CENTERLAW THANKS GOVERNMENT PROSECUTORS FOR THEIR CANDIDNESS AND ADMISSIONS: IT ONLY CONFIRMS THEIR LIABILITY


We thank Chief State Prosecutor Claro Arellano, Assistant Chief State Prosecutor Richard Anthony Fadulion and Senior State Prosecutor Juan Navera for their statement dated 25 June 2010.

Their statement – no, their very own admission – has verified facts that we have ourselves stated and as a result of which, the public and our courts can now determine if the Department’s refusal to provide to the now deceased witness “Jessie” was both legally and morally justified.

Please consider the following:

1. They agreed to interview the witness Jessie on March 1, 2010 at 3PM at the UP Law Center. Unknown to them, the UP Law Center was only a rendezvous as days before, we had already asked Chairperson Leila de Lima for her good offices by hosting   and witnessing, for monitoring purposes, the government prosecutors interview  with Jessie. The prosecutors on the day itself unilaterally declared that they would not travel to the UP Law Center and that the witness would have to be brought to the DOJ premises. We then asked the witness whether he was willing to go to the DOJ. His reply was: DOJ, “hwag doon. Hawak ng mga Ampatuan yun”. This was months before DOJ Secretary Agra would dismiss the criminal charges against Zaldy and Akmad Ampatuan. Clearly, it was not me or any of my colleagues said that the “DOJ” was hawak ng “Ampatuan”. It was the witness himself.

2. We confirm that we did suggest a hotel near the airport as  an alternative venue for March 1. This was because of the refusal of the witness to step foot in the DOJ premises for reasons that he had already stated. We chose that particular American chain  hotel precisely because of its very strict security arrangements replete with  metal detectors and sniffing dogs  at the  entrance for both cars and individuals. We certainly felt that we would all be safer there compared to the DOJ, which incidentally, does not even have even hand held detectors at its entrance.

3. Initially, the WPP acceded.  Again  at the last minute,  the Committee changed  their decision and called the meeting off. He did say that aside from the DOJ as their preferred venue, then Secretary Agnes Devenadera was on the way out and the Committee had to confer with her. We brought the witness to Manila on that date precisely because upon the advice of the WPP, we needed Secretary Devenadera to approve his enrollment into the WPP. Apparently, the personal  action of the sitting Secretary was required for this purpose.  This was why we were both apprehensive and frustrated that the interview did not push through.

4. In any case, since the witness was already in Manila, we still brought him to the office of Chairperson De Lima who met and heard the testimony of the witness. One of the things Chair de Lima said in that meeting was that “she was frustrated that the CHR did not have the capability to provide witness protection as she would have otherwise provided it to Jessie”. We hope the incoming Secretary of Justice will confirm this fact.

5. It was after this aborted meeting that we decided to reduce into writing the application of the witness into the WPP. We  included a detailed narration of what would have been his testimony. By then, I already suspected that the Department was lukewarm to admit the witness into the program for reasons unclear to me. I then thought that by detailing his proposed testimony, we would be able to memorialize the fact that the Department did not go out of its way to interview the witness despite the seriousness of his testimony. This turned out to be a  very good decision because while the department now insists that the interview could have taken place at the vicinity of the DOJ, certainly, the seriousness of the testimony would otherwise lead to the conclusion that had the WPP used even ordinary diligence, they should have gotten out of their way to interview the witness. Besides, there is no rule which mandates that all interviews of the WPP should be conducted at the premises of the DOJ. Human experience, on the contrary,  dictates that witnesses at risk would demand a more secure location than the premises of the DOJ. If security were indeed the concern, we wonder why the Prosecutors did not bother to suggest a military camp as a venue.

6. The records bear out the fact that we submitted to the DOJ a detailed narration of what would have been Jessie’s testimony. The state prosecutors have admitted receiving the narration attached to a communication we sent to the DOJ dated March 5, 2010; in fact, Assistant Chief State Prosecutor Richard Anthony Fadullon replied to our query in a letter dated March 11, 2010. They too admitted to this.

