April 25, 2013

Gingoog misencounter

There can be no ifs and buts about it.  The bloody incident in Gingoog City, Misamis Oriental last Saturday, wherein police escorts of Mayor Ruth Guingona exchanged fire with a New People’s Army unit manning a checkpoint, resulting in the deaths of two civilian aides and the wounding of three others including the mayor herself, is deplorable and must be thoroughly investigated.

The NPA North Central Mindanao Regional Command (NCMRC) and the NDFP Spokesperson for Mindanao quickly owned up to the “unfortunate incident”, publicly apologized to the Guingona family and the families of the other victims and offered indemnification and assistance.  The NPA prides itself in adhering strictly to its Basic Rules of Discipline, to the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL), and to other instruments and norms of international humanitarian law especially the protection of civilians and non-combatants in armed conflict.

But they corrected initial media reports that it was an “ambush” or that Mayor Guingona was targeted by the NPA.  The Communist Party of the Philippines (CPP), which leads the NPA, stated that “the Guingonas command deep respect among the revolutionary forces, especially the former Vice President who is known for his lifelong record of patriotism and defense of democracy and human rights.”

According to the NCMRC, the NPA unit was carrying out orders in accordance with revolutionary policy  regarding the upcoming May elections; that is, “to flag down candidates and campaigners who carry firearms and armed escorts during their campaign sorties in guerrilla zones when doing their campaign rounds without proper coordination.”  Mrs. Guingona’s campaigners had previously been held at such checkpoints without incident, the policy explained to them and subsequent efforts were made to inform the mayor directly of such a policy.

The NCRMC explains that the firefight broke out when the lead vehicle of the mayor’s convoy tried to ram the bamboo roadblock and fired at the NPA fighters flagging down the convoy, forcing the NPA to fire back in self-defense.

Nonetheless, the NPA Command said they are “deeply saddened” and “take responsibility” for the incident. From this pronouncement it can be deduced that an internal investigation will take place to determine what went wrong, who is accountable and what corrective measures are in order.  Related CPP and NDFP statements remind the NPA to strictly observe policies, procedures and measures that ensure the safety of civilians, employ its wide range of tactics and use force judiciously in enforcing the revolutionary movement's policies.

For its part, the military through Brig. Gen. Rolando Jungco, commander of the Armed Forces Civil Relations Service, called the incident an "act of terrorism". He said the ambush was "a desperate act" by the NPA; allegedly the latter, failing to collect a “permit-to-campaign” fee from Mayor Guingona, “wanted her dead.”

This brings us to the crux of the matter: the whys and wherefores of the CPP-NPA-NDFP policy covering the electoral period.

According to the CPP-NPA statement of 17 February 2013 titled “Abide by people's government guidelines regarding election campaigns”, candidates and their followers will be allowed to campaign in areas where the revolutionary movement holds sway so long as they 1) do not bring in private armed security or police, military and paramilitary escorts; 2) do not intimidate, threaten, or coerce the people or employ violence against their opposing camp; and 3) do not conduct vote-buying activities or bribe community leaders in exchange for votes.

Furthermore, “(t)he People’s Democratic Government reserves the right to restrict the entry of candidates who are guilty of serious crimes against the people and the revolutionary movement” and  “who use the election campaign to facilitate the entry of military and police intelligence agents... in areas under the jurisdiction of the revolutionary authorities.”

The guidelines are based on the premise that the electoral exercise under the current system is not genuinely democratic.  These are merely occasions whereby different factions of the ruling elite vie for elective positions at different levels of government utilizing the advantages of “guns, goons and gold”.

The few qualified, patriotic and pro-people candidates are overwhelmed by the inherent advantages of the moneyed, the entrenched political dynasties and those backed-up by private armies and state security forces.  The voting population is to be bribed, bamboozled or coerced by violently competing camps whose qualifications are indistinguishable or non-existent and whose platforms are full of hot air and empty promises.

But more controversially, the guidelines set down by the CPP-NPA-NDFP are a clear assertion of the revolutionary movement’s political authority based on the strength of its armed forces and the extent and solidity of its mass support in the countryside. Little wonder then that the reactionaries, especially the AFP, misrepresent these policies as mere show of force and worse, as attempts at "extortion" from the candidates.

