I wondered what P Noy would say in this year’s SONA about the Maguindanao massacre and other cases of extralegal killings in the country. Since becoming President, he has consistently said something about this malaise. This may be because when he still seeking the people’s mandate, he sought an audience with our clients and promised that the prosecution of the perpetrators of the massacre would be on top of his priorities. This was why one of our clients, Myrna Reblando, wife of slain Manila Bulletin journalist, “Bong” Reblando, the only full time journalist of a national broad sheet to perish in the massacre, agreed to publicly endorse him in a television advertisement broadcasted at the tail end of the campaign period in 2010. That endorsement earned Myrna front seat sitting in P Noy’s inauguration at Luneta.
In 2010, while not expressly mentioning the Maguindanao massacre, P Noy did promise that he would “punish” the perpetrators of extrajudicial killings. In 2011, he expressed confidence that the Department of Justice will go after those behind these extrajudicial killings. In 2012, he expressly promised that he would accord the victims of the massacre justice. Earlier this year, the Secretary of Justice declared that the prosecution of the case would be finished within the term of P Noy.
I then expected that the President would reiterate De Lima’s promise to finish the prosecution of the case before 2016. Alternatively, I was hoping that our recent expose that about 14 of the victims almost entered into a settlement with the accused would prompt the government to discharge its duty to pay compensation to the victims as a consequence of the Philippine state’s breach of its obligation to protect and promote the right to life of the victims. While Deputy Presidential mouth Valte exhibited her gross ignorance of human rights law when she said that this administration will not pay compensation to the victims since it was not responsible for the massacre; I was hoping that those with brains in the administration, such as Secretary Leila De Lima or Secretary Ronald Llamas, maybe upon the prodding’s of CHR Chair Etta Rosales, would already correct the mistake of the mouth named Valte.
So for 1 hour 45 minutes, I, with millions of other Filipinos, eagerly awaited the Presidential pronouncement on how he would protect and promote the most important right of all rights, the right to life.
My heart was hence tattered into pieces when after an hour and forty-five minutes of waiting, the President concluded his SONA without mentioning a single word on either extrajudicial killings or the Maguindanao massacre. My immediate reaction was one of panic. Oh my God, I said, the President is not even sure that the trial of the century could be concluded during his term! If it could not be done during the term of one who had not benefitted from the Ampatuans of Maguindanao, what would happen to the case should the President to be elected in 2016 be indebted anew to the family of the accused? It would certainly be hopeless for the victims.
The fact that I felt this sense of despair is actually to commend P Noy. I have always acknowledged that he is one of the few politicians who did not benefit from the Ampatuans of Maguindanao. On the contrary, he was one of those who allegedly got zero votes in the province in the 2007 elections. This is reason to be confident that there would be a level playing field in the prosecution of the massacre during his administration. But the reality is outside of P Noy, almost all of the contenders in 2016, unless the likes of Grace Poe, Chiz Escudero, or Allan Cayetano make a go for the Presidency, have had some ties with the Ampatuans of Maguindanao. This means that the possibility of a conviction, at least during my lifetime, has dimmed. This is because P Noy’s silence on the massacre is an implied admission that no one is certain when the prosecution of the country’s worse massacre will conclude.
It was also worrisome that despite the fact that there have already been 15 cases of extrajudicial killings of journalists in P Noy’s three-year-old administration, the President was equally silent on what he intends to do with the perpetrators of these killings. This prompted the Human Rights Watch to declare, “We are dismayed that President Aquino, in his State of the Nation Address today, chose not to talk about the continuing culture of impunity in the Philippines. We are disappointed that he did not take the opportunity to communicate to the military and the police that they will be held accountable for human rights violations. President Aquino’s failure to denounce abuses against outspoken activists, environmentalists, clergy and journalists sends the wrong message to abusive security forces and corrupt politicians”. The Center for International Law, for its part declared: “The President’s failure to state how he intend to finish the prosecution of the massacre case points to a lack of political will to punish those who will violate freedom of the press and the right to life”.
As for the victims, three of them, Monette Salaysay, Editha Tiamzon, and Cipriana Gatchalian tearfully asked on the occasion of the 44th month commemoration of the massacre held only a day after the SONA: “why have thou forsaken us?”
America is now an ex-superpower. First, it ceased to be the biggest economy in the world. It is now only the second-biggest economy. China has long overtaken it and the tables have been turned. Communist China has not only become an economic tiger; it has also become the biggest creditor of capitalist America.
And the decline of superpower America goes beyond economics. With China’s recent foray into bullyism (yes, I invented that word) in the West Philippines Sea, it has allowed China to challenge its pre-eminence in the Pacific front. This used to be its bastion since World War II. This was why despite granting the Philippines nominal independence, it insisted on utilizing the country as an unsinkable military carrier with take-off points at Clark and Subic. These were bases that used to be its biggest military installations outside the mainland US.
