Republic Act. 75

REPUBLIC ACT NO. 75

AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES

Section 1. Any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines, or any person, or in such pretended character shall demand or obtain, or attempt to obtain from person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing, of value, shall be fined not more than five thousand pesos, or shall be imprisoned for not more than five years, or both, in addition to the penalties that may be imposed under the Revised Penal Code.

Sec. 2. Any person, other than a diplomatic or consular officer or attaché, who shall act in the Republic of the Philippines as an agent of a foreign government without prior notification to, and registration with, the Secretary of Foreign Affairs shall be fined not more than five thousand pesos, or imprisoned not more than five years, or both, aside from other penalties that may be imposed by law.

Sec. 3. Any person, who with intent to deceive or mislead, within the jurisdiction of the Republic, wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated to deceive, unless such wearing thereof be authorized by such State, nation, or government, shall upon conviction, be punished by a fine not exceeding two hundred pesos or imprisonment not exceeding six months, or by both such fine and imprisonment.

Sec. 4. Any writ or process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished by imprisonment for not more than three years and a fine of not exceeding two hundred pesos in the discretion of the court.

Sec. 5. The provisions of Sec. four hereof shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the Republic of the Philippines, in the service of an ambassador or a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the said Sec. apply to any case where the person against whom the process is issued is a domestic servant of an ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of Foreign Affairs, and transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt thereof post the same in some public place in his office. All persons shall have resort to the list of names so posted in the office of the Chief of Police, and take copies without fee.

Sec. 6. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than three years, and fined not exceeding two hundred pesos, in the discretion of the court, in addition to the penalties that may be imposed under the Revised Penal Code.

Sec. 7. The provisions of this Act shall be applicable only in case where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar penalties for like or similar offenses herein contained.

Sec. 8. This Act shall take effect upon its approval.

Jurisdiction : Bigamy

PROBLEM : A man (Filipino citizen) married to a Filipina in the Philippines under the Philippine law went to the United States and married a citizen of the United States under the law of the state he resides. What crime he committed?

Issues:
1. is there bigamy?
2. the jurisdiction of the foreign state?

Is there bigamy?

The Revised Penal Code provides for the following :
“Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. “

Furthermore, such person’s civil status as a married person does not change when he goes to another country, even when he files for divorce in the United States in regards to his marriage in the Philippines.

Jurisdiction of the foreign states?

Under the Revised Penal code it only recognizes a divorce obtained outside the country as valid if the marriage was contracted elsewhere not in the Philippines, regardless if both are Filipinos or one is an alien.

Therefore, since the first marriage of R took place in the Philippines the divorce obtained by R was generally not sufficient provided R goes there for the sole purpose of obtaining a divorce and no intention of remaining. Generally, his residence there is not sufficient to confer jurisdiction on the court of the foreign state.

GRF - MILF Bangsamoro Agreement

This summary is not available. Please click here to view the post.

Georgia - Russia Conflict

This is a cursory glance at the legality of what recently happened between Russia and Georgia. This analysis does not aim to be conclusive or exhaustive.

The most important questions are:

• Was there an armed attack against Russia?
• Was the Russian use of force in response necessary?

The recent examples of international use of force by major Western powers without a UN Security Council authorization are clearly relevant, especially in a possible theory that they have changed international law.

History

The Soviet Union was divided into territories, often by titular ethnic group. They had varying degrees of autonomy and different places in the administrative hierarchy. Modern countries like Georgia, Ukraine and Russia itself, known as “newly independent states” after the dissolution of the Soviet Union, held the highest place in the hierarchy as the constituent “republics” of the USSR.

Other territories like South Ossetia ended up as pieces of the larger units. Decisions about the structure of this hierarchy were made by Soviet authorities, and often by individual people like Joseph Stalin. These decisions were sometimes revised, and some units moved up or down in the hierarchy in almost 70 years of the Soviet history. Yet only the top-level territories composing the USSR at the time of its dissolution received international recognition.

When Georgia declared its independence from the Soviet Union, South Ossetia was an “autonomous” unit within the Soviet Socialist Republic of Georgia. As was often the case with “autonomous” regions, the ethnicity of the majority South Ossetia’s population was different from the titular ethnicity of Georgia. When Georgia separated from the USSR, South Ossetia declared its independence from Georgia, which sent troops to keep South Ossetia from breaking away. Russia brokered an agreement to end the war in 1992.

