Ampatuan victims vs. Arroyo

By H. Harry L. Roque, Jr.

(The article below first appeared yesterday in my column View from Malcolm Hall  for the Manila Standard Today.  You may also  read in my main blog.

At 2:15 Tuesday 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.

Let us not forget

By  Romel Regalado Bagares

We reproduce below today’s editorial of the Philippine Daily Inquirer on the second anniversary of the Maguindanao Massacre.

The second anniversary of the infamous Maguindanao massacre was marked yesterday on a pessimistic note and with diminished hope, the multiple-murder case against members of the powerful Ampatuan clan and their minions not having moved beyond the prosecution’s presentation of witnesses. The families of the victims – the formal count is 57, with the remains of the 58th yet to be found – are necessarily despondent, gripped by grief, bogged down in frustration over the glacial pace of the case, and, as a result of the death of loved one and/or primary breadwinner, hard put to get on with their lives or even to make ends meet.

Two years after the grisly slaughter that shocked even the jaded around the world, the enormousness of the task ahead remains. Only 72 of the prosecution’s at least 300 witnesses have been presented. As many as 103 of the 196 suspects are still at large (and “roaming around” in Cotabato City, Romel Bagares, a lawyer for the families, said in a TV interview). Of the 93 in custody, 29 have yet to be arraigned, among them Zaldy Ampatuan, a former governor of the Autonomous Region in Muslim Mindanao. Of the 64 who have been arraigned, 50 have submitted petitions for bail, adding to the weighty load saddling the court of Judge Jocelyn Solis Reyes.

If the numbers are daunting, imagine the difficulties (not only logistics-wise) that have arisen from transporting witnesses to the trial venue at Camp Bagong Diwa in Bicutan, Taguig City, from Mindanao, and back. Imagine as well the travails of the families thrust by the massacre into a life of penury, of women in the twilight of their lives suddenly called upon to muster not only the wherewithal but also the strength (both physical and not) to bring up orphaned grandchildren. Imagine finally the lingering sorrow of the survivors, including a child unable to comprehend the disappearance of her mother from her life and now exhibiting the crippling effects of the beloved’s absence.

But the law appears blind to these things, not even to a daughter’s enduring desolation over the loss of a father who took her and her siblings to and from school, helped them with their homework, and bought them toys. There is no indication that accountability for the Nov. 23, 2009, murders – a study in “barbarism,” according to a cable from the US Embassy in Manila released by Wikileaks – will be pinpointed in the near future. A defense lawyer quoted in an Inquirer report said that he and his colleagues expected the trial to plod on for 18 years, and that he himself intended to present no less than 325 witnesses for his client. (The halfway attentive observer would find the remark laughable if it were not so odious, as odious as the unnamed lawyer’s claim that the case – from eyewitness accounts, a horrendous occurrence involving the murder in Ampatuan, Maguindanao, of 57 people among whom were 32 journalists and media workers, the vehicles that carried some of them found in the same pit, a backhoe bearing marks of the local government, spent shells from high-powered firearms –should not be prejudged.)

Last Tuesday, the next of kin of 15 of the victims filed a P15-million civil suit against Pampanga Rep. Gloria Macapagal-Arroyo, who was president at the time of the massacre, and whose patronage of the Ampatuans allowed them to rise to their position of power and influence. More than a bid for legal relief – the damages are a pittance – it is an act affirming the correctness of their search for justice in the face of great odds.

And the odds of overcoming the climate of impunity loom ever larger with the unabated killing of journalists. When he took power in 2010, President Aquino promised accountability for murderers, crooks and others who have committed crimes against the people. But the records show that since the Maguindanao massacre, six journalists have been slain (and scores of human rights workers, political activists, labor leaders and others have been abducted, tortured and killed). The prevailing climate has likewise proved inhospitable for journalists to freely exercise their profession, specially those in the rural areas where crime occurs as much in the light of day as in the dark of night.

But despite diminished hope, it is crucial to always remember, to always speak about, the fallen and what was done to them. It would be treachery to forget. [emphasis supplied]

Here’s also a link to a perfectly  reasonable proposal  by Prof. Harry L. Roque, Jr. on how the massacre trial may be speeded up.

