STRATEGY OF ERRORS: Why the August 23, 2010 hostage-taking is NOT reminiscent of Jun Ducat but of Dexter Balala’s (Or how not to handle a hostage situation)

By Siesta-friendly

4-year old Dexter Balala was grabbed and taken hostage at knife point by Diomedes Talbo while Dexter and his parents were waiting at a bus terminal for their connecting bus ride home. After about 2 hours of negotiations inside the bus depot and in full and sniper-friendly view of 21 police officers including 4 high-ranking police officers of the local police force, Talbo started stabbing Dexter.  Only after a few seconds did the police start shooting.  And when it rained, it poured - on both the hostage taker and his hostage.  Talbo died immediately of gunshot wounds but young Dexter suffered both Talbo’s 13 knife stabs and 5 bullet wounds.  Both a knife wound and bullet wound in the chest proved fatal to Dexter.  Dexter died due to obvious police hesitation and general incompetence. All 341 officers and men of the Pasig police station then under Supt. Eduardo de la Cerna were relieved and ordered to undergo retraining and re-orientation.  That was in June 2002.

8 years later and the police, sadly, have not changed much.  On August 23, 2010, the same police slowness and indecision against a hostage taker (one of their own – Senior Inspector Rolando Mendoza) cost the lives of 7 hostages including a 13-year old girl, all Chinese nationals. The hostage situation lasted more than 10 hours with several hostages being released in batches during the day. How a 14-year old girl (who eventually died) was not among the children negotiated to be initially released is one of several fatal tactical lapses.  How terrified the child must have been during those 10 hours of patience the authorities gave to Mr. Mendoza to bring terror to his hostages. 

The other lapses? Let’s see:

• allowing video coverage of behind-the-scene activities especially the arrest of the hostage-taker’s family members which seemed to have agitated the hostage taker and prompted him to start shooting the hostages;
• allowing real-time media coverage of the hostage situation possibly providing the hostage taker information on police movements;
• not effectively cordoning off the scene causing a civilian to be hit by a stray bullet and allowing onlookers to crowd the scene and hamper rescue and relief efforts once the hostage-taker was down;
• shooting or even just disabling the hostage taker when he was in PLAIN view, guns undrawn and no one in harm’s way (several photos below show how cameramen were able to shoot the hostage taker while snipers couldn’t. Does S.W.A.T. stand for Sorry We Aren’t Trained?);

Mendoza arm raised in full view.  Credit: independent.ie http://www.independent.ie/breaking-news/world-news/seven-dead-after-manila-bus-siege-2308042.html?start=2

 

 

 

Mendoza in full view.  Credit:  Peace Fm Online http://foreign.peacefmonline.com/news/201008/73760.php

Mendoza waving in full view.  Credit: gulfnews.com http://gulfnews.com/news/world/philippines/philippine-police-arrest-brother-of-hostage-taker-1.672110

Mendoza half body view by window near the door.  Credit: Yahoo! News http://news.yahoo.com/nphotos/Former-policeman-hijacks-bus-Manila/ss/events/wl/082210philippinesbus/im:/100823/ids_photos_wl/r2800825690.jpg/

Mendoza with 1 negotiator, guns undrawn, hostages out of harm's way.  Credit: Yahoo! News http://news.yahoo.com/nphotos/Former-policeman-hijacks-bus-Manila/ss/events/wl/082210philippinesbus#photoViewer=/100823/481/urn_publicid_ap_org796b8cb5170e481eb5f54d211674a024

 

Mendoza with 2 negotiators, guns undrawn, hostages out of harm's way.  Credit: World Correspondents http://www.worldcorrespondents.com/philippine-bus-hostage-drama-comes-to-bloody-conclusion/889185

Mendoza guns undrawn by the door with a hostage.  Credit: Khaleej Times Online http://www.khaleejtimes.com/DisplayArticle09.asp?xfile=data/international/2010/August/international_August1210.xml&section=international

Mendoza in full view watching hostage leave.  Credit:  The Voice of Russia http://english.ruvr.ru/2010/08/23/16942328.html

