Scenarios for the accused


Now that it appears imminent that the Motion for Reconsideration from a finding of probable cause against “Tanda”, “Sexy” and “Pogi” would be dismissed, what are some of the likely scenarios that may happen soon?

First, on the issue of how the three Information will be heard by the Sandiganbayan, it is certain that these would be raffled separately since the three were indicted for separate acts, not as part of a conspiracy. Chances are that three separate divisions of the Sandiganbayan will then hear the cases separately.

Second, on the issue of detention, it appears that all three would respect the jurisdiction of the Sandiganbayan when and if it issues warrants of arrest against them. I predict all three would surrender. Nonetheless, as I have repeatedly complained, the rich and powerful are never detained in local jails and made to share a small cell with at least 39 other inmates. Instead, it is almost inevitable that they would be detained in special detention facilities. After all, even former President Gloria Macapagal Arroyo agreed to have Senator Jinggoy Estrada detained in an office of the Philippine National Police in Camp Crame. It is a foregone conclusion that all there senators may be housed in similar offices.

Former Senate President Juan Ponce Enrile, owing to his advanced age, should also have no problem getting a medical certificate attesting to an illness. He will probably get hospital arrest not only because of precedents, but also because of real health issues.

It is almost certain that all three accused would file motions to allow them to post bail to secure their arrest pending the hearing of their cases. The rule is that bail is a matter of right except in capital offenses where the evidence of guilt is strong.

I have written before about the innovations introduced by the Supreme Court en banc that now makes it mandatory for judges to rule on motions for bail expeditiously. Unlike, therefore, the Ampatuans who have been waiting for almost five years before a ruling could be made on their petitions for bail, it is now certain that the rulings on the three senators would be made anywhere from six months to a year.

What are the chances for the three to be granted bail?

Objectively, JPE appears to be certain to be granted bail since there is no direct testimony that he received money directly from Napoles, nor that be benefited from the allegedly malversed public funds. Jinggoy’s fate will depend exclusively on the weight that the Court will give to the lone testimony of Ruby Tuason. While she will testify that she personally delivered money to Sen. Jinggoy, her testimony is tenuous since she does not even know how much she delivered. Anent Senator Revilla, his fate will depend on the weight that the Court will give to handwriting experts who will testify that all the signatures purporting to be those of the senator are in fact forged.

I predict a 75 percent chance for bail for Enrile; and 50 percent chance of bail for both Estrada and Revilla.

In any case, all three accused are entitled to the presumption of innocence and it is the burden of the Special Prosecutors of the Office of the Ombudsman to prove that they are guilty beyond reasonable doubt. Given though that the Ombudsman has had a below-10 percent conviction rate, I doubt if any of the accused are really losing sleep over their cases.

Forgive me for being pessimistic. But if the prosecution for the gruesome murder of 58 people have been moving at a snail’s pace, how much more for a crime that does not involve murder?

The bottom-line is this: unless and until the five pillars of the country’s criminal justice system get their act together, no rich or powerful individual will be punished for their criminal acts.

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I cannot help but admire the Vietnamese for the manner that they have been standing up to China. When the Chinese hosed their vessels, their vessels hosed them back, even if they were terribly outnumbered. And yes, I also admire the fury of its people. I am not condoning the senseless targeting of Chinese businesses in Vietnam, many of whom turned out to be Taiwanese-owned anyway. But the fact is ordinary people are infuriated at China’s expression and they have made their views widely known, especially by the policy makers in Beijing.

Will the Filipinos have the same fury as our Vietnamese brothers? Probably not. When China took control of Mischief Reef away from us, our leaders cried and whimpered but there was nothing heard from the general public.

Its high time that we Filipinos take the issue of our national territory personally. At stake after all, courtesy of the estimated 2 billion to 200 billion barrels of oil in the contested area, is the economic future of all our descendants.

The Vietnamese are correct: the West Philippine Sea is a personal issue to those being bullied.