Declare Zaldy Ampatuan’s Exclusion from Witness Protection Program

by Harry L. Roque, Jr. and Romel Regalado Bagares

Early this afternoon, we accompanied some of our clients — loved ones of some of the victims of the November 23,
2009 Maguindanao Massacre — to personally deliver a letter to Justice Secretary Leila De Lima, through her director for the department’s Witness Protection Program (WPP), Atty. Martin Meñes.  In that letter, we asked the Department of Justice to make a formal declaration that it has finally excluded former ARMM governor Zaldy Ampatuan from the WPP in connection with his application to be admitted as a state witness for the government’s electoral sabotage case against Mrs. Gloria Macapagal-Arroyo.  Tomorrow, on the eve of the 2nd year anniversary of the world’s worst attack on press freedom in known history, we will file a damage suit against Mrs. Macapagal-Arroyo at 1:30 pm. with the Quezon City Regional Trial Court for her culpability as chief executive in the massacre. Meanwhile, the contents of the letter state:

We are loved ones of some of the victims who perished in the Nov. 23, 2009 Maguindanao Massacre.

As we witness the unfolding drama of the arrest of Mrs. Gloria Macapagal-Arroyo for electoral sabotage, we cannot help but think of how the Maguindanao massacre would not have happened without her patronage of the murderous members of the Ampatuan clan.

The massacre is intimately connected to the electoral frauds the Arroyo administration has perpetrated with the help of the Ampatuans.

The patronage politics cultivated by Mrs. Macapagal-Arroyo in her dealings in the Ampatuans is one of the root causes of impunity in Maguindanao.

She had emboldened the already ruthless political clan to run things as they saw fit in their political bailiwick. They thought none of murdering 58 people – including 32 journalists and media workers – because Mrs. Macapagal-Arroyo owed it to them to shield them from prosecution.

After all, without their help, she would not have been reelected to office and at least one administration senatorial candidate – Juan Miguel “Migz” Zubiri – would not have made it to the Senate.

We write because we want to be reassured that the Department of Justice (DOJ)  is firm in its position that there is no need for the testimony of Zaldy Ampatuan, one of the architects of the massacre, in the electoral sabotage case against Mrs. Macapagal-Arroyo.

We know that you above all find this proposal advanced by Zaldy Ampatuan’s camp  morally reprehensible.  While it may afford  the present government some measure of political expediency,  it violates the very vow it made to be a government that knows nothing but the straight path –  a high moral ground in which unprincipled compromises such as the one Zaldy Ampatuan seeks for himself should have no place.

In the first place, what he has to offer is nothing that other witnesses who had come out in public cannot provide.  We have seen the parade of witnesses in the electoral fraud case made by the Justice Department  and we are convinced there is no need for yet another witness who will testify on the same points as the others.

We saw on television your good office’s presentation of at least 16 poll fraud operators who all claimed to have cheated for the then administration’s Team Unity senatorial candidates to ensure a 12-0 vote, blanking out the opposition candidates.

One of them, provincial administrator Norie Unas, who served with the Ampatuans from 2001 to 2009, has executed a sworn statement to the effect that his former bosses led by former Maguindanao Gov. Andal Ampatuan Sr. were personally directed by President Arroyo to carry out the cheating.

In his sworn statement, Unas stated that in a dinner meeting at the Malacañang Palace, he personally heard Arroyo instruct Andal Sr. to ensure that her administration bets prevail in the elections.

He also tagged Maguindanao election supervisor Lintang Bedol as a key personality in the fraud.

In that press conference you yourself stated your conviction that Unas’ testimony is enough to directly implicate Mrs. Gloria Macapagal-Arroyo in the electoral sabotage case.

If that is so, we wish to be assured that there is no room for Zaldy Ampatuan in the government’s witness protection program in connection with the electoral sabotage case. His statement released to media regarding the same case is bereft of details showing personal knowledge on his part of who masterminded it and who carried it out.

All he can say are mere generalities of little evidentiary value. In the first place, all he has  presented is an unsigned statement that links former President Gloria Macapagal-Arroyo to cheating in Maguindanao during the 2004 presidential election and the 2007 senatorial elections.