Russia stationed its troops in South Ossetia in 1992 under the deal with Georgia and South Ossetia. The troops had a peacekeeper status and a mandate to separate Georgians and South Ossetians. The latter have been de facto independent from Georgia for 16 years. During this time most of them received Russian citizenship.

On August 8, 2008, Georgia initiated a military assault on Tskhinvali, the capital of South Ossetia, on August 8, 2008 following a week of clashes with South Ossetian troops. Georgian military shelled the city of Tskhinvali with heavy artillery including MRLS (multiple rocket launcher system) and the Georgian air force conducted bombing raids of Tskhinvali. The city fell to Georgians soon after the attack. According to the Russian defence ministry, 12 of its troops stationed in South Ossetia under the 1992 agreement with Georgia were killed and 30 wounded. Their base in Tskhinvali was destroyed.

On August 8 following the Georgian shelling of Tskhinvali, Russian troops entered South Ossetia from Russia. In five days they repelled the Georgian troops and forced them out of South Ossetia. Russian air force systematically destroyed Georgian military infrastructure in various parts of Georgia and bombed the port of Poti. Russian military entered or occupied several towns in Georgia for various lengths of time declaring its intention to destroy or remove abandoned ordnance and maintain security.

Opinion :

Is the use of force by Russia legal? Jus ad bellum - the law of entering into war, is generally based on the UN Charter. A state can use force either with permission of the Security Council or in response to an armed attack under Article 51 of the Charter. The use of force must pass the test of necessity and proportionality.

In their attack on Tskhinvali Georgian forces used weapons designed to inflict maximum destruction and casualties in a large area. The Georgian military was aware of the civilian population in the city and the Russian military contingent present in Tskhinvali under the 1992 agreement. Most residents of Tskhinvali are Russian citizens. South Ossetia is not Russian territory, and it is internationally recognized to be a part of Georgia although South Ossetian authorities dispute South Ossetia’s status within Georgia. Georgians acted in violation of the 1992 agreement and either targeted the civilians and the Russian military or attacked the city with reckless disregard for their safety and lives.

Therefore, that the Georgian shelling of Tskhinvali was an armed attack on Russia, the legality of the Russian response by force depends on whether the use of force would be necessary for a legitimate goal under the UN Charter, and whether the cost of the response in civilian lives and damage to civilian property would not outweigh the benefit. For example, if Russians responded by destroying international oil pipelines in Georgia to eliminate competition to its energy transit routes, such use of force would be unnecessary and illegal. If Russia carpet-bombed Georgian cities (like Georgia bombed Tskhinvali) declaring its intention to destroy military bases, it would probably also be illegal because the massive loss of civilian lives in Georgia would be disproportionate to a potential loss of lives, had Georgia continued unfettered.

So, Russia did none of these things when it used force against Georgia. Instead, its troops appear to be systematically degrading Georgian military. Initially this was accomplished by artillery and air force with a small number of civilian casualties, and later the preferred method appears to be occupation of Georgian military bases and controlled detonation or removal of ordnance, military vessels, aircraft and infrastructure. At some point the Russian military stopped running into any significant resistance from the Georgian troops.

Are Russian actions necessary to protect the civilian population of South Ossetia and its contingent stationed under the 1992 agreement?

Lastly, the Russian response to the Georgian attack is its proportionality. To the Russians’ credit, the civilian casualties of their military operation appear minimal, especially compared to some of the recent examples of international use of force unauthorized by the Security Council.

Continuing military operations deep into Georgian territory and fortifying their positions days after a cease-fire and withdrawal of troops has been signed is a clear violation of international law. But as they say ‘there is nothing new under the sun’

Sen. Pimentel vs Executive Secretary , G.R. No. 158088 , July 6, 2005

Facts :This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.

Petitioners contend that that ratification of a treaty, under both domestic law and international law, is a function of the Senate. That under the treaty law and customary international law, Philippines has a ministerial duty to ratify the Rome Statute.

Respondents on the other hand, questioned the legal standing of herein petitioners and argued that executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

Issues : Whether or not petitioners have the legal standing to file the instant suit.

Whether or not the Executive Secretary and the Department of Foreign Affairs have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by the Philippine Member to the United Nations even without the signature of the President.

