When talking peace and prosecuting war crimes are not mutually exclusive


Three’s something odd with the “all out justice” recently declared by P-Noy. It’s literally directed at the Abu Sayaff when no less than the MILF website claimed credit for the 19 casualties last week. Why go all out against a bandit group for deaths that they were not responsible for? Reports of collusion between elements of the two groups aside, the answer of course is the fact that by opting to talk peace, we have politicized the effort to punish the MILF criminally when they violate the laws and customs of war. The conflict between the MILF and the GPH in Mindanao is what used to be called in Cold War days as a “ low-intensity conflict” but is classified by the International Committee of the Red Cross, the keepers of international humanitarian law, as a non-international armed conflict. As such, it is governed by Additional Protocol 2 to the Geneva Conventions and Common Article III of the Geneva Conventions. Under these rules, wanton killing and the passing of sentences without prior judicial determination complying with internationally recognized standards are prohibited and punished as war crimes. These acts fall within the jurisdiction of the International Criminal Court (ICC), which we only very recently joined.

Why politicized? Well, P-Noy obviously cannot talk peace when he’s prosecuting the leadership of the MILF. Under IHL and the ICC, leaders of armed groups are oftentimes the targets of prosecution for war crimes even if committed by their subordinates, and the purpose for that is to send a clear message to military leaders that pursuant to the Yamashita principle, they have the obligation to disseminate amongst their troops what the law is and to ensure that their subordinates comply with it all the time. When they fail to prevent these crimes from happening and where they further fail to take steps to investigate, prosecute and punish their subordinates, they too acquire individual criminal liability under the principle of the “command responsibility”. Effectively though, the on-going peace talks have made prosecuting the leadership of the MILF impossible unless these talks are shoved aside completely. This is, as P Noy has stated, not to our best interest. But this is also why countries with similar problems have referred their domestic enemies to the ICC. In fact, the leaders of non-state groups such as Thomas Lubanga, Germaine Katanga, Bosco Ntanganda, John Pierre Gombo, Joseph Kony and Ali Muhammad Ali Abd-Al-Rahman are all commanders of similar groups such as the MILF: non-state armed groups. They are all standing trial for war crimes at the ICC.

This is the third option. Now that we have become the 117th member of the ICC, we could, as Congo, Central African Republic and Kenya, all state parties to the ICC have done: refer the prosecution of the MILF to the ICC, to insulate the criminal proceedings from the pitfalls of domestic politics.

Although based only on media reports, it appears that at least three soldiers were captured alive by the MILF but were killed anyway. Although there is no “combatant” in non-international armed conflicts and hence, no “prisoner of war” status, there is still the obligation of fighters in these conflicts to treat their detainees humanely. There too is the prohibition on wanton killing. As a limitation on means and methods of warfare, the law commands all fighters not to order that “no quarters be given”, or not to leave survivors behind. The logic behind this prohibition is that military necessity is defined only as the “complete subjugation of the enemy and not to kill all fighters in the battlefield”. Specifically, the law applicable to the three captured soldiers is that since they have ceased to be active fighters, they shouldn’t have been killed as otherwise; their killing would be a war crime. . The basis for prosecution under the ICC would be Article 8 of its Statute (war crimes), Section (c) “namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” Also applicable would be Section (e) of the same Article: “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:… (ix) Killing or wounding treacherously a combatant adversary”.

Precisely, the beauty of our membership to the ICC is that the prosecutions of the MILF leadership for these kinds of crimes no longer have to be as political as when they are prosecuted before our local courts. Naturally, since our local courts are agents of the same state that is talking peace with the MILF, the later will insist that the same should not prosecute their leadership as a precondition for continued peace negotiations. Well, they cannot ask that of the ICC since such political consideration simply will not come to play in a court that was created precisely to put an end to these kinds of atrocities.

Here’s hoping thus that P-Noy will consider this option seriously. It certainly is better that making the MILF look less guilty for the slaughter of 19 of our bravest men in uniform.