It is mere hearsay as what he claims is that his father Andal Ampatuan Sr. had relayed to him the instructions he received from the First Gentleman, Mike Arroyo during a series of meetings in January or February 2007 in Makati. These instructions were purportedly about manipulating the results of the 2007 senatorial elections.  In other words, he had no personal knowledge of these transactions.

But for Zaldy Ampatuan, admission into the witness protection program is his sure vehicle for a life spent out of jail because under the law, the government is duty-bound to provide him safe haven for the rest of his life.

Thus, even if he is convicted by the court trying the multiple murder cases filed against him in connection with the Maguindanao Massacre, he will enjoy the benefit of being relocated to a new life outside bars, as provided for under the law.

And lest we forget, key members of the the Ampatuan clan  – the former ARMM governor included – are also facing plunder and graft and corruption charges before the Office of the Ombudsman.  In fact, he is being accused of masterminding the raid of the coffers of the Autonomous Region in Muslim Mindanao, to the tune of about P2 billion program.

If it admits him into the witness protection program, the DOJ would be saying the government is also waiving its right to prosecute and bring him to justice in all these other cases. The costs of giving him immunity far outweighs the benefits as it leaves the citizens, not to mention the victims of the Maguidanao massacre,  in a very disadvantaged position.

We must admit our worries that Zaldy Ampatuan might get away with impunity has been made palpable by the recent arrest of Mrs. Macapagal-Arroyo for electoral sabotage in connection with the 2007 senatorial elections.

In a couple of days, we will be marking the 2^nd anniversary of the Maguindanao massacre, with no sure justice in sight.  And Zaldy Ampatuan, despite a ruling by the Appellate Court dismissing his petition that questioned the finding of probable cause against him, he has not been arraigned at all in the multiple murder cases filed against him in court.

But we trust that the Department of Justice will not exacerbate the burden we already bear by making a compromise with Zaldy Ampatuan, whether it be against Mrs. Macapagal-Arroyo or her husband Mike Arroyo. It is compromises such as that he now assiduously seeks that fuels and feeds impunity in our country.

We remain

With utmost respect,

Bong Reblando Jr                                                                                                                                                                                                                                                                      

Ma. Cipriana Gatchalian

Ramonita Salaysay                                                                                                                                                                                                                                                                                                                                    

Editha Tiamzon                                                          

Catherine Nuñez                                                                                                                                                                                                                                                                            

Juliet Evardo                                                                                    

Arlyn Lupogan                                                                                                                                                                                                    

Stephanie Cecille Lechonsito                      

Aquino wins Round One over Arroyo

By Romel Regalado Bagares

In the end, it was still the court – a regional trial court housed in a rundown, poorly-constructed government building in Pasay city, to be exact – that saved the day for the Executive in its running tussle with the Supreme Court over an ex-President named Mrs. Gloria Macapagal-Arroyo.

At 4: 30 pm yesterday, Judge Jesus Mupas of the Pasay City Regional Trial Court Branch 112 issued a warrant of arrest against her and several others for allegedly rigging the 2007 senatorial elections in favor of administration candidates.

Two hours later, it was served by a team of policemen led by Senior Superintendent Joel Coronel on her 16^th floor suite at the St. Luke’s Medical Center, by all indications now the favored hospital of the rich, famous and powerful in the Philippines.

And with the judge’s signature on the warrant of arrest, a constitutional crisis was apparently averted.

It also somehow muffled criticisms the Aquino administration had moved so little and too late to prosecute Mrs. Macapagal-Arroyo, 64.

Indeed, the Executive was willing to take it to the edge of constitutional brinkmanship.

In an earlier post, we noted with dismay the defiant denial by Justice Secretary Leila De Lima of the legal worth of a temporary restraining order (TRO) issued by the High Court against a watchlist order she slapped on Mrs. Macapagal-Arroyo, which prevented the latter from leaving the country.

The high drama of Tuesday night at the Ninoy Aquino International Airport – which everyone now knows to be one of the world’s most hated, –showed she was willing to do anything, including risking a constitutional crisis, just to stop the woman said to be one of the most hated Presidents the Philippines has ever had, on her tracks.