This post first appeared in http://manilastandardtoday.com/2014/05/22/scenarios-for-the-accused/

World Press Freedom day


It was sad that the annual commemoration of the right that has enabled democracy to exist, freedom of the press, came and went without any form of commemoration in the Philippines. Not only that, instead of a fitting celebration, PNoy himself appeared to have belittled the value of a free press when he responded, on the occasion of Obama’s visit, that most of the victims of media killings are not “work related”.

Again, it was unfortunate that the killing of journalists, high up in the US State department’s list of concerns about the Philippines, took a back seat to the EDCA, which was the subject of intense pubic debate. But the President’s nonchalant way of dismissing media killings as “non- work” related, deserves equal condemnation as the one-sided and Anti-Filipino EDCA.

To begin with, the President’s remarks reflects  ignorance on how the human rights community perceives media killing. This is hardly surprising given his ignorance too of the law on state responsibility when he adamantly refused to take responsibility for the Hong Kong tourists massacre and the killing of the Taiwanese fisherman off Batanes. While ordinary mortals can, perhaps, be forgiven for their ignorance, PNoy is President and should have known better.

His view is opposite to the view expressed by the UN Special Rapporteur on Freedom of Expression, Frank La Rue, who has long said that the killing of journalists is prima facie work related. This is because it’s simply unworkable to distinguish between the official role of journalists from their personal lives. Journalists, like priests, lawyers, or any other professional, should practice in their every day life the ideals and high standards dictated by the practice of their profession. Journalists are responsible for contributing inputs in the free market place of ideas. Their inputs are then used by the public in assessing the truth and in forming their opinions. This is why their roles are crucial in a democracy Without a free market place of ideas; we do not know what the truth is. Without a market place of ideas, there will be no debates on what the truth is.

This is why journalists are targeted in the first place. The killing of journalists is the ultimate form of censorship imposed by those who fear the truth. The fact that we are the most murderous country in the world for journalists reflects the prevalence of the worse form of censorship. PNoy’s justification that they are not work-related adds ignominy to the killings because the state, which is duty bound to put an end to these killings, is instead justifying them.

Does it make it any less worrisome if these killings are in fact not work related? Certainly not. The duty of the Philippines under human rights law is to protect and promote the right to life. The killings of journalists add ignominy to the breach of the right to life. The fact that the victims may not have been killed because of their profession does not make the killings any less a breach of an international obligation.

In any case, the President’s declaration also highlights his administration’s lack of political will to address these killings. The fact that the administration’s point to the Ampatuan prosecution as proof of its  discharge of duties is a cause for alarm. Five years after the gruesome murder, no has been punished for it. The Ampatuan massacre therefore, contrary to the Palace claim, is further proof of breach of the same obligation. It is testament to his administrations failure to accord the victims an adequate remedy under domestic law, which should be just and expeditious.

Vergel Santos was right. What can  we expect from a President who prior to his assumption of office- never held a real job. The Presidency requires extensive work experience and the wisdom derived from it. This President has neither the experience nor the wisdom for the job.

Meanwhile the killings continue. Just yesterday, we had the 27th victim of media killings under PNoy. At the rate journalists are being killed, they will soon be a rarity in our society.

It is crystal clear that under this administration, Press Freedom cannot be celebrated. We can only mourn for every journalist that is killed. There’s bound to be a lot more of them with the prevailing sense of impunity.

This article first appeared in http://manilastandardtoday.com/2014/05/08/world-press-freedom-day/

Human rights highlights in 2013


imagesThis will be an annual tradition. For as long as I have a column to write, I will devote my first column of the year to a summary of the highlights for human rights in the Philippines.

For the year 2013, here are what I consider the highlights:

1. The detention and maltreatment of Tausug Filipinos on a mission to reclaim Sabah. First on my list is the maltreatment suffered by the Filipinos as a consequence of the decision of Sultan Jamalul Kiram of the Sultanate of Sulu to reclaim Sabah. Not only is the Sultanate’s title as clear as the light of day. The arbitrary arrest of Filipinos, which really was a witch hunt, coupled with the disproportionate use of force employed by the federation of Malaysia, and the arrest of journalists from ABS-CBN, GMA and Al Jazeera covering the event, highlight the sorry state of human rights in the Southeast Asian region. I highlighted this event because it should be taken as a reason for our own state to comply with the letter and spirit of human rights law: do not do to others what you do not want to be done to your own people;

2. The challenge to the 2012 Cybercrimes Prevention Law. Not since the first quarter storm and the 1986 people power revolution have we seen the youth of this country united in their opposition against an Orwellian attempt to infringe on freedom of expression in the medium intended to institutionalize the free market place of ideas. What is noteworthy is not just the petitions filed against the law, but the use of the Internet as a medium for protest. Regardless of how the Supreme Court rules on the legality of the law, the fact is the youth have rediscovered activism in a new medium—in cyberspace.

