Posts Tagged ‘rule of law’

West got China wrong, let’s get Taiwan right

March 17, 2018
By Gerrit van der Wees

Recently, major news media in the US and Europe have been awash with analyses on how the West got China wrong. Prominent publications such as the London-based magazine The Economist (“How the West got China wrong,” March 1) argue that since former US president Richard Nixon’s opening to China, the West had hoped that diplomatic and commercial engagement would bring political and economic openness, but that the gamble has failed.

In their seminal article “The China Reckoning” (Foreign Affairs, March/April), Kurt Campbell and Ely Ratner, officials who served in the administration of former US president Barack Obama, write: “Nearly half a century since Nixon’s first steps toward rapprochement, the record is increasingly clear that Washington once again put too much faith in its power to shape China’s trajectory.”

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US President Richard Nixon (L) toasts with Chinese Prime Minister Chou En Lai

“Neither carrots nor sticks have swayed China as predicted. China has instead pursued its own course, belying a range of US expectations in the process.”

In his Washington Post article “We got China wrong, now what?” (Feb. 28), commentator Charles Lane argues that the US needs a long, sober policy rethink, and that it should “reinvest in traditional alliances with democratic nations in the Asia-Pacific region.”

That is where Taiwan comes in: For too long, Taiwan has been a victim of the over-optimism and unwarranted fascination the US and western Europe had with China. In the 1970s it was shunted aside by Nixon and former US secretary of state Henry Kissinger, as it had to make way for the larger “strategic” interests associated with enhancing relations with China.

Little attention was paid to the fact that Taiwan was under authoritarian rule by the Chinese Nationalists of the Kuomintang. Fortunately for the people of Taiwan, the US Congress pushed through the 1979 Taiwan Relations Act, which maintained a semblance of unofficial relations.

Then, in the 1980s Taiwan went through its momentous transition to democracy, and in the early 1990s, former president Lee Teng-hui (李登輝) presided over a vibrant democracy.

This new situation should have brought about a fundamental shift of Western policy toward Taiwan, but unfortunately it coincided with the economic rise of China: Tempted by the lure of China’s market, the West remained stuck “engaging” China at the expense of better relations with Taiwan.

China’s new strength brought about a major expansion of its political and military prowess, which it used to push Taiwan further into the corner of diplomatic isolation, while attempting to use economic ties to bring about political rapprochement, particularly during the administration of former president Ma Ying-jeou (馬英九) of the Chinese Nationalist Party (KMT).

However, this approach was rejected by a Taiwanese populace that increasingly treasured its own unique identity, and valued its new-found freedoms and hard-fought democracy: In local elections in 2014 and national elections in 2016, the Taiwanese overwhelmingly voted for the Democratic Progressive Party, culminating in the 2016 election of President Tsai Ing-wen (蔡英文).

There is a growing sense that Taiwan’s international isolation should be a thing of the anachronistic past.

Thus, as this much-needed rethink about policy toward China is ongoing, the US and western Europe have an opportunity to get their policy toward Taiwan right, and invest in strengthening relations with a strategic beacon of democracy in the region.

Gerrit van der Wees, a former Dutch diplomat, served as editor of Taiwan Communique from 1980 until 2016. He teaches history of Taiwan at George Mason University in Fairfax, Virginia.


Change is coming to the Philippines — Human Rights Watch sets its sights on Human Rights, Justice and Rodrigo Duterte

March 17, 2018

By Phelim Kine, deputy director of the Asia division at Human Rights Watch

Headshot of Phelim Kine

Philippine President Rodrigo Duterte is afraid.

That’s the signal he sent last week by announcing that the Philippines will withdraw from the International Criminal Court (ICC) “effective immediately.” Duterte sought to justify the withdrawal by suggesting that the ICC’s move last month to launch a preliminary examination  into killings linked to the Philippine government’s “war on drugs” had violated the principles of “due process and the presumption of innocence.”

But behind Duterte’s bluster about being “appalled” by the ICC’s concern about an anti-drug campaign that has killed thousands of people, including dozens of children, is his palpable fear that he and senior government officials will inevitably face justice for their role in those deaths.

Duterte has good reason to be afraid of being implicated in possible crimes against humanity for inciting and instigating “drug war” killings. His outspoken vow to embark on a nationwide killing campaign against drug dealers and drug users was the foundation of a presidential electoral platform that swept him into office. At his inauguration on June 30, 2016, he told the Philippine public, “If you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful.” That could constitute incitement to commit murder.

Duterte has repeatedly called for the Philippine National Police to target suspected drug users and dealers with extrajudicial violence, which could be considered instigating law enforcement to commit murder. In August 2016 he warned suspected drug dealers: “My order is shoot to kill you. I don’t care about human rights, you better believe me.” In April 2017, Duterte welcomed a returning group of overseas Filipino workers by telling them, “If you lose your job, I’ll give you one. Kill all the drug addicts.”