Of course, if Justice Leila De Lima didn’t do something , Mrs. Gloria Macapagal-Arroyo , with the TRO issued by the Supreme Court in her favor in hand,  would have flown the coop.  As it turns out later, her defiance finds some strong factual and legal  support in the dissenting opinion of Justice Maria Lourdes Sereno on the issuance of the TRO.

Friday morning came, and the Commission on Elections, after voting 5-2, filed charges of electoral sabotage against Mrs. Gloria Macapagal-Arroyo with the Pasay City Regional Trial Court,

Just in the nick of time it came, as later in the day, the Supreme Court heard a Motion for Reconsideration  filed by the DOJ asking the High Court to reconsider its issuance of the TRO on the justice department order which served as the basis for placing the former president in a watchlist and prevented her from flying out of the Philippines.

The High Court threw out the DOJ’s motion. But by the time it did so, the charge had already been filed against Mrs. Arroyo and an arrest warrant issued.

The TRO only covered the question of the constitutionality of the DOJ’s issuance of a watchlist order against Mrs. Macapagal-Arroyo. Unfortunately for the former President and her lawyers, it could not be applied to the new case – for electoral sabotage, a non-bailable one –  and for which, moreover, a warrant of arrest was also issued.

This, the High Court’s spokesman Jose Midas Marquez, himself acknowledged at a press conference later in the day.

Moreover, the question of whether it was an act of desperation or a brilliant political move executed at crunch time has been eclipsed by new revelations about the High Court’s deliberations on the TRO.

You see, at his press conference,  Marquez said the TRO stays.  He also claimed the voting remained at 8-5.

A news report quoting a highly reliable source within the Supreme Court said otherwise. As Verafiles reported:

Contrary to the announcement of Supreme Court Spokesman Midas Marquez that the High Court voted 8-5 reiterating the temporary restraining order on the Watch List Order of Justice Secretary Leila de Lima issued on former President Gloria Arroyo and her husband, a highly reliable source said the tribunal,  voting 7-6, actually declared its Nov. 15 TRO inoperative following the failure of the Arroyo camp to comply with all the conditions set by the court.

The seven who voted that the TRO is inoperative were  Senior Justice Antonio Carpio, Associate Justices Maria Lourdes Sereno, Bienvenido Reyes, Estela Perlas-Bernabe, Jose Mendoza, Martin Villarama and Roberto Abad.

The six who stood firm on the TRO were Chief Justice Renato Corona, Presbitero Velasco Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin and Jose Perez.

The source said the Arroyo couple did not comply with the second condition requiring that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

The two other conditions were a bond of P2 million each and a requirement that they report to Philippine consulates in the countries they will visit. The legal counsels of the Arroyos also have to coordinate their travels.

The  SC also directed Justice Secretary Leila de Lima to show cause within 10 days why she should not be held in contempt of court  for refusal to comply with the TRO issued by the Supreme Court and for disrespect towards the SC.

The High Court also  rejected the Arroyo camp’s motion to schedule earlier the oral arguments on the Arroyos’ petition to lift the watchlist order and declare as illegal Department of Justice Circular No. 41 paving the way for scheduled oral arguments  on Tuesday. ( Click here for the full text)

A dissenting opinion of Justice Maria Lourdes Sereno on the denial of the Motion for Reconsideration, widely circulated on social networking sites  later confirmed Verafiles’ report.  Justice Sereno, in the same opinion, scolded  Marquez for interpreting the opinions of the justices for them.

On late night television, Marquez  would correct himself and say that indeed, the latest round of voting  has changed the make up of the Supreme Court on the issue. It is now at 7-6,  one more justice joining the dissenters.

But he omitted what  Justice Sereno noted in her dissent – that the TRO is  suspended because of the failure of  Arroyo’s lawyers  to comply with the Supreme Court’s requirement that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

All told, Friday was the unraveling  of the Arroyo camp’s immediate travel plans. When news of the Pasay court’s decision to issue  a warrant of arrest broke out,  her camp announced they had canceled all airline reservations for the day.

It was clear they had been outpointed in the first round.

