Category Archives: asylum law

Aquino wins Round One over Arroyo

By Romel Regalado Bagares

In the end, it was still the court – a regional trial court housed in a rundown, poorly-constructed government building in Pasay city, to be exact – that saved the day for the Executive in its running tussle with the Supreme Court over an ex-President named Mrs. Gloria Macapagal-Arroyo.

At 4: 30 pm yesterday, Judge Jesus Mupas of the Pasay City Regional Trial Court Branch 112 issued a warrant of arrest against her and several others for allegedly rigging the 2007 senatorial elections in favor of administration candidates.

Two hours later, it was served by a team of policemen led by Senior Superintendent Joel Coronel on her 16th floor suite at the St. Luke’s Medical Center, by all indications now the favored hospital of the rich, famous and powerful in the Philippines.

And with the judge’s signature on the warrant of arrest, a constitutional crisis was apparently averted.

It also somehow muffled criticisms the Aquino administration had moved so little and too late to prosecute Mrs. Macapagal-Arroyo, 64.

Indeed, the Executive was willing to take it to the edge of constitutional brinkmanship.

In an earlier post, we noted with dismay the defiant denial by Justice Secretary Leila De Lima of the legal worth of a temporary restraining order (TRO) issued by the High Court against a watchlist order she slapped on Mrs. Macapagal-Arroyo, which prevented the latter from leaving the country.

The high drama of Tuesday night at the Ninoy Aquino International Airport – which everyone now knows to be one of the world’s most hated, –showed she was willing to do anything, including risking a constitutional crisis, just to stop the woman said to be one of the most hated Presidents the Philippines has ever had, on her tracks.

Of course, if Justice Leila De Lima didn’t do something , Mrs. Gloria Macapagal-Arroyo , with the TRO issued by the Supreme Court in her favor in hand,  would have flown the coop.  As it turns out later, her defiance finds some strong factual and legal  support in the dissenting opinion of Justice Maria Lourdes Sereno on the issuance of the TRO.

Friday morning came, and the Commission on Elections, after voting 5-2, filed charges of electoral sabotage against Mrs. Gloria Macapagal-Arroyo with the Pasay City Regional Trial Court,

Just in the nick of time it came, as later in the day, the Supreme Court heard a Motion for Reconsideration  filed by the DOJ asking the High Court to reconsider its issuance of the TRO on the justice department order which served as the basis for placing the former president in a watchlist and prevented her from flying out of the Philippines.

The High Court threw out the DOJ’s motion. But by the time it did so, the charge had already been filed against Mrs. Arroyo and an arrest warrant issued.

The TRO only covered the question of the constitutionality of the DOJ’s issuance of a watchlist order against Mrs. Macapagal-Arroyo. Unfortunately for the former President and her lawyers, it could not be applied to the new case – for electoral sabotage, a non-bailable one –  and for which, moreover, a warrant of arrest was also issued.

This, the High Court’s spokesman Jose Midas Marquez, himself acknowledged at a press conference later in the day.

Moreover, the question of whether it was an act of desperation or a brilliant political move executed at crunch time has been eclipsed by new revelations about the High Court’s deliberations on the TRO.

You see, at his press conference,  Marquez said the TRO stays.  He also claimed the voting remained at 8-5.

A news report quoting a highly reliable source within the Supreme Court said otherwise. As Verafiles reported:

Contrary to the announcement of Supreme Court Spokesman Midas Marquez that the High Court voted 8-5 reiterating the temporary restraining order on the Watch List Order of Justice Secretary Leila de Lima issued on former President Gloria Arroyo and her husband, a highly reliable source said the tribunal,  voting 7-6, actually declared its Nov. 15 TRO inoperative following the failure of the Arroyo camp to comply with all the conditions set by the court.