• (once they had information the hostage taker had shot and killed hostages) taking up about 90 minutes to “begin the assault” of 1 bus with 1 hostage-taker.  
• in an assault, using police officers afraid of getting harmed.  Contrast the situation with the French assault of Air France Flight 8969 which was hijacked by terrorists on December 24, 1994.   The French forces boarded and maneuvered airstairs to reach the doors.  They approached the plane from the front and rear simultaneously.  They opened the doors from the outside.  The French were fired upon, grenades exploded but they didn’t stop.  In the distance, snipers also fired upon the 4 hostage-takers.  After a 20-minute gunbattle, all 169 passengers and crew and were alive.  Although 10 of them were wounded, all of the French forces were alive while the 4 hostages were killed. (you can watch a short video of the assault here  
•  using only 1 tool (the sledgehammer) - and one they could not handle - which ended up inside the bus at least 2 times (it would have been comical if no lives were at risk and subsequently lost);
• using only the sledgehammer – one excruciatingly slow movement at a time – to break the bus doors or windows;
• apparently not inquiring from the bus driver or tour operator how to open the bus’ emergency exit;
• assaulting the bus only (and illogically) one side at a time – first the side window, then the door then the front window then the rear window then the door again;
• tying a rope (and not a cable) to the bus door and pulling it with a pick-up truck at an angle where the rope will break and the door will not open which is exactly what happened;
• using tear gasses without gas masks thus further delaying their entry into the bus;
• not using night vision goggles in order to locate the hostage taker inside the dark bus;
• over-all consideration for the hostage-taker’s demands over the hostages’ safety (by not taking the several and clear opportunities to disable him)
• if meeting his demands were paramount, then why go halfway and not give in to them fully in order to arrest him once he is reinstated;
• the astoundingly apparent lack of a plan B in case negotiations broke down.

Experts will likely point out far more lapses. Already, Frederic Gallois, “who once commanded France's elite hostage rescue unit”, has expressed his sentiments, telling the AFP news agency that the police operation was "badly prepared and risky" and that the police involved "visibly lacked adequate equipment and tactical competence".[1] Idiots, in diplomatic language.

Operational Procedures During Hostage Situations[2]

 

The police’s rules of engagement seem severely lacking in detailed operational tactics when it comes to hostage crises.  Even then, one can easily cross out the police’s recent lapses (in both the negotiations and the assault) just by reading the applicable rules below –

Rule 26. HOSTAGE SITUATION/BARRICADED SITUATIONS

SECTION 1. Procedure to be followed in a Hostage Situation.  The following steps shall be undertaken:

a.       A Crisis Management Task Group shall be activated immediately.

b.      Incident scene shall be secured and isolated.

c.       Unauthorized persons shall not be allowed entry and exit to the incident scene.

d.      Witnesses’ names, addresses, and other information shall be recorded.  Witnesses shall be directed to a safe location.

SECTION 2. Ground Commander.  There shall be only one Ground Commander in the area. Until such time that he officially designates a spokesperson, he may issue appropriate press statements and continue to perform the role of the spokesperson.

SECTION 3. Negotiators.  Negotiators shall be designated by the Ground Commander.  No one shall be allowed to talk to the hostage-taker without clearance from the negotiator or Ground Commander.

SECTION 4. Assault Team.   An assault team shall be alerted for deployment in case the negotiation fails.  Members of the assault team shall wear authorized and easily recognizable uniform during the conduct of the operation.

SECTION 5. Assault Plan.  The  assault  shall  be  planned  to  ensure  minimal  threat  to  life  for  all parties.

SECTION 6.  Support Personnel.  An ambulance with medical crew and a fire truck shall be detailed at the incident area.

SECTION 7. Coordination.  Proper coordination with all participating elements shall be done to consolidate efforts in solving the crisis.

SECTION 8. Safety of Hostage(s).  In negotiating for the release of a hostage, the safety of the hostage shall always be paramount.

SECTION 9.  Guidelines during Negotiations.  Situation must be stabilized first and contained before the start of the negotiation;

a.       Do not introduce outsiders (non-law enforcement officers) into the negotiation process, unless their presence is extremely necessary in the solution of the crisis.  If so introduced, they shall be properly advised on the do’s and don’ts of hostage negotiations; and

b.      Police officers without proper training shall not be allowed to participate in hostage negotiations.”[3]

The above rules, in light of what happened on August 23, 2010, seem hopelessly lacking in operational and procedural details. 