Saturday afternoon, Mrs.  Macapagal-Arroyo underwent the inevitable  police procedural in the comforts of her suite at St. Luke’s Medical Center:   police took finger prints and mug shots, for the return to the court of the served arrest warrant.

It seems police honored her camp’s request not to release to media her mug shots  – at least for now.

Surely, the disappointment of Tuesday night was nothing compared to the humiliation of Friday night. Within two hours of the issuance of the warrant of arrest, she became the second ex-President of the Philippines to have been indicted, charged in court and arrested for a criminal offense.

Preparing for Round Two

Her camp is obviously preparing for the second round, including the  oral arguments on their first petition set for Tuesday next week.

And they may find some ammunition in a new report from the on-line magazine Move.ph  that the Comelec disregarded its own rules when it voted to charge her in court without allowing her an opportunity to contest the decision in a motion for reconsideration. (There’s also the claim that it was irregular of the judge to issue a warrant of arrest when all that the government was asking for was a Hold Departure Order. Now any student of criminal procedure knows the judge on his own, may issue a warrant of arrest on his own finding of probable cause).

Already her legal advisers have indicated they’re questioning before the Supreme  Court the filing of the electoral sabotage charge and the issuance of the warrant of arrest against her.

Legal pundits are wont to say there had been instances in the past when the Supreme Court upheld  the Comelec’s decision to set aside technical rules to get to the bottom of an election case.

But the big question is whether this particular Supreme Court, headed by  a chief justice once assailed by President Aquino for being a “midnight appointee” of  Mrs. Macapagal-Arroyo herself, will give the Comelec the benefit of the doubt.

I seriously doubt it.

But then again, Friday afternoon’s 7-6 defection  at the Supreme Court wasn’t expected either.

What’s for sure — at least for President Aquino —  is that  it only just began.

Ode to Dean Maggi’s New Baby

By H. Harry L.  Roque, Jr.

 

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. His new ‘baby’ is part of the UP Law Centennial Textbook project. (A shorter version also appears in my column for the Manila Standard Today.)

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 prosperity’s sake.

Nevertheless, the Argentinian novelist himself also said that:

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 space for the work of  the 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 websites.  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 continued 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.

My only warning to the Dean is that, to borrow from the Old Testament philosopher in Ecclesiastes, of the making of dictionaries, there is no end.  Just because it is the first shouldn’t mean it’s the last.

In a conversation with the Dean a few weeks ago, I suggested to him that his dictionary should be digitized and made available for sale as a downloadable book through Amazon or the AppleStore. In fact, the UP Press has made Philippine academic publishing history by already making some of its titles available as print and digital book versions. Through a conversion service, these UP Press titles are now sold through Amazon as well.

Because it is much cheaper to produce a digital book, it will also be easier to update a book through its digital version.  As far as I know, of a handful of dictionaries on international law extant, only the Parry and Grant Encyclopaedic Dictionary of International Law  is as of yet available as an electronic version through the Oxford University Press website.

I can’t repress a smile imagining students from all over the world downloading the Contemporary Dictionary of International Law on their Ipads, Iphones, Macs, Galaxy Tabs  and what have you.  That way you make international law sexier and more accessible. That way you also introduce to the world a distinctly Filipino take on international law. That way you also exact revenge on Derrida’s devaluing of the written text!

One hopes public international law students of the UP College of Law, upon consulting Dean Magallona’s dictionary on the meaning of straight base lines in UNCLOS, would intone Neruda’s Ode to the Dictionary (if they know Neruda at all):

Dictionary

you’re not

a tomb, sepulcher, casket

burial mound, mausoleum,

but a  preserver,

hidden fire,

the planting of rubies

living perpetuity,

of the essence,

granary  of language.

 

Perhaps, very few of them have time for poetry; I admit it takes an aficionado like Dean Magallona to see poetics in the structures and systems of his chosen field of study. But I’m sure the same students would come out of a recitation smiling if they survived one on the North Sea Continental Shelf Cases by secretly referring to it. On second thought, I really doubt if they can get away with murder, no, not under Dean Magallona.

Giving GMA a taste of her own medicine?

