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(Speech delivered by Rep. Edcel C. Lagman, a member of the House Minority, on 27 July 2016)

The State of the Nation Address (SONA) is a concrete articulation of a President’s assessment of the nation’s status, as well as his policy statements and proposed legislation. This is particularly true with respect to the first SONA of a new President.

It is also a constitutional duty.

It is for these reasons that the SONA is documented in a well-prepared speech read by the President, ideally devoid of motherhood statements and with a minimum of adlibs and populist sound bites.

It is unfortunate that President Duterte meandered from his prepared speech into spontaneous and repetitive references on varied subjects and details, losing necessary focus.

In the process, the President must have missed reading important points in his prepared address.

Consequently, this reaction to the SONA will include subjects on which the President has previously pontificated but not expressed by him in the delivered SONA.

The Contra-SONA does not only adhere to tradition. It is also a manifestation of the political opposition’s common alternative advocacy and differing views as well as the positions of individual minority members.

But before demurring from some of President Duterte’s policy statements and directions, let me start by underscoring the Minority’s qualified agreement with the following presidential pronouncements, either in the SONA or previously announced:

(1) Outlawing of labor contractualization or what is commonly known as “endo” or end of contract to avoid or evade a worker’s assuming permanent status. The guarantee of security of tenure for public sector personnel must be extended with equal efficacy to workers in private employment.

(2) Uncompromising campaign to obliterate the drug menace, arrest and prosecute drug lords and pushers, dismantle drug syndicates and rehabilitate drug users and dependents, but all must be within the parameters of due process and rule of law. Extrajudicial killings, as experienced in other countries, will not solve the drug problem.

(3) Prioritizing the construction and development of railway systems in the country like the Manila-Nueva Viscaya, Manila-Sorsogon, Manila-Batangas lines and the whole of Mindanao. No country has fully developed without a viable and reliable railway system. It is the cheapest mode of passenger and bulk transportation. It also encourages rural production as affordable transport of countryside products is assured.

Incidentally, billions of pesos have been wasted in the failed repeated efforts to rehabilitate the PNR South Line. The carcass of the antiquated Bicol railways is beyond resuscitation. Perforce, a new and modern railroad system must be constructed and developed.

(4) The liberation of impoverished individual farmers from the burden of irrigation fees is long overdue. We welcome the resolve of the new administration to free farmers from irrigation rentals in the same manner that pedestrians are not charged road fees. It would be best to also condone the affected farmers’ rental arrearages.

(5) We also appreciate the President’s call for the full implementation of the Responsible Parenthood and Reproductive Health Law and its adequate funding support. The enforcement of this historic law must be complemented with the immediate implementation of the mandated reproductive health and sexuality education.

Now to the Minority’s dissent.

First, the proposed revival of the death penalty in the Administration’s House Bill No. 001 is a retrogression. The abolition of the death penalty in 2005 under Republic Act 9346 was the culmination of a multi-year crusade which I spearheaded. Its proposed re-imposition is a patent affront to human rights and an abandonment of modern penology’s focus on rehabilitation of the convict, not the exaction of retribution.

The revival of capital punishment even for heinous crimes is an anachronism and execution by hanging is inordinately aggravating.

The death penalty should not be revived for the following overriding reasons:

(1) It is not a deterrent to the commission of heinous crimes as validated by worldwide empirical and scientific studies. There are no studies indicating the contrary.

The death penalty, in varying forms of execution for various crimes, has been imposed since the dawn of civilization but the commission of crimes, including heinous offenses, has persisted, mocking the death penalty.

The classic example that the death penalty does not deter the commission of crimes is recorded in medieval England where pickpocketing was punishable by hanging. It is documented that every time a convict is hanged, pickpockets had a field day plying their outlawed trade by victimizing the mob witnessing the execution.

(2) What deters the commission of crimes are certainty of apprehension, speedy prosecution and inevitable conviction once warranted.

(3) The death penalty is anti-poor because indigent and marginalized litigants could not afford the high cost of caliber and influential lawyers to secure their acquittal. During the campaign for the abolition of the death penalty, it was shown that 73.1% of death row inmates belonged to the lowest and lower income classes, and only 0.8% (7 convicts) came from the upper socio-economic class.