President Aquino’s official statement after the hostage crisis blaming everyone else except the police is chilling to all of us who fear that police incompetence will continue as always.  It is perverse that the involvement of foreigners could actually work as an advantage to us - well aware of the frequent incompetence of our police force - as our government gives more importance to foreigners (and their investment/tourism money) than their own people.

To date, the President and the police have expressed shocked and dismay that the negotiations broke down and the hostage-taker became violent.  Blaming the breaking down of negotiations rather than their patience with a hostage-taker is immaturity at its worst.  They blame the hostage-taker’s family, even the media personnel, but themselves for the turn of events.  If they treated Senior Inspector Rolando Mendoza as a criminal and not one of their own, Mendoza might have been taken down sooner and with no loss but his own life perhaps.  If the government had not thought Mendoza deserving of all leeway possible (despite clear opportunities to take him down), if they had even considered that he was capable of violence from his actions of taking innocent people hostage fully-armed, the world might be praising us now for quick and decisive actions against a hostage-taker. 

The continued defensiveness of our authorities bodes ill for our hopes than our police force could finally change this time around.

Thus far, we have seen police torturing a suspect, read about them involved in  indiscriminate shootings during operations, how they  allegedly killed  a suspect while in custody through a blow to the neck,  how they do arrests without a warrant in full view of media and still try to justify it, how a member of their own took hostage a bus full of innocents and on how they seem to lack even the basic tactical sense for emergency situations. These are not the kind of men we want to trust with guns and with the responsibility to protect us.  Lessons have to be learned and not one more innocent life should be lost. Too often they have gone out to kill and maim and not to serve and protect.

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[1]  Philippines president pledges manila bus siege inquiry. (2010, August 23). Retrieved from http://www.bbc.co.uk/news/world-asia-pacific-11066656

[2]  Philippine national police operational procedures. (2010, March). Retrieved from http://www.pnppro10.org/downloads/POP.pdf

[3]  Supra.

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TORTURE: A Dead End

By Obiter07

We really have all the laws we need.  It is enforcement we lack.  As well as respect for laws especially (and terrifyingly) if one is a law enforcer.  Abuse of power and authority have prevailed through the ages.

Way back in 1917, Act No 2711 of the Administrative Code already prohibited torture by the police:

“SECTION 2685.       Maltreatment and abuse of authority. — Any member of the Constabulary who whips, maltreats, abuses, subjects to physical violence, or tortures by the so-called "water cure" or otherwise, any native of the (Philippine Islands) Philippines or other person, or who causes such whipping, maltreatment, abuse, or torture of any native of the (Philippine Islands) Philippines or other person for the purpose of extorting from him any confession or inducing him to give any information whatsoever, shall be punished by imprisonment at hard labor for a term not exceeding five years or by a fine not exceeding ten thousand pesos, or both. Final conviction of any such offense shall by and of itself constitute a dismissal of the offender from the Constabulary service and shall make him ineligible to any position of trust or confidence in the Government of the (Philippine Islands) Philippines.”

It appears that we have not progressed except now we have graphic evidence of such misdeeds.  Only recently, a video came to light showing an alleged policeman  apparently  torturing a suspect.[1] 

Even the Constitution has not served to deter the commission of this despicable offense.  It clearly states:

“SECTION 12.           (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2)   No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3)   Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4)   The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. [Article III]” (Emphasis supplied]

And to give teeth to the foregoing, we have REPUBLIC ACT NO. 9745 which is AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR” which became law last year.

           

This was passed pursuant to the state’s policy to respect human rights, including suspects, such that no person in custody shall be “subjected to physical, psychological or mental harm, force, violence, threat or intimidation or any act that impairs his/her free will or in any manner demeans or degrades human dignity,” to do away with secret detention places and to adhere to our international obligations  against torture (Section 1).

The Act outlaws torture which is “an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (Section 3).”   

