GMA’s “Pinochet Maneuver”

By Romel Regalado Bagares

On March 10, 1998 – after some 25 years in power – Chilean strongman Augusto Pinochet relinquished his power to his supposed successor, Gen. Ricardo Izurieta.  He left behind him a murderous legacy: 3,197 victims of executions, disappearances and killings from nearly three decades of a reign of terror as a US-backed military dictator. An estimated 1,000 of these victims have been disappeared and nearly 90 percent of them remain missing to this day.

Yet the dictator’s return to civilian life was by no means ordinary.  On the contrary, he made sure he would be shielded under Chilean law from being prosecuted for his atrocious human rights record.

First, he put in place a constitution under which only his top generals could be appointed as chief of state.

Second, he made sure that before he stepped down from office, the rubber stamp Chilean parliament had already passed an amnesty law that virtually absolved him of any criminal responsibility for the human rights violations committed under his regime.

Third, he did not exactly disappear from public life from then on because the very next day,  he occupied a new office at the Senate as a senator for life, in the splendid company of former military underlings and cabinet ministers who, under his direction,  wielded power as unelected legislators who could veto together any proposed legislation.

Fourth, his parliamentary office meant that he enjoyed constitutional immunity from any suit or criminal proceeding. This was because the rules of the time required that an appeals court must first strip him of immunity and suspend him from his legislative post before he could be charged in court.  Also, his senatorial office afforded him with the power to stifle detractors by prosecuting them under a law on state security.

Mrs. Gloria Macapagal-Arroyo’s stepping down from the heights of power wracked by allegations of unprecedented corruption and numerous human rights violations was no less inspired.

First, she made sure she would remain in the political limelight by running for a congressional post in her hometown Lubao, Pampanga. And she assured her win  in the elections by pampering her cabalens with development projects and doleouts sourced from her nearly limitless access to public funds while she was still President.

Without doubt, in a country where congressmen are often seen as untouchables, she thought that being a member of the House of Representatives afforded her with some measure of protection from any legal maneuver aimed at her direction by her successor, Benigno Aquino III.

Second, with the help of allies in the House of Representatives, she carved out a new congressional district in the Bicol region for her own son, Datu Arroyo, who could add additional weight to her power bloc at the Lower House.

Third, her own allies also fielded new entrants to the House of Representatives through the party-list elections, and her son Mikey Arroyo made it through this back-door entrance to the legislature as a joke of a representative for security guards, plus a good number of others.

Finally, for the piece de resistance, she packed the High Court with her appointees, and in the closing days of her administration, picked Renato C. Corona as her chief justice, over against a long-standing rule in the Constitution that prohibited such a so-called “midnight appointment.”

A Supreme Court ruled by a majority of her own appointees and presided over by her former chief of staff and presidential legal counsel was her security from any attempt to prosecute her for her legacy of profligate governance and record human rights violations not seen in the country since the martial days.

With Mr. Corona as primus inter pares at the High Court, any conviction for any criminal offense in the lower court can be easily overturned on appeal to the Supreme Court.

With Mr. Corona at the helm, any criminal proceeding against her can be torpedoed before it could prosper through the simple device of a Temporary Restraining Order (TRO).

Indeed, when it became obvious that the Aquino administration was bent on bringing her to the bars of justice, she collected on her ultimate insurance from prosecution and obtained a TRO against the Department of Justice, which had prevented her from leaving the country on the pretext that she needed urgent medical treatment abroad for a life-threatening illness.

But like Pinochet, she could not count on history to flow according to her wishes.

In the case of the Chilean strongman, he also invoked a life-threatening sickness to seek treatment abroad, following a decision by the Chilean Supreme Court stripping him of immunity from any kind of suit.  His city of choice: London.

What ensued was a series of dramatic legal proceedings that begun when a Spanish judge issued international arrest warrants against the ailing Chilean dictator for the deaths of Spanish citizens in Chile at the height of his dictatorial rule. It culminated in a judgment that would be hailed by many human rights organizations and would come to be known as the Pinochet Precedent; that is, the principle that – in the words of the international legal scholar Philippe Sands – “no one is above the law.”

In the case of Mrs.  Macapagal-Arroyo, what she did not count on was Justice Secretary Leila De Lima defying the deeply-flawed TRO issued by her beloved  “midnight” Chief Justice at her behest.

And today, we witness the historic impeachment trial of the very same Chief Justice.*

This essay may also be read in my weekly column for the Iloilo City-based The  News Today.