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Philippine National Police (PNP) Chief Ronald de la Rosa

Duterte’s consistent messaging of targeting suspected drug dealers and users has not fallen on deaf ears. Since taking office, his anti-drug campaign has resulted in more than 12,000 deaths. And the killingscontinue. Duterte and some of his key ministers have praised the killings as proof of the “success” of the campaign and urged police to “seize the momentum.”

Research by Human Rights Watch and others has exposed a damning pattern of unlawful police conduct designed to paint a veneer of legality over “drug war” summary executions

However, research by Human Rights Watch and others has exposed a damning pattern of unlawful police conduct designed to paint a veneer of legality over “drug war” summary executions. In response, Duterte and Philippine National Police Director General Ronald dela Rosa have in effect institutionalized impunity for police involvement in summary killings. Dela Rosa has dismissed calls for independent investigations into police drug war killings as “legal harassment” and said that the demand “dampens the morale” of police officers. In August, Duterte vowed to “pardon and promote” any police personnel implicated in unlawful killings.

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Duterte has also sought to systematically eliminate meaningful opposition to the drug war carnage. In August, Duterte encouraged police attacks against human rights groups and advocates, instructing police to shoot them “if they are obstructing justice.” Duterte has publicly condemned the official Commission on Human Rights, even threatening to abolish the constitutionally mandated body. He also repeatedly subjected the UN’s expert on extrajudicial killings, Agnes Callamard, to profanity-laced ridicule for her repeated efforts to secure an official visit to the Philippines.

Senator Leila de Lima, former chair of the human rights commission and secretary of justice, has been jailed since February 2017 on politically motivated drug charges as an apparent reprisal for her outspoken opposition to the  drug war carnage. As international pressure for accountability for those deaths has risen in recent months, the Duterte government has adopted a tactic of denial and distraction to impugn the integrity of drug war critics.

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drug war carnage

Duterte is apparently hoping that announcing the Philippines’ withdrawal from the ICC will end any chance of being tried in The Hague. He should think again. Even if the Philippine government formally notifies the United Nations secretary-general of its withdrawal from the ICC – which Duterte’s statement did not do – withdrawal will only officially go into effect one year later. Even then, the court can still prosecute any international crimes committed while the Philippines was still an ICC member.

Duterte’s craven efforts to dodge ICC scrutiny should only heighten the urgency for a separate, United Nations-led probe into his drug war calamity. At the current session of the UN Human Rights Council in Geneva, Guðlaugur Þór ÞórðarsonIceland’s foreign minister, reminded the council of its responsibility to “to try and ensure the Philippines meets its human rights obligations.” A UN inquiry would add to the international pressure on the Duterte government to stop the killings and to cooperate with efforts to bring those responsible to justice, including before the ICC.

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Duterte won the 2016 presidential election in the Philippines with the slogan “Change is coming.” As he faces the increasing likelihood of an international investigation into the “drug war,” Duterte clearly now dreads the likelihood that justice is coming.

Phelim Kine is the deputy director of the Asia division at Human Rights Watch


See also:

Phelim Kine on President Rodrigo Duterte’s controversial war on drugs in the Philippines


Philippines Warned: Human Rights Watch says ‘justice is coming’ for Duterte

March 17, 2018

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“Philippine President Rodrigo Duterte is afraid,” Phelim Kine, deputy director of HRW’s Asia division, said in a commentary published on Asia Times.

AP/Bullit Marquez, File photo

Ian Nicolas Cigaral ( – March 17, 2018 – 11:40am

MANILA, Philippines — Justice is coming for President Rodrigo Duterte, the Human Rights Watch said, after the Philippine leader announced he is pulling his country out of the International Criminal Court amid strong calls for an external probe into his deadly drug war.

“Philippine President Rodrigo Duterte is afraid,” Phelim Kine, deputy director of HRW’s Asia division, said in a commentary published on Asia Times.

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Phelim Kine, deputy director of HRW’s Asia division

Duterte, who is notorious for his defiance of international pressure, was elected by a landslide in 2016 on a brutal law and order platform.

Human rights monitors say most of the fatalities in the government’s anti-narcotic drive are extrajudicial killings committed by cops, adding that Duterte could be liable for crimes against humanity for giving police the “license to kill.”

On Thursday, Duterte said he was withdrawing the Philippines from the Rome Statute, the ICC’s founding treaty, more than a month after the Hague-based court announced it would conduct a preliminary examination into a communication filed by a lawyer accusing him of crimes against humanity.

The maverick leader cited what he called “outrageous attacks” by United Nations officials, as well as the ICC’s supposed violation of due process and presumption of innocence, as reasons for his decision to leave the ICC “immediately.”

