Tuesday, December 22, 2009

Lernaean Hydra: the battle against impunity and its many layers

I’d say it was a pretty masterful job all round, wouldn’t you? I mean, it's positively breathtaking: the Supreme Court, COMELEC, Congress, the party-lists and computerized balloting, not to mention the warlords, the military and the police? Erap no longer the lone administration spoiler with Manny Villar (among others) now apparently in tow as well? Yes, indeed -- I’d have to say the Palace had all its bases covered. No doubt about it: a pretty thorough rigging all round.

I know I’ve been somewhat scarce of late. It started out with a laborious (if ultimately ineffectual) attempt to make sense of COMELEC’s party-list inclusions and exclusions, as well as the Supreme Court’s decision not to require public officials to relinquish their current positions if they hoped to run for elective posts in 2010. By the time the Ampatuan massacre had taken place, I was in a quiet state of rage. The overweening arrogance and sense of impunity with which Andal Ampatuan, Jr and his people comported themselves, COMELEC’s cavalier decision to make Shariff Aguak the site of the provincial capitol (where Toto Mangudadatu would have had to file his candidacy but which happened to be in Ampatuan territory, despite the well-publicized rift between the two clans), and the AFP’s decision not to escort the Mangudadatu convoy deeply troubled me, particularly in view of what it all implied about the central government’s role in the entire massacre. And what of those arms caches found in the properties of the Ampatuans, clearly bearing DND markings?

In the aftermath, as lurid and gory details began to emerge in swift and unabashed succession, a forensic anthropologist’s nightmare would ensue, in large part due to the poor handling and contamination of the victims’ remains and the massacre site itself: http://pcij.org/stories/report-of-the-humanitarian-and-fact-finding-mission-to-maguindanao/

Worse, the charge of rebellion in the context of martial law suggested that the offences were bailable and the perpetrators could still be granted amnesty. It was no wonder, then, that as of March of this year, the Philippines had already ranked sixth in the Global Impunity Index (
http://cpj.org/reports/2009/03/getting-away-with-murder-2009.php); immediately after the massacre, of course, the country quickly became the “worst on record” for journalists worldwide: http://cpj.org/2009/11/maguindanao-death-toll-worst-for-press-in-recent-h.php. So, apart from Senators Biazon and Gordon, why were not more Senators and Congressmen calling for an investigation into the source/s of the arms caches that had suddenly been “discovered” in Maguindanao?

By the time COMELEC had announced that Grace Padaca, Ed Panlilio, Brig Gen Danny Lim and Danton Remoto had been disqualified, the burning question needed to be asked: could it be that
all these institutions were in GMA’s pocket? Where does a nation turn to when its leaders, lawmakers, judiciary and law enforcement personnel routinely flout -- rather than uphold -- the rule of law? Were there anthropological underpinnings to this culture of impunity or was it purely a function of economic scarcity?

You can well understand why the sheer scale of this Lernaean Hydra
(http://www.mlahanas.de/Greeks/Mythology/LernaeanHydra.html) had left me at an utter loss. To many, of course, much of this was nothing new: indeed, a cursory sweep of recent history indicated that the most egregious offenses have
tended to be swept under the rug altogether: US abandonment of the Philippines during the Japanese occupation; MacArthur and the “collaborators” hailed as heroes (indeed, with Manuel Roxas eventually becoming President); Cory not pursuing Marcos and his henchmen for the ill-gotten wealth and human rights violations; FVR remaining remarkably quiet about Danding; and GMA pardoning Erap despite his precedent-setting conviction. As my buddy Mac mournfully observed one evening: “These are the big-time cases, Lil — no wonder the little guys are so sure they can get away with murder: they can. The precedents are set.”

Surreal in the extreme, you will agree, to be listening to a congressional debate about martial law led by Enrile, of all people, the guy whose fake ambush had been the initial excuse for Marcos' declaration. Not to mention all the coup attempts he backed against Cory, indirectly stunting the country’s economic recovery. Hadn’t he even been charged with rebellion at one point? I suppose one could argue that this qualified him as an expert of sorts…

But what exactly was going on here, I had to wonder? Could the Constitution be part of the problem? Should more of these crimes be considered statutory?
From where I sit, it would appear that the higher courts tend to be constantly clogged with cases that could effectively be addressed in the lower courts. USAID goes on to suggest that it is not only the backlog of cases in the courts but the fact that legal personnel are grossly underpaid that explains the nature of this corruption trap:


It would also seem to be the case that there is a
shortage of lawyers, at least those who are willing to practice in trial courts.