3. The Palace position that it would not pay compensation to victims of the Ampatuan Massacre. The year 2013 was the year when the PNoy administration made clear its position that it would not pay compensation to the victims of the Ampatuan massacre. This is clearly a breach of the state obligation under human rights law to provide compensation to victims of violations of the right to life. Independent of the guilt of the accused in the pending criminal cases against the Ampatuans and their cohorts, the state has the obligation to pay compensation to those whose loved ones were killed by state agents despite the state’s obligation to protect and promote the victims right to life.

4. The Philippine position not to support UN Human Rights Council resolutions condemning the attacks against civilians in Syria. Alleging that neutrality to the ongoing systematic attacks perpetrated by the Assad regime against its civilian population was the best means to protect Filipinos in Syria, the Philippine government declined to support any UN Human Rights Council resolution condemning the attacks against civilians in Syria. In adopting this position of neutrality, Filipino policy makers assumed that bullets used by the Assad regime could distinguish between a Syrian and a Filipino worker in Syria. Clearly, the duty to protect our nationals in troubled spots like Syria requires our government to support all initiatives to uphold and promote both human rights and humanitarian law in these troubled lands. This, in fact, is the only means that we can ensure that our diaspora do not fall victim to rampant and systematic human rights violations;

5. Indiscriminate violation of International Humanitarian Law in the Zamboanga siege. Regrettably, IHL, as the law applicable in armed conflicts, found additional application as a result of the Zamboanga siege. Regrettably, both the MNLF and the AFP were noted to have committed grave breaches of the law which is accepted by all countries in this planet as being non-derogable. Both parties to the conflict were observed to have been guilty of indiscriminate attacks against civilian populations.

The AFP order to indiscriminately detain individuals who cannot recite the Lord’s Prayer as possible MNLF members deserves special mention as this violates both the right of the people to be secure in their persons and the right of the people to liberty;

6. The Supreme Court decisions invalidating the PDAF, the Presidential Social Fund and Illegal Disbursement of the Malampaya funds. The decision declaring the pork barrel expenditures as unconstitutional impacts on human rights because hopefully, government funds could now be used to discharge the state obligation to take progressive steps in the realization of economic, social, cultural and economic rights. Hopefully, the hundreds of billions in taxpayers money which used to go to the pockets of our corrupt politicians can now be used to give realization to such basic rights such as the right to food, water, housing, and public health;

7. Finally, the temporary restraining order issued by the Supreme Court on the implementation of the Reproductive Health Law. This was a big blow to the right of the people to heath, the right of privacy, the right to make very personal decisions such as the number of offsprings that spouses would want, and the right of women to non-discrimination.

I hope that 2014 will usher in both a Happy New Year to all and better compliance with human rights and humanitarian law in the Philippines.

Centerlaw’s statement on SC’s new guidelines on the Ampatuan massacre trial


We commend the Supreme Court for issuing new guidelines on the Ampatuan trial. These guidelines show that the Court also finds the status quo as being unacceptable. We are happy that the court granted our first in first out proposal, or that the lower court should issue partial promulgation as to some accused who have terminated with presentation of evidence without having to await termination of presentation of evidence for all theaccused. We proposed this to Judge Reyes but it was rejected. We welcome too the designation of an additional judge and the use of affidavits in lieu of direct testimony. We see these innovations as possible reasons why the trial of the case may finish within the term of P Noy.

The judiciary has done what it can do within its realm. We await the inputs from the executive on its initiatives on the prosecution of the case and the issue of compensation to the victims.

