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

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1 Comment

Filed under asylum law

One response to “Why GMA is not entitled to asylum

  1. Pingback: GMA’s still in Manila, so she can’t be an asylum seeker just yet | Interlacements

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