Privilege Speech vs Killings



Party-list Representative H. Harry L. Roque, Jr.

August 1, 2016

House of Representatives, 17th Congress


The Duterte Presidency and the task of the simultaneous realization of rights and norms


Mr. Speaker, I stand before you today on a question of personal and collective privilege. My aim today is to clarify certain basic principles that must serve as important pillars of our society – of any society, in fact – even as we embark on a new chapter in our country’s political life.


Lest I be misunderstood, I speak before you today not to criticize, but to engage each of us in a necessary and urgent discourse for public justice and the common good. Only last week, we heard President Rodrigo Roa Duterte address the nation for the very first time before the House of Representatives and the Senate of the Philippines jointly assembled.


The President’s SONA and my legislative vision


His speech, by turns candid and urgent, hammered home the compelling imperatives of our time: among many pressing concerns, the need for government to be responsive to the needs of the suffering masses and the heart-breaking and griding poverty of daily lives, the festering cancer of corruption in all levels of the government, the clash between economic progress and environmental protection, the irrelevance of a GDP-led economic development where a greater majority of our own people can barely make both ends meet, if at all; the long, pained cries for peace in many of our country’s conflict zones, the fearsome specter of the Philippines becoming a state taken captive by narcopolitics and unrestrained criminality.


I join the President in his concern for the least of our people.


I am more than pleased that in his economic and social programs, we see a certain responsiveness and empathy unlike what we have seen in the programs of past administrations. Although I am but a new legislator, I wish to contribute in my own small way to the achievement of these laudable and very urgent economic and social measures.


In fact, it is with no small pride that I say that on the very first day of work at the House of Representatives of the 17th Congress, on June 30, I filed several bills, not a few of which actually anticipated with key items in President Duterte’s legislative agenda that he would later anounce in this first State of the Nation Address.


I refer to House Bill 223, on a proposed Whistleblower’s Act, House Bill 224, on a proposed Freedom of Information Act, House Bill 225, a bill providing for Free and Universal Health Care for all Filipinos, and House Bill 916, the Anti-ENDO Act.


These are just a few of proposed pieces of legislation that my office as a party-list Representative is committed to work for to help the Duterte Administration achieve its vision of a just, humane and equitable society.


The values that make society just, human and progressive


Yet, there are certain assertations in President Duterte’s SONA that I must confront –admittedly with some measure of trepidation, knowing as I do that he is at a historic high as far as his trust rating as President is concerned.


That I now stand before you today on a question of personal and collective privilege is not just because I have been fighting for recognition of certain of these societal values in the last two decades or so of my professional life; it is really that I cannot simply shirk from my duty as a citizen, a lawyer and a legislator to engage in a public discussion about the very values that, I believe, make any society just, humane and progressive.


Not too long ago, the eminent sociologist C. Wright Mills wrote – I am paraphrasing here from memory – about the tragedy of societies losing the values that defined what they once were; it becomes a tragedy made doubly worse when societies don’t even know the values they have lost in the course of their history.


Human rights and human dignity


Mr. Speaker, I must admit I was taken aback when President Duterte declared with utmost conviction, that – and I quote –“Human rights must work to uplift human dignity. But human rights cannot be used as a shield or an excuse to destroy the country – your country and my country.”


I was taken aback because one, it was met with wild applause from among us, and two, because as a statement, it brought to a stark if incongrous relief all the other statements in the same speech that said otherwise.


To begin with, the President just before that said that “the Rule of Law must at all times prevail, and that his government favors a “human approach” to “development, and governance”; and then a few paragraphs down, he would then lament the “loss of life” in the seemingly endless conflicts of the Moro and communist insurgencies that are “getting bloodier by the day.”


I very well see that President Duterte is a religious person, having himself acknowledged divine providence in his rise to the most powerful seat in the land. In his SONA, he also spoke about the inseparability of God and the State. While we may disagree with respect to the specifics of such relationship between religion and the public sphere, I welcome his implicit recognition that all of statecraft cannot be without limits to its exercise of power, if we were to begin with the assumption that all political power is ordained of God and therefore, subject to a higher sovereignty.


But human rights not only uplifts human dignity; in fact, human dignity is the foundation of human rights.


How we got to such conviction is a long story, but today, so much of legal and historical scholarship has acknowledged that in the Western tradition, at least, it is rooted in reasoning and reflection over the last millenia or so on the notion that human beings are image bearers of the Divine.


The secular account, although eschewing the Christian metaphysics of the body, can neither escape the claims of the human to certain basic and absolute entitlements, for simply being human: our humanity demands recognition and respect. It does not go beyond the fact that we humans bleed when cut, cry when hurt, and laugh and jump when happy.


It is the glimpse of recognition of a shared experience and community that we see when we look in the eye of even our toughest political and military adversaries.


It is the pained hope we witness in small and frail children laboring in the blight of urban dumps so they will have food to eat – their first and only meal for the day; we find it in the determination of street dwellers to care for their young and to send them to school, no matter waht. We find it in a mother’s love for her drug-addicted son as he rambles incoherently while staring into nothing, his brain cells too soaked in toxic chemicals to allow him to think clearly and rationality.


Human dignity demands recognition when we see the Quezon City jail built to house 800 inmates now overflowing with 3,800 inmates.


