Disappeared


I accompanied the wife and two children of missing lawyer Joe Franck Zuniga to see Justice Secretary Leila De Lima last week. The purpose of the meeting was to solicit the secretary’s assistance in determining the whereabouts of the missing lawyer, the fourth person to have disappeared this year. De Lima did not disappoint. In the said meeting, she announced that she was creating an NBI Task Force to look into the case.

According to the lawyer’s wife, Charito, Zuniga called her on June 20, 2012 to say that he had a meeting at Oceanworld Subic. He has not been heard from nor seen since. His car, a Honda Civic, was recovered the following day in a remote part of Zambales. According to sketchy police reports, the vehicle was driven to the spot where it was found by a man who later boarded a second vehicle. Unfortunately, the witness who reported this failed to get a glimpse of the face of the driver.

Thus far, the family and authorities are facing a blank wall. Charito and the children related how Zuniga recently received what they believe to be a death threat. Apparently, intelligence authorities from Subic furnished the lawyer with a flyer bearing his picture taken in a prayer rally in the vicinity of Central Methodist Church along Taft and Kalaw, Manila. The leaflet bore the cellular phone numbers of the missing lawyer, his home address and the amount of $10,000.00, which they interpreted as the price tag for the life of the lawyer.

The family could think of no one in particular who would benefit from the disappearance of the lawyer. It is of public knowledge though that Protestants have been known to be very vocal in the promotion of social justice, which is why many military operatives have branded some church members from both the United Church of Christ of the Philippines and the Methodists as “communists”.

A second theory has to do with an on-going strife between the break-away Methodist church headed by Zuniga, AIM Philippines, or the Philippine Methodist Church from its mother church, the United Methodist Church -which until today is supported by the Methodist church of the United States. The family told De Lima that Zuniga had been very critical of what he claims to be issues of corruption within the mainstream Methodist church which led to the recent breakaway of Zuniga’s denomination. I myself refuse to believe that a Christian could conspire against a fellow Christian. But Secretary De Lima was correct in noting that this too would have to be investigated by authorities.

Zuniga is not the only victim of enforced disappearance whom I represent. Prior to his disappearance, three Muslim scholars bound for Somalia disappeared presumably at Naia Terminal 3 where their domestic flight from Zamboanga landed. The three never made it to their connecting flight at Terminal 1. The three simply disappeared and their respective families only had the chance to claim their checked-in luggages one month after their disappearance. Like in Zuniga’s case, there has since been no lead on what happened to the three Muslims. Recently I wrote a letter to Secretary Mar Roxas of the Department of Transportation and Communication for him to convene a conference at the airport for all heads of security forces then present at Naia 3 on the date and time of the disappearance of three men. I am confident that given that the immediate arrival area at the Naia is a secure and sterile area, we could account for all security personnel who were in the vicinity of the arrival gate of the flight taken by the three missing scholars. Meanwhile, I have received unconfirmed reports form sources within the security sector that one of the three missing may have already been killed.

It’s ironic that these disappearances happened at the heel of the country’s recent universal peer review at the Human Rights Council. Almost all countries that quizzed De Lima on the Aquino administration’s human rights record expressed concern that the government is in breach of its obligation to promote and protect the right to life against both extralegal killings and enforced disappearances. The concerns were not that Aquino was behind these, but that this administration was not discharging its obligations to investigate, prosecute and punish the perpetrators of these killings and disappearances.

In fairness, I am sure that Aquino himself has never condoned these affronts on the right to life. Unfortunately, part of what international law demands of him is not just to publicly renounce these crimes, but also to punish the perpetrators thereof.

While the numbers of disappearances has not been as large as in other countries such as Peru, there is still reason for alarm. If Zuniga, a seasoned litigator, a respected member of the legal community in Bataan, and a respected church leader could disappear without a trace, what happens now to normal mortals when they disappear?

I shudder at the thought.

