Account Opening: The Non-Secrecy of Foreign Currency Deposits (When the Supreme Court decided that Sec. 8 of RA 6426 is not absolute)

By Siesta-friendly

Foreign Currency Deposit (FCD) accounts are much protected in this country so much so that the Supreme Court (unbelievably) just issued a Temporary Retraining Order against the Impeachment Court’s Subpoena Ad Testificandum et Duces Tecum regarding Chief Justice Renato Corona’s FCD accounts.  Plunderers and would-be plunderers have just been officially advised that FCD accounts can be a safe haven for their loot without having to go to Switzerland or the Cayman Islands.

The protection of FCD accounts can be found in the Foreign Currency Deposit Act of the Philippines (Republic Act No. 6426)[1] provides:

“Section 8. Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private; Provided, however, That said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. (As amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)” (Emphasis supplied.)

Relevant Amendatory Legal Provisions

HOWEVER, relevant to the above provision, we cannot ignore the following provisions (of laws which were all enacted years after R.A. 6426) that belie the “absolutely confidential nature” of all foreign currency deposits:

a)      one of the Whereas clauses in Presidential Decree 1246 (Further Amending Certain Provisions Of Republic Act Numbered Sixty-Four Hundred And Twenty-Six, As Amended By Presidential Decree Numbered One Thousand Thirty-Five)[2] which P.D. amended RA 6426, states -

“WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines;” (Emphasis supplied.)

b)      P.D. 1246 further provides -

     

“Section 3. The same Act is further amended by adding the following Section immediately after Section 12 thereof to read as follows:

"Sec. 12-A. Amendatory Enactments and Regulations. In the event a new enactment or regulation is issued decreasing the rights hereunder granted, such new enactment or regulation shall not apply to foreign currency deposits already made or existing at the time of issuance of such new enactment or regulation, but such new enactment or regulation shall apply only to foreign currency deposits made after its issuance."

R.A. 1246’s, having been enacted 3 years after R.A. 6426, is thus amendatory to R.A. 6426 and limits the scope of the protection over Foreign Currency Deposits accounts to FCDs of “depositors who are nonresidents and are not engaged in trade or business in the Philippines”.

c)      Section 11 of the Anti-Money Laundering Act of 2001 (Republic Act No. 9160)[3]

“Section 11. Authority to inquire into Bank Deposits. – Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the [Anti-Money Laundering Council] may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.” (Emphasis supplied.)

d)     Further, Section 12 of R.A. 9160 provides -

“Section 22. Repealing Clause. – All laws, decrees, executive orders, rules and regulations or parts thereof, including the relevant provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, as amended and other similar laws, as are inconsistent with this Act, are hereby repealed, amended or modified accordingly.” (Emphasis supplied.)

Sections 11 and 22 of R.A. 9160 (which was enacted 27 years after R.A. 6426), provided a 2nd exception to the “upon the written permission of the depositor” exception in Section 8 of R.A. 6426. Now, the AMLC can look into any FCD account under the circumstances provided in said Section 11 above, regardless of the lack of the depositor’s written permission.

e)      Sec. 8 of the Code of Conduct and Ethical Standards for Public Officials and Employees (R.A. 6713)[4] which states –

“Section 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.” (Emphasis supplied.)

f)       While Section 16 of R.A. 6713 provides -

“Section 16. Repealing Clause. - All laws, decrees and orders or parts thereof inconsistent herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier penalty.” (Emphasis supplied.)

Sections 8 and 16 of R.A. 6713 (enacted 15 years after R.A. 6426) thus provide a 3rd exception to R.A. 6426: when the people exercise their right to know the “assets, liabilities, net worth and financial and business interests [of public officials and employees] including those of their spouses and of unmarried children”.  As significantly pointed out by Justice Antonio Carpio in his dissent in this month’s case of Philippine Savings Bank, et al. v. Senate Impeachment Court[5] -

“This “obligation” of government officials and employees to disclose all their assets is absolute and has no exception. The right of the public to know the assets of government officials and employees is also absolute and has no exception.”

g)      Most importantly, Sec. 17 of Art. XI of the 1987 Constitution, which says -

“A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.” (Emphasis supplied.)

xxx”

What can we say? All laws – even R.A. 6426 - must bow to the mandates of the Constitution.

