AuthorEdilberto de Jesus

Topping the Impunity Index

Topping the Impunity Index” was first published in the Philippine Daily Inquirer on October 7, 2017. 

Ranking 69 countries, the 2017 Global Impunity Index (GII) gave us first place. This suggests that if you are a criminal, you are safest practicing your occupation in the Philippines. You would be less likely to be arrested; if arrested, prosecuted; if prosecuted, convicted; if convicted, punished. If you had the lofty connections of, say, a senator or a president, you can, after sentencing, hope for pardon.

To be fair, the Duterte administration cannot take sole credit for this dubious distinction. Impunity has plagued us for decades, leading many to favor tough action against suspected criminals and, up to a point, to excuse police violations of due process. The backlash against EJK shows this point may have already been reached. A law-and-order president should want the GII image of the Philippines corrected.

Addressing impunity requires interrogating two factors affecting the framework of security, justice and human rights. First, has the state invested resources to provide enough policemen and jails, judges and courtrooms, and human rights monitors to ensure the rule of law? Bureau of Jail Management and Penology (BJMP) Director Serafin Barretto said the jail congestion rate of 558 percent was the world’s highest in 2015, beating Haiti’s 454 percent.

Looking at the number of judges against population, GII figures showed a global average of one judge overseeing 6,250 people. In Croatia, the least afflicted by impunity, the ratio was 1:2,200 and in Mexico, 1:23,800. The ratio of Philippine lower court judges to population in 2006-2009 was over 1:60,000.

In 2017, the Philippines maintained one police officer for 650, against the global average of 1:315. Mexico surpassed this average number with 280 people for each police officer. But Mexico’s fourth-place finish in the 2017 GII drives home the centrality of the second factor affecting impunity: the operational effectiveness of the security and justice systems. Do the people running these systems possess the requisite knowledge, skills, and values? Consider Caloocan.

Raising the number of police officers and judges to a minimum level is necessary, but not sufficient, to avert the problem of impunity. Law enforcers must also have the necessary qualifications for the job and follow the rule of law in their application. Monitoring their respect for human rights is thus a necessary measure to ensure the proper functioning of the security and justice systems.

The Duterte administration inherited deeply flawed systems—and made problems worse in three ways. It launched the war on drugs without serious planning for the issues of detention and rehabilitation. The BJMP predicts drug arrests this year to approach 200,000. In the urban areas, drug suspects make up 75-80 percent of prison inmates. Will a prison sentence in overcrowded jails, at the 2012 budget cost of P19,345 per prisoner—higher than the P15,000 conditional cash transfer family subsidy—contribute to the rehabilitation of drug addicts?

Second, opinion surveys reflect a widespread concern that a large number of crimes concealed by impunity are now committed by state agents. Consider Caloocan and the killing of Korean Jee Ick-joo in Camp Crame. Senators have recognized that EJK does happen and thousands of “under-investigation” cases remain unresolved. Even more alarming, the President has encouraged, by word and deed, the belief that constitutional guarantees of human rights and due process will not deter the war on drugs. Consider Caloocan and the downgrading of the charges against the 19 killers of Albuera Mayor Rolando Espinosa.

Third, resource constraints that systemically impede the delivery of justice politicize and aggravate the issue of implementation. On the corruption cases, the protest is not that those charged are innocent, but that equally guilty parties have not been prosecuted. If we cannot simultaneously prosecute all “big fish” criminals, do we abandon convicting those we can?

Mr. Duterte gallantly insists that ladies should go first; he should be investigated for hidden wealth only after the investigation of the Chief Justice and the Ombudsman. The ladies have declared their willingness to undergo investigation. Mr. Duterte has rejected investigation by the Office of the Ombudsman. In rejecting constitutional processes to check abuse of power, he gives further substance to the GII judgment giving the Philippines the global prize for tolerating impunity. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

EJK: policy and practice

EJK: policy and practice” was first published in the Philippine Daily Inquirer on September 23, 2017. Photo by PCOO.

The messages in the Sept. 21 “Day of Protest” at the UP Chapel Mass and the unveiling of the Jose “Pepe” Diokno statue at the Commission on Human Rights headquarters inevitably focused on EJK. The issue remains cloudy, despite the precious time Senate hearings spent fruitlessly debating what has become almost an academic issue: Is there a government policy to kill drug offenders?

PNP Chief “Bato” dela Rosa insisted that President Duterte has never issued a policy statement or direct order instructing the police to kill drug addicts. Mr. Duterte has maintained the same point. Although he has explicitly warned addicts, “I will kill you if you are destroying my country,” he tirelessly repeats that no law prohibits him from threatening to kill criminals.