Philippine law

Now I am certainly no lawyer but I
have spent some time struggling with various bills and legal systems in an attempt to understand our various options in the Ampatuan case. I am also blessed enough to have friends who happen to be lawyers and who have remained remarkably patient with me despite my repeated badgering… But I should add that I don’t have free and easy access to any international lawyers (both of the ones I know happen to be in the Hague at the moment and are swamped with the Milosevic case) so I have had to extrapolate on my own. I would argue, however, that the law is not rocket science, after all, and should be accessible to any citizen with enough concern and commitment, so here’s my take…

This piece was largely inspired by an increasing sense of inquietude at the thought that the perpetrators (apart from Andal, Jr, who was charged before the establishment of martial law and therefore with far more binding crimes than “rebellion”, unlike Andal, Sr, the actual mastermind of the operation) might eventually be granted amnesty. Of course, they would be charged with crimes punishable under the Constitution, the Revised Penal Code and other criminal laws. But
the Revised Penal Code defines rebellion as “rising publicly and taking arms against the Government for the purpose of removing allegiance from said Government the territory of the Republic of the Philippines or any part thereof…or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.” As it is, rebellion is notoriously difficult to prove, but it can certainly be argued that it has variously been committed by: a.) specific Muslim separatists attempting to secede; b.) certain communist rebels attempting to violently overthrow the government; and c.) a handful of soldier rebels trying to unseat the Philippine president. But by Gloria’s primary allies in Maguindanao, to whom she remains eternally indebted for those large-scale election "victories" in 2004 and 2007? Hardly.

Unfortunately, bail remains a matter of right for non-capital offenses, although there is good reason to believe that Judge Solis-Reyes may refuse to grant it simply in deference to public outrage. Whether she is safer if the perpetrators remain incarcerated or if they are eventually freed is a matter of opinion, of course. There is after all a fairly sizeable Ampatuan army still out there able to carry out the family’s bidding either way…

I am told that amnesty remains unlikely, however. For instance, we can grant "amnesty" to insurgents who lay down their arms or rogue members of the military who decide to go back into the government fold. But the perpetrators have already been charged, so that does not appear to be an option (unless the charges are thrown out altogether because of the ultimately unconstitutional establishment of martial law). On the other hand, what may very well happen (and this is something we need to remain vigilant about) is a presidential pardon after the convictions have been made. This would not happen during
this presidency but in the next one, since such trials tend to take an inordinately long time, as many of you know. All the more reason why we need to be wary of Gibo Teodoro, who has brilliantly tried to distance himself from the arms caches and private armies that burgeoned wildly in Maguindanao under his watch at the DND. Similarly, highly placed (and very reliable sources) have informed me that Villar is a GMA spoiler, and that he plans to push for charter change as soon as he gets into office. GMA, once again the invisible hand, plans to sit as Prime Minister if and when this happens. Like any good businesswoman, she has simply placed her bets on several horses at the same time, so as to ensure victory no matter what.

I would therefore be interested in hearing what the remaining candidates –- Noynoy and Bro Eddie, in particular –- have to say about how they plan to make these perpetrators accountable. A lackadaisical pandering to popularity and big money, which would entail a presidential pardon, is non-negotiable, at least in so far as my personal vote is concerned. The massacre is simply far too gruesome and unprecedented to remain unpunished.

Hope for the future

GMA recently signed Republic Act 9851, which is widely regarded as a milestone for human rights:


Of course, “w
ith a reported 1,013 extra-judicial killings, 202 enforced disappearances, 223 political prisoners, and 1,036 incidences of torture since 2001, the Arroyo regime's record rivals that of the late strongman Ferdinand Marcos and has drawn sharp criticism from the United Nations, Amnesty International, Human Rights Watch, and the Karapatan national human rights alliance group.” Oplan Bantay Laya alone, the government’s anti-insurgency programme, has already led to the loss of hundreds of human lives. How the government will deal with the issue of command responsibility over crimes against humanity (such as the Ampatuan massacre), which is specified in the law, remains to be seen.