Based on the above, it is incorrect to believe that barring the written permission of the depositor, FCD accounts are “absolutely confidential nature”.

Supreme Court Case

In addition to the provisions above – which contradict the “absolutely confidential nature” of foreign currency deposits - the Supreme Court has noted or declared the non-confidentiality of FCDs in a handful of cases.  Below is the case that the issue of the confidentiality of FCDs was primarily raised and tackled -

Salvacion, et al. vs. Central Bank (G.R. No. 94723 August 21, 1997)

Simultaneous with a 1989 rape case filed against an American tourist, Greg Northcott Bartelli, the latter’s minor victim and her family filed for damages with preliminary attachment against Greg Bartelli.  The writ of preliminary attachment was granted.  When the Deputy Sheriff served a Notice of Garnishment on China Banking Corporation, the latter resisted on the basis of Republic Act No. 1405 [An Act Prohibiting Disclosure Of Or Inquiry Into, Deposits With Any Banking Institution And Providing Penalty Therefor]. The Deputy Sheriff replied to China Bank that the garnishment did not violate the secrecy of bank deposits since the disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order. In answer to the Deputy Sheriff of Makati, China Bank invoked Section 113 of Central Bank Circular No. 960 that the dollar deposits of defendant Greg Bartelli are exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body, whatsoever.

Upon inquiry by petitioners with the Central Bank “on whether Section 113 of CB Circular No. 960 has any exception or whether said section has been repealed or amended”, the Central Bank replied that:

“The cited provision is absolute in application. It does not admit of any exception, nor has the same been repealed nor amended. 

The purpose of the law is to encourage dollar accounts within the country's banking system which would help in the development of the economy. There is no intention to render futile the basic rights of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it is still the law. Compliance is, therefore, enjoined.”

In 1990, the Regional Trial Court decided in favor of petitioners and granted P500,000.00 as moral damages to the victim, P300,000.00 to her parents, P100,000.00 as exemplary damages, attorney’s fees and litigation costs.  Petitioners then tried to execute on Bartelli's dollar deposit with China Bank but the bank refused to honor the writ of execution based on the Section 113 of Central Bank Circular No. 960 which is copied from Section 8 of Republic Act No. 6426, as amended by P.D. 1246.

Petitioners then sought declaratory relief from the Supreme Court.  The SC noted that although it “has no original and exclusive jurisdiction over a petition for declaratory relief … exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for mandamus.”

The SC said “[i]t is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the country's economy was in a shambles; when foreign investments were minimal and presumably, this was the reason why said statute was enacted. But the realities of the present times show that the country has recovered economically; and even if not, the questioned law still denies those entitled to due process of law for being unreasonable and oppressive. The intention of the questioned law may be good when enacted. The law failed to anticipate the iniquitous effects producing outright injustice and inequality such as the case before us.”

In making its decision, the SC noted the legal provisions cited by the Solicitor General:

a)      Whereas clauses of P.D. 1246[6], to wit:

“WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines;

WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country;”.  (Emphasis supplied.)

b)      Whereas clauses of P.D. 1034[7], to wit:

“WHEREAS, it is in the interest of developing countries to have as wide access as possible to the sources of capital funds for economic development;

WHEREAS, an offshore banking system based in the Philippines will be advantageous and beneficial to the country by increasing our links with foreign lenders, facilitating the flow of desired investments into the Philippines, creating employment opportunities and expertise in international finance, and contributing to the national development effort.”  (Emphasis supplied.)

c)      Whereas clauses of P.D. 1035[8], to wit:

“WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction of the proposed offshore banking units;”.