The seven who voted that the TRO is inoperative were  Senior Justice Antonio Carpio, Associate Justices Maria Lourdes Sereno, Bienvenido Reyes, Estela Perlas-Bernabe, Jose Mendoza, Martin Villarama and Roberto Abad.

The six who stood firm on the TRO were Chief Justice Renato Corona, Presbitero Velasco Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin and Jose Perez.

The source said the Arroyo couple did not comply with the second condition requiring that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

The two other conditions were a bond of P2 million each and a requirement that they report to Philippine consulates in the countries they will visit. The legal counsels of the Arroyos also have to coordinate their travels.

The  SC also directed Justice Secretary Leila de Lima to show cause within 10 days why she should not be held in contempt of court  for refusal to comply with the TRO issued by the Supreme Court and for disrespect towards the SC.

The High Court also  rejected the Arroyo camp’s motion to schedule earlier the oral arguments on the Arroyos’ petition to lift the watchlist order and declare as illegal Department of Justice Circular No. 41 paving the way for scheduled oral arguments  on Tuesday. ( Click here for the full text)

A dissenting opinion of Justice Maria Lourdes Sereno on the denial of the Motion for Reconsideration, widely circulated on social networking sites  later confirmed Verafiles’ report.  Justice Sereno, in the same opinion, scolded  Marquez for interpreting the opinions of the justices for them.

On late night television, Marquez  would correct himself and say that indeed, the latest round of voting  has changed the make up of the Supreme Court on the issue. It is now at 7-6,  one more justice joining the dissenters.

But he omitted what  Justice Sereno noted in her dissent – that the TRO is  suspended because of the failure of  Arroyo’s lawyers  to comply with the Supreme Court’s requirement that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

All told, Friday was the unraveling  of the Arroyo camp’s immediate travel plans. When news of the Pasay court’s decision to issue  a warrant of arrest broke out,  her camp announced they had canceled all airline reservations for the day.

It was clear they had been outpointed in the first round.

Saturday afternoon, Mrs.  Macapagal-Arroyo underwent the inevitable  police procedural in the comforts of her suite at St. Luke’s Medical Center:   police took finger prints and mug shots, for the return to the court of the served arrest warrant.

It seems police honored her camp’s request not to release to media her mug shots  – at least for now.

Surely, the disappointment of Tuesday night was nothing compared to the humiliation of Friday night. Within two hours of the issuance of the warrant of arrest, she became the second ex-President of the Philippines to have been indicted, charged in court and arrested for a criminal offense.

Preparing for Round Two

Her camp is obviously preparing for the second round, including the  oral arguments on their first petition set for Tuesday next week.

And they may find some ammunition in a new report from the on-line magazine Move.ph  that the Comelec disregarded its own rules when it voted to charge her in court without allowing her an opportunity to contest the decision in a motion for reconsideration. (There’s also the claim that it was irregular of the judge to issue a warrant of arrest when all that the government was asking for was a Hold Departure Order. Now any student of criminal procedure knows the judge on his own, may issue a warrant of arrest on his own finding of probable cause).

Already her legal advisers have indicated they’re questioning before the Supreme  Court the filing of the electoral sabotage charge and the issuance of the warrant of arrest against her.

Legal pundits are wont to say there had been instances in the past when the Supreme Court upheld  the Comelec’s decision to set aside technical rules to get to the bottom of an election case.

But the big question is whether this particular Supreme Court, headed by  a chief justice once assailed by President Aquino for being a “midnight appointee” of  Mrs. Macapagal-Arroyo herself, will give the Comelec the benefit of the doubt.

I seriously doubt it.

But then again, Friday afternoon’s 7-6 defection  at the Supreme Court wasn’t expected either.

What’s for sure — at least for President Aquino —  is that  it only just began.

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Giving GMA a taste of her own medicine?

Not so fast....PDI picture of GMA at the NAIA I

By Romel Regalado Bagares

Much as we want Mrs. Gloria Macapagal-Arroyo to answer for the crimes she committed while she was in power,   we do the very idea of the Rule of Law great harm by shirking from its high demands in our zeal to bring her to the proverbial bar of justice.