In its latest statement, the CPP leadership and the NPA Command have reiterated that the NPA shall continue to enforce the prohibition against the bearing of arms by politicians and their retinue in their areas, albeit with the proper measures to ensure the safety of civilians and prevent the recurrence of the Gingoog firefight.

Politicians on the campaign trail are reminded that proper coordination with the NPA commands or local NDFP forces are the best guarantee of their safety in areas controlled by the revolutionary movement.

According to the CPP statement, most candidates participating in the elections in these areas throughout the country concur with and observe these policies, thus preventing unnecessary bloodshed and destruction of property.

President Noynoy Aquino’s kneejerk order to the AFP and PNP to dismantle all NPA checkpoints and punish the NPA unit involved in the Gingoog clash appears at this point to be all bluster.

In contrast, Mayor Ruthie Guingona's family, notably former Vice President Teofisto Guingona Jr. and  Senator Teofisto “TG” Guingona III, displayed exceptional statesmanship and broadmindedness in rising above personal pain and adversity and underscoring  the need to resume peace talks between the Government of the Philippines (GPH) and the National Democratic Front of the Philippines (NDFP) in order to find a negotiated solution to the armed conflict.

As the peace advocates’ alliance, Sowing the Seeds of Peace in Mindanao, put it: “(T) he said armed confrontation between the police bodyguards and the NPA reflects the reality of elections happening in the midst of the ongoing internal armed conflict in the country. The inherent nature of elections as gun-wielding and the inherent nature of revolutionary movements as armed in the assertion of their political territories, are bound to cross paths.”

Sowing the Seeds reiterates the call and hope of many Filipinos that the GPH-NDFP peace talks be put back on track and negotiations on social, economic and political reforms begun in earnest, so that the underlying causes of unpeace may finally be reckoned with. #

Published in Business World
26-27 April 2013

April 19, 2013

VFA: US cloak of impunity

The Philippine government’s quick and, some say harsh, handling of the crew of a grounded Chinese fishing vessel at the Tubbataha Reefs, a UNESCO world heritage site and a protected marine reserve by Philippine law, in contrast to the soft and tentative response to the grounding of the USS Guardian in the same area, shows that the issues involved are much bigger than environmental damage.

What Malacañang is concealing from the public is that the Guardian did not have the required permission to enter the Tubattaha Reef reserve, and its crew aimed their weapons at Philippine authorities, preventing them from boarding the ship after being warned by the latter that they were violating Philippine law.

Moreover, the US has not given any credible explanation as to what a US Navy minesweeper was doing at the Tubattaha reefs in the first place, and Malacañang apparently is not interested in one.  An early US statement that the Guardian was enroute to Indonesia after a port call in Puerto Princesa and strayed into the area accidentally because of faulty navigational maps stretches the credulity of the public.  The USS Guardian, an Avenger Class ship designed and equipped with state-of-the-art sonar and other hi-tech navigation equipment in order to perform its counter-mine warfare missions could not possibly have been "lost" in the high seas.

Neither can the US and Malacañang claim that the Guardian was "here with permission" on the basis of the Visiting Forces Agreement, as though the VFA, even assuming without granting that it is constitutional, grants blanket permission or authority for any US Navy vessel to be anywhere in Philippine territory at any time.    

A recent petition for a Writ of Kalikasan filed by bishops, environmentalists, activists and lawyers at the Supreme Court over the grounding of the US minesweeper “raises novel questions because it presents a nexus between the environment and foreign military troops.”

The petition is a plea for the court to order the respondents to take remedial actions on the damage they have caused to the environment to the detriment and in violation of the rights of communities in the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi and of petitioners to a balanced and healthful ecology.

Malacañang says there is no special treatment for the Guardian crew; that the two grounding incidents at the Tubbataha Reefs are qualitatively different.  There is a presumption of regularity or legality in the case of the Guardian’s presence in Philippine territorial waters because the US is an ally and existing treaties like the Mutual Defense Treaty and Visiting Forces Agreement (VFA) allow it. The Guardian’s intrusion in the Tubbataha restricted area is just an unfortunate accident.