A man named Renato C. Corona

Today, I make a debut of sorts as I begin an adventure as a column writer for the Iloilo City-based The News Today (TNT). In case you’re wondering what’s the connection, the newspaper’s publisher, Rommel Ynion, and the editor-in-chief and general manager, Junep Ocampo, were my former colleagues back in the day at The Philippine Star.  My thanks go to them for giving me this opportunity.  I write Mondays and my column runs under the name  scīre licet, which is latin for “it is permitted to know.”  Here’s my first piece as a columnist:

_________________

By Romel Regalado Bagares

I BARELY KNEW  who he was then, but I saw him arrive at the Edsa Shrine a few hours before his principal – Mrs. Gloria Macapagal-Arroyo – did; it was one or two days away from Erap’s departure from Malacanang as a result of People Power II and I was then a junior law student in the evening program of the UP College of Law who also worked as a reporter for The Philippine Star.

A colleague of mine, who covered the Malacañang beat, instantly recognized him and approached him for an interview. It was from her that I learned that the guy in the suit who arrived with a business-like mien was the lawyer Renato C. Corona, chief of staff for Mrs.  Macapagal-Arroyo, then Vice President and ostensibly, Erap’s constitutional successor.

I joined the huddle to hear what he had to say.

In the interview, Corona told of an alleged plot by two leading politicians to set up a civilian-military junta in case Erap stepped down from power. These two politicians, he claimed, were fronting as Erap’s supporters.  Obviously, the lawyer wasn’t for the plan either, because it would mean his principal would be upstaged in the resulting scheme of things.

But among my activist-friends gathered at the Serviam Hall above the Shrine, there had been a buzz of excitement. They were calling for a march of one million people to Malacañang (it wasn’t obvious then that they were exaggerating their power to rally citizens behind them).

More importantly, they talked of the declaration of a revolutionary government, a new beginning with a clean political slate.  Even the law student in me – who had his fair share of law school readings of Supreme Court decisions on constitutional controversies occasioned by People Power I – was for it.

As I now look back to that historical moment nearly 11 years ago I tell myself I should have perhaps realized right away that Corona’s presence at the shrine signaled that the politicians were taking over.

True enough, before long the motley collection of civil society groups who led the call for Estrada’s ouster called a press conference, joined by politicians.  At the head of the presser was the late senator Raul Roco, a man I greatly admired and whose botched candidacy for the presidency in 2004 I supported.

His announcement was met with disbelief by not a few faces at the Serviam Hall: no, we weren’t going to declare a revolutionary government; instead, we’re following the constitutional rule on succession.

That of course, meant that Erap would be replaced by Mrs. Gloria Macapagal-Arroyo.

How I could tell you that many civil society groups my reportage followed as they pressed for Erap’s resignation had no love lost for his constitutional successor either.

To them, her brand of politics was suspect (as one of them would say:  someone who associated with Norberto Gonzales early on in her political career will always be suspect).

They weren’t sure she was any better than Erap.

And how they resented the idea that with Erap’s removal from power and the politicians’ successful maneuver towards constitutional succession, it’s as if they themselves were responsible for handing over to her the reins of political power!

No, it certainly wasn’t their intention. All that time, they took pains to distinguish between removing Erap from power and installing Mrs. Macapagal-Arroyo in his stead.

Of course, Roco was eventually rewarded the education portfolio under the Arroyo administration. While he did well as education secretary, I’d like to think the announcement he made on the penultimate day of People Power II was something he regretted later on because four years after EDSA Dos, he would join calls for Mrs. Macapagal-Arroyo’s resignation.  That historic press conference certainly wasn’t his proudest moment.

But I didn’t see Mrs. Macapagal-Arroyo or her favored chief of staff at Roco’s press conference.

But the next day, January 21, 2001, Mrs.  Gloria Macapagal-Arroyo –a former President’s daughter –  was sworn into office as the 14th President of the Republic of the Philippines.

I was standing only a few meters away when Chief Justice Hilario Davide administered her oath of office at the historic shrine.

Mrs. Macapagal-Arroyo promised a mouthful that day while the late Jaime Cardinal Sin and former Presidents Fidel V. Ramos and Corazon Aquino looked on:  a successful fight against poverty within the decade,  the return of high moral standards in government and society, a shift from personality-driven to program-based politics, and a leadership by example.

In other words, exactly the kind of exalted things her nine-year hold on power went against.

“I feel God put me in this point of our history and there is hard work.. There is much to be done and the President’s job is one where one must work hard,” Mrs. Macapagal-Arroyo said at one point in her inaugural speech.

The next  day I shared by-lines with a colleague in our paper’s banner story: “A time to heal, a time to build.”

It certainly didn’t feel that way to me.

But I’m now pretty sure it did that day 11 years ago for a man named Renato C. Corona.

_________________

Here’s a link to the column as it appeared on TNT’s website.
(Disclosure:  A former journalist and now a lawyer by profession, Mr. Bagares is part of a team of private lawyers tapped by the House of Representatives to assist its members tasked as prosecutors in the impeachment trial of Chief Justice Renato C. Corona.)

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.

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.

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