The PEACe bond scam


Juan de la Cruz just became P35 billion poorer this week. This was because the 10-year Poverty Eradication and Alleviation Certificates or PEACe Bonds, which benefitted the Caucus of Development NGO Networks, then headed by, or at least under the patronage of, now Department of Social Welfare and Development Secretary Corazon Soliman and Peace Advicer Teresita Deles, matured and had to be paid by the already suffering masses. The Freedom from Debt Coalition, true to its name but normally identified with the same civil society block as CODE-NGO, documented why the bond offering was detrimental to the people and how it was the fruit of patronage politics. Note that the bonds would have not been floated in the manner that it was, had it not been for the cabal then involving Soliman, Delez and then-President Gloria Macapagal-Arroyo.

This cabal though came to end when, following the bond float, Soliman and Deles quickly deserted their patron at the first hint of trouble. Like Dracula, they sucked all they could from their patron and then moved on to their next prey. Today, that prey is of course the reform-minded President Benigno Aquino III. How they’re sucking him dry would be the subject of a later column

What did Soliman, Deles and their cohorts in CODE-NGO do?

Through their then-close ties with Mrs. Arroyo, they floated P10 billion worth of zero-rated treasury bonds. After which, they sold this to the secondary market for a comfortable margin, P1.8 billion to be exact. The fact that this latter sum went to CODE-NGO is undisputed. Where the disagreement lies is whether this sum actually went to poverty alleviation. This, of course, we will never know. Why? Well, since CODE-NGO is allegedly part of civil society, albeit of the profit-making type, it is not a governmental entity subject to audit by the Commission on Audit.

The plunder committed by the likes of Joc-Joc Bolante, Zaldy Ampatuan and his father were discovered through COA audits. Soliman, Deles and their cohorts were not subjected to the same scrutiny. In this planet, some are luckier than others.

FDC’s study said: “It (CODE-NGO) purchased the bonds with money it did not have and sold it to investors affiliated with the very bank that underwrote the deal. For this, it earned a staggering amount of P1.8 billion in gross profits. CODE-NGO then distributed its windfall, paying its financialadvisers and RCBC at least P400 million in fees. Finally, it kept 10 percent of the P1.4 billion, roughly P140 million, for itself, then set up the Peace, Equity, and Access for Community Empowerment Foundation (Peace and Equity Foundation) with a permanent endowment of roughly P1.3 billion.”

In other words, “laway lang ang puhunan.”

As to how CODE-NGO was able to achieve this, FDC noted the absence of a genuine public bidding in granting CODE-NGO this unprecedented privilege: “Other civil society organizations and social movements who may want to participate in the process and work together with eligible government securities dealers (GSEDs) were deprived of the opportunity to engage. The Arroyo government failed to do a road show for the bonds similar to what the deposed Estrada government did when it offered small-denominated bonds.

… The auction was done manually using fax machines to submit bids instead of electronic auction. At best, the auction can be deemed irregular; at worst, it could have been rigged, as manual auctions are more open to manipulations and leakages. “

Interestingly, FDC, by way of conclusion, said: “NGOs and civil society groups’ transaction and engagement with government must be marked by the principles of transparency and accountability. Those who call for clean government must abide by the same standards especially in their transactions with government. Transparency must begin with those who call for it.”

Of course, Soliman has gone even more big time since her CODE-NGO days. The PEACe bonds were only worth P10 billion. Today, she commands at least three times that amount in public funds through the Conditional Cash Transfer program. Next year, she wants even more as she is asking for at least P50 billion to be spent during an election year. Sounds familiar?

But the truth remains that here, the same cabal that financially benefitted from the rule of an illegitimate president to the tune of at least a billion pesos continue to remain in power with further access to public funds. This is what I call staying power.