Until someone miraculously discovers evidence of high officials prescribing EJK, government authorities can simply stand on their denials. Debating the issue only served to inflict on the public Dela Rosa’s tearful defense of his misunderstood, unappreciated policemen. But, whether explicitly mandated or not, EJK is undeniably taking place, raising legitimate questions about unresolved killings done during police operations or by unnamed vigilantes.

The issue is not policy, but practice. Threats to kill addicts would not themselves be alarming, except that suspects actually end up dead without benefit of due process. The administration has made little progress investigating these thousands of deaths, let alone delivering justice to the victims.

The corollary question revolves around the extent to which Duterte statements contributed to justifying and promoting the practice of EJK. Both BBC and the New York Times have collected some choice items:

“Forget the laws on human rights…. You drug pushers, holdup men and do-nothings, you better go out. Because … I’ll dump all of you into Manila Bay, and fatten all the fish there.”

“[As mayor] I’d go around in Davao with a motorcycle … and I would just patrol the streets, looking for trouble…. I was really looking for a confrontation, so I could kill.”

“Hitler massacred 3 million Jews. Now, there are 3 million drug addicts… I’d be happy to slaughter them.”

He stood by the police charged with the killing of Albuera Mayor Rolando Espinosa, “because they might have really followed my order (Kasi baka nga talaga sinunod yung utos ko).”

Presidential apologists twist their tongues and turn cartwheels to interpret the intent of these statements on EJK and impunity as histrionic, hyperbolic, or humorous. But presidential words matter. At the minimum, the death count in the drug war clearly causes the President little concern. He rejoiced at the one-day record of 32 drug-war deaths established in August: “That’s beautiful (Maganda yun). If we can just kill 32 every day then maybe we can reduce what ails this country.” At that rate, journalist Vergel Santos calculated, it would take Mr. Duterte over 34 years to eliminate his estimated 4 million drug addicts.

We are also familiar with policies and regulations that are routinely violated because they are not enforced and violations go unpunished. We now discover examples critical to the drug war.

Within a year, two shipments totaling nearly 1,500 kilos of “shabu” went through the Bureau of Customs. Sen. Franklin Drilon and Sen. Panfilo Lacson noted that the laws prescribe detailed guidelines on the disposal of captured drug materials and the prosecution of suspects implicated in the capital, nonbailable crime of drug trafficking. Sen. Richard Gordon joined them in denouncing the lax implementation of policy that allowed massive quantities of drugs to flood the country—while the police vigorously hunted down possible peddlers of shabu sachets.

We see, on one hand, clear policies, validated by successful antidrug campaigns in other countries that interdicted the flow of drugs from overseas and targeted the big drug lords, which are not being faithfully enforced. On the other hand, we see piling up suspected and unresolved EJK cases; the administration denies that this is the result of policy, but the suspicious deaths are daily happening in practice, without visible government intervention.

It is a curious and outrageous predicament that has not provoked, but might have justified, the usual presidential expletives. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

What makes Callamard ‘scary’?

What makes Callamard ‘scary’?” was first published in the Philippine Daily Inquirer on September 2, 2017. Photo by CMFR.

On the day of Kian delos Santos’ interment at La Loma Cemetery, Agnes Callamard, the United Nations’ special rapporteur on extrajudicial killings, said in a tweet: “My heart-felt condolences to #Kian family and to all families victimized by this cruel war.” The tweet carried the hashtags #Makehisdeaththelast and #Philippines.

Asked for his reaction to the Callamard tweet, President Duterte could have responded in several different ways. Perhaps he could not honestly commit to a war on drugs that did not result in casualties. But he could have reassured Callamard that his administration did not condone the extrajudicial killing of Kian and would take the necessary steps to avoid adding to the list of EJK victims.

He had already arrived at the same conclusion—emerging from surveillance cameras, the testimony of witnesses, the autopsy conducted by the Public Attorney’s Office—that the Filipino public and Callamard reached: Police operatives had murdered Kian. After seeing the CCTV footage, he reportedly called PNP chief Ronald dela Rosa to order the arrest and detention of the policemen involved.

In many of his public speeches, Mr. Duterte routinely repeats his standing orders to the police: In the performance of their lawful duties, they can kill suspects who offer violent resistance and he will defend them against potential charges of human rights violations. But the Kian killing prompted an explicit warning against going beyond the bounds of their mandate: “You are not allowed to kill a person who is kneeling down, begging for his life. That is murder.”

Kian was not the first EJK victim in the war on drugs. But his was the first EJK that Mr. Duterte has tacitly acknowledged. Accordingly, Mr. Duterte does not consider himself obliged to spare the killers from the legal consequences of their crime. The incident might also explain the candid confession: “I promised that I will do away with shabu. Now I know it won’t be fulfilled, that this really will not end.”

