A band-aid solution to gangrene


The country’s failure to protect and promote the right to life has taken center stage anew. On the eve of the third anniversary of the Ampatuan massacre, President Benigno Aquino III signed Administrative Order No. 35 creating a super-body headed by Justice Secretary Leila De Lima. The body would lead the effort to investigate and prosecute cases of extralegal killings and enforced disappearances in the country. The Secretaries of both the Departments of National Defense and Interior and Local Governments were likewise made members of this super body.

And then, there was the third anniversary of the massacre itself.

Unfortunately, the occasion did not warrant even a presidential remark other than a statement made by the President in a media summit that the government was looking into the cases of media killings. Then, late Tuesday, I received word from media contacts that the Court of Appeals had declared De Lima’s creation of the second DOJ panel to conduct a preliminary investigation into the Doc Gerry Ortega murder case null and void.

How are these three events connected?

Simply put, they explain why killings and enforced disappearances will continue in this country.

The creation of AO 35 was ill-advised. Already, we have at least three serious studies on what steps should be done to put an end to impunity. These are the Melo Commission Report, the Alston Report, and the Asia Foundation’s Parreno report. None of these recommended the creation of yet another body to deal with the killings. In fact, all these inquiries were issued when there was already some sort of super body in existence. President Gloria Macapagal Arroyo created Task Force Habagat in the Philippine National Police followed by Task Force 211, also an inter-agency body. The killings and the disappearances continued despite the existence of these bodies.

The Alston report then concluded that the Philippines is in breach of the duty to protect and promote the right to life because of a lack of political will to prosecute those behind these killings. It made special mention of the Office of the Ombudsman, which, despite its constitutional and legal mandate, has failed to investigate and prosecute even a single state agent for these killings and disappearances.

The Asia Foundation-funded Parreno report, in turn, concluded that the National Prosecution Service is largely to blame for the problem of impunity. To begin with, the NPS has a measly 1 percent conviction rate for cases of extralegal killings.

If at all, this last report has at least identified the weakest link in the fight against impunity: the Executive.

The reality, though, is that decisions such as the Court of Appeals’ nullification of Secretary De Lima’s creation of a second preliminary investigation that charged former Palawan Governor Joel Reyes and his brother for the murder of Doc Gerry Ortega highlight the Judiciary’s role in this culture of impunity.

While I have not seen this decision of the CA, it does highlight why a super body within the executive branch of government alone is not the solution to impunity. While the Parreno report did not identify the Judiciary as the weakest link, it has noted that institutional weaknesses within the Judiciary itself, including notorious delays and perception of corruption, also afflicts the system.

But where does the Ampatuan massacre come in?

It serves as the case study on what happens when there is institutional breakdown of the country’s criminal justice system. The fact remains that while Judge Jocelyn Solis-Reyes and all the lawyers connected with the case, both prosecution and defense, are doing the best that they could to afford justice to both the victims and the accused, it is the system itself that is responsible for failure to accord the parties to the case an adequate remedy under domestic law.

First, the Philippine National Police did not investigate the massacre in a manner that would result in conviction. This much the authorities have admitted, saying that many of their men failed to execute the requisite affidavits of seizures and arrests for fear of retaliation. In like manner, the police have also failed to apprehend about half of the 194 accused charged in the case. The National Prosecution Service, for its part, did not coordinate with the PNP in conducting the investigation of the case to ensure that evidence gathered will stand in court. This was one of the conclusions made by the EP-Just program of the EU: that prosecutors should work hand in hand with the PNP to ensure that the evidence gathered by the police would result in convictions. Then there is the Court that to begin with, is not equipped with rules to handle this many accused for no less than 58 counts of murder.

Yes, the super body created by AO 35 is good copy. Unfortunately, it is a band aid to the “gangrenous” wounds that afflict the pillars of the country’s criminal justice system. In the end, with government offering yet another super body to address impunity, the citizenry is left only with prayers as their ultimate tool against impunity. Let’s pray very hard.

SUGGESTIONS ON HOW TO HASTEN THE “TRIAL OF THE CENTURY”


As we commemorate TODAY the third year anniversary of the ghastly Ampatuan massacre, let me reiterate my proposals to hasten the prosecution of the so-called trial of the century:

1.    For Interior and Local Government Secretary Mar Roxas- Resolve with dispatch our pending administrative cases against 62 policemen who were also charged criminally for the massacre. We hope Secretary Roxas will fire all 62 of them from the service.