The Center for International Law (Centerlaw) represents the families of 15 of the 58 victims of the Maguindanao massacre in the ongoing criminal case. Centerlaw works closely with the government prosecution panel. Centerlaw is chaired by Atty. Harry L. Roque, Jr.

Statement of Center for International Law (Centerlaw) on Pres. Noynoy Aquino’s SONA


It was very sad that President Noynoy Aquino, for the first time in his SONA, did not have anything to say about the Maguindanao Massacre. As Chief Executive, it is still his duty to prosecute and cause the punishment of the perpetrators of the massacre.

We are also hoping that with recent information that some of the victims almost entered into a compromise with the Ampatuan, the President will squarely address the issue of compensation to be given to the victims of the single most murderous attack against journalists in history.

The President’s failure to state how he intend to finish the prosecution of the massacre case points to a lack of political will to punish those who will violate freedom of the press and the right to life.

Atty.  Harry L. Roque, Jr.
Chairman of Centerlaw and counsel for the families of 15 victims

Ampatuan Massacre commemoration today, July 23, 2013, at 6 pm in UP Diliman


Request for Coverage

Ampatuan Massacre commemoration today, July 23, 2013, at 6 pm to 7 pm in front of UP Law Center, College of Law, UP Diliman.  Mrs. Cipriana Gatchalian, Mrs. Ramonita Salaysay & Mrs. Editha Tiamzon, widows of three of the 32 journalists killed in the massacre, will participate in the program.

Ampatuan victims open to negotiated settlement due to delay in trial


Story from Vera Files and Yahoo Philippines

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TIRED of the slow pace of justice, relatives of 14 of the 58 fatalities in the November 2009 Ampatuan massacre had signed an agreement with an “emissary” of the accused to negotiate the settlement of the murder case for P50 million.

But no settlement has been reached to date: The “emissary,” identified as Jun Chan, was killed in an ambush en route to his farm in Barangay Sulit in General Santos City a month after the agreement was signed.

The agreement with Chan was reached the third week of February, and Chan was killed on March 25. But the proposed settlement surfaced only recently when an heir of one of the victims decided to provide the details to highlight how precarious their situation is—financially and security-wise—as victims living in Mindanao.

Lawyer Harry Roque confirmed in radio interviews that four of the 14 heirs who signed the agreement with Chan are his clients.

The source, who attended the two meetings with Chan but ended up not signing the agreement, said the meetings were held in a mosque in General Santos on the second and third weeks of February. Chan was accompanied by a man they called “Prof,” but the heirs came without their lawyers, the source said.

In the first meeting, Chan asked the heirs to sign a document authorizing him to negotiate a financial settlement on their behalf in return for 15 percent of the amount. “We said we would not entertain any offer lower than P50 million, and the emissary said he would talk to his principal,” according to the source.

In the second meeting, Chan told the heirs that his principal was amenable to the amount but asked for two affidavits in return, the source said.

One would be an affidavit of desistance. The other would be an affidavit stating that then gubernatorial candidate Esmael “Toto” Mangudadatu had promised each journalist P30,000 as payment for accompanying his wife Genalyn to the Commission on Elections office in Shariff Aguak to file his certificate of candidacy (COC).

“Akala namin nung una, affidavit of desistance lang OK na, pero sabi nila wala na daw magiging epekto yun sa kaso dahil pwede pa ding mag-prosecute ang gobyerno kahit bumitaw kami (We initially thought that they just wanted an affidavit of desistance, which was all right with us. But they said this would have no effect on the case because government can still prosecute the case),” the source said.

The heirs were asked to state in their affidavit that Mangudadatu promised to pay the victims P5,000 as downpayment and the balance of P25,000 after the COC had been filed, the source added.

Said the source: “Gusto nila na idiin si Toto, na alam nya na ipinapain nya ang buhay ng mga media para makapag-file siya ng COC (They wanted to implicate Mangudadatu by showing that he knew he was putting the journalists’ lives in danger).”

The source also said Chan repeatedly warned them “not to talk to anybody about the negotiations for our own safety.” Hence their silence when he was killed a month later.