The tough-talking president’s move was a dramatic turnaround from his previous vow to “rot in jail” or be indicted by the ICC to defend his bloody war on drugs.

UN inquiry

For Kine, Duterte’s announcement was an attempt to end any chance of being tried in The Hague, adding that such a move should only heighten the urgency for a separate UN-led probe into his signature anti-drug campaign.

“Duterte has good reason to be afraid of being implicated in possible crimes against humanity,” Kine stressed.

“A UN inquiry would add to the international pressure on the Duterte government to stop the killings and to cooperate with efforts to bring those responsible to justice, including before the ICC,” he added.

On Friday, Teodoro Locsin, the Philippines’ permanent representative to the UN, sent a letter notifying UN Secretary-General Antonio Guterres of the government’s decision to withdraw as a member of the ICC.

In a statement, the public affairs unit of the ICC urged the Philippines to reconsider its decision, saying any act that may set back the global movement towards accountability for atrocious crimes and respect for international law is “regrettable.”

Manila’s departure from the international crimes tribunal will take effect one year after the date of the notification.

However, under the Rome Statute, which the Philippines ratified in 2011, the withdrawal would not shield Duterte from possible indictment, as criminal investigations and proceedings that started at the time the country was a state party will still continue.

“Duterte won the 2016 presidential election in the Philippines with the slogan ‘Change is coming’… Duterte clearly now dreads the likelihood that justice is coming,” Kine also said.



ICC: Withdrawal won’t affect review of accusations against Philippine President Duterte

March 16, 2018


Building of the International Criminal Court in The Hague, Netherlands.


Audrey Morallo ( – March 16, 2018 – 5:46pm

MANILA, Philippines — The Philippines’ withdrawal from an international treaty creating the International Criminal Court will not affect the initial review of accusations against President Rodrigo Duterte.

The International Criminal Court’s public affairs unit said on Friday that a preliminary examination of a communication against a state signatory does not involve the issue of jurisdiction yet.

A withdrawal would have no impact on ongoing proceedings or any matter under consideration before it was made.

“[I]n the event of a withdrawal from the ICC, this decision will not affect the continuation of the preliminary examination process. Nor does it affect the continuing obligation of the State concerned to cooperate with the Court in relation to an investigation initiated before the withdrawal came into effect,” the ICC’s Public Affairs Unit said in a statement to

The tribunal said that even if its prosecutor, Fatou Bensouda, would wish to proceed with an investigation of the situation in the Philippines she would have to request authorization first from the Pre-trial Chamber of the Court.

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Left: Rodrigo Duterte; Right: ICC prosecutor Fatou Bensouda

This body would make its own assessment if the legal criteria for an opening of a probe were met. Issues of complementarity, or whether the Philippines has primacy over the case, should at first be resolved.

Complementarity principle states that the ICC could step in only if local courts have been proven to be unable or unwilling to genuinely investigate or prosecute international crimes.

“A preliminary examination is not an investigation. It is merely an initial step by the ICC Office of the Prosecutor to determine whether there is a reasonable basis to proceed with an investigation,” it said in a separate e-mail.

The ICC said that an exit is the decision of the concerned state. Withdrawal would take effect one year after the deposit of a notice with the United Nations Secretary General.

“In order to address atrocity crimes and deliver justice to victims across the world, it is essential that States’ participation in the Rome Statute is not only maintained and reinforced, but enlarged,” it said.

On Friday, Philippine Ambassador to the UN Teodoro Locsin Jr. submitted the country’s letter of withdraw from the Rome Statute.

The ICC, however, urged the Philippines not to follow through with its intention to withdraw because it is an important party to the Rome Statute, the treaty that created the tribunal.



Philippines: Investigation of Duterte abuses will go ahead, human rights groups say — Duterte “may have unwittingly displayed his fear of being proven guilty.”

March 15, 2018


Philippine Drug Enforcement Agency (PDEA) agents and police arrest an alleged drug dealer during a drug raid in Maharlika Village, Taguig, south of Manila on February 28, 2018. (AFP)

MANILA: President Rodrigo Duterte’s announcement that the Philippines will withdraw from the International Criminal Court (ICC) will not effect its investigation of alleged human rights abuses during his war on drugs, Filipino human rights groups said on Thursday.

Duterte announced on Wednesday that the Philippines would withdraw ratification of the Rome Statute, the treaty that established the ICC, “effective immediately.”

Sen. Risa Hontiveros commented that Duterte’s move “only exposed (his) fear of being subjected to international scrutiny and prosecution.”

She added that Duterte “may have unwittingly displayed his fear of being proven guilty.”

Hontiveros added even if it was lawful to withdraw the Philippines from the ICC — which it was not — Duterte could still be held liable for “offenses committed while the Philippines was signatory to the ICC.”

