On Ayungin: Conquest No Longer Valid Means to AcquireTerritory


 

Even if China were to remove the Sierra Madre from Ayungin shoal and build yet another artificial island there, it will never acquire title over the area. The reason: International Law has long outlawed the acquisition of territory through conquest.

China also better rethink whether it should tow-awau a commissioned naval vessel. Derelicit as it may be, it is subject to full sovereign immunity and any attempt to tow it away from Ayungin may finally trigger the applicability of the US-Phil Mutual Defence Treaty. Thus far the US has said that the Treaty may not be triggered by fighting in the West Philippine Sea becauae it does not recognize Philippine title to the area. But an attack against a Philippine comissioned naval vessel may be sufficient for the purpose. The result: the West Philippine Sea, unless China backs off, may trigger the biggest armed conflict in the region since the Vietnam and Indo-China conflict.

China’s thrust for Ayungin and Marinduque’s options


The news reported that China had recently blocked delivery of food supplies to our troops holed up in a derelict US ship in Ayungin shoal. To many, this is another first since it is the very first concrete step taken by China to take possession of the disputed shoal from us. In reality, though, this recent act is but another manifestation of China’s long-term overall maritime policy in relation to the West Philippine Sea and the rest of the world.

China’s defense and maritime policies are contained in several printed policy papers beginning in 1998. This was updated in April 2013 and is entitled “The Diversified Employment of China’s Armed Forces.” According to this document, the Chinese policy is to “safeguard its border and promote its coastal security.” The document states that the role of Chinese armed forces is “to defend and exercise jurisdiction over China’s land borders and sea areas.” In the same paper, China regards the West Philippine seas as its coastal waters, the defense of which enjoys the same priority as quashing any attempt at achieving independence of Taiwan and opposing calls for the right to self-determination of Tibet.

Unlike the Philippines, China has a printed policy paper on its short-, medium- and long-term maritime policy. Its overall objective is to resurrect China’s old glory of being a world maritime power by 2050. Meanwhile, it is pursuing two short- and medium-term goals: during the first phase concluding in 2000, the People’s Liberation Army shall have acquired sea-control power within its coastal waters. During the second phase, which is from 2010-2020, the PLA shall have achieved a kind of sea-denial capability within its first island chain in the West Pacific, the West Philippine Sea. It is precisely this second goal which explains China’s recent actions in Ayungin. If the printed maritime policies are to be followed, this means in fact that China will not only take control and possession of Ayungin, it aims also to occupy all other disputed islands, shoals and reef, even the biggest island under our occupation, Kalayaan. The issue is not if, but when it will actually do so.

It is precisely this maritime defense policy that gives urgency to an early resolution of our arbitral claims now pending with the Permanent Court of Arbitration. Unless the tribunal rules on the validity of China’s nine-dash lines, China will implement its 50-year maritime policy in a manner that treats the entirety of the West Philippines Sea encompassed by these lines as its internal and territorial waters. For what it’s worth, the initiation of the arbitration will be remembered forever as PNoy’s best foreign policy initiative.

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I have been to the island of Marinduque twice in a time span of a month, The reason is to explain the $20-million dollar offer made by Barrick Gold, the biggest gold mining company in the world, to settle the suit of the province filed against it in 2005 currently pending in a Federal Court of Nevada.

Since I am not qualified to practice in the United States, my participation in the lawsuit was only as an expert witness on the binding nature of international environmental law to the United States. One of the cornerstones of environmental law is the so-called “polluter pays principle”, which mandates that entities that cause pollution must pay for the clean-up.

The US Coast Guard has estimated that no less than 100 million dollars is required to clean up the 200 million tons of mine tailings dumped into the island’s rivers and waters. The problem though is that meanwhile, the Supreme Court of the United States ruled in the case of Kiobel vs., Shell that henceforth US courts should  not exercise jurisdiction over claims against foreign corporation for acts which did not take place in the territory of the United States. Kiobel was s a case under the Alien Tort Claims act that authorizes US courts to exercise extra-territorial jurisdiction against respondents found in the US for violations of International Law. This statute has been utilized since the 1980s as a means to hold despots responsible for their acts of extralegal killings, torture and enforced disappearances since the case of Filartiga involving a former Panamanian despot. This was also the cause of action of the martial law victims against the estate of Marcos.