In allowing the release of defendant’s FCDs to satisfy the judgment in favor of his victim, the SC went beyond the strict wording of the law and said –

“In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the New Civil Code which provides that "in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail…

It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of the innocent.

Call it what it may — but is there no conflict of legal policy here? Dollar against Peso?  Upholding the final and executory judgment of the lower court against the Central Bank Circular protecting the foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against injustice to a national and victim of a crime? This situation calls for fairness against legal tyranny.”

xxx

Thus, the SC ruled that “Section 113 of CB Circular No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A. No. 6426 are hereby held to be INAPPLICABLE to this case because of its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of execution … and to RELEASE to petitioners the dollar deposit of respondent Greg Bartelli y Northcott in such amount as would satisfy the judgment.”

This case proves that even without the depositor’s written permission, foreign currency deposits aren’t “absolutely confidential nature” after all.  It is ironic that the Chief Justice of the Supreme Court - someone sworn to uphold both the letter and spirit of the law - is trying to hide behind its skewed interpretation.  An interpretation which, in the interest of justice, was abandoned by the Supreme Court itself.  Is it fitting that a case decided against a rapist – a common criminal - ends up being made analogous to his?

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[1]  April 4, 1974.

[2]  November 21, 1977.

[3]  September 29, 2001

[4]  February 20, 1989.

[5]  G.R. No. 200238, February 9, 2012

[6]  “Further Amending Certain Provisions Of Republic Act Numbered Sixty-Four Hundred And Twenty-Six, As Amended By Presidential Decree Numbered One Thousand Thirty-Five”, November 21, 1977.

[7]   “Authorizing The Establishment Of An Offshore Banking System In The Philippines”, September 30, 1976.

[8]   “Expanding The Authority Of Certain Depository Banks Under R.A. No. 6426 And For Other Purposes”, September 30, 1976.

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PESTAÑO VS. THE PHILIPPINES (The case before the UN Human Rights Committee against the Philippine Government for violation of the International Covenant on Civil and Political Rights)

by Siesta-friendly

We received with joy last week’s news that the Office of the Ombudsman finally filed murder charges against 10 Navy officers in connection with the killing of Navy Ensign Phillip Pestaño in 1995. 

In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed “murder charges against 10 officials and officers of the Philippine Navy in connection with the death of [Phillip] Pestaño. Morales [reversed] the earlier dismissal of [her predecessor] saying there is sufficient evidence to file charges against Captain Ricardo Ordoñez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.”[1]

In honor of Phillip Pestaño’s courage and his parents’ determination, we revisit the findings by the UN Human Rights Committee (UNHRC) in 2010 upon a complaint filed in April 24, 2007 by Phillip’s parents, Spouses Felipe and Evelyn Pestaño, against the Philippine government, in relation to their Phillip’s alleged murder on September 27, 1995.  The complaint filed by Spouses Pestaño was for “violation by the Philippines of their son’s rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph 1[4], and article 17, paragraph 1[5] of the International Covenant on Civil and Political Rights [ICCPR].”

The facts as presented by Spouses Pestaño before the UNHRC[6]

Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the ship “BRP Bacolod City” during its Mindanao voyage in September 1995. On or about 25 September 1995, the ship’s Commander permitted the loading of more than 14,000 board feet of logs onto the BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading of such unauthorized cargoes.

On 26 September 1995, the Phillip’s parents received an anonymous phone call, warning them that their son’s life was in danger. On the same day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila, and took him to their house in Loyola Heights, Quezon City.  That night, Phillip disclosed to his father that the BRP Bacolod City ship was “dirty”, and that the illegal cargo included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1 billion pesos in the black market. The father tried to dissuade his son from pursuing the case, as he was concerned that any action taken by his son may jeopardize his own business, as the Philippine Navy’s biggest ship repair contractor. But Phillip was determined to take the matter forward.

On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about 11:00 am on the same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy Headquarters in Manila, because their son Phillip “had an accident”.