A response to Callamard based on his public response to the Kian case would have helped improve the government’s relations with UN human rights officials. Instead, Mr. Duterte reverted to what appears to be the presidential default option when confronting perceived criticism; he cursed Callamard and warned her not to “scare” (takutin) him. This allowed Callamard to take the moral high ground: “Kian and others like him deserve dignity and justice … our respect and empathy. Not expletives.”

A couple of earlier Callamard tweets perhaps explain why Mr. Duterte went ballistic. One claimed Kian was the “latest symbol of a massive, government-led, human rights crisis,” and the second said “all unlawful deaths must be investigated. To stop all murderers.” While the first was clearly critical, it would be difficult to disagree with the second, and it is not clear why the President should find either tweet scary or threatening.

Mr. Duterte also criticized the French legal system as based on the presumption that the accused is guilty and bears the burden of proving innocence. The French Embassy quickly responded, asserting that the presumption of innocence is “enshrined in the French Declaration of Human and Civic Rights of August 26, 1789,” and adding that “France strongly believes in the importance of the rule of law, due process, and respect for human rights in all countries, including the Philippines.” Unfortunately, the French correction will probably fail to reach most of the people who listened to Mr. Duterte and who will remain victims of fake news.

By speaking out against the Kian killing, meeting with the parents and giving assurances that justice will be served, Mr. Duterte has managed to temper the public outrage against EJK. But the immoderate reaction to Callamard raises questions about how differently the war on drugs will be waged. Will there be greater supervision and control of antidrug operations to prevent EJK? A faster pace to the investigation of drug war deaths, now that the Kian killing has prompted collaboration between the PNP and the Commission on Human Rights?

If these are genuinely new objectives in a war he insists must continue, Mr. Duterte will need the public’s assistance in monitoring its conduct, to avert more Kian killings or ensure that the killers are punished. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

The Parojinog provocation

The Parojinog provocation” was first published in the Philippine Daily Inquirer on August 19, 2017.

Frustration with a judicial system that did not deliver justice drove many to support Rodrigo Duterte’s presidential bid. But many have recoiled at the postelection surge in unresolved killings by police forces and freelance vigilantes. As in Aesop’s fable, the frogs who accepted a crocodile king to discipline their divided and dysfunctional colony discovered that a ruler’s unrestrained power to exterminate the guilty also risked extinguishing the innocent.

The government’s predawn assault on the homes of Ozamiz City Mayor Reynaldo Parojinog on July 30 produced 16 fatalities (including the mayor and his wife, sister, brother and nephew) and sharpened the dilemma that President Duterte posed for many voters. Those vulnerable to the clan’s power probably felt liberated and relieved, even if they objected in principle to EJK. Reflective of this dilemma was Sen. Panfilo Lacson’s ambivalence on whether to conduct a Senate inquiry into the matter.

Octavio Parojinog rose to power in the 1980s as the founder of the Kuratong Baleleng, a government-backed anticommunist militia group. Tolerated as a vigilante group, the Kuratong turned to extortion, armed robbery and kidnapping for ransom, provoking criminal charges and armed clashes with the police. Octavio was killed in 1990 while resisting arrest; charges against his sons, Renato, Ricardo and Reynaldo, were dismissed for lack of evidence.

Whether admired as Robin Hood figures or feared as a Mafia family, the Parojinogs remained dominant in their province and easily diversified into politics, also a potentially lucrative undertaking. In 2001 Renato won a provincial board seat and Reynaldo became mayor of Ozamiz. Third-generation descendants subsequently won city and provincial elections. Mayor Reynaldo and his daughter, Vice Mayor Nova Princess, were charged with corruption in 2008 and ordered arrested in 2016. The charges were dismissed only a year later.

As chief superintendent and head of the Presidential Anti-Crime Commission, Lacson led Task Force Habagat that engaged and killed 11 Kuratong gang members in 1991. The victims’ families denounced the operation as a “rubout.” Charges filed against Lacson and his men reached the Supreme Court but were dismissed in 2002.

Despite the similarities with the killing of Albuera Mayor Rolando Espinosa—operations conducted in the dead of night, missing or nonfunctioning surveillance cameras—Lacson was inclined to see the action against the Parojinogs as aboveboard. But he was categorical in condemning the killing of Espinosa as premeditated murder and the downgrading to homicide of the charges filed against Supt. Marvin Marcos and his men. Mayor Parojinog, he observed, was not killed in a jail cell.

Mayor Parojinog reportedly had the inside track for the governor’s seat in the next election. Even those concerned about EJK recognized that further consolidation of the family’s grip on provincial politics would likely doom any criminal case lodged against its members. This pragmatic assessment argued for quietly accepting the summary execution of notorious criminals, rather than depending for justice on our fragile legal institutions. But who will make the call on who deserves EJK? As Joaquin Bernas, SJ, used to say, “The King should have this power, if I am King.”

