10 Highlights in Human Rights for 2014

Happy New Year, Philippines!

For a second time, here are 10 highlights in the field of human rights in the Philippines for the year that just passed:

1. In February, the Philippine Supreme Court rendered a split decision on the constitutionality of the Cybercrimes Prevention Act. Critics of the law argued that its provisions on libel and cybersex were overboard and could infringe on freedom of expression. The Supreme Court disagreed and ruled that defamation and obscenity were traditional limitations on freedom of speech. Despite this set-back, libertarians rejoiced because the court declared as unconstitutional the provisions that could otherwise have subjected libel to double jeopardy and real time gathering of information which the court said should be pursuant to a judicial warrant.

2. In April, the Supreme Court upheld by and large the Reproductive Heath Law. This law promotes the right to health of both women and their children, as well as implements the right to privacy and responsible parenthood. A big win for Human Rights!

3. From May 12 to November 10, the Human Rights Claims Board, a body created by law to pay reparation to victims of human rights abuses during the Marcos dictatorship, accepted claims from victims of the dictatorship. While not all victims were able to submit the claim, the fact that the Board was created by law and accepted some claims for reparation is significant as a way of implementing the state’s obligation to make reparations to victims of human rights violations.

4. In August, the Supreme Court dismissed with finality the prayer of Filipino women raped by Japanese soldiers during World War II to compel the Philippine government to espouse their claim for reparations in international tribunals. Ruling that the President as chief architect of foreign policy cannot be compelled to espouse the comfort women’s claims, the Court made legal history and made the Philippines the only state in the world that does not recognize the duty of war criminals to make reparations to their victims. The main decision could also be read to mean that the Philippines is the only country on earth that does not consider rape as criminal in times of armed conflicts. This decision is perhaps the biggest blow to human rights for the year.

5. The Supreme Court’s decision to declare as unconstitutional both the PDAF and the DAP were major victories on the fight to promote Economic, Social and Cultural rights. This is because by declaring pork barrel in all forms as unconstitutional, the Court in effect ruled that public coffers should be spent to benefit the people economically and not to enrich our politicians. A truly great victory for human rights!

6. The murder of Jennifer Laude said to have been perpetrated by Joseph Scott Pemberton not only highlighted yet another violation of the right to life. It also highlighted the country’s fight for genuine independence pursuant to the internationally recognized right to self-determination. For the first time, the internet generation learned why the presence of foreign troops offends our national sovereignty. This is because when GIs commit common crimes, they’re given special treatment since they will remain the custody of their fellow Americans in an air-conditioned jail and not in a local jail which has been described by the UN Human Rights Committee in one of its View as being “torturous”.

7. Deputy presidential bad mouth Abi Valte called attention again to her gross ignorance of human rights law when she reiterated, ironically, by way of commemorating the 5th year of the Maguindanao massacre, that the P Noy administration will not pay compensation to the victims of the massacre since the current administration had no hand on the massacre. Will someone please teach this woman the basics of state responsibility or better yet, tell her to shut up on matters she’s clueless about!

8. In any case, the fact that the murder cases for the Maguindanao massacre are proceeding at a snails pace is proof that the Philippines is not just in breach of the duty to pay compensation to victims of human rights violations; it is also proof that it is in breach of its duty to the victims to accord them also an adequate domestic remedy.

9. The murders of journalists Rubylita Garcia, Nilo Baculo, Samuel Oliverio, and Richard Nadjid in 2014 are proof that the Philippines remains amongst the most murderous countries fro journalists. Already the National Union of Journalists of the Philippines has recorded at least 217 media killings since 1986. The killing of journalists is not just a violation of the right to life. It also infringes on freedom of the press, as murder is the most pernicious and permanent form of censorship.

10. In a UN conference on the safety of journalists sponsored by the European Council and UNESCO, last November in Strasburg, Germany, Justice Secretary Leila de Lima admitted that the country’s conviction rate for extralegal killings remains at a measly 1%. This is why impunity persists in the country.

Keep safe and do not be a victim this 2015!

