Tag Archives: impunity

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.

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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 2nd 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                      

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