In 2013, the US Supreme Court in Kiobel held that henceforth, US courts cannot exercise jurisdiction versus foreign corporations for torts committed overseas solely because these foreign corporations’ shares are listed in the stock market in the US or because they have a commercial presence in the US. Today, the US Supreme Court requires the following as the test for the exercise of US jurisdiction: Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application?”

Unfortunately, much as I would want a higher settlement for Marinduque, the pending case against Barrick appears to be barred by the test of Kiobel. This is because Barrick is a Canadian company and the acts that led to the environmental damage were done in the Philippines. Sad to say, the province has become of the many victims of the Kiobel test. But hey, $20 million dollars is still about a billion pesos. This is hardly a sum of money that can be considered peanuts to to a province that earns only P200 million annually.

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Why the invasion of Ukraine concerns us


Russia’s invasion of Ukraine highlights how some countries can so easily breach the United Nations Charter provision on the prohibition on the use of force. Imperfect as the Charter may be, it has still achieved a tenuous peace since World War II by prohibiting resort to force except in two very well defined exceptions: self-defense, and when so authorized by the UN Security Council. Contemporaneous with the UN Charter is the international community’s resolve to penalize individuals who may start wars for the international crime of aggression. In fact, the first prosecution for this crime was against the Nazis for their act of waging war during World War II. Former Defense Secretary Donald Rumsfeld and even President George Bush II continue to be accused of this crime of aggression in Germany and Belgium.

Note though that when strong countries violate the prohibition against the use of force, they will argue that despite their action that they have complied with the normative rule against the waging of wars. For instance, the United States, when it invaded Iraq a second time around—this was after Iraq had already been driven out of Kuwait—argued that despite the absence of a fresh mandate from the Security Council, its acts were nonetheless covered by the earlier Security Council Resolution authorizing the ejection of Iraq from Kuwait. In Ukraine, Russian President Vladimir Putin argues that his action was to protect the millions of Russians living in Ukraine after an incredibly corrupt pro-Russian Ukrainian President was deposed in a bloodless people power reminiscent of ours in 1986.   It was therefore the exercise of jurisdiction to defend millions of its ethnic Russians living in Ukraine.

But superpower rhetoric, more often than not, is farthest from the truth. In both Iraq and Ukraine, it was economic interest that propelled superpowers to breach international law. In Iraq, it was to enable Bush’s campaign contributors form Texas, notably oil and gas companies, to take over the lucrative oil and gas fields of Iraq. In Ukraine, it is similarly, to enable Russia to control recent oil and gas deposits discovered found in the area, specifically in Romania. In fact, Ukraine, after gas was discovered in Romania, was about to sign an exploration agreement with oil giant Exxon. I do not think this is forthcoming anymore. Moreover, like the Americans who want to use out military installations through the Increased Rotational Agreement, the entire Russian naval fleet is stationed in Ukraine, particularly in Crimea, pursuant to what many believe is a one-sided treaty.

Of course President Obama has come under fire from his Republican critics for allowing Russia to act with impunity. What these critics do not tell the public is that the US cannot question the acts of Russia because it has unclean hands. By invading and still occupying Iraq today, it is equally guilty of violating the prohibition on the use of force.  It therefore has no moral and legal standing to question Russia’s acts because of the “unclean hands doctrine”—a state cannot come to court with unclean hands.

So should Filipinos stand idly by and accept the realities of power politics i.e., that might is right?