           

The enumeration makes one wonder who was able to come up with the list.  And at the rate we are going, it even gives rise to an unfounded fear that some people may be using it as a reference just in case they missed something.   The list goes:

“SECTION 4. Acts of Torture. — For purposes of this Act, torture shall include, but not be limited to, the following:

(a)    Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:   

1)      Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

2)      Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

3)      Electric shock;

4)      Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);

5)      The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;

6)      Being tied or forced to assume fixed and stressful bodily position;

7)      Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals;   

8)      Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;

9)      Dental torture or the forced extraction of the teeth;

10)  Pulling out of fingernails;

11)  Harmful exposure to the elements such as sunlight and extreme cold;

12)  The use of plastic bag and other materials placed over the head to the point of asphyxiation;

13)  The use of psychoactive drugs to change the perception, memory, alertness or will of a person, such as:

                                                        i)    The administration of drugs to induce confession and/or reduce mental competency; or   

                                                      ii)    The use of drugs to induce extreme pain or certain symptoms of a disease; and

14)  Other analogous acts of physical torture; and

(b)   "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as:   

1)      Blindfolding;

2)      Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;

3)      Confinement in solitary cells or secret detention places;

4)      Prolonged interrogation;

5)      Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

6)      Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;   

7)      Maltreating a member/s of a person's family;

8)      Causing the torture sessions to be witnessed by the person's family, relatives or any third party;

9)      Denial of sleep/rest;

10)  Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will;

11)  Deliberately prohibiting the victim to communicate with any member of his/her family; and

12)  Other analogous acts of mental/psychological torture.

The fact that we could enumerate such acts even with the laudable objective of  preventing them shows the dark side of humanity.   But the Act does not stop with torture and includes "Other cruel, inhuman and degrading treatment or punishment" or “deliberate and aggravated treatment or punishment not enumerated under Section 4 above," inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. (Section 3 in relation to Section 5)

Secret detention places, solitary confinement or other forms of detention where torture can be carried out are likewise prohibited (Section 7).  This does not cover a hypothetical situation.   In SECRETARY OF NATIONAL DEFENSE, et al. vs. MANALO, et al. [G.R. No. 180906.  October 7, 2008.],  the Supreme Court affirmed the issuance by the Court of Appeals of a writ amparo based on accounts relating to torture and murder at the hands of the military.

           

Freedom from torture and inhuman punishment is declared as an absolute right and invocations of war, emergency or instability cannot justify its use (Section 6). No evidence obtained using torture is admissible except against a person accused of committing torture (Section 8). And a victim is entitled to an investigation by the proper government agencies, to protection against harassment and threats and in order to give testimony (Section 9).

Typically, it is difficult to prove allegations of torture unless this has been attested to a medical practitioner.  Under Section 12, before and after interrogation, “every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate family, shall have the right to immediate access to proper and adequate medical treatment.”  This serves to expand what rights are usually read to a suspect upon an arrest.

That actual perpetrator, those who cooperate and even superiors and commanding officers can be held liable. And this includes an officer who should have known about such acts by reason of his position:

“SECTION 13.           Who are Criminally Liable. — Any person who actually participated or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal.

Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals.

The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.”   

This includes accessories who profit from or conceal the crime as well as those who harbor the principals:

“Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner:

a)      By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment;

b)      By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or

c)      By harboring, concealing or assisting in the escape of the principals in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions.(Section 13)

The penalties range from reclusion perpetua, prision correcional to arresto mayor (Section 14).  Torture is to be treated as a separate and independent crime and shall not be absorbed by any felony committed as a consequence (Section 15).

When will these abuses stop?  We get to ask who will guard the guardians when they torture and sometimes even kill.  And we can only turn for hope to the courts, minding its words in one case:

“This court is not blind to the suffering of the victim's family arising from his untimely death, but we are bound to uphold the constitutional rights of the accused. Let this be a stern lesson to the police authorities and to the prosecution to perform their sworn tasks with utmost regard to the mandates of the Constitution. Criminals cannot be apprehended, prosecuted and punished under the law by resorting to non-legal means. PEOPLE vs. PULGA, et al [G.R. No. 138045.  March 14, 2001.]”

We cannot allow torture to continue to be the means for an end, no matter how laudable the latter may seem. It appears that we are all seeking shortcuts, looking for coerced confessions instead of gathering evidence and inflicting punishment even before trial or a conviction. There is no end that justifies the use of such means.  And we become less human each time we get to allow or tolerate such acts.