7. This belies Secretary Agra’s statement to  Human Rights Watch (HRW) when the international human rights group told him about Jessie’s case that he has not heard of him.  It boggles the mind that a matter of such high importance should not be communicated to him by his state prosecutors.

8. If the state prosecutors did not relay to him the facts regarding Jessie’s application into the WPP, they are liable for dereliction of duty. Assuming that Secretary Agra made good of his word to the HRW that he would look into the matter but in the process, the state prosecutors decided to withhold the information about Jessie from him, it only makes things worse for the state prosecutors.  But this in itself does not absolve Secretary Agra of liability; after all, he is the Justice Secretary. How can he not now of the case when his own state prosecutors now admit they officially received and replied to an application for admission into the DOJ’s Witness Protection Program from Jessie? Ultimately, the buck stops where he sits at the top of the hierarchy at the DOJ.  Given this, we wonder how he can say that he leaves the Department as one “extremely happy” man.

9. We confirm all the other details which they mentioned, including the meeting on March 12 where the lawyer of the witness – Macky Hernandez –was in attendance. This would prove in no uncertain terms that Secretary Agra lied when he claimed that I was representing the victims and a killer at the same time. I also confirm that I obtained for the witness, with his conformity,   an independent counsel. This was because I knew that I had a conflict of interest and could not represent both victims and killer at the same time. The witness having his own counsel avoided this conflict and also ensured that the constitutional rights of a witness, whose testimony my clients required, would be protected.

10. While we admit that our second meeting did not push through because we could not bring the witness immediately from where he was then seeking sanctuary, we dispute that we did nothing to schedule a third one. It was Senior State Prosecutor Navera himself who, in refusing a third attempt at an interview said that they were no longer interested in meeting the witness. On that day, he arrogantly gave a deadline of 5 p.m., after which, he said, any talk about getting the witness into the WPP would be over and done with. He even sarcastically texted that we should not have brought him to the media first.

11. Further, their statement that I walked out of a hearing on January 20, 2010 is both a lie and is downright malicious. The records will show that the hearing on that day was recessed at 11AM after Gov. Magundadatu had finished with his cross-examination. It was during the recess that my clients and I talked to the assembled media outside the courtroom to discuss our filing with the Asian Inter-Governmental Commission on Human Rights. This was a filing that the prosecutors, echoing the position of then Secretary Devenedara, did not like because they mistook it as an expression of distrust with the on-going  criminal proceedings here. On the contrary, the ASEAN filing was to declare the Philippines guilty of  breach of obligation to protect and promote the right to life of the victims. With such a declaration, the Philippines would in turn be constrained to pay reparations to the victims.

12. I dispute Prosecutor Navera’s assertion that I have been belligerent. But I would agree that I have differed with the Public Prosecutors on at least three issues: First, the place of detention for the Ampatuans. The Public Prosecutors wanted a special detention for them, my clients wanted them to be treated like ordinary criminals and  hence, they wanted them detained in the Quezon City Jail. We filed a “manifestation” in this regard after our clients confirmed that the Ampatuans were being given special treatment in the General Santos facility where many of the Ampatuans were then detained. The victims could file a manifestation, unlike a “motion” alone. A proper motion could only be filed with the conformity if the public prosecutor. Obviously, we filed a manifestation because the prosecutors until today –  despite the press conferences and the parties in Bicutan where the Ampatuans are still detained – would not want to detain the accused in Quezon City jail.

13. Second, we filed similar “manifestations” on the issues of live coverage and the fact that the victims whom we represent have lost their trust and confidence on Secretary Agra. In the latter manifestation, we also asked the court to defer proceedings until after July 1 after the administration of  President Arroyo. Again these were manifestations filed to register the sentiments of the victims to  the court as otherwise, the conformity of the prosecutors would be required. Certainly, the 14 victims whom we represent have earned the right to let their feelings known to both the court and the public.

14. Finally, to dispute that we have been belligerent to the Public Prosecutors, we drafted and filed, with their conformity, a motion to cite BJMP officials in contempt for allowing accused Unsay to conduct a press conference in Bicutan.

