Wednesday, April 21, 2010

Maguindanao Massacre Victims: AGRAbiyado

The Maguindanao Massacre is back in the headlines and in barber shop talks. Acting Justice Secretary Alberto Agra decided to clear two powerful members of the Ampatuan clan in the massacre of 57 people, including 32 media workers, several women and children. This is in reckless disregard of the position of the lawyers directly prosecuting the case and of the presence of a witness positively identifying suspended Gov. Zaldy Ampatuan and Vice-Gov. Akmad Ampatuan, Sr. as co-conspirators of the massacre.

Agra, who was the election lawyer of President Arroyo and of the Ampatuans, accepted and cited the alibi defense of the two Ampatuans as his reason for their clearance in this most brutal election-related killing in history. Instead of using the resources of the government to help the victims procure and consolidate all proofs showing an Ampatuan clan conspiracy, he chose to use the powers of his office to allow his former clients to escape with the weakest of defenses in conspiracy cases. An offender does not have to be at the scene of the crime to have participated in planning and conspiring to commit the crime. The claim that they were with President Arroyo and other Muslims when the massacre was being committed would only give credence to additional suspicions.

Instead of letting justice take its course and letting the judge who had already assumed jurisdiction over the case, try and decide, he chose to override the opinions of the prosecutors directly involved in procuring, preparing and organizing voluminous evidences and records. He did it after reading and studying such records within 24 hours. The fact that the judge already determined probable cause by issuing warrants of arrest was of no consequence to him.

For his action, the Acting Justice Secretary aggravated the suffering of the massacre victims who got reassurance from him that he would study it thoroughly a day earlier. There are now doubts on whether the victims would be able to obtain justice under the present dispensation.

In order to emphasize a point, my law professor used to tell our class, “let me repeat it again once more for the second time twice.” In a similar vain, let me also say, “I have said it, and wrote about it. Now, let me say and write it again, the Maguindanao Massacre is a Crime against Humanity and it must be treated as such.”

The Ampatuans and their co-conspirators are charged with killing children, women, and journalists who are protected parties under International Law. They offended not just Filipino citizens in particular, but all of humanity in general. They can therefore be tried outside of the Philippines. Some international and/or foreign courts can acquire jurisdiction and try them under a different set of rules without the aggravation of dealing with a questionable judicial system subjected to potential terror, intimidation, and corruption. Yes, let me repeat, in Crimes against Humanity, there is Universal Jurisdiction.

The case can be tried either later this year, next year or anytime in the future. The Statute of Limitations does not apply in cases of this nature. It would be good to have a government that is supportive of the case but it should not be a deterrent if the Philippine Government opposes it. Currently, we just let the prosecutors procure, gather and prepare the evidences and records for the domestic trial. We also have to make sure that such evidences are kept and protected safely. There are new methods of preserving records in this age of information technology and cloud computing.

The ex post facto law doctrine in Crimes against Humanity also may not apply. So, if a law is passed to make sure that a fair trial is conducted but detrimental to the interests of the accused compared to the previous one prior to passage, it could still be applied retroactively. The fact that an action is violative of a Philippine law or domestic law is no defense in international proceedings of this nature.

Double jeopardy is not necessarily a safe defense for all the accused if they get exonerated or if charges are dropped/dismissed in the Philippine trial. It just has to be proven that the trial was a sham.

In Crimes against Humanity, punishable are those who committed the crime/s and also those who failed or omitted to stop the commission of such crime/s. That’s why as enunciated in several cases, the principle of Command Responsibility is an accepted doctrine in International Law. Some Heads of States, senior officials of the government and military commanders have been charged and/or convicted under this principle. Full knowledge of the criminal acts by the superior is not even necessary.

The inclusion of President Arroyo and some of her senior officials together with the Ampatuan conspirators in such charges therefore, could be a distinct possibility.

The fact that Arroyo and many of her people are running for Congress could be to obtain the immunity privileges accorded their respective positions. It is even better for them if the next elected Chief Executive would be somebody on their side. This way, when traveling abroad, they could be provided with diplomatic cover.

Electing the right President therefore is critical but should not be a major deterrent. There are other remedies provided by International Criminal Law.

When asked about his view, my barber said, “you? AGREE; AGRA? No; Massacre Victims? AGRAbiyado!”

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