In the case of the Chinese vessel, it is a flagrant case of illegal entry into an off-limits area and is presumed to be another incident of poaching in Philippine waters absent any evidence to the contrary.

Consequently, President Noynoy Aquino has stated in no uncertain terms that the detained 12 Chinese fishermen must be prosecuted to the full extent of the law.  The government has rebuffed attempts by Chinese embassy officials to have the fishermen released to their custody, much less repatriated to China.

On the other hand, the Executive is content with merely asking the US government to pay a fine estimated to amount to US$1.4 million for the damage inflicted on the reefs by the US Navy warship. The erring commander and crew of the Guardian were allowed to be immediately taken away from the country with nary a protest or any attempt by Philippine authorities to gain custody.  The investigation of the incident has been controlled by the US government from Day One.  The damage assessment done on the reefs by experts included US government representatives who have an interest in minimizing the same.  The entire salvage and removal operations were under the strict command and control as well of the US Navy.

If it didn't happen so soon after the USS Guardian grounding, the firm response of Philippine authorities to the latest incursion of a purportedly Chinese fishing vessel would have been unqualifiedly laudable.  In light of many antecedents and the ongoing dispute with China over rich fishing grounds in the Spratlys, the Aquino government stands on good ground in arresting and filing appropriate charges against the Chinese crew members.  And since the vessel is declared to be a private commercial venture, its owners are certainly liable for the damage on the reef and must pay corresponding fines. We expect the Chinese government to be cooperative in this regard.

What is unacceptable is the complete surrender of national sovereignty in the case of the USS Guardian. Even under the VFA, there is no immunity from suit for members of the US Armed Forces who have violated Philippine laws within our national territory.  And yet the Aquino government has not acted swiftly and judiciously to execute applicable laws starting with its basic duty to conduct a thorough investigation and hold in custody those directly culpable.

The suit Arigo et al vs Swift et al (Palawan Bishop Pedro Arigo is lead complainant while Vice Admiral Scott Swift is US Seventh Fleet Commander at the head of those charged) points to egregious violations of Philippine law, national sovereignty and territorial integrity and calls on the Philippine courts to “assume jurisdiction over the crimes of unauthorized entry and disturbance of marine life; obstruction of justice for refusal to allow the local Coast Guard to properly board the USS Guardian as per protocol; unlawful anchoring; and dumping of waste  under the Tubbataha Reefs Natural Park Act of 2009, or Republic Act No. 10067.”

The Petition for Writ of Kalikasan cites a number of precedents established in international law as well as US and Philippine jurisprudence to argue that USS Guardian and US 7th Fleet commands’ violations with regard to the USS Guardian grounding and subsequent salvaging operations are triable in Philippine courts.

We recall in particular the case vs US Marine Lance Corporal Daniel Smith, whose conviction was upheld and whose detention under Philippine authorities was ordered to be negotiated with US authorities by the Philippine Supreme Court.  (Unfortunately this ruling was rendered moot by the collusion of Malacañang and US Embassy officials to move Corporal Smith from a Makati jail to the US embassy premises and the subsequent Court of Appeals decision overturning a lower court’s guilty verdict.)

The whisking away of the Guardian crew also recalls several instances in the past where US personnel are pulled away out of the reach of Philippine authorities. Most of these are military personnel, and the most notable exception is one Michael Meiring, a suspected CIA operative who accidentally detonated a bomb he was fabricating in a hotel room in Davao City and who was flown out escorted by US embassy and FBI men before the local police could arrest him.

In all instances, US authorities have made a mockery of Philippine sovereignty and criminal jurisdiction with impunity, and not without a large dose of complicity of Philippine officials all the way up to Malacañang.

It was easy enough for them when they had the US military bases as "inviolable US territory".  After the bases were thrown out in 1991, it is now the VFA which is being used and abused, to allow US transgressors to escape prosecution under Philippine law. #

Published 19 April 2013
Business World

April 11, 2013

Oases or mirage

Edith Burgos, wife and partner of crusading, anti-dictatorship newspaperman, the late Jose “Joe” Burgos, is the personification of steadfast resolve as she files yet another motion to the Supreme Court in a bid to utilize new evidence to prove that the Armed Forces of the Philippines (AFP) is behind the enforced disappearance of her 36-year-old son, Jonas.  In so doing, she rekindles the hope that he may still be found, dead or alive.