Arroyo’s rights


Of course I agree with Justice Secretary Leila De Lima. The bigger national interest dictates that Rep. Gloria Macapagal Arroyo and her husband should not be allowed to leave the country. As attested to by no less than the Secretary of Health, her illness is not one that cannot be addressed by Filipino doctors. The decision hence not to allow her to leave is not inhumane because she is not deprived of her right to health. Arroyo and I share the same hospital under the most competent medical professional, Dr. Cuanang. She can get her medical treatment from a world-class hospital right here in the Philippines
Despite my agreement with De Lima, the fact remains that this decision will inevitably be challenged before our courts. The possibility of this order being declared illegal looms. In a judicial system governed by stare decisis or precedents, the Court cannot deviate from its established rulings unless there are “drastic change in circumstances”. It cannot be denied that the Supreme Court in a very recently issued temporary restraining order in a case filed by Mike Arroyo already declared: “a restriction on rights should at least have the imprimatur of a court of justice; otherwise, an official of the Executive Department will have the power to determine who will or will not be allowed to exercise his constitutional right to travel.” It was the allegation of the former FG that the Justice Secretary could not restrict his to travel since he has no pending cases in court.

The weakness in the De Lima position is her own making. Unlike Arroyo who put President Joseph Estrada behind bars months after she, to quote Susan Roces, “stole” the presidency, De Lima and President Noynoy Aquino have waited all this time to even charge Arroyo with something. Eighteen months after occupying Malacañang, they have not filed any case against Arroyo and her husband in court. Worse, they have absorbed all the very close cronies of Arroyo even in the Cabinet. How could you expect the former President then to be brought to justice?

In favor of the De Lima position though is the case of Marcos vs. Manglapus. There, the former despot challenged then-President Cory Aquino’s refusal to allow him to return. In upholding the ban, the Supreme Court distinguished the right to travel, which is limited to travel within the country’s territory; to the right to leave and return to the country, which the court underscored was different and distinct from the right to travel. According to the court, the right to leave a country, including one’s own, “may be restricted (when) necessary to protect national security, public order, public health or morals, I disagree hence with Father Joaquin Bernas when he opined that Arroyo has the right to travel abroad. This right only applies to those with no pending legal investigation in their home countries.

But then again, the weakness in the current De Lima position is whether the restriction may be by virtue only of a pending preliminary investigation or whether it should be in court. We will soon find out

I am in Jakarta, Indonesia to attend the Asia Civil Society Consultation on National Security and the Right to Information Principles. On my way here, I met a Filipino who happened to be one of our sports coordinator for the Southeast Asian Games. He deplored the fact that despite PNoy’s “daang matuwid”, the crocodiles in Philippine sports, like Arroyo’s cronies in Aquino’s Cabinet, continue to lord it over. He called my attention to the fact that each of the 500 members of the Philippine delegation to the games were given plane tickets that cost 80,000 pesos each. My ticket on board the region’s most expensive airline amounts to less than 20,000 pesos. By golly, our delegation’s tickets cost 300 percent more! Mind you, these are economy seats, not first class!

Paging newly appointed Ombudsman Conchita Carpio-Morales: Please help the cause of Philippine sports by charging these crocodiles in Philippine sports with graft and jail then together with Arroyo, her husband, and the singing handmaids of Arroyo who are now in PNoy’s cabinet.

***

Anent the right to information, I am in the minority on the need for a Freedom to Information law. Unlike other jurisdictions, the Right to Information is granted by the 1987 Constitution and not just by a statute. In fact, the Constitution says that legislation is required only to provide for the limitations to the right. Ergo, without the FOI bill, there are no limitations on the right, save for those recognized under jurisprudence.

The remedy for a denial of the right has also been provided by the Court in the cases of Chavez vs. PCGG and Chavez vs. PEA-Amari. According to the Court, the remedy is for journalists and citizens to resort to the filing of petitions for mandamus. In this regard, the civil society groups Concerned Citizens Movement and the Center for International Law will soon launch a legal clinic to serve as a one-stop center for journalists and citizens who want to exercise their right to information.

DEMOCRACY, DE LIMA AND DEMOCRACY


A third journalist was killed in a span of five days. Nestor Bedolido of Digos City was shot six times by a motorcycle riding assailant. Previously, two other journalists—Joselito Agustin from Laoag and  Desidario Camangyan from Mati City, bothe radio commentators —were also killed. Already, the number of journalists killed during the administration of Gloria Macapagal-Arroyo has reached 103. It is because of these killings that international journalists groups such as the Committee to Protect Journalists have  concluded that the Philippines is now   the deadliest country for journalists .

While journalists are not the only ones being  killed in this country, as in fact, the number of victims of extralegal killings have already exceeded a thousand for the period of Arroyo’s administration alone, the question is asked: what is so wrong with the killing of journalists outside of the fact that under both natural and our penal laws, murder is a crime? What makes the killings of media professionals more heinous than say the killing of a street vendor by a drug crazed killer?

