INITIAL OBSERVATIONS FROM MISSION TO MAGUINDANAO

December 10, 2009 in Uncategorized | Tags: , , , | Leave a comment

The independent Investigative team consisting of Mr. Chris Cobb-Smith and myself was contacted by Atty. Harry Roque of Centerlaw for the purpose of an independent account based on forensic evidence on behalf of the victims. The mission was conducted in partnership with the Commission on Human Rights which has the constitutional mandate to conduct investigations of human rights involving civil and political rights.
The team arrived in Cotabato City on November 29, 2009 and returned to Manila on December 7. We stayed in the area gathering information from direct inspection, talking to relatives, potential witnesses, law enforcement officers and Civil Society activists. This is by no means an exhaustive account of the reconstruction of the facts since for the time being we have not received all documentation collected by different agencies. Our visit however allowed us to have a better understanding of the circumstances in which the crime occurred as well as allow us to piece together some factual information presented in this briefing.

INTERVIEWS
During our time in the area we were able to talk to members of the PNP, victim families, confidential sources and Civil Society organizations.

SITE INSPECTION
The site where 57 bodies were recovered the previous week is located on the top a small hill some three kilometers from the main highway at Barangay San Juan y Ampatuan city.
The site occupies an area of some 500 square meters were three graves of various dimensions were excavated. Upon arrival the site still shown large heaps of dirt extracted during the excavation of the graves and a large number of personal artifacts, car pieces, newspapers and assorted rubbish strewn across the surface. It was cleared that the site had been severely disturbed since discovery and a number of artifacts, primarily recovery by-products such as gloves, empty water bottles and the like, were added.

Upon our arrival to the site it was clear that there still were a number of valuable pieces of evidence that should be collected. We undertook two full examinations using metal detectors in order to locate shell casings and slugs that may assist in determining the minimal number of shooters at the scene. The location of the slugs would facilitate determining whether some of the victims were shot outside the vehicles and then placed back inside likely to be buried in them.
We excavated the three graves to ascertain whether any mortal remains would have been left behind due to the hastiness with which the original exhumation was performed. We also used a cadaver-sniffing dog to verify the empty graves and associated backfill and the surrounding area to exclude the existence of further remains. This way we determined that the scene did not contain any further bodies.
At the site, in our two visits, we recovered over 30 shell casings (5.66 x 45mm). In addition some 4 slugs were also recovered and their position recorded. This is in addition to the over 120 recovered by the police when they processed the scene.
While searching the scene we also came across personal effects, clothes and an intact partial upper denture. The denture was identified by the dentist, family and fiancé of journalist Robert Momay as belonging to Momay.
We examined the available documentation to determine that there were three cadavers still unidentified. The three unidentified bodies had all their teeth or complete upper and lower dentures. This affirms that the mortal remains of Momay were not at the site. However, since his ID and denture were found at the site it was likely that he was originally disposed there.
The vehicles recovered in grave 3 were mangled into a mass of metal. We had access to observe them at the PNP base in General Santos. It was still possible to observe that the back rest of both the passenger’s and rear right seats showed some perforations that could have been caused by a shotgun. One of the vehicles Tamaraw FX was being driven by Mr. Jephon Cadagdagon, a businessman from General Santos we raise the question as to whether he was travelling indeed alone or may have been taking passengers in his way through the area.
Based on the above we have the following preliminary observations and hypotheses, which need further consideration and investigation:
1. The event has been defined by the bodies recovered and not by the number of alleged victims reported.
2. In talking with various persons present at the scene after the killings occur it is clear that the presence of the AFP as a security force while welcome was also a disrupting element in the processing of the scene. Likewise desperate relatives also participated in the recovery process making the situation still more complex.
3. The process of examination of the mortal remains was not centralized; it was spread through a number of funeral homes and undertaken by PNP and NBI teams. A preliminary review of autopsy reports from each of those teams show in some cases considerable differences in detail and description of injuries related to the cause and manner of death.
4. It seems apparent that the identification of the bodies relied heavily on the recognition by their relatives despite the fact that many of them sustained high velocity gunshot wounds in the face and/or were heavily decomposed making them definition unrecognizable. The delay in recovering the bodies made them less recognizable due to the advance decomposition.
5. It is likely that the body of Mr. Robert Momay was handed over to a different family.
6. This would imply that there is at least one more victim, not recovered nor reported and associated to this event.
7. The preliminary observations regarding the seats of the Tamaraw FX carcass found in grave 3 raises the possibility that the driver of the vehicle was not alone.
8. If the latter is true the number of victims could still be higher buried or hidden at another location (since they were not in the 3 graves).