The Court of Appeals (CA) had earlier thrown out the claim of the military and police that the young Burgos fell prey to an “internal communist purge”.  Instead, it ruled that he was the victim of enforced disappearance and as such was entitled the protection of a writ of amparo.  This legal victory is owed to the unrelenting efforts, through both legal and metalegal means, of the Burgos family, their lawyers, other human rights victims and their families, and the local and international human rights community.

On the other hand, the new writ of amparo, touted as an “expeditious and effective relief given to any person whose right to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee” has in most instances been rendered close to inutile and even couunterproductive.  It took more than five years before this CA decision was handed down.  Jonas has been missing for almost six years.

While the CA found Army Major Henry Baliaga Jr. “responsible” for the crime, it held the AFP and the PNP “accountable” for not undertaking “extraordinary diligence” in their investigations despite being “imputed with knowledge relating to the enforced disappearance” of Jonas Burgos.  In other words, the military was called to account for refusing to cooperate with the Burgos family, the Commission on Human Rights (CHR) and even the courts to determine what really happened to Jonas.  The police was rapped for patently misleading the investigation.

The CA directed the AFP and Philippine National Police (PNP) to continue with their respective probes “until the persons responsible are brought to justice” and for the CHR to pursue its independent investigation with “full assistance” from the AFP and PNP.

However the pronouncements coming from the military and police establishments bode ill that anything will ever come out of their avowed intention to “comply and cooperate”.  The AFP pretends to want “closure” and “to move on” deliberately glossing over the fact that the military itself is implicated as complicit in, if not the mastermind of, the abduction. It has not conducted any probe on Major Baliaga or any of the other officers linked to the disappearance much less their "higher ups" who planned or at least knew of and approved the operation.  For its part, the PNP still questions the CA’s basis in overturning its bogus investigation.

Comes now the directive of President Benigno Aquino III to the Justice Department to conduct a "focused, dedicated and exhaustive" probe into the Burgos case in light of new evidence brought by Mrs. Burgos before the Supreme Court, including a photo of Jonas taken allegedly after he was abducted.  Malacañang says that this is a signal from the President that “culpability derived from hard evidence will exact accountability."

Bravo.  Yet we dare ask, why did Mr. Aquino, after being sworn to office as Chief Executive in 2010, not immediately order such an exhaustive probe?  As a member of the anti-Arroyo opposition, Mr. Aquino had denounced the former regime’s sordid human rights record and vowed to bring about change once in power.

Clearly Mr. Aquino has failed to take daangmatuwid utilizing his broad executive powers over the military and police in order to undertake a serious investigation into this celebrated human rights case.   Malacañang tolerated the obstructive tactics by the military and the sloppy investigation by the police.

Whatever evidences gathered that led to favorable court decisions have been the fruit of the Burgos family’s painstaking detective work precisely to counter the AFP/PNP bogus investigation.  It is also to the credit of CHR Commissioner Mamauag (a carry-over from the Arroyo-appointed CHR) that Major Baliaga was pinpointed as a direct perpetrator of the abduction.

To add insult to injury, Mr. Aquino has appointed General Eduardo Año, former head of the Intelligence Security Group of the Philippine Army, also impleaded in the habeas corpus and amparo cases as well as in the criminal complaint filed by Mrs. Burgos for her son’s abduction, as new chief of the Intelligence Service of the AFP.  Mr. Año was not confirmed by the Commission on Appointments due to the vigilance of Mrs. Burgos who had opposed it.

In truth, the Aquino presidency has failed miserably to prosecute human rights violations under the Arroyo regime.  Moreover, Mr. Aquino has closed his eyes to violations under his own watch.  In so doing he has further entrenched the climate of impunity and sanctified continuing violations.

