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.

Published in: on November 23, 2012 at 8:43 am  Comments (3)  
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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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Published in: on November 23, 2012 at 8:36 am  Comments (4)  
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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?

Published in: on November 15, 2012 at 9:47 am  Comments (1)  
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The one hundred and second


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Good news to the families of the 58 victims of the infamous Maguindanao massacre. Shortly after the 1000th day anniversary of the massacre, Datu Ulo Ampatuan, brother of recently arrested and injured Ipeh Ampatuan, son of Anwar Ampatuan, grandson of Andal Ampatuan Sr, became the 102nd suspect to finally be apprehended for the massacre by the Philippine National Police.

This means that there are now 94 suspects who still have to be arrested. Without doubt, this is a very small step in the uphill battle for justice to the victims of the massacre, but good news nonetheless. What is worrisome is the pronouncement of his lawyer that 1000 days after the massacre, Ulo Ampatuan never went into hiding as in fact, he was arrested not in the jungles of Maguindanao, but in BF Resort in Las Pinas. Does this mean that all these time, the PNP was not actively seeking him out to be arrested? If so, this may mean that it would take 10 lifetimes before all of the suspects are finally arrested.

Just last week, I wrote about what next to do after we ratified the Rome Statute. Part of what is now incumbent upon us is the duty to cooperate particularly in the arrest of individuals who are subjects of warrants of arrest issued by the International Criminal Court. I have always maintained that the arrest of these persons may be our waterloo since obviously, our PNP has not proven to be effective in apprehending individuals with warrants of arrest. Aside from those still at large in the Maguindanao case, there are also the Reyes siblings of Palawan, both wanted for the murder of Doc Gerry Ortega; Joselito Binayug, wanted for the Darius Evangelista murder; former Rep. Ruben Ecleo, and Jovito Palparan. Unless the PNP shapes up, we may become the laughingstock of the international community since in almost all civilized societies, the apprehension of wanted individuals is considered to be amongst the most basis function of a police force.

This leads me now to the search for the new DILG Secretary. The DILG, by law, has supervision over both local government units and the PNP. Supervision is legally defined as the duty to ensure that hat local government units and the PNP are performing their functions. But because LGU heads have popular mandates, the thrust of the DILG really is over the PNP. It is clear that whoever will take-over the post must primarily have the ability to reign in a police force that has proven to be both inept and inefficient. This is why many of us regular citizens would like to see the likes of Senator Panfilo Lacson at the helm of the Department. Yes, the man may not be perfect- as who can claim to be perfect anyway? But there should be no doubt that Lacson, with his experience and proven abilities, can rebuild the PNP into what the law envisions it to be: the implementer and not the breaker of the law.

Published in: on August 30, 2012 at 10:06 am  Comments (3)  
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Ampatuan victims versus Arroyo


 

  

At 2:15 yesterday afternoon, 15 victims of the Ampatuan massacre filed a P15-million damage suit versus Gloria Macapagal-Arroyo. The victims had three causes of action: one, aiding and abetting the Ampatuans for the massacre; two, violation of their constitutional rights (the rights to life and freedom of the press of the victims); and three, command responsibility.

Aiding and abetting as a means of acquiring liability was first recognized in the Nuremberg tribunal. The very first individuals found guilty for it were the officers and directors of a company that manufactured the gas used in the notorious gas chambers used by the Nazis in pursuit of their final solution: the annihilation of the Jews. The officers and directors of the company may not have directly killed the Jews themselves, but the genocide could not have happened without the chemicals which they supplied. Yet another conviction for aiding and abetting was in a case decided by the International Tribunal for the former Yugoslavia. There, a man was physically present when another was torturing a detainee. The court ruled that even if the bystander did not personally perform any torturous act, he is still liable because he did nothing to stop the criminal act.

 

Why aiding and abetting against Arroyo?

