevertheless argue that it has not given its consent for that particular type of dispute. It will then challenge the jurisdiction – the power to hear and decide the case – of the tribunal by filing preliminary objections. The practice of international tribunals is to suspend the proceedings on the merits in order to rule on the preliminary objections.

There are three possible outcomes at this stage. The tribunal may decide to uphold the preliminary objections, in which case the proceedings are terminated. It may decide to reject them, in which case it will hear the merits. Finally, the Tribunal may decide that the objection to its jurisdiction does not possess an exclusively preliminary character. This third possibility arises when the questions raised by the objections and those arising on the merits are too intimately related and too closely interconnected for a court to be able to rule on the former without prejudging the latter. On the third and last day of the July 2015 hearings, the lawyers for the Philippines explicitly declared that there were no issues of jurisdiction or admissibility that had to be deferred to the merits phase.

The reason for this is understandable. As the great Italian jurist Roberto Ago  explained in 1975, joining the preliminary objections to the merits inevitably doubles the length of the proceedings, as the objections are argued twice – the first time, during the jurisdictional phase, and the second time during the merits phase. In the Nicaragua v. US case (Military and Paramilitary Activities in and against Nicaragua, 1984-91), the International Court of Justice postponed for consideration in the merits phase a US preliminary objection. During the merits phase, it upheld the preliminary objection, but found another basis for ruling on the case. In the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) case, the ICJ ruled in the jurisdiction and admissibility phase that a preliminary objection raised by Spain did not have an exclusively preliminary character (1964), only to uphold the preliminary objection six years later (1970), thus terminating the proceedings without a decision on the merits. This outcome was particularly galling for Spain, for it had been obliged to argue the preliminary objections from 1962 to 1964, and subsequently, the remaining preliminary objection, together with the merits, from 1964 to 1970.

If we now examine the Philippine submissions that in the Tribunal’s view, did not possess an exclusively preliminary character – Submissions 1, 2, 5, 8, 9, 12 and 14 – we discover that they are among the most important of the Philippine submissions. Submissions 1 and 2 ask the Tribunal to declare that China’s claim to historic rights, as embodied in the nine-dash line, are invalid. According to the Tribunal, consideration of these two submissions would depend on the nature of China’s historic rights and examination of 2006 China’s Declaration  excluding jurisdiction over historic bays or titles. Hence they would have to be examined together with the merits. Submission 5 requests the Tribunal to declare that Mischief Reef and Second Thomas Shoal are part of the Philippine EEZ and continental shelf. Mischief Reef is 126 nautical miles, and Second Thomas Shoal 104 nautical miles, from the nearest point in Palawan. Since a coastal state has an entitlement to an EEZ and a continental shelf of 200 nautical miles from its baselines, the two are in theory within the Philippine EEZ and continental shelf. However, as the Tribunal pointed out, if it found that there were a Chinese island within 200 nautical miles of either of these two features, then the feature(s) would also be in the Chinese EEZ and continental shelf. The reason for this is that an island, like any other land territory, has an entitlement to a continental shelf and an EEZ. The Philippine and Chinese EEZs and continental shelves would overlap and thus have to be delimited – but maritime delimitation is excluded by the 2006 Chinese Declaration excluding certain types of disputes from compulsory dispute settlement entailing a binding decision. For the same reason, the Tribunal would be prevented from ruling on the eighth and ninth submissions, which complain about China’s interference with Philippine oil exploration, seismic surveys and fishing in what the Philippines claims to be its continental shelf and EEZ.

In Submission 12, the Philippines argues that China has violated its duties under the 1982 Convention by occupation, construction of artificial islands, installations and structures and damage to the marine environment on Mischief Reef, which in the Philippine view is a low-tide elevation. The latter is defined by the 1982 United Nations Convention on the Law of the Sea as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide,” and does not generate entitlement to a territorial sea, EEZ or continental shelf. If the Tribunal found that Mischief Island is a rock or island and thus constitutes land territory, it would not have jurisdiction to consider whether China’s activities and appropriation were lawful, because disputes over military activities are excluded by China’s 2006 Declaration. The same reasoning would apply to Submission 14, which accuses China of aggravating and extending the dispute through its activities in and around Second Thomas Shoal (interfering with Philippine navigation, preventing the rotation and resupply of Philippine personnel and endangering their health and well-being).

If we consult the transcripts of the hearing on jurisdiction and admissibility held in July 2015, we realize that the Tribunal asked the Philippines questions on these points both before and during the hearings; moreover, it gave the Philippines the opportunity to reply to them in writing after the hearing. For example, as regards Submission 1, Judge Rúdiger Wolfrum, one of the five members of the Tribunal, asked the Philippines whether it would be first necessary to establish China’s entitlements under the 1982 Convention before it could be possible to determine that China’s claims exceeded those permitted by the Convention. Before the hearings, the Tribunal asked the Philippines with regard to submissions 5, 8 and 9, whether they presupposed a prior determination of sovereignty over any feature in dispute between the Philippines and China, which might have an entitlement to an EEZ that overlapped with the Philippine EEZ. In relation to Question 8, the Tribunal asked the Philippines about the implications, if any, of a continental shelf claim by China for the Tribunal’s jurisdiction. If China could claim a continental shelf that overlapped with that of the Philippines, then the two continental shelves would have to be delimited – but maritime delimitation is excluded by China’s 2006 Declaration. The Tribunal also asked the Philippines, in relation to Submission 12, whether China’s activities in Mischief Reef could be covered by China’s Declaration, which also excluded military activities. Finally, as regards Submission 14, the Tribunal asked whether a military activity would cease to be a military activity if it concurrently served other purposes.