When his parents reached the Navy Headquarters, they were prevented from entering their son’s suite, where he lay dead.  Instead, they were immediately asked to sign an authorization for an autopsy to be conducted on their son’s body, to which they consented after having viewed their son’s body. The Navy thereafter exhibited an alleged suicide weapon and an alleged suicide note, in support of their position that Phillip had committed suicide.

Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military honours, despite a Navy policy stating that suicide victims should not benefit from such treatment.

After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National Bureau of Investigation of the Department of Justice corroborated the Navy’s position, concluding that Phillip had committed suicide.

Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and police conclusions, Phillip’s insurance company paid the full amount of his coverage to his beneficiaries for his death.  Apparently, the insurance company believed Phillip did not commit suicide.

In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, and  close friend of Phillip, drowned in high seas under highly suspicious circumstances during an alleged mission where all his companions survived. The victim’s body was never found.

In November 1995, another member of the Navy, who was perceived as Phillip’s ally, and who was also aboard the BRP Bacolod City in September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila. This person is still missing and is believed to be dead.

On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an inquiry into the circumstances surrounding Phillip’s death.

In December 1995, the State party’s Navy Flag Officer in Command, a Vice-Admiral, invited Phillip’s parents to dinner, and requested that they refrain from pursuing their son’s case against the Navy. Two weeks later, the Navy Flag Officer in Command sought to see Spouses Pestaño again, and presented Mr. Pestaño with his company’s contract with the Navy, worth a hundred-million pesos, together with an affidavit of waiver and desistance to pursue his suit against the Navy.  The spouses decided that they would not abandon their son’s claim.  One week after this information was relayed to the Navy Flag Officer in Command, the four Navy ships being repaired by Mr. Pestaño’s company all mysteriously sank, and his company’s offices in the Navy Station in Sangley Point were ransacked and looted.

It is also reported that Mr. Pestaño’s nephew, the company’s property custodian, was shot dead during the same period.

On 2 January 1996, Spouses Pestaño received a leaked copy of an intelligence report of the Armed Forces, which stated that the BRP Bacolod City carried 1 billion pesos worth of shabu in 20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to prevent him from revealing the criminal activities taking place on board the ship. This confidential report also identified the chief security officer of the Navy Flag Officer in Command as the most likely perpetrator of the crime.

In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick deterioration of his condition. This person was suspected of involvement in the “shabu operation” in the BRP Bacolod City, as well as in the death of Phillip, and had engaged in discreet talks with Spouses Pestaño before their’s son’s death.  He was believed to be ready to reveal important information before he died. The death of this member of the Navy brings to four the number of persons killed in connection with the September 1995 voyage of the BRP Bacolod City. The four killings remain uninvestigated, and unaccounted for.

Spouses Pestaño filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in September 1995 with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of Investigation of the Department of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in December 2005.

After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the spouses’ petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days.  However, only one week after reopening the spouses’ case, the Ombudsman stepped down, and was replaced.  Since then, the case was left uninvestigated in the Office of the Ombudsman for military affairs.

On 25 January 1998, after eight Committee hearings, a visual inspection of Phillip’s stateroom in the ship, and relying, inter alia, on expert evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestaño case, which contained the following findings: (i) Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the circumstances surrounding Phillip’s murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the deliberate attempt to portray a suicide.

On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding in its evaluation report that “the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time”.

UNHRC’s consideration of the merits of the case

Let us tell you now how the UNHRC passed upon the merits of the case.

Violation of Article 6 of the ICCPR

As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated – referring to the ICCPR as the Covenant -  that it:

“recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore arise as a result of a State party’s failure to take appropriate measures to punish, investigate or redress such a violation.”

“7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the victim had committed suicide, it now appears undisputed that the death of [Phillip Pestaño] was a violent one, resulting from a homicide. The [Philippine Authorities’] submissions of 18 January and 8 May 2008, contending that [Spouses Pestaño]’s case was “an ordinary criminal case”, at least concede this fact…”

The UNHRC took note of the following:[7]

1. conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended that an independent investigation be conducted.