15. While the prosecutors and I agree substantially on the recital of facts, the issue remains whether despite their detailed knowledge of the nature of testimony of the witness, they were justified in their failure to even listen to the witness in person. In this regard, we submit that Agra and the DOJ cannot wash their hands of the death of a potential witness with a potentially damning testimony against suspects in the most gruesome massacre perpetrated in the Philippines in recent memory.  At the very least, they cannot escape liability and culpability for their dereliction of duty as public officers.

16. Ultimately, it is the State, through the DOJ, that is precisely tasked to protect and promote the right to life of individuals, especially those who have come to them for assistance. No amount of blaming others can absolve the DOJ and the state in this regard.

#30#

Do you know who was Suwaib Upham?


Would Justice secretary Agra have acted more favorably to the application for witness protection of Suwaib Upham if he had been presented to the DOJ by someone other than me or Centerlaw? A true commitment to justice should transcend personal prejudices. As a consequence of the secretary’s prejudice, a key witness who went to Manila to testify, at great personal risk, has since been killed due to the government’s refusal to even give him an audience.

And for the record, contrary to Agra’s contention, Suwaib Upham was represented by his own, independent lawyer. And yes, a letter from state prosecutors prove that DOJ officials knew of Upham and the nature of his testimony. So it is not true, as Secretary Agra claims, that Upham was never presented to the DOJ. Perhaps he means that Upham was never brought to the premises of the DOJ. Is the loss of this key witness really due to a bickering over the venue? Was Secretary Agra’s reason for refusing to entertain Upham really this … simple? Because the issue of whether Upham would be subject to the supervision of the government was moot when he sought to present himself as a state witness. That he however would exercise his right to first appear in a neutral place, such as the office of the Commission of Human Rights, was surely the prerogative of someone who was not yet certain that he would be admitted as a state witness.

Secretary Agra refers to Suwaib Upham as a “killer.” Well, in his testimony, Upham admits he was. In fact, he said only seven bullets were left in  his magazine after he and six other shooters finished firing their rounds against the journalists killed in Ampatuan, Maguindanao on November 23, 2009. Does that make Upham’s testimony less legitimate? Does it make him less eligible for witness protection?

I submit that a government truly committed to ensuring that justice is served would have at least given Upham the time of the day.

Secretary Agra also said something today in one of his TV interviews that was an insight about how truly he looked upon Upham: he said that we should have presented this witness if not to the DOJ, then to the NBI. Agra forgets that one of the key suspects in the Ampatuan massacre, Datu Unsay Mayor Andal Ampatuan Jr., a man that Upham himself held with great alarm, was at that time  detained at the NBI.

KEY WITNESS IN AMPATUAN MASSACRE SHOT DEAD


A key witness in the Maguindanao-Ampatuan massacre was shot dead last June 14, 2010 in Parang, Maguindanao. Suwaid Upham, who publicly surfaced under the name of “Jessie,” was shot to death by a still unidentified gunman. “Jessie” surfaced in March of this year to apply to be admitted into the Government’s Witness Protection Program. He was never interviewed by the DOJ despite the having previously arranged twice to be interviewed by a panel from the Department. In both instances, the department agreed on the time and date of the interview at a venue to be selected by “Jessie”. That initial and first interview was scheduled in the office and in the presence of CHR Chair Leila de Lima. The personnel of the Witness Protection Program did not, however, appear on the agreed time and date stating belatedly that “Jessie” should appear in the premises of the DOJ. Jessie refused to appear in the DOJ premises because Jessie himself had information that high-ranking officials of the Department were working with the Ampatuans. DOJ. Acting Secretary Alberto Agra would later dismiss the cases against   Zaldy and Akmad Ampatuan.