The fact that the Tribunal decided to postpone consideration of its jurisdiction on these submissions to the merits phase suggests that the Philippines, which did not want any issue to be deferred, was not able to provide entirely satisfactory answers to these questions. In the merits phase, therefore, the Philippines will again have to attempt to convince the Tribunal that it has jurisdiction over these submissions. Most, if not all, of the Philippine arguments on the merits have probably been ready for some time now, since the Philippines prepared its Memorial (the first written pleadings) on the assumption that there would be only one phase (jurisdiction and merits). The question that now arises is whether part of these arguments will have to be amplified or revised in light of the Philippines’ inability to convince the Tribunal that it had jurisdiction on these issues. We can only hope that the Philippine arguments on the merits will, in this phase, finally convince the Tribunal that it has jurisdiction over submissions 1, 2, 5, 8, 9, 12 and 14. Otherwise the challenge to China’s nine-dash line and to certain Chinese activities in the South China Sea will have failed.

Comments

  1. The Abu Sayyaf has pledged loyalty to ISIS but remained as plain bandit to date. It’s terrorist activities are limited to banditry by the Aquino government with the cooperation of the Muslim mainstream in Mindanao.

    JoeAm wrote @4.2.2.2.1 in reply to Ancient Mariner:

    “Indeed, peace is a two-way street, and it seems to me the current undertaking is aimed at tearing down the historical walls that have prevented the streets from getting aligned. I’m not out to sell you anything, for sure, for any approach brings with it risks . . . plus external forces are running about stirring up problems. I wish the Government well in what I believe is a sincere effort to solve an intractable problem that few states have mastered well, integration of Muslim and non-Muslim faithful.”

    Indeed, few states have mastered well the integration of Muslim and non-Muslim faithful. In the eyes of experts, maybe the Philippines is on its way to join such states.

    Eurasia Group is the world’s largest political risk consultancy. Founded in 1998, it has offices in New York City, Washington, D.C., London, and Tokyoand employs more than 150 full-time employees. The company also employs a network of 500 experts in 90 countries in Asia, Latin America, Europe and Eurasia, and the Middle East and Africa—a profile The Economist magazine calls “an inspiration for any academic with a seemingly useless degree in political science”. (Wikipedia)

    Eurasia Group founder and president Ian Bremmer said that Asia is much more insulated from what is happening in Europe and the Middle East. He stressed that unlike in the United States and Europe, the different kind of leadership in Asia deters the advancement of extremists in the region.

    “While the terror threat remains present against any nation, Bremmer said countries in Asia, including the Philippines, are less likely to experience the same intensity of conflict posed by ISIS.

    “When you look around in the world and you ask where is this strong local leadership, you point first to Asia, you point first to of course Xi Jinping, you point to Prime Minister (Narendra) Modi and Prime Minister Abe in Japan, and you even look at President Aquino here in the Philippines,” he said.

    “They can think longer term, they won’t play populism, they won’t play nationalism and xenophobia, the way they are in Europe, and the way we see the presidential elections in the United States for 2016 are indeed playing out right now,” Bremmer said.”

    http://mobile.abs-cbnnews.com/global-filipino/world/v1/11/17/15/why-do-terrorists-target-france-eurasia-group-chief-explains/

  4. Kung Palpak si PNoy, Paul-paul si Bam!

    First round for Poe!

    SET ruled that Grace is a Natural Born Filipino Citizen, based on political decision and not based on the appreciation and interpretation of our laws!
    But, as I said before, I consider Poe as Natural Born Filipino Citizen when she was born based on logic and the mathematical improbability that she is born from Non-Filipino parents!

    Just a reminder that David’s complain about Poe being a non-Natural Born Filipino Citizen is purely political. SET which is mandated to decide on this matters is also politically biased since the composition is 6 Senators to 3 Supreme Court Justices, thus the decision is expected to be political in nature too!

    For those who are greatly disappointed that Bam Aquino (LP) voted for Poe, who is one of the rivals of Mar Roxas for the Presidency, be ready for more. This is a reminder of how the Aquino Clans plays politics! Paul Aquino like Bam’s dad, together with PNoy’s uncles and sisters, did support Noy-Bi and junked Roxas! So at this point in time, it is Noy-Bi Redux by these same treacherous characters supporting Poe and still waiting for the right time to pick their VP depending on the incoming poll results.

    For me, there is a silver lining on this decision! The electorate is slapped with the ugliness of political reality and dirty strategies from all camps.