As AFP Commander-in-chief, Mr. Aquino presides over Oplan Bayanihan, his administration’s updated counterinsurgency program, patterned after the 2009 US COIN Guide. Oplan Bayanihan utilizes such democratic phraseology as “respect for human rights”, “peace and development” and “winning the peace” but like the counterinsurgency programs before it, including the Arroyo regime’s brutal Oplan Bantay Laya, it has spawned the entire gamut of human rights violations including extrajudicial killings, enforced disappearances, torture, illegal arrest and detention and displacement of civilian communities. Thus, the purported premium on safeguarding human rights is really nothing more than a deodorant meant to cover the stench of continuing impunity in HR violations by state security forces.

Once again, under the Aquino watch, there is no political will to prosecute and punish human rights violators especially amongst the military and in connection with counterinsurgency.  Mr. Aquino’s red-baiting of human rights defenders as “Leftists” and their findings as mere “propaganda” are key to the coddling of violators and the cover-up of a counterinsurgency program designed for repression.

The Aquino regime, and especially the Department of National Defense-AFP and Department of Interior and Local Government-PNP, continues to deny that the long string of gross human rights violations in this country is the result of a state policy abetted and supported by the US.  But the scope, frequency and complete absence of accountability for such violations show that these could not have been independent actions by rogue elements in the AFP and PNP led by mere junior officers up to the rank of Captain or Major.  Hence the systematic human rights violations by state security forces in the name of internal security continue unimpeded.

The CA decision follows close on the heels of last year's court decision indicting the notorious Gen. Palparan in the Empeno-Cadapan enforced disappearance case; and even more recently, the signing into law of the Anti-Enforced Disappearance Act.  Still, these are the rare exceptions more than the rule.

With the AFP and PNP stonewalling, withholding evidence and worse, protecting the accused, the prospects of rendering justice remain dim.

What appear to be oases in the desert of injustice could very well turn out to be an illusion, a mirage, after all. #

Published in Business World
12-13 April 2013

April 03, 2013

The "special track" falters

The Aquino government’s fixation with getting an open-ended ceasefire declaration from the National Democratic Front of the Philippines (NDFP) sans basic reforms that address the roots of the armed conflict is proving to be the underlying stumbling block to resumption of the peace talks between the two parties.

The GPH says armed conflict is the cause of poverty, underdevelopment and violence inflicted on the civilian population.  Therefore, the GPH insists on the stilling of guns as the be-all and end-all of the peace negotiations. This is what they mean when they speak of the “GPH commitment to a peaceful resolution to the armed conflict”:  getting the revolutionary forces to stop fighting, to surrender, on the negotiating table.

The NDFP says the armed struggle is being waged as a defense of the people who are fighting for their rights and future against the armed might of a state controlled by the ruling economic and political elite. The long-standing, pervasive and intolerable social iniquities and injustice bearing down on the majority of the people are the real causes or roots of the armed conflict.

The NDFP maintains that these roots must be addressed first, through crucial reforms contained in binding agreements between the GPH and the NDFP. These are to be negotiated and implemented step-by-step -- human rights and international humanitarian law, socio-economic reforms, political and constitutional reforms -- before the last agenda, end of hostilities and disposition of forces.

The NDFP does not consider ceasefires as anathema.  Apart from the yearly nationwide Christmas and New Year ceasefires declared by the CPP-NPA, short-term, partial and localized ceasefires have often been unilaterally declared in response to natural calamities or other dire situations facing the masses wherein NPA fighters are enjoined to prioritize rescue, relief and rehabilitation activities.

The NDFP negotiating panel has also bent over backwards in recommending longer ceasefires, like the one from December 20, 2012 to January 15, 2013, as a goodwill measure, in order to pave the way for progress in the talks.

But open-ended multiple ceasefires are another thing.  In 1986, the revolutionary forces entered into a long-term ceasefire with the GPH during the Cory Aquino administration.  Instead of being able to negotiate in earnest on substantial agenda, the talks were mired in discussions on the mechanics of monitoring and by accusations and counter-accusations on both sides regarding ceasefire violations.  Moreover, the NDFP suffered scores of arrests, disappearances and deaths of their personnel who surfaced for the talks apart from unwittingly exposing hundreds more to surveillance and intelligence gathering by the military.