In his narration before his counsel and the media, Jessie admitted that he was   one of seven gunmen who shot and killed 58 victims of the Maguindanao massacre. He identified the other gun men as including Andal  ”Unsay” Ampatuan Jr., the latter’s cousins Kanor Ampatuan, Ban Ampatuan, and Mama Ampatuan; PO1 Ando Masukat and one he knew only as Kudja. He publicly stated that members of the Ampatuan clan including Former Governor Andal Ampatuan Sr. and ARRM Governor Zaldy Ampatuan ordered the killings.

Jessie stated that amongst the first to be killed was the wife of Maguindanao Governor-Elect Toto Mangundadatu. He stated that after the first batch of killing, Unsay then ordered all seven gunmen to fire indiscriminately at all members of the ill-fated convoy, many of whom were still in their vehicles. He also recounted how witnesses pleaded for their lives. Jessie also positively identified at least 4 members of the media as amongst the fatalities of the massacre.

“Jessie” was in Manila for two months from March to April. He returned to Mindanao when it became apparent that the DOJ would not give him protection.

In his interview with international television network Al Jazeera, Jessie recalled how Unsay bade farewell to his men before surrendering to authorities. Unsay was quoted by Jessie as saying “Walang magyayari sa kaso nila. Kaya ng pera namin silang lahat”.(Nothing will happen to their case. Our money can buy all of them)

Centerlaw, counsel for 14 media victims of the massacre,  condemns the killing of Jessie in the strongest terms possible. At the same time, it lays the blame for his death to Acing Secretary Agra and his principal, Gloria Macapagal-Arroyo, who refused to accord any protection to Jessie. There is blood in Agra and Mrs. Arroyo’s hands. May they forever by hunted by the souls of Jessie and the rest of the victims of the massacre. #30#

DEMOCRACY, DE LIMA AND DEMOCRACY


A third journalist was killed in a span of five days. Nestor Bedolido of Digos City was shot six times by a motorcycle riding assailant. Previously, two other journalists—Joselito Agustin from Laoag and  Desidario Camangyan from Mati City, bothe radio commentators —were also killed. Already, the number of journalists killed during the administration of Gloria Macapagal-Arroyo has reached 103. It is because of these killings that international journalists groups such as the Committee to Protect Journalists have  concluded that the Philippines is now   the deadliest country for journalists .

While journalists are not the only ones being  killed in this country, as in fact, the number of victims of extralegal killings have already exceeded a thousand for the period of Arroyo’s administration alone, the question is asked: what is so wrong with the killing of journalists outside of the fact that under both natural and our penal laws, murder is a crime? What makes the killings of media professionals more heinous than say the killing of a street vendor by a drug crazed killer?

The answer lies in the unique role that the media plays in a democratic society.

Our Constitution provides that “no law shall be passed abridging the freedom of the press”. This is based on a belief that the truth is discerned only in a free market place of ideas. According to Justice Holmes, the “true test for truth is the power of an idea to be accepted as truth in a market place of ideas”. This explains why under democratic systems, a falsity per se is not actionable. It becomes actionable only where there is actual malice, be it actual or legally presumed.

A free press, though, is valued far more than because it helps us discern the truth. More importantly,  it is valued because it is only when you have a free market place of ideas that an individual can form an opinion on issues involving him and the public at large. It is because of these individual opinions that individuals can participate in public debates on issues that affect the public. When there is a consensus of individual opinions, we have what we refer to as public opinion. In turn, it is believed that public opinion, over and above institutions of government, is best able to fiscalize governments and regimes. This is why the media is referred to as the “fourth estate”, a co-equal institution in a democracy, albeit not a branch or instrumentality of government.

To kill a member of the media is hence is to kill what makes democracy work. Without information, there can be no opinions. Without the latter, there would be no debates. With no debates, there would be no consensus. Without public opinion, there would certainly be despots and dictatorial regimes. This explains why in the course of history, dictators would always infringe on freedom of the press first. To kill members of the media, in other words, is the surest way to kill a democracy.