 

The victims argued that she is liable for aiding and abetting because she legitimized the private army of the Ampatuans through an executive order that absorbed them as “force multipliers” of the Armed Forces of the Philippines. The victims also argued that she supplied these members of the private army with the arms and the bullets used to kill the victims of the massacre. Finally, she was responsible for the sense of impunity by which the massacre was committed precisely because she endowed the clan with tremendous influence. This arose from the peculiar role that the Ampatuans played for Arroyo in Maguindanao that is now the subject of prosecution for electoral sabotage. In fact, it appears that Arroyo stole the presidency from Fernando Poe, Jr. largely through the Ampatuan machinery in the province.

 

The cause of action based on command responsibility is a principle borrowed from International Law. When Yamashita, the “tiger of the Malayas” was being prosecuted by Philippine authorities for war crimes at the end of the war, he invoked the defense that he did not order the crimes to be committed and that he did not even know that the crimes were being committed. Here, the Philippine Supreme Court held that as a commander, Yamashita was duty bound to adopt a sound system to ensure that his troops were in compliance with the law all the time. On appeal to the US Supreme Court, the court formulated the principle as it stands today: commanders —or Presidents—are responsible for the acts of their subordinates under their control when they knew or should have known that the crimes were about to be committed and they did nothing to prevent them.

 

The contention of the widows is that Arroyo knew the kind of violence that the Ampatuan clan was capable of. In fact, her Cabinet members warned Toto Mangudadatu about their violent nature. Moreover, the blocking force that intercepted the ill-fated convoy was in place as early as November 19, 2009 and yet, Arroyo, as commander-in-chief, did nothing to prevent the massacre from happening.

 

We do acknowledge that these are tough allegations and causes of action to prove. But what do the victims have to lose? Two years after the massacre, only 93 of 197 accused have been arrested, and only 64 of the accused have been arraigned. At this pace, it would take more than double the lifetimes of the victims before justice can be accorded them. Meanwhile, we cannot sit idly by and merely tell the victims how truly unfortunate they are. I have always maintained -as a lawyer and a law professor- that there is always an effective legal remedy for those whose legal rights have been violated. For now, the civil suit appears to be their only effective and speedy, or at least, their speediest remedy.

 

On the occasion  of the second anniversary of the massacre, Malacañang spokespersons should go beyond saying that President Benigno Aquino III will merely ensure that the public prosecutors are not the reason for the delay in the prosecution of the case. It is still the task of the Executive to apprehend those are still at large so that witnesses, whose lives are already in danger, should not be made to repeat their testimonies over and over again to identify yet another accused arraigned or arrested. Malacañang should know too that the Pareno study funded by the Asia Foundation has already concluded that it is primarily because of the lapses within the executive branch that is responsible for the impunity accorded to killers in our society. Certainly, it is the burden of the Executive to reform the criminal justice system to ensure that victims of the massacre, and all other victims of extralegal killings: the Ortegas, Evangelistas, Barramedas etc., are all accorded their rights to an effective and speedy remedy under local laws and the right to receive compensation.

 

The tendency of the President’s spokespersons to pass the buck will only exacerbate rather than end the culture of impunity.

 

Published in: on November 24, 2011 at 11:39 am  Comments (5)  
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Moro-Moro


The moro-moro is back. It’s now playing in Malacañang and its lead star is Zaldy Ampatuan. It’s entitled: “give me immunity and I will tell you the truth”.First, there is the attempt to mislead. Zaldy Ampatuan, co-accused in 58 counts of murder in a massacre that has the notoriety of being attributed to his family name, says that all he wants is “to reveal the truth”. But because this may involve implicating his father and his siblings, he wants to be put in Witness Protection. And yes, according to him, he’s not for asking anything in return. True? Nope. Definitely false. By invoking the Witness Protection Program, Zaldy in effect, wants testimonial immunity for the massacre. This is because according to the law, all those who have been admitted into the Witness Protection Program (WPP) should no longer be charged by government prosecutors for the crime on which he will be testifying. Those already charged should be removed from the list of accused with the government prosecutors moving the court to withdraw the information against the admitted witness. What he should be asking for—if he is genuine and sincere in his effort to reveal the truth—is plain and simple police protection. But of course, in an effort to deceive the public, he mentions the program but claims he wants nothing in exchange.

