A politicised, underdog system of justice

A Statement by the Asian Human Rights Commission
October 15, 2010

When Philippine President Benigno Aquino III decided to grant amnesty to the military men charged for rebellion against the government and not to file criminal charges against an official and the policemen involved in the Manila bus hostage incident, it demonstrated how deeply politically controlled the system of justice is in the country. His orders also demonstrate his outright disregard for the prosecution system by taking upon himself the decision as to when and when not to pursue criminal cases in court.

The Asian Human Rights Commission (AHRC) express its deep concern that President Aquino's decision had further subjected the role of the Department of Justice (DoJ) and its attached agency, the National Prosecution Service (NPS), to political control and undermining. These two orders reaffirmed the vulnerability of the justice department and the prosecution system from political control. These agencies, which are responsible in the investigation and prosecution of criminal cases in court, are in reality underdogs and at the mercy of the President.

The very structure of the country's system of justice is deeply politicized and is subject to political control. The NPS is by authority, under the DoJ. The head of the DoJ is a political appointee of the President and serves at his disposal. The President's power and control extends, not only upon the secretary of the DoJ whom he appointed, but to all the state and public prosecutors under the DoJ.

In the Philippines, the Office of the President (OP) has the power to impose disciplinary sanction, like taking away the salaries and benefits; suspend any senior state prosecutors and public prosecutors anywhere in the country. The President also has power to order the DoJ and the NPS to review cases they are handling. The DoJ secretary serves at the disposal of the President, including reporting to him on the functioning of the prosecution service--such as the decision whether or not to pursue criminal cases in court.

There is no challenge that could be made as to whether the President's decision was based on merit and the evidence gathered by the DoJ and the NPS, but all are at the complete discretion of the President. The system of justice in reality permits, legally and structurally, the Head of State to take over and usurp the role of a prosecutor.

Manila bus hostage: President Aquino's creation of the Incident Investigation and Review Committee (IIRC), headed by DoJ secretary Ms Leila de Lima, supposedly to investigate and review the incident to identify who should be held criminally liable for the death of the eight Hong Kong nationals was purely founded on publicity. It was nothing more than a façade. However, even at the early stage of the President's announcement its intention was to have a legal machinery to legally justify the exoneration of those who had been involved and subjected to investigation.

Was there really a need to create the IIRC? No. The DoJ and the NPS are legally and structurally mandated to investigate and prosecute cases that breached the country's penal and statutory laws. This is without any regard to the nature of the severity of the offence and who the victims were. The IIRC was rather in reality created as a legal theatrical exercise which would amount to nothing less: once again, it is nothing more than a facade. President Aquino's decision to rescind the IIRC recommendation by not pursuing criminal cases against the top officials and policemen involved revealed the purpose of its creation. There is not even a semblance of accountability.

The AHRC shares Secretary De Lima's concern and disappointment of President Aquino's decision not to pursue the criminal charges in the Manila bus hostage. Her public statement that she is only the President's "alter ego"; and that the IIRC is aware that their recommendations are at the President's disposal, demonstrates how subservient and controlled the DoJ is by the President. The refusal by the President to have full disclosure of the recommendations by the IIRC denies and deprives the possibility of public discourse as to the merit on which the President based his decision.

Grant of amnesty to rebel soldiers: Granting amnesty and executive clemency is legally the authority of the President; however, when power is exercised on the basis of political consideration on the pretext of political reconciliation, outright disregard to judicial process, and unequal treatment as to who deserves amnesty and clemency, the decision borders on the abused of and inequality in the exercise of power.

President Aquino has ordered the granting of amnesty to 300 rebel soldiers, who were involved and charged for the July 2003 Oakwood mutiny; the February 2006 Marines standoff; and the November 2007 Manila Peninsula takeover, purposely for political reconciliation and unity amongst the Filipino people. These soldiers had rebelled against the previous administration; thus, he argued that to grant them amnesty is needed for the unification of the country and good governance.

President Aquino's order, by granting amnesty, which would effectively nullify the ongoing prosecution of their case in court, once again demonstrates his outright disregard to the country's prosecution system. On the Oakwood mutiny case, the public prosecutors spent over seven years in collecting evidence and prosecuting the case, but before the court could render its final judgement on October 28, 2010 the soldiers were already given amnesty. Thus, whether the soldiers would have been convicted or exonerated no longer matters. The merits and substance as to whether the soldiers should be punished for their actions; and for undermining the government, would have no meaning at all.

The AHRC shares the disappointment expressed by Senior State Prosecutor Juan Pedro Navera in his public interview that by granting "amnesty (before the court could render its judgement) erases all the liabilities of a person as if the offense was not committed." As mentioned, state and public prosecutors are completely at the discretion of the President. Therefore, whether this prosecutor agrees to the President's amnesty or not, the choice is neither his or his superior, DoJ Secretary De Lima, but completely that of the President.

The granting of amnesty to the soldiers should also apply to over 96,000 prisoners all over the country who had been recommended by the Board of Pardons and Parole. This board, however, is once again under the authority and jurisdiction of the DoJ; thus, the decision as to whether the Board's recommendation be granted or not would once again fall under the President. However, should these prisoners not be given amnesty as the soldiers have, it illustrates inequality in the President's application of power.

The AHRC is deeply concerned that decisions within the framework of the country's system of justice have been made on the basis of political consideration and accommodation.