(Disclosure: the author acted as counsel for either the petitioners or the victims in almost all of the cases cited in this column)

Reaction to AFP’s ACTUAL ( not just the threat) filing of Disbarment Complaint against me

Ref: Prof Harry Roque 09175398096 (Viber until 11 November) The AFP’s filing of disbarment charges against me today is anti-climactic to their repeated threats that they would do so for the past ten days. I welcome it and will answer it in due course. I hope that with its filing, the AFP can now concentrate on running after the Abu Sayaff and defending our territory in the West Philippine Sea. I am flattered that the AFP gave me so much attention in the midst of the many concerns that it faces. As I have previously stated, I will also file graft and administrative charges against the AFP for allowing Pemberton to remain in US custody in Aguinaldo. This is contrary to Philippine sovereignty and hence, a breach of the oath of allegiance that the AFP took. This is also dereliction of duty. I will also hold the AFP liable for contempt since to publicly announce the filing of disbarment against an officer of the court is to ridicule the administration of justice in this country. All such proceeding are supposed to be confidential. I assure the public that I will not be cowed by the AFP. I will continue to fight for my client’s interests with even more zeal knowing that Philippine state agents have sided with foreign interests. I will also continue to assert Philippine sovereignty. This is my duty as a member of the Bar and as a Filipino. My promise: I shall return to Aguinaldo should there be a need for me to personally take custody of Pemberton in order to turn him over to Philippine authorities less subservient to the United States. I will file all my complaints against the AFP as soon as I return from Europe where I am attending a Council of Europe and UNESCO meetings on the killing of journalists. Ironically, experts have identified the AFP as amongst the perpetrators of killings against our journalists

Malaysian Courts on Trial: The case of Anwar Ibrahim

IMG_0923I have been a trial observer in Anwar Ibrahim’s sodomy trials since 1999. In fact, I have only missed to observe his trial once -that was when the Malaysian Court of Appeals overturned the High Court’s previous decision acquitting him from all charges.

I made it a point hence to observe oral arguments in Ibrahim’s case before the Malaysian Supreme Court. Similar to ours, the Malaysian Supreme Court sits in many divisions. The proceedings I had the chance to observe had five justices on it.

Unfortunately, my commitments at home did not allow me to observe for more than two days of oral arguments. I thought that the two days would be enough because in our own Supreme Court, very seldom will the Court hear a matter for more than two sittings.

But the Malaysian Court is different, Unlike ours, which will only hear issues of law, the Malaysian Court heard arguments point by point on why the Court of Appeals erred in reversing the High Court. I had the privilege of hearing two children of the revered but recently passed barrister Karpal Singh, both of whom argued that the Appellate Court erred in convicting Ibrahim on the basis of dubious DNA evidence.

While DNA as a science is itself accepted, what made the use of DNA evidence dubious in Ibrahim’s case was the fact that while the DNA extracted from a towel, a comb and a tooth brush allegedly used by Ibrahim came from one and the same person, there was nonetheless no direct evidence that they were in fact the DNA of Ibrahim! DNA as a science would itself confirm if DNA found from an object is from a particular person. But in the case of Ibrahim, the Appellate court overturned his conviction on the basis of mere circumstantial evidence that they could only have come form Ibrahim, despite the absence of scientific link to him.

This kind of a conclusion would not have been possible in the Philippine or any other jurisdiction with the semblance of an independent judiciary. The fact that the Malaysian Appellate Court convicted him under this dubious condition could only mean that it abdicated its independence and agreed to be a tool of the ruling party, UMNO, and Malaysian Prime Minister Najib Razak, in an effort to stymie Ibrahim and the rest of the country’s opposition into surrender.

But battle tested democrats don’t succumb to threats easily. By highlighting the obvious, Anwar has turned the table on the Malaysian Judiciary. No court in this planet could have convicted him on the basis of DNA evidence with no direct link to him. The questions now is whether the Malaysian Supreme Court will exhibit independence and acquit Ibrahim, or be swayed by the ruling party as did the Court of Appeals. In a way, what I observed was the Malaysian Courts on trial, and not just Anwar Ibrahim’s case.

All freedom loving people of the world eagerly await the outcome of this trial. For with it is also a verdict on the independence and integrity of the Malaysian Courts.

In memory of Jennifer: Junk Vfa

I am in Olongapo City standing as lawyer for the Laude family in connection with the gruesome murder of Jennifer.

