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RA 9851

After the ratification, what’s next?

August 30 of this year marks the first anniversary of the Philippines ratification of the Rome Statute of the International Criminal Court. The ICC is the first permanent international tribunal created by treaty to prosecute individuals for war crimes, crimes against humanity, genocide and the crime of aggression. Its objective is simple: to ensure that any individual who commits the most serious crimes against the international community is held accountable for his acts.

Our membership in the ICC became even more important when shortly after ratification, our very own Miriam Defensor-Santiago was elected to be a Judge in the Appellate Chamber of the Court. This is a rare opportunity for a Filipino to be elected to an international Tribunal. Prior to her, only Justice Cesar Bengzon, Justice Florentino Feliciano and Ambassador Lilia Bautista have had this honor.

A year later, what comes after our ratification?

Plenty. The most pressing of which is to make sure that the Philippines comply with its obligations under the Rome statute. In this regard, there are two important tasks ahead: the duty to cooperate and the duty to ensure the principle of complementarity.

The duty to cooperate involves instances when the prosecutor- or the Court itself- requests the assistance of the Philippine government in conducting an investigation or in the trial proper of a case before the Court. While idealists like me always emphasize the normative value of supporting a tribunal that seeks to put an end to impunity, we often gloss over the details of how these normative systems will actually function. For instance, should the prosecutor decide and upon authority of the court’s pre-trial chamber to conduct an investigation here, say against the AFP, the MILF or the NPA, by what legal right will he do so? Perhaps the rulings of our Supreme Court in Angara vs Tanada and in the recent case of Magallona vs Executive Secretary could shed some light. In both these cases, the Court ruled that our duty to comply with treaty obligations has the force and effect of law. Therefore, the legal basis for the prosecutor to conduct an investigation or of the Court sitting in the Philippines is by reason of the treaty itself.

But should a law or an amendment to our Constitution be required? Since the power and manner by which our own Prosecutors conduct their preliminary investigation is provided by law, shouldn’t this law be required? Evelyn Serrano of the Coalition for the International Criminal Court pointed out that different state parties have passed so-called cooperation statutes. While conceding that this is in fact the ideal solution, my apprehension though is what if the Prosecutor wants to investigate now that there is still no such law? Does that mean the absence of law will prevent him from conducting his official task? And what about the matter of the Court sitting in Philippines territory? The Constitution is clear: judicial power shall vest in the Supreme Court and on all other inferior courts that may be provided by law. Is a constitutional amendment required to enable the ICC to sit here? Probably not . But certainly, our Supreme Court may have to issue some rule that would enable the ICC to do so.

There too is the matter of having to ratify the separate Convention, the Agreement on the Privileges and Immunities of the International Criminal Court. This will accord the Judges of the court, the Prosecutor and all of its officials such immunities that are necessary to freely discharge their functions without fear of retaliation from a state that wish to accord impunity to any of its nationals. The agreement provides that all officials and employees of the ICC should be accorded functional immunities of the type enjoyed by the United Nations and its specialized agencies.

The duty to cooperate will also compel the Philippines to be world class in such matters as according protection to victims and witnesses. Already, the duty to cooperate will compel us to amend our own Witness Protection Program to provide protection not just to witnesses, but to victims as well. It will also perhaps compel us to recognize that victims of crimes have rights under human rights law, notably, the right to reparations, and are not just mere objects that enable the state to prosecute a crime. Furthermore, I am personally hopeful that our ratification of the Rome statute that recognizes that the duty to provide reparations to victims is a duty of the international community and not just the criminal offenders -will also lead to a change in our local perspective that this duty is one owed only by the accused to be paid at the end of a very long trial.

Anent the duty to enact domestic laws that would implement the principle of complementarity, RA 9851 largely provides for the legal basis for our courts to exercise primary jurisdiction for crimes cognizable by the ICC. But as Dean Merlin Magallona has said, there is still that substantial challenge of amending further our domestic law to ensure that identical crimes are punished under our domestic law and by the ICC.

A year later, it is clear that we have a distance to go before full compliance with our state obligations under the Rome Statute. This notwithstanding, we have certainly beaten the rest of Asia since at least, we have already ratified the Statute. I am confident that the rest will follow soon.

Living with Terrorism

Living with terrorism
I can only be sympathetic to President Aquino’s complaint that the travel advisories issued by at least nine foreign governments against travel to the Philippines, including Metro-Manila, lack factual basis.