2. that an administrative and criminal action filed by [Spouses Pestaño] is currently pending against members of the [Philippine]’s Navy, i.e. of an organ of the [state].

3. [Spouses Pestaño]’s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications with [Spouses Pestaño] about their son’s death, all died or disappeared in mysterious circumstances between October 1995 and January 1996.

4. [Spouses Pestaño]’s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy should they persist in their complaint. As they pursued their action, [Spouses Pestaño] reportedly lost their business, and their nephew, the company’s property custodian, was killed.

5. In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due weight to the [Spouses Pestaño]’s contentions, which raise a strong presumption of direct participation of the [Philippine Government] in the violation of their son’s right to life.

The UNHRC then considered the following:[8]

1. that the killing of [Spouses Pestaño]’s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on the possible involvement of the Navy in the crime. …  To simply state that there was no direct participation of the State party in the violation of the victim’s right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of the victim, [Spouses Pestaño] are still ignorant of the circumstances surrounding their son’s death, and the [Philippine] authorities have yet to initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the Office of the Ombudsman, which deemed it necessary to conduct further proceedings … in the case. The Committee is not aware, however, of any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestaño] in October 2005. Since that date, no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestaño] were not compensated for the tragic loss of their son.

2. that the death of [Phillip Pestaño] is directly attributable to the [Philippine Authorities].  When a person dies in circumstances that might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity.  The [Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3, to properly investigate the death of [Phillip Pestaño], prosecute the perpetrators, and ensure redress.

Violation of Article 2, paragraph 3(a) of the ICCPR

The UNHRC states that “[U]nder article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestaño] with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their son’s death, prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.”[9]

In ending, the UNHRC relayed its wish “to receive from the [Philippines], within 180 days, information about the measures taken to give effect to the Committee's Views.”[10]

We are unaware if the UNHRC’s wish was granted.

Violation of Article 9, paragraph 1 of the ICCPR

In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that “[Spouses Pestaño] claim that they received an anonymous call, informing them that their son’s life was in danger, the day before he was found dead. However, there is no evidence that [Spouses Pestaño] reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine Authorities] failed to take appropriate action for this protection. Nor is there any conclusive evidence that the [Philippine Authorities were] involved in threatening [Phillip Pestaño]. In the absence of any further arguments put forward by [Spouses Pestaño] on this issue, the Committee [considered] that these claims are not sufficiently substantiated for the purposes of admissibility and [therefore] inadmissible ...”[11]

Violation of Article 17, paragraph 1 of the ICCPR

The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestaño] claim that “the [Philippine Authorities’] attempt to make it appear that [Phillip Pestaño] committed suicide, is to be construed as an unlawful attack against his honour.  [The Committee considered] that this claim [was not] sufficiently substantiated for the purposes of admissibility, and is inadmissible …”[12]

It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair. Justice delayed is justice denied they say.  Nevertheless, the filing of the cases, while long overdue, is still a welcome development.  We can only hope that the Philippine Government now stops its stonewalling, cleans its ranks, and help in any one’s sincere pursuit of justice.  A much cleaner government would have prevented the early and unjustified death of Phillip Pestaño.  A more just government would now support Felipe and Evelyn Pestaño any way they can and prevent the grief of families like theirs in the future.

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[1]  Pagulong, C. J. (2012, January 13). Timeline: Pestaño murder case . Retrieved from http://www.philstar.com/Article.aspx?articleId=767353&publicationSubCategoryId=63  

[2]  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 14 January 2012]  -

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

[3]  Ibid. -

Article 2

3. Each State Party to the present Covenant undertakes:

(a)       To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b)       To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c)       To ensure that the competent authorities shall enforce such remedies when granted.