Ruling : Only Senator Pimentel has a legal standing to the extent of his power as member of Congress. Other petitioners have not shown that they have sustained a direct injury from the non-transmittal and that they can seek redress in our domestic courts.

Petitioners’ interpretation of the Constitution is incorrect. The power to ratify treaties does not belong to the Senate.

Under E.O. 459, the Department of Foreign Affairs (DFA) prepares the ratification papers and forward the signed copy to the President for ratification. After the President has ratified it, DFA shall submit the same to the Senate for concurrence.

The President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.

It should be emphasized that under the Constitution the power to ratify is vested in the President subject to the concurrence of the Senate. The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify a treaty.

The signature does not signify final consent, it is ratification that binds the state to the provisions of the treaty and renders it effective.

Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is within the President to refuse to submit a treaty to the Senate or having secured its consent for its ratification, refuse to ratify it. Such decision is within the competence of the President alone, which cannot be encroached by this court via writ of mandamus,

Thus, the petition is DISMISSED.

Links to International Criminal Court

1. United States and the International Criminal Court (http://en.wikipedia.org/wiki/United_States_and_the_International_Criminal_Court)
2. Judges of the International Criminal Court (http://en.wikipedia.org/wiki/Judges_of_the_International_Criminal_Court)
3. People detained by the International Criminal Court (http://en.wikipedia.org/wiki/People_detained_by_the_International_Criminal_Court#Detention_centre)
4.Cases before the International Criminal Court (http://en.wikipedia.org/wiki/Cases_before_the_International_Criminal_Court)
5. Complaints to the International Criminal Court (http://en.wikipedia.org/wiki/Complaints_to_the_International_Criminal_Court)
6. The International Criminal Court and the 2003 invasion of Iraq (http://en.wikipedia.org/wiki/The_International_Criminal_Court_and_the_2003_invasion_of_Iraq)
7. International Criminal Court
(http://www.icc-cpi.int/home.html)
8. Coalition for the International Criminal Court
(http://www.icc-cpi.int/home.html)
9. States Parties to the Rome Statute of the International Criminal Court (http://en.wikipedia.org/wiki/State_Parties_of_the_International_Criminal_Court)
10. The International Criminal Court: An End To Impunity? (http://www.crimesofwar.org/icc_magazine/icc-intro.html)
11. The International Criminal Court: Global Policy Forum (http://www.globalpolicy.org/intljustice/icc/index.htm)
12. International Criminal Court
(http://en.wikipedia.org/wiki/International_Criminal_Court)
13. Crime against humanity
(http://en.wikipedia.org/wiki/Crime_against_humanity )
14. Crimes within the jurisdiction of the Court
( http://en.wikipedia.org/wiki/International_Criminal_Court#Jurisdiction)
15. Genocide definitions
(http://en.wikipedia.org/wiki/Genocide_definitions)
16. Convention on the Prevention and Punishment of the Crime of Genocide (http://en.wikipedia.org/wiki/Convention_on_the_Prevention_and_Punishment_of_the_Crime_of_Genocide)
17. Victim participation and reparations
(http://en.wikipedia.org/wiki/International_Criminal_Court#Victim_participation_and_reparations)
18. Convention on the Prevention and Punishment of the Crime of Genocide (http://www.unhchr.ch/html/menu3/b/p_genoci.htm)
19. Stages of genocide and efforts to prevent it (http://en.wikipedia.org/wiki/Genocide#Stages_of_genocide_and_efforts_to_prevent_it)
20. International Criminal Court: Information and Much More from Answer.com
(http://www.globalpolicy.org/intljustice/icc/index.htm)

International Criminal Court

1. How did the court begin?

The concept of an international court was first discussed in the aftermath of World War II. However, it wasn’t until the 1990s that the first ad hoc international criminal tribunals were set up to deal with war crimes in Rwanda and the former Yugoslavia. The ad hoc tribunals were limited in their efficiency and deterrent capability, which spurred the need for a permanent court to deal with the world’s most serious crimes. A statute to establish the International Criminal Court (ICC) for creating such a body was approved at a United Nations (UN) conference in Rome on July 17, 1998. After receiving more than sixty ratifications by April 2002, the treaty became legal on July 1, 2002. On March 11, 2003, the ICC opened with Canadian Philippe Kirsch as judge-president, and Elizabeth Odio Benito of Costa Rica and Akua Kuenyenia of Ghana as vice presidents.