2.    For Justice Secretary Leila De Lima- After all 62 policemen have been dismissed from the service, evaluate if these policemen should be dropped from the roster of the accused. Like a broken record, I will say it again: Even the Nuremberg Tribunal prosecuted only 14 of the highest-ranking Nazis for the worse case of genocide in this century. This is because prosecuting 196 accused, the number charged for the Ampatuan massacre, is a sure formula for impunity.  This will mean that the prosecution will never end.

3.    For Judge Jocelyn Solis-Reyes (covered by a pending motion)- To approve our proposed “First in –First Out” proposal where the introduction of both prosecution and defense evidence against some of the accused, i.e. Unsay Ampatuan, should be allowed.

4. For the Supreme Court, to designate a second Special Court to try the 300 or so motions filed by the parties so that Judge Solis-Reyes can proceed with just reception of evidence.

4.    For the nation — Damn our country’s pillars of the criminal justice system for failing to accord justice to the victims of the massacre even after three years, and vow that this will never happen again.

The nerve of Hun Sen


The nerve of Cambodian Prime Minister Hun Sen to say that the Association of Southeast Asian Nations has opted not to internationalize the West Philippine Sea dispute! The group in fact approved no such resolution.  If at all, Asean has failed to make any stand on the matter. But this is not to say that it has opted for what China wants: bilateral negotiations.

I have more than enough experience dealing with Chinese media and officials to know what they mean when they say bilateral relations: all tensions will disappear if and when the Philippines admit that it has no title to both the Panatag shoal and the Kalayaan group of Islands. Yes, it’s not  enough that we are no match to China either militarily, politically, or economically. Bilateral negotiations mean that surrender is the only way to go for the Philippines.

It was hence but proper for President Noynoy Aquino to uphold the Philippine interest even at the risk of appearing undiplomatic. While Hun Sen was saying falsities, our President bravely stood up and said: “for the record, the Asean route is to the only route for us.” This was immediately after Hun Sen declared that Asean had agreed to negotiate with China on these disputes.

Even if China genuinely wants bilateral talks to peacefully end the West Philippine Sea disputes, why should it involve only two countries? Certainly, Kalayaan is claimed by at least five countries. What happens to the other claimants? And if China is able to show that its claim over the waters in the triangular area between Macclesfield Bank, Panatag, and the Kalayaan group of islands is legal, has not the international community acquired an interest in this dispute because these waters are also one of the world’s busiest shipping routes? Certainly, this fact alone, together with concerns over pollution in this busy route, should warrant a multilateral approach to this dispute.

The fact that Hun Sen was downright  pro-China should not come as a surprise. He is  one of the remaining despots in the world largely because of his China connection. This despite being part of the Pol Pot regime that committed genocide that is now being prosecuted by the Extraordinary Chambers of Cambodia. Certainly, Hun Sen was not only wrong in what he was saying when he was interrupted by President Aquino. He is also no match to our PNoy in terms of moral stature.

In any case, certainly, internationalizing the dispute should include the option to bring the dispute, at least Panatag, to the compulsory and binding dispute settlement procedure of the UNCLOS. Since, both China and the Philippines have ratified this Convention, the dispute procedure would be mandatory on issues involving any issue of interpretation or application of the Convention. As I have said many times in the past, despite the ill-advised 2009 Archipelagic Baselines Law that appended both the Kalayaan group and Panatag to our territory under the so-called “regime of islands”, the issue of whether Panatag is an island, even if only five very small rocks are permanently above water, or a “rock”, or “geographic formations”, which as held by the International Court of justice pertains to the state that has title or rights over the waters surrounding them, are all issues of interpretation which should be resolved through binding arbitration under UNCLOS. This issue may also be the subject of preliminary measures by the International Tribunal on the Law of the Seas.

***

 

A blow to freedom of the press


In an en banc resolution signed by its clerk of court, the Supreme Court reversed itself on the issue of live media coverage of the Ampatuan massacre case. In its earlier decision, the court belittled the accused’s argument that live coverage will imperil his right to be presumed innocent since it will amount to a trial by publicity and would result in a pre-judgment.

In its earlier decision penned by now Ombudsman Conchita Carpio-Morales, the high court ruled that such fear is unfounded as it is not supported by any empirical study. It then applied the constitutional commitment to freedom of the press and ordered live coverage, saying that the sheer number of victim families (58), the number of accused (196), and witnesses could not be accommodated in the courtroom. But more importantly, it recognized the neutrality of media coverage. According to the court: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.”