[4]  Ibid. -

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

[5]  Ibid. -

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

[6]  Pestaño v. The Philippines, CCPR/C/98/D/1619/2007, UN Human Rights Committee (HRC), 11 May 2010, available at: http://www.unhcr.org/refworld/docid/4c19e3692.html [accessed 14 January 2012]

[7]  Ibid.

[8]  Ibid.

[9]  Ibid.

[10]  Ibid.

[11]  Ibid.

[12]  Ibid.

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BIG BANG THEORY (The Law on the Sale, Manufacture, Distribution and Use Of Firecrackers and Other Pyrotechnic Devices)

By Siesta-friendly

Well, the only way to prevent being lit up yourself is to stop using fireworks in the first place. People from other countries leave the fireworks to experts, why can’t we?   Anyway, if you must play with fireworks (and we’ll never understand why), the law on the matter is Republic Act No. 7183 (An Act Regulating the Sale, Manufacture, Distribution and Use OfFirecrackers and Other Pyrotechnic Devices).[1] 

Allowed Firecrackers and Pyrotechnics

Initially, under Sec. 2. of RA 7183, the following common types of firecrackers and pyrotechnic devices may be manufactured, sold, distributed and used: 

1. Firecrackers:

(1)   Baby rocket — A firecracker with a stick so constructed that lighting of the wick will propel the whole thing to lift a few meters before exploding. The firecracker is about 1½ inches in length by 3/8 inch in diameter while the stick is about a foot in length; 

(2) Bawang — A firecracker larger than a triangulo with 1/3 teaspoon of powder packed in cardboard tied around with abaca strings and wrapped in shape of garlic; 

(3)  Small triangulo — A firecracker shaped like a triangle with powder content less than the bawang and usually wrapped in brown paper measuring ¾ inch length in its longest side; 

(4)   Pulling of strings — A firecracker consisting of a small tube about an inch in length and less than ¼ of an inch in diameter with strings on each end. Pulling both strings will cause the firecracker to explode; 

(5)   Paper caps — Minute amount of black powder spread in either small strips of paper on a small sheet used for children's toy guns; 

(6)   El diablo — Firecrackers tubular in shape about 1¼ inches in length and less than ¼ inch in diameter with a wick; also known as labintador; 

(7)   Watusi — Usually reddish in color about 1 ½ inches in length and 1/10 inch in width usually ignited by friction to produce a dancing movement and a crackling sound; 

(8)   Judah's belt — A string of firecrackers consisting of either diablos or small triangulos that can number up to a hundred or thereabout and culminating in large firecracker usually a bawang;

(9)   Sky rocket (kwitis) — A large version of a baby rocket designed to be propelled to a height of 40 to 50 feet before exploding; 

(10)  Other types equivalent to the foregoing in explosive content. 

2. Pyrotechnic Devices: 

(1)   Sparklers — Pyrotechnic devices usually made of black powder on a piece of wire or inside a paper tube designed to light up and glow after igniting; 

(2)   Luces — Any of several kinds of sparklers; 

(3)   Fountain — A kind of sparkler conical in shape which is lighted on the ground and designed to provide various rising colors and intermittent lights upon being ignited; 

(4)   Jumbo regular and special — A kind of sparkler similar to a "fountain" but bigger in size; 

(5)   Mabuhay — Sparklers bunched into a bundle of a dozen pieces; 

(6)   Roman candle — A sparkler similar to a "fountain" but shaped like a big candle; 

(7) Trompillo — A pyrotechnic device usually fastened at the center and designed to spin first clockwise and then counter-clockwise and provides various colored lights upon being ignited; 

(8)   Airwolf — A kind of sky rocket shaped like an airplane with a propeller to rise about 40 or 50 feet and provide various kinds of light while aloft; 

(9)  Whistle device — Any of the various kinds of firecrackers or pyrotechnic designed to either simply emit a whistle-like sound or explode afterwards upon being ignited; 

(10)Butterfly — Butterfly-shaped pyrotechnic device designed to lift above ground while providing light; 

(11) All kinds of pyrotechnic devices (pailaw); and 

(12) Other types equivalent to the foregoing devices. 

