ANDAL AMPATUAN SR’S LONG DELAYED ARRAIGNMENT: EVIDENCE OF DYSFUNCTIONAL JUSTICE SYSTEM


The long delayed arraignment of Andal Ampatuan Sr. for 57 counts of murder is
evidence of a dysfunctional justice system in the Philippines. While an accused like him has the right to a stay of his arraignment where he opts to challenge the existence of probable cause, the rules on criminal procedure nonetheless mandates that the suspension should  not be more than 60 days reckoned from the time of the filing of the Information. Our computation indicates that the 60-day period to which Ampatuan Sr. was entitled  expired in August of 2010. Yet, it is only today, 1 June 2011, when he is actually being arraigned.

There is more reasons to worry. Andal Sr’s arraignment was made possible
only because he voluntarily agreed to it. Never mind that the prosecution
has had a pending motion to have all the accused in  custody to be arraigned. The Court has not acted on this motion. This is alarming because seemingly, it was not the rules that compelled Andal Sr to enter a plea. On the contrary, it was only because he agreed to it- as if an accused can now rewrite the rules to suit his ends.

The Center for International Law, an affiliate of the Southeast Asia Media Legal Defense Network, private prosecutor representing media victims of the massacre, submits that an arraignment done in this manner undermines the country’s rule of law. Under human rights law, all accused should be treated
alike. Here, an arraignment, made dependent on the willingness of the accused to enter a plea, and not pursuant to the rules of criminal procedures, weakens and undermines the rule of law. It proves that some accused have more rights than others. This is a truly sad commentary on the state of our criminal justice system.

Neither do we think that altruism is behind Andal Sr’s  voluntary arraignment. To date, at least three of his sons, Zaldy, Sajib, and Akmed, have also not been arraigned, despite the lapse of the mandatory 60 days suspension. We believe that the voluntary nature of Andal’s arraignment is intended to deflect the public’s attention away from the controversy that has by now surrounded the Petition for reviews filed by Andal’s sons in the Court of Appeals. At least one columnist, Mon Tulfo, has written that at least 200 million circulated in the high court to effect the release of at least one of Andal’s sons.

Ultimately, this is why there is impunity in the Philippines. Despite a change in administration, the justice system is simply not working and its rebuilding- has not been made a priority.#30#

Democracy and the ARMM elections


I used to be uncertain about my position on the administration’s planned postponement of the elections at the Autonomous Region for Muslim Mindanao (ARMM). I no longer am.

The postponement appears to be the brainchild of a dear friend and law client, Political Affairs Secretary Ronald Lamas and is for the noblest of intentions: the holding of truly democratic elections at the ARMM. Commission on Human Rights Chair Loreta “Etta” Rosales, another dear friend, explained that the postponement is necessary to give the COMELEC time to purge the voters list and conduct a comprehensive dissemination on the sacred value of the right to suffrage in a democracy. The last time we had elections at the ARMM, the Ampatuan family emerged victorious. The perception was the dreaded clan won because it used the 3 G’s of traditional politics: guns, goons, and gold, but not necessarily in that order. It helped too that the clans’ patriarch, Andal Sr., astutely married off his sons and daughters to the different influential clans in Muslim Mindanao. This united in marriage the fractious and normally warring clans of the region.

The opposition to the postponement has been articulated by Fr. Eliseo “Jun” Mercado of Notre Dame, Cotabato. According to Fr. Mercado, the postponement is contrary to the organic law of the ARMM. Congress could not amend this organic act without a plebiscite held especially for the purpose. This is because the date of the ARMM elections was expressly provided in the ARRM organic law passed by Congress and duly ratified by its constituents. Any amendment thus to a provision of the ARMM organic law, including the date for its regular elections, should likewise be approved by the people. Moreover, Fr. Mercado highlights the point that a Manila sanctioned postponement would bolster criticisms that the current system of autonomy proffered as a solution to the age-old Mindanao conflict is a – sham. How could there be genuine autonomy when elections are held hostage by colonial Manila? Ramon Casiple has pointed out an irony: while the motives behind proposal to postpone the ARMM elections has to do with the wish to strengthen democracy in the region, a postponement would in fact have the opposite result: destroy democracy. This, according to Casiple, is because the appointment of leaders in the ARMM, a move that the President would have to do in the event the elections were to be synchronized with the 2013 elections, is simply anathema to democracy where elections could be resorted. This last argument certainly made the most sense to me: the postponement would kill democracy to promote it.

Besides, why should we expect elections at the ARMM to dramatically change after two years? Already, it is obvious that while the Ampatuan massacre has led to what Fr. Mercado has described as the “beginning of the end of the Ampatuan clan”, it is very clear that the Mangudadatus will simply substitute them. Pakung S. Mandudadatu, also known as Pax, although well loved by his Christian constituents in Sultan Kudarat, does offer a glimmer of hope. But already, we see that in places like Maguindanao under yet another Mangudadatu, Toto- all that has occurred thus far is a change of characters. The institutional changes that are required to liberate our Muslim brothers from the yoke of poverty and feudalism will not happen in two years. It probably will not happen in my lifetime!

In any case, time does not appear to be on the side of those who want to postpone the elections. In what appears as yet another Senate “snub”, the upper house, most likely deliberately, failed to act on the House approved bill mandating the postponement. This has prompted the political elites of the region to file their respective certificates of candidacy. As expected, a Pax has filed his certificate of candidacy for the post of governor. Even the President’s own aunt, Margarita “Tingting” Reyes-Cojuangco, has become Muslim and has filed her certificate of candidacy for Vice-Governor. In fairness to the beautiful Tingting, she has indeed spent long periods of time studying the culture and politics of Muslim Mindanao. I do not know though if this is enough to make her a bona fide resident of the ARMM.

Meanwhile, the talk has shifted to what kind of elections will be conducted at the ARMM. Apparently, my friend and comrade against the SMARTMATIC PCOS machine, now Commissioner Gus Lagman, was the lone dissenter in a COMELEC resolution authorizing the purchase of about 5000 PCOS machines to be used in the ARMM elections. This decision has certainly reignited the debate about the PCOS as an agent of democracy. I have been one of those who like Gus and the rest of the AES Watch consortium, believe that the use of the PCOS machine is both unconstitutional and illegal. It is unconstitutional because COMELEC has for all intents and purposes, abdicated its constitutional mandate to conduct and supervise all elections to foreigners. It is illegal because among others, it does not give the voter an opportunity to verify how his vote was counted. Worse, Smartmatic, despite a legal duty and a Supreme Court decision ordering it to have its source examined, has dismally failed in this regard because it is unable to have a program owned by a third party to be examined by anyone. This means that we were denied- and the ARMM voters may yet be again denied- the only means to ensure that the computer programs used in the electoral exercise does not have pernicious codes that may undermine the right of the people to choose their leaders.

To those who are with us on this issue: do not despair. If the first time around, we did not have actual evidence of our apprehensions against the Smartmatic PCOS machines, we have them now courtesy of the flawed 2010 elections. Moreover, we also have the procurement law on our side: the COMELEC resolution was without the benefit of the mandatory competitive public bidding. As they say: abangan ang susunod na kabanata!(wait for the next chapter) #30#