The Supreme Court has spoken, allowing her to travel abroad purportedly to seek medical treatment for her rare bone ailment,  despite our wishes to the contrary

If we must,  there are ways of holding accountable the honorable justices of the Supreme Court who gave her free rein; but  defying their collective decision and forcing a constitutional crisis is not one of them.

If, during her hold on power, Mrs. Macapagal-Arroyo  distinguished herself by the cavalier way in which she dispensed with  even the smallest of judicial niceties to suit her crooked ends,  we must not do further damage to our judicial institutions by  giving her a taste of her own medicine.

President Beningno Aquino III rose to power on a high public expectation that he will hold Mrs. Macapagal-Arroyo accountable for her administration’s misdeeds.

That until now, his Department of Justice has not filed a single case against her in court cannot be blamed on the accused;   It certainly defies any justifiable explanation why our prosecutors had not acted sooner.

The only possible explanation is the seeming lack of focus of this administration’s officials to do what should be done.

But what it also shows is the Aquino administration’s lack of imagination.

It  knew from the very beginning that Mrs.  Macapagal-Arroyo had  packed the Supreme Court with her appointees.

At the very least, it could already have anticipated exactly the kind of decision the High Court’s majority handed down earlier today and accordingly taken steps to deny the good justices the opportunity given to them to vote the way they voted today.

But instead it took its sweet while, issuing press releases about the urgent need to prosecute Mrs. Macapagal-Arroyo without actually prosecuting her. As its prosecutors have now painfully learned, press releases do not a case make.

Too,  when it had strong public support, it waffled in its  position that the midnight appointment by Mrs.  Macapagal-Arroyo of Renato Corona as chief justice of the Supreme Court was unconstitutional. It could have forced the issue by calling for an impeachment of Corona and the other justices who closed ranks behind their colleague Mariano Del Castillo in the latter’s wanton plagiarism in the Comfort Women case.

That would have been the constitutional way of resisting the Corona Court’s unconstitutionality. Alas, even that opportunity, the Aquino administration failed to seize.

What a year-and-a-half of lost opportunities for the Aquino presidency.

And now it had to resort to highly doubtful legal sleight-of-hand to keep Mrs. Macapagal-Arroyo from leaving the Philippines.  Irony of ironies, in order to uphold the rule of law, it has become necessary to trample on it.

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We will pursue her wherever she goes – Roque

By Romel Regalado Bagares

The Supreme Court, voting 8-5, has allowed the Arroyos to travel abroad, purportedly to seek medical treatment for Mrs. Gloria Macapagal-Arroyo’s bone ailment.  According to news reports, President Aquino’s three appointees – Associate Justices Ma. Lourdes Sereno, Bienvenido Reyes and Estelita Perlas-Bernabe – voted against granting Arroyo’s petition and were joined by  Senior Associate Justice Antonio Carpio and Jose Mendoza.

Prof. H. Harry  L. Roque, Jr. – convenor of the Concerned Citizens’ Movement and chair of the Center for International Law – issues a statement below in reaction to the High Court’s decision:


Lawyer Harry Roque said yesterday he will pursue and hold accountable for her crimes Mrs. Gloria Macapagal-Arroyo wherever she goes, following the Supreme Court’s decision to allow the former President to travel abroad purportedly to seek medical help.

“This is distressful to the nation,” said Roque in reaction to the Supreme Court’s decision. “But the Concerned Citizens’ Movement (CCM) will not sit idly by and do nothing.” The citizens’ group s exploring with the Center for International Law the possibility of filing an international claim against Mrs. Gloria Macapagal-Arroyo.

The lawyer has close ties with both organizations, which had been actively campaigning to hold the former President accountable for human rights violations, electoral fraud, corruption and plunder.