Today, it is longer the US Navy that is feared in this part of the world. It is now the Chinese Navy that lords it over in these waters. First it took possession of Mischief Reef in the disputed Kalayaan groups of islands from Filipino soldiers then assigned in the island. Today, it has effectively driven away all Filipino presence in Panatag Shoal, an area that is literally the backwaters of the province of Zambales. And if the respected journalist Chito Santamaria is correct, China is not just interested in the fishing waters around Panatag. The real battleground, according to Chito, is Recto Bank where Manny Pangilinan is about to drill for oil.
Amidst this newfound Chinese expansionism, where is America? Well, at the first sign of a conflict, Hilary Clinton declared that it would take a neutral stance and urged a peaceful settlement of the dispute. Later, when the standoff persisted, she declared during a US Senate concurrence hearing on the UN Convention on the Law of the Sea that China’s claims to the vast waters of the West Philippine Sea exceeded what is allowed under international law. And recently, when President Noynoy Aquino went to the US begging anew for help, no less than President Barack Obama was clearly non-committal. This is apparent in a White House release after the meeting between Obama and PNoy stating, among others, that the two leaders merely agreed on “firm support for a collaborative diplomatic process among claimants to resolve territorial disputes in a manner consistent with international law and without coercion or the use of force.”
Make no mistake about it. Uncle Joe can’t be counted upon to deal with China- the bully.
Central to American foreign policy is that as the lone superpower of the world, it can be counted upon to maintain peace and order in this planet. At the very least, if its economic woes have become so bad that it can no longer play the role of superman, it should have sufficient resources to stand by its long-standing ally when needed. But no, nowadays, the American position is for its allies to swim or sink. Full stop.
This is not to say that the American position is wrong. I for one have never believed that mother America will ever come to our rescue solely to defend our interests. This is why I have been a long supporter of the likes of Claro M. Recto and Jovito R. Salonga, who believed no one can be counted to uphold Philippine interest but us -Filipinos.
Still, this lackadaisical manner by which America seems to regard the recent threat of Chinese expansionism is a major change in its foreign policy.
Make no mistake about it. While America couldn’t care less about the West Philippine Sea, it will come back to Subic and Clark not to defend us; but to uphold its own national interest. This is why it is in the process of sending 60 percent of its navy forces to Asia. Malacañang, I’m sure would want to take credit for this. But nope, this has been in the offing even before our recent controversy with China. At most, perhaps, the actual deployment of these forces to Asia was hastened by the dispute. They will come though not because Scarborough and the Spratly islands are ours. They will come because China’s claims to these territories may precisely hinder deployment of their ships into these waters.
We, unfortunately, are irrelevant to their policy.
NOY’S HUMAN RIGHTS RECORD
Geneva, Switzerland. The Philippines will be the object of the Universal Periodic Review (UPR) in May of this year by the United Nations Human Rights Council. The Council is a body composed of 47 states tasked with the protection and promotion of human rights. The Council seeks to achieve its purpose through this periodic review, where states are asked by other states on the level of their compliance with human rights norms. This in turn is premised on the assumption that no state would want to be declared to be in breach of its human rights obligations. It also works through expert rapporteurs, both thematic and country specific, whose function is to conduct investigations to determine states’ compliance with their obligations.
As an adherent of humanitarian law that utilizes penology as an enforcement mechanism, I have been critical of how the UN implements human rights through this shaming machinery. But I had a different insight into the human rights mechanism when I saw it up close. To begin with, the world’s civil society is active here to ensure that non-compliant states are in fact shamed to the fullest. Further, one certainly gets the sense that with all states dutifully attending the many meeting of the UN here in Geneva, states do abhor the prospect of being branded as a violator. Judge Rosalynn Higgins said it succinctly: while violations of the rights of human beings are rampant, states will opt to deny that their conduct violate these rights and will instead argue that their conduct is either compliant or justified. She cited the case of torture. Amnesty International, who together with the German Action Network Human Rights-Philippines, are my hosts here- has once declared that almost all states commit torture. And yet, not one state will acknowledge this and all will still maintain that torture is illegal.
Why am I here? To participate in a side event to discuss human rights under P Noy and to lobby states to question the Philippines why extralegal killings (ELK’s), torture, and enforced disappearances (ED’s) persist.
I argued that extralegal killings, torture and enforced disappearances continue even now because their perpetrators have not been investigated, prosecuted and punished for their acts. Here, I traced the problem to a breakdown in the country’s pillars of its criminal justice system. First, the police do not know how to investigate. A recent study revealed that 8 out of 10 policemen are not trained and are hence incompetent to investigate crimes. There too is the PNP procedure that seeks first to identify the perpetrator of a crime before gathering and processing of physical evidence. Worse, in almost all the heinous crimes that I have been involved as a private prosecutor: the Maguindanao massacre, the Evangelista torture case, the Tanauan massacre, the Bicutan siege, to name only a few, policemen are the perpetrators of these crimes. How can they investigate themselves?
Second, the National Prosecution Service has failed to prosecute. The Perreño report commissioned by the Asia Foundation revealed that their conviction rate for Elk’s and ED’s is a measly 1% . Over-all, no less than the President has said that their conviction is a low of 14%. There may be many reasons for this -including lack of resources and manpower. But what appears to be obvious for now is their adamant refusal to be involved in the investigation of these crimes is responsible for their low conviction rate. Under human rights law, it is the state, acting through the police and the prosecutors, who must investigate and hence gather the evidence to meet the minimum threshold of evidence.
