Friday, November 30, 2007

Rapporteur is French for Reporter and Amparo is Gobbledygook for Unconstitutional

UN Rapporteur Philip Alston is NOT the United Nations. Neither is the UNCHR (Human Rights Commission). But that banner headline on Wednesday, UN: AFP behind killings gave many PDI readers the false impression that the United Nations itself was blaming the Armed Forces of the Philippines for the killings. (No one does headline innuendo more adroitly!)
Thus the Final Report of Philip Alston to UNCHR on his Mission to the Philippines arrived like a bombshell the Wednesday before the Makati Peninsula stand-off. Perhaps Sen. Trillanes and Gen. Lim thought the authorities would be too stunned to react if they pulled some kind of stunt on Thursday, which they did by walking out of Judge Pimentel's Court room and holding court instead at the Makati Peninsula, along with several hundred journalists and supporters. Trillanes and Lim misread both the authorities and the Public if they thought they could foment a withdrawal of support scenario based on the Alston Report and the takeover of yet another posh Makati address.

But the record should be set straight. Philip Alston's Report is NOT a judicial or legal finding. It is a summary of observations and opinion of an essentially JOURNALISTIC nature. It is the result of a nine day visit to the Philippines last February during which Philip Alston conducted some number of interviews and briefings in Manila, Baguio and Davao. From the testimonies and documents he was shown by both government and NGO sources, Alston concludes that between 100 and 800 killings have taken place since 2001 outside the bounds of Philippine and international law. The lower figure comes from police and military authorities while the higher numbers come from NGO's like Stop The Killings and Karapatan.

The Alston Report is not however a primary source of data or evidence on extra-judicial killings in the Philippines. It's main objective is to try and explain the killings as such, so that the UNCHR can later come to further conclusions and recommendations. Alston lays most of the blame for extra-judicial executions of leftist activists since 2001 on the Philippine Military and its Commander in Chief, President Gloria Macapagal Arroyo. Alston finds "strikingly unconconvincing" evidence that the CPP NPA NDF is currently engaged in a large-scale purge adding that "The military’s insistence that the “purge theory” is correct can only be viewed as a cynical attempt to displace responsibility."

Alston specifically blames the Arroyo administration's counter insurgency strategy which targets "front organizations" of the communist movement by going after its local leaders and organizers using both legal and illegal tactics. This focus on above ground mass organizations and leaders as communist fronts, claims Alston, has led to the reported string of extra-judicial executions of leftist activists under the Arroyo administration. And he asserts that the killings continue because the perpetrators of past killings have not been arrested or punished by the criminal justice system.

A careful reading of the Alston Report reveals it to be "balanced" in the sense that it does not spare the CPP NPA NDF from the accusation that it too conducts extra-judicial executions and engages in insurgent activities and combat tactics considered illegal from the standpoint of international law. These violations include the holding of sham "people's courts" which can pass death sentences and other punishments without any legal framework and are tantamount to kangaroo courts.

However, the Alston Report puts the Philippine Government and the communist insurgents on the same moral and legal level of equivalence. The basic thesis of the Report is that both sides are guilty of violating Philippine and international law, but that the Philippine government and military are somehow more guilty.

It ignores the essential reality of the insurgency, which is an armed, violent and ongoing criminal activity that is supported by organized extortion and front organizations. It is silly to deny or ignore the fact that the CPP makes use of front organizations and personalities in almost everything it does. And that MOST its work is actually conducted not through the NPA, but through the NDF and its "united front".

One might ask Mr. Philip Alston to name the members of the CPP NPA NDF that he has met or communicated has communicated with. I bet he would be hard pressed to give one example for each organization because even Jose Maria Sison won't readily admit to being a Member, even if he is widely acknowledged as the CPP's founder and still chairman and grand poobah.

Nonetheless, it may yet be useful that at least Philip Alston acknowledges and identifies the decades-long-in-the-tooth communist insurgency as the locus of circumstances and events at the very center of the phenomenon of extra-judicial killings of leftist activists.

Many people find it a logically persuasive claim, at first, that leftist activists are being killed extra-judicially by rightist elements, such as military or vigilante death squads, a practice known as "SALVAGING" under the Marcos regime. Yet it is not only Marcos fascists or military rogues who've tortured and killed leftist activists in the past, but also the leftists themselves. This happened in paranoiac purges against alleged deep penetration agents of the government in the 1980s and assassination strikes against Joma's ideological and organizational rivals.

