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.


As we commemorate TODAY the third year anniversary of the ghastly Ampatuan massacre, let me reiterate my proposals to hasten the prosecution of the so-called trial of the century:

1.    For Interior and Local Government Secretary Mar Roxas- Resolve with dispatch our pending administrative cases against 62 policemen who were also charged criminally for the massacre. We hope Secretary Roxas will fire all 62 of them from the service.

2.    For Justice Secretary Leila De Lima- After all 62 policemen have been dismissed from the service, evaluate if these policemen should be dropped from the roster of the accused. Like a broken record, I will say it again: Even the Nuremberg Tribunal prosecuted only 14 of the highest-ranking Nazis for the worse case of genocide in this century. This is because prosecuting 196 accused, the number charged for the Ampatuan massacre, is a sure formula for impunity.  This will mean that the prosecution will never end.

3.    For Judge Jocelyn Solis-Reyes (covered by a pending motion)- To approve our proposed “First in –First Out” proposal where the introduction of both prosecution and defense evidence against some of the accused, i.e. Unsay Ampatuan, should be allowed.

4. For the Supreme Court, to designate a second Special Court to try the 300 or so motions filed by the parties so that Judge Solis-Reyes can proceed with just reception of evidence.

4.    For the nation — Damn our country’s pillars of the criminal justice system for failing to accord justice to the victims of the massacre even after three years, and vow that this will never happen again.

The nerve of Hun Sen

The nerve of Cambodian Prime Minister Hun Sen to say that the Association of Southeast Asian Nations has opted not to internationalize the West Philippine Sea dispute! The group in fact approved no such resolution.  If at all, Asean has failed to make any stand on the matter. But this is not to say that it has opted for what China wants: bilateral negotiations.

I have more than enough experience dealing with Chinese media and officials to know what they mean when they say bilateral relations: all tensions will disappear if and when the Philippines admit that it has no title to both the Panatag shoal and the Kalayaan group of Islands. Yes, it’s not  enough that we are no match to China either militarily, politically, or economically. Bilateral negotiations mean that surrender is the only way to go for the Philippines.

It was hence but proper for President Noynoy Aquino to uphold the Philippine interest even at the risk of appearing undiplomatic. While Hun Sen was saying falsities, our President bravely stood up and said: “for the record, the Asean route is to the only route for us.” This was immediately after Hun Sen declared that Asean had agreed to negotiate with China on these disputes.

Even if China genuinely wants bilateral talks to peacefully end the West Philippine Sea disputes, why should it involve only two countries? Certainly, Kalayaan is claimed by at least five countries. What happens to the other claimants? And if China is able to show that its claim over the waters in the triangular area between Macclesfield Bank, Panatag, and the Kalayaan group of islands is legal, has not the international community acquired an interest in this dispute because these waters are also one of the world’s busiest shipping routes? Certainly, this fact alone, together with concerns over pollution in this busy route, should warrant a multilateral approach to this dispute.

The fact that Hun Sen was downright  pro-China should not come as a surprise. He is  one of the remaining despots in the world largely because of his China connection. This despite being part of the Pol Pot regime that committed genocide that is now being prosecuted by the Extraordinary Chambers of Cambodia. Certainly, Hun Sen was not only wrong in what he was saying when he was interrupted by President Aquino. He is also no match to our PNoy in terms of moral stature.

In any case, certainly, internationalizing the dispute should include the option to bring the dispute, at least Panatag, to the compulsory and binding dispute settlement procedure of the UNCLOS. Since, both China and the Philippines have ratified this Convention, the dispute procedure would be mandatory on issues involving any issue of interpretation or application of the Convention. As I have said many times in the past, despite the ill-advised 2009 Archipelagic Baselines Law that appended both the Kalayaan group and Panatag to our territory under the so-called “regime of islands”, the issue of whether Panatag is an island, even if only five very small rocks are permanently above water, or a “rock”, or “geographic formations”, which as held by the International Court of justice pertains to the state that has title or rights over the waters surrounding them, are all issues of interpretation which should be resolved through binding arbitration under UNCLOS. This issue may also be the subject of preliminary measures by the International Tribunal on the Law of the Seas.



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