Domesticating Human Rights Prosecution

By Joyce Fernandez

On June 1, 2011, Andal Ampatuan Sr., the former governor and notorious warlord accused of masterminding the 2009 massacre of 57 people in the Southern Philippines province of Maguindanao, was finally arraigned in a Manila court, a year and a half after his arrest, and 10 months after he can legally delay entering a plea.

More consternating to those already wearied by the leaden pace of justice was the fact that the arraignment only happened because Ampatuan, patriarch of the clan that has controlled conflict-ridden Maguindanao for generations, volunteered to have his day in court, allegedly to distract the public from a supposed $4.5 million payout by his fellow accused son for a favorable judgement on his own case. Not surprising to many, Ampatuan Sr. pleaded “not guilty” to 57 counts of murder.

Powerful people in the Philippines are generally thought to play fast and loose with the rule of law, so wanton is the disregard for justice and lawful conduct, in fact, that impunity can assume a snarky, almost comical aspect: In May, another provincial governor convicted of killing his long-time confidant was caught on security camera ducking into a family-owned building in Manila’s posh business district while serving a 12-year term in the national prison. When rearrested, the ex-governor insisted he was not escaping, merely having an ‘intolerable” toothache checked. How was he able to just walk out of jail? “There are eight gates (at the prison), which cannot all be guarded,” he told media.

Impunity is such that public horror over capers and tragedies alike tends to subside once the media spectacle has played out, giving way to a deep cynicism that justice can ever be served or that the rich and mighty can even be touched. The brutality of the Maguindanao murders—in which the victims were found shovelled into a shallow pit, with the women’s bodies horribly mutilated—shocked the nation, but many thought it would have been another case of bitter, election-related violence in the far-flung badlands of Mindanao had 32 journalists not been among those killed.

The mass killing of journalists, the biggest ever in the world in one single event, drew international attention and put pressure on then President Gloria Arroyo to order the arrest of her political allies, the Ampatuans. And even with the intense media circus surrounding the case, the continued inversion of justice has gnawed at the likelihood of conviction—a key witness has been killed, others have withdrawn, legal processes have been twisted like so much silly string. “An arraignment made dependent on the willingness of the accused to enter a plea weakens and undermines the rule of law,” says Harry Roque, lawyer for the victims’ families. “This is truly a sad commentary on the state of our criminal justice system.”

A roadmap to end impunity

In February, the Philippines finally ratified the Rome Statute of the International Criminal Court, signifying its commitment to uphold human rights and international criminal justice. Recent trends in criminal law, however, suggest that a country battling systemic impunity and corruption like the Philippines can demonstrate stronger commitment to the rule of law by availing of a UN-backed “hybrid” tribunal that embeds international initiatives within a domestic context, similar to the commission created for the crime-ridden state of Guatemala now being hailed as a “groundbreaking” new model for international criminal justice, the International Commission against Impunity in Guatemala, or CICIG. Adopting a CICIG-like model can offer a roadmap for the Philippines to strengthen its legal system to end structural impunity and corruption under the impartiality of an international body.

Guatemala after its civil war became a no-man’s land of illegal security forces and clandestine criminal organizations, which had close ties to state institutions. The government was powerless to stop the murders, kidnappings, extortions and gang violence that increasingly threatened citizens. Philip Alston, the UN Special Rapporteur on Extrajudicial Executions, famously summarized the country’s chaos: “Guatemala is a good place to commit a murder, because you will almost certainly get away with it.”

Escalating lawlessness prompted Guatemala to seek UN help. A 2003 proposal for a similar commission to investigate illegal security groups judged unconstitutional by a Guatemalan court was re-negotiated to limit prosecutorial powers to joining cases only as a private prosecutor and became the basis for CICIG.

Since its creation in September, 2007, CICIG has achieved “notable and unprecedented short-term successes,” according to a recent report by the conflict prevention think tank International Crisis Group, including the dismissal and prosecution of several senior officials, the removal of a compromised attorney-general and the selection of a respected successor, the adoption of guidelines for the appointment of Supreme Court justices, and the enactment of legal reforms.

Headed by a UN-appointed foreign commissioner and incorporating international staff, the commission’s independence, objectivity, and expertise have given it great credibility among the Guatemalan public, making crucial cracks in the wall of impunity. “Guatemala definitely is better (because of CICIG) in terms of those engaged in corruption knowing they are more at risk,” says Mark Schneider, senior vice-president and special adviser on Latin America of International Crisis Group.

A similar history

CICIG’s significant innovation, according to a 2010 report in the Journal of International Criminal Justice, is a “demonstration effect” that translates its “ultimate deference to the domestic judicial system” to an opportunity to train local personnel and transfer technical capacities and push for legal reform. It also has the potential to dismantle organized crime “by successfully investigating and assisting in the prosecution of a small number of emblematic cases.”

CICIG’s effectivity was highlighted in the bizarre case of Rodrigo Rosenberg, a lawyer who engineered his own assassination to frame President Alvaro Colom for the murder of a businessman and his daughter. The accusation nearly toppled Colom’s government, and it turned to CICIG to investigate, and ultimately, resolve the case, which also led to uncovering police groups for hire as assassins.