But here is a counter-example for Mr. Alston to consider in his stack of evidence that comes from November 2007 and not November 1987.

At STOP-THE-KILLINGS website take a look at this still uncorrected entry A family of 4 abducted by soldiers of the 74th IBPA in Agdangan, Quezon Province, Philippines. This entry from 4 November 2007, is typical of the 850 or more extrajudicial killings or enforced disappearances that United Nations Rapporteur Philip Alston mentions in his Final Report to the UN Human Rights Commission, for which he blames mainly the Armed Forces of the Philippines. The entry and report in the Stop the Killings Website is false and wrong!

In the Amparo Plea of Malapute a certain Roperto Malapute claimed to the court that his son Edwin may have been abducted by the military in Quezon province. Turns out, both his son Edwin, daughter Edwinalyn, her husband Primo Retuda and their young daughter, were all in the protective custody of the Philippine Militar --as rebel returnees waiting to be reintegrated. Although Edwin agreed to return home with his father, Edwinalyn and Primo indicated their desire to stay under the military's protection.

We do not of course know what the true relationship is between father, his son, daughter, granddaughter and son-in-law. But the circumstances and disposition of the writ of amparo issued in this case clearly suggests that the Puno Court's inventions have indeed, vastly expanded the substantive rights of nosey relatives. It has also informed the New People's Army exactly where their missing recruits, Mr. and Mrs. Reduta have gone off to.

What I take from this case is the realization that a large percentage of the cases that Philip Alston considers as "evidence" of extra-judicial killings or enforced disappearances may be similar in circumstances and details to the Malapute case. How would he know? He was here for a scant nine days, just like any other parachute journalist. All of a sudden he's got Ph.D. on Philippine security affairs?

The communist movement puts a lot of its time and resources into above ground operations, fund raising by extortion, protection and blackmail; political recruitment and organizing; the legal parliamentary work at Congress and of course, peaceful but confrontational mass actions and demonstrations that ever keep the political kettle warm.

The Alston Report also takes to task the Philippine Justice system, which is of course an Augean Stable of backlog, gridlock and corruption. But let me help him out a little...

Although it may not be quite enough for somebody like Philip Alston, the Philippine Supreme Court is unabashedly activist. Nothing could make this clearer than the introduction of the writs of amparo and habeas data. They are touted by the Chief Justice Reynato Puno as the Court's contribution to the protection of human rights. The Supreme Court is said to have unsheathed special powers in making such new "Rules of Court" found in the following Constitutional provision on the powers of the Judiciary:
1987 Art VIII Section (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
In promulgating its new Rules of Court on the Writ of Amparo has the Supreme Court complied with the above provision not to diminish, increase or modify substantive rights? In the Supreme Court's News Flash September 2007, we have this on the new Rules of Court on the Writ of Amparo:
Today, the Supreme Court promulgated the rule that will place the constitutional right to life, liberty, and security above violation and threats of violation. This rule will provide the victims of extralegal killings and enforced disappearances the protection they need and the promise of vindication for their rights. This rule also empowers our courts to issue reliefs that may be granted through judicial orders of protection, production, inspection, and other reliefs to safeguard one’s life and liberty,” said Chief Justice Puno.

The writ of amparo imposes a higher standard of diligence (extraordinary diligence) on public officers or employees than on private individuals or entities (ordinary diligence). There shall be no presumption of regularity on the part of the public official or employee. The filing of the petition for the said writ is not mutually exclusive with the filing of other reliefs (i.e. habeas corpus), as well as the filing of separate criminal, civil, or administrative actions.
If one considers those criminal, civil or administrative actions which "not mutually exclusive" with the filing for a Writ of Amparo, not one denies the PRESUMPTION OF REGULARITY on the part of public officials and employees. Since the filings of one or more of all of these reliefs is "not mutually exclusive" and one of them, the writ of amparo in fact denies the presumption of regularity on the part of the public official, has not such denial been effected for any concurrent legal reliefs being sought??? If so, has not a substantive right -- the right to a presumption of regularity -- been diminished thereby?

Hmmm, one might think the new Rule on Amparo violates the Constitution! But that would not be unusual for this Supreme Court which does not seem to regard the Constitution as a Social Contract at all but a pliable Construction for them to invent and re-invent, to redact as though it were a Bible.