Prohibited  Firecrackers and Pyrotechnics

Under Sec. 3 of RA 7183 “[t]he manufacture, sale, distribution and use of other types of firecrackers and pyrotechnic devices not mentioned in [Sec. 2 above], of such explosive content that could endanger life and limb, such as atomic big triangulo and super lolo and their equivalent are hereby prohibited.  Determination of what constitutes prohibited firecrackers and pyrotechnic devices shall be vested with the Director-General of the Philippine National Police (PNP).”

HOWEVER, as of December 22, 2010, the following have since been banned by the Department of Health (DOH):

1.                  Piccolo

2.                  Pla-pla

3.                  5 -Star

4.                  Atomic Bomb

5.                  Triangulo

6.                  Super Lolo

7.                  Boga

8.                  Watusi

In case there are other kinds of firecrackers higher/more explosive than those in the list of banned firecrackers, consider it as illegal.[2]

In its website, the PNP lists other specifically prohibited firecrackers: “Big Triangle, Super Lolo and equivalents, Mother Rocket, Five Star, Og, Pla-Pla, Pillbox, Firecrackers without labels and other firecrackers and pyrotechnic devices that could endanger life and limb including ingenious underground fabrications such as Goodbye Earth, Atomic, and other dangerous firecrackers manufactured by illegal fireworks makers.”[3]

And on December 26, 2011, GMANews posted an updated list of the firecrackers prohibited (by the DOH and Department of Trade and Industry) for sale and manufacture in the country:

1.   Watusi or the “dancing firecracker.” It was initially allowed for sale and manufacture under RA 7183, but was eventually banned because it causes poisoning when ingested, especially among children.

2.      Piccolo – This firecracker has been the leading cause of firecracker-related injuries since 2007. The Department of Health banned it in 2007 because it can explode on the hands, and may cause death when ingested.

3.     Super Lolo and Atomic Big Triangulo – two firecrackers specifically mentioned in RA 7183.

4.     Mother Rockets – firecracker with a stick designed as a propellant upon lighting the wick.

5.      Lolo Thunder – a powerful firecracker twice the size of a Five Star.

6.      Pillbox – a firecracker that causes a series of sparks when lit.

7.   Boga – traditional canon made from PVC pipe using denatured alcohol as explosive ingredient.

8.      Big Judah’s belt – a string of firecrackers consisting of smaller firecrackers that number up to a hundred, and culminating in a larger and more powerful firecracker.

9.      Big Bawang – a firecracker packed in cardboard tied around with abaca strings, giving it the shape of a large garlic.

10.  Kwiton – aerial firecracker which explodes several times when lit.

11. Goodbye Philippines – giant triangle-shaped firecracker which packs a powerful explosion.

12.  Kabasi – a triangle-sized explosive twice the size of a Pla-pla. 

Other banned firecrackers include the “Atomic Bomb,” Five Star, Pla-pla, Og, Giant Whistle Bomb, and unlabelled firecrackers.[4]

In its Aksyon: Paputok Injury Reduction website, the DOH “strongly reminded the public that most cases of fireworks-related injuries come from the 1-10 years age group, totalling 330 cases or 34% of all injuries. This group is followed by the 11-20 years age group in number of injuries. It was also found that cases reach their peak during December 31 and January 1. Furthermore, DOH statistics of last year’s holiday celebrations reveal that most injuries were due to piccolo, kwitis, five star, pla-pla, and luces.”[5]

The DOH’s five reminders to prevent harm and injury are: 1) mapanganib ang paggamit ng paputok (fireworks cause injuries and endanger health); 2) lahat ng paputok ay bawal sa bata (children should not use any fireworks); 3) umiwas sa mga taong nagpapaputok(keep safe and away from exploding fireworks); 4) Huwag mamulot ng mga di sumabog na paputok (never pick used fireworks); and, 5) Magpagamot kaagad kapag naputukan(seek immediate medical treatment for all firework injuries).[6]

