Awed during the second national IHL summit


222276_10151375614154289_227657715_n(I delivered the keynote address entitled “In Awe” during the Second International Humanitarian Law Summit at Malacañang yesterday. I am publishing here excerpts of my address where I explained why I was “in awe”.)

I am awed because not too long ago, civil society — which I belong to, was excluded in the task of disseminating and ensuring compliance with our state obligations under IHL. We do not know exactly why the past GMA administration opted to expel civil society from the National IHL Committee. x x x Whatever the real reasons may have been, what we are certain is that the administration that banned us was the same administration that showered adulation on a war criminal, the Butcher Jovito Palparan who today, has gone on “voluntary disappearance and is now a fugitive from justice. What we also know is the same administration that banned us was the same regime that UN Special Rapporteur Philip Alston condemned for its gross breaches of human
rights law. Specifically, Alston, whom a former Secretary of Justice has referred as a “muchacho” of the UN, confirmed that extralegal killings, even if it is still unsure how many there have been, are
evidence that the Philippines is in breach of its obligation to protect and promote the right to life.xxx

I therefore stand before you today as a member of civil society- triumphant- that in an administration that has received a genuine mandate to govern, we are recognized anew as an invaluable partner of the state in the discharge of its obligations under International Law.

I am awed, too, at how a few years can indeed make the difference.

In 2009, Congress enacted RA 9851 that defined war crimes, crimes against humanity and genocide as being criminal. Furthermore, it is a law that codified the applicability of the exercise of universal
jurisdiction for these crimes, the fact that these prosecutions are not subject to prescription, and the fact that the defense of sovereign immunity, including that of a sitting President, may no longer be invoked as a defense for the prosecution of these crimes. xxx

Almost immediately after assuming office, PNoy did what we all thought would talk two lifetimes to realize: he sent the Rome Statute of the International Criminal Court for concurrence of the Senate, paving the way for our membership to the International Criminal Court. Our membership to the ICC is without a doubt a signal to one and all that the Philippines will no longer allow impunity to persist.

The Philippines further ratified and became a party to the 1977 First Additional Protocol to the Geneva Convention and the Optional Protocol to the Torture Convention. Under the additional protocol, the Philippines now ranks as amongst the countries that have undertaken to insulate civilian populations from the adverse consequences of war. Our ratification of the Optional protocol to the Torture Convention, in turn, had the effect of recognizing the jurisdiction of the Torture Committee, the treaty monitoring body for the Convention Against Torture, and will enable our nationals to file individual complaints with the said Committee when they feel that their rights, as provided in the Convention, are not being promoted and promoted by our government.

Finally, in recognition that enforced disappearance is the ultimate form of torture for its victims – who do not know if they should weep for the loss of their loved ones or still hope that they will be
found — Congress has passed its final version of the anti-enforced disappearance law…This promises to be the first law of its act in the whole of Asia. I am confident that the President will either sign it into law or will allow it to lapse into one.

I stand today before you also in awe with the tremendous challenges ahead of us …our burden to discharge our obligations under the aut dedere aut judicare principle, or that states must investigate and punish those who commit international crimes, can only be discharged if our domestic legal system is able to investigate, prosecute and punish those who will commit war crimes and crimes against humanity.

Already, our experience with the prosecutions of ordinary murders,such as the Ampatuan massacre case, the Doc Gerry Ortega case, the Binayug torture case and the unresolved enforced disappearances of Jonas Burgos, the three Islamic scholars who disappeared in the sterile premises of Terminal 3 of the Naia in January of this year, and even the disappearance of prominent lawyer, Atty. Frank “Joe” Zulueta, underscore a tremendous structural challenge now facing us. And while
we acknowledge that the destruction of our criminal justice system was the handiwork of the past dispensation, the task of governance demand that it is this administration that should now rebuild these damaged institutions.

Let us now build the capacity of the PNP to utilize forensic evidence rather than rely on testimonial evidence. The latter is oftentimes cheap or readily available through resort to torture. Let us demand from the National Prosecution Service a better conviction rate- definitely better than its current 1 percent conviction rate for cases involving extralegal killings as reported in the Pareno report commissioned by the Asia Foundation.

Let us dialogue with the Judiciary and discuss if we should instead adopt the inquisitorial system where it is the judge that gathers the evidence in the resolution of a judicial dispute rather than the current adversarial system where the judge is a passive recipient of evidence adduced by the parties.