28 comments:

viking said...

"If so, has not a substantive right -- the right to a presumption of regularity -- been diminished thereby?"
NO. Because the amparo would be a separate filing.
The state is supposed to have a monopoly of force, and our historical record shows it has not been judicious in its use. Thus the extraordinary remedy that its agents not be given presumption of regularity but only in amparo.

I know you're not one of those who believe Alston is just a tight-assed kangarooOr are you?

DJB Rizalist said...

viking,
tight assed kangaroo? I don't know about that. But he must be some country's Oliver Lozano. but it must be a special thrill to go to some 3rd world country and tell'em off like this. But I don't accept the equivalence he strikes between ROP and CPP. Sorry. To me he's just a fancy journalist with an officious but vacuous title.

the bystander said...

Is that all you can do Mr. Bocobo? Impugn the credibility of Alston as "a fancy journalist with an officious but vacuous title"?

If you do not agree with the Alston Report, how else would you explain these extra-judicial killings? Borrow from the explanations of Esperon and Gonzales?

You seem so sure that the AFP is not behind the killings, Mr. Bocobo. Why? Have you conducted your own field investigation on the matter?

Between a fancy journalist with an officious but vacuous title (who conducted a series of investigations and interviewed both sides) and a rocket scientist (who cannot claim to have conducted his own factual investigation), i'd rather choose the former.

STATE OF DENIAL. That's all there is to your statements.

DJB Rizalist said...

the bystander,
Mr. Alston is a rapporteur -- no more no less. I am merely emphasizing that fact. He has no especial insight, knowledge or finding that we did not already hear before. There is no more reason to get on the bandwagon now than there was when it was launched by the CPP. No doubt the killings are a mixture of victims, combatants, collateral damage, etc... all the vicious components of a war caused by an insurgency.

Without the insurgency there would be no killings on either side.

The end of the insurgency is my main goal. I should hope it would be yours too.

AdB said...

Dean,

A "rapporteur" in the diplomatic world or in the lobbying world is one whose mission is to examine elements presented to him/her, to ask questions, to evaluate data, etc., and to come with a report based on his/her findings along with recommendations if he/she so deems. A "rapporteur" in that sense is not a reporter in the press sense.

Today, a print medium or TV news reporter journalist is also called a reporter in the French language and not a "rapporteur."

Of course, as a UN rapporteur, it's true Alston reports his findings but he is also tasked with evaluating and making recommendations ...

Mr Alston is not a journalist, therefore he is not a "reporter" as you tried to imply.

AdB said...

Dean,

Re your "all the vicious components of a war caused by an insurgency."

Is the Philippines in a formal state of civil war then?

viking said...

The 'communist' insurgency is even more overrated than 'Islamic' terrorism, though Joma is a tad less insane than Osama. Have you ever heard of budgetary NPA's?
Do you know how to file an FIA demand in the US? Perhaps you can help, because way back in the sixties there were suspicions and indications that while most communist parties were going legal, the CIA was instigating splits and encouraging Maoist and assorted factions in the Third World to sustain the hot 'cold' war to justify the military buildup.

DJB Rizalist said...

ADB,
But does Philip Alston somehow know something we don't? Does he have any special information or insight? Did he investigate and discover something people did not already consider before? Does his Report represent anything more than another opinion biased towards one side?

AdB said...

Dean, to be honest, I don't know. Never met the fellow so can't answer you. Maybe he has or he hasn't. But I won't be surprised if he has access to some CIA or Australian intel files on the Philippines. Some of these intel agency files may have been sanitized when shared with some UN committees (Oh yes, Virginia, CIA files do land on some UN desks) but on the whole, they contain facts that a good soul like Alston can very well use.

But to answer your question, "Does his Report represent anything more than another opinion biased towards one side?", let me tell you that it's easy to believe that intel agencies like the US CIA present opinion in their reports biased toward one side -- part of the job and in line with their country's foreign policy with regard to "target" nation.

DJB Rizalist said...

viking,

you mean to say you can distinguish among degrees of insanity in joma and osama? the insurgency and the jihad are over-rated for budgetary reasons? these are mind warriors though and in many ways they've already won though they may never taste political power themselves. But their poisonous thinking and world views are ingrained in millions.

