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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Lessons from Boston


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Lessons from Boston.

Copadoccia, Turkey—I was in Boston with my family just two weeks ago. I thought it was important for my two children to visit the city and appreciate its anti-colonial heritage. The US was not always its own state. It too had to struggle for its independence, much in the same way that we did against the Spaniards and ironically, against them.

Like many tourists, we did the freedom trail, so-called because it allows visitors to visit historical landmarks of the American Revolution. This includes the house of Paul Revere who warned the

American militias of the upcoming invasion of the British, as well as Faneuil Hall, which was literally a meeting place where speakers like Samuel Adams and James Otis advocated freedom from Great Britain. It also includes a recreated colonial vessel where the tea party is reenacted to remind the American youth of today of the trigger that established an independent American state.

While it was unfortunate that after triggering a liberal tradition that is today acknowledged as the non-derogable right to self-determination— a people’s right to choose their political status which includes the right to be independent —the American people would later be colonials themselves albeit over only colony, the Philippines. But this sad fact notwithstanding, Boston’s contribution

to modern-day democracy cannot be denied. It also includes a written constitution, which guarantees rights of every human being as being inalienable.

This must have been why the deranged madmen behind the bombings at the Boston marathon targeted the city. Their goal was not only to inflict panic in the mind of the general public but also to send the grim message that America’s cradle of democracy is under attack.

It is gratifying though that on my last day in the United States, the general impression was that Boston was not a city to be cowed. After the dead have been mourned and after the sick have been attended to, the city seems to be up and about eagerly picking up the pieces. The message that the brave survivors of this terroristic attack were sending the world was that while they were terrified, they will rise again. And that appears to be what they have done.

Terrorism, of course, be it in Boston, in Syria, or in Palestine should be condemned in the strongest manner possible. Even in times of war, civilians are accorded protection precisely because the civilian populations ought to be spared from the adverse consequences of all kinds of warfare. This is why any act that tends to spread fear or panic in the mind of the public is condemned, much in the same way that targeting civilians is made criminal in times of armed conflict.

Human beings possess rights that are inalienable. Parts of these are the non-derogable right to life and the right to personal security. Both war crimes and terroristic acts infringe on and violate these rights.

Be that as it may, there are important lessons to be learned from the Boston bombings. Primary among these is the importance of a police force that can actually investigate acts of terrorism and apprehend their suspected perpetrators. It did not take long for the Boston police to process forensics evidence, identity the suspects and actually apprehend them. In the Philippines, our police agents’, until very recently, are told to identify first the suspects before processing the evidence. And while in Boston, it was physical evidence that proved effective in identifying the perpetrators of the crime; in our country, the police, either because of lack of capacity or downright laziness, will rely almost wholly on testimonial evidence. The problem with this approach is that testimonial evidence is either cheap, or may be the result of police short-cuts, such as torture.

How we envy the people of Boston. In less than a week, the perpetrators of the bombings were identified and apprehended, although one of them was killed in the process. In the Philippines, a student of mine, who is now a lawyer, is still awaiting for someone to be charged for the brutal murder of her father, a UP graduate editor and publisher of a local paper in Pagadian City. Her late father and her mother, also murdered some nine years after her father, will both be unable to attend her oath-taking as a lawyer. Likewise, the family of Navy Ensign Philip Pestano is still awaiting action form the Department of Justice in connection with the murder of their son.

Likewise, the Barrameda and the Ortega families can only dream of justice for the death of their loved ones. And let’s not even talk about the victims of the Maguindanao massacre, many of whom have already sunk into despair.

So the lesson is clear: terrorism and lawlessness can strike anywhere. But in civilized societies, the pillars of the criminal justice system: the police, the prosecutors, the courts, and the community-

will ensure that lawless elements will be investigated, prosecuted and punished for their acts.

I wonder when we will finally have a civilized Philippine society.

Top ten issues for human rights in 2012


imagesHere’s my choice for the top ten most important developments for Human Rights in the Philippines for 2012:
1. Passage of the Anti-Enforced Disappearance Law. Unfortunately, the passage of this law was overshadowed by the passage of the Reproductive Health Law. I say unfortunate because unlike the RH Law which in jurisprudence says is a penumbra of the due process clause, the crime of “desperacidos”, which unlike violations of international humanitarian law is not considered a crime under customary public international law.