***

I have just gotten word that Commission on Human Rights Chairperson Leila De Lima has accepted her appointment as Secretary of Justice. I must say that this is thus far one of the best moves of President-elect Noynoy Aquino. What has contributed to the culture of impunity prevailing in this country is that the Arroyo administration, including all the Secretaries of Justice, did not prevent these killings of journalists and activists. Worse, they also failed to investigate, prosecute and punish the perpetrators of these killings. With Leila De Lima at the helm of the Justice Department, there is now hope that change may indeed be forthcoming.

Secretary-Designate De Lima surprised skeptics who thought that as an election lawyer, she may not be effective in protecting and promoting human rights in the CHR. But in a very short span of two years, she studied the law on human rights and became by far the most effective exponent of rights in an administration that has become notorious for being a human rights violator. What made her effective may not have been her thorough grasp of the specialized field of human rights, but her visibility, dynamism and her sincerity in promoting these rights. When people stayed away from Maguindanao right after the massacre, she was on the ground conducting her own parallel investigation. When the Morong 43 was apprehended, she had the balls to summon the Armed Forces hierarchy and declare that they committed acts of torture against the apprehended health professionals. Even in the recently concluded automated elections, she was an advocate for clean and honest elections, arguing what many people may not have realized: that clean and honest election is also a fundamental human right enumerated in the International Covenant on Civil and Political Rights. Kudos for P-Noy for the De Lima appointment.

***

At least 10 Filipino comfort women conducted a prayer vigil last Tuesday, June 22 to protest the recently promulgated decision of the Supreme Court in the case of Vinuya versus Executive Secretary. The Petition was to compel the Philippine government to sponsor the claims of these Filipinas for compensation from Japan. The claim was because all of the petitioners in the case were brutally and repeatedly raped by officers and soldiers of the retreating Japanese Imperial Forces when it had become apparent that they would lose the war. Some of these Lolas were as young as 12 years old when they were forcibly brought to the infamous Bahay na Pula, which stands until today along the national highway en route to Cabanatuan, where they were repeatedly raped for days and weeks by Japanese soldiers. When these women previously filed suit before Japanese Court for compensation as victims of mass rape as a war crime, the Japanese court ruled that they had no  standing to sue as it is the Philippines that should have filed suit on their behalf. According to the Japanese Court, it is states, and not individuals, that have the capacity to sue under International Law. And because their claim was never espoused by the Philippine government, they filed suit to compel the government precisely for this purpose.

The lolas protested a ruling that said that their claims for compensation is barred by the San Francisco Peace Pact where in exchange for nominal war reparations, the Philippines allegedly renounced all further claims for compensation. The Court also said that there was no jus cogens prohibition on rape during World War Two and that the plight of the comfort women was one of those where there was a violation of a right but with no legal remedy.

The lolas will congregate anew in front of the Supreme Court on July 5 at 10 a.m.

SINISTER BEHIND NAZARIO’S APPOINTMENT


Of the 250 reported midnight appointees of President Gloria Macapagal Arroyo, a particular appointment of a jurist stands out: that of retired Supreme Court Justice Minita Chico-Nazario as chair of the Philippine National Oil Company -Exploration Corporation (PNOC-EC).

The first obvious question is: why appoint a retired Justice of the highest court to a post which from the very sound of it, requires technical qualifications in the field of natural resource exploitation? A second question, is what is the political consideration for the appointment of Justice Nazario to a post that is seen as the plumiest of all plum posts?

It is true that while the position of chair of the PNOC-EC is amongst the most coveted, it has previously been given to others who like Nazario, also do not possess any technical expertise. What is apparent from the recent occupants of the position, including former prosecutor and Representative Sergio Apostol, is that the post, because of its perks, is given as political pay back to a loyal ally.

In the case of Apostol, the payback is for the fact that he was instrumental in the rise of Mrs. Arroyo to the presidency. Apostol was designated as a member of the House of Representatives Panel of Prosecutors in the aborted Estrada impeachment trial. From then, Apostol proved himself to be a leading and loyal ally of the Arroyos. In fact, he served in the administration in various capacities, including his most recent before his appointment to the PNOC-EC, as Presidential Legal Counsel. When Apostol was the premier counsel to the President, he provided animated defense of many of the President’s wayward acts, including the transfer in the middle of the night of accused rapist Daniel Smith from the Makati City jail to the premises of the US Embassy without a court order.