Not so fast....PDI picture of GMA at the NAIA I

By Romel Regalado Bagares

Much as we want Mrs. Gloria Macapagal-Arroyo to answer for the crimes she committed while she was in power,   we do the very idea of the Rule of Law great harm by shirking from its high demands in our zeal to bring her to the proverbial bar of justice.

The Supreme Court has spoken, allowing her to travel abroad purportedly to seek medical treatment for her rare bone ailment,  despite our wishes to the contrary

If we must,  there are ways of holding accountable the honorable justices of the Supreme Court who gave her free rein; but  defying their collective decision and forcing a constitutional crisis is not one of them.

If, during her hold on power, Mrs. Macapagal-Arroyo  distinguished herself by the cavalier way in which she dispensed with  even the smallest of judicial niceties to suit her crooked ends,  we must not do further damage to our judicial institutions by  giving her a taste of her own medicine.

President Beningno Aquino III rose to power on a high public expectation that he will hold Mrs. Macapagal-Arroyo accountable for her administration’s misdeeds.

That until now, his Department of Justice has not filed a single case against her in court cannot be blamed on the accused;   It certainly defies any justifiable explanation why our prosecutors had not acted sooner.

The only possible explanation is the seeming lack of focus of this administration’s officials to do what should be done.

But what it also shows is the Aquino administration’s lack of imagination.

It  knew from the very beginning that Mrs.  Macapagal-Arroyo had  packed the Supreme Court with her appointees.

At the very least, it could already have anticipated exactly the kind of decision the High Court’s majority handed down earlier today and accordingly taken steps to deny the good justices the opportunity given to them to vote the way they voted today.

But instead it took its sweet while, issuing press releases about the urgent need to prosecute Mrs. Macapagal-Arroyo without actually prosecuting her. As its prosecutors have now painfully learned, press releases do not a case make.

Too,  when it had strong public support, it waffled in its  position that the midnight appointment by Mrs.  Macapagal-Arroyo of Renato Corona as chief justice of the Supreme Court was unconstitutional. It could have forced the issue by calling for an impeachment of Corona and the other justices who closed ranks behind their colleague Mariano Del Castillo in the latter’s wanton plagiarism in the Comfort Women case.

That would have been the constitutional way of resisting the Corona Court’s unconstitutionality. Alas, even that opportunity, the Aquino administration failed to seize.

What a year-and-a-half of lost opportunities for the Aquino presidency.

And now it had to resort to highly doubtful legal sleight-of-hand to keep Mrs. Macapagal-Arroyo from leaving the Philippines.  Irony of ironies, in order to uphold the rule of law, it has become necessary to trample on it.

We will pursue her wherever she goes – Roque

By Romel Regalado Bagares

The Supreme Court, voting 8-5, has allowed the Arroyos to travel abroad, purportedly to seek medical treatment for Mrs. Gloria Macapagal-Arroyo’s bone ailment.  According to news reports, President Aquino’s three appointees – Associate Justices Ma. Lourdes Sereno, Bienvenido Reyes and Estelita Perlas-Bernabe – voted against granting Arroyo’s petition and were joined by  Senior Associate Justice Antonio Carpio and Jose Mendoza.

Prof. H. Harry  L. Roque, Jr. – convenor of the Concerned Citizens’ Movement and chair of the Center for International Law – issues a statement below in reaction to the High Court’s decision:

Lawyer Harry Roque said yesterday he will pursue and hold accountable for her crimes Mrs. Gloria Macapagal-Arroyo wherever she goes, following the Supreme Court’s decision to allow the former President to travel abroad purportedly to seek medical help.

“This is distressful to the nation,” said Roque in reaction to the Supreme Court’s decision. “But the Concerned Citizens’ Movement (CCM) will not sit idly by and do nothing.” The citizens’ group s exploring with the Center for International Law the possibility of filing an international claim against Mrs. Gloria Macapagal-Arroyo.

The lawyer has close ties with both organizations, which had been actively campaigning to hold the former President accountable for human rights violations, electoral fraud, corruption and plunder.

“GMA was able to restrain a rule made by her own alter ego,” said Roque, adding that her promise to return has no weight to the Filipino people, who have not forgotten how she once promised not to seek re-election. (30)

GMA’s still in Manila, so she can’t be an asylum seeker just yet

By Romel Regalado Bagares

So the Dominican Republic has denied that  Mrs. Gloria Macapagal-Arroyo is seeking asylum in the Carribean country. 