To begin with, existing United Nations General Assembly and Security Council Resolutions obligate states to cooperate with each other in the fight against terrorism. This means sharing information about possible terrorist attacks. Contrary hence to the remark of Senate President Juan Ponce Enrile, the diplomatic missions of states that issued the advisories have the positive obligation to share with our authorities their intelligence information relating to possible terrorist attacks against the Philippines. Obviously, such cooperation is made even more necessary because of the sad reality that despite billions that we have appropriated for intelligence gathering, we are still the last to know about possible terrorist threats. Oftentimes, there is complete failure of intelligence. How many times have we woken up to news about terrorist attacks without being warned of an impending attack? This was what happened when the LRT was bombed on Rizal day several years back. This is also what happened to a series of kidnappings involving children and foreigners by the terrorist group, the Abu Sayaff.

But it is not just in intelligence, or the lack thereof, that we suffer a disability. It is also the case that we have created our own problems with terrorism. The Abu Sayaff is a concrete example. Veteran journalist Marites Vitug wrote in her book “Under the Crescent Moon” that this notorious terrorist group was in fact a creation of our very own Armed Forces of the Philippines.

According to Vitug, the group, whose name is literally translated as the “shining path”, was formed by the military to train Filipino Muslims fight the Russians when the latter occupied Afghanistan. They apparently were intended to be an elite group of “jihads” who simply had nothing else to do after their brief engagement in Central Asia. Maria Ressa, on the other hand, also asserted in her book , “Seeds of Terror” that the Arroyo administration knew that the Jemiah Islamiah (JI) and other notorious terrorist groups were training in Mindanao. Yet nothing was done to stop them. In legal parlance, this inaction is tantamount to acquiescence, if not complicity to terrorism. If what was written by these respected journalists is true, this may explain why foreign governments have not bothered sharing their intelligence with our own authorities: a belief that we are perhaps both complacent and complicit to terrorism.

Add to this what Philip Alston, the UN Special Rapporteur on Extralegal Killings, said was the root cause of impunity in the Philippines: the lack of political will to punish the perpetrators of international crimes in the country. What we thus have is a country that created its own terrorists, allowed its territory to be used to train these terrorists, and a legal system that would not work against terrorists.

To be fair, these unkind words about the lack of resolve to deal with impunity including terrorism refer to a sin of the Arroyo administration. Perhaps P-Noy’s administration would finally develop the will to deal with both impunity and terrorism. It helps that the President has at least reposed his trust on his Executive Secretary, Paquito “Jojo” Ochoa, to head the Anti-terrorism Council. This means that his most trusted alter ego will lead the fight against terrorism. Perhaps this will help build the resolve and facilitate preemptive responses against imminent terrorist threats.

To be fair again, and this will probably be my kindest words for the past dispensation, P-Noy’s fight against terrorism will be facilitated by recent congressional enactments, the Human Security Act and RA 9851, the 2009 International Humanitarian Law Act. While I have been critical of the HSA, as in fact, I am counsel to the only remaining challenge to the constitutionality of the law—a petition filed by my class in Constitutional Law 2 three years ago that is still pending in the Quezon City Regional Trial Court—the fact that authorities now have extraordinary powers to intercept and record communications, freeze bank deposits, classify organizations as being terrorist, and even the power to resort to indefinite pre-trial detention are the stuff that rightists and fascists wanted, nay demanded, as effective tools against terrorism. Why these powers have not been resorted to by law enforcement in dealing with real terrorists is a mystery. What has been clear though is that they have opted to use these extraordinary powers instead as tools in its on-going anti- insurgency campaign. The one and only person charged for “terrorism” is an aeta accused of being a fighter for the New Peoples Army.

The 2009 IHL Act on the other hand is an effective and ideal tool against “terrorist attacks that seek to spread terror and fear in the civilian population” in times of armed conflicts and when committed in a widespread or systematic manner. I consider the enactment of RA 9851 as the most effective tool against modern day terrorism since it can be used to prosecute all attacks against civilian populations. We can only hope that under P-Noy, the law will be implemented to the letter to ensure maximum protection to the lives and property of innocent civilians.

Meanwhile, we Filipinos can learn a lesson or two from countries that have had more experience in dealing with terrorist attacks, such as the United Kingdom. In the year that I lived as a student in London, I noticed the tools that the Brits used in fighting terrorism: omnipresent surveillance cameras, effective law enforcement agents who are both competent and visible, an efficient prosecution service that is able to convict, and a judiciary that is beyond reproach. Above all, there is a community that is both vigilant against terrorism and with the resolve to deny terrorists what they truly want: to be in a state of terror and panic by leaving their lives in the most normal manner that they can. In the shadow of terrorism, let’s live and let live!


Erratum: In my last column, I omitted legal luminary Pete Maniego, P-Noy’s Chairman of the National Renewable Energy Board, from the list of students responsible for the comfort women’s Petition, Vinuya v. Exceuitve Secretary. So sorry, Pete!