EARLY RECOMMENDATIONS (Based on the observations on the 12 day mission)
In the regrettable scenario that future cases of this kind occur it is recommended that primary responders do not cause irreversible damage to the scene obliterating the recovery of important evidence
1. It is necessary ascertaining whether the versions indicating that upon arrival to the scene and despite the presence of AFP personnel there were other armed men presumably linked to the alleged perpetrators which only allow the recovery of the mortal remains of the immediate family of Buluan vice-mayor, Esmael Mangudadatu.
2. No attempts to define a possible universe of victims and to collect Ante Mortem data for each using common formats such as the Disaster Victim Identification (DVI-Interpol) system were used. By doing that at an early stage some of the problems outlined here could have been avoided. It is clear that the event has been defined by the bodies recovered and not by the number of alleged victims reported.
3. In the future it is more efficient to pool resources together rather than atomize them duplicating efforts or simply by carrying parallel but not necessary complementary investigations. The data collected, the results and the hypothesis of each investigation, such as it has been discussed here are difficult to collate.
4. Any attempt to perform an efficient investigation in a case of this magnitude needs the rapid deployment of experts; while the deployment of international experts in this case was substantially short considering the circumstances it occurred almost a week after the facts.

On the Maguindanao Ampatuan Massacre

November 24, 2009 in Uncategorized | 1 comment

Centerlaw condemns “darkest hour in Philippine journalism”
Reference: Atty. H. Harry L. Roque, Jr.   +639175398096

Manila, Philippines – The Center for International Law (CENTERLAW) condemns in the strongest possible terms the alleged abduction and execution of 40 people in Maguindanao, including 20 local journalists, in what is reported to be an election-related violence.
 “We join all sectors in denouncing this vicious violation of the elementary rules of humanity,” said lawyer Harry Roque, chair of the Manila-based non-profit with a broad advocacy to promote the rule of law in the Philippines and the Asian region through the promotion of international legal norms.
 He said what is especially heinous about the carnage is that even journalists were not spared from the violence. Fresh reports say 21 persons, who were among a group of local politicians and journalists abducted in the southern Philippines on Monday have been found dead.
 “Over the last ten or so years, the press in the Philippines has come under attack,” said Roque, “and yet this is Philippine journalism’s darkest hour – if reports are true that every one in the group abducted by gunmen had been executed, some of them by beheading.”
He called on authorities to immediately dispatch investigators to the scene of the crime to gather evidence and file the appropriate charges against those responsible.
He said CenterLaw is fielding its Executive Director, lawyer Romel Regalado Bagares, to the region to assess the situation and see what legal remedies are available to the families of the journalists who were reported to have been killed in the attack.

CenterLaw, the group that Roque heads, is a member of the Southeast Asia Media Defense Network.
The gunmen responsible for the carnage are allegedly in the employ of a powerful politician in the region.

The Philippines has been on the list of declared hotspots in the world for working journalists. A supposedly peaceful democracy, it has been lumped with the world’s conflict zones because of the unabated extrajudicial killings in the country targeting many journalists.

“This is a horrendous crime,” said Roque. “The killings must end.” He said the Philippine government has continually failed to abide with its obligations under international law to protect its own citizens, let alone journalists, from unabated criminality.   

Among those abducted were the wife of a mayor in Maguindanao province, Esmael Mangundadatu, his aides and supporters.

The journalists were invited by Mangundadatu’s group to a local elections office to where he was set to file his candidacy for governorship of the predominantly Muslim Maguindanao province in the May 2010.

The Mangundadatu clan has a long-running feud with the family of Maguindanao’s incumbent governor Andal Ampatuan, a local warlord and military officials say the latter has in his control about 100 gunmen, most of whom were militiamen he had deputised as security men for his family, according to a news report from the Philippine Daily Inquirer, a Manila-based English-language daily.
 -30-

H. Harry L. Roque; Jr
Chairperson
CenterLaw Philippines
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
1227 Makati City Philippines
www.centerlaw.org <http://www.centerlaw.org>
administration@centerlaw.org
Tel +632.8873894
Fax +632.8873893

GADIAN’S DILEMMA:BANTAY SALAKAY (AN INSIDE JOB)

June 18, 2009 in Uncategorized | Tags: , , , | 7 comments

With the 9th Division of the Court of Appeals granting Navy Lt. Sr. Grade Nancy Gadian a Protection Order, the latter has without a doubt, been vindicated. Obviously, we, – Lt SG Mary Nancy Gadian and her lawyers and supporters – are also elated and grateful to both the Supreme Court for granting her a Writ of Amparo and to the Court of Appeals for the Writ of Protection order extended to her. In granting both the writ of Amparo and the Protection order in less than one month in record time, our courts have also upheld the efficacy of the writ of amparo as a means to protect the most important human right of them all: the right to life.