Of course, she can’t file an asylum claim while she is here, unless some special arrangement has been made between her and the government of Mr. Leonel Fernandez , which has tendered her his country’s highest honor during a visit by the former president of the Philippines in May this year.

As we said in an earlier post,  by definition, an asylum-seeker is someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” It may also apply to a person who “not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The international news agency AP quotes Dominican Republic Foreign Minister  Carlos Morales Troncoso as saying that  they have not received an application for asylum from Arroyo.

That could well be true, because, under the international law on asylum, where Mrs. Macapagal-Arroyo is right now, she can’t be an asylum seeker;  she can only be someone facing criminal prosecution in her country for electoral fraud, plunder, graft and corruption and human rights violations.

In other words, she has to be physically out of the country to qualify as an asylum-seeker.

So, after all,  there is some wisdom in issuing a hold departure order against her.

But she must be really special to the government of Mr.  Fernandez because, according to Move.ph, it sent its  ambassador based in India — Frank Hans Castellanos —  to Manila in October this year to meet with her for some unspecified purpose.

If  Mrs. Macapagal-Arroyo does a Ramona –as Raul Pangalangan would put it — and heads for the Dominican Republic to seek asylum there, all that a court there has to do is to dribble the ball.

Remember that under refugee law, a receiving state has the obligation to hear a request for asylum. She can invoke the principle of non-refoulement and a friendly asylum court in a friendly state can simply stay her deportation on the ground that there is a real possibility that if sent back,  she will be persecuted or subjected to bodily harm.

Under the circumstances, it is not unreasonable to suppose that it  would not be beneath a government whose President  had accorded her its highest honor and even allegedly sent its ambassador based in India to Manila to personally attend to her asylum-shopping plans ,  to assign her a nice villa with a sweeping view of the ocean while her petition is being heard.

Of course, there is always the option for her well-placed friends in the Dominican Republic to speed things up for her benefit.

Indeed, the rich and powerful are not like you and me: they can shop for asylum in states willing to grant it for the right price.

We can only wish now that the Department of Justice moved sooner to bring her to the bars of justice. And we hope it still isn’t too late for that.

 

Illustration credit: PDI editorial cartoon for 11.11.11

Why GMA is not entitled to asylum

By Romel Regalado Bagares

I got a call early in the morning today from radio station DZAS for comment on a news item that Mrs. Gloria Macapagal-Arroyo is seeking asylum or has already been granted asylum in the Dominican Republic. Apparently, Mrs.  Macapagal-Arroyo visited the Carribean country last May. The country’s President  Leonel Fernandez  awarded her with the country’s highest honor,  ” but the reasons behind her visit were never disclosed,” according to a Dominican Republic newspaper.

Reports say that Mr. Fernandez had already given Mrs. Macapagal-Arroyo and other members of her family visas but according to the Department of Justice, this information is still being verified with Dominican authorities through the Philippine Department of Foreign Affairs.

If this is at all true, it will certainly be a key argument for Philippine authorities why the Supreme Court should deny her petition filed earlier questioning the DOJ’s decision to place her on a watchlist. Her camp had been circulating pictures of an ailing Mrs. Gloria Macapagal-Arroyo as state prosecutors made belated moves to prosecute her for electoral fraud in the 2007 elections — a non-bailable offense — among other charges. This makes her a very big flight risk.

Of course, she’s not being original here.

She’s obviously taken her cue from one of her old lieutenants, Joc-Joc Bolante, her man at the Department of Agriculture when she was her power, who implemented what is now known as the P728 million Fertilizer Scam, where money intended for farmers were allegedly diverted into election purposes. When the Philippine Senate launched an investigation on the scam, Mr. Bolante fled to the United States and asked for asylum there, claiming he’s being persecuted in the Philippines for his political beliefs.  We — Dean Raul Pangalangan, Dean Merlin Magallona, Prof. Harry Roque and myself —  subsequently filed an amicus brief with the US court that heard his petition and the court took it “on advisement.” When the US court  finally came out with a ruling, the immigration court cited the same grounds that, we said in our amicus brief, showed just how preposterous Mr. Bolante’s claim of political persecution was.