    There will be round two where Poe will be judged if she really complied with the 10-year residency requirement! This is a case of simple arithmetic. But expect fuzzy Math being prepared by Poe’s lawyers. In fairness, lawyers know how to count: The lawyers in making their clients secure their win through “Dagdag-bawas” schemes and the lawyers who know the price of a decision or a TRO by paying-off judges for their services of handing out injustices. But one thing they excel at is counting their fees! For me, I can swallow that Poe is a NBFC for it is also based on Math that most likely she has Filipino biological parent(s) but her 10-year residency is a harder swallow!

    Now, going back to the Aquinos: I think they already milked too much the gratitude that we extended to their clan! Bam is no Ninoy! He can wear those retro-eyeglasses but he could never wear Ninoy’s charisma. Bam is the new breed of opportunistic Aquino Clan! Voting for these political dynasties is voting against our interest! These are the same people who abused our trust and even trampled on us with gusto. Hypocrites they are!

    That is why it is time to move away and junk personality politics for we will never progress! We need to do away with our old rotten system! Don’t vote for any politician who is a member of an active Political Dynasty!

    In the coming elections, don’t vote for the Marcoses, Binays, Aquinos, Estradas, Enriles, Arroyos, Villars, Rectos, and the rest of the 70% of the Philippine Congress and Local Politicians!
    I will vote for Colmenares as an alternative, but definitely not Alma Moreno and Manny Pacquiao!

    What we need are long lasting reforms: FOI and Anti-Political Dynasty Laws!

    Pnoy is Palpak on breaking his campaign promise to deliver FOI and his recent call during his 2015 SONA to pass the Anti-dynasty bill into law! Bam, is no different either compared to Poe. They are both opportunist and do not represent the new breed of progressive leaders we crave for to launch us to progress, politically and economically! Bam is no Ninoy. Bam is Paul-paul like his Dad and just a tad refine compared to his dancing Auntie Tessie!

    Voting for these entrenched political dynasties is giving them another chance to plunder our treasury once again and continue the incompetence and corruption that prevailed for almost half a century!

    I say, Fuck them!

    Parekoy
    11-17-2015

    • wow, you read my mind in advance.
      “I will vote for Colmenares as an alternative, but definitely not Alma Moreno and Manny Pacquiao!”

  5. “Matiisin tayo. Inaabuso na, tanggap pa rin. Ilang oras sa pila. Araw-araw sa traffic. Wala pa sa trabaho o eskwela, pagod ka na. Bakit ‘pag serbisyo-publiko, pahirapan? Dapat maayos,at maaasahang transportasyon para sa lahat. Wag tayong mag-iwanan. Opo, tayo mismo. Ayusin natin ang Pilipinas.”

    What’s wrong with this Grace Poe ad? Let me point you to a Facebook post that Arbet Domingo had written…

    https://www.facebook.com/notes/arbet-w-bernardo/ayusin-natin-ang-ad-mo-grace-poe/10153774033013708

    Excerpts:

    Yet we have to ask: after all those hearings, has Senator Poe produced any report, any findings, any concrete solutions at all? When all she could crow about are elevators, escalators, and bathrooms – Houston, we have a problem.

    • Thanks for sharing that Facebook post of Arbet Domingo. A factually-based and well-thought out piece.

    • A project management and consulting coach I know well once taught us that in any organization or project, three aspects should be balanced in every role:

      – responsibility
      – authority
      – work

      usually modelled as a triangle with the length of each side corresponding to one of the three aspects.

      – The problem with the Senate of the Philippines is: too much authority with little responsibility and real work.

      – A President has too much responsibility and work, while Congress and Senate can undermine his authority.

      – Only Cabinet Secretaries have the right balance of responsibility, work and authority IMHO

      the Senate is a breeding ground for irresponsible grandstanders, not future leaders.

      • oo nga, @BFD, sana dumami pa ang katulad ni arbet bernardo.
        @ibrs, indeed, the senate produces comical senators thru the years.

        • It seems to me they are only grandstanding at the expense of truth and not really for the betterment of the Metro Manilas in regards MRT 3. Why they were not castigating the MRT3 private owners for not buying new MRT coaches, but letting them just raking in profits after profits, and instead training their guns on the PNoy Administration….

          Hmmm, it seems the MRT problem went as far back to Joseph Estrada’s decision to lower the fare but not having a plan on how to improve the MRT infrastructure.

          This is the trouble with having a populist stance of the administration without a sound forward planning and risk management plan….

  6. Kung Palpak si PNoy, Paul-paul si Bam!

    First round for Poe!

    SET ruled that Grace is a Natural Born Filipino Citizen, based on political decision and not based on the appreciation and interpretation of our laws!
    But, as I said before, I consider Poe as Natural Born Filipino Citizen when she was born based on logic and the mathematical improbability that she is born from Non-Filipino parents!

    Just a reminder that David’s complain about Poe being a non-Natural Born Filipino Citizen is purely political. SET which is mandated to decide on this matters is also politically biased since the composition is 6 Senators to 3 Supreme Court Justices, thus the decision is expected to be political in nature too!