But in its decision dated October 23, 2012 with no indication of who the ponente of the decision was, the court reverted to the prior jurisprudence of in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case, which ruled:

“Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences that might affect their testimony. Also, teledesting not only increases the trial judge’s responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. x x x The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.”

Of course, as one of the private prosecutors in the case, I view this recent ruling as a setback to freedom of the press and to the cause of transparency. In jurisdictions that used to ban live coverage, the concern was the influence of publicity to lay people who sit as jurors in criminal proceedings. In contrast, in our system, the issue of guilt or innocence is made by a judge with impeccable credentials in the law and in the rules of evidence.

But more importantly, even in jurisdictions with the jury system—which include all the States in the United States except for the District of Columbia, the United Kingdom, and even international tribunals such as the International Criminal Court—now allow live television coverage borne of their experience that other than lack of empirical evidence that live media coverage is prejudicial to the accused, their respective jurisdictions also recognize the right of the people to information on matters concerning public concerns. In all these jurisdictions, criminal prosecution is vested public interest since all crimes are committed against the people of a state. In other words, all jurisdictions which now allow live media coverage of trials have engaged in a balancing of interest test and tilted the scale of justice in favor of the public’s right to press freedom and the right of the people to information.

While the court, in its second decision, ordered the showing of live feed of the proceedings in court rooms in Mindanao, such a decision contemplates that only the private complainants have an interest to witness the proceeding of the “trial of the century”.

With all due respect, this is a myopic view of who were victimized by the massacre. While the 58 families may be the only ones with standing to claim monetary damages as a result of the massacre, the fact that at least 33 of the victims, including the 15 families that we represent, are media practitioners have given the entire country a right to witness the proceedings. In the words of UN Special Rapporteur Franck La Rue, the killing of a journalist is prima facie an affront on freedom of the press. While the Court’s second order may enable the private complainants based in Mindanao to witness the prosecution, what happens to the 100 million Filipinos and the rest of the world who have the right to protect and promote freedom of the press?

Philippine Interest in the US President


So, President Barack Obama has defeated his challenger, Governor Mitt Romney.

Outside the sheer excitement over the neck-and-neck race, what exactly is at stake for us Filipinos in this US electoral exercise?

I say plenty. To begin with, it’s the fact that the US elections are taking place. We have patterned our representative democracy after the US’. We see that the system works. Perhaps, we could learn more from this latest exercise in terms of how the elections were actually conducted. While it has been bitterly fought, note that both parties stuck it out on the basis of issues.

There was no personal mudslinging and no vote buying as well. Note, too, how the political parties operate. For many Americans, they are often born into their political party.  They may cross-political lines later in their lives – but the point is that they have strong political parties owing to the fact that politics in the US is still issue-based. How I wish our politicians could learn from this.

Then, there are the few issues that divide the two presidential candidates. Here, I disagree with columnist Billie Esposo who emphatically wrote that there is a divide between Obama and Romney on the issue of Iran. Truth to tell, on the basis of public pronouncements, both candidates said the same thing about Iran – they would heighten efforts to isolate Iran in order to compel it  to drop its ambitions to be a nuclear state.  BOTH, though, have declared that a military strike is still an option. If there will be the use of force against Iran that could drag the world into a third world war, it is not because of differences between the two candidates but because of the consistent American policy – that the US will not hesitate to resort to unilateral force against what it perceives as threats to international peace. Unfortunately, the folly in this policy is that it goes against the UN Charter which provides that use of force can only be resorted to by way of self-defense or when authorized by the UN Security Council.

Where the few policy differences relevant to us here in the Philippines lie are in the fields of immigration, human rights, reproductive health, and yes, China.

President Obama has already issued an executive order halting the deportation of children of illegal aliens who have not been convicted of any crimes and have not attained the age of 30. Romney has pledged to make life hell for illegal aliens. Full stop. Obviously, this is the single most important issue for us because we are today the second largest ethnic group in the US, with presumably the second largest number of illegal aliens in the US. Here, a Romney presidency would have caused sleepless nights to many Filipinos in the US and here. Now we can all sleep soundly.

