20 September 2015
On the occasion of the 43rd anniversary of Martial Law:
Martial Law lives on in many ways, repackaged and reinvented in many forms
What is wrong with the legal system, particularly with respect to violations of civil and political rights? Why do extrajudicial killings,
disappearances, torture, arbitrary and illegal arrests, strategic lawsuits against public participation (SLAPP), red-tagging continue unabated, four decades after Martial Law?
Have we really moved forward or do the perpetrators and heirs of dictators just want us to mindlessly move on?
From our experience, we humbly submit these are some of the factors or elements that cause, engender or aggravate rights violations to this day:
1. The Philippine government’s rehashed counterinsurgency programs patterned or inspired by the US government’s dirty, anti-civil liberties war agains liberation movements and groups engaged in resistance, whether armed/underground or the legal mass movement, victimizing innocent civilians.
2. The unwritten prevailing government or official mindset or bias against dissent, activism, criticism and proposals by or against progressive activists, the so-called militant organizations and even the revolutionary Left, with the attendant militarist mindset and red-labelling even of journalists.
3. The mistaken or wrong notion and understanding of the concept of human rights: Who guarantees them, who is responsible for their protection, and who can commit the violations?
4. Selective justice with the present government’s priority ostensibly directed against showcase graft and corruption charges but never really so much on issues of human rights and accountability for rights violations.
5. Condonation of violations through routine promotions of high and top-ranking military and police officials who are facing serious and credible charges of human rights violations despite opposition from victims, families and human rights defenders.
6. Police investigation that is invariably sloppy and unprofessional and which is used for cover-up to pass off the blame to the victims themselves, the progressive organizations or the armed movement. At best, evidence is testimony-dependent and not scientific.
7. The judicial superstructure and legal milieu itself, wittingly or unwittingly, engender the violations:
a. The judicial system and procedure is tedious, cumbersome, protracted, slow and dirty or perceived to be dirty.
b. At most times, the legal and judicial process and procedure is inaccessible to the poor and exploited, that is why justice is elusive or very much delayed (if at all attained in time) especially in cases of violations of human rights.
c. There are deep-seated problems or bad practices like endemic corruption and use of connections, influence, power and all forms ofpersonal, professional, political, cultural or social ties that bind – palakasan, lakaran and gapangan.
d. In cases of charges against the powerful, rich and influential or those who have connections, it is the small fry that frequently gets the axe and the big fish/es get away.
There is a persistent double standard, or perception of such, in the treatment of cases and application or interpretation of the law (viz. for instance Enrile bail, among others). Records indicate there is no expectation of certain and credible arrest, prosecution and conviction of superior military or police officers for human rights violations).
e. There still is no immediate, speedy, meaningful and effective justice to all victims of human rights violations including adequate compensation, indemnification, restitution, rehabilitation and mechanisms for this purpose.
f. Many rights are “paper rights,” rendering legal remedies inadequate or ineffective.
Elegantly-worded constitutional rights and social justice provisions and pro-human rights provisions in some laws prove to be mere paper rights in reality and on the ground.
International human rights instruments, to which the Philippine government is a party or signatory to almost all, are given mere formal lip-service, compliance thereto being ritualistic and perfunctory.
Recent pro-human rights laws or instruments like those against torture and disappearances, the Martial Law Compensation law, the remedy of the writ of amparo, as well as the Comprehensive Agreement on Respect for Human Rights and International Humanitarian law or CARHRIHL are either unimplemented, diluted or circumvented.
The remedies of the privilege of habeas corpus and the writs of amparo and habeas data have proven in many instances to be largely ineffective or frustrated to abate rights violations for extrajudicial killings and disappearances as they have many loopholes and are even mocked or corrupted by State security forces.
g. Repressive laws and jurisprudence remain in force, some dating back to the Marcos dictatorship, and legislative, administrative, executive and judicial acts (e.g. 1980 Public Assembly Act, 1985 Ilagan vs. Enrile doctrine, 2007 Human Security Act, 2012 Cybercrime Law) that either:
i. openly violate human rights;
ii. disguise violations of human rights; or
iii. merely formally recognize protection or promotion of human rights but in practice actually contribute to the engenderment of such violations are churned out.
h. False or trumped-up charges against leaders of social movements, activists and progressive individuals through legal hocus-pocus are systematically filed and illegal arrests are made and legitimized through disingenuous means, e.g.:
i. mere mechanical substitution of names of generic John and Jane Does as accused in the charges with the real names of persecuted individuals;
ii. mere naked allegation in the police report used as basis in the issuance of warrants of arrest that Person A is also Person B;
iii. concocted statements of professional and roving witnesses produced by the military that are executed or produced after the filing of previous ones, a practice which is “remembering by installment”;
iv. ridiculous assertion that those being charged have unknown addresses (even if they are public figures or are known to hold offices) to prevent them from receiving notices to be able to defend themselves and thus preliminary investigations are held without their knowledge and warrants of arrest are issued forthwith; and
v. mechanical insertion or intercalation of a real name into a list of names previously specified in the charge sheet.
All these realities in the legal sphere, among many others, perpetuate and engender human rights violations in general, and attacks and impunity for such attacks against members, leaders and organizations or movements seeking fundamental changes in society in particular.
43 years after Martial Law tomorrow, have we really matured as a supposed democracy where the legal and judicial system is just, fair, credible, consistent and equitable, or even seen to be such at least?
But despite all these challenges and frustrations, we will fight back. We have miles to go before we sleep. We will go against the tide.
For in the end, it is worth the choice. It is worth the fight. It is worth the struggle.#
Edre U. Olalia
National Union of Peoples’ Lawyers (NUPL)
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“By calling yourselves the ‘people’s lawyer,’ you have made a remarkable choice. You decided not to remain in the sidelines. Where human rights are assaulted, you have chosen to sacrifice the comfort of the fence for the dangers of the battlefield. But only those who choose to fight on the battlefield live beyond irrelevance.”
– Supreme Court Chief Justice Reynato S. Puno, in his message at the NUPL
Founding Congress, September 15, 2007
“After long years of experience as a people’s lawyer, I can honestly say it has been a treasured journey of self-fulfillment and rewarding achievement. I know it will be the same for all others who choose to tread this path.”
– Atty. Romeo T. Capulong, NUPL founding chairperson, in his keynote
address at the Fifth Conference of Lawyers in Asia Pacific ( COLAP V),
September 18, 2010