At the time, police did not know the motive for killing Chan, who was in a car with his wife. Chan’s wife survived.

Chan had stressed in both meetings that it was in the heirs’ best interest to settle the case because the trial would only linger because the government’s evidence against the accused was weak, the source recalled.

“Kung manalo man daw kami, malaki na daw na makakuha kami ng P5 million (Even if we win, the most we’d get is P5 million),” the source said.

Reacting to the agreement reached between the victims’ heirs and Chan, National Union of Journalists of the Philippines president Rowena Paraan said, “We have an environment that encourages the victims to settle. If the victims feel they will get justice, the temptation to settle will not be there.”

On Monday, the NUJP and the Franciscan Sisters commemorated the 43rd month of the Ampatuan killing with a mass at the St. Joseph’s College in Quezon City.

Lawyer Prima Quinsayas, one of the private prosecutors in the ongoing Ampatuan trial at the Quezon City Regional Trial Court, said she heard about the meetings between Chan and the heirs but that “none of (her) clients discussed it with her.”

Roque, said he will ask the United Nations Human Rights Committee to look into government’s failure to accord adequate remedy to the victims under domestic laws and compensation.

The UNHRC has called the Philippine government’s attention on two cases, that of Navy ensign Philip Pestano and Eden Marcellana, both victims of extrajudicial killings.

Roque said the government’s duty to pay compensation to the victims of the Ampatuan killing is “separate and distinct from the civil damages that the court may order the accused to pay to private complainants.”

By MYLAH REYES-ROQUE

- See more at: http://verafiles.org/ampatuan-victims-open-to-negotiated-settlement-due-to-delay-in-trial/#sthash.yytOZxXX.dpuf

AMPATUAN VICTIMS TO SEEK REDRESS WITH UN COMMITTEE ON HUMAN RIGHTS. 14 Victims signed authority to negotiate a settlement with Ampatuans


On the occasion of the 43rd month commemoration of the Ampatuan massacre, Prof. Harry Roque, Chairman of the Center for International Law and Private Prosecutor of 17 media victims of the massacre, announced that their clients will resort to a filing of a communication with the United Nations Human Rights Committee for the Philippine government’s failure to accord the victims their rights to an adequate remedy under domestic law and compensation.

In at least 2 Views made by the UN Human Rights Committee where the Philippines was found guilty of breaching its obligation to protect and promote the right to life (the Pestano and Marcellana cases) for its failure to seasonable investigate and prosecute the killings of Navy Ensign Philip Pestano and Eden Marcellana, the Committee already declared that the Philippine government owes victims of extralegal killings these two obligations. “Thus far, it’s been almost 4 years and there is still no end in sight to the criminal prosecution of the Ampatuans. In fact, the Philippine government took almost 4 years just to file the information for the 58th victim, Reynaldo Momay. This should give us a clue on how long the criminal proceedings will take,” Roque added

Furthermore, Roque explained that the duty to pay compensation to the victims of the massacre is separate and distinct from the civil damages that the Court may order the accused to pay to the private complainants as part of the judgment in the criminal cases for murders. “The compensation that is due to the victims is because it is the state itself that breached its obligation to protect and promote the right of the victims to live. This includes not just monetary compensation, but also all that may be required tor restore the emotional and psychological well being of the victims. “We still have a pending motion for the Court to order government agencies to provide psycho-social support to the victims. This has not been acted upon but has strangely, given rise to a petition filed by the accused to cite us in contempt allegedly for “prejudging” the merits of the case”, Roque declared.

The need of the victims for compensation has been highlighted by the fact that 14 media victims, including 4 represented by Centerlaw, signed a written authority in February of this for a close associate of the Ampatuans to negotiate a settlement with the accused. Under this scheme, the victims were to sign not just a waiver and quitclaim, but also an affidavit pinning the blame for the massacre to Governor Toto Mangundadatu.

“Unless the Philippine government complies with its duty to pay compensation, the victims will continuously be tempted with schemes that may eventually cause a miscarriage of justice”, Roque said.

Roque asked all media groups and all those adhering to the rule of law to support the communication by filing their own interventions and briefs in due course

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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.

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