She pointed out Article 127 of the Rome Statute states that “a withdrawal is effective only one year after receipt of notification.”

On Thursday, Malacanang defended Duterte’s decision to withdraw from the Rome Statute, saying it was due to ICC prosecutor Fatou Bensouda’s violation of the principle of complementarity.

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Left: Rodrigo Duterte; Right: ICC prosecutor Fatou Bensouda

This principle states that the ICC can only prosecute crimes when the state’s local courts are unable or unwilling to do so, which presidential spokesperson Harry Roque, Jr. said is not the case in the Philippines.

Stephen Cutler, an international security expert and former Federal Bureau of Investigation (FBI) legal attaché, said: “The ICC has jurisdiction over incidents or crimes that occurred while the state is a member.

“So, if the Philippines withdraws, it doesn’t matter because what they’re looking at are civilian deaths that occurred while the Philippines was a member.”

Human Rights Watch Associate Director Param-Preet Singh explained that ICC withdrawal requires a formal notification to the UN secretary-general, and only becomes official a year later.

“Even then, the court can still prosecute any international crimes committed while the Philippines was still an ICC member,” Singh said, criticizing Duterte’s attempt to “run from justice.”

“His announcement to pull out of the ICC, which is designed to prosecute those most responsible for grave crimes, is a barefaced attempt to shield him and high-ranking officials from possible ICC prosecution,” Singh said in a statement.

He further said that Duterte’s latest move highlights the urgent need for a UN-led investigation into the drug war killings.

For his part, Sen. Antonio Trillanes IV, a staunch critic of Duterte, said the decision to withdraw from the Rome Statute is a political move by the president “because he knows that there is no way out for him in the ICC.”

Disarray and disunity in the Philippines — Seeking a subservient judiciary

March 15, 2018


 / 05:32 AM March 15, 2018

There’s a simple but profound reason why justice is portrayed as a blindfolded woman holding up a pair of scales. The blindfold is meant to shield judges from the chaos of conflicting views, biases and opinion that could color their ruling on the case before them.

The current disarray and disunity in the judiciary illustrate exactly what happens when outside forces, especially politics, are allowed to intrude into its sacrosanct chambers.

On Monday, judges and court employees all over the country wore red and read a statement calling on Chief Justice Maria Lourdes Sereno to make the “supreme sacrifice” of resigning to “spare the Supreme Court” from the distracting spectacle of an impeachment trial.

The Chief Justice, who was compelled by her fellow justices to go on indefinite leave, has been the subject of impeachment hearings at the House of Representatives since last year. She is accused of culpable violation of the Constitution and betrayal of public trust for, among others, failure to file her statements of assets, liabilities and net worth, tax evasion, and administrative lapses. Her camp maintains that these supposed offenses are not grounds for impeachment.

A quo warranto petition questioning Sereno’s qualification for the post has also been filed by Solicitor General Jose Calida, and now awaits the justices’ decision as to its merit.

Sereno described such “gimmicks” as an indication that the case against her is weak. But former chief justice Hilario Davide Jr. was more forthright: The “Red Monday” protests, he said, was a case of “condemning without evidence, a resort to the rule of men … that openly disregards due process.”

“If there is anything that will destroy the faith of our people in the judiciary, it is the perception that judges themselves are unwilling to await the results of a constitutional proceeding or a statutory process,” Davide said.

His concern seems well-founded. Reports from the provinces and other sources indicate that the court employees were duped into wearing red as “a sign of unity.”

“We were deceived,” said an employee from the Mandaue City Hall of Justice. A text message received by the employee and others read: “Let’s all wear RED tomorrow, Monday, and attend the flag raising ceremony as a sign of unity in the Supreme Court. Pls. pass.”

Sereno named a “court administrator” as having orchestrated the protests, but earlier, she had gone further and asked on whose order Calida had initiated the quo warranto petition.

But then again, people might ask: Why cling to a post when most of her peers apparently want her out?

Because, as Sen. Antonio Trillanes warned on Sunday, any attempt to remove the Chief Justice other than through impeachment would be unconstitutional and a “brazen usurpation” of Congress’ exclusive power.

Because, as Sereno had repeatedly declared in various forums, this is not her personal battle but a fight for an independent judiciary that is coequal with the executive and legislative branches of government, the better to safeguard the principle of checks and balances.

Resigning “would only serve to erode the independence of the Supreme Court and embolden those who demand a subservient judiciary,” Sereno said. To do so “would invite the kind of extra-constitutional adventurism that treats legal rights and procedures as mere inconveniences that should be set aside when it suits the powers that be.”

