Collision Course

July 19, 2007

This week’s human rights summit held on July 16-17 at the Manila Hotel brought together about 250 participants in search of solutions to the epidemic of summary executions and enforced disappearance that has hounded the nation since 2001. Responding to the invitation of Supreme Court (SC) Chief Justice Reynato S. Puno, the participants included lawyers, academic scholars, human rights volunteers, legislators, interfaith leaders, press freedom advocates as well as government executives and magistrates. Conspicuous in their blue and grey uniform were elements of the military and police, led by their top honchos. The presence of some members of the diplomatic corps including a representative of the International Criminal Tribunal for the former Yugoslavia (ICTY) underscored the fact that this particular domestic concern has achieved an international dimension, the likes of Rwanda and other countries plagued by human rights violations.

The summit was convened to address the deteriorating state of human rights in the country but it came as a letdown to rights watchdogs, cause-oriented organizations and interfaith groups — whose members were also victims of extra-judicial killings and enforced disappearances – who had to lobby hard on the eve of the event for them to participate.

Just the same, the summit has been lauded as “unprecedented” for having been initiated by the high court chief justice to address the pressing issue of political killings, with about 865 victims to date aside from hundreds other victims of frustrated murder and enforced disappearance committed allegedly by state security forces under the watch of President Gloria M. Arroyo. CJ Puno, in his keynote address, said the judiciary decided “to unsheathe its unused power to enact rules to protect the constitutional rights of our people, the first and foremost of which is the right to life itself.” Described as a “risk taker,” Puno has sought to marshal “judicial activism” to confront attacks on the rule of law the arrest of which, in his opinion, has failed to draw any action from the legislative and executive branches of government.


In that light, the summit was indeed unprecedented. But the atrocities, where most victims were unarmed civilians collectively in their tens of thousands, have persisted — fueled no less by a culture of impunity and a fear factor — over the past 35 years or since the Marcos dictatorship, then through the various presidencies that followed, and now. The high court itself had been strongly criticized for its complicit stance during martial law and also for rulings it issued after that, such as on the warrantless arrest and military checkpoints that had shades of authoritarian justice.

Under Arroyo, the failure of the country’s criminal justice system to provide succor to the victims of crimes against humanity forced their families and human rights groups to knock at the doors of the international community for intervention. Thus it took nearly 900 killings more and 50 fallen journalists and for the diplomatic and human rights community to sound the alarm before the high court’s 15 justices would be roused from their slumber to find the atrocities as constituting not only attacks against constitutional, civil and political rights but a subversion of the rule of law.

More petrifying to the magistrates, the victims and their kin have lost hope in the justice system precisely because the system –- specifically many of its investigators and adjudicators –- had been prejudicial to them. Graver injustice was being committed due to the system’s failure to uphold the victims’ rights including their right to be accorded justice. Among many prosecutors and judges, there appears to be poor competence in the field of human rights and humanitarian law let alone a compassion for the targets of political persecution. The high magistrates, benumbed by their so-called “cold neutrality,” should be the first to know: the court system is not for the poor and defenseless. The sword of justice that is now unsheathed has not only been unused –- it has long been corroded by the apathy and cold shoulder of the judiciary itself.

Oplan Bantay Laya

It appeared that many summiteers were prepared with their inputs for the agenda toward a “holistic” solution to the killings, whether in terms of strengthening the judicial power or in making sure that the victims’ constitutional rights are protected. This was not going to be easy, however. Those representing the Arroyo government’s security agencies used the occasion as yet another battlefield of their Oplan Bantay Laya: to “win the hearts and minds” of the summit, with a bag of counter-punches against the Left particularly the human rights alliance Karapatan often delivered with arrogance and chutzpah. The PowerPoint presentations during the plenary and declarations mouthed in many workshops on the second day spoke of their avowed role in defending the state against its enemies reminding participants that the killings should be seen in the context of an internal conflict. One begins to comprehend why government’s counter-insurgency is a wrong strategy because it is premised on the erroneous definition of the problem: The main problem, it was said repeatedly in the workshop skirmishes, is insurgency.

The men in uniform appeared to have missed what various presidents had admitted — after realizing they could not defeat the armed Left with guns alone — that unless fundamental problems of poverty and injustice are rooted out the armed struggle will continue. Jose Almonte, a former guerrilla hunter and national security adviser of former President Fidel V. Ramos, admonished his fellow officers in the summit that to defeat insurgency they must engage the rebels with better ideas and not with bullets. He should have also asked them to re-read Carl von Clausewitz: war is first and foremost a political war.

In the end, the cooler heads and rational minds prevailed leaving the self-anointed “security doctrinaires” sounding more like musketeers than summiteers. Among many other proposals, the summit members sought to expand the Commission on Human Rights’ (CHR) prosecution powers; adopt international laws on command responsibility and determine how the state can be held liable for damages; empower investigators to search government/private premises for victims of enforced disappearances; make killings of activists, journalists, lawyers and judges a new crime; the review of state’s military approach to the armed struggle and the resumption of peace talks between the government and the National Democratic Front of the Philippines (NDFP).

Many of the proposals seemed congruent with some of the measures that CJ Puno and company had in mind in line with infusing judicial intervention in an issue that cannot be addressed by the judiciary’s co-equal branches, by reason of complicity or default. Yet, the soundness of the proposals should be measured not just in their validity but in the fruits they are expected to bear. Reform is fine where there is least resistance; in the historic struggles of the poor and victims of human rights violations, the reforms that cry out to be heard have either fallen on deaf ears or been muted with reprisals by the state’s reactionary institutions. Congress is the crafter of laws that mangle constitutionally-enshrined rights and liberties, the latest being the much-condemned Human Security Act. First to break the law, the office of the President will, come hell or high water, pre-empt any move that would place it under the doctrine of command responsibility.

Institutional collision course

Given these circumstances, can CJ Puno steer the course of judicial activism aware that this will put the high tribunal on an institutional collision course with the President and the oligarchs in Congress? Can he rally the entire criminal justice system, along with its prosecutors and magistrates, to help bring coherence to this crusade? Can he put real substance and momentum to his “holistic” strategy against the sadistic violence of the state –- of which the judiciary is part?

On a positive note, the first step taken by the judiciary toward the search for justice and redress has been done. It is a good enough move that warrants a shove by all non-state institutions and organizations struggling for a just and humane society. There is no room, however, for entertaining any illusion that the work can bear meaningful results in this generation. More arduous steps need to be taken.

For reference:

Prof. Bobby Tuazon


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