Perhaps, the ultimate challenge is to aim for the time when IHL becomes a purely academic field of study in this country. This will only happen when we have achieved a lasting and just peace, when armed conflicts remain part of our history, but no longer a part of and not our daily lives. In sa Allah.

Published in: on December 12, 2012 at 11:59 pm  Comments (1)  
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A band-aid solution to gangrene


The country’s failure to protect and promote the right to life has taken center stage anew. On the eve of the third anniversary of the Ampatuan massacre, President Benigno Aquino III signed Administrative Order No. 35 creating a super-body headed by Justice Secretary Leila De Lima. The body would lead the effort to investigate and prosecute cases of extralegal killings and enforced disappearances in the country. The Secretaries of both the Departments of National Defense and Interior and Local Governments were likewise made members of this super body.

And then, there was the third anniversary of the massacre itself.

Unfortunately, the occasion did not warrant even a presidential remark other than a statement made by the President in a media summit that the government was looking into the cases of media killings. Then, late Tuesday, I received word from media contacts that the Court of Appeals had declared De Lima’s creation of the second DOJ panel to conduct a preliminary investigation into the Doc Gerry Ortega murder case null and void.

How are these three events connected?

Simply put, they explain why killings and enforced disappearances will continue in this country.

The creation of AO 35 was ill-advised. Already, we have at least three serious studies on what steps should be done to put an end to impunity. These are the Melo Commission Report, the Alston Report, and the Asia Foundation’s Parreno report. None of these recommended the creation of yet another body to deal with the killings. In fact, all these inquiries were issued when there was already some sort of super body in existence. President Gloria Macapagal Arroyo created Task Force Habagat in the Philippine National Police followed by Task Force 211, also an inter-agency body. The killings and the disappearances continued despite the existence of these bodies.

The Alston report then concluded that the Philippines is in breach of the duty to protect and promote the right to life because of a lack of political will to prosecute those behind these killings. It made special mention of the Office of the Ombudsman, which, despite its constitutional and legal mandate, has failed to investigate and prosecute even a single state agent for these killings and disappearances.

The Asia Foundation-funded Parreno report, in turn, concluded that the National Prosecution Service is largely to blame for the problem of impunity. To begin with, the NPS has a measly 1 percent conviction rate for cases of extralegal killings.

If at all, this last report has at least identified the weakest link in the fight against impunity: the Executive.

The reality, though, is that decisions such as the Court of Appeals’ nullification of Secretary De Lima’s creation of a second preliminary investigation that charged former Palawan Governor Joel Reyes and his brother for the murder of Doc Gerry Ortega highlight the Judiciary’s role in this culture of impunity.

While I have not seen this decision of the CA, it does highlight why a super body within the executive branch of government alone is not the solution to impunity. While the Parreno report did not identify the Judiciary as the weakest link, it has noted that institutional weaknesses within the Judiciary itself, including notorious delays and perception of corruption, also afflicts the system.

But where does the Ampatuan massacre come in?

It serves as the case study on what happens when there is institutional breakdown of the country’s criminal justice system. The fact remains that while Judge Jocelyn Solis-Reyes and all the lawyers connected with the case, both prosecution and defense, are doing the best that they could to afford justice to both the victims and the accused, it is the system itself that is responsible for failure to accord the parties to the case an adequate remedy under domestic law.

First, the Philippine National Police did not investigate the massacre in a manner that would result in conviction. This much the authorities have admitted, saying that many of their men failed to execute the requisite affidavits of seizures and arrests for fear of retaliation. In like manner, the police have also failed to apprehend about half of the 194 accused charged in the case. The National Prosecution Service, for its part, did not coordinate with the PNP in conducting the investigation of the case to ensure that evidence gathered will stand in court. This was one of the conclusions made by the EP-Just program of the EU: that prosecutors should work hand in hand with the PNP to ensure that the evidence gathered by the police would result in convictions. Then there is the Court that to begin with, is not equipped with rules to handle this many accused for no less than 58 counts of murder.

Yes, the super body created by AO 35 is good copy. Unfortunately, it is a band aid to the “gangrenous” wounds that afflict the pillars of the country’s criminal justice system. In the end, with government offering yet another super body to address impunity, the citizenry is left only with prayers as their ultimate tool against impunity. Let’s pray very hard.