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[1] CHR launches probe on police torture video, Agence France-Presse, First Posted 12:35:00 08/18/2010, http://newsinfo.inquirer.net/breakingnews/nation/view/20100818-287498/CHR-launches-probe-on-police-torture-video

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Due Process for All

By Siesta-friendly

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.[1]

If only everybody would find these words as precious as their own lives, liberties, and properties.  For from these words do we go out and return home in peace.   

Thus, it is maddening to hear criticisms against those who denounce the police force’s apparent lack of respect for due process in subduing their suspects.  Why people find it acceptable that extralegal means can be used to fight crime indicates a chilling lack of respect for every person’s fundamental rights.    

The latest example is that of the killing of suspected carnapping syndicate leader Ivan Padilla.  Padilla was finally caught after an alleged shootout.  News cameramen arrived on the scene and the police called their attention to presumably film the wounded Ivan then sitting at the back of a police van.  A remarkable scene considering Ivan had just been shot in the head.  The film showed he was, however, still conscious and able to answer his name when asked.  After the very short “news interview”, the van left.  30 minutes later, Padilla was left alone in a hospital 15 minutes away from the “shootout” scene. Within 10 minutes, he was declared dead.  The death certificate signed by the Makati Health Department and funeral officials stated his death was due to “asphyxia as a result of blunt force to the throat.”[2]

From the “alleged” shootout, the lack of care in handling a seriously wounded suspect, the delay in bringing to the hospital the suspect who’d been shot, the cause of death coming out of nowhere, the police actions surrounding the arrest and death of Ivan Padilla raise suspicions.

But why don’t we just celebrate the death of a serial carnapper, a scourge of society, instead of question the police’s actions?  Because without due process, where evidence are laid out and the accused is given the opportunity to defend himself and refute the evidence against him, the fact of the crime and the guilt of the criminal are left to the discretion of government authorities.  Think of all the extrajudicial killings - of farmers, laborers and students – allegedly made by the military in their fight against “insurgents”.  Without due process, the number of our extrajudicial killings would increase and shame the Khmer Rouge.

Without due process, all that law enforcement forces need is the belief that a crime has been committed, that the suspects committed it and the suspect needs to be eliminated.  We might as well abolish the courts.

Without due process, law enforcers can easily claim “shootouts” in neutralizing suspects and no one can make law enforcers accountable for their lapses or excesses or outright lies during these encounters. 

With no respect for due process, Engr. Alfonso De Vera’s SUV was shot 84 times with 24 shots concentrated on the vehicle's windshield and bumper as the SUV ended at the tail end of a vehicle convoy of bank robbers the Philippine National Police’s Highway Patrol Group had just then intercepted and engaged in a shootout.  After alighting from his SUV to carry his 7-year old daughter to safety, the police pursued, shot and killed him and his daughter.  Engr. De Vera and his daughter, Lia, were among 6 innocent bystanders killed in the encounter.[3]  Engr. De Vera and his daughter were both shot in the head.[4]  

In the case of the De Veras, the Commission on Human Rights found that the police violated the Police Operational Procedures including Rule 8 which states: “Moving vehicles may not be fired upon solely to disable them. The driver or other occupant of a moving motor vehicle may be fired upon if the police have probable cause to believe that the suspects pose an imminent danger of death to the police or other persons.”[5]   With no apparent threat coming from the De Veras, the sole assumption by the police that the De Veras were robbers sealed their deaths.

Unforgettable and heartbreaking, the killing of the De Veras is distressingly only one of many instances of the acute disregard of government authorities for fundamental human rights.

These days, shootouts are not that uncommon in the Philippines.  Are our criminals that violent or are our law enforcers just undisciplined?  How many among the victims of law enforcers are totally innocent?  How many shootouts are actually rubouts? Without due process, we wouldn’t know.

It is a truism that it is better that the courts acquit ten guilty men than mistakenly imprison one innocent man.   A verdict of guilty as passed by the courts is subject to appeal.  But before it is issued, the evidence is heard.  A verdict of guilty from the barrel of a gun is final and unappealable.  Nothing is heard except the wails of the bereaved. 