Since 2005, in order to counter the GPH propensity for putting the cart before the horse, i.e. pushing for  indefinite and prolonged ceasefires even before talks on socio-economic reforms could get under way, the NDFP propounded to the GPH a “truce and alliance” embodied in the proposed ten-point  “Concise Agreement for an Immediate Just Peace”.  The GPH completely ignored this proposal. 

In 2011, the NDFP reiterated its offer to President Benigno C. Aquino III.

This is an offer of a truce, by definition a temporary cessation or suspension of hostilities by agreement of the opposing sides, and an alliance with the GPH, based on a solemn agreement to put in place major social, economic and political reforms demanded by the people.

It would be negotiated in a “special track”, distinct from, parallel to, but not entirely separate from nor replacing the regular track of the GPH-NDFP negotiations with its existing bilaterally-agreed framework and agenda, inked agreements and established protocols and procedures.

Such a special track has the potential of leapfrogging the obstacles bedevilling and miring the regular track.  It is a challenge to the GPH to think outside the box and creatively come up with ways to move the peace talks forward.

President Aquino sent his National Political Adviser Ronald Llamas to engage the NDFP Chief Political Consultant Jose Maria Sison in talks regarding the NDFP proposal.  In November 2012, in the presence of the third party facilitator from the Royal Norwegian Government, Mr. Llamas proposed that a meeting of the GPH President and Prof. Sison as founding chairman of the Communist Party of the Philippines (CPP) be held in Hanoi City in early 2013.  It would be the “first historic moment” akin to the Aquino-Murad meeting in Tokyo in August 2011(for the GPH-MILF peace talks) that would send a strong signal regarding each side’s commitment to a negotiated resolution of the armed conflict.

Thereafter the two sides engaged in the special track through “special representatives” notably for the GPH, Sec. Llamas and GPH peace panel head Atty. Alex Padilla; for the NDFP, Prof, Sison and NDFP panel head Luis Jalandoni.  They had two meetings in December 2012 and February 2013 whereupon the GPH and NDFP exchanged their drafts of a common declaration.

The NDFP proposed a joint “General Declaration for National Unity and a Just Peace” that would contain the main points on which the “truce and alliance” would be anchored. The NDFP’s draft included five points: 1) Immediately constitute and put into operation the Committee of National Unity, Peace and Development to ... realize and promote the cooperation of the GPH and the NDFP in connection with the truce; 2) Upholding national independence, democracy and human rights; 3) Agrarian reform and national industrialization; 4) Truce and redisposition of forces.

The GPH submitted a draft that seemingly covered the same points but again placed at the top of their draft that the two parties commit to “(i)mmediately put into effect simultaneous unilateral and indefinite ceasefires” and thereafter “agree to work for the progression of these unilateral ceasefires into a permanent one.”

Given the clearly disparate points of view at loggerheads over the common declaration, it stands to reason that the special track would require more time and work to arrive at something both sides would agree to.  Meanwhile the immediate agenda for the February meeting should have been preparations for the proposed “first historic moment” or the Aquino-Sison meeting in Hanoi in 2013. 

The NDFP had prepared a Draft Communiqué for the Hanoi Meeting but the GPH side refused to discuss this stating that they did not have the mandate to do so.  It then became clear that the sole purpose of the GPH “special representatives” was to demand and receive the NDFP’s concurrence with the GPH version of the General Declaration, which would have amounted to a negotiated surrender.

The special track has been brought once more to a predictable impasse over the question of ceasefire thus dangerously setting it up to fail just as the regular track of the peace negotiations appears to be set up to fail with the GPH refusing to honor and implement previous agreements while all the while demanding indefinite and prolonged ceasefires before and during the talks.

Thus far, the GPH appears to have succeeded in pulling the special track into the same rut as the regular track, and derailing the negotiations on reforms that would address the roots of the armed conflict.  In blocking the proposal for a truce and alliance, which is by far superior to and more desirable than the GPH proposal for indefinite, unilateral ceasefires, the GPH betrays its real objective:  “peace” without reforms, “peace” without justice. #

Published in Business World
5-6 April 2013