Published in: on November 29, 2012 at 11:19 am  Comments (2)  
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Pray for you lives and be safe


The recent death and burning of used car dealers Emerson Lozano and Venzon Evangelista highlight anew President Noynoy Aquino’s most pressing challenge: the restoration of the rule of law. I have said it before and will say it again: these killings are happening because of a lack of political will to make the criminal justice system work. Unless P-Noy recognizes the gravity of the problem and take bold and decisive moves to overhaul the system, no Filipino will be safe.
There should be no difference if the victim is killed because he is a political activist, journalist, or everyday folk. These killings are happening because their perpetrators are not apprehended, prosecuted and punished. Already, the reasons for this impunity are very clear: all the pillars in our criminal justice system are defective and require through overhauls.

First, our police apparently do not know how to investigate. A recent newspaper report indicated that 8 out of 10 of our policemen handling police investigations lack formal training and skills. Even prior to the release of this report, doctor Raquel Fortun, in her lectures on the investigation and prosecution of extralegal killings sponsored by the Center for International Law, complained that existing PNP investigation protocols ask police investigators to identify the suspect first before they are asked to gather evidence. In other jurisdiction that are able to punish killers, the procedure would be to gather evidence first, particularly physical evidence, or the type that does not lie, before they identify the suspect. Worse, in addition to lack of skill, our police of late have become notorious for being criminals themselves instead of being their pursuers. The 62 policemen indicted for the Ampatuan massacre, Sr. Inspector Jose Binuyag and his colleagues at the Asuncion Community Police precinct of the torture video notoriety, and PO 3 Antonio Bautista, who was accused of raping a detainee for vagrancy at the police station itself, are only some of the notorious policemen who have spurned public indignation.

Two, there is the National Prosecution Service with its 19-percent conviction rate. Part of the problem is that cases are lost due to sloppy police investigations. And yet, despite the knowledge that this is partly to blame for its dismal conviction rate, public prosecutors are altogether averse to involving themselves in police investigations despite existing executive orders compelling them to do so. One would think that if inept investigation is the problem, then the involvement of lawyers should be the solution. But no, our prosecutors will continuously invoke their alleged status as quasi-judicial posts as justification for their refusal to be involved in police investigations. One former American federal prosecutor, Christine Chung, also formerly a prosecutor at the International Criminal Court, did not mince her words. In her view, the problem is that Filipino prosecutors are lazy. Full stop.

Three, there is the Judiciary. While our judges today could no longer complain of being underpaid, as in fact, their salaries today, courtesy of recent legislation and allowances from the local government units, are now almost at par with lawyers from the private sector; still, their pay hikes have not been accompanied by a corresponding improvement in their overall efficiency. Judges continue to hear cases at snail pace oblivious to the state obligation to finish the trial of cases involving extralegal killings with dispatch.

Finally, there is the citizenry who have either become jaded and hopeless, on one hand; or have completely lost all belief on the rule of law, turning instead to vigilante killing as the preferred means to maintain peace and order. This is prevalent in areas where vigilante killings are more of the norm rather than the exception. Davao City is one such place where ordinary folks have learned not only to accept the death squads. More alarming is the fact that they have become supportive of such groups.

How should P Noy deal with this single most pressing challenge? Well, he can begin by acknowledging that there is in fact a problem. After which, he should redefine his priorities in the justice front from running after tax cheats and smugglers, as he has asked Justice Secretary Leila De Lima to do; to making the investigation, prosecution and punishment of perpetrators of these killings as his absolute priority. Anything short of this would only strengthen the culture of impunity that already exists in our land.

Meanwhile, dear readers : pray for your lives and try to be safe.

Published in: on January 20, 2011 at 9:58 am  Comments (2)  
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Torture


It was not the ideal image to wake-up to. There he was: naked, emaciated and cringing from pain whenever his torturer would pull the rope attached apparently to his sex organ. He was hog-tied like a beast lying on a cold floor. His torturer, on the other hand, was stocky, full of energy, and apparently, god-like in the belief that he had in his hands—literally and figuratively- the decision on whether his victim was to live or die. Only a beast would not be moved by the said image. And yes, being the squeamish person that I am, I could not help but shed a tear or two after seeing that disturbing image.
Perhaps, the only good thing that came out of this image of torture is the public indignation that it created. It was indignation over the fact that these barbaric acts are still happening in this country at this time and age. It was also indignation at the fact that contrary to public perception that torture is practiced in remote areas of the country, here was proof that it is also happening at the heart of the metropolis, even in Tondo, Manila. We probably needed to see that image to remind us that regardless of who occupies Malacañang, torture persists and with impunity at that. The helpless victim, and the brave soul who publicized the video, have reminded us that unless and until we successfully put torturers behind bar, more of us may fall victims to this barbaric and heinous act.