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[1]  Sec. 1, Art III, 1987 Constitution

[2]  Chr to probe padilla's death; mom suspects rubout . (2010, August 4). Retrieved from http://www.abs-cbnnews.com/nation/08/04/10/padillas-family-urges-chr-probe-ivans-death

[3]  Dizon , N. (2009, January 7). Only cops could have killed de veras . Retrieved from http://www.inquirer.net/specialreports/paranaqueshootout/view.php?db=1&article=20090107-182002

[4]  A Letter from lilian de vera. (2009, March 17). Retrieved from http://www.filipinowriter.com/a-letter-from-lilian-de-vera

[5]  Kwok, A, & Dizon, N. (2010, January 11). Charge cops in death of 16 in parañaque shootout—chr . Retrieved from http://www.inquirer.net/specialreports/paranaqueshootout/view.php?db=1&article=20100111-246713

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EYES VS NAYS (Eyewitnesses vs. The Department of Justice)

By Siesta-friendly

The Department of Justice (at least, the DOJ under the Arroyo administration) has been involved in 2 (as far as we know) fatal decisions under the Witness Protection, Security and Benefit Program (RA 6981).   We’ve talked about the rights and benefits available to a witness under the Witness Protection, Security and Benefit Program (pursuant to RA 6981) in this post, but now we discuss how these may actually work against the witnesses’ own protection, security and benefit with the “help” of the DOJ.

Being taken out of the Witness Protection Program

One of the rights and benefits of the witness under the Program is “[T]o have a secure housing facility until he has testified or until the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level.” (Section 8)  Thus, the witness can be released when the DOJ determines that “the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level.”

But, unless the accused, his family members, his gang, his influence, power and money disappear (also die), how can the threat, intimidation or harassment ever disappear or be reduced to a manageable or tolerable level.”?  Even if trial ends, a rich and powerful incarcerated convict is no less rich and powerful.  Basically, only his travel, food and lodgings are limited. 

Let’s take the actual experience of Katherine De Leon and her co-witness, Kelly delos Santos -

“A notice that she was no longer in the witness protection program was issued by then Justice Secretary Agnes Devanadera on Feb. 12 [2010] who informed her that with the case submitted for promulgation, the threats to her life had been reduced to "a manageable level."

It took effect on March 1.

De Leon is one of the two witnesses in the murder of Kasuyuki Harashina, a Japanese businessman who was gunned down in front of a restaurant at the corner of Mabini and Arquisa Streets in Ermita.

She and Kelly delos Santos were admitted to the witness protection program in July 2007 on the request of Japanese Embassy chief consul Ken Jiendo.

Delos Santos, however, was killed three months after she and De Leon were taken out of the witness protection program.

xxx

[T]here was also an attempt to kill her on June 11 in Paco, Manila where she hid a week after Delos Santos’ death.

“They (armed men) shot me and hit me in the neck. I was bleeding badly but I stayed down, making them believe that they had shot me in the head. The gunmen left when they heard people coming and I took myself to a hospital,” De Leon said.

“I have lost everything and my life is still under threat. I came forward as a witness... because I wanted justice for the victim,” she added.”[1]

Lowering the threshold for releasing a witness from the witness protection program to “until he has testified or until the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level” is no way protective of a witness as clearly shown by the above actual events.   Witnesses like Katherine De Leon and Kelly delos Santos deserve to be placed in a relocation program and definitely not released from protection.

Delay in taking in a witness into the program

Once a witness applies for protection under the program, the DOJ’s decision must be immediate, no more than 24 hours. 

If this were so, perhaps the killers of Suwaib Upham - who was involved in the massacre of 58 people in Maguindao province and a willing witness – could not have so easily found him.

Three months before [Suwaib Upham] was killed, Human Rights Watch had raised protection issues regarding Upham with Justice Department officials in Manila, yet the department was still considering his request for protection at the time of his killing.

