9 months ago, at least 62 policemen participated in the worse massacre in Philippines history: the Maguindanao massacre. Then last week, at least 9 of them, although their numbers should swell as more evidence are uncovered, were also involved in a torture witnessed in every living room in the country courtesy of a cell phone video broadcasted by one of the country’s television giants. Two days ago, there was yet another action packed event- only like the torture- it was not a production of a television company. It was for real, and yes, it involved again policemen- one with gripes, and many others who were simply incompetent. With policemen like this, who will protect us?

I do confess having missed much of action at Luneta as it was televised live by Philippine media organizations. . Thanks to the digital age though, I learned about the hostage taking incident almost as soon as it happened through twitter on my blackberry. While checking in at T-3 headed for Bacolod City, I did manage to read further accounts about the incident on the Internet in my blackberry. I boarded my flight thinking that like a similar “bus jacking” incident in Manila that involved a school bus, this too would pass since apparently, the hostage taker has agreed to wait it out for authorities to heed his demand for reinstatement into the service. I arrived in my hotel in Bacolod at about 5PM and was pleased to have seen on cable that as I predicted, both hostage taker and the police have agreed to wait it out. I then went to my dinner meeting confident that although we would be embarrassed tremendously because the incident involved foreigners, it would nonetheless come to pass.

At about 7PM and well into my meeting, I received a tweet that shooting had commenced. Subsequent tweets erroneously reported that all hostages and the gunmen have been killed. I announced this in my meeting and the responses ranged from shock to anger, and even to despair. Many thought that this was the last thing that the country needed even with a brand new reform oriented leader. There was an overwhelming consensus amongst Negrenses that PNoy would find it very difficult to recover from this incident.

On hindsight, two factors made the incident a real tragedy. First, there was the obvious incompetence of the policemen who decided to arrest the brother of the hostage taker in full view of the cameras. While both the police and media may not have known it, there apparently was a television on board the bus that enabled the hostage taker to know what was happening in his environment. Certainly, the more prudent thing to do should have been to quietly apprehend the brother assuming they had basis in apprehending him in the first place. But no, they had to make a spectacle out of it.

That was not the only evidence of incompetence. By 7PM, the police had already decided to assault the bus as in fact; they came near it replete with dramatic footages of one of them seeking to gain entry into the bus forcibly. Strangely, after using a giant mallet to break open the door of the bus, the police froze and waited! Meanwhile, the lone gunman has violently responded and killed at least 9 of his victims. It took a whole hour for the police to use teargas and bring the hostage taker down.

The point to underscore is that this incompetence on the part of our security force is not isolated. It was this same incompetence that led 62 of them to be involved in the Maguindanao massacre and at least 9 of them to be involved in that highly publicized case of torture. The question is: why such incompetence?

Perhaps a clue may be had in the recruitment process that is being implemented in the PNP. For instance, in Maguindanao before the massacre, PNP insiders told me that recruitment into the ARMM PNP was on the basis of “3 for1”. That meant 3 recruits for 1 million pesos. In other words, those desirous of entering the PNP had to buy their position. This is also apparently the case in other governmental agencies such as the Bureau of Immigration, the Bureau of Internal Revenue and the Bureau of Customs. With public servants having bought their appointments, little wonder that they would give priority to return on their investments over discharge of public service. This would explain why incompetence in the PNP is more of the rule rather than the exception.

The second factor that made Luneta such a tragedy was the manner by which media handled the situation. Make no mistake about it: I have always been an advocate of freedom of expression and of free press primarily because I have been tactless and possess a big mouth. But when you have the media broadcasting for the hostage taker everything happening around him, even the arrest of his brother, in real time, which in turn provoked him to be violent after waiting it out for 11 hours; one cannot help but conclude that police incompetence notwithstanding, the media should accept part of the blame for this tragedy.

Again to be absolutely clear, I am not in favor of any act of the state restricting the activities of the media. That to me would be tantamount to prior restraint and hence, unconstitutional. What I am in favor of is the exercise of voluntary restraint on the part of the media, particularly in incidents such as this, where their coverage could literally mean the difference between life and death.

To be fair to the media, the public at large too is partly to be blamed. The “usisero” syndrome is such a Filipino trait that one can understand the media’s desire pander to the gallery. Perhaps, this could be one of the lessons learned from this tragedy. That in our desire to be at the center of things that are happening, our curiosity could contribute to the death of others. #30#

Third author plagiarized by SC justice complains (from Newsbreak)

Tams – Letter to Supreme CourtMANILA, Philippines—The third of the foreign legal authorities whose works were plagiarized by Supreme Court Justice Mariano del Castillo has written the tribunal to officially express his “concern.”

In a letter addressed to the court en banc, Christian J. Tams, a professor of international law at the University of Glasgow, expressed concern over “the use of one of my publications” in the Vinuya case (GR No. 162230).

In Vinuya et al vs the Executive Secretary, the Filipino women who were turned into sex slaves by Japanese soldiers during World War II wanted to force the Philippine government to demand from Japan an apology and compensation for the atrocities. The Supreme Court denied their petition.

In denying the petition of the Filipino “comfort women,” the Supreme Court, in a decision written by Justice Del Castillo, used arguments that, it turned out, were copied without attribution from the works of three foreign legal experts.

Newsbreak reported that Del Castillo lifted quotes and footnotes from:

“A Fiduciary Theory of Jus Cogens” by Ivan Criddle and Evan Fox-Descent, published last year in the Yale Journal of International Law.
“Breaking the Silence on Rape as an International Crime” by Mark Ellis, published 2006 in the Case Western Reserve Journal of International Law.
“Enforcing Erga Omnes Obligations in International Law” by Christian Tams, published in 2005.
Del Castillo plagiarized 31 parts of Criddle and Fox-Descent’s article; 24 of Ellis’s; and 4 of Tams’s.

Criddle and Ellis had written the Philippine Supreme Court separately over the incident.

In his letter dated August 18, Tams said sentences on page 30 of the decision were “taken almost word by word from the introductory chapter of my book, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005).”

Tams noted that “there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.”

The letter has an annex showing a comparison of the passages from Tams’ book and the Supreme Court’s decision, which Newsbreak published earlier.

“I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law,” Tams continued.

“With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support—as it seemingly has—the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s judgment has drawn on scholarly work without properly acknowledging it,” the professor continued.

Tams ended his letter by saying he would “appreciate a prompt response” from the court on the matter.

This act of plagiarism has been strongly criticized by professor and students of law in the Philippines. Some quarters have even called on Del Castillo to resign.

The Supreme Court has formed an ethics committee to investigate the matter. (Newsbreak)


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”>

International Humanitarian Law on IHL Day

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