Ampatuan victims versus Arroyo



At 2:15 yesterday afternoon, 15 victims of the Ampatuan massacre filed a P15-million damage suit versus Gloria Macapagal-Arroyo. The victims had three causes of action: one, aiding and abetting the Ampatuans for the massacre; two, violation of their constitutional rights (the rights to life and freedom of the press of the victims); and three, command responsibility.

Aiding and abetting as a means of acquiring liability was first recognized in the Nuremberg tribunal. The very first individuals found guilty for it were the officers and directors of a company that manufactured the gas used in the notorious gas chambers used by the Nazis in pursuit of their final solution: the annihilation of the Jews. The officers and directors of the company may not have directly killed the Jews themselves, but the genocide could not have happened without the chemicals which they supplied. Yet another conviction for aiding and abetting was in a case decided by the International Tribunal for the former Yugoslavia. There, a man was physically present when another was torturing a detainee. The court ruled that even if the bystander did not personally perform any torturous act, he is still liable because he did nothing to stop the criminal act.


Why aiding and abetting against Arroyo?


The victims argued that she is liable for aiding and abetting because she legitimized the private army of the Ampatuans through an executive order that absorbed them as “force multipliers” of the Armed Forces of the Philippines. The victims also argued that she supplied these members of the private army with the arms and the bullets used to kill the victims of the massacre. Finally, she was responsible for the sense of impunity by which the massacre was committed precisely because she endowed the clan with tremendous influence. This arose from the peculiar role that the Ampatuans played for Arroyo in Maguindanao that is now the subject of prosecution for electoral sabotage. In fact, it appears that Arroyo stole the presidency from Fernando Poe, Jr. largely through the Ampatuan machinery in the province.


The cause of action based on command responsibility is a principle borrowed from International Law. When Yamashita, the “tiger of the Malayas” was being prosecuted by Philippine authorities for war crimes at the end of the war, he invoked the defense that he did not order the crimes to be committed and that he did not even know that the crimes were being committed. Here, the Philippine Supreme Court held that as a commander, Yamashita was duty bound to adopt a sound system to ensure that his troops were in compliance with the law all the time. On appeal to the US Supreme Court, the court formulated the principle as it stands today: commanders —or Presidents—are responsible for the acts of their subordinates under their control when they knew or should have known that the crimes were about to be committed and they did nothing to prevent them.


The contention of the widows is that Arroyo knew the kind of violence that the Ampatuan clan was capable of. In fact, her Cabinet members warned Toto Mangudadatu about their violent nature. Moreover, the blocking force that intercepted the ill-fated convoy was in place as early as November 19, 2009 and yet, Arroyo, as commander-in-chief, did nothing to prevent the massacre from happening.


We do acknowledge that these are tough allegations and causes of action to prove. But what do the victims have to lose? Two years after the massacre, only 93 of 197 accused have been arrested, and only 64 of the accused have been arraigned. At this pace, it would take more than double the lifetimes of the victims before justice can be accorded them. Meanwhile, we cannot sit idly by and merely tell the victims how truly unfortunate they are. I have always maintained -as a lawyer and a law professor- that there is always an effective legal remedy for those whose legal rights have been violated. For now, the civil suit appears to be their only effective and speedy, or at least, their speediest remedy.


On the occasion  of the second anniversary of the massacre, Malacañang spokespersons should go beyond saying that President Benigno Aquino III will merely ensure that the public prosecutors are not the reason for the delay in the prosecution of the case. It is still the task of the Executive to apprehend those are still at large so that witnesses, whose lives are already in danger, should not be made to repeat their testimonies over and over again to identify yet another accused arraigned or arrested. Malacañang should know too that the Pareno study funded by the Asia Foundation has already concluded that it is primarily because of the lapses within the executive branch that is responsible for the impunity accorded to killers in our society. Certainly, it is the burden of the Executive to reform the criminal justice system to ensure that victims of the massacre, and all other victims of extralegal killings: the Ortegas, Evangelistas, Barramedas etc., are all accorded their rights to an effective and speedy remedy under local laws and the right to receive compensation.


The tendency of the President’s spokespersons to pass the buck will only exacerbate rather than end the culture of impunity.


What next GMA and P Noy?

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.

Ode to Dean Maggi’s new baby

I was supposed to read this reflection at the launching of Dean Merlin Magallona’s new book at Malcolm Hall last Wednesday, but I missed the affair because of an urgent business that had to be done.