Far from it. Imperfect as the world may be, weak countries like the Philippines can only rely on the rule of law to achieve a semblance of equality with its mighty neighbors.  The Philippines should be at the forefront of protesting any resort to the unlawful use of force because our own powerful neighbor, China, may just follow suit and eject all our troops from the islands that we currently occupy in the disputed Spratly group of islands. They have done this in the past when they took control of Mischief Reef and Panatag. They have been threatening to drive our boys away from the derelict warship that is our   basis of our occupation of Ayungin shoal. They certainly could very well invade Kalayaan and eject all nationals from there. If the US and Russia could invade the mainland’s of Iraq and Ukraine, China could certainly invade remote and uninhabited islands in the West Philippine Sea.

Which leads me back to the normative value of the United Nations Charter. Yes, Chapter VII of the Charter, which is the section on collective security measures, the means envisioned to prevent another “scourge of war”, is far from perfect. But its literal provisions give weak countries such as the Philippines comfort that despite inequity in power politics, international law seeks still to achieve equality before the law.

Let’s condemn both the continuing US occupation of Iraq and Russia’s invasion of Ukraine!

VHONG NAVARRO IS STILL LUCKY


It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.

Navarro was also brought to the station in the company of the men who admitted to have beaten him up allegedly in defense of the woman who cried rape. The neighbors  though in the condominium unit where the alleged rape and the torture occurred have spoken to the media and said  that they did not hear any strange occurrence form the unit on the date and time involved. Of course the determination of what actually happened will still have to be threshed out in a court of law. All the actors in this real life drama are wealthy and have retained the most expensive lawyers in town. But meanwhile, and as observers, we cannot help but question the actuation of the police when Vhong was brought to their station for blotter purposes. Why for instance, did they not inquire as the reason why he sustained serious physical injuries, which on the basis of media images, could not have been missed by the police? Why was he not brought immediately to a government doctor for mandatory forensic and medical examination? Why was the woman who cried rape not referred to the woman’s desk officer so she can be counseled on the issue of whether to press charges or not? Why was the woman herself not advised to have a medical examination to document the alleged rape? But worse, given that Vhong Navarro allegedly confessed to a rape, why was he, despite his sorry physical conviction, not asked if he was voluntarily giving his statement? Why did the police not take steps to ensure that the celebrity was not a victim of torture? Torture has long been considered amongst the most serious crimes committed not only in domestic jurisdictions, but also against humanity itself. Presidents, such as Pinochet, Milosevic, Marcos, and Senegal’s Habre have been prosecuted for it despite their pleas of sovereign immunity. In Pinochet, the UK House of Lords ruled that while sovereign immunity continues to be recognized under international law, torture is an international crime and can never be a sovereign act. Hence, presidents accused of committing them should not enjoy immunity from suit. Furthermore, under the Convention Against Torture, which has been rarified by the Philippines, police authorities are under a positive obligation to investigate where information exists to suggest that torture may have been committed. Certainly, the injuries sustained by Navarro, coupled with information that he was beaten by a group of persons albeit allegedly in defense of strangers and a confession, should have prompted authorities to conclude that they are probably dealing with a case of torture. Torture is defined under both international law and our domestic law as the “infliction of physical or mental pain” for the purpose, among others, of extracting a confession.  (The Philippines has two laws with contradictory definitions of torture. RA 9851 does not require the perpetrator to be a state agent. RA  9745 does) All the elements of the international crime appear to be present in the Vhong Navarro incident. Eventually, the question is: if one of the country’s most recognizable personalities could be a victim of torture with our police oblivious to this fact; what happened to ordinary people? One can imagine the fate of the faceless and faceless detainees in our police camps why have routinely been subjected to torture by the police themselves. Already, Amnesty International and the Commission of Human Rights have declared the existence of a torture chamber in a camp intended for the Special Forces of the PNP. What these organizations have uncovered is a long-standing practice of torturing detainees, those who still have to be found guilty of the commission of any crime, for sheer fun and pleasure of our men in uniform. With this kind of a culture amongst our law enforcers, should we still be surprised that Vhong did not get any form of police assistance at a time when he actually needed it? I can only commiserate with the plight of Vhong. But still, he should still consider himself lucky. He has the support of  his fans and his television station solidly behind him. For if he were an ordinary Filipino who was tortured, he would surely have become just another anonymous number in the statistics of the number Filipinos who have been tortured and denied any and all forms of remedies.