To set the record straight, I “did not volunteer” my services to the family. A couple of months back, we had a training here in Subic jointly sponsored by the American Bar Association and the defunct AustAid on victim’s rights advocacy. The said training was intended primarily for civil society organizations so that they will know what to do in case there is a case of extralegal killing or torture in their community. That training had members of the Kilusan Demokratikong Pilipino and the women’s group KAISA-KA, the same group also advocating the cause of the last remaining comfort women in Pampanga, in attendance. So when Jennifer’s killing became public in Olongapo, both civil society groups lost no time in assisting the family in taking steps that the proper investigation of the crime take place. Kudos to them, we now have at least three eyewitnesses who can testify that Jennifer was last seen in the company of Pemberton in the crime scene. It was also civil society that alerted police authorities about the occurrence of the crime, which led to the timely investigation by the SOCO of the PNP led by Maj De La Torre.

Yesterday, we filed the criminal compliant that would trigger the process of preliminary investigation to begin. We had doubts about whether the proceedings could move forward given that the Respondent, PFC Joseph Scott Pemberton, is still in the custody of his American superiors. We asked ourselves: where would the Prosecutor serve him with notices for preliminary investigation? We indicated the name of his ship. In reality, no process server from the DOJ could board the vessel since it is an American warship.

So the Laude family is now in a quandary. While their filing of the criminal complaint triggers the legal process, how could it proceed without Philippine custody over the person of the Respondent?

Apparently, the Daniel Smith precedent was different.  There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes. Could it be that US authorities are contemplating of exercising jurisdiction over him since murder as a hate crime against a transgender relates as well to the discipline of its troops? If this is so, this is worrisome since unlike the case of Smith, American authorities may not have Pemberton available to Philippine authorities altogether.

For the record, we decided to still press charges as of last night since this will at least inform the entire nation that the ball is now in the hands of the Philippine government. The most that the victims can do under the circumstance is to commence with the filing of complaint to trigger the preliminary investigation. Unfortunately, the victims are powerless to compel US authorities to have their soldier available to attend the proceedings. We filed nonetheless at least to illustrate exactly how the VAF offends Philippine sovereignty and jurisdiction. For while Philippine laws were breached and despite the fact that the Victim was a Filipino killed in his own country, our legal system appears to be powerless against the person of a US serviceman.

The consolation is that at least, DFA Secretary Del Rosario, unike the Department’s spokesperson,  has articulated the correct interpretation of the VFA. That is, Philippine authorities should have custody over non-service related crimes committed by US servicemen under extraordinary circumstances. I join Sec Del Rosario that a murder committed as a hate crime against a transgender, suffices to qualify as an “extraordinary” circumstance to warrant Philippine custody over Pemberton.

In any case, the brutal killing of Jennifer, a apparently from drowning in a toilet bowl, should be a wake-up call to all Filipinos that the VFA, and the EDCA will never serve the Filipino interest. Unless we abrogate the VFA and reject the EDCA, more Filipinos will suffer the fate of Jennifer: victimized my bigoted US servicemen and yet denied an adequate domestic remedy.

My promise though is when we fail to get justice for Jennifer and the nation before Philippines courts, we will pursue the killer before foreign courts wherever the bigoted killer may be. Meanwhile, we should unite as a nation and assert our sovereignty: Junk the VFA! Junk the EDCA!

My Lolo and martial law

By Atty. Harry Roque Jr. | Sep. 25, 2014 at 12:01am
I was too young to be an activist during martial law. I was fortunate though to have been raised in a family whose religious convictions include that of taking a stand for the poor and oppressed. This is why even if I did not venture to the streets to protest the Marcos dictatorship until I was a freshman high school student in UPIS, specifically in the infamous march along Liwasan Bonifacio to protest against the Education Act, I had my political education rather early in life.

Born in 1966, I, as a young child, could only remember being roused from my sleep with the commotion in our ancestral Pasay residence. My Lolo, Hipolito De Leon Lopez, announced that Martial law had been declared by Marcos. Lolo was a lawyer by training, but opted to work, together with “King” Doromal, for an American multinational company and became one of its pioneer Filipino executives. He himself was a founding councilor in Quezon City having been appointed to the post by then President Manuel Quezon. Owing though to an edict issued by of my Lola, who valued the family’s privacy, he was forced to retire early from politics. This is why among others, they moved from Quezon City to Pasay.

Lolo, despite having retired very from politics, was nonetheless still tremendously immersed in it. Lola, on the other hand, was a cousin of a rising star whom every one knew as “Mr. Clean,” Jovito Salonga. It was through this family relations that my political education began.