Last week, Ombudsman Conchita Carpio-Morales vowed to pursue cases against the “big fish.” Here’s hoping that she will catch the deadly piranhas that have plagued both the Arroyo and the Aquino administration. The PEACe Bond scam is a perfect example of a transaction that is grossly disadvantageous to government since the government could have earned the P1.8 billion profit that Arroyo gave to Soliman et al. I see no reason for the Ombudsman to run after the likes of Joc-Joc Bolante and Zaldy Ampatuan but not Soliman and Deles.

Flip-flop


I am one of those disturbed by the recent order of the Supreme Court to reopen a final and executory decision ruling that the dismissal of 1,200 Philippine Airlines flight attendants was illegal. I too, find this decision—made in response to a letter of the lawyer of one the richest men in the world—to be out of the ordinary, given that lawyers normally communicate with all courts in the form of pleadings and not through a letter. Mr. Estelito Mendoza, Esq., has got to have the most expensive letterhead in the Philippines, as far as his clients are concerned. But where I differ is in the conclusion that many have made: that is, that money may have played a role in the unusual reversal. Here, I think the Justices of the Supreme Court, like all human beings, have a right to be presumed innocent until proven otherwise.

Having said that, the problem is the lack of mechanism by which the members of highest court of the land could be held accountable for their acts as public officers. True, the Court, for the first time, created an ethics committee to investigate one of its own whom we complained may have committed plagiarism. Assuming this mechanism could be resorted to when the conduct of one of them is impugned, what will the Court do when the conduct of a majority of them- and the decision to reopen is a majority opinion of all its members- is now under question? How can the court investigate itself?

When we in the Concerned Citizens Movement accused then-President Gloria Macapagal-Arroyo of the commission of crimes as a result of the NBN-ZTE scandal, we argued that the concept of immunity from suits should cover only sovereign acts and not the commission of crimes. This was pursuant to decisions of the UK House of Lords in the Pinochet case and the US Supreme Court in Clinton vs. Flowers. Both decisions ruled that sovereign immunity extends only to sovereign acts and do not cover illegal acts that both Courts said could never be official in character.

The dilemma confronting us now is while the individual justices, unlike the President, are not entitled to immunity; it was the Court nonetheless that ruled that its justices, and the other impeachable officers, could not be the subject of criminal complaints while they remain in office. The remedy is to impeach them first from office before these complaints could be acted upon. The rationale to this is that the security of tenure intended to be enjoyed by impeachable officers would be rendered nugatory should criminal complaints against them be allowed to proceed prior to impeachment.

While I am no fan of then Tanodbayan Raul Gonzalez, I do remember sympathizing with him when, as a result of his resolve to investigate sitting members of the Supreme Court during the Cory Aquino administration, the Court sanctioned him by suspending him from the practice of law indefinitely. That decision is a clear reminder to the bar that any lawyer who insists on holding sitting members of the Court criminally liable will be deemed guilty of legal malpractice.

So in the absence of accountability, how do we now dispel the public’s suspicion that the recent flip-flop in a case involving one of the country’s tycoons was not attendant with graft?

Theoretically, the Office of the Ombudsman, on its own, has the power to conduct an investigation for the purpose of recommending to Congress to initiate impeachment proceedings should its findings justify it. But in the complaint that we filed in connection with the NBN-ZTE, the Ombudsman, then headed by Merceditas Gutierrez, insisted that in the case of a sitting President, even an investigation resulting in a mere recommendation to initiate impeachment proceedings is not allowed. Our petition impugning this decision of Gutierrez remains pending in the Supreme Court. The good news though is that the erudite Solicitor General, Joel Cadiz, has filed a manifestation and comment with the Supreme Court supporting our position that a President is not immune from the investigative powers of the Ombudsman.

Since the Court’s ethics committee may not be the best forum to investigate where the conduct of majority of the members the Court is the subject of public suspicion, my position is that the Ombudsman, on the basis of its Constitutional and legislative mandate, can unilaterally investigate the circumstance that led to the recent reversal. While the end result may just be a recommendation for Congress to initiate impeachment, its importance should not be underestimated. We only know too well, after having filed three impeachment complaints against Mrs. Arroyo, that impeachment is a political process and a “numbers game”. But with a solid recommendation from the Ombudsman, the political debate would at least take place in the context of a factual determination made by the Constitutional body created for the purpose of upholding the accountability of public officers. I doubt if such a recommendation can easily be ignored –not even by Congress.