    For those who are greatly disappointed that Bam Aquino (LP) voted for Poe, who is one of the rivals of Mar Roxas for the Presidency, be ready for more. This is a reminder of how the Aquino Clans plays politics! Paul Aquino like Bam’s dad, together with PNoy’s uncles and sisters, did support Noy-Bi and junked Roxas! So at this point in time, it is Noy-Bi Redux by these same treacherous characters supporting Poe and still waiting for the right time to pick their VP depending on the incoming poll results.

    For me, there is a silver lining on this decision! The electorate is slapped with the ugliness of political reality and dirty strategies from all camps.

    There will be round two where Poe will be judged if she really complied with the 10-year residency requirement! This is a case of simple arithmetic. But expect fuzzy Math being prepared by Poe’s lawyers. In fairness, lawyers know how to count: The lawyers in making their clients secure their win through “Dagdag-bawas” schemes and the lawyers who know the price of a decision or a TRO by paying-off judges for their services of handing out injustices. But one thing they excel at is counting their fees! For me, I can swallow that Poe is a NBFC for it is also based on Math that most likely she has Filipino biological parent(s) but her 10-year residency is a harder swallow!

    Now, going back to the Aquinos: I think they already milked too much the gratitude that we extended to their clan! Bam is no Ninoy! He can wear those retro-eyeglasses but he could never wear Ninoy’s charisma. Bam is the new breed of opportunistic Aquino Clan! Voting for these political dynasties is voting against our interest! These are the same people who abused our trust and even trampled on us with gusto. Hypocrites they are!

    That is why it is time to move away and junk personality politics for we will never progress! We need to do away with our old rotten system! Don’t vote for any politician who is a member of an active Political Dynasty!
    In the coming elections, don’t vote for the Marcoses, Binays, Aquinos, Estradas, Enriles, Arroyos, Villars, Rectos, and the rest of the 70% of the Philippine Congress and Local Politicians!
    I will vote for Colmenares as an alternative, but definitely not Alma Moreno and Manny Pacquiao!

    What we need are long lasting reforms: FOI and Anti-Political Dynasty Laws!

    Pnoy is Palpak on breaking his campaign promise to deliver FOI and his recent call during his 2015 SONA to pass the Anti-dynasty bill into law! Bam, is no different either compared to Poe. They are both opportunist and do not represent the new breed of progressive leaders we crave for to launch us to progress, politically and economically! Bam is no Ninoy. Bam is Paul-paul like his Dad and just a tad refine compared to his dancing Auntie Tessie!

    Voting for these entrenched political dynasties is giving them another chance to plunder our treasury once again and continue the incompetence and corruption that prevailed for almost half a century!

    I say, Fuck them!

    Parekoy
    11-17-2015

  7. When a visitor threatens you inside your home/country and said things that are straight out LIES,

    “The Chinese government has the right and the ability to recover the islands and reefs illegally occupied by neighbouring countries,

    But we haven’t done this. We have maintained great restraint with the aim to preserve peace and stability in the South China Sea.” -Liu said

    Somebody should have asked, reminded Chinese Vice Foreign Minister Liu Zhenmin “That they have recently seized Scarborough shoal.” when he said they haven’t seized any parts in West Philippine Sea.

    I hope and pray that Raissa or Alan will be invited in APEC and be given a chance to ask Xi Jinping.

    China: We could have seized other islands in South China Sea
    Source: http://www.gmanetwork.com/news/story/544678/news/world/china-we-could-have-seized-other-islands-in-south-china-sea#sthash.fLOUOHX8.dpuf

  8. The narrative of Grace Poe is getting better. Every modern election, which s strongly media-driven, is a battle of narratives. From kennedy to Obama in US and Cory to Erap to PNoy in the Phils. People love good story and Poe’s is good. Compared tlo the story of her rivals. Roxas is good. But what is his story. Obama has good story. He won . Two times. And that is America where peoople are supposed to be thinking deep in matters of choosing their leaders. But all is not late for Roxas. But I think he shlud focus less on Daang matuwid. That is the narrative of PNoy.

    • Battle of narratives. Very well put. You are absolutely right. Grace has been very good in framing her narrative regardless of course to the relation of the narrative to truth or accuracy. Mar I hope hears your message and does better in communicating his narrative in terms that the greater majority of voters, the c and d voters, the youth group voters, can relate to. Obama has been so good in this department.

      • if mar can hire that pr guy who can really put up narratives appealing to the masa.
        it is where the battle is won.
        not anymore on the quality of the wannabe.

        • TACLESA si ROXAS how can you propell HIS appeal to the MASA in any kind of any story.? HOW? ARANETA clan is ARANETA clan hindi pweding maging ” MARKET BOY CLAN ” .

  9. Rizalito David’s camp said they can still file a petition for certiorari before the SC

    “Because of the Lerias doctrine, which position the justices took will be crucial for reversal by the SC. That’s what we should look at,” David’s lawyer Manuelito Luna said.