Next is the role of human rights in US foreign policy. Here, President Obama has denied us American military assistance until such time that the Aquino administration has addressed the culture of impunity brought about by thousands of cases of extralegal killings and enforced disappearances. Here, I’m sure the PNoy administration would prefer a Romney presidency because either way you look at it, Aquino needs the military assistance divorced from the issue of human rights. Aquino has referred to the issue of human rights violations as “left propaganda”.

Then there’s reproductive health. Here, the Philippine Catholic Church and their devotees would like to see a Romney presidency since he has vowed to put an end to all federal funding to artificial birth control, including abortions.  In fact, he has gone on to state that he would want the US Supreme Court to overturn Roe vs, Wade, the landmark case that legitimized abortions in the US. Here, I am so sure that the CBCP, Tita De Villa and Jo Imbong are still praying for a miracle to bring about a Romney victory.

Finally, there is the issue of China. Obama has consistently said that the US interest in the West Philippine Sea is to safeguard freedom of navigation in area. This is why he has frustrated PNoy since he has said that he will not get involved with our intramurals with China. Romney, on the other hand, would probably be the friend that PNoy wants against China. The latter views China’s recent economic and military rise as a threat to the United States. A Romney presidency would have been  more aggressive against China. Let us hope now that a more aggressive stance is unnecessary with a new Chinese leader, as well.

Musings on ‘Araw ng Patay’


Call me strange, but like Christmas, All Saints’ Day has been among my favorite holidays. In fact many of my fond childhood memories were at the North Cemetery where my Lola coerced all of us to visit on All Saints’ Day every year without fail during her lifetime. “Norte,” as we referred to the public cemetery, was never a touristic spot. It was not serene and relaxing even on ordinary days. It was insane and chaotic every first of November.

But there was something about the sight, smell, and presence of so many people in an old decrepit cemetery that I have always found appealing. Certainly, the picnic that came with the annual ritual was part of it. We have had an unwritten rule that the picnic fare must be special, probably because of the awareness that your neighbors in the cemetery may say something about you if you brought only everyday fare. So our fare always consisted of holiday food: kare-kare, crispy pata, and caldereta—with lots and lots of dessert.

Then, there was the customary contest of who among the siblings could come up with the biggest balls from the melted wax of candles. The trick is to ask other people in the cemetery, in the nicest manner, for their melted and wasted wax. Without being aware of it, the annual contest was actually very good training on personality development. It taught us how to be in the good graces of folks whom we barely know.

There too was the fellowship with those whom you only see once a year on All Saints’ Day. Truth to tell, as I grew up, the food and the wax ball contest became only secondary to the thrill of seeing your once-a-year neighbors. There was the usual “how have you been since last year” and the “who’s new in the cemetery”—referring to who have gone underground rather than aboveground in the past year.

Whatever way one looks at it, All Saints’ Day is a party for us Filipinos. It probably is the biggest party annually since it’s inevitably celebrated within the limited confines of cemeteries.

Still, beyond the fanfare, there is too the serious side of All Saints’ Day. I have to admit that during the years that I spent in foreign lands for studies, I found it strange that foreign cultures did not celebrate All Saints’ Day like we do. It took me a while to realize why this is strange from the Filipino point of view. For Westerners in particular, life consists of a beginning and an end. You are born, you live and then you die. Full stop. Certainly, our 500 years of contact with the West have been sufficient to ingrain in us a similar linear perspective of existence.

But it’s not quite the same with us Filipinos. All Saints’ Day is a testament to it. Yes, we do believe that death is an end. But because of our almost pagan version of Christianity, we do have the sense that death is also a beginning. We celebrate All Saints’ Day not only because we want to remember our loved ones who have gone on to the other world. We celebrate it also, in fact we throw an annual party for it, because we know that death is not just an end but a beginning as well. Why else would we be so jovial in the manner by which we celebrate the day for the dead? It must be because in our unique world view as Filipinos, we know that the death of our loved ones mark the start of a perpetual tomorrow.

Still, there is also a utilitarian value to the manner in which we celebrate November 1. Even if one were not as transcendental in his view of the annual event, there is still this obligation to stop and drop everything at least once a year and make that trek to the cemetery. This ensures that no one is forgotten even after he or she has died. It’s also an assurance to all those who are living that when we die, we too will not be forgotten.

Somehow, there’s solace in the thought that regardless of who we are and what we made of ourselves during our lifetime, those who will survive us will celebrate in our remembrance definitely at least once a year.

Happy Araw ng Patay to one and all!