Then he claims that while he had no participation whatsoever in the planning or the execution of the massacre, he nonetheless acquired information about the massacre after it had happened. This information apparently would prove the criminal culpability of his kin. Well, if this is indeed the case, then the more reason he should not be admitted into the WPP. This is because the WPP, like the Rules of Court on the discharge of an accused as a state witness, requires that the testimony of the person sought to be discharged should be indispensible. After, acquired information about the massacre simply will not fall in this category. In fact, Zaldy’s testimony, whatever it may be, is plain and simple, superfluous. Since he was not indicted as one of the participants in the actual massacre itself on 33 November 2009 but as a co- conspirator in the planning of the same, all that he could testify on are facts relating to the conspiracy. But the prosecution already has at least three witnesses to prove that conspiracy. There is Lakmudin Saliao, the household help who testified there were at least two meetings presided over by Andal Sr., wherein the clan planned the massacre. Saliao positively testified that Zaldy was present and actively participated in these two meetings. There is also the testimony of Kenny Dalagdag who, in addition to be being a participant in the actual shooting, also said in his sworn statement that Zaldy and his father were also present in these preparatory meetings. There are also the further testimonies of at least two policemen corroborating the details of the planning. This is why no less than Justice Secretary Leila De Lima has said that the prosecution no longer needs the testimony of Zaldy. Thanks but no thanks!

The truth of the matter is that the entire Ampatuan clan, and not just Zaldy, appears desperate to have one of them released. Why? For the obvious reason that with the patriarch and Zaldy both behind bars, the clan’s vast financial and political assets are in disarray. Unless one of them is released, and it may as well be Zaldy since he’s the only educated member of the clan, all their assets, including the frozen ones, may all come to naught.

The timing? Well, the Ampatuan name, apart from being synonymous with the massacre, is also notoriously linked to elections. So what better timing than now when the ARMM elections may just happen what with Senator Aquilino “Nene” Pimentel’s petition in the Supreme Court questioning the law postponing the holding of the ARMM elections? It’s ironic the Pimentel’s petitioners include Pax Mangundadatu, PDP-Laban gubernatorial candidate for ARMM and uncle of some of the victims of the massacre.

Then the next intriguing issue: why is no less than the Palace involved in this mess? Note that when we, the people, only learned about Zaldys’ attempt to buy immunity when journalist Gil Cabacungan Jr., quoting Palace sources, wrote that the President already denied the request since it had too many conditions. My instinct then was: who on earth brought Zaldys’ concern to the Palace? Prosecuting the Ampatuan during the GMA administration would have been impossible because of acknowledged ties between Arroyo and the clan. But the Ampatuans apparently continue to be influential in PNoy’s Malacañang. They’re certainly influential enough to have his request for immunity brought directly to the attention of the President, even by-passing the Department Secretary who has jurisdiction over the matter: Secretary De Lima.  But there was the good secretary, searching for words, apparently kept in the dark when asked about Zaldy’s bid.

Well the dead rat is out. Secretary Edwin Lacierda, contemporary of Atty. Howard Calleja, Zaldy’s counsel at the Ateneo Law School, declared brazenly that the Palace remains open to Zaldy’s offer. Huh? But didn’t the Chief Executive already reject the said offer? Apparently not. This is why impunity persists in this country.

The moro-moro continues.
Published in: on July 14, 2011 at 9:26 am  Comments (13)  
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VIP treatment


It happened last Thursday, the day when this column is regularly published. The prosecution has at least four witnesses ready, three of whom we were going to present as private prosecutors. While Cipriana Gatchalian, wife of slain journalists Santos “Jun” Gatchalian was scheduled to testify, Joseph Jubelag was not. Joseph could have been the 33rd journalist victim of the Ampatuan massacre had he pushed through with his scheduled coverage of Esmael Mangudadatu’s filing of his certificate of candidacy for governor of Maguindanao on November 23, 2009. Fortunately for him, he had previously written critical articles of the Ampatuan, specifically what he described as their ill-gotten wealth, and for which he received death threats.