Resigning would also amount to her abandoning her fight for the rule of law and for the right of every accused to be heard and to present evidence in their defense, the Chief Justice said, adding: “I do not make choices in life on the basis of what is the easier option, but what is the right thing to do.” She challenged her detractors to elevate the case to the Senate where she could respond to the charges.

But while the House committee on justice has found probable cause to impeach Sereno, some of its members said they were willing to wait for the Supreme Court to act on the quo warranto petition.

Why the wait? one might ask.  If the House were so sure of its case, why delay the process? Let’s get on with it and give Sereno her day in court. It’s the least that she — and anyone accused — deserves.

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Philippines’ withdrawal from ICC a ‘cowardly option’ — Amnesty says — “When Duterte Compared Himself to Hitler, We Should Nave Taken Note.”

March 15, 2018

Philippine President Rodrigo Duterte gestures as he speaks during a press conference in Davao City, in the southern island of Mindanao on February 9, 2018. (AFP)

Gaea Katreena Cabico ( – March 15, 2018 – 3:35pm

MANILA, Philippines — London-based rights group Amnesty International slammed the decision of President Rodrigo Duterte to withdraw the Philippines’ inclusion in the International Criminal Court, calling the move “misguided” and “deeply regrettable.”
Duterte on Wednesday announced the country’s withdrawal of its ratification of the Rome Statute, the international that created ICC, “effectively immediately.”
One of the reasons he cited was the supposedly illegal attempt by the international tribunal’s prosecutor to place him under ICC’s jurisdiction.
But James Gonzalez, AI’s regional director for Southeast Asia and the Pacific, said that the government is attempting to run away from accountability.
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Left: Rodrigo Duterte; Right: ICC prosecutor Fatou Bensouda
“If the Philippines truly believed that the ICC did not have jurisdiction over crimes committed in the country, they should challenge that in the proper way—which is at the ICC,” Gonzalez.
He added: “Instead, they have taken the cowardly option of trying to evade justice.”
The AI executive noted that the latest move of the Philippine government shows that those in power are “more interested in covering up their own potential accountability for killings” than they are in ensuring justice for the victims of the ferocious “war on drugs.”
He, however, said that the country’s withdrawal “comes too late” to stop the ICC preliminary examination.
Last month, the international tribunal announced that it had opened an initial inquiry into the alleged killings linked to the government’s crackdown on illegal narcotics.
“Duterte cannot stop international accountability in the Philippines simply by deleting his signature from the Rome Statute,” Gonzalez said.
Human Rights Watch also said that the court could still prosecute any international crimes committed while the Philippines is still an ICC member.
According to the Article 127 of the Rome Statute, the withdrawal shall take effect a year after the written notification of the withdrawal is received by the United Nations secretary-general.
“Its withdrawal shall not affect any cooperation with the court in connection with criminal investigations and proceedings in relation to which the withdrawing state had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the court prior to the date on which the withdrawal became effective,” the treaty also said.





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China has militarized the South China Sea — even though they have no legal claim. This is Mischief Reef, now an extensive Chinese military base — one of seven Chinese military bases near the Philippines

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China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

Philippines says its exit marks ‘beginning of the end’ for International Criminal Court — Duterte Says International Law is “Oppressive”

March 15, 2018

The International Criminal Court had opened a preliminary examination had been opened into President Rodrigo Duterte’s deadly war on drugs, to look into whether crimes against humanity had been committed. (Reuters)
MANILA: The Philippines said on Thursday its withdrawal from the International Criminal Court (ICC) could be “the beginning of the end” for the institution, as more countries would follow suit and non-members would be discouraged from joining.
The announcement to withdraw comes five weeks after a court prosecutor said a preliminary examination had been opened into President Rodrigo Duterte’s deadly war on drugs, to look into whether crimes against humanity had been committed.
But according to Duterte’s spokesman, Harry Roque, that examination “violates the very fundamental basis by which we gave our consent to be bound by the ICC.”
ICC prosecutors have yet to comment on the announcement.
In a statement released on Wednesday, Duterte said UN special rapporteurs were trying to “paint me as a ruthless and heartless violator of human right,” and the ICC had acted prematurely and created the impression he would be charged with serious crimes.
Roque said Duterte believes there is a “conspiracy” among lobby groups and the United Nations, to which he said the ICC is perceived to be allied, and wants to indict him “in the court of public opinion.”
“The ICC has lost a strong ally in Asia,” Roque told a media briefing.
“No new countries will join because we are recognized as probably the number one defender of human rights and democracy in the world,” added Roque, a lawyer and prominent advocate for the Philippines joining the ICC in 2011.
Duterte’s opponents wasted no time in accusing him of flip-flopping, pointing out that he had repeatedly dared the ICC to indict him and said he would “rot in jail” to defend a war on drugs during which police have killed thousands of people.
They said Duterte’s decision was an admission of guilt and a sign that he was panicking.
Human rights and jurist groups condemned him for what they saw as an attempt to evade justice and accountability, and said a withdrawal was pointless, because jurisdiction applied retroactively, for the period of membership.
In an interview with ANC news channel early on Thursday, Roque warned of an “avalanche of other states leaving.”
“This is the beginning of the end of the court,” he said, adding that the ICC would have no jurisdiction over the Philippines, and it was unlikely Duterte would ever be handed over to the court.
Presidential legal counsel Salvador Panelo said Duterte felt the ICC had become “a tool of oppression, a tool of harassment.”
Jude Sabio, the lawyer who filed the ICC complaint last year, told ANC that the issue of an arrest warrant for the president would be a “big triumph of justice.”