The Courts have at least, through former Chief Justice Reynato Puno, acknowledged that it is also in breach of their duty to protect and promote the right to life. This is due to the perennial problem of court delays and even the incompetence and lack of integrity of some of our Judges.
The decision to make the presentation here was not easy to make. I have been supportive of the administration of P Noy and make no apologies for it. But I opted to attend and am currently even lobbying the international community to confront the Philippines with the issues of ELK’s, torture, and ED’s for two reasons: one, a belief that true friend of an administration should not just sing odes of praise. A friend should commend when it is deserved, and should criticize, when necessary. This is not to overthrow it, but for it to become better. Secondly, I am here because you and I could be the next victims of these crimes.
So it happened. A few days after my column last week where I exhorted the impeachment of both Chief Justice Renato Corona and Associate Justice Mariano Del Castillo, the President, weary of yet another TRO from the Arroyo court -asked his allies in Congress to impeach the Chief Justice. And while I have maintained that this should have been done since day 1 of his administration, its certainly better late than never, as the saying goes.
Critics though have claimed that the impeachment will undermine the independence of our courts. Far from it. In the first place, it was Corona who did it to himself. He agreed to become an unconstitutional Chief Justice when he assumed the office knowing fully well that both the language and the spirit of the Constitution barred his appointment. You cannot undermine the judiciary when you remove an unconstitutional appointee. On the contrary, you uphold the supremacy of the Constitution by doing so.
True, the Constitution defines judicial power as including the power to declare any act of any branch or instrumentality of government as null and void where there is grave abuse of discretion resulting in lack of or excess of jurisdiction. Included in this function is the duty to declare as illegal any act that is contrary to the constitution. But this is not a monopoly of the Courts. All public officers are required to uphold the constitution and the laws of the land. Surely, when it is the Supreme Court that makes a mockery of the Constitution, as it did in the case of De Castro v. JBC where the midnight appointment of Corona was upheld, the executive is duty bound to resort to the constitutional tool of impeachment to uphold the constitution and accountability of public officers.
It must be underscored that while the Constitution refers to the Senate as an “impeachment court”, the language of the organic act should not deceive the Senate. They are a court only for the purpose of determining whether the impeached official should be removed from office. This does not make them a court of law. They are still policy makers who must formulate policy on whether one should continue in public office. They should not make the mistake, as argued by Estelito Mendoza during the Erap impeachment, of acting like a court hearing a criminal case. Public office is still a privilege and not a right. When the Constitution vested in elective representatives of the people the power to remove impeachable officers, it was their will to include the issue of fitness for a public office as a policy issue and not a criminal inquiry. The standard is hence not proof beyond a reasonable doubt, nor any of the standards recognized by our rule of evidence. The sole criterion is fitness to remain in office from a policy point of view. While the grounds for impeachment should still be proven, the Senate though is free to decide on the basis of other considerations considered relevant in formulating policy. Otherwise, the power to impeach and sit as an impeachment court should have been vested in the judiciary.
So how will the Senators possibly vote on the Corona impeachment case? Well, while it is still too early to tell, my crystal ball shows the following: all four LP Senators: Drilon, Recto, Pangilinan, and Guingona will vote for impeachment. They have to. When we say impeachment is a political process, it also means that political parties, at least in the United States from whom we copied our constitution, vote along party lines. Expect the four to be joined by Senators Trillianes, Estrada , and Lacson, all of whom have proven to be staunch political nemesis of Corona’s boss, CGMA. Add to the list Senate President Enrile who should know that voting in favor of Malacanang’s wish would be the surest way of safeguarding his post as head of the Senate. Voting with JPE would be his majority floor leader Sotto and his prodigee, Honasan. That’s a sure 10 votes for impeachment.
Those who will most likely cast negative votes would be Senators allied with or sympathetic to CGMA. This would include Senators Revilla , Lapid , Arroyo, and Marcos. That’s a sure 4 votes against impeachment.
The rest, 9 in all , I think, are undecided: Santiago , in my mind, is undecided because while she appreciates Malacanang’s support for her ICC candidacy, still, she has been very clear that she does not think Corona should be impeached. Angara, as a veteran politician, should be open to offers. The same goes for Legarda. Villar and his block, including the two Cayetanos, have been rabid anti-Malacanang Senators. Palace operators may have to strike a deal first with the Villar block, if they want to have the numbers to remove Corona. Osmena is undecided because he has been maverick lately, opposing even the nomination of P Noy’s Tito, Domingo Lee, as Ambassador to China. This means that Osmena does not believe in voting along party lines. And finally, Escudero is an undecided because he normally defers to his elders in his own fraternity. One of his esteemed senior brod, former Chief Justice Renaldo Puno, is seen as being sympathetic to Corona as in fact- he even resigned earlier than his 70th birthday to facilitate Corona;s appointment. Pimentel is an undecided because he has been quoted as saying he will decide on the basis of evidence.
We need 16 Senators to remove Corona. But anything can happen. As we have known all along: never underestimate the vast powers of the President
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.