Marking his 100th day in office today with a “very good” 64% net satisfaction rating (per the Sept. 24-27 SWS nationwide survey), President Duterte can justifiably feel emboldened to pursue more resolutely his key initiatives towards instituting changes in the untenable status quo.
One key initiative is the resumption of the long-stalled GRP-NDFP peace talks, aimed at forging agreements on social, economic, political and constitutional reforms to end the armed conflict ongoing for nearly 50 years. He got the talks unstuck in June before formally assuming office. The first round of formal talks took off with much euphoria in Oslo, Norway on August 22-26, and the second round is now on-stream, facilitated by the Royal Norwegian Government.
The negotiating panels appear eager to accomplish, within an agreed timeline, the bilateral work they set for themselves in their August 27 joint statement. President Duterte’s urgent action on one issue is crucial, though. With it, two objectives could be achieved: to draw up a viable bilateral interim ceasefire agreement for the duration of the negotiations, and to ease the flow, with relative facility, of discussions on the three remaining substantive agenda – which both sides acknowledge will be tough.
The crucial action needed: a presidential amnesty proclamation for the release of more than 400 political prisoners in various prisons nationwide. Such a proclamation would also cover the 22 NDFP consultants and other persons recently released on bail by virtue of the 1995 Joint Agreement on Safety and Immunity Guarantees (JASIG), which enabled them to participate in the peace talks.
Duterte himself (as president-elect) offered the amnesty proclamation on May 18, when he talked in Davao City with Fidel V. Agcaoili (then acting as NDFP emissary, and now the panel’s new chairperson after Luis Jalandoni relinquished the post), about resuming the stalled peace talks. Agcaoili recalled that meeting in his opening statement Thursday at the second round of talks in Oslo.
When he requested Duterte to cause the release of political prisoners by either archiving their cases, through bail or recognizance, Agcaoili said the president-elect instead offered amnesty as the “most effective method” to free them all. He made the offer in the presence of an NDFP panel consultant, a progressive partylist member of Congress, and several other persons, Agcaoili added.
By expeditiously making good on this offer, Duterte would also be fulfilling the GRP commitment under the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) Which is just logical. His administration has agreed to implement the landmark accord – signed and approved in 1998 but kept frozen by the Arroyo and Aquino governments for 15 years – by activating its implementing mechanism, the Joint Monitoring Committee. The JMC is meeting in Oslo right now.
In their August 27 joint statement, the two parties agreed that the GRP panel “will immediately recommend” to President Duterte the issuance of an amnesty proclamation, subject to concurrence of Congress, for the release of prisoners listed by the NDFP “who have been arrested, imprisoned, charged, and/or convicted for alleged acts or omissions within the ambit of the Revised Penal Code or special laws in connection with alleged crimes in pursuit of one’s political beliefs.” The two panels will discuss, in the current talks, the content and language of the prospective proclamation.
The recommendation is congruent with Part III, Article 6 of the CARHRIHL, which states:
“The GRP shall abide by its doctrine laid down in People vs. Hernandez (99 Phil. 516, July 189, 1956), as further elaborated in People vs. Geronimo (100 Phil. 90, October 13, 1956), and shall forthwith review the cases of all prisoners or detainees who have been charged , detained, or convicted contrary to this doctrine, and shall immediately release them.”
The doctrine alluded to – the “(Amado V.) Hernandez political offense doctrine” – stems from the 1956 Supreme Court decision that dismissed the charge of “rebellion complexed with” common crimes (such as murder, arson, kidnapping, robbery in band) as non-existent in law. The Court ruled that all serious crimes involving violence to human life and destruction of property committed in the pursuit of rebellion are subsumed by the “simple crime of rebellion.” Being a political offense (with underlying patriotic motivation), rebellion is penalized less severely than common criminal offenses.
Proving rebellion in court however is difficult. Even under the Marcos’ martial law regime, a fully-military tribunal couldn’t produce evidence to convict me and several fellow political detainees for rebellion – even after seven years of continuing trial.
Ironically, successive post-martial law governments, beginning with President Corazon C. Aquino’s, have chosen to prosecute suspected political offenders/rebels by accusing them of nonbailable common crimes. (Under Cory’s watch, my wife and I were subjected to trumped-up charges of murder, kidnapping, and illegal possession of firearms in four different courts. Thanks to good, dedicated defense lawyers Romeo T. Capulong, Arno Sanidad and Antonio Rosales, we were acquitted.)
According to the human rights alliance Karapatan, practically all the current 504 political prisoners/detainees have been slapped with fabricated charges filed by the security forces, using false witnesses, defective warrants of arrest, and planted evidence, among other tricks.
Thus, in his opening statement at the Oslo peace talks, Agcaoili decried such continued political incarceration as “manifestly a grave injustice” and a “blatant violation” of the Hernandez doctrine and the CARHRIHL. Releasing them through presidential amnesty, he emphasized, “will undoubtedly serve as an incentive in accelerating the peace negotiations and in forging a more stable bilateral [interim] ceasefire agreement.”
The ball, so to speak, is clearly in President Duterte’s court.
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Published in The Philippine Star
Oct. 8, 2016