The CA decision is also significant since it is the first time that the ruling of the Supreme Court in the case of Secretary of Defense vs. Manalo et al., was literally applied. Until the case of the Manalo brothers, it was incumbent upon the Petitioners in Amparo cases to prove – and here previous CA decisions apparently required proof beyond reasonable doubt when the rules require only substantial evidence – the actual threat to ones life, liberty and security, as well as the authorship of these threats. But applying now the decision in the case of the Manalo brothers, the CA applied instead the correct standard, that is freedom from fear from a threat to one’s life, liberty and security. While the CA did not Order the respondents to cease and desist from making threats which the CA said was not proved by Petitioners, still the Court, as Lt. SG Gadian argued, ordered the AFP leadership to investigate these threats. This part of the decision implements our Treaty obligation relative to the right to life under the International Covenant on Civil and Political Rights (ICCPR) which includes both the duty to protect and promote the right to life, along with a duty to investigate , punish and prosecute those who may even wish to violate the right to life.

While Gadian has good reasons to be truly elated with the CA decision, we at the Center for International Law (CENTERLAW) who acted as her lawyers for the Petitioner, her sister Nedia Diamante-Gadian, still have reasons to be very concerned. This is because while the court gave credence to Gadian’s complaint that the threat on her was emanating from yet unidentified persons in the military, the CA decision nonetheless ordered the Secretary of National Defense to protect her. Even prior to the CA decision, the Secretary of the DND has publicly offered to protect Lt. SG Gadian. This, however, we rejected for at least two reasons: one, the fact that the Secretary of the DND has shown himself biased in favor of the military hierarchy that he still heads. In fact, in a statement dated May 23, 2009 which the Secretary caused to be distributed to the media, he cautioned the CA in granting Gadian’s petition : “We are hoping the court will be careful in reviewing the petition and the circumstances behind it as well as granting such relief as this could affect the chain of command and the implementation of the disciplinary system in the military.” This is a clear indication that the Secretary, now tasked with protecting Gadian, is more concerned with the military chain of command than Lt. SG Gadian’s right to life. Second, the DND, albeit in civilian in character, could only extend protection to Lt. SG Gadian through its military personnel. This was unacceptable and continues to be so because of the obvious security risk posed by military personnel protecting a military whistleblower whom the CA found is the subject of threat emanating also from the military institution.

This is why it is now imperative for the Supreme Court to proceed forthwith to accredit private providers of safe havens to implement protective orders issued by our courts in Amparo cases. Unless this havens are accredited as soon as possible, we will have further repeats of what appears to be a ludicrous scenario: protection to be provided by the same institution responsible for the threats to begin with.

It is hence our intention to partially appeal the CA decision on the matter of who should provide protection to Lt SG Gadian. We will ask the Supreme Court to amend the appellate Court’s Order to allow the Association of Major Religious Superiors to continue to provide protection and sanctuary to Lt. SG Gadian, but with a further plea that the Head of the Human Rights Office of the Philippine National Police should provide her and the AMRSP with 24 hour security and protection.

Dangerous Seas

June 18, 2009 in Uncategorized | Tags: , , , | 3 comments

 

The collision between a Chinese submarine and an underwater radar being towed by a U.S. military ship in waters off the coast of Subic underlies the security threats to the Philippines caused by the recent passage of the new baselines law. This recent incident shows how the Philippine waters could become a danger to itself.

 

On June 14, a Chinese submarine bumped against the sonar equipment of the USS John S. McCain, a guided missile destroyer.  The sonar is attached to the McCain by a long cable, and is used to remotely detect objects underwater.

 

Our 2009 Baselines Law is largely based on the United Nations Convention on the Law of the Seas. Before the law was passed, the waters in and around the islands of our archipelago are “internal waters.” Under this doctrine, foreign vessels, including submarines and warships, can only “sail through” our internal waters after getting the Philippine government’s express consent. Under customary international law, these vessels are also allowed to sail through our “territorial seas,” or the waters within 12 nautical miles from our baselines.

 

Under the new baselines laws, the waters in and around our islands are now classified as “archipelagic waters.” Under this doctrine, submarines and warships not only have the right to innocent passage, but aircrafts may also exercise the right to overflight, with our without our consent. This is precisely why concerned citizens led by Prof. Merlin Magallona of the University of the Philippines College of Law challenged the constitutionality of the said law before the Supreme Court.

 

Philippine and American authorities insist that the collision happened in international waters, despite wire reports that the collision happened near Subic, a former American naval facility. Philippine authorities understandably insist upon this as the incident is a realization of one of the security dangers already earlier raised by concerned citizens before our court. At the very least, the collision inspires fresh debates over security concerns that have become real.

 

To begin with, while the UNCLOS grants submarines and warships the right to exercise innocent passage through territorial seas and archipelagic waters, this must be done in the context of a continuous and uninterrupted journey requiring passage through these waters. It is a long stretch to justify as innocent passage the presence of an American destroyer towing a sonar array in close proximity to a Chinese submarine near a former US naval base. It is also important to point out that the waters off Subic are not used as established sea lanes – the South China Sea already serves that purpose.