Lolo’s immediate concern upon declaration of martial law was an uncle, now a protestant Pastor, Uncle Rey, who was then a law student at the UP College of Law. Uncle Rey lived through the first quarter storm in UP and was a true blue activist when martial law was declared. Lolo knew that over and above our relations to Salonga, my uncle, whom he knew was active in the soon-to-be-declared illegal Kabataan Makabayan, was most at risk. Years later, the Protestant Church, through the Reverend Cirilo Rigos, would arrange for Uncle Rey to seek asylum in many monasteries in Europe where he evolved from a student activist to a seafarer’s advocate, which he remains today.

My political education was one of extreme contradiction. While my entire family was anti-Marcos, and not just because of Jovy Salonga, but primarily because Marcos trashed the 1935 Constitution and was engaged in widespread kleptocracy, my Lolo would nonetheless berate my Uncle for his student activism. Lolo himself had his share of cabal activities against the martial law regime, including late night sessions in his farmhouse in Parañaque, with journalists then residing in Fourth Estate subdivision, including its developer, a journalist who was a former diplomat whose first name I cannot now recall, Mr. Rodriguez. They would congregate for many nights reading the banned editions of the mosquito press and would take turns condemning, even cursing the excesses of the conjugal dictatorship. Meanwhile, my Ate and I would lead the siblings and cousins to our own march in the rice paddies chanting “Ninoy!” and other slogans against the dictatorship. But maybe owing to his corporate background, Lolo could not accept my uncle’s activism as if it were enough to condemn the dictatorships in secret meetings. Perhaps, it was fact that my uncle’s activism caused him to drop out of law school. To this date, I do not know if Lolo disliked my uncle’s activism because of the risk that it caused, or because it kept my uncle from becoming a lawyer. Maybe it was both.

There too were the many individuals wanted by the dictatorship, which we gave safe haven in our home in Pasay. While I no longer recall who exactly they were, one nun stands out because she used to play the piano very well. She had two favorites: Bayan ko and If a Picture Paints a Thousand Words. It was this nun, whom I never saw in a hobbit, who would lecture me on the basics: neo-colonialism, neo-feudalism and US imperialism. Looking back, it was she who explained in a manner that a child could understand why the US, because of its security interest in the region, opted to support the Marcos dictatorship. Ironically, this nun would later seek asylum in the heart of the beast: the United States.

Meanwhile, my political education continues, but with a difference. While I continue to espouse the view that only Filipinos can safeguard the Filipino interest, I have moved from sloganeering to legal advocacy. This means that while I continue to go and speak at rallies, particularly against the pork barrel and the DAP, I have gone further and actually used the law as a tool to change society. I guess I now know why my Lolo was so frustrated that my uncle gave up on his law training. Advocacy itself is important to build awareness amongst the people, but lawyers can do more for the cause when and if they use it as a tool to promote the people’s agenda.

Years from now, in the twilight of my life and when I am asked what I have done for society, I can cite jurisprudence and not just the advocacies I engaged in: David vs. Arroyo where the Court ruled that General Order No. 5 as unconstitutional since in the absence of a statutory definition for terrorism, only the President can define what it is which she can use to stifle dissent; Roque vs. de Venecia, where the Court ruled that ordinary citizens have a standing to sue to enforce a public right; Cacho vs. Arroyo, where the Court recognized that abuse of right was a valid cause of action when then FG Mike Arroyo filed 45 libel cases against journalists, Adonis vs. RP where the UN Human Rights Committee ruled that Philippine criminal libel is against freedom of expression, and the latest, Belgica vs. Aquino, where the Court ruled that the Disbursement Acceleration Program is unconstitutional.

Looking back, my political education must be the realization of my Lolo’s aspirations: the use of the legal profession as a tool to promote democracy and to spoil the day for despots.

I do miss my Lolo.

The Massacre Victims of Luneta and Maguindanao

The victims of the Luneta massacre —Chinese tourists from Hong Kong —and the victims of the Maguindanao massacre have much in common. Both were victims of multiple murders at the hands of state agents. The Luneta Hong tourists died in the hands of Rolando Mendoza and the inept PNP members, many of whom also shot and killed them. The Maguindanao massacre victims were killed by suspects, all of whom are government agents—from elected officials to state multipliers such as the civilan volunteer organizations (CVOs) and the Citizen Armed Force Geographical Unit (CAFGUs).