Access to electricity is a human right


I was one of those who called over the weekend for Congress to declare a state of national emergency and grant the President the power to temporarily take over the running of both the power generation and distribution industries. This was in response to Meralco’s statement that the temporary restraining order issued recently by the Supreme Court against what could have been Meralco’s biggest increase in electricity cost will lead to power disruptions and brownouts.

I made this call amid testimony made by officials from the Energy Regulatory Commission in the Senate that there is now evidence of “detectable collusion” among power generators. This, they said, was because power generators are also players in the spot market where Meralco purchases its electricity:  “gaming in the spot market and shutting down without justification are clear indications of collusion.”

In response thereto, the chairman of the committee, Senator Antonio Trillanes, concluded: “It’s clear there’s conflict of interest. It appears you shut down here and then you sell there; it’s higher there”.

In the first place, the business of power generation and distribution are imbued with the public interest. This is because these industries sell an indispensible commodity, electricity, to the general public. This is why these businesses are recipients of a franchise to operate. This is a privilege bestowed on the state only to those who are deserving—this is not a right. This is also why when we privatized these industries through the Epira law, Congress still granted the ERC the power to fix rates for electricity. Simply put, these businesses are subject to close regulation because their business will affect the welfare of the general public who are the end users of their commodity.

But my call for the temporary takeover was not only because these companies have breached their obligations to provide a convenience to the general public. On the contrary, I advocated their temporary takeover because in addition to being mere recipients of a state privilege—which can hence be revoked when the interest of the public requires this—what is involved here is a human right, which a State is duty bound to take progressive steps to realize.

Perhaps the confusion over access to electricity as a human right is because there is a dearth of human rights treaties that explicitly mention that it is a human right. In fact, there is only the Convention on the Elimination on Discrimination Against Women that provides for it as a right: “States should take steps to ensure that … women … shall enjoy adequate living conditions particularly in relation to … electricity”.

Despite this paucity of literal sources for the right to access to electricity, it is accepted in the field that this right is covered by Article 11 of the International Covenant on the Economic Social and Cultural Right (ICESCR), which imposes an obligation on State Parties to the Covenant to “recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions.”  Essentially, this obligation requires every nation to provide human habitation with all the other accompanying facilities in it such as electricity. As opined by a leading NGO: “Inadequate power supply is one issue that generates feelings of helplessness, sometimes anger or outright disgust. Experience has clearly shown that the absence of electricity constitutes one single major factor impeding the full achievement of these rights.”

Thanks to an exposure trip sponsored by the Bertha Foundation to India, I have since discovered that a Mumbai High Court was the first to apply this right to access to electricity in domestic law. In ruling that informal settlers have the right to access to electricity, the High Court ruled: “access to electricity should be construed as a human right. Denial of it would amount to violation of human rights… Lack of electricity supply is one of the determinative factors, affecting education, health and a cause of economy disparity, and consequently, inequality in society leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine competing with others.”

A concurring opinion to this decision said: “Lack of electricity denies people equal opportunities in the matter of education and consequently suitable employment, health, sanitation and other socio-economic rights. Right to electricity of a person… is integral to the achievement of socio-economic rights…It is the fundamental duty of the authorities to show compassion to those who are living in huts and tenements for long. When socio and economic justice is the mandate of the Constitution, it is a travesty of justice to deny electricity to the petitioners.”

Let’ s hope that our very own Supreme Court does not only find grave abuse and discretion in this latest Meralco increase. Let’s hope it also goes further and recognizes access to electricity as a human right.

The Chinese view on the Philippine arbitration on the West Philippine Sea


Judge Xue

Judge Xue

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.

In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.

My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.

But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.

Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”

Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”

She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.

Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.

While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.

We have Judge Xue to thank for this.

Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roques presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”

Plunder and Malampaya: Justice delayed is justice denied


photo-7In February of 2004, civil society led by Bishop Pedro Dulay Arigo of Palawan, Cesar Sarino, the late Dr Gerry Ortega, the late Dr. Jose Antonio Socrates, Prof. Oscar Evangelista and Cesar R. Ventura and I filed suit before the Supreme Court questioning the legality of President Gloria Macapagal Arroyo’s use of the government proceeds from the Malampaya natural gas field. Petitioners, before going to the Supreme Court, had previously filed suit in the RTC of Palawan and the Court of Appeals, pursuant the hierarchy of Courts.

The petitioners’ complaint was simple. Under the 1987 Constitution, local governments were given a fair and equitable share in the revenues derived from natural resources found in their area. Under the Local Government Code, this share was defined as 40 percent of all gross government receipts from these resources. Palawan civil society then argued that a provisional sharing agreement entered into by Mrs. Arroyo and the then-local leadership of the province providing that Palawan shall be entitled to 20 percent net of all government revenues was unconstitutional.

This was on at least four grounds: First, the interim sharing agreement amended the legal provision on how much the entitlement should be: from 40 percent of gross to 20 percent net; Second, it amended the local government code in the manner by which it was to be shared by the barangay, municipality and province where the resources are found. Under the law, the province shall have 20 percent of such revenues, while the municipality and the barangay are to have the lion’s share of the revenues: 35 percent and 45 percent, respectively. The sharing agreement called for projects to be identified by the two representatives of the province, its governor, and the mayor of Palawan. Third, the Code provides the manner by which the money was to be spent: 80 percent of all sums should be applied to lower the cost of electricity in the province, while the remaining 20 percent should go to local government projects and for livelihood. The Interim sharing agreement made the fund additional pork barrel for the two representatives of the province and its other local officials. The fourth argument of the petitioners would prove to be perhaps the most important argument in promoting good governance. Petitioners argued that the manner by which Mrs. Arroyo entered into the agreement was unconstitutional because she spent the funds without congressional authorization.

In entering into the questioned sharing agreement, PGMA invoked the provision of a little known Marcos Presidential Decree 910, section 8 of which reads: “—Section 8. x x x production share on service contracts and similar payments on the exploration, development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.” Petitioners argued that this violates the rule that no money shall be paid out of the national treasury without appropriation by law.

PGMA, on the other hand, argued that because of the foregoing PD, all government revenues earned from Malampaya are in the nature of a special fund which can be disbursed at the pleasure of the President.

It was this argument that later led COA to conclude that at least P2.3 billion of the Malampaya funds were misused by local government officials of Palawan including its fugitive ex-governor Joel Reyes and the defeated Baham Mitra. Unfortunately, it was this interpretation that also led to the disbursement of the first tranche of P900 million Malampaya release that COA now says were plundered by Napoles and her cohorts. Ironically, the first tranche released to Napoles was authorized only two days after our oral argument in the Supreme Court on November 24, 2009. Worse, it is this interpretation that led to the release of a further P26.3 billion of Malampaya funds which early reports now say may have been released and malversed by Arroyo shortly before the 2010 elections.

It comes hence as no surprise that much of the scandal unearthed by the Napoles revelations involve the Malampaya funds. To begin with, the popular clamor that there “shall be no taxation without representation” was based on the idea that the people’s representatives should authorize all public spending and shall exercise oversight on the manner the sums are spent. Because the Malampaya funds were spent without congressional authorization, and hence without oversight, it was spent for any and all purpose that the President desired, And when you have a kleptomaniac for a president, that meant spending the money all for naught.

I cannot help but also blame the Court for this fiasco. The Malampaya petition has been pending in our courts since 2004. It reached the Supreme Court in 2009 after passing through the hierarchy of courts, Until today, it has not been resolved. Had the court acted on the petition seasonably, we may have prevented Napoles from squandering P900 million worth of public funds that could have gone to livelihood and lowering the cost of electricity in Palawan. We may even have prevented the further plunder of P26.3 billion worth of Malampaya revenues and applied the same not just for national defense, but also for education and heath purposes. As the saying goes, “justice delayed is justice denied.”

I rest my case.

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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