 

Philippine Navy officials have admitted they did not receive any request from either the Chinese or the Americans to allow their respective vessels passage through our waters. Apparently, the Philippine Navy is ready to conclude that in the absence of such a request, the collision could only have happened in international waters. The problem with this explanation is that it accords the superpowers too much benefit of the doubt. The more plausible scenario is that the two military vessels were shadowing each other. Why so near the Philippines? And even if we grant that the collision happened outside Philippine territories, why is such shadowing of each other happening in waters that are characterized by conflicting territorial claims?

 

It is very revealing that the two military vessels could afford to be nonchalant in their brazenness off the coast of Subic: the Arroyo government is subservient to both Beijing and Washington DC.

 

The Philippine Constitution provides that the Philippines is a nuclear free zone. How does the government now reconcile this provision with the new baselines law that effectively allows all vessels, including those carrying nuclear materials, access to almost the entirely of our waters? In the event of radioactive contamination resulting from a collision similar to this recent one, who will pay for the cost of clean up?

 

Finally, it is worrisome that Philippine officials habitually seek refuge from the doctrine of classified information on ground national security in refusing to divulge all facts relating to this collision is particularly worrisome. The fact that our waters could already be used by superpowers as theaters for war certainly makes this matter one imbued with intense public interest. And yet, the refusal of all powers concerned to even acknowledge where exactly the collision occurred violates the right of the Filipino people to information on matters involving public interest. This is perhaps why the incident is living proof that our waters, particularly with the Baselines law,  have indeed become dangerous seas.

MARTIN’S LUPANG HINIRANG: MAY BE IN BAD TASTE, BUT CONSTITUTIONAL

May 10, 2009 in Uncategorized | Tags: , , , | Leave a comment

In the ongoing debate about whether Martin Nievera’s rendition of Lupang Hinirang during the Pacquiao-Hatton fight should be the subject of criminal prosecution for allegedly violating the Flag law, reliance has been had on the literal provision of the law which prohibits the ‘rendering of the song’ in a manner that departs from the original score of the national anthem. Little thought has been devoted on whether even assuming there is a breach of the law, the matter could be acted upon by our courts and whether the flag law itself could stand the scrutiny of constitutionality.

First, the said rendition cannot be made the subject matter of any criminal proceeding because it was sang outside Philippine jurisdiction, in Las Vegas, Nevada. It therefore cannot fall within the jurisdiction of Philippine courts.. It is axiomatic that criminal jurisdiction is anchored principally on territorial jurisdiction, that is, courts can only hear and decide cases over incidents that took place within its territorial jurisdiction. While this rule is subject to exceptions, such as in cases involving piracy, counterfeiting of currency, and prosecution of war crimes and torture, the singing of the national anthem in an altered manner does not fall within the exceptions.

Second, and more importantly, the Flag law itself is subject to attack on the ground that it is unconstitutional for violating freedom of expression . In the recent case of David vs. Arroyo, our Supreme Court said that any act, including a law, that curtails a protected right, such as freedom of expression, is presumed to be unconstitutional. The burden of proving that the singing of an anthem in an altered manner falls within the state’s police power lies with the State. Nothing short of a clear and present danger arising from the altered rendition could sustain the infringement of the freedom particularly here where Mr. Martin Nievera can rightfully invoke artistic license.

The situation is analogous to statutes declaring flag burning as criminal offense in the United States. In these cases, the US Supreme Court has consistently ruled that these statutes are unconstitutional for violating freedom of expression. As held in the case of Texas vs. Johnson: “If there is a bedrock principle underlying the First Amendment, it is clear that Government may not prohibit the expression of an idea simply because society itself finds the idea itself offensive or disagreeable.”

Martin’s singing of our beloved Lupang Hinirang in Las Vegas may have been in bad taste but it certainly does not constitute criminal conduct. Call it artistic license exercised in bad judgment but it is still constitutionally-protected free expression and therefore not subject to criminal prosecution.

The Filipino Triumphs!

May 3, 2009 in Uncategorized | Tags: | Leave a comment

By now, people from arond the world should know that Manny Pacquiao has triumphed anew. The victory was particularly sweet given that the opponent was not just another Mexican, but a true blue caucasian, a Brit at that. This proves once and for all that the Pinoy can be truly great, and not just world class.

I do hope that with this victory, Manny will now think of himself as the personification of the Filipino dreams and hopes. This means, for instance, picking up fights for and in behalf of his countrymen, and even against those that he has held with high esteem: the cheating, lying and stealing and possibly, killing President . Let’s hope that Manny will give us not only the delight owing to a sports victory, but also the responsibility to truly fight for those who have long been oppressed and can only dream to be like him.