Both sets of victims have been waiting for a long time for justice. In the case of the Luneta hostages, their plight is slightly worse off because no one at all has been charged for the killings. The Maguindanao victims, on the other hand, stand to wait hundred sof years for justice given that four years later, more than 80 of the suspected perpetrators still have to be arrested.

Further, while all of them are victims of violations of the right to life, not one of them has received satisfaction in the form of an apology from the state. Neither has any of them received compensation from the state.

President Aquino and his cohorts have offered identical reasons why the Philippine government has not and will not apologize nor pay compensation to them. In the case of the Luneta victims, its is because Mendoza—not Mendoza – was solely at fault. In the case of the Maguinadanao massacre, it is because it was former President Gloria Arroyo and her allies at fault, and not the Aquino administration.

The President’s refusal to both apologize and pay compensation to all victims of the violation of the right to life is a continuing breach of international human rights law. Under the articles of state responsibility, a state incurs responsibility for an internationally wrongful act when it breaches a norm of international law and when it is committed by a person whose acts may be attributable to the state. Both of these elements are found in the Luneta and the Maguindanao massacres.

Under the International Covenant on Civil and Political Rights, states have the duty to protect and promote, among others, the right to life of their people. This is a guarantee against the arbitrary taking of life. But since the Philippines no longer has the death penalty, all killings are hence unlawful in the Philippines. The only question to invoke international responsibility for these killings is this: Who perpetrated them? If it is through a state agent or a private person acting upon orders or control of the state, then the state will be in breach of the obligation anent the right to life.

It is crystal clear that the killers in both massacres are state agents. Mendoza was with the PNP, albeit then suspended, while the rest of the bullets were “friendly fire” from other PNP officers. Meanwhile, the fiasco that led to the firefight, including the decision not to take down Mendoza earlier and to use force belatedly were formulated by other state agents. For this decision, a committee headed by Justice Secretary Leila De Lima recommended that criminal charges be filed against those who formulated the botched policy. Those recommended to be charged included then-Mayor Alfredo Lim, then-PNP General Jesus Versoza, and then-DILG Undersecretary Rico Puno. Strangely enough, until today, none of these individuals have been charged for anything.

In the case of the Maguindanao massacre, there can be no doubt that while the criminal cases against the suspected murderers are still on-going, all of those charged for the multiple murder are all state agents. There were two governors: of ARMMM and Maguindanao, mayors, vice-mayors, military men, and members again of the PNP. There too were CVOs and CAFGUs whose members are auxiliary members of the Armed Forces of the Philippines as force multipliers. In fact, although these paramilitary groups consist of members of a private army, they were nonetheless conferred the status of state agents by reason of an Executive Order issued by Mrs. Arroyo which, until now, remains in force.

But where do the victims differ?

Their nationalities. And boy, this makes a hell of a big difference.

The Luneta massacre victims are of course Hong Kong residents and nationals of China. The Maguindanao massacre victims are all Filipinos. This means that while the Luneta victims can expect their rights to be espoused by their state, the Maguindanao massacre victims cannot look forward to any support from their own state. True, the latter’s criminal cases have been prosecuted in the name of the Republic by public prosecutors. Big deal. Every single one of the victims has their own private prosecutors anyway. This is evidence that the victims have not relied on the state alone even for the conviction of the suspects for murder. Moreover, given the proximity of the accused to the then-administration of PGMA, many of them believe that even the manner by which the prosecution was initiated: against 197 accused and hence, guaranteed to take forever, was a means to ensure impunity for the very influential family accused of committing the murders. But meanwhile, anent their claim for satisfaction in the form of apology and compensation, the Maguindanao victims, unlike their Hong Kong counterparts, could only fend for themselves since it is their own state that has decided against issuing to them an apology and paying them compensation.

Meanwhile, the fact that Hong Kong has already taken steps to espouse the claim of their nationals against the Philippine government can only be the source of envy for the victims of the Maguindanao massacre. For while their own government has denied them their rights as victims, at least their Hong Kong counterparts can still hope to get satisfaction and compensation. Perhaps there is solace for them in this thought.

Some clearly are luckier then others. Sad.