"Massacre witnesses are dying while the government sits on its hands," said Elaine Pearson, acting Asia director at Human Rights Watch. "Suwaib Upham took enormous personal risks by agreeing to testify against Ampatuan family members, yet the government, knowing full well he was in danger, did nothing. This sends the worst possible message to other witnesses thinking of coming forward."[2]

The DOJ’s illogical delay led to fatal results.  Compelling the DOJ to decide quickly may prevent future disastrous mistakes.

When they agree to testify, witnesses put their and their loved ones’ lives and futures at stake, especially in our country known for impunity and corruption. The DOJ’s early release of, and non-use of the relocation program for, innocent eyewitnesses Katherine De Leon and Kelly delos Santos is questionable to say the least. While denying protection to a co-conspirator willing to testify raises questions as well.

Perhaps it may actually be the Department of Justice that is the problem and not the witness protection program.  At least, making stricter rules might help cure the flaws of either.  The end we all seek is justice and one way to ensure it is to make it safer for witnesses willing to tell the truth.  When the government says no to the protection of a witness, it says no to justice as well.


Updated 09/21/11:
A reader, rosek112@gmail.com, wanted to share “10 Things You Didn’t Know About Witness Protection” which they posted on their own blog. Might be interesting to read.

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[1]  Andrade, J. (2010, July 26). Witness taken out of protection program cries foul. Retrieved from http://newsinfo.inquirer.net/inquirerheadlines/metro/view/20100726-283304/Witness-taken-out-of-protection-program-cries-foul

[2]  Philippines: investigate killing of massacre witness. (2010, June 23). Retrieved from http://www.hrw.org/en/news/2010/06/23/philippines-investigate-killing-massacre-witness

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OUT OF THE CLOSET INTO THE COURTS: The Gay Party List

By Obiter07

While this is a serious matter involving rights and representation, one cannot help but be amused to see the list of supporters for Ang Ladlad, which is composed of “lesbians, gays, bisexuals, or trans-gendered individuals.”  They sport names like, the   Aklan Butterfly Brigade (ABB), which should put to shame the violent ABB assassination group, the Boys Legion, Cagayan de Oro People Like Us or “CDO PLUS”,  Can’t Live in the Closet, Inc. or “CLIC”  and  Society of Transexual Women of the Philippines or “STRAP.” 

Ang Ladlad had filed a petition for registration as a party-list organization under Republic Act No. 7941.  The Petition was dismissed by the COMELEC on moral grounds, citing both the Bible and the Kuran:

“x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.

         

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender.”

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women “ye are indeed a people transgressing beyond bounds.” (7.81) “And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!” (7:84) “He said: “O my Lord! Help Thou me against people who do mischief” (29:30).”

The COMELEC likewise cited provisions of the New Civil and Revised Penal Codes on decency or morality and  good customs (Article 1306 and 1409, New Civil Code and Article 201, RPC).

Ang Ladlad filed a petition for certiorari with the Supreme Court which overturned the COMELEC’s rulings.  The High Court held that it is not a requirement that only the sectors enumerated in the party list law (RA 7941) are to be registered under the party list system.  Moreover, there was a violation of the prohibition against the establishment of a religion as provided for in Article III, Section 5 that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” There must be “government neutrality in religious matters.”  The COMELEC’s reliance on the Bible and the Koran to justify the exclusion of Ang Ladlad violated this prohibition.

There was likewise a violation of the equal protection clause by the COMELEC’S targeting of homosexuals “as a class, not because of any particular morally reprehensible act.”  And that the COMELEC made “an unwarranted and impermissible classification not justified by the circumstances of the case.”  The right to freedom of expression was likewise violated to the extent that the COMELEC’s action had precluded Ang Ladlad “from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates xxx.”

Allowing Ang Ladlad’s registration is in consonance with the country’s international obligations to “protect and promote human rights” particularly the “principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.”

What the COMELEC sought to bar on moral grounds was allowed by the High Court on Constitutional grounds. It does not appear that Ang Ladlad won a seat during the recently concluded elections.  There is a joke that goes that the LGBT community is already well-represented anyway in Congress, except that no one wants to acknowledge his or her membership in this group. 

The right to participate in the elections was a hard-earned victory for the LGBT community.  And they might soon find themselves not only out of the closet and before the courts but in Congress as well.  Then we might just see one big coming out party, maybe even a parade to boot.

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