(4) Human justice is fallible. The Supreme Court has repeatedly ruled that “Courts should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.” (Atienza vs. People, G.R. No. 188694, February 12, 2014). The execution of the death penalty is irreversible, including on those who may be innocent.

(5) Rehabilitation, not retribution, is the thrust of modern penology.

(6) Only God can forfeit life. No human authority has the power to kill, even if judicially mandated as a recompense for another lost life.

(7) The death penalty exacerbates the culture of violence and emboldens the monster in man.

According to the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, “on every level, death penalty is wrong.” He further stated that the “backsliding on the abolition of the death penalty will disregard the Philippines’ international obligations as a State Party to the Second Optional Protocol to the International Covenant on Civil and Political Rights wherein the Philippines committed to renouncing capital punishment forever.”

Second, another retrogression is the lowering of the minimum age of criminal responsibility from the present 15 to nine years of age as proposed in House Bill No. 002.

Criminal responsibility is a grave burden which is generally limited to adult offenders and those above 18 years old. Since children lack adequate discretion and discernment, they must not be saddled with criminal culpability at a tender age of nine.

It is for this salutary reason that under Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 “a child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.”

It is a gross anti-child measure to impose criminal liability on children starting at a tender age of nine years.

If children at the age of 15 and under are used or recruited by adult offenders or criminal syndicates as couriers, accessories or accomplices, the solution is not to decrease the age of criminal responsibility. The correct response is to make the use of children 15 years old and under in criminal activities as an aggravating circumstance which cannot be offset by a mitigating circumstance, and charge parents or guardians with culpable default in the due exercise of parental authority and discipline in the rearing of their children.

A worldwide survey shows that only four countries (Oman, Belize, Iran [for girls] and Ethiopia) have pegged the minimum age of criminal responsibility starting at nine years even as some countries have lamentably adopted lower ages of criminal responsibility.

There are ten (10) other countries with the minimum age of responsibility at 15 years like the Philippines. They are: Iran (15 for boys), Laos, Maldives, Czech Republic, Denmark, Finland, Iceland, Norway, Sweden and Burundi.

The following 34 countries have legislated the threshold age of criminal liability at 16 to 18: Kazakhstan (16), Kyrgyzstan (16), Mongolia (16), Tajikistan (16), Timor-Leste (16), Uzbekistan (16), Armenia (16), Azerbaijan (16), Belarus (16), Lithuania (16), Luxembourg (18), Moldova (16), Poland (17), Portugal (16), Russian Federation (16), Ukraine (16), Argentina (16), Bolivia (16), Brazil (18), Chile (18), Costa Rica (18), Cuba (16), Dominican Republic (18), Ecuador (18), El Salvador (18), Grenada (18), Guatemala (18), Honduras (18), Nicaragua (18), Peru (18), Uruguay (18), Cape Verde (16), Guinea-Bissau (16) and Sao Tome and Principe (16).

A great majority of the above countries are signatories to the UN Convention of the Rights of the Child like the Philippines, which ratified the covenant in 1990.

Under the aforesaid UN Convention, State parties are urged to undertake the “establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.” The subsequent United Nations Standard Rules for the Administration of Juvenile Justice or the “Beijing Rules”, provides that the “beginning of that age (of criminal responsibility for juveniles) shall not be fixed at too low an age level bearing in mind the facts of emotional, mental, and intellectual maturity.”

The Philippines legislated the age of criminal responsibility at above 15 in Republic Act 9344 in compliance with its international commitments under the UN Convention on the Rights of a Child and the “Beijing Rules”. Lowering the age of culpability to nine years old is a patent backsliding which is inconsistent with our treaty obligations.

Anecdotal impressions, not backed up by hard facts or data, on the reported use of children in the commission of crimes cannot justify the lowering of the minimum age of criminal responsibility. Moreover, children’s access to internet facilities, which in the first place is not nationwide and not available across social classes, cannot be used as a justification for ensnaring criminal culpability of children of tender age.

The Philippine Action for Youth Offenders (PAYO) and Children’s Rights Network (CRN), both children’s rights advocates, jointly state that lowering the minimum age of criminal responsibility from 15 to nine years “undermines the best interest of the child” and would not solve the problem of children committing crimes. They also said that “lowering the age of criminal responsibility will result in negative consequences for children and the public. It will increase the number of children detained for long periods of time, making them more likely to become hardened offenders” and “detention may also increase the likelihood that young people will recidivate compromising public safety.”