    He was referring to the case of Lerias vs Mercado, in which the SC warned politicians who are members of electoral tribunals to “resolve each controversies with judicial, not political integrity.”

    Luna explained: “The Lerias doctrine says the members of the (House of Representatives Electoral Tribunal) should decide as judges as mandated by the Constitution, and not as politicians.” (Rappler 11/17/15 updated 5:44 pm)

  10. Tremors and rumors going around our media outlets as no confirmation yet, that GPL won the case for DQ.

    That Bam Aquino voted in favor of GPL.
    Also Pia Cayetano.

    5 vs. 4 in favor of GPL.

    Wait….wait…wait…

      • The three supreme court judges and Nancy Binay. So much for the integrity of our Senate. Roll on the Supreme Court hearing.

        • It’s no longer a question of law but a question of numbers – similar to the impeachment trial of Renato Corona

    • As i said in comment 50

      Never mind the Poe SET decision, it only ”SET” the mind for the Supreme Court…3 SC justices ”against” Poe….

      :-)

      • It’s an ominous sign for GPL. All SC members voted against her based on the prevailing laws on the case at bar. If the case is elevated to the SC, GPL’s dream of capturing the presidency could not only be derailed, at best, but her senate seat, at worst, could be annulled as well.

    • imho, understandable iyong kina pia cayetano, et.al. pero si bam aquino,hindi ko pa rin ma gets kung bakit ginawa nya yon. taking into account na campaign manager sya ni cong. leni aside from being lp. bakit???

      • avoiding the backlash.

        if grace got disqualified = because of his vote / LP machination. grace supporters might rally to other candidate other than mar.

        if grace got disqualified by SC = not LPs doing. some votes will gravitate to mar.

        bam and LP played their cards correctly, IMHO.

        that is if SC is the final arbiter.

    • It is really unthinkable that Bam Aquino voted in favor og GPL. But what is the Lerias doctrine that can make he SC overturn this political esion?

      • from inquirer bam aquino “uses conscience” in voting mgl vs disqualification case.
        is conscience based justification can satisfy our constitution in probing legal issues?

        • You could also assume that it can be a political lifeline for Pnoy in case she wins the Presidency. A political shield for the incoming storm after he steps down.

    • The five senators merely voted on what they and I believe. That GPL is NBFC because her biological parents are both Filipino citizens.

      I am sure that the case would reach the SC. And I am more interested to know what the SC would say on the citizenship of a foundling – GPL or no GPL.

      • Is your belief based on your understanding of the constitution or on compassion?
        It would seem that the five senators (a real motley bunch of media stars etc.) have a better understanding of the law than the Supreme Court judges?

        • The constitution says that one who has a Filipino mother or father is NBFC. And I personally believe that GPL is NOT a foundling, and is therefore lying.

          The senators acted, in the words of the SC in the Lerias case, whimsically, arbitrarily and with VERY grave abuse of discretion. In Lerias case the SC said:

          “Politicians who are members of electoral tribunals, must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity.

          “although the composition of the Tribunal is predominantly legislative, the function of this body is purely judicial, to be discharged on the basis solely of legal considerations, without regard to political, personal and other irrelevant persuasions.”

          http://www.lawphil.net/judjuris/juri1991/oct1991/gr_97105_1991.html

        • Thank you for the explanation and the link. I tend to agree with your opinion that GPL is lying and believe it is in order to protect one or both of her parents. The DNA tests were a farce meant to attribute an air of respectability to her claims. She should be ordered to prove her parentage by DNA or withdraw her claims. Only in the Philippines.

        • Please can somebody post the above wuote
          “…..to be discharged on the basis solely of legsl considerations ….” On the page of Bam Awuino?

        • I respect Sen. Bam Aquino’s voting for GPL ‘according to his conscience.’

          ‘Conscience’ on what? Legal? Political? Personal? Or ‘other irrelevant persuasions? – acc to the Lerias case (by the SC).

          SC says in the Lerias case – in the electoral tribunals, members must think – THINK and ACT like JUDGES with JUDICIAL integrity.

          Sen. Cynthia Villa at one time said in the Media ‘She’ll vote acc to the popular will.’ Did she say this? How about Sen. Pia Cayetano did she vote acc to popular will also? What about the other 5 SET members, as JUDGES, did they vote?

          It looks like some SET members believes that judges DO NOT VOTE acc to conscience. How did the 3 Justices of SET made their votes? Acc to ‘as judicial’ judges or not?

          If one votes acc to conscience and disregards the law based on ‘the FACTS’ of the case and applying the facts not according to the law but according to CONSCIENCE, is one being a judge or one is being POLITICAL?

          Is there such a thing as ‘Conscience Law’? Or maybe MORAL LAW? Is the provision of the qualifications of a PRESIDENT based on moral or conscience law further based on the POPULAR WILL? And not acc to what is written in the Constitution – also approved by POPULAR WILL of the people?

          How many ‘popular wills’ are there on the ‘qualifications’ for PRESIDENT? One is in the Constitution and another in the ‘RUNNING’ for president?