2. Who does the court aim to prosecute?

The ICC seeks to try individuals who are perpetrators of the world’s most serious crimes such as genocide, war crimes, crimes against humanity, and crimes of aggression. Crimes against humanity include those crimes that systematically exterminate, enslave, torture, rape, and persecute victims based on political, gender, religious, ethnic, national, or cultural differences. War crimes are violations of the international Geneva Convention to protect prisoners of war, and other laws that apply to international armed conflict. For now, the treaty has also listed a crime of “aggression,” but has yet to define what constitutes this crime. In the future, this stipulation may be amended to add other crimes.

3. What is the relationship between the United States and the ICC?

At the time of statute negotiations, the United States opposed the court, fearing their soldiers could be subject to prosecutions that were either trivial or politically motivated. In its defense, the United States insisted on immunity for all its military personnel operating in UN peacekeeping missions, particularly in East Timor and Bosnia-Herzegovina. It was denied immunity in East Timor, but after vetoing a UN-extended peacekeeping mission Bosnia-Herzegovina, the Washington was granted a one-year exemption from prosecution to be renewed every year. The United States also formed bilateral agreements with other nations obliging them not to hand over U.S. personnel to the ICC and passed the American Service Member’s Protection Act authorizing the president to use all means necessary to free U.S. personnel detained by the ICC.

Former President Bill Clinton did eventually sign the treaty at the end of his second term, but U.S. support for the treaty was quickly withdrawn when President George W. Bush un-signed the treaty in 2002.

4. What other countries are not involved?

In total, seven countries voted against the statute: China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. China objected on grounds that “the statute is an attempt to interfere with the domestic affairs of a sovereign nation.” Other non-members include India, Iran, Japan, North Korea, Pakistan, Saudi Arabia, Sudan, Syria, and Turkey. While most Western European and South American countries are signatories, there is only one Arab nation member—Jordan—and five Asian members—Afghanistan, Cambodia, Mongolia, South Korea, and Tajikistan.

5. What cases are on the docket now?

The Office of the Prosecutor (OTP) has been referred cases from Uganda, the Central African Republic, and the Democratic Republic of the Congo. In addition, the United Nations Security Council gave its first referral for the Darfur region of Sudan to the OTP in March 2005. In accordance with the Statute of Rome, the OTP has decided to open investigation in Uganda, The Democratic Republic of the Congo, and Darfur, Sudan.

6. What is the relationship between the International Court and the national courts?

The ICC is based on a principle of complementarity. This means that the ICC can only act when a national court is unable or unwilling to carry out a prosecution itself because the ICC was not created to supplant the authority of the national courts. However, when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction.

7. What is the difference between the ICC and other international courts such as the international criminal tribunals and the UN’s International Court of Justice?

The international criminal tribunals in Rwanda and formerYugoslavia can only try individuals who committed crimes against humanity in those territories over a specific period of time. The International Criminal Court, on the other hand, can rule on all crimes committed against humanity regardless of its location so long as they have occurred after July 1, 2002. The role of the International Court of Justice is to rule on arguments that occur between governments. Unlike the International Criminal Court, it does not have the ability to try individuals.

8. Who funds the court?

The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.

9. What is the ICC?

The International Criminal Court (ICC) is a permanent international tribunal that will try individuals responsible for the most serious international crimes. One hundred and sixty countries attended a U.N.-sponsored conference in Rome in 1998 to draft a treaty for the establishment of the ICC. After five weeks of intense negotiations, 120 countries voted to adopt the treaty. Only seven countries voted against it (including China, Libya, Iraq, and the United States) and 21 abstained. Before the court can be set up, 60 countries need to ratify the treaty. 139 states signed the treaty by the 31 December 2000 deadline. The treaty entered into force on July 1, 2002. As of July 18, 2008, 108 states have ratified it.

10. What crimes does the ICC prosecute?

The ICC will prosecute individuals accused of genocide, war crimes, and crimes against humanity, all defined in the court's treaty. The ICC will help ensure that these serious crimes, which have long been recognized by the international community, no longer go unpunished because of the unwillingness or inability of individual countries to prosecute them.

11. Who can be brought to trial before the ICC?

The ICC will have jurisdiction over crimes committed by the nationals of governments that ratify the treaty, or in the territories of governments that ratify. It can try any individual responsible for such crimes, regardless of his or her civilian or military status or official position.