The question remains: why was Chico-Nazario appointed chair of the PNOC-EC? Is it political pay back?

Nazario is without a doubt an Arroyo loyalist and for good reasons. She was appointed by Arroyo thrice: as Associate Justice of the Sandiganbayan, as Presiding Justice of the same Court, and as Associate Justice of the Supreme Court.

Its not just these appointments that indebted her to Arroyo. It’s the fact that these appointments were made despite lackadaisical performance as a jurist. Her stint as a judge of the lower court was uncontroversial, but neither was it remembered for being distinguished. She had neither Judicial Excellence award nor earth-shaking decisions that were upheld by the Supreme Court to remember her by. And yet despite these, she was catapulted into higher judicial posts. In both the Sandiganbayan and the Supreme Court, she was consistent in that her stint may at best be described as uncontroversial.

Justice Nazario proved to be loyal to her appointing authority in the Supreme Court. An ABS-CBN/Newsbreak investigative report indicated she “ literally voted in favor of the Arroyo administration” in all contentious cases save for three cases. This record includes voting in favor of Charter change in Lambino versus COMELEC, in favor of executive privilege in Neri versus Senate Blue Ribbon Committee, in favor of the MOA-AD, the Visiting Forces Agreement, the notorious NBN-ZTE deal and Poll Automation.

But is a solid voting record in favor of the administration sufficient justification for the perks of a chair of the PNOC-EC?

While rewarding a very loyal ally is clearly indeed a consideration for Nazario’s appointment, this is the more benign reason for her appointment. Behind the appointment is a more sinister motivation that is so typical of Mrs. Arroyo.

The country has barely recovered from Arroyo’s midnight appointment of a Chief Justice. Despite very clear language of the Constitution that such an appointment is prohibited, Arroyo succeeded only because the Supreme Court itself, as the final interpreter of the Constitution, gave its judicial imprimatur to the appointment.

It was in this case of De Castro versus JBC where both Arroyo and the Court gave no value whatsoever to public opinion that was overwhelmingly against the appointment. It was also here that the solid legal reasoning of the lone dissenting Justice was ignored in favor of the weakest technique of constitutional construction. Both the appointment and its imprimatur were issued despite express pronouncement from Arroyo’s successor, P Noy, that he would not recognize such an appointment. Against all odds, Arroyo went ahead with the appointment with a sense of impunity. She had, after all, the solid backing of a loyal court.

Here lies the greater sinister side of the Nazario appointment. Arroyo was not satisfied with one controversial midnight appointment. She went ahead and made 249 other prohibited midnight appointments. She did this with impunity knowing that a loyal judiciary would again sustain her. This was precisely why Chico-Nazario was appointed to the most coveted post of chair of the PNOC-EC.

Chances are, together with her midnight appointment to the PAGCOR and other lucrative posts, the issue of Nazario’s appointment would again be submitted for judicial review to the Supreme Court. Arroyo very clearly knew this and hence, the choice for a retired Justice of the same Supreme Court for the plumb post.

Human nature being what it is, it would otherwise be difficult for a court already loyal to Arroyo to rule against a colleague who retired from it only last December 9, 2009. Come to think of it, Nazario’s appointment also violated the spirit of the constitutional prohibition on magistrates from appearing before any court within a year from their retirement. There may not be a literal violation since Nazario is unlikely to argue her own case before the Court. There nonetheless is still a violation of the intent and purpose behind this prohibition because inevitably, the appearance of a recently retired magistrate as a party to a case will unduly influence the court in the same way that the appearance of a recently retired colleague would.

Simply put, it would be extremely difficult now for P Noy to convince the Highest Court to void Nazario’s appointment who until very recently was one of them. When this occurs, the court would then, by operation of stare decisis, legitimize the 249 other illegal appointments.

With this kind of deviousness wrecked on the nation by Arroyo -even as she is on her way out- may God have mercy on P Noy and on this poor country!