Torture is defined as the infliction of physical, mental, or psychological pain either for the purpose of exacting information such as a confession to the commission of a crime; or as a form of punishment. It has been prohibited since ancient times principally because of the dictates of natural law and humanity, that is, human beings should not be intentionally harmed. Why? Simply because it should not be done to human beings. This explains hence why torture is prohibited in both times of war and in times of peace.

The prohibition and the criminal nature of torture is described as “jus cogens”, or non-derogable. This means that unlike rights such as freedom of expression and freedom of the press which may be derogated upon in some instances, the prohibition on torture is absolute. It cannot be justified on any ground including that of public emergencies or grounds of national security. Moreover, the duty to investigate, prosecute and punish those who may commit torture is itself non-derogable, and further subject of what is known as “erga omnes obligation”. This means that any state, and not just those with material interest, may sue another for the violation of the duty prohibiting the commission of torture.

Furthermore, owing to the normative character behind the prohibition of torture, states which, for any reason, could not investigate, prosecute or punish torturers are also duty-bound to extradite the person of a suspected torturer to another jurisdiction that is able and willing to prosecute and punish him. Corollary to this is the duty of states to refrain from rendering individuals to a jurisdiction that is known to practice this barbaric act.

The Philippines has been a party to the Convention Against Torture for over 25 years already. Sadly, it was only last year when we finally fulfilled our treaty obligation under the same to criminalize torture as a grave offense under our domestic laws. Prior to the passage of RA 9745 which finally criminalized torture as an offense and RA 9851 which also criminalized torture when committed in the context of an armed conflict or in a widespread or systematic manner, torture was only penalized as physical injuries or maltreatment of prisoners. This was condemned rightfully so by human rights advocates because our treaty obligation was to criminalize torture specifically as a grave offense under our domestic law.

The public discussion provoked by the video aired by ABS-CBN on whether the said video of torture would suffice for purposes of criminal prosecution further attests to the lack of understanding of our treaty obligations under the anti-torture convention. In fact, the entirety of our rules on criminal procedure constitutes a breach of our treaty obligation to investigate and prosecute suspected instances of torture whether or not there is a formal complainant against it. This is because under existing rules of the National Prosecution Service, a preliminary investigation into the commission of any crime is pursuant only to the filing of a formal complaint. This is in breach of the treaty because such a complaint should not required. A state is under a positive duty to investigate when there is information that torture was probably committed. This means that authenticated or not, such a video clip is sufficient to trigger our duty to investigate regardless

of whether such would be sufficient to convict anyone in court.

There are pending issues arising from what appears to be differing definitions of torture under RA 9745 and RA 9851. This is on the matter of who may commit torture. Our special law adopted the definition under the anti-torture convention that it could only be committed by state agents. The IHL law, on the other hand, adopts the progressive definition that it can be committed by anyone in the custody of another. This debate, fortunately, does not figure in the controversy stirred by this video clip if only because without a doubt, it was committed in the heart of the City of Manila, an area without an armed conflict, and presumptively by state agents given circumstantial evidence that it was in fact committed in the premises of a Manila police station.

We hope that the identity of the victim who has apparently also become a victim of extralegal killings is soon ascertained. This is a humanitarian concern because his family after all, regardless of who he was in his lifetime, have a right to grieve for his demise and under such painful circumstances at that. More than this, we hope that with no less than two laws now prohibiting torture as grave offenses in our statute books, that torture would soon be a thing of the past. We are hoping that given the promise of P-Noy that he will usher the winds of change, that amongst these changes will be the effective investigation, prosecution and punishment of torturers. Only then could that poor victim in that video, and the many others before him, truly rest in peace.
See video at http://www.abs-cbnnews.com/video/nation/metro-manila/08/17/10/alleged-cop-torture-caught-cell-phone-video”>

Published in: on August 19, 2010 at 12:46 pm  Comments (5)  
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