The answer lies in the unique role that the media plays in a democratic society.

Our Constitution provides that “no law shall be passed abridging the freedom of the press”. This is based on a belief that the truth is discerned only in a free market place of ideas. According to Justice Holmes, the “true test for truth is the power of an idea to be accepted as truth in a market place of ideas”. This explains why under democratic systems, a falsity per se is not actionable. It becomes actionable only where there is actual malice, be it actual or legally presumed.

A free press, though, is valued far more than because it helps us discern the truth. More importantly,  it is valued because it is only when you have a free market place of ideas that an individual can form an opinion on issues involving him and the public at large. It is because of these individual opinions that individuals can participate in public debates on issues that affect the public. When there is a consensus of individual opinions, we have what we refer to as public opinion. In turn, it is believed that public opinion, over and above institutions of government, is best able to fiscalize governments and regimes. This is why the media is referred to as the “fourth estate”, a co-equal institution in a democracy, albeit not a branch or instrumentality of government.

To kill a member of the media is hence is to kill what makes democracy work. Without information, there can be no opinions. Without the latter, there would be no debates. With no debates, there would be no consensus. Without public opinion, there would certainly be despots and dictatorial regimes. This explains why in the course of history, dictators would always infringe on freedom of the press first. To kill members of the media, in other words, is the surest way to kill a democracy.

***

I have just gotten word that Commission on Human Rights Chairperson Leila De Lima has accepted her appointment as Secretary of Justice. I must say that this is thus far one of the best moves of President-elect Noynoy Aquino. What has contributed to the culture of impunity prevailing in this country is that the Arroyo administration, including all the Secretaries of Justice, did not prevent these killings of journalists and activists. Worse, they also failed to investigate, prosecute and punish the perpetrators of these killings. With Leila De Lima at the helm of the Justice Department, there is now hope that change may indeed be forthcoming.

Secretary-Designate De Lima surprised skeptics who thought that as an election lawyer, she may not be effective in protecting and promoting human rights in the CHR. But in a very short span of two years, she studied the law on human rights and became by far the most effective exponent of rights in an administration that has become notorious for being a human rights violator. What made her effective may not have been her thorough grasp of the specialized field of human rights, but her visibility, dynamism and her sincerity in promoting these rights. When people stayed away from Maguindanao right after the massacre, she was on the ground conducting her own parallel investigation. When the Morong 43 was apprehended, she had the balls to summon the Armed Forces hierarchy and declare that they committed acts of torture against the apprehended health professionals. Even in the recently concluded automated elections, she was an advocate for clean and honest elections, arguing what many people may not have realized: that clean and honest election is also a fundamental human right enumerated in the International Covenant on Civil and Political Rights. Kudos for P-Noy for the De Lima appointment.

***

At least 10 Filipino comfort women conducted a prayer vigil last Tuesday, June 22 to protest the recently promulgated decision of the Supreme Court in the case of Vinuya versus Executive Secretary. The Petition was to compel the Philippine government to sponsor the claims of these Filipinas for compensation from Japan. The claim was because all of the petitioners in the case were brutally and repeatedly raped by officers and soldiers of the retreating Japanese Imperial Forces when it had become apparent that they would lose the war. Some of these Lolas were as young as 12 years old when they were forcibly brought to the infamous Bahay na Pula, which stands until today along the national highway en route to Cabanatuan, where they were repeatedly raped for days and weeks by Japanese soldiers. When these women previously filed suit before Japanese Court for compensation as victims of mass rape as a war crime, the Japanese court ruled that they had no  standing to sue as it is the Philippines that should have filed suit on their behalf. According to the Japanese Court, it is states, and not individuals, that have the capacity to sue under International Law. And because their claim was never espoused by the Philippine government, they filed suit to compel the government precisely for this purpose.

The lolas protested a ruling that said that their claims for compensation is barred by the San Francisco Peace Pact where in exchange for nominal war reparations, the Philippines allegedly renounced all further claims for compensation. The Court also said that there was no jus cogens prohibition on rape during World War Two and that the plight of the comfort women was one of those where there was a violation of a right but with no legal remedy.

The lolas will congregate anew in front of the Supreme Court on July 5 at 10 a.m.