This means that a domestic law is actually required to make enforced disappearances criminal. Now that we have this law, victims of desperacidos can actually file criminal charges for enforced disappearances without relying on kidnapping, if their loved ones survive; or murder, if their loved ones are found dead.

2. Passage of the Reproductive Health Law. The passage of this law has made jurisprudence on the right to privacy unnecessary. Prior to passage of the law, women’s rights advocates relied on the United Nations Convention on the Elimination of Discrimination Against Women in arguing that failure of the state to provide family planning implements to those who cannot afford them is a form of discrimination.

They also relied on the US Supreme Court decision that states that the right to limit one’s family size is covered by the right to privacy and is a “penumbra” of the due process clause. With this domestic law in place, it has now become the business of government to ensure that its citizens can freely choose the size of their families.

3. Passage of the Cybercrime Prevention Act of 2012. This is in the list not because it promotes and protects human rights, but precisely because it will violate them. Unless declared unconstitutional, libel in cyberspace, which has already been pronounced as infringing on freedom of expression by the United Nations Human Rights Committee, will be even more severely punished under the new law. All future convicts will be guaranteed time in jail as the new penalties for cyber libel make them no longer eligible for parole.

Furthermore, the law’s so-called “take-down” provision, which enables the Justice secretary to unilaterally shut down Web sites, will enable the state to act as investigator, prosecutor, judge and executioner. It’s not on top of the list because of the temporary restraining order issued by the
Supreme Court enjoining the law’s implementation.

4. The Philippines’ ratification of the Domestic Workers Convention. Our ratification of the convention literally enabled the treaty to come into effect. This is the first convention that seeks to standardize the terms and conditions of employment of an estimated 50 million to 100 million domestic workers worldwide.

Under this convention, domestic workers are entitled to protection available to other workers, including weekly days off, limits to hours of work, and minimum wage and social security coverage. The convention also obliges governments to protect domestic workers from violence and abuse, and to prevent child labor in domestic work.

This will benefit at least 2 million domestic helpers locally, and millions more overseas. A domestic law that seeks to implement this convention was also passed by Congress this 2012.

5. The Philippines’ ratification of the Optional Protocol to the Convention Against Torture. This will enable private individuals now to submit their individual communications to the Committee Against Torture whenever they feel that the country has failed to protect and promote the absolute prohibition on torture. We are the first Southeast Asian country to have ratified this optional protocol.

6. The periodic review of the Philippines in the Human Rights Council. Done once every four years, it is described by the UN High Commissioner as such: “The [Universal Periodic Review] is a state-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.”

In its concluding observations, the Human Rights Council highlighted the need for the Philippines to take action against those who perpetrate violations to the right to life as evidenced by the high number of extralegal killings and enforced disappearances.

7. The periodic review of the Philippines in the UN Human Rights Committee. Also conducted every four years, this periodic review aims to “promote state compliance with the treaty principles and it should be an “honest appraisal of their conformity to the treaty obligations.” It is also a venue where state parties to the International Covenant on Civil and Political Rights report on “the measures [that the State has] adopted which give effect to the rights recognized” under the Covenant. In its concluding observations, the Committee asked the Philippine government to ensure
the binding and self-executory nature of the ICCPR and to inter-alia, also address the issues of libel as an infringement of freedom of expression, reparations of victims of trafficking, and also to end
impunity for those behind extralegal killings and enforced disappearances.

8. Five media killings in 2012. This highlights that impunity, particularly against media practitioners, continues.

9. Four victims of enforced disappearances. This highlights the need to implement the new anti-enforced disappearance law.

10. Failure of the Aquino administration to adopt human rights agenda. This last item highlights that while it has supported crucial legislation to protect and promote human rights, the absence of a national human rights agenda is proof that human rights is not a priority.

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.

Statement of Atty. Harry Roque on behalf of clients following speech of client Mrs. Myrna Reblando before the Hong Kong Foreign Correspondents Club


Statement of Atty. Harry Roque on behalf of clients

following speech of client Mrs. Myrna Reblando before the

Hong Kong Foreign Correspondents Club

Ref: 09175398096

I have discovered inadvertently last year, through a Hong Kong-based lawyer, that Mrs. Myrna Reblando is being processed in Hong Kong for asylum to another country. The information given to me was confidential and knowing that asylum is also a confidential legal process, I have not said anything about it.