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China has militarized the South China Sea — even though they have no legal claim. This is Mischief Reef, now an extensive Chinese military base — one of seven Chinese military bases near the Philippines

No automatic alt text available.

China says it has sovereignty over all the South China Sea north of its “nine dash line.” On July 12, 2016, the Permanent Court of Arbitration  in The Hague said this claim by China was not valid. But China and the Philippine government then chose to ignore international law.

Hong Kong’s judges voice fears over China influence in judiciary — Western Style Law Meets Xi Jinping’s Law

March 15, 2018

HONG KONG (Reuters) – As Hong Kong’s judges and senior lawyers paraded in ceremonial wigs and gowns on Jan 8 to mark the start of the legal year, anxieties over China’s growing reach into the city’s vaunted legal system swirled with the wintry winds.

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Chief Justice Geoffrey Ma Tao-li (fourth from left) and other guests attend the Opening of the Legal Year in Hong Kong, January 2017.  The rule of law – which needs an independent judiciary – is widely accepted as the No 1 advantage that Hong Kong has as a business and financial centre. Photo: Sam Tsang

At a private cocktail reception with leading judges before the event, one of the topics of discussion was concerns over Beijing’s influence in the judiciary, according to one participant who requested anonymity.

Hong Kong’s judges are increasingly expressing such fears in private, concerned that interpretations and amendments from China’s parliament could soon force them to curb the city’s freedoms, according to interviews with four veteran judges, as well as with sources close to several others.

The judges interviewed said that while they believe the independence and integrity of the judiciary remains intact, such interpretations could effectively mean Beijing is telling them what to do, limiting their authority on key political and security issues.

“We know Beijing has their own fears” over Hong Kong, said one judge, a veteran of Hong Kong under both British and Chinese rule. “But if they interpret too frequently, the risk is they will leave us nothing left on which to rule.”

Such remarks are highly rare from Hong Kong judges, who tend to be cautious and are prevented by convention from publicly raising political issues.

Hong Kong’s rule of law is widely seen as a cornerstone of the former British colony’s international reputation as a business hub, key to protecting its autonomy from a Communist Party leadership wanting greater control.

Any erosion of that reputation could undermine Hong Kong’s relative attractiveness as a business center for investors compared to mainland Chinese cities like Shanghai or Shenzhen, or regional rival Singapore.

Neighboring Macau too has been facing such pressures.

China’s Hong Kong and Macau Affairs Office, which is overseen by China’s cabinet, the State Council, did not immediately respond to questions from Reuters.

Hong Kong’s legal and social freedoms are far greater than those that exist across mainland China. And, like Hong Kong’s separate legal traditions that are based on common law, they are detailed in a mini-constitution known as the Basic Law under a “one country, two systems” formula.

While Beijing’s leaders publicly say they respect Hong Kong’s rule of law as part of its high degree of autonomy, some judges and lawyers remain skeptical.

“There is a marked climate of unease among my peers” that “wasn’t there a few years ago,” said a second judge.

With the prospect of President Xi Jinping ruling China indefinitely following the scrapping of term limits this month, anxieties have resurfaced over his stance towards Hong Kong.

In a landmark speech in the city last June, Xi warned that Beijing would brook no challenge to its authority. In previous speeches he has suggested a blurring of the separation of powers between the government and judiciary in Hong Kong.

For some, the situation highlights an awkward contradiction within the Basic Law: even as it guarantees Hong Kong’s judicial independence, the document still grants final power of interpretation to a committee of the National People’s Congress, China’s parliament.

That puts the parliament beyond Hong Kong’s top Court of Final Appeal, a body that includes leading jurists from Britain, Australia and other common law jurisdictions.

Some judges have also expressed concern to Chief Justice Geoffrey Ma, according to people familiar with the situation.

“They use the constitution as a protector of their rule, not as a protector of civil rights,” said Audrey Eu, a senior barrister and former democratic politician, referring to Beijing. “They can interpret it any way they like.”