Buy only from licensed manufacturers, sellers, distributors

License or permit to manufacture, sell and distribute firecrackers and other pyrotechnic devices shall be granted only for the manufacture, sale and distribution of allowed firecrackers and other pyrotechnic devices. Under no circumstances shall a license or permit be granted for the manufacture, sale and/or distribution of prohibited firecrackers and other pyrotechnic devices. (Sec. 4, RA 7183)

Firecrackers and pyrotechnic devices shall bear labels indicating the name and address of their manufacturers and warning instructions written in Filipino and English. (Sec. 8)

Imported firecrackers and fireworks are prohibited

The importation of finished firecrackers and fireworks shall be prohibited.  Only duly licensed manufacturers shall be allowed to import chemicals or explosive ingredients used in the manufacture of firecrackers and pyrotechnic devices.  (Sec. 6)

Other Safety Guidelines

For those in neighborhoods with firecracker manufacturers, seller or distributors, note the following regulations to be followed -

Sec.  7. Safety Guidelines. — Strict compliance of the following safety precautions, rules and regulations shall be observed by manufacturers, distributors and users of firecrackers and pyrotechnic devices: 

(a)    A zone shall be designed by the local government unit where a manufacturing complex may be established. The outer perimeter of this zone shall be at least three hundred (300) meters away from the nearest residential units. Once a zone has been defined, no residential unit shall be permitted nearer than three hundred (300) meters from the perimeter of such zone; 

(b)   The manufacturing complex shall be governed by, but not limited to, the following safety measures:

(1)   All buildings shall have adequate ventilation, no concrete floors, must be leak-proof and furnished with necessary fire extinguishers; 

(2)   The warehouse must be at least fifty (50) meters away from any processing station of the complex; and 

(3)   The following processing stations of the complex shall be laid out according to the indicated minimum distance from each other with all sides open: 

(i)                 Mixing 50 MTS 

(ii)               Grinding 40 MTS 

(iii)             Packaging 40 MTS 

(iv)             Nagmimitsa 20 MTS 

(v)               Loading 20 MTS 

Penalties

Any person who manufactures, sells, distributes or uses firecrackers and other pyrotechnic devices in violation of the provisions of this Act shall be punished by a fine of not less than P20,000.00 nor more than P30,000.00, or imprisonment of not less than 6 months nor more than 1 year, or both such fine and imprisonment, at the discretion of the court in addition to the cancellation of his license and business permit and the confiscation by the Government of his inventory or stock.  (Sec. 11)

Like clockwork, at this time of the year there are already numerous cases of injuries and even death due to firecrackers. Making a big bang can be done without firecrakers (and we do not mean shooting a gun!). Driving away bad spirits or bringing good luck should not include risking life, limb or property.  Resorting to certain pyrotechnics is not only against the law but also common sense.  As one entry made in Facebook says, why not spend the money instead on the victims of Sendong?  Now that is one big bang gesture that should bring you back a lifetime’s worth of goodwill.

---

[1]  January 30, 1992.

[2] Department of Health, (2010). List of illegal and legal firecrackers. Retrieved from website: http://bert.doh.gov.ph/doh_apir/articlelist.php?start=4

 

[3]  Philippine National Police, (n.d.). Pnp intensifies crackdown on outlawed fireworks. Retrieved from website: http://www.pnp.gov.ph/main/index.php?option=com_content&view=article&id=577

 

[4]  Calonzo, A. (2011, December 26). List of fireworks and firecrackers prohibited in the phl. Retrieved from http://www.gmanetwork.com/news/story/242771/news/nation/list-of-fireworks-and-firecrackers-prohibited-in-the-phl  

[5]  Department of Health, (2011). Doh calls for apir - aksyon: Paputok injury reduction (give me five) campaign - this holiday season. Retrieved from website: http://bert.doh.gov.ph/doh_apir/articlelist.php?start=1

[6]  Supra.

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