THE OMBUDSMAN AND PRESIDENTIAL IMPUNITY


The Ombudsman has dismissed anew the Concerned Citizens Movement’s complaint against Mrs. Gloria Arroyo and her husband for the botched NBN-ZTE scandal. In dismissing the case against Mrs. Arroyo, the Ombudsman recited anew the mantra that the President is absolutely immune from suits while in Office. At the same time, the Ombudsman, perhaps to appease an angry public, charged former Commission on Elections Chairman Benjamin Abalos and Social Security System Chairman Romulo Neri with violating the country’s anti-graft law. It also upheld its own earlier resolution suspending Neri from office.The order of suspension is without a doubt a concrete achievement for the CCM since it was the only group of complainants that charged public officers involved in this scandal with both criminal and administrative complaints. Although co-convenor former Transportation and Communication Secretary Josefina “Josie” Lichauco did not live long enough to know about the finality of the administrative sanction against Neri, this is definitely a legal victory in that at least one sinister character in this episode was meted administrative sanction.

This latest dismissal of the complaint against the President is already the second order seeking to exonerate her on the basis of immunity in the same case. An order of dismissal was issued as soon as the CCM complaint was filed, also on the ground that while the Ombudsman is not a court, all proceedings conducted by it are apparently “suits” for purposes of presidential immunity. CCM then alleged that this was a wrong view since the Ombudsman, when evaluating complaints for violations of the country’s criminal laws on anti-graft and corruption, performs only a quasi-judicial function of determining the existence of probable cause. If it is there, the information is filed with the Sandiganbayan. If none, the complaint is dismissed. Obviously, a “suit” for purposes of the immunity of president applies only the moment an information is filed in court. It cannot include the preliminary investigation conducted by the Ombudsman in the determination of probable cause.

It is submitted that the Ombudsman’s construction of presidential immunity has further weakened an institution that the constitutional framers sought to grant with sufficient powers to uphold the constitutional adage of accountability of public officials. Like ordinary prosecutors, the Ombudsman conducts preliminary investigation with the view of not only charging those who have likely committed crimes, but also with the view of sparing the unnecessary wastage of public funds in the prosecution of those who are probably innocent. But unlike ordinary prosecutors, the Ombudsman is vested by the Constitution with extraordinary powers, including the power to:

“(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith x x x.”

In other words, the Ombudsman is not just a prosecutor, but is also the final administrative authority that has the power fire public officers for breach of the trust reposed in them. It also has the power to compel public officers to perform their duties.

Assuming therefore that the President is immune from suits, the Ombudsman, because it is not a court, could still investigate the President for any misconduct. If, despite the existence of probable cause, it cannot charge her in court; it could at least direct Congress, the exclusive body that can initiate impeachment proceedings, to perform its lawful duty of initiating impeachment. This is pursuant to its power to “direct, upon complaint or at its own instance, any public official or employee of the Government, x x x, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties”.

But the bigger issue is whether presidential immunity from suit remains the absolute rule. Again, it is CCM’s submission that absolute presidential immunity is a thing of the past. What is recognized today is the principle of limited immunity where heads of States are immune only for purely sovereign acts. Thus, when Augusto Pinochet was charged for the commission of torture and enforced disappearances, the UK House of Lord rejected the claim of absolute immunity holding that while sovereigns are indeed entitled to immunity from suit for sovereign acts, the commission of a crime can never be sovereign in character. To illustrate the point, the House of Lord even gave an example, that of a despot who ordered that his gardener be tortured for the sheer pleasure of seeing him tortured. “What, asked the House of Lords, is sovereign in this kind of an order?”

Not far from home is the decision of the US Court of Appeals in the Hilao v Marcos case, or the class suit filed by the victims of the Marcos dictatorship before an American Court. In response to an attempt by the Marcoses to have the suit dismissed on the ground of sovereign immunity, the US Court ruled that where the jurisdiction of the Court is vested by Congress itself through the Alien Tort Claims Act, a law that vests US Courts with the power to hear and decide cases against those that may have committed the international crimes of torture, war crimes, crimes against aggression and genocide; the defense of absolute immunity will not lie.

