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.