If Mrs. Macapagal-Arroyo were to seek asylum in the US, we have no doubt that she would be denied (although we’re sure she wouldn’t dare do that, for quite another reason, and it is called the Alien Tort Claims Act); but the Dominican Republic is quite another matter. Certainly, we can’t be too sure with a country that awarded with its highest honor someone like Mrs.  Macapagal-Arroyo who is facing a slew of plunder, corruption, human rights and electoral fraud charges in her own country.

In any case, the international law on asylum is well-defined and under its terms, Mrs.  Macapagal-Arroyo does not qualify.

The criteria for who may seek asylum are found in the 1951 Refugee Convention and its 1967 Protocol.  Under Article 1(A)2 of the Convention, the term “refugee” shall apply to any person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Now historically,  the Refugee Convention was drafted  to respond to the huge European mess that came in the wake of World War II, where hundreds of thousands, if not millions, became refugees or were rendered stateless. States later on drafted the 1967 Protocol to expand the scope of its protection,  removing its time and geographical limits. A key principle of asylum law is that of the French term non-refoulement. This principle, according to Art. 33 of the 1951 Refugee Convention, pertains to the duty of a receiving state not to return a refugee to a country of territory where the asylum-seeker  would be at risk of persecution:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

This principle is taken as part of customary international law and binding on all states. It is also restated in major international human rights instruments, as in the case of the 1984 Convention against Torture, which  proscribes the extradition of an asylum-seeker to a country where s/he risks being tortured.

Properly appreciated, asylum law affords people who are being persecuted in their countries of origin a good measure of protection against abuse.

But to qualify as a refugee, a person must meet the following  basic characteristics:

• S/he must be  outside their country of origin or outside the country of former habitual residence;
• S/he must  be  unable or unwilling to avail themselves of the protection of that country because of a well-founded fear of being persecuted; and
• The feared persecution is based on at least one of five stated grounds: race, religion, nationality, membership of a particular social group, or political opinion.

In US jurisprudence, the  US Attorney General may not remove an alien if the alien is able to establish a clear probability of persecution in the country to which he would be returned.”The standard of proof for restriction on removal is more demanding than the well-founded fear standard applicable to an asylum claim. Thus, when an applicant fails to establish the objective component of a well-founded fear of persecution, he necessarily fails to establish entitlement to restriction on removal.” [Wiransane, 2004 U.S. App. LEXIS 8259 at *6 (internal quotation marks omitted)]

In the case of Mrs.  Gloria Macapagal-Arroyo, it would be preposterous to say that she is under persecution because of any of the five grounds stated in the 1951 Refugee Convention.

What she fears is that she would eventually be prosecuted criminally for the crimes she committed or caused to be committed when she was in power.

Mrs.  Macapagal-Arroyo is  NOT BEING PERSECUTED  because of her race, religion, nationality, membership in a particular social group, or political opinion. But certainly she is BEING PROSECUTED for plunder, corruption, human rights violations and electoral fraud. That is a world of a difference there. And that is why she is not entitled to asylum.

*PHOTO CREDIT: photograb from Ms. Ellen Tordesillas’s blog. She says the photo is by Belna Cabasan and was taken  from Stella Arnaldo’s wall

Dean Magallona’s New Baby!

By Romel Regalado Bagares

Yesterday, I stood in for Prof. Harry Roque, who was out of the country, at the launching of a new book by Dean Merlin Magallona at the Malcolm Hall auditorium of the University of the Philippines in Diliman, Quezon City.  This is actually the good Dean’s second book to be launched this year as part of the commemoration of the University of the Philippines College of Law’s Centenary. Dean Magallona’s first book is a critical monograph on the Supreme Court’s decisions on international law questions. The newest is his Dictionary of  Contemporary International Law — a first in Philippine legal publication, I believe.  More on this in the next post.  Prof. Katrina Legarda,  my colleague at the Lyceum Philippines University College of Law  and my former professor at the UP College of Law, gave me a copy of the book.  I’m uploading here a photo of the book, for your visual pleasure.