He decided thus not to go with the doomed convoy at the very last minute. In fact, he had already filled his Mitsubishi Lancer with gas, together with the other vehicles of the convoy, when suffering from goose bumps, he decided to heed the call of nature and decided to return to the pension house where he and eleven other journalists spent the night of November 22, 2009. There, he was told by the first desk clerk that two seemingly Muslim men where inquiring about the identities of the journalists that stayed there the night before. He thought this to be strange and took this is an omen of the evil that was to happen.

 

Jubelag then called his close friend, Alejandro “Bong” Reblando to say that he was not joining the coverage. Bong understood and agreed to meet him at the residence of now Governor Esmael Mangudadatu in Buluan after the filing for a scheduled press conference. Bong would not make it back to Buluan, as together with 57 other victims, he would be  brutally murdered in Sharif Aguak, Maguindanao.

 

Among those to be charged with murder for the massacre would be Andal Ampatuan Sr and his sons, Andal “Unsay” Ampatuan Jr,  Zaldy, Sajib and Akmad.

 

Joseph did take the witness stand last Thursday but did not have to testify. After initial protests from defense counsels that he was not in the list of witnesses to be presented, they nonetheless agreed to stipulate that Joseph could identify all 32 journalists who joined the Mangudadatu convoy on November 23, 2009. Joseph was also supposed to identify a blood-stained list of journalists who joined the convoy. In the absence of the original that was still in the possession of police authorities, Joseph could not identify the list. There also was no further reason for him to do so given the stipulation.

 

In any case, while Joseph was scheduled to be presented in the morning last Thursday, the defense objected. Judge Jocelyn Reyes, in order to give all  defense counsels, lawyer Sigrid Fortun  in particular, an opportunity to hear his testimony, decided to postpone Joseph’s testimony to 1:30 in the afternoon of the said date. Hearing was thus adjourned at an unusually early time of 11 AM.

 

I was already in my vehicle en route to lunch when victim Gemma Oquendo knocked at my vehicle’s window to say that Bureau of Jail Management and Penology chief Rosendo Dial had allowed the victims to conduct a surprise visit to the Ampatuan detention facility. This consent was apparently broadcasted on national radio. Excitedly, we rushed back  into the BJPM compound and proceeded to the office of the then warden, Glennford Valdepenas. We waited for almost an hour before we realized that the former warden would not bother to even face us. What made matters worse was that as we were patiently waiting outside the warden’s office, an Ampatuan lawyer entered the office so casually, it was as if he were part of the BJMP. This riled the victims then present, including Gov. Toto, and almost triggered a physical encounter between the victims, the Ampatuan lawyer, and the staff of the former warden.

 

As we left the warden’s office, another group of victims proceeded to the DILG to reiterate their request for a surprise visit to the Ampatuans. Apparently, Director Dial again agreed. But by the time this was relayed to me at about 5 PM of the same day, I thought that the visit would already be  useless. If it were true that the Ampatuans are being given very-important-prisoner treatment, surely, I thought, the six hours that had already expired since we originally sought to visit their detention facility would be more than sufficient time to get rid of evidence of this VIP treatment. I was simply unwilling to be a deodorizer. Full stop.

 

The good news is that Secretary Jesse Robredo lived up to his Magsaysay Award and has relieved Valdepenas from his post. He apparently is also making more surprise visits to Bicutan in an effort to rid the Ampatuans of VIP treatment. Asked for my comments today about what I thought of these initiatives, I said these were certainly welcome even if Robredo would have to make more of these visits to ensure that the Ampatuans are treated no differently from ordinary detention prisoners.  I also thought that the DILG would need a very deep bench for the post of warden of the Quezon City Annex detention facility in Bicutan as I’m sure many more will succumb to temptations.

 

Strangely, the Ampatuan lawyer Sigrid Fortun has himself admitted the existence of VIP treatment when he acknowledged on national television that his clients did have their food delivered (some will say catered) to them regularly. The  Ampatuan legal team has hence admitted what the victims have suspected all along: that the Ampatuans are in fact accorded special treatment.

 

Meanwhile, none of the victims, no one from the media, nor anyone from the general public has seen any of the Ampatuans as they are allegedly detained in Bicutan. The last that we saw Andal Sr, for instance, was when he was about to take a luxury SUV on his way to a medical examination. All that the Filipino people have by way of guarantee that the Ampatuans are in fact detained in Bicutan is the word of Secretary Robredo. And yes, let’s not even talk about VIP treatment when we are not even sure where they are.