12. What are the rights of those accused of a crime by the ICC?

The ICC treaty contains a detailed list of the rights that any accused person shall enjoy, including the presumption of innocence, the right to counsel, to present evidence, the right to remain silent, and the right to have charges proved beyond a reasonable doubt.

13. How will national courts and the ICC work together?

The treaty gives the ICC jurisdiction that is complementary to national jurisdictions. This "principle of complementarity," as it is known, gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the states fail to implement their duty -- that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith. Bona fide efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity, or war crimes will bar the ICC from proceeding.

At a press conference on June 12, 2002, U.S. Secretary of Defense William Cohen, while opposing the ICC, admitted that the court's limited authority would protect US troops and officials: "We have demonstrated over the years wherever there is an allegation of abuse on the part of a soldier we have a judicial system that will deal with it very effectively," Cohen said. "As long as we have a respected judicial system then there should be some insulation factor." That is, the ICC would then be barred from proceedings against Americans.

14. How is the ICC different from the International Court of Justice (World Court) and other existing international tribunals?

The International Court of Justice (ICJ or World Court) is a civil tribunal that hears disputes between countries. The ICC is a criminal tribunal that will prosecute individuals. The two ad hoc war crimes tribunals for the former Yugoslavia and Rwanda are similar to the ICC but have limited geographical scope while the ICC will be global in its reach. The ICC, as a permanent court, will also avoid the delay and start-up costs of creating country specific tribunals from scratch each time the need arises.

15. What good can the International Criminal Court do?

The ICC will help end the impunity often enjoyed by those responsible for the most serious international human rights crimes. It will provide incentives and guidance for countries that want to prosecute such criminals in their own courts, and it will offer permanent back up in cases where countries are unwilling or unable to try these criminals themselves, because of violence, intimidation, or a lack of resources or political will.

As noted, the ICC is not intended to replace national courts. Domestic judicial systems remain the first line of accountability in prosecuting these crimes. The ICC ensures that those who commit the most serious human rights crimes are punished even if national courts are unable or unwilling to do so. Indeed, the possibility of an ICC proceeding may encourage national prosecutions in states that would otherwise avoid bringing war criminals to trial.

16. Who can join the ICC?

All countries of the world can ratify the ICC treaty. Members must accept the court's jurisdiction and cooperate with the court in investigating and prosecuting crimes and enforcing penalties.

17. Where is the ICC located and who is paying for the court?

The ICC has its permanent seat in The Hague, the Netherlands. When necessary, it may also make arrangements to sit in other countries. The countries that belong to the ICC determine its budget and provide the necessary funding. The United Nations also contributes funds, especially when the ICC investigates and prosecutes cases referred to it by the U.N. Security Council.

18. How do the ICC and the Security Council work together?

The Security Council may refer cases to the ICC for investigation and prosecution. The Security Council may also request the ICC to suspend investigations for 12 months at a time if it feels that ICC proceedings might interfere with the Security Council's responsibility to maintain peace and security. This arrangement makes it difficult for any one permanent Security Council member to manipulate the ICC while permitting the Security Council to resolve any genuine conflicts of interest with the ICC.

19. How politically motivated cases be avoided?

Many safeguards exist in the ICC treaty to prevent frivolous or politically motivated cases. For example, all indictments will require confirmation by a Pre-Trial Chamber of judges, which will examine the evidence supporting the indictment before issuing it. The accused and any concerned countries will have an opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber. In addition, any investigation initiated by the prosecutor will first have to be approved by the Pre-Trial Chamber.

Prosecutors and judges all undergo rigorous scrutiny before they are elected and appointed to the court. The treaty establishes strict criteria for the selection of the prosecutor and the judges, requiring experts whose reputation, moral character and independence are beyond reproach. They are prohibited from any activity during their term in office that might jeopardize their independence, and can be excused from particular cases if there is any question of partiality. Ultimately, in the unlikely event that they abuse their powers, they can be impeached.

States that join the ICC will nominate persons to be elected as judges and prosecutor. Only those eligible to hold high judicial office in their own country can be nominated as judges of the ICC.

20. What happens if a country does not ratify the treaty?

Countries that fail to ratify the ICC treaty will be prohibited from participating in the nomination of the court's judges and prosecutor. They will also lose the privilege of contributing to decisions about the budget and administrative operations.