There have been a number of other initiatives as well, although many have yet to be passed into law. Senator Miriam Defensor-Santiago recently presented Senate Bill Number (SBN) 1861 in the Senate (An Act Defining and Penalizing Crimes Against International Humanitarian Law and Other Serious International Crimes, Adopting Corresponding Principles of Criminal Responsibility Applying Universal Jurisdiction):

SBN 2669, which has yet to be approved as well, further aims to define and penalize crimes against international humanitarian law: the bill consolidates Senator Miriam Defensor-Santiago’s bill with SBN 1446 by Senator Richard Gordon, SBN 583 by Senator Jinggoy Estrada, SBN 1542 by Senator Juan Miguel Zubiri and SBN 2589 by Senator Manny Villar. The counterpart bills in the Lower House include HBN 1748 by Representative Roilo Golez, HBN 2591 by Representative Simeon Datumanong and HBN 3002 by Representative Rufus Rodriguez.

So: the legislative efforts at the national level are apparently there. But the point is that
the new law (RA 9851), at least in spirit and intent, will theoretically protect the rights and security of innocent civilians who are exposed to internal armed conflicts (that is, if the executive branch and its generals are ready to enforce the law against themselves). There’s the rub, see...

International options

In fact, we’ve had a pretty weak record internationally when it comes to international human rights and humanitarian law. Now Leila de Lima, whom I respect greatly (although I would argue that her energies are best spent not on unnecessary worry about Andal, Jr having been bonked on the head by an overly animated journalist), has said that, if this case is not adequately resolved by Philippine courts, the Commission on Human Rights will not hesitate to present it to the International Court of Justice (ICJ) in the Hague. I could not make sense of the reference simply because the ICJ deals with conflicts between states, while the International Criminal Court (ICC) deal with conflicts within them. Clearly, this is an intra-state issue and not an inter-state one, in which case the appropriate body would be the ICC.

The Philippines
has signed the Rome Statute to the ICC but regrettably has not ratified it. To his credit, Erap did sign the treaty but, when GMA came into power in 2001, she did not give the Senate the opportunity to ratify it. Her government reportedly did not want to become a member because of fears that allegations of human rights violations might be made against them in international tribunals. But the even more compelling reason, of course, has to do with our symbiotic ties to the US.
More specifically, the American Servicemen Protection Act stipulates that countries that have become members of the ICC will no longer receive US military aid. In addition, any government that detains an American soldier and files a case against him/her before the ICC has to be prepared for the fact that the US will undertake military action to free its soldier. Clearly this is about currying favor in order to obtain US aid, on the one hand, just as it demonstrates the masterful strategies the US tends to deploy in matters of bilateral “exchange,” on the other.

The only other international option for now appears to be the UN Human Rights Council, specifically the International Protocol to the
International Covenant to Civil and Political Rights: http://www2.ohchr.org/english/bodies/hrc/procedure.htm

While it arguably has limited enforcement mechanisms,
several countries have already amended their laws as a result of decisions made by the Committee. In a number of cases, prisoners have been released and compensation paid to victims of human rights violations. In 1990, the Committee instituted a mechanism to assist it in monitoring more closely whether states parties have given effect to its final decisions, and it has been encouraging to note that they have been largely cooperative.

Of course, the Covenant requires that domestic remedies be first exhausted. In this case, therefore, the Philippines would have the obligation to prosecute the perpetrators of the massacre to begin with. If the convictions are deemed inadequate, any injured parties (survivors, relatives of loved ones) would have the right to present their case before the international body. Karen Vertido, a victim of an alleged rape in 1996, for example, eventually chose to present her case to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) after the presiding judge in the Philippines decided to acquit her attacker. While the case remains pending for now, it will eventually be resolved, reminding us that this is an option available to ordinary citizens all over the world. Technically, a strong case could be made not for genocide or state-sponsored violence, but for designating the Ampatuan massacre as a crime against humanity.

Additional recommendations:

1.) An examination of the massacre case files suggests that there had been systemic favoritism towards the Ampatuans and government mishandling throughout. Indeed, had so many journalists not fallen – had the victims “merely” been Muslims, say -- the public outcry might not have been quite as vociferous. Education and training programmes for trial court judges and government personnel (specifically for victims of Post-traumatic Stress Disorder, dealing with threats from the accused and cultural impartiality in general) are therefore clearly necessary. A monitoring system for trial court decisions in cases of rido and human rights atrocities should also be established to ensure their compliance with human rights conventions. Data on the number of such cases filed in prosecution offices and the courts should also be compiled and analyzed. It is further recommended that victims be provided with the right to appeal in cases of acquittal that are anchored on discriminatory grounds.