“GMA was able to restrain a rule made by her own alter ego,” said Roque, adding that her promise to return has no weight to the Filipino people, who have not forgotten how she once promised not to seek re-election. (30)

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GMA’s still in Manila, so she can’t be an asylum seeker just yet

By Romel Regalado Bagares

So the Dominican Republic has denied that  Mrs. Gloria Macapagal-Arroyo is seeking asylum in the Carribean country. 

Of course, she can’t file an asylum claim while she is here, unless some special arrangement has been made between her and the government of Mr. Leonel Fernandez , which has tendered her his country’s highest honor during a visit by the former president of the Philippines in May this year.

As we said in an earlier post,  by definition, an asylum-seeker is someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” It may also apply to a person who “not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The international news agency AP quotes Dominican Republic Foreign Minister  Carlos Morales Troncoso as saying that  they have not received an application for asylum from Arroyo.

That could well be true, because, under the international law on asylum, where Mrs. Macapagal-Arroyo is right now, she can’t be an asylum seeker;  she can only be someone facing criminal prosecution in her country for electoral fraud, plunder, graft and corruption and human rights violations.

In other words, she has to be physically out of the country to qualify as an asylum-seeker.

So, after all,  there is some wisdom in issuing a hold departure order against her.

But she must be really special to the government of Mr.  Fernandez because, according to Move.ph, it sent its  ambassador based in India — Frank Hans Castellanos —  to Manila in October this year to meet with her for some unspecified purpose.

If  Mrs. Macapagal-Arroyo does a Ramona –as Raul Pangalangan would put it — and heads for the Dominican Republic to seek asylum there, all that a court there has to do is to dribble the ball.

Remember that under refugee law, a receiving state has the obligation to hear a request for asylum. She can invoke the principle of non-refoulement and a friendly asylum court in a friendly state can simply stay her deportation on the ground that there is a real possibility that if sent back,  she will be persecuted or subjected to bodily harm.

Under the circumstances, it is not unreasonable to suppose that it  would not be beneath a government whose President  had accorded her its highest honor and even allegedly sent its ambassador based in India to Manila to personally attend to her asylum-shopping plans ,  to assign her a nice villa with a sweeping view of the ocean while her petition is being heard.

Of course, there is always the option for her well-placed friends in the Dominican Republic to speed things up for her benefit.

Indeed, the rich and powerful are not like you and me: they can shop for asylum in states willing to grant it for the right price.

We can only wish now that the Department of Justice moved sooner to bring her to the bars of justice. And we hope it still isn’t too late for that.

 

Illustration credit: PDI editorial cartoon for 11.11.11

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Why GMA is not entitled to asylum

By Romel Regalado Bagares

I got a call early in the morning today from radio station DZAS for comment on a news item that Mrs. Gloria Macapagal-Arroyo is seeking asylum or has already been granted asylum in the Dominican Republic. Apparently, Mrs.  Macapagal-Arroyo visited the Carribean country last May. The country’s President  Leonel Fernandez  awarded her with the country’s highest honor,  ” but the reasons behind her visit were never disclosed,” according to a Dominican Republic newspaper.

Reports say that Mr. Fernandez had already given Mrs. Macapagal-Arroyo and other members of her family visas but according to the Department of Justice, this information is still being verified with Dominican authorities through the Philippine Department of Foreign Affairs.

If this is at all true, it will certainly be a key argument for Philippine authorities why the Supreme Court should deny her petition filed earlier questioning the DOJ’s decision to place her on a watchlist. Her camp had been circulating pictures of an ailing Mrs. Gloria Macapagal-Arroyo as state prosecutors made belated moves to prosecute her for electoral fraud in the 2007 elections — a non-bailable offense — among other charges. This makes her a very big flight risk.

Of course, she’s not being original here.