It's the war of the memes we must win.

Joma's and Osama's ideas are what must utterly repudiated, not liberally toyed with and tolerated like a box of dynamite lying around, or a vial of strychnine.

As far as I can tell, Philip Alston was put up to all this by a carefully orchestrated propaganda offensive that has been ongoing for several years. It began more or less after the EU and US called the CPP NPA "terrorists".

It's part of the victimological pose that historically the party takes when it is losing big time. But they hit a gold vein of propaganda with this one. Mix in all the battlefield losses with the collateral damage and other combat or intel related victims of circumstances and other issues, then start counting them up, listing and publicizing them, and blaming them all on the authorities as their responsibility to solve.

But over-rated? Since 1969 how many hundreds of thousands have been killed or wounded because of over-rated insurgencies, do you think?

DJB Rizalist said...

adb,
you are evading my question.

Is Philip Alston anything more than a parachute journalist that has been fed a lot of stuff by both sides?

AdB said...

Dean,

I'm not evading your question. Alston is supposed to be a rapporteur for the UN, therefore a bona fide member of a UN committee staff, an international civil servant sort of, paid to do a job by member nations of the UN and not your ordinary opinion writer for the print medium.

Up to you to equate an UN 'civil servant' who has an official UN mission to look into human rights abuses in RP a "parachute journalist."

Here's what, if you ain't happy with his performance and want him fired, talk to the UN Aussie delegation and complain or go straight to UN Commission of Human Rights that employs him (doubt though you'll get anywhere.)

DJB Rizalist said...

Pretend you are Philip Alston and you are asked how many of the 800 alleged cases are actually like the Malapute case, where a nosey father in law may have gotten his daughter and son-in-law in a lot of hot water with the NPA by revealing that they had actually returned to the govt fold when all along the front organization in charge of the XJ-Lists was touting them as "abductees"?

Is Philip Alston's information any good, better or worse than ours? That's my question. so what if he's on official mission? Does that give him xray vision or clairvoyance or telepathy or something?

AdB said...

Perhaps not xray vision but just like you, a person with a vision, i.e., someone who shouldn't believe that everything the AFP says is true.

AdB said...

Lemme now ask you this: Do you think he is wrong that "the killings continue because the perpetrators of past killings have not been arrested or punished by the criminal justice system?"

DJB Rizalist said...

adb,
the killings (all of them) continue because there is an insurgency whose legitimacy most people don't bother to question, certainly not as much as they question GMA's legitimacy.

War is hell, and I don't deny that abuses have occurred, are occurring and will continue to occur until the insurgency stops.

I am not defending the past practices of the AFP, but I am defending the institution and I refuse to accept any kind of moral parity between the AFP and the NPA.

None!

AdB said...

That's all in your honour Dean. I suppose having come in from the cold gives you a better vision of these things than those who didn't.

blackshama said...

Jose Maria Sison being compared with Osama Bin Laden? This is hilarious!

Both are subscribers to non-scientific ideologies. Marxism is a religion as much as the Jihadism of Bin Laden. Sison subscribing to a classless Maoist fantasy (utterly falsified. Mao's China classless?) and Bin Laden to a heavenly caliphate (Any Islamic state a paradise?)

Evolutionary biologist Richard Dawkins has a word for this "delusion".

Why should Joma be considered less insane than Bin Laden? Is Joma's Maoism more empirical than Bin Laden's ideology?

We can be empirical and objective and count the human casualties of Joma's revolution and Bin Laden's Jihad. Could insanity be measured by the amount of human casualties?

viking said...

Very sharp blackshama. But I do know that jomaoism is a less virulent virus and can be crushed if the insurgent left can be drawn into the democratic process, now being made a mockery by the current administration.

Dean,
Not to trivialize human life, but what did you include in 'the hundreds of thousands?' Obviously not the Viet Cong and the Khmer Rouge. I would also plead you not count the Sandinistas (FSLN) and the Farabundo Marti (FMLN) but you can include the Sendero Luminosos.

A bright negotiating tack from the govt. side (not possible with the dumb norberto gonzales) can really end the insurgency, and then we can save a lot by abolishing the AFP, and just maintain a Navy, as proposed by political scientist Claire Carlos.