Senior administration officials appear recently to have rediscovered the Constitution. Defending Superintendent Marcos, Presidential Legal Counsel Salvador Panelo admonished critics to observe “the constitutional presumption of innocence,” a line also taken by the PNP chief, Ronald dela Rosa. Allegations of Davao City Mayor Paolo Duterte’s involvement in Bureau of Customs corruption involving drugs did not prompt Mr. Duterte to call for the investigation of the case; he asked to see the evidence proving his son’s guilt.

We should welcome the administration’s appeal to constitutional rights, due process, and credible evidence. It has not been as zealous about meeting these standards before executing suspects in drug crimes. It has insisted that it must privilege the rights of the innocent over those of criminals. But, as pointed out with greater eloquence by St. Thomas More, rejecting the laws that protect the rights of the guilty deprives the innocent of their protection.

Granting the government the power to choose whose rights deserve respect slides us back to Square 1: an unjust judicial system giving impunity to the powerful—the problem that voters had hoped the Duterte presidency would correct. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

Who’s afraid of Sergei Magnitsky?

Who’s afraid of Sergei Magnitsky?” was first published in the Philippine Daily Inquirer on July 22, 2017. 

He is, after all, dead. He died in 2009, according to Russia’s Presidential Human Rights Council, after severe beatings while detained in a Russian prison for abetting tax evasion. But the circumstances of his death led to US legislation carrying his name. Meanwhile, current international concerns over human rights violations and the US election controversy have suddenly thrust to new prominence the laws he inspired.

An auditor in a Moscow legal firm, Magnitsky exposed a $230-million tax fraud scheme that he discovered while engaged as legal adviser for the London-based Hermitage Capital Management (HCM), one of the largest private equity firms investing in Russia. Human rights groups and HCM blamed his arrest and death on government officials who wanted to silence him. The government also subjected the whistle-blower to a posthumous trial to undermine his credibility. The investigators, who included parties implicated in the tax fraud case, concluded that he had been legally arrested and had not been tortured.

Undeterred, Magnitsky’s supporters compiled a list of some 60 officials from the interior ministry, police and tax authorities whom he had identified as involved in the corruption. In 2012, as retribution for Magnitsky’s death, the US Congress passed the Magnitsky Rule of Law Accountability Act. With rare bipartisan support, Congress expanded the scope of the law in 2016, by enacting the Global Magnitsky Human Rights Accountability Act.

The law empowers the president to deny entry into the United States and to freeze the assets of any foreign person or entity found responsible for torture, EJK and other gross violations of internationally recognized human rights, and anyone acting as agent in such activities. Explicitly covered also are government officials and their senior associates responsible for, or complicit in, committing these violations and other acts of significant corruption.

These laws have not been widely enforced, even against Russians; the earlier, narrower law had resulted in action against 18 Russian individuals. But the ongoing investigation of possible collusion between Donald Trump’s presidential campaign organization and Russian government agents to discredit Hillary Clinton has focused attention on these laws. The mission of the Russian group that met with Donald Trump Jr. was apparently to lobby against the Global Magnitsky Act. Two factors may explain why this law would concern Vladimir Putin and why its repeal or weakening would become an important foreign policy priority.

First, President Trump, writing to Congress last April, said his administration was “actively identifying persons and entities to whom the Act may apply and collecting the evidence necessary to apply it.” He also expressed the intent to “fulfill our commitment to hold perpetrators of human rights abuses and corruption accountable.” While there is no assurance that Trump can deliver on this promise, the issue of Russian meddling in the US election will make it difficult for him to take a stance that appears to soften the law.

Second, other countries have begun the process of passing their own versions of the Global Magnitsky Act. During the third reading of the Criminal Finances Act in the Commons, UK Security Minister Ben Wallace stressed the need, in an increasingly global marketplace, to “make the UK a hostile environment for those seeking to move, hide and use the proceeds of crime and corruption.” In 2015 then Canadian Justice Minister Irwin Cotler tabled a unanimously adopted parliamentary resolution for a Magnitsky Act to protect international human rights as a key foreign policy goal of Canada and the expression of its principles and core values.

In deploying the Magnitsky Act or its equivalent as a weapon against cross-border corruption and human rights violations, governments can apply punitive measures on specific individuals implicated in these crimes without imposing sanctions that indiscriminately punish an entire country. This targeted response sends a clear signal that the rejection of corrupt business practices and respect for human rights have emerged as values shared worldwide.

Those whose current control of political institutions enjoy impunity at home for gross human rights violations, such as complicity in EJK, enjoy no assurance that this control is permanent. Their world will shrink into an increasingly smaller place as more countries reject granting them impunity for their crimes abroad. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

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