The new “baby” is part of the UP Law Centennial Textbook project.

In these days of Google, Wikipedia and that quintessential Steve Jobs legacy, the Ipad, an ink-and-paper Dictionary on Contemporary International Law may sound anachronistic.  On a philosophical level, we are reminded by what Derrida said of definitions—the stuff of which the dictionary is made— that all we get is the constant deferral of meaning.  On the level of pragmatics, we do have a sense of Derrida’s worry about the temporality of meaning, given that international law, especially over the last two decades, has been on a constant flux.

Dictionaries in general, it seems to me, are really a guide to the tug-of-war  between time and infinity, to borrow from Jorge Luis Borges, where ideas, or the key words, of a given epoch are frozen on a page for posterity’s sake.

Nevertheless, the Argentinian novelist himself also said: “It is venturesome to think that a coordination of words (philosophies are nothing more than that) can resemble the universe very much. It is also venturesome to think that of all these illustrious coordinations, one of them—at least in an infinitesimal way—does not resemble the universe a bit more than the others.”

But here Dean Magallona has ventured to coordinate words to give meaning to words. Not only that, his half a century or so of engagement with international law shows his latest work to be a set of illustrious coordination of words that at least gives us some semblance, where it is now, of the known universe of international law, or at least, of what is relevant to us from that known universe.

We can be sure that the erudition that went into this project is a universe better than what we can find in Wikipedia. That, I think is a good measure of the continuing relevance of a Dictionary of Contemporary International Law.  In other words, in this age of the democratization of mediocrity, there is still some room for the work of a serious scholar.

Besides, as far as I know, in our part of the world, Dean Magallona’s book is the first of its kind.  Ordinarily, the phrase “the first of its kind” does not really tell us much, but string the phrase with the good Dean’s name and you can be sure it means sui generis.

In any dictionary project, the editor or author is torn between two aims: the encyclopaedic and the abbreviated.  Students will be familiar with the classic Oxford University Press’s Parry and Grant Encyclopaedic Dictionary of International Law, which takes the first approach. Now in its third edition, it covers 2,500 entries with references for further research on cases, treaties, journal articles, and Web sites.  As the name implies, the dictionary surveys every known area of international law, and this one-volume red book’s latest edition is the work of two scholars, no doubt aided by an army of research assistants.

Dean Magallona’s aim is more modest, but he covers the essential grounds, with entries dealing only with multi-lateral conventions and decisions of international tribunals.

In a country where scholarship in international law is notoriously uneven, a desktop reference like this will come in handy for lawyers, students and even for the members of our diplomatic corps.  We’ve been taking international law for granted that we have not seen the need for it.

In a way, our parochialism could be a function of a societal myopia induced by the kind of problems our citizens face from day to day. International law is a place in heaven and here we are all cooped up in the sorriest corner of Dante’s Inferno. So our law schools continue to subsist in teaching students an international law that is neither here nor there.

But there is hope. We are not so insulated now from the rest of the world as before. Even under repressive conditions, political hegemony can only do so much to plug our porous electronic borders. Twitter, Facebook and Youtube make it possible for our citizens to know of fast-evolving events elsewhere that have big implications on how we ourselves look at our own problems of governance.

There is also what functional sociologists may call the “latent effect” of cheaper travel across states, regions and continents.  In the ASEAN itself, budget airlines have made it possible for ordinary Filipinos to spend holidays in neighboring countries.

They are able to see for themselves how the rule of law is upheld or otherwise discounted in other countries.  Foreign travel allows them a better assessment of where their own country stands in terms of affording its citizens freedoms and privileges.  So, other than experiencing Lawrence Durell’s “spirit of place”,  they also see how international law, at least on a regional level, may help promote the same freedoms and privileges across the board.

Moreover, these days, we now have to turn to international law to better understand the way government works out its understanding of our citizen’s constitutional rights.

There is now a keener sense of inevitability than before in the interlacements between the national and the international.

Perhaps, in the future, the Dictionary of Contemporary International Law can be expanded to include other sources of international law. What is important is that Dean Magallona’s dictionary has laid the groundwork – and it is definitely an excellent foundation for any encyclopaedic work.

With more resources, the work can be expanded. That is the challenge to the next generation of scholars and students of international law from the premiere law school of the land.



We will pursue GMA wherever she goes — Roque

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Arroyo’s rights

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Danke, Germany!

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