          Why express clearly the ‘qualifications’ for electing a President in the Constitution only to be disregarded because it runs COUNTER or against to the ‘another popular will’?

          Disregard then the Constitution and FOLLOW CONSCIENCE. If 40 millions consciences will be followed that disregards express provisions of the Constitution, what is a written body such as a constitution for?

          Conscience. A risky and dangerous way of deciding important matters when it disregards the law or the Constitution. Adolf Hitlar succeeded in bringing destruction to Germany because the German people, in their CONSCIENCE, approved Hitler and his actions. They disregarded the German Constitution totally.

          A conscience is a very dangerous thing when the other rules or norms such as statutes or laws are not considered.

          A killer uses his or her conscience. A lawbreaker uses his/her conscience. Many faults or crimes are committed in the name of CONSCIENCE.

          Where and how does a law stand vis-a-vis with conscience?

        • “What we thought about was what would be the implication for the thousands of abandoned children in the country, and this was the basis of some of us in the SET,” he said. . . . by Sen. Bam Aquino.

          . . . as part of his ‘CONSCIENCE’ vote!

          ‘what we thought’ . . . is he realizing a mistake with this words?

          It was not about the ‘qualification or DQ’ of GPL but about abandoned children in the country! Phew! Sen. Bam. . . ‘di ka pala OBJECTIVE as a judge in the Senate.

          If he (Bam) reads some pointers in the Lerias case (SC). . . what he did was ‘irrelevant’. . . SC said about this ‘rrelevant’ matters in judging as member of the tribunal (like HRET).

          hehe. . . nadala siya ni Poe.

        • It won’t matter, Chit. I’ve tweeted him about his decision, but deadma lang sya. Sabagay sino ba naman tayong mamamayan lang ng Pilipinas, di ba.

        • Ano ba talaga ang silbi ng mga SC justices sa SET?

          The Electoral Tribunal was originally created in the 1935 constitution to do away with partisan political decisions in the protest and disqualification of senators. In the constitutional convention deliberation on the creation of the Electoral Tribunal delegate Francisco summarized the arguments for its creation as follows:

          ” In the last analysis, what is really applied in the determination of electoral cases brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it is nothing more than the law and the doctrine of the Supreme Court. If that is the case, there will be greater skill in the application of the laws and in the application of doctrines to electoral matters having as we shall have three justices who will act impartially in these electoral questions.

          `I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of justice to the parties, for the fact that the laws will not be applied rightfully or incorrectly as well as for the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which we shall have, I repeat, is the intervention of the three justices.”

          During the deliberations of the constitutional convention, Delegates Conejero and Roxas clarified that:

          “the main objective of the framers of our Constitution in providing for the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each House of Congress, was to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a) the party having the largest number of votes, and the party having the second largest number of votes, in the National Assembly or in each House of Congress, were given the same number of representatives in the Electoral Commission or Tribunal, so that they may realize that partisan considerations could not control the adjudication of said cases, and thus be induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same number of representatives as each one of said political parties, “so that the influence of the former may be decisive and endow said Commission or Tribunal with judicial temper.”

          As shown by senate records then Senator Sabido said in Tañada vs. Cuenco:

          “.. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance between the two parties and make the members of the Supreme Court the controlling power so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation.” (Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.).”

          Senator Sumulong also opined in the same case:

          “so that in, case that hope that the three from the majority and the three from the minority who will act as Judges should result in disappointment, in case they do not act as judges but they go there and vote along party liner, still there is the guarantee that they will offset each other and the result will be that the deciding vote will reside in the hands of the three Justices who have no partisan motives to favor either the protestees or the protestants. In other words, the whole idea is to prevent the majority from controlling and dictating the decisions of the Tribunal and to make sure that the decisive vote ..will be wielded by the Justices who, by virtue of their judicial offices, will have no partisan motives to serve, either protestants, or protestees. That is my understanding of the intention of the framers of the Constitution when they decided to create the Electoral Tribunal.”

          http://www.lawphil.net/judjuris/juri1957/feb1957/gr_l-10520_1957.html

        • . . . but the COMPOSITION was not acc to rendering justice acc to SC jurisprudence.

          It should have been 5 justices, and 4 senators (or 4 representatives) if that was the intent. Na baliktad ang ginawa ng Convention/delegates.

          So, at the SET, natalo yun 3 justices sa 6 ng senadores.

          Putik sa ilalim ng tulay nga!

        • The constitutional delegates did not foresee that the majority and minority parties could be in cahoots with one another. The senate is now a family corporation. Outsiders are not allowed to interfere.

          Indeed, I wrote several times before that the republic must have a unicameral feature and get rid of the senate. It is totally unacceptable that the senate in the past and present consists of mother and son, siblings, father and son-in-law, and the likes of Tanda, pogi, sexy, Brenda, Guerrero, amgirl, ojt, dictator’s son, putchists, etc.