“The judges see themselves as trapped,” said one diplomat close to the situation. “They might be independent as ever, but the National People’s Congress in Beijing is not independent and they will have to increasingly implement party diktat.”

Asian and Western envoys are watching closely, with some describing Hong Kong’s legal system as the one institution that Beijing has yet to fully penetrate, unlike other spheres like politics, academia and the media.

Hong Kong corporate lawyers say international clients such as hedge funds are now questioning the city’s legal future and potential role of Beijing. In contracts, some are stipulating that Singapore be used as a host for any arbitration, they say.

Kevin Yam, a commercial lawyer and media columnist, said that even if interpretations were political rather than commercial, “the perceptions created by them could still lead to much more work needed to be done to convince international investors that Hong Kong’s rule of law is largely intact.”

A U.S.-China Economic and Security Review Commission report last November noted the importance of the link between Hong Kong’s strong rule of law and economic openness.

During the commission’s trip to Hong Kong last May, observers “noted the risk for Hong Kong’s continued importance as Asia’s financial center if companies and individuals lose confidence in Hong Kong’s rule of law and other freedoms as they are eroded by Beijing,” the congressional report stated.

Beijing’s power of interpretation has been sparingly used since Britain returned Hong Kong to Chinese rule in 1997. The last interpretation, in November 2016, was made preemptively ahead of a local court hearing to effectively bar pro-democracy lawmakers who had mocked their oath taking.

The prospect of tougher national security laws, a crackdown on an independence movement and a plan to give mainland security personnel legal control of a local rail platform could all spark legal challenges, and risk interpretations as Beijing seeks greater control.

Some judges and lawyers said that when Beijing issued its first interpretation in 1999, it was seen as a last resort. The threshold is now far lower, they fear.


Elsie Leung, a lawyer who served for eight years as Hong Kong’s first justice secretary after the handover, acknowledged those fears but said the system is working well and Beijing is entitled to interpret where it sees necessary.

When asked whether Beijing had grown more confident about exercising its Basic Law powers, even preemptively, she said “now, after the accumulation of all their experience they are able to do things more expeditiously”.

But Leung, who serves on the NPC’s Basic Law Committee, added that “the rule of law and judicial independence are well protected under the Basic Law” and that interpretations would still be made sparingly.

She added that Beijing needed certainty on key judgments that it felt affected national sovereignty, saying such matters were “in the interests of any government”.


When he opened the legal year, Chief Justice Ma didn’t directly address fears of pressures from Beijing but repeatedly stressed the importance of common law.

“It is regarded as vital to the continuing success of Hong Kong not only from financial or business points of view, but also everyone in the community as a whole,” he said.

When asked later by Reuters about judges’ fears of interference from Beijing, he skirted the issue but stressed the “professionalism” of the Hong Kong judiciary.

The main pressures on them, he said, was “that they act in accordance with the law and to get it right”.

As well as making judgments, Ma heads a body that oversees judicial promotions and appointments, making recommendations to Hong Kong’s chief executive.

By convention, those recommendations are always accepted. But the chief executive maintains veto power.

Some judges, and those close to them, see that veto power as a potential weak point should Beijing lean on the Hong Kong government to exert greater control.

“So far the system works and we are left alone,” said one committee member, speaking on condition of anonymity. “And we all want to ensure that continues.” The committee member added: “It would be truly shocking for the government to meddle with us.”

A spokesman for the judiciary said Ma would not comment on written questions submitted by Reuters.

Editing by Philip McClellan


Why the rule of law and an independent judiciary are so important for HK’s future

The courts are able to review the actions of the legislature so there is a balance of power


Justice is often depicted as blind to symbolise objectivity.
Photo: EPA

Last year was highly eventful for the “rule of law” in Hong Kong. I am sure that many Hongkongers have seen related news reports and heard heated debates about whether the rule of law is slowly weakening in Hong Kong.

The law is basically a set of rules that citizens must follow, and these rules are enforceable by the courts. Hong Kong’s laws come mainly from these sources: the Basic Law, ordinances, and common law (i.e. previous judgments made by judges).

An important feature of the law is that it is enforceable by courts. Therefore, most school rules, rules in ball games, and company guidelines are not actually “law”. The study of law and the principles on which law is based is called jurisprudence, which you can study at law school.

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All people, including government officials, must abide by the law. That is the rule of law! Any legal dispute about whether a law has been broken should be solved by an impartial court. That is why an independent judiciary (the court system) is important. Imagine if the government controlled the courts. If a government official broke a law, he could try to influence the judges and escape liability.

Another important aspect of the rule of law is the ability of the courts to carry out a judicial review. Under Article 35 of the Basic Law, Hong Kong courts have the power to judicially review actions taken by the executive and legislature. This legal capacity is part of a system of checks and balances between the judiciary and executive and legislative powers. After a judicial review, a court may declare that a decision by the government falls outside the scope of its powers.