Mrs. Reblando did not inform me that she was seeking the assistance of Hong Kong directly. We are aware, however, that she has consistently worried about her and her family’s protection, even as she acknowledged to me that our own government has provided her security escorts in her home, up to the day she left the country.

We do not take it against her that she had decided to take this course of action. We know that she, like her fellow victims, has suffered greatly and has been under tremendous physical and emotional pressure. Despite the best efforts of the prosecution, the trial is protracted and a successful conclusion is not immediately forthcoming. No one can blame the victims for feeling threatened over news that Zaldy Ampatuan plans to run for office again. Our own clients report that emissaries continue to approach them with offers of financial settlement in favor of concessions for the suspects. At the end of each day, it is the fight for justice against the Ampatuans that sustains many of our clients. #

Probity and discounts


Sometimes, a fumble can lead to a win. This was what happened two days ago at the Senate in the impeachment hearing of Chief Justice Renato Corona. On Monday, we were enthralled by a declaration that the chief justice was given a whopping 40-percent discount amounting to P10 million by Megaworld. I was then an invited commentator at DZMM. Just out of curiosity, I went online on my iPad and typed “Megaworld and Corona” in Google search. Lo and behold, there it was: Megaworld vs. Judge Cobarde, a decision penned by no less than then Associate Justice Corona which was a P25 million win for the company.The case of Cobarde arose from a complaint filed at the regional trial court for almost P30 million in unpaid brokers fee for the sale of a resort beside Shangri-La hotel in Mactan Island. In the course of the proceeding, the parties entered into a compromise agreement whereby Megaworld agreed to pay the complainant almost P30 million. There was in fact a partial payment of about P5 million, leaving a balance of about P25 million. Later, Megaworld commenced proceedings to vacate such a judgment based on a compromise agreement. This kind of  a judgment is normally immediately final and executory. Megaworld lost in both the RTC and in the Court of Appeals. In the Supreme Court, Justice Corona penned the decision reversing the CA and declaring the judgment on a compromise as null and void. It spared Megaworld from paying the balance of P25 million.The year of promulgation of the Cobarde judgment was 2004. Construction of the Bellagio started in 2003 and was finished in 2008. I asked the question: is the P25 million victory related to the P10 million discount? If it is, both Megaworld and Corona could be liable for  violating the anti-graft and corrupt practices act. Bribery is the giving of any consideration in exchange for a favor. Unlike other laws, our anti-graft laws punish both the giver and the receiver.

I was hence not surprised when the following day, the Megaworld marketing director stated that what the company had given the Corona’s was a P5-million price reduction because of water damage sustained by the unit as a result of a typhoon; a further P3 million discount since the consideration was paid within one year, and a further P2 million discount. Now it can be told, it was not a P10-million discount. Just a 5 million discount over and above another 5 million price reduction.

I am of course not concluding anything as of yet. Senator Serge Osmena rightfully demanded from Megaworld evidence of the alleged water damage, as well as evidence of insurance coverage since almost all buildings, finished or otherwise, have insurance against water damage. These will prove if the damage to the unit was in fact commensurate to the price reduction. Anent the discount, I think Megaworld has for all intents and purposes admitted that it gave the Coronas an extraordinary discount since it has previously admitted that normal discounts for cash transactions is only 15 percent of the selling price. If the normal selling price is P24 million, as it claimed, the maximum discount should only have been P3.6 million. Why did Megaworld officials give the Coronas P5 million in discount?

In any case, the material point already proven by the prosecution is that the Coronas grossly understated the value of the Bellagio property since it was only declared as having a value of P6 million. Worse, there was a complete omission of the P14 million cash that they used to purchase the property. Previously, the prosecutors also proved that two other properties, a lot in McKinley Hill and another unit at the Spanish Bay Tower at the Fort, were also not declared in the SALN. Again the reason all public officers are required to file their SALNs annually is to enable the public to inquire whether there has been an increase in a public officer’s assets on a year-to-year basis given that their incomes are fixed by law. If a public officer could not adequately explain how he acquired the additional assets, the law presumes it  to have been ill-gotten.

I am distraught too at Megaworld’s spin in its releases. It claimed that it have lost two cases and won only one case from the Supreme Court. It is always silent on the fact that its victory was worth P25 million and that the decision was penned by Corona himself. It highlights a loss where it failed to collect P5 million, omitting the fact that this involved the same losing party in Cobardo. It also highlights a loss in the case of Tanseco vs. Megaworld where Corona was a member of the division that rendered the judgment.