        • Malaki ang pagkakataong alam ni GPL ang tunay niyang mga magulang, maging si Susan Roces, lamang ay gumawa sila ng kuwento na kailangan nilang panindigan kung hindi ay lalabas na sinungaling sila. At batay sa link na ibinigay ni @Rene-Ipil na may kinalaman sa kaso ni Lerias hindi naging patas na mahistrado ang mga senador sa SET. Walang ebidensya na nagpapatunay na isa sa magulang ni GPL ay Pilipino. Hindi maaari na batay lamang sa haka-haka (presumed). Dapat ay “beyond reasonable doubt” ika nga.
          Ang usapin bang ito ay daglian o otomatikong didinggin sa Korte Suprema o may isang taong kailangang magdala doon?
          Sabagay sa mga salita at gawa ni GPL kitang-kita ang pagkabihasa niya na maglubid ng kasinungalingan. Katulad ng pagpapalabas niya na lalabas na mga “stateless” ang mga foundling kapag siya ay nadiskwalipay gayong wala naman itong kinalaman doon. Sa kaso niya baka siya at siya lamang ang maging stateless dahil tumalikod siya sa pagiging Pilipino. Yong ibang mga foundling mananatiling mga Pilipino bilang pakikisabay o sunod sa International Law NG Pilipinas pero hindi mga NBFC dahil may batas din tayong sarili tungkol sa kung sino ang itinuturing na NBFC at Ito ay iginagalang din ng International Law at ang ating sariling batas ang siyang mangingibabaw pagdating sa kung sino ang itinuturing na NBFC.

        • @C.Rosales,
          sang-ayon ako: “Malaki ang pagkakataong alam ni GPL ang tunay niyang mga magulang, maging si Susan Roces, lamang ay gumawa sila ng kuwento na kailangan nilang panindigan kung hindi ay lalabas na sinungaling sila.”
          ito ang aking matapat na hinuha.
          alam ni gpl at susan ang magulang niya.
          maaaring nai-relay na ni gpl sa 5 senadorks ang lihim na ito.
          kaya’t sigurado silang hindi sila sablay sa napiling boto.

        • Will the COMELEC Commissioners follow voting acc to CONSCIENCE instead of being OBJECTIVE?

          voting acc to ‘conscience’ is SUBJECTIVE. . .

    • The narrative of Grace Poe is getting better. Every modern election, which s strongly media-driven, is a battle of narratives. From kennedy to Obama in US and Cory to Erap to PNoy in the Phils. People love good story and Poe’s is good. Compared tlo the story of her rivals. Roxas is good. But what is his story. Obama has good story. He won . Two times. And that is America where peoople are supposed to be thinking deep in matters of choosing their leaders. But all is not late for Roxas. But I think he shlud focus less on Daang matuwid. That is the narrative of PNoy.

  11. Never mind the Poe SET decision, it only ”SET” the mind for the Supreme Court…3 SC justices ”against” Poe….

    :-)

  12. ang smooth talaga nitong si grace llamanzares. pinag gigitian na ang kanyang ipinagtatanggol ay ang mga foundling katulad niya- magiging stateless daw ang mga ito pag siya ay dinesqualify ng set. ang dulas talaga. ang mga foundling sa pagkaintindi ko ay hindi stateless, sila ay naturalized citizen, at si gpl ay hindi ang pagka foundling ang inaatake kundi ang pagkakandidato para maging pangulo kahit na hindi pa man nya mapatunayan na siya ay natural born. pareho sila ni chiz- ang husay magsalita at magpaikot-ikot ng katotohanan..

    • I agree with you, magaling magpaikot ng katotohanan si MGL. Hindi naman magiging stateless ang foundling according to Justice Carpio. Sila ay naturalized Filipino citizen kung dito sa ating bansa sila natagpuan o napulot. Si MGL lang ang ipinagdidiinang magiging stateless ang foundling, nagaral naman siya bakit hindi siya makaintindi. O ginagamit lang niya ang pagsisinungaling para lang maabot niya ang kanyang ambisyon. Kino-corrupt niya ang ‘mind’ ng mga tao na maniwala sa sinasabi niya. Hay typical corrupt and ambitious politician.

      • wala namang sinasabi ang batas na walang citizenship ang mga foundling.
        ginagarantiyahan nga ng batas na kung saan ito nadampot ay iyon ang kanyang susugang citizenship.
        siguro ang itatawag ko naman sa kanya ay twister.
        pilipit ang katwiran.
        maglulubid.
        para maigiit ang baluktot na rason at makakuha pa ng simpatya.
        at napakahusay niya.
        in fairness.
        kung pwedeng tawaging “pathological talent” iyan.

  13. ON THE HORNS OF A DILEMMA – WHAT WOULD YOU DO?

    This morning my wife and I stopped at a very, very crowded McDonalds to partake of my favorite sausage McMuffin.
    We ate our breakfast and were about to leave when a very obvious Muslim male (skull cap and full bushy beard) entered and pushed through the waiting crowd. He then stood beside our table and perused the crowded scene. He took his cell phone out and started dialing. He then started walking quickly out of the restaurant talking on his cell phone as he left.
    What did we do. Having gathered our thoughts we left the restaurant and tried to find the individual to see what he might be doing. He had disappeared.
    What did we do next? We went home!
    In the light of the constant reminders in the media to be vigilant and report anything suspicious, did we do enough? I feel that we did not but that we allowed ourselves to succumb to a feeling of embarrassment rather than one of responsibility.
    How would you have handled the situation?
    The most likely scenario is that he intended to buy breakfast but was put off by the very long lines of customers ahead of him and was telling the rest of his family not to bother coming over.
    A very hard call which makes me sad. We should not be in this situation and neither should the peace loving Muslims around the world. But, is there any other option?

