The Massacre Victims of Luneta and Maguindanao


The victims of the Luneta massacre —Chinese tourists from Hong Kong —and the victims of the Maguindanao massacre have much in common. Both were victims of multiple murders at the hands of state agents. The Luneta Hong tourists died in the hands of Rolando Mendoza and the inept PNP members, many of whom also shot and killed them. The Maguindanao massacre victims were killed by suspects, all of whom are government agents—from elected officials to state multipliers such as the civilan volunteer organizations (CVOs) and the Citizen Armed Force Geographical Unit (CAFGUs).

Both sets of victims have been waiting for a long time for justice. In the case of the Luneta hostages, their plight is slightly worse off because no one at all has been charged for the killings. The Maguindanao victims, on the other hand, stand to wait hundred sof years for justice given that four years later, more than 80 of the suspected perpetrators still have to be arrested.

Further, while all of them are victims of violations of the right to life, not one of them has received satisfaction in the form of an apology from the state. Neither has any of them received compensation from the state.

President Aquino and his cohorts have offered identical reasons why the Philippine government has not and will not apologize nor pay compensation to them. In the case of the Luneta victims, its is because Mendoza—not Mendoza – was solely at fault. In the case of the Maguinadanao massacre, it is because it was former President Gloria Arroyo and her allies at fault, and not the Aquino administration.

The President’s refusal to both apologize and pay compensation to all victims of the violation of the right to life is a continuing breach of international human rights law. Under the articles of state responsibility, a state incurs responsibility for an internationally wrongful act when it breaches a norm of international law and when it is committed by a person whose acts may be attributable to the state. Both of these elements are found in the Luneta and the Maguindanao massacres.

Under the International Covenant on Civil and Political Rights, states have the duty to protect and promote, among others, the right to life of their people. This is a guarantee against the arbitrary taking of life. But since the Philippines no longer has the death penalty, all killings are hence unlawful in the Philippines. The only question to invoke international responsibility for these killings is this: Who perpetrated them? If it is through a state agent or a private person acting upon orders or control of the state, then the state will be in breach of the obligation anent the right to life.

It is crystal clear that the killers in both massacres are state agents. Mendoza was with the PNP, albeit then suspended, while the rest of the bullets were “friendly fire” from other PNP officers. Meanwhile, the fiasco that led to the firefight, including the decision not to take down Mendoza earlier and to use force belatedly were formulated by other state agents. For this decision, a committee headed by Justice Secretary Leila De Lima recommended that criminal charges be filed against those who formulated the botched policy. Those recommended to be charged included then-Mayor Alfredo Lim, then-PNP General Jesus Versoza, and then-DILG Undersecretary Rico Puno. Strangely enough, until today, none of these individuals have been charged for anything.

In the case of the Maguindanao massacre, there can be no doubt that while the criminal cases against the suspected murderers are still on-going, all of those charged for the multiple murder are all state agents. There were two governors: of ARMMM and Maguindanao, mayors, vice-mayors, military men, and members again of the PNP. There too were CVOs and CAFGUs whose members are auxiliary members of the Armed Forces of the Philippines as force multipliers. In fact, although these paramilitary groups consist of members of a private army, they were nonetheless conferred the status of state agents by reason of an Executive Order issued by Mrs. Arroyo which, until now, remains in force.

But where do the victims differ?

Their nationalities. And boy, this makes a hell of a big difference.

The Luneta massacre victims are of course Hong Kong residents and nationals of China. The Maguindanao massacre victims are all Filipinos. This means that while the Luneta victims can expect their rights to be espoused by their state, the Maguindanao massacre victims cannot look forward to any support from their own state. True, the latter’s criminal cases have been prosecuted in the name of the Republic by public prosecutors. Big deal. Every single one of the victims has their own private prosecutors anyway. This is evidence that the victims have not relied on the state alone even for the conviction of the suspects for murder. Moreover, given the proximity of the accused to the then-administration of PGMA, many of them believe that even the manner by which the prosecution was initiated: against 197 accused and hence, guaranteed to take forever, was a means to ensure impunity for the very influential family accused of committing the murders. But meanwhile, anent their claim for satisfaction in the form of apology and compensation, the Maguindanao victims, unlike their Hong Kong counterparts, could only fend for themselves since it is their own state that has decided against issuing to them an apology and paying them compensation.

Meanwhile, the fact that Hong Kong has already taken steps to espouse the claim of their nationals against the Philippine government can only be the source of envy for the victims of the Maguindanao massacre. For while their own government has denied them their rights as victims, at least their Hong Kong counterparts can still hope to get satisfaction and compensation. Perhaps there is solace for them in this thought.

Some clearly are luckier then others. Sad.

P Noy: Why have thou forsaken us?


maguindanao1I 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?”

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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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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.

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.

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.