The point, though, is that a magistrate should be purer than Caesar’s wife. No upright and becoming magistrate should have accepted an extraordinary discount specially from a winning litigant in his own court, moreso if he himself penned the winning decision.

True, the prosecution failed to introduce what it characterized as a 40-percent discount into the records. But that doesn’t matter. What matters is that the people now know the kind of magistrate Corona is.

The wrong IBP statement


IBP President Roan Libarios

Was both sad and disappointed when the Integrated Bar of the Philippines took the stand that the impeachment against Chief Justice Renato Corona was an affront to the independence on the Judiciary. Sad because I hold the IBP very dearly, having served as its Presidential Assistant for Human Rights for two years during the incumbency of President Feliciano Bautista. Disappointed because knowing almost all of its national officers personally, including its incumbent President Roan Libarios whom I had the pleasure of serving with when he was National Vice-President of the IBP, I do not understand how they can misread the importance of impeachment as a constitutional tool for public accountability of public officers. It was indeed a wrong statement.

The IBP anchored its stand on the false belief that any and all means to promote accountability on the part of our magistrates is an affront to the Judiciary. Nothing can be farther from the truth. When the Constitution made the Supreme Court a co-equal branch of government, it did so mindful that there was a need to promote both independence and accountability of our magistrates. To achieve independence, the Constitution gave the Court both fiscal autonomy and security of tenure for all magistrates to serve until age 70. But to balance this independence, the Constitution included the remedy of impeachment to remove magistrates with otherwise fixed terms should they commit culpable violations of the Constitution, betrayal of public trust and graft and corruption. To provide the Court only with means to make it independent but bereft of an instrument of accountability would be to make a monster out of our courts. Hence, contrary to the position taken by the officers of the IBP, impeachment is a constitutional tool to promote accountability and not the sword of Damocles that it portrayed it to be.

Furthermore, as I argued in my paper which I delivered only this month in Hong Kong University on the occasion of the 4th International Conference of the Asian Society of Constitutional Law, the impeachment is a tool by which our policy makers, both from the House of Representatives and the Senate, can uphold the supremacy of the Constitution particularly on the issue of Corona’s appointment as Chief Justice. Normally, legal formalism demands that we accept as final and executory decisions made by the Supreme Court particularly where it interprets the Constitution. In Angara v. Electoral Tribunal, the Court declared that when it declares an act of any branch or instrumentality as unconstitutional and hence, null and void, this is not an exercise of “judicial supremacy”, but one that “upholds the supremacy of the Constitution”.

But what happens when the Court abdicates this duty to uphold the Constitution as it did in De Castro v. JBC when it resorted to constitutional draftsmanship in upholding Corona’s appointment as a midnight Chief Justice in a manner contrary to the language and intent of the Constitution? Are all the other branches of government precluded from defending the Constitution? Certainly not.

All public officers from all branches of government took an oath to uphold the Constitution. Here, the remedy is clearly impeachment, as the issue to be resolved by our policy makers will include that of the correctness and the wisdom of the Court’s ruling in De Castro. Surely, the people that gave life to the Constitution did not intend to grant unto the Court a monopoly of upholding the supremacy of the highest law of the land.

As correctly observed by Senator Joker Arroyo, Article 1 of the articles of impeachment will involve purely legal issues which includes the constitutionality of Corona’s acceptance of the post of Chief Justice.

I would also have appreciated it if the IBP’s leadership attempted to consult its members prior to issuing its statement against the impeachment of Chief Justice Corona. Certainly, as the compulsory national organization of lawyers, there is virtue in hearing what its members, all of whom are trained in constitutional law, have to say before issuing a statement that appears to bind all of its members. As it turned out, I am a bona fide member of the IBP and I have been whole-heartedly supporting the impeachment of Corona as a means of strengthening the constitution and the Court as an institution. My leaders in the IBP did not consult me before they issued their official position despite the fact that the articles of the IBP do contain a provision on consultation with its members. I am now constrained to put on record the fact that I do not approve of the IBP stand and that I have not authorized them to speak on my behalf on this particular issue. This is sad, but necessary.