FYI,
I'll be in Cambodia for the third time since 1982 in January to meet up with a friend from the International Committee on Transitional Justice who's monitoring the trial of the remaining leaders of the Khmer Rouge, who, if you recall, were supported by China and the United States during the hot 'cold' war.
This friend, by the way, was a student of Alston at NYU.

viking said...

I mean supported by the US in the United States after they had been overthrown by Heng Samrin and the Vietnamese in late 1979.

viking said...

the US in the United Nations, I mean.

DJB Rizalist said...

ADB,
You make it sound like i used to be some kind of big shot insider in the Politburo or something. Not even close!

viking,
I'll take any practical ideas you have for ending the insurgency for good.

ricelander said...

Here's a practical idea. Choose a pilot area, a province perhaps preferably the most infested one. Pour billions of pesos for infra and social amelioration projects. Send in the military dentists, doctors, teachers, civic workers in the same manner they did with Tondo and other urban centers. Show them the kind face of the military and use more innovation to show the true nature of communism. The idea is to create a focus point, a model. I think that should work.

The question is: does the military really want the insurgency to die to give reason for budget cuts for the military? Just thinking...

DJB Rizalist said...

the idea that the military does not want the insurgency to end so that they won't suffer budget cuts is like saying the DOH would want there to be permanent epidemics so it can justify its existence.

But in the case of national defense, there will always be a need to spend on it, i would think.

I don't understand your "practical idea" though ricelander. We already have all of the prosperous World to point to as the model of what we want the whole archipelago to be.

manuelbuencamino said...

A stiff arm salute to you my friend.

I join you and GMA in lamenting the fact that 99 percent of the military is not as dedicated to wiping out the communists as we are.

It's obvious that the only reason we still have communists in our midst is because only one percent of the millitary share our convictions.

Like you, I am infuriated by the Alston report. I almost blew an artery when you pointed out that our fighting men did not actually kill all those reds.

Our great leader called General Palparan a patriot and then you tell me he didn't actually kill all those people.

I thought our commander in Quezon province took care of the Malapute's and then we find out through amparo that he was actually harboring those reds. That traitor should be shot immediately!

Goddamit! Who can we trust?

But I guess it's not all bad news. That amparo thing is the silver lining. With it we can find out who among our uniformed men are exaggerating the success of their salvage operations and we can take appropriate action against those frauds.

DJ we need to be more vigilant. Do you know that Norberto Gonzalez is just a shade lighter than red?

Anyway, thank God there are people like you who still believe the Cold War is not over until every fucking commie in the world is buried in an unmarked grave.

Here's hoping your next post will be about those traitors who are talking peace with moros instead of systematically wiping them out.

We cannot rest until our enemies are resting in peace.

Sig Heil brother!

DJB Rizalist said...

mb,
boy that's quite a stiff arm...hope it's not gout, man...

ricelander said...

Communism feeds on the ignorance of impoverished people in the countryside, they who have no deeper understanding of ideology. Communism poses as a quick fix solution to injustice, poverty and inequality, issues closest to the heart of victims of the present order. You feel a victim, you grab any alternative preferably that espoused by a convincing recruiter. What do they know about the collapse of communism in Russia and elsewhere and why? or what about North Korea and why Joema would rather be in Netherlands and not in Cuba or China? Forget the communist intellectuals from UP, they are few. You give the people something they could experience first hand-- that's the purpose of the model-- a living repudiation of communism right on the doorstep.

You engage the communists in a tit-for-tat battle, you give them something to feed on. Oh, how they'd love it!

Take Jonas: he's your classic farmer-by-day-NPA-by-night protagonist. What did the military do and did not do is beyond our knowing yet on the level of proof- beyond-doubt but don't we have clues of prime suspects? Anyway, who the hell is winning the propaganda war on this issue? Say what you want to say but governments, by default, should go by the law and the communists being outlaws (not unlike the Abu Sayyafs or kidnap-for-ransom gangs, never mind the nobility or malignancy of their persuasions) are compelled to follow the laws only as far as practicable. You play by their way, they have shit to splatter on your face to compensate for their loss.

tiki said...

Can you produce evidence to prove that "the killings (all of them) continue because there is an insurgency whose legitimacy most people don't bother to question"? By evidence I mean links to verifiable and reputable reports or bibliographic information of such to prove your argument.

You also argue that "it must be a special thrill to go to some 3rd world country and tell'em off like this." What is your evidence for that?