In yet another American case, no less than the US Supreme Court allowed a civil suit filed by one Jennifer Flowers to proceed against then sitting President Bill Clinton because as ruled the court, immunity only covers official acts and presumably, sexual harassment, which was the claim of Ms. Flowers, is not official in character.

Perhaps the status of law on the matter is evident in the international warrant of arrest issued by the International Criminal Court against the sitting President of Sudan, Omar al-Bashir for genocide, crimes against humanity and war crimes. Certainly, Bashir could argue that the crimes charged were committed in the context of an on-going armed conflict and are hence, sovereign in character. Despite this, he is today an international fugitive.

With all these developments, it should be obvious why international law, if not domestic law, no longer recognize absolute immunity for heads of states. For while in the past, it was thought that sovereigns cannot err, scandals like the NBN-ZTE prove otherwise, Ultimately, the question is: why should presidents be accorded impunity for non-sovereign acts?

VICTIMS’ STATEMENT ON AMPATUAN’S “NIGHTLIFE” WHILE IN DETENTION


The 14 victims that Centerlaw represent in the on-going multiple murder cases against the Ampatuan clan for the Maguindanao massacre condemn in the strongest terms possible this latest special treatment accorded to the Ampatuans that allowed them to have a lavish party in their detention facility.At the onset, our victims have consistently decried these special treatment insisting that all of the Ampatuans accused of participating in the massacre should be detained as ordinary detainees in the Quezon City Jail. Repeatedly, they have been told that the Ampatuans required special security and hence, should be detained in a special facility either because of a threat on their lives, or the risk of flight. But even as they suffer in silence in seeing the accused killers of their loved ones enjoy the perks and privileges of VIP detainees, it has become apparent that it is these special detention facilities that breed the kind of VIP treatment that they have been getting.

Not too long ago, our victims, in conformity with the Public Prosecutors, filed a motion to require the warden of the Taguig Detention Center to show why he should not be cited in contempt for allowing Andal “Unsay” Ampatuan Jr. to conduct a press conference in the facility. Before the warden can even explain, comes now the news that the Ampatuans were allowed to have a party in their detention facility.

Enough is enough. Our victims now call on incoming President Benigno “Noynoy” Aquino III to appoint only a Secretary of the Department of Interior and Local Government who can promise an end to the special treatment accorded to the Ampatuans and that they should hence be detained in the Quezon City Jail where they rightfully belong. This Secretary, whoever he or she maybe, should also promise that all will be done to prevent the flight of any of them from the Quezon City jail. This Secretary should promise the victims and the Filipino people that with their last party, “TAPOS NA ANG MALILIGAYANG ARAW NG MGA AMPATUANS”. Second, we will not only file the appropriate motion to cite the warden and all those responsible for the “party” for contempt of court, we will also file administrative and criminal charges against them for dereliction of duty. It is not true, as jail officials claimed, that all inmates are entitled to hold lavish parties in jail. This privilege is accorded only to the rich and powerful.

 The decision to allow them to hold a party is not only a gross insult to the victims of the country’s worse massacre, it also sends the message that those who massacre, when they are rich and with political connections, can have lavish party even as they are already under detention for the possible commission of a heinous crimes. This is a tried and tested formula for impunity of the kind that we precisely have in this country.

The victims call on the incoming Administration finally to exercise the political will and to give utmost priority to the investigation, prosecution and punishment of all those who are responsible for extralegal killing in this country, of which the Maguindanao massacre has been the worse incident thus far. It is only when these killers are punished within a reasonable time can the incoming administration claim a victory in the restoration of the rule of law in this country.#30#

*The Center for International Law (Centerlaw) is the Philippine representative to the Southeast Asia Media Legal Defense Initiative, a coalition of lawyers in the region committed to upholding freedom of expression. Lawyers from Centerlaw are appearing as Private Prosecutors for 14 of the media victims of the Maguindanao massacre.