In any case, I am pleased that the House of Representatives chose lawyer Mario “Ayo” Bautista to lead its panel of private prosecutors in the impeachment trial. Ayo was my boss during my first year of litigation practice and I know him to be a brilliant and dedicated litigator. With him on board, I am sure that the people’s interest would be promoted and safeguarded in the impeachment trial.

I’m sorry to write a serious article for my last column for the year. Rest assured, I will try to be less serious in the upcoming New Year.

Happy New Year to one and all!

What next GMA and P Noy?


At long last, Gloria Macapagal Arroyo was finally charged in Court. While it took P Noy more than 500 days to do so, it took just the possibility of her flight to get P Noy’s people moving to charge her. Absent this Information in the Regional Trial Court of Pasay, GMA would have been able to leave the country what with the highest court of the and ignoring pending preliminary investigations against her as basis for the issuance of a Watch Order List, the means by which to prevent her from leaving the country. Is the worse over? Well certainly without it, GMA would certainly have fled.

So what next? Well aside from counsel being temporarily being spared from castration, the filing of this recent case may or may not lead to GMA finally being declared a criminal. While election fraud, the crime for which she has been charged with is a non-bailable offense; still, the Constitution says that bail -even in such cases -may still be granted where “evidence of guilt” is not strong. For purposes hence of being the legal basis for preventing GMA from leaving the country, the merit of recent Information would have to evaluated by the Judge. If he finds that the evidence of guilt is weak, and I certainly hope that these would go beyond Zaldy Ampatuan’s clearly hearsay testimony that he heard someone say that his father was told to cheat for GMA, or even beyond Unas testifying that he actually heard the old man Ampatuan say that he was ordered by GMA to cheat; the Judge may yet allow her to post bail and even to go abroad for alleged medical reasons. Sure, there could be evidence of the cheating itself, as Senator Koko Pimentel had already proven in the Senate Electoral Tribunal. But the question is: is there evidence that GMA was indeed the principal who ordered the cheating.

The problem with using the 2007 as the basis to hold GMA criminally liable is the reality that she was not a candidate in the said elections. Unlike in the 2004 elections where cheating could be proven to have been committed to make her win, what exactly did she personally gain by cheating Koko Pimentel of four years of his term? Seems to me that it was the fake Senator Migs Zubiri whose criminal liability should be established, rather than GMA.

But P Noy’s legal advisers knew that the fraud of 2004, even if it was responsible for installing a fake President, is basis only for the filing of cases for election fraud, which unlike election sabotage, is bailable. Certainly, if GMA would be charged, it should be for something that would be, as she herself did to President Erap, non-bailable. Furthermore, the reality is that to establish GMA’s culpability for depriving da “King” FPJ of the Presidency would be to acknowledge that P Noy, like his ladies in waiting, Dinky and Ging, supported a cheat in 2004. That should hurt.

We do not know the extent of the evidence that the COMELEC intends to offer against GMA. But already, aside from the evidence emanating from Zaldy and Unas, I do not recall any further evidence proving GMA’s liability. Not that she did not actually order the cheating to be done. The issue now is whether these evidence are strong enough to deny her bail or even to deny her the privilege of being allowed to travel abroad supposedly for medical reasons?

Other questions linger. Why was the complaint filed in the Regional Trial Court? If it is proven that GMA indeed ordered the fraud in 2007 to be perpetrated, she did so when she was President. The law establishing the jurisdiction of the Sandiganbayan says that officials such as a President should be tried in the Sandiganbayan. And yes, why was it filed in the RTC of Pasay City. Was the fraud committed in the jurisdiction of Pasay? Presumably, the only basis for filing it in Pasay is that it was where the Senate Electoral Tribunal then temporarily conducted its canvass of votes for Senators in PICC? Lack of jurisdiction, among others, is a ground to dismiss a criminal Information.

What is clear is that like many other policies shaped by P Noy’s advisers, this latest case in the Pasay RTC was an ad hoc remedy to keep GMA from leaving the country. Already, the delay in filing a case against GMA in court attest to the fact that  PNOY’s administration is lacking in the capacity to hold individuals liable for their criminal acts. Whether this ad hoc remedy will lead to justice remains to be seen. Certainly, the Maguindanao massacre victims, the Evangelista family, the Ortega family, and all the rest who have fallen victims to the worse crimes involving the violation of the right to life – all know that it may not be forthcoming soon.