2.) Training of medical, police and military personnel is equally critical because valuable forensic evidence in this case was lost or mishandled due to a lack of technical skill. Funds will have to be allocated for providing this training since effective forensics work is at the forefront of the battle against impunity. The conditions that would allow the enforcement of the law -- its
enabling environment, as it were -- are not yet entirely in place. While additional laws could and should be passed, it is clear that we have a serious law enforcement problem as well.

The material conditions in the criminal justice system are as important, if not more so, than the mere promulgation of laws. The salaries of legal, military and medical personnel should therefore be commensurate with the type of work they routinely put in every day: otherwise, they may simply resort to corruption in order to survive. As they (trial lawyers in particular) are at the front lines of law enforcement, they should be considered to be a priority. Establishing such a system is crucial so that human rights cannot be arbitrarily ignored in cases where the government does not support the victim. Examining the process of implementating laws is even more important, in many ways, than solely monitoring legislation itself.

4.) To what can the backlog in the courts be attributed? Could more cases be turned over to the lower courts? I would be grateful for some feedback here…

5.) Education is equally vital, and the reassessment of school curricula and textbooks in terms of violence and respect for human rights may be necessary. In Muslim areas, tolerance for the realities of
rido should be re-examined, just as stereotypes about Muslims in mainstream texts should be carefully scrutinized as well. How are Muslims represented in these different contexts and what alternatives to rido are presented? Do they take into account indigenous cultures, on the one hand, and international mechanisms for conflict negotiation, on the other? Rido between two pro-government Muslim clans, on the one hand, and between an insurgent group like Abu Sayyaf and a pro-government group (whether Muslim or Christian), on the other, will also have to be clearly distinguished in these texts and in public perception itself.

6.) The Mindanao civil society statement is fairly comprehensive, and addresses such issues as the
disarmament of the CVOs, the total disbanding of the private armies of all political clans, and the call for government to uphold the constitutional provisions that ban private armed groups: http://durianpost.wordpress.com/2009/12/02/mindanao-civil-society-statement-on-the-ampatuan-massacre/

7.) Truth and reconciliation commissions have gone a long way in healing post-conflict societies like Rwanda, El Salvador and South Africa. They could theoretically have a profound impact on Philippine society because they can potentially open the national dialogue on impunity:

8.) Zero tolerance for bribery at all levels of society -- whether they are being made or accepted by lawmakers, the judiciary, government employees, candidates for public office, or members of the military and police. Media watchdogs, as well as NGOs such as Transparency International, need to highlight such exchanges as and when they happen so the public can make its own assessments. For its part, the public needs to resist the temptation to accept bribes and to choose candidates that are merely entertaining and appealing for superficial reasons. Candidates that are known for their corruption and lack of respect for human rights, however attractive, should be regarded with wariness because they are likely to recommit these self-same crimes in future contexts.

9.) Ideally, zero tolerance for impunity should be the hallmark of the next administration. Failing this, however, it is up to civil society to peacefully demonstrate in public rallies or in petitions and in the blogosphere, etc, to make sure their voices are heard. At a certain point, the government will have to take the sheer numbers into account and respond accordingly.

The Filipino-American contribution

It should be noted that the US would prefer to push for charter change because 100% foreign ownership of Philippine companies is in its interests, as opposed to the mere 40% the current Constitution allows. The US military is also primarily Republican and will no doubt support the candidate who is pro-VFA. Put rather bluntly, the potential exchange of funds from the former to the latter could be fairly sizeable indeed.

In view of the global economic crisis, the US, China and others are obviously looking for resources all over the world as well. It should be noted that the
metallic deposits in Mindanao include lead, zinc, ore, iron, copper, chromite, magnetite and gold; in fact, gold mined in the region accounts for nearly half of the national gold reserves. Mindanao also has significant oil and natural gas reserves. It therefore comes as no surprise that foreign companies have had their eye on it for some time. The fact that conflict is being fomented so as to spur the US-led global arms trade is a remote (if somewhat unthinkable) possibility. Either way, the Philippines in general, and Mindanao in particular, are strategically and geopolitically critical for the US in terms of such concerns as global terrorism (Abu Sayyaf/MILF at home, Jemah Islamiyah next door, and links to Wahabi Islam in the Middle East, a region that can be directly accessed by unpatrolled waterways in the Philippines) and the threat of China in the region, for example.