 

Published in: on June 5, 2011 at 8:44 pm  Comments (2)  
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Wanted: A Regional Human Rights Body


On October 23rd, the Association of Southeast Asian Nations (ASEAN) officially inaugurated the ASEAN Intergovernmental Commission on Human Rights (AICHR). Amongst its purposes is to “to promote human rights within the regional context, bearing in mind national and regional particularities and mutual respect for different historical, cultural and religious backgrounds, and taking into account the balance between rights and responsibilities”. Amongst its mandates, on the other hand, is “to develop an ASEAN Human Rights Declaration with a view to establishing a framework for human rights cooperation through various ASEAN conventions and other instruments dealing with human rights”.

The creation of the AICHR was expectedly met with high hopes that ASEAN, amongst the most vibrant regional groupings today, would finally establish a regional human rights mechanism. While there was no illusion that this body would replicate the European Court of Human Rights overnight, it was at least expected that the body would prove to be somehow responsive to the human rights challenges in the region and at least have the competence to declare countries in breach of their human right obligations. ASEAN, after all, is home not just to some of the fastest growing economies in the world; but also to the most repressive regimes with Burma high up on the list, and Vietnam, Cambodia, Thailand, the Philippines and Singapore not far behind.

Because of high expectations for this newly created Commission, some relatives of victims of the infamous Ampatuan massacre in Maguindanao, filed the very first communication with the commission barely two months after the massacre. The massacre was widely reported worldwide because of its gruesome nature: the perpetrators killed all 58 victims in cold blood using high-powered firearms and attempted to bury all evidence of the massacre, both corpses and vehicles, in three holes dug by a back hoe in Sitio Masalai, Ampatuan Maguindanao. At least 32 of the victims were journalists, adding notoriety to the massacre as the single most deadly attack against journalists worldwide. The communication filed by 13 family members of slain journalists sought to declare the Philippines in breach of the right to life and freedom of the press when their loved ones, all journalists, were killed by at least 195 individuals, all of whom are state organs. By way of reliefs prayed for, the petitioners, led by a high school teacher, Noemi Parcon, asked for a declaration of breach a well as for the Philippine government to make reparations and to pay compensation.

The petition was filed with a sense of desperation. With the suspected perpetrators perceived to be very close allies of the Former Philippine President Gloria Macapagal-Arroyo, the victims were fearful of a whitewash and a cover-up. This fear proved to be well founded since 10 months after the filing of the communication, Lakmudin Saliao, testified in court how the accused spent 400 Million pesos to cover-up the massacre. Human Rights Report would also conclude that the former President was at least partially responsible for the massacre because of her complicity.

As an advocacy tool, the petition was envisioned to trigger the development of a mechanism that would at least receive individual communications and declare breach of state obligations under human right law, at least in the manner by which the UN treaty monitoring bodies do. While these bodies issue only non-binding “views”, it was hoped that since no state would want to be declared to be in breach of a state obligation, that the declaration of breach by itself would be a remedy of sorts for those whose rights have been violated. Eventually, it was also hoped that the body would develop in the path of the Inter-American Commission on Human Rights which today, declares breaches of state obligations and orders both reparations and the payment of compensation.

The high hopes for the commission proved short- lived. In March 26, 20101, Rafendi Djamin, the Indonesian Representative to the Commission and respected as its most “progressive” commissioner, faced Noemi Parcon and others who sought to file their own communications and delivered the the sad news: the Commission will only receive thematic reports on human rights issues, but not individual complaints, and therefore no further action will be taken on any petition.

A year after the Ampatuan massacre, the victims continue to be denied of a speedy remedy under domestic law since a judgment of conviction does not appear to be possible in the near future. They are furthermore, denied reparations and compensation. It is precisely because of these shortcomings of our domestic law that a regional human rights mechanism should be established and soon.