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However, vicious comments made against the judiciary may harm the rule of law. In August 2017, three leading democracy activists, including Joshua Wong Chi-fung, were jailed. Heated debates followed. Some people claimed it was “political persecution”, while others criticised the custodial sentence for being too short. The unintended impact of this criticism is that the public might have less respect, trust and confidence in the judiciary.

By criticising the judgment, people are implying that the judiciary is giving in to political pressure or is unable to impose an appropriate sentence.

Hopefully this article has given you some insight into the concept of the rule of law. In Hong Kong, the rule of law guarantees our basic rights and ensures that the government acts within its legal boundaries. For Hong Kong to be stable and prosperous, there has to be a solid rule of law, and public awareness of this is essential.

At a time when the Philippine National Police (PNP) has been committing widespread rights violations without accountability, granting further powers to act without judicial authorization is a recipe for disaster

March 14, 2018


Black letter, dark times

 / 05:10 AM March 14, 2018

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Philippine National Police chief Director General Ronald dela Rosa

On paper, it doesn’t seem like such a bad idea. The principal author of the new law allowing three officials of the Philippine National Police to issue subpoenas justified it on grounds of more effective policing.

In sponsoring the measure that eventually became Republic Act No. 10973, Sen. Panfilo Lacson, famously a former PNP chief himself, called for the return of a set of powers once exercised by the police.

“It seems absurd that the Criminal Investigation Unit (CIU), now known as the CIDG [Criminal Investigation and Detection Group], with a mandate to undertake monitoring, investigation and prosecution of all crimes of such magnitude and extent as to indicate their commission by highly-placed or professional syndicates and organization, has lost its subpoena powers.”

And on paper, it doesn’t seem to make as much sense to provide an agency tasked with “monitoring, investigation and prosecution” of major crimes like the National Bureau of Investigation with subpoena powers and to withdraw the same powers from the PNP’s CIDG.

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Philippine National Police chief General Ronald Dela Rosa whispers to President Rodrigo Duterte during the announcement of the disbandment of police operations against illegal drugs at the Malacanang palace in Manila, Philippines on Jan 29, 2017.PHOTO: REUTERS

Aside from the NBI, other agencies of the government, including the chambers of Congress, the Department of Justice, the Ombudsman and of course the courts, could issue subpoenas compelling the appearance of persons and of subpoenas duces tecum compelling the presentation of material of interest to an investigation.

The black letter of the law, however, must be read in context — and in the context of both recent history and the turbulent present — the grant of subpoena powers to the PNP has rightly set the Spidey-sense of human rights advocates tingling.

“At a time when the PNP has been committing widespread rights violations without accountability in the war on drugs, granting the police further powers to act without judicial authorization is a recipe for disaster,” Carlos Conde of Human Rights Watch said.

We are, after all, talking about the same Philippine National Police whose conduct of the government’s signature antidrugs campaign has been suspended twice because of public outcry over truly scandalous killings.

We are talking about the same organization which changed its definition of Kipo, suspects killed in police operations, and invented a new category of killings, DUI or death under investigation, to manage public anxiety over the campaign, only to finally decline to yield the information on campaign-related killings to the Supreme Court.

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The ones we need to hear from are mostly dead….

We are talking about the same government agency which receives high satisfaction ratings overall but on specific issues, such as whether it is telling the truth when its police officers say suspects in the antidrugs campaign were killed because they fought back, generates very little trust from the public.

Not least, we are talking about a set of powers enjoyed by a police organization disbanded after the Edsa People Power Revolution and replaced by the PNP because its very initials, PC, short for the Philippine Constabulary, were code for rampant corruption and pervasive abuse.

The horrors of our history under martial rule, and the conduct of an antidrugs campaign which, no matter which statistics one cites, qualifies as a calamitous bloodletting, justify these expressions of alarm.

Even PNP Director General Ronald “Bato” dela Rosa acknowledges that the law, which grants subpoena powers to the PNP chief, the director of the CIDG, and the CIDG’s deputy director for administration, is not as simple as it reads on paper.

Rather than embracing the new law as a validation of his command of the PNP or his control of the antidrugs campaign or the President’s vote of confidence in him, having extended his term twice, a subdued Dela Rosa said: “I will not use it. While the CIDG is there, I will not use that. Maybe you’ll say I will use that against the political enemies of the Duterte administration? … Tell them, rest assured I will never use it while the CIDG is functioning.”

This is proof, perhaps unintentionally provided, that the context in which the measure became law is, or rather remains, a real problem.

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© Noel Celis, AFP | A Philippine Drug Enforcement Agency (PDEA) agent secures part of a street holding residents temporarily during a drug raid in Maharlika Village, Taguig, south of Manila on February 28, 2018.