Third, it appears that the centerpiece agenda of the present administration is to convert the Philippines from a unitary to a federal state. However, the anchorage of the proposed federalism is nebulous and the projected benefits are grossly tentative.

The country must not venture on a radical constitutional change without a solid prior study delving on the pros and cons of federalism in the light of the following unique Philippine setting: (a) 7,107 diverse islands, (b) mostly financially-strapped local government units, (c) centuries of experience in a unitary system, and (d) a relatively small land area of 300,000 square kilometers, much smaller than the federal states of Australia, Brazil, Canada, United States, Ethiopia, Malaysia, Mexico, Nigeria, Germany, India, Iraq, Pakistan, Somalia, Venezuela and Russia. Territorially huge countries (seven out of the 10 large countries) are constrained to federalize because of their sheer size. The small size of the Philippines may not justify federalism.

We must not be galvanized into frenzied approbation of the proposed federal system – which is principally based on motherhood statements of superior efficacy and unvalidated benefits.

There is also the prior need to sufficiently rebut the following arguments against federalism:

1. It would heighten ethnic and regional rivalries destructive of national unity. Resentments among ethnic groups like Tagalogs, Cebuanos, Bicolanos, Kapampangans, Ilocanos, Tausugs and Zamboanguenos would be inflamed.

2. It would exacerbate imbalances in the development of regional states. Studies have shown that only Central Luzon, Southern Luzon and the National Capital Region have gross regional products (GRP) large enough to be self-sufficient. Hence, the greatest drawback of federalism is that most of the regions may sink deeper into poverty due to their inability to survive without subsidies from the central government.

3. It would create overlaps in jurisdiction as to where the responsibilities of state governments end and where the responsibility of the national government begins.

4. The bureaucracy would balloon because the very nature of federalism necessitates more bureaucrats in both the national and regional levels. This would lead to duplication of functions, inefficiency and opportunities for corruption.

5. Separatists in Mindanao may not be satisfied because they want their own separate state rather than belong to a larger federal Philippines.

6. Change to federalism is costly. It would entail billions of pesos to set up state governments and ensure the delivery of state services. Moreover, the states would have to fund mandatory expenditures like salaries of personnel, development of infrastructure and even the holding of regular elections.

7. Political and economic dynasties will be further entrenched as they would operate in relatively smaller areas of influence.

Although the matter of adopting a federal system is addressed to a constituent assembly or a constitutional convention, the Congress has the preliminary, albeit substantial, jurisdiction to debate the merits or demerits of federalism relative to the need and mode of constitutional change.

It is the Congress which will call for either a Constituent Assembly or Constitutional Convention and appropriate funds for the process of constitutional amendment. The starting point is in the Congress. Or it may not even leave the starting line.

In his SONA President Duterte declared that “human rights cannot be used as a shield or an excuse to destroy this country.” I am sure not a single soul in this august chamber desires to destroy the President’s country, our country.

History documents that human rights have never been used to ruin a country. The historic Universal Declaration of Human Rights was adopted by the United Nations to serve as a potent guidepost of States to ensure the rule of law as they then struggled to reconstruct and rise from the ravages of World War II. Later, the human rights-based approach to governance and development was conceptualized and is now being proposed for adoption by the new administration.

The universality of human rights prescribes that law enforcers respect and protect the human and constitutional rights, more particularly the absolute right to life, of suspected criminal offenders.

As we resolve to combat the drug menace and criminality in general, it is well to remember what the eminent legislator and staunch human rights advocate Jose W. Diokno said: “No cause is more worthy than the cause of human rights … they are what makes a man human. Deny them and you deny man’s humanity.” The late Senator Diokno did not and we should not make any distinction between law-abiding citizens and those in conflict with the law with respect to the State’s obligation to respect, protect and fulfill human rights.

Let us all defend Art. II, Sec. 11 of the Constitution that mandates the State to value “the dignity of every human person” and to guarantee “full respect for human rights” – an injunction that President Duterte and all of us are sworn to uphold.