Published in: on December 1, 2010 at 11:55 pm  Leave a Comment  
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One Year Later


One year after the world’s deadliest attack against journalists, the families of the 58 victims of the Ampatuan massacre continue to hope that their quest for justice will not be in vain.
Time, though, does not appear to be on their side. A year later, the numbers are dire: both the prosecution and defense have told the court that they will present the testimonies of at least 500 witnesses. After a year of trial, only 13 witnesses have thus been presented, many of whom may still recalled for cross-examination since almost all of those who have testified did so only in opposition to the Petition for Bail filed by a principal suspect in the case, Andal “Unsay” Ampatuan Jr.

Worse, of the 196 accused of perpetrating the massacre, one has since been absolved, and only 79 have been apprehended by the authorities. An overwhelming number of those indicted for the massacre continue to be at large, including no less than 21 members of the Ampatuan clan. Of

those already in custody, only 51 have been arraigned. The patriarch, Andal Ampatuan Sr. and former Autonomous Region for Muslim Mindanao Governor Zaldy Ampatuan, have both not been arraigned because they still have pending petitions in the Court of Appeals questioning the existence of probable cause against them. Meanwhile, at least three witnesses, including self-confessed gunman, Suwaid Upham, have been killed and silenced. Many other witnesses, including their immediate families, are on the run fearing that their testimonies may endanger their own lives and limbs, including those of their loved ones.

There are some good news. To begin with, at least five members of the Ampatuan family, including the patriarch and his two sons, are in jail while the trial drags on. “ There is at least consolation in the fact that although they have not been found guilty, the Ampatuans are already paying for their sins in jail”, said Myrna Reblando, whose husband, Alejandro or “Bong”, was the only full-time employee of a national daily newspaper, the Manila Bulletin, killed in the massacre. There too is the fact that according to witness Rainier Ebus, it was Andal “Unsay” Jr., his cousin Datu Kanor, who is still at large, and several other gunmen, majority of whom are members of the Ampatuan’s private army, who shot and killed all 58 victims at close range using high powered firearms. Ebus’ testimony corroborated to the letter the narration of Upham, the witness who was killed. “Somehow, this truth on who actually killed my son aggravates the pain”, said Cristine Nuñez, mother of Victor Nuñez, a cameraman of UNTV who was killed in the massacre.

There have also been at least two witnesses who positively identified the patriarch, the former ARRM governor and other members of the Ampatuan family as taking part in the planning of the massacre. Witness Lakmudin Saliao, a former household helper of the Ampatuans, testified that he was present in at least two meetings where the clan agreed that their own relative, Esmael “Toto” Mangundadatu should not be allowed to challenge their rein in Maguindanao. According to the witness, the decision was unanimous: kill “Toto” and whoever would be with him when he files his certificate of candidacy. At one point, the patriarch was quoted by this witness as having ordered his son “Unsay” to spare the journalists and women who were part of the convoy. But the same witness related how the old man relented after being told by his son that the survivors may give evidence to the crime if their lives would be spared.

More importantly, the witnesses presented thus far have testified on attempts to cover up this massacre beyond the earlier attempt to bury all of its victims and the vehicles that they were on. The former house help testified how immediately after the carnage, the patriarch authorized the release of P400 million (roughly $10 million) to pay off prosecutors, investigators, and witnesses whom they wanted to retract their earlier testimonies. Worse, the witness also testified how no less than a Cabinet member of the former Arroyo regime, Jesus Dureza, who ironically was a former journalist himself, was ordered to be given at least P20 million pesos ($500, 000) albeit for still unclear reasons. What is clear though that it was to the same Jesus Dureza to whom the Ampatuan clan surrendered the custody of “Unsay” Ampatuan, after allegedly agreeing that no less then former President Gloria Macapagal-Arroyo will ultimately exercise custody over the patriarch’s apparently favorite son and heir- apparent. This bolstered the fears of many of the victims that justice against the killers would have been impossible under the past regime given the Ampatuans’ close personal and political ties with the former president.