    • I want to share a picture but I felt considerate of Raissa’s space,,,
      Scene:
      ..two Turbaned Sheikh passengers on the plane making thumbs up with each other,
      ..a lady passenger looking at them deathly white in fear almost running away from her seat, hahhaha
      It was hilarious if you get the joke.

      They looked like Muslims but Sheikhs are very different with their faith, but sometimes in our own ignorance and stereotyping we are living in fear, we become paranoid because of the events. This is not the way to live, living in fear is defeating our joy.
      In-joy is now killjoy.
      If there was real danger, ” is there any other option?’ Inside the plane, If you don’t fight , you die, if you fight there is a chance of either dying or living. We either fear death or fear them, which is preferable when faced with real situation?
      At present, some countries and US cities are supposed to take in as much as 25-30K Syrian refugees, what’s happening now is, everyone is refusing by doing petitions and fighting with their own govt and representatives. Some are getting ready by arming themselves, it is a sad world, remember to ALWAYS give your families a hug everyday, they are our loyal supporters for better or for worse. TC.

      (link to ff.) if you’re interested.

      In -joy

      • Backlash on Syrian refugees:

        1. US presidential candidate Ben Carson asks Congress to block Syrian refugees (CNN today)

        2. More than half of US governors say Syrian refugees not welcome (CNN today)

        3. Canada falling short on pledge to resettle Syrian refugees (OTTAWA CITIZEN)

        4. ISIS video warns of DC attack (CNN today)

        5. Weapons stolen from Army center in Worcester, Massachusetts (CNN today)

        6. UK leader backs Australian PM’s policy of returning ALL migrants (Mail Online)

        7. PNoy: PH open to Syrian refugees, but… (ABC-CBN 9/8/15)

        • Syrians are enjoying their independent wealth from their vast oil deposits which the rest of the world is lusting for. Do you think all these wars and violence are for you, and me, for us? No,never, not ever
          Most of the refugees are pawns for the vested interest of the powerful people.

          It’s all the about the base, and the base ( of oil and rich mineral deposits), big trouble :)

          Web:
          “Wars are fought for profit, be it gold, diamonds, oil or gas.
          Its all about money.”

          And Mindanao is ripe for the picking, has lots of it. Time for expansion so the big players say. While these opportunists become richer, the poor becomes poorer and homeless taken away from their habitat. Be attentive

          Greed is the bottom line, and these interested parties are unquenchable.

        • I got no link but this is from the FB of my American friend…
          Regarding donations of other rich non -Arab countries as support for their internal and other refugee assistance given the fact that they are very rich in their own oil/gas and mineral incomes. Citizens are filthy rich.

          “USA has given 4 billion in aid, Saudi Arabia 600 million, UAE & Qatar under 500 mil. Saudi Arabia has only taken 200,000 refugees. Qatar has taken 42. Rich Arab nations are not doing enough for their brothers and sister. Average person in Qatar makes $137,000 a year; UAE $66,00 a year; Kuwait $70,000; Saudi Arabia $52,000.”

          While I abhor Tanim -bala scam, I understand money is the ultimate reason,but why victimize our own kababayans who are also hand to mouth in real life financial life status/ situations. Think again.

      • I agree Leona, that’s the smartest move one should do- STOP, LOOK, LISTEN before running. I suddenly remembered my experience during the 1989 Sfo. earthquake when my wife and I were caught driving on the Bay Bridge to get home from work. I drove as fast as I can, 90mi/hr maybe, because our two kids were with my in-laws living across the bridge. We came to a full stop because a part of the upper deck collapsed and the people left their cars running back and shouting, ” Get out of your cars, the bridge is collapsing!”. My wife opened the door of our car but I shouted, “No, close it. If we are going to die, we will die here inside but not from the stampede!”.
        That was also the time I realized the importance of cell phones so I bought one after that no matter how expensive because our relatives thought that we were one of those casualties of that quake because we came home so late.

  15. A 22-year-old survivor of the Bataclan Massacre by the ISIS, and also words of strength to all of us….

    https://www.washingtonpost.com/news/worldviews/wp/2015/11/15/22-year-old-offers-most-vivid-account-yet-of-surviving-bataclan-massacre/?tid=sm_tw

    “As i lay down in the blood of strangers and waiting for my bullet to end my mere 22 years, I envisioned every face that I have ever loved and whispered I love you, over and over again. reflecting on the highlights of my life. Wishing that those i love knew just how much, wishing that they knew that no matter what happened to me, to keep [believing] in the good in people. to not let those ISIS men win.”