The parallels between Guatemala and the Philippines are striking, and should augur well for the adoption of a similar commission in a country where the homicide conviction rate is 10 percent (Guatemala’s is a staggering 2.06 percent), where police and military elements are said to be involved in crimes ranging from carnapping syndicates and narcotics trafficking, to goods smuggling and illegal gambling, and where politicians’ heavily-armed private militias roam unchallenged in the regions.

Both countries have similar historical experiences, a common colonizer (Spain), a small elite and a massive underclass, an agricultural economy and land reform struggles, endemic corruption and tax collection inefficiencies, and a lack of basic services. Both even share the same year, 1986, when democracy was restored.

The similarities are such that the eight high-profile cases CICIG took on to galvanize public attention can easily find corresponding cases in the Philippines that will resonate with the public—in Guatemala, cases against the daughter of a congressman for human trafficking and illegal adoption, against military generals for embezzlement, against a senior prosecutor for obstructing justice, and, most notably, the embezzlement charges against ex-President Alfonso Portillo, likely will connect with Filipinos who have been fed a daily diet of government scandal in the press: the P73.85 million tax evasion complaint against the congressman-son of ex-President Gloria Arroyo, the alleged rubout by the national police of members of a notorious crime syndicate, and the supposed “deliberate inaction” of the public prosecutor on cases against close political allies of ex-President Arroyo. The close comparisons indicate that if a hybrid commission can work in Guatemala, it can do so in the Philippines.

A workable prospect

“We should really follow the CICIG model,” insists Harry Roque. “I think it is very clear that the Philippine government is simply not equipped to handle cases such as the multiple murders in the Maguindanao massacre. Our rules are antiquated.”

UN Rapporteur Frank La Rue, the Guatemalan human rights lawyer who had been a consultant to CICIG, according to Roque, is coming to Manila in September to explore the creation of such a commission for the Philippines.

While CICIG is virtually unknown in the Philippines, there are indications that such a novel arrangement may have avid takers. Corruption may be structural, and the population, jaded, but, the international profile of such a commission may be attractive to the Aquino government.

Observes long-time journalist and foreign affairs expert Jose Franco: ”Given the Philippine democratic setup—having a multi-party system, strong civil society movements, a zealous student activism and a vibrant environment for political squabbles—I have no doubt that the country will be among the first to replicate the CICIG. The Philippines, being a founding member of the ASEAN and the UN, has shown its astuteness in interpreting the various regional agreements and international conventions.”

A Philippine commission, moreover, can learn key lessons from CICIG’s mistakes and refine the model. Despite its successes, CICIG has been criticized for arbitrary case selection and failing to lay the groundwork for the eventual dismantling of illegal security groups. The commission also failed to secure long-term funding commitment from its UN donors such that CICIG’s direction depended on ”virtually annual forages of funding,” according to ICG’s Schneider. ”But CICIG clearly is a demonstrably useful and novel effort to bring independent and competent strengths to the battle against impunity and corruption. It may have to be modified for different countries but the core competencies should be retained and replicated.”

The model’s local judicial legitimacy, moreover, should remove any objection President Aquino may have to a hybrid commission on grounds of violating sovereignty, argues Roque. The existing European Union-Philippines Justice Support Program (EPJUST), which monitors extra-legal killings and enforced disappearances in the country, is already a precursor, he points out. ”Only a commission like CICIG’s (which has powers to promote prosecution, not just to investigate) will be more proactive.”

The Philippines, in fact, had already come close to a CICIG-like intervention when it asked the US government to determine the innocence or guilt of a Filipino housekeeper convicted of double murder in Singapore, which had sparked an intense diplomatic row between the two neighboring countries. The US investigating team upheld the conviction, and the two countries decided to resume diplomatic relations.

Political will or won’t?

All indications point to the country capable of making a hybrid commission workable, and perhaps, with its past experience, even more successful than Guatemala’s. The only question remaining is the Philippines’ inclination to do so. As with most initiatives in the country, in the end, the determining factor again rests on the much-debated (or much-awaited) political resolve of President Aquino, who has made fighting corruption the avowed cornerstone of his administration (His campaign slogan, “No Corruption, No Poor.”) He will have to summon the courage to stand up to the corrupt politicians and military generals and their organized-crime associates who will likely oppose the commission. His main advantage in this respect: Unlike his predecessors, he is widely thought not to be personally corrupt.

In such wait-and-see climate, some are understandably not so optimistic, given an equally deepening culture of  apathy. Guatemala got CICIG as a desperate response to a “rising fear of a narco-criminal state that drove even conservative forces to accept an international law enforcement intervention of this nature,” according to Schneider. Such “critical circumstance,” it is argued, has yet to happen in the Philippines, and the alternative, the President’s volition, remains an exasperating, Hamlet-esque speculation. Says lawyer Ray Paolo Santiago of the Working Group for an ASEAN Human Rights Mechanism: “Although there are parallelisms between the Philippines and Guatemala, the main difference is the complete breakdown of the government system. The Philippines has not reached that level. I think we are actually far from that.

“What is needed is a strong political will by the Chief Executive. It is not a question of whether it can be done. It is a question of whether there is will for it to be done.”

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