So it would make sense if the US candidate of choice were Gibo, not on the merits of his person but because of where he stands ideologically in reference to the US. But since Gibo is heavily implicated in the arms caches and private armies in Maguindanao and elsewhere, and since he has supported GMA throughout (never having once criticized her), the issue is no longer about parliamentary change but about GMA’s ambitions, which we cannot allow to flourish. Fil-Am groups in the US have petitioned for $2b of the $33b in military aid to the Philippines to be
tied to human rights. But since we do require arms for our own geopolitical and internal security, perhaps it might make more sense to request that
all aid be tied to human rights. In other words, could we make an acceptable human rights record a prerequisite for US aid in general, whether military or otherwise?

11.) Instead of direct aid alone, perhaps the US could loan equipment to the Philippine military with a maintenance agreement (i.e., the US could maintain the inventory, audit and maintenance contract, for example). This way, the Philippines would get the equipment but would be unable to sell it on the black market. This is an urgent concern because many of the arms used by warlords, as well as by the MILF and Abu Sayyaf, are often sold on the black market by rogue members of the Philippine military (as may well be the case with the Ampatuans). The Philippines could then pay a small maintenance cost and in turn would get continued upgrades in terms of equipment and technology.

12.) An independent investigation into the massacre is urgently needed, in view of the very real possibilities of a whitewash, as Rep Howard Berman’s recent US Congressional bill has demanded:

13.) Independent monitors on the ground before and during the upcoming elections will also be critical to minimize widespread cheating. Fil-Ams and the international community as a whole should continue to press for this.

14.) While the Philippines greatly appreciates the support provided by the US and other countries after typhoons Ondoy and Pepeng, what is really needed in the long-term is the transfer of technology and know-how to the country. Helping us develop cutting-edge innovations and technologies -- through education, training and technology transfer -- would make us more genuinely competitive in the global market. This technology will naturally have to take into account the realities of the tropics and the specificities of Philippine conditions.

For instance, the former Subic base could be used as an investment conduit for the US and foreign private sector with a preference for small-medium green-tech solution projects (manufacturing and research, etc), targeting specific regions with additional livelihood programmes. This would allow the Philippines to leap-frog industrialization and make the regions more autonomous from the main power corporations currently supplying the entire country.

A final word.
Fareed Zakaria would describe the Philippines to be an “illiberal democracy.” As he points out, the bedrock on which democracy is built -- constitutional liberalism or the rule of law as the centrepiece of social organization itself — is far more foundationally important than voting and mere elections. We do, in fact, have a fairly decent Constitution and set of laws (although some revisions would not be unwelcome) but are ultimately weak in matters of enforcement. This is because dictatorship, impunity and corruption have tended to supersede the rule of law.

We cannot have the kind of economic development Zakaria deems necessary for the lessening of human rights violations if our leaders keep pocketing the spoils. As he so aptly put it in “The Future of Freedom”: “Modern democracies will face difficult new challenges -- fighting terrorism, adjusting to globalization, adapting to an aging society – and they will have to make their system work much better than it currently does. That means making democratic decision-making effective, reintegrating constitutional liberalism into the practice of democracy, rebuilding broken political institutions and civic associations. Perhaps most difficult of all, it requires that those with immense power in our societies embrace their responsibilities, lead and set standards that are not only legal, but
moral. Without this inner stuffing, democracy will become an empty shell, not simply inadequate but potentially dangerous, bringing with it the erosion of liberty, the manipulation of freedom, and the decay of common life.”

It is high time we chose leaders who would not allow democracy to become yet another empty shell, who have the inner stuffing to choose what is ethical over what is lucrative, and who would frown upon impunity as a crime against the ancestors who built our nation, the history that forged our consciousness and humanity as a whole.

Image: Hercules and the Lernaean Hydra, 1490s, parcel-gilt bronze, Museo Nazionale del Bargello, Florence: http://www.cartage.org.lb/en/themes/arts/scultpureplastic/sculpture/bigphotos/A/hercules.jpg