It’s certainly a tough call for the current Ombudsman, Conchita Morales-Carpio, to investigate her former colleagues at the High Court.

Moreover, she risks suffering the fate of Gonzalez. Still, the morally unacceptable alternative is that no one does anything.

Almost Censored!


Censored?
PROVO, UTAH- I’m here as a delegate to the 18th Annual Conference on Religion and Law sponsored by the Brigham Young University. The thesis of my paper here is that while the non-establishment clause of our Constitution mandates government to adopt a policy of neutrality to all religions, in reality, this American principle has been applied in the Philippines strictly insofar as minority religions are concerned. With regard to the dominant Catholic Church, there has been hesitancy.
Two cases, in my mind, clearly manifest this state partiality towards Catholic Church. The first, Aglipay v. Ruiz, ruled that the issuance of a commemorative stamp for the 33rd Eucharistic Congress did not violate the non-establishment clause. According to the Court: “ It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any received by the Roman Catholic Church, was not the main purpose of the government. We are of the opinion that Government should not be embarrassed in its activities simply because of the incidental results, more or less religious in character, if the purposes had in view is one which could legitimately be undertaken by appropriate legislation.”

My problem with this decision is this: Why else would a predominantly Catholic state issue a commemorative stamp to mark a religious activity other than for religious reasons? Of course the Court may have intimated that the real event being commemorated was the arrival of tourists for the Congress. But come on, if that was the real reason, then the post office should have issued a commemorative stamp celebrating tourism instead!

Yet another case that proves my thesis is that of Garcis v. Estenzo. This involved a controversy on whether an image, purchased with barangay funds and used for a fiesta, should be returned by a then-parish priest in Ormoc, Leyte to the barangay after the celebration. Here, the Court said: “Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.” It was the reasoning of the court that while images placed in the altar were centerpiece artifacts in the celebration of fiestas; still, the fiestas themselves have already acquired a secular rather than a religious meaning. Again, how could a feast honoring a town’s local patron saint pursuant to the Catholic faith cease to be a religious activity? The problem with the Garcis doctrine is that despite the Court’s insistence that the case was not one involving religious freedom; it ignored the reality that the purchase of religious artifacts utilized for religious occasions is an issue of religious freedom.

But the thrust of my presentation is how today, the inapplicability of the non-establishment clause to the majority religion in the country has brought back to life the days of the inquisition. Here, I focus on two burning controversies: the reproductive health bill and the Mideo Cruz controversy.

The controversy on the Church and the RH bill as a form of inquisition was explained by Fr. Joaquin Bernas : “Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief. x x x —Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.”

The case of Cruz is not only theoretically more controversial. It has also proven to be literally controversial as well. My submission is that Poleteismo is both an issue of freedom of expression and religion. It is protected under freedom of expression since government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable (Texas v. Johnson). And assuming that the work is blasphemous, as its critics claim it is, our Court in Iglesia ni Kristo v. CA has ruled nonetheless that: “The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

I was thus surprised when the organizers of the conference asked to see my slide presentation on Poleteisimo to ensure it does not contain materials appealing to “prurient” interests of the other participants. I flatly refused, invoking academic freedom since even if Brigham Young University is a Mormon institution, it is still an academic institution and the conference is still an academic activity. Besides, had I consented, it would be recognizing that the Mormons are the best judge of what appeals to “prurient” interest. This I doubt. I was eventually allowed to present my paper, even though for a long while I seriously wondered if I would be censored, as well.

NB: I was eventually allowed to do my presentation and I did show slides of the Mideo Cruz’s poleteismo, including allegedly blasphemous ones #30#