She’s obviously taken her cue from one of her old lieutenants, Joc-Joc Bolante, her man at the Department of Agriculture when she was her power, who implemented what is now known as the P728 million Fertilizer Scam, where money intended for farmers were allegedly diverted into election purposes. When the Philippine Senate launched an investigation on the scam, Mr. Bolante fled to the United States and asked for asylum there, claiming he’s being persecuted in the Philippines for his political beliefs.  We — Dean Raul Pangalangan, Dean Merlin Magallona, Prof. Harry Roque and myself —  subsequently filed an amicus brief with the US court that heard his petition and the court took it “on advisement.” When the US court  finally came out with a ruling, the immigration court cited the same grounds that, we said in our amicus brief, showed just how preposterous Mr. Bolante’s claim of political persecution was.

If Mrs. Macapagal-Arroyo were to seek asylum in the US, we have no doubt that she would be denied (although we’re sure she wouldn’t dare do that, for quite another reason, and it is called the Alien Tort Claims Act); but the Dominican Republic is quite another matter. Certainly, we can’t be too sure with a country that awarded with its highest honor someone like Mrs.  Macapagal-Arroyo who is facing a slew of plunder, corruption, human rights and electoral fraud charges in her own country.

In any case, the international law on asylum is well-defined and under its terms, Mrs.  Macapagal-Arroyo does not qualify.

The criteria for who may seek asylum are found in the 1951 Refugee Convention and its 1967 Protocol.  Under Article 1(A)2 of the Convention, the term “refugee” shall apply to any person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Now historically,  the Refugee Convention was drafted  to respond to the huge European mess that came in the wake of World War II, where hundreds of thousands, if not millions, became refugees or were rendered stateless. States later on drafted the 1967 Protocol to expand the scope of its protection,  removing its time and geographical limits. A key principle of asylum law is that of the French term non-refoulement. This principle, according to Art. 33 of the 1951 Refugee Convention, pertains to the duty of a receiving state not to return a refugee to a country of territory where the asylum-seeker  would be at risk of persecution:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

This principle is taken as part of customary international law and binding on all states. It is also restated in major international human rights instruments, as in the case of the 1984 Convention against Torture, which  proscribes the extradition of an asylum-seeker to a country where s/he risks being tortured.

Properly appreciated, asylum law affords people who are being persecuted in their countries of origin a good measure of protection against abuse.

But to qualify as a refugee, a person must meet the following  basic characteristics:

  • S/he must be  outside their country of origin or outside the country of former habitual residence;
  • S/he must  be  unable or unwilling to avail themselves of the protection of that country because of a well-founded fear of being persecuted; and
  • The feared persecution is based on at least one of five stated grounds: race, religion, nationality, membership of a particular social group, or political opinion.

In US jurisprudence, the  US Attorney General may not remove an alien if the alien is able to establish a clear probability of persecution in the country to which he would be returned.”The standard of proof for restriction on removal is more demanding than the well-founded fear standard applicable to an asylum claim. Thus, when an applicant fails to establish the objective component of a well-founded fear of persecution, he necessarily fails to establish entitlement to restriction on removal.” [Wiransane, 2004 U.S. App. LEXIS 8259 at *6 (internal quotation marks omitted)]

In the case of Mrs.  Gloria Macapagal-Arroyo, it would be preposterous to say that she is under persecution because of any of the five grounds stated in the 1951 Refugee Convention.

What she fears is that she would eventually be prosecuted criminally for the crimes she committed or caused to be committed when she was in power.

Mrs.  Macapagal-Arroyo is  NOT BEING PERSECUTED  because of her race, religion, nationality, membership in a particular social group, or political opinion. But certainly she is BEING PROSECUTED for plunder, corruption, human rights violations and electoral fraud. That is a world of a difference there. And that is why she is not entitled to asylum.

*PHOTO CREDIT: photograb from Ms. Ellen Tordesillas’s blog. She says the photo is by Belna Cabasan and was taken  from Stella Arnaldo’s wall

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