Meanwhile, the relatives of the victims continue to grapple with both the emotional pain and financial pressures brought about by the loss of their loved ones, many of whom were the sole breadwinners of their families. While the Philippine government has given each of the victims at least $6,000 by way of financial assistance, this could hardly compensate them for both the economic loss and the emotional pain created by the massacre. “I have to be strong for the sake of my child. I have to invest the little financial assistance I have received to raise my son’, declared Arlene Umpad, live-in partner of McGilbert Arriola, a camera man for UNTV who was among those killed. Arlene has invested part of the money she has received to raise cows in the province of Quezon where she and her child relocated for security reasons. Arlene, apart from tending to her cows, now also has to raise her child alone. Her son was merely three months old when the massacre happened. Her deceased partner was the youngest victim of the massacre.

Many families of the victims of the Ampatuan massacre have opted not to attend the commemoration of the tragedy at the scene of the massacre. “I will be busy tending to the grave of my husband”, said Zenaida Duhay. Another widow, Noemi Parcon, expressed apprehension about the very safety of the commemoration itself since days before, a bomb exploded in the national highway leading to the massacre site. Noemi added: “what is more important is for government to hasten the prosecution so we can obtain justice soon”.

As the Philippines and the world commemorate the worst attack on journalists in modern history, the families of the victims will light candles in the tombs of their loved ones. A candle, in the Philippines, is a symbol of remembrance. To some it also is a means of sending a message that they are not departed.

Published in: on November 26, 2010 at 12:46 am  Comments (5)  
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Kin of massacre victims explore U.N. help on court case


By Yahoo! Southeast Asia Editors – November 23rd, 2010Email Facebook Twitter Print

By Mylah Roque, VERA Files
For Yahoo! Southeast Asia

Relatives of victims of the year-old Maguindanao massacre on Monday sought the help of the visiting United Nations Special Rapporteur for Freedom of Opinion and Expression in speeding up prosecution of members of the Ampatuan family and more than a hundred others charged with the multiple killings that have been described as the country’s worst election-related violence.

“Can you be a bridge to our government as our justice is so delayed?” Catherine Nunez, mother of one of the 32 journalists and media workers killed in the massacre, asked Special Rapporteur Frank William La Rue during a lecture-dialog held at the University of the Philippines College of Law.

Nunez specifically asked if the U.N. could facilitate with the Philippine government a speedier resolution of the prosecution of the case.

La Rue is in Manila not on an official visit but to participate in activities marking the first anniversary of the massacre. But he told Nunez, “As a matter of principle, impunity often comes (not just) as denial of justice but also as slowness of justice.”

La Rue expresed optimism over the prospect of coming to the Philippines on a formal visit, but at the same time said it could happen only after requests and invitations are made by a broad spectrum of affected individuals and institutions.

He would need a formal invitation from the Philippine government to conduct a formal factfinding.

The last time such an official invitation was issued was in February 2007, when Philip Alston, then the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, visited and issued a report characterized by a strong disapproval of the many executions that occurred during the Arroyo government.

As special rapporteur, La Rue has a mandate from the U.N. High Commissioner for Human Rights to conduct factfinding missions relating to violations of the right to freedom of opinion and expression, discrimination, threats and violence against journalists or other professionals in the field of information.

La Rue noted that it is in the Philippines that the highest number of journalists killed in a single instance happened.

The 2010 Impunity Index of the Committee to Protect Journalists ranked the Philippines third worldwide, after Iraq and Somalia, among the countries where journalists are killed regularly and governments fail to solve the crimes.

At the lecture-dialog sponsored by CenterLaw, Media Legal Defence Initiative and the National Union of Journalists of the Philippines, La Rue talked about his experience as a Guatemalan human rights lawyer and how mechanisms such as the U.N.-sponsored International Commission Against Impunity in Guatemala could be a useful model for other countries.

Besides Nunez, relatives of massacre victims who attended the lecture-dialog were Myrna Reblando, Editha Tiamzon, Julieta Evardo, Zenaida Duhay and Ma. Cipiriana Gatchalian.

Aside from them, two Filipino comfort women— Isabelita Vinuya and Perla Balingit—spoke with La Rue.

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VERA Files is put out by veteran journalists taking a deeper look into current issues. Vera is Latin for “true.”

Published in: on November 23, 2010 at 2:05 pm  Leave a Comment  
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