But meanwhile, let’s give credit where it is due. Good job!, even if many of us would have wanted the little thing of someone subject to the guillotine.

Flip-flop


I am one of those disturbed by the recent order of the Supreme Court to reopen a final and executory decision ruling that the dismissal of 1,200 Philippine Airlines flight attendants was illegal. I too, find this decision—made in response to a letter of the lawyer of one the richest men in the world—to be out of the ordinary, given that lawyers normally communicate with all courts in the form of pleadings and not through a letter. Mr. Estelito Mendoza, Esq., has got to have the most expensive letterhead in the Philippines, as far as his clients are concerned. But where I differ is in the conclusion that many have made: that is, that money may have played a role in the unusual reversal. Here, I think the Justices of the Supreme Court, like all human beings, have a right to be presumed innocent until proven otherwise.

Having said that, the problem is the lack of mechanism by which the members of highest court of the land could be held accountable for their acts as public officers. True, the Court, for the first time, created an ethics committee to investigate one of its own whom we complained may have committed plagiarism. Assuming this mechanism could be resorted to when the conduct of one of them is impugned, what will the Court do when the conduct of a majority of them- and the decision to reopen is a majority opinion of all its members- is now under question? How can the court investigate itself?

When we in the Concerned Citizens Movement accused then-President Gloria Macapagal-Arroyo of the commission of crimes as a result of the NBN-ZTE scandal, we argued that the concept of immunity from suits should cover only sovereign acts and not the commission of crimes. This was pursuant to decisions of the UK House of Lords in the Pinochet case and the US Supreme Court in Clinton vs. Flowers. Both decisions ruled that sovereign immunity extends only to sovereign acts and do not cover illegal acts that both Courts said could never be official in character.

The dilemma confronting us now is while the individual justices, unlike the President, are not entitled to immunity; it was the Court nonetheless that ruled that its justices, and the other impeachable officers, could not be the subject of criminal complaints while they remain in office. The remedy is to impeach them first from office before these complaints could be acted upon. The rationale to this is that the security of tenure intended to be enjoyed by impeachable officers would be rendered nugatory should criminal complaints against them be allowed to proceed prior to impeachment.

While I am no fan of then Tanodbayan Raul Gonzalez, I do remember sympathizing with him when, as a result of his resolve to investigate sitting members of the Supreme Court during the Cory Aquino administration, the Court sanctioned him by suspending him from the practice of law indefinitely. That decision is a clear reminder to the bar that any lawyer who insists on holding sitting members of the Court criminally liable will be deemed guilty of legal malpractice.

So in the absence of accountability, how do we now dispel the public’s suspicion that the recent flip-flop in a case involving one of the country’s tycoons was not attendant with graft?

Theoretically, the Office of the Ombudsman, on its own, has the power to conduct an investigation for the purpose of recommending to Congress to initiate impeachment proceedings should its findings justify it. But in the complaint that we filed in connection with the NBN-ZTE, the Ombudsman, then headed by Merceditas Gutierrez, insisted that in the case of a sitting President, even an investigation resulting in a mere recommendation to initiate impeachment proceedings is not allowed. Our petition impugning this decision of Gutierrez remains pending in the Supreme Court. The good news though is that the erudite Solicitor General, Joel Cadiz, has filed a manifestation and comment with the Supreme Court supporting our position that a President is not immune from the investigative powers of the Ombudsman.

Since the Court’s ethics committee may not be the best forum to investigate where the conduct of majority of the members the Court is the subject of public suspicion, my position is that the Ombudsman, on the basis of its Constitutional and legislative mandate, can unilaterally investigate the circumstance that led to the recent reversal. While the end result may just be a recommendation for Congress to initiate impeachment, its importance should not be underestimated. We only know too well, after having filed three impeachment complaints against Mrs. Arroyo, that impeachment is a political process and a “numbers game”. But with a solid recommendation from the Ombudsman, the political debate would at least take place in the context of a factual determination made by the Constitutional body created for the purpose of upholding the accountability of public officers. I doubt if such a recommendation can easily be ignored –not even by Congress.

It’s certainly a tough call for the current Ombudsman, Conchita Morales-Carpio, to investigate her former colleagues at the High Court.

Moreover, she risks suffering the fate of Gonzalez. Still, the morally unacceptable alternative is that no one does anything.

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.