The bare facts of human existence stare back at us and ask us why we should care that this facility built 60 years ago is now filled to the brim, no small thanks to the sudden influx of inmates brought in by the anti-drug campaign of the Duterte administration.


If they are less than human, we can all look away and forget about the utter misery of their existence. I wince just reading an account of the conditions that torment the inmates at the Quezon City jail as we speak (and I quote):



Men take turns to sleep on the cracked cement floor of an open-air basketball court, the steps of staircases, underneath beds and hammocks made out of old blankets. Even then, bodies are packed like sardines in a can, with inmates unable to fully stretch out.


When it rains, the conditions are even worse as inmates cannot sleep on the basketball court, which is surrounded by the cells in decaying concrete buildings up to four storeys high.


The cash-strapped national government has a daily budget of just P50.00 for food and P5.00 for medicine per inmate, although with the bulk buying of supplies, Quezon City Jail detainees have a sustainable diet of soup, vegetables and meat.


Pails of water are used to flush the scarce toilets, with the stench compounded by the rotting garbage in a nearby canal.




(Incidentally, a suit I and my colleagues at the Center for International Law had filed filed has been pending in the Supreme Court for many years now – the case of Mr. Albert Wilson – and it is a suit asking the Court to take notice of the torturous conditions in many Philippine jails and to compel the Executive Branch to do something about it. Unfortunately, our Supreme Court has been taking its own sweet time in resolving the case).  


Human dignity is the sublime pathos – more than melodrama – invoked by the photographs of a woman embracing the lifeless and bloodied body of her husband, 29-year old Michael Siraon, gunned down in the early morning just days ago in Pasay City by unidentified assasins who threw next to him for effect a piece of cardboard identifying the victim as a drug pusher. Ironically, he was, according to his wife Jennilyn Olares, someone who had voted for Duterte in the Presidential elections in May.


Mr. Speaker, it is just incongrous to say that human rights can be used to destroy society or restrict human development. In fact, in the history of the development of human rights, the only reason why we can all speak today of human development is precisely because civilization has accorded pride of place, over a long struggle for recognition, to the very idea of human rights founded on human dignity.


From the trenches of Verdun and Somme in World War I, to the mad slaughter in the streets of Manila and Shanghai and the genocidal horros witnessed in the gas chambers of Auschwitz in World War II, the international community has come to a realization of the supreme worth of an individual, before then an invisible entity in international law, and mere putty in the hands of states, emperors and despots.


Raison d’etat versus norms and freedoms


Presidente Duterte promises to uplift the conditions of the common tao. But he has also launched a bloody drug war where the dead bodies piling up are mostly those of the same poor throng to whom he had promised economic and social salvation.


Perhaps, without President Duterte meaning it, we are being made to choose between the raison d’etat of law and order for economic and social development and human rights norms and fundamental freedoms.


But the argument is not even original.


Indeed, this has been a variation to a common theme of long standing – of human rights being an imposition of an imperialistic UN or some western interest and we in Asia and the ASEAN are all the better for it the sooner we reject such an imposition.


It’s an argument as old as the Cold War, when the communist bloc rejected civil and political rights in favor of social and economic rights.


Indeed, it has been argued more than enough in the context of Asia and the Assocation of Southeast Asian Nationas (ASEAN) that advances to social and economic rights – to the “right to development” – can be made without regard for non-derogable core human rights norms – of the right to life, liberty and security.


But philosophers and economists of various stripes and shades have long debunked this nebulous theory that human rights norms stand in the way of development.


The state’s task: simultaneous realization of rights and norms


For example, Amartya Sen, the Nobel Prize winning Indian philosopher and economist, has argued that in fact, civil and political freedoms are at the core of development. These freedoms enable full human functioning, and in turn, full human functioning make possible the conceptualization of economic needs and the shaping of values and norms vital to societal development.


Stated otherwise, it is foolish to conceive of a normative statecraft that privileges one norm over the others. I concur with my former professor in international law, Dame Rosalyn Higgins, who would put it thus:


I believe profoundly in the universality of the human spirit. Individuals everywhere want the same essential things: to have sufficient food and shelter, to be able to speak freely; to practice their own religion or to abstain from religious belief; to feel that their person is not threatened by the state; to know that they will not be tortured, or detained without charge, and that, if charged, they will have a fair trial. I believe there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development. They are as keenly felt by the African tribesman as by the European city-dweller, by the inhabitant of a Latin American shanty-town as by the resident of a Manhattan apartment.


If I may elaborate on what her words mean for me: the need for the recognition of fundamental rights is universal, regardless of culture, religion or nationality; moreover, we cannot grant one right and deny another. The realization of one norm cannot be pursued independently of the others, precisely because the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, to the detriment of of the others.


Thus, the 100th article of the Vienna Declaration of the 1993 Vienna World Conference on Human Rights declares:


All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.


Thus, it is the historic task of states and governments to move towards what philosophers have called the “simultaneous realization” of rights and norms.


Mr. Speaker, my honored colleagues in the House of Representatives, our people must not be made to choose between what, to begin with, are inter-related values, rights and norms.  


If law and order is important to development, so are civil and political freedoms. Precisely, law and order is one where civil and political freedoms are never dispensed with. Such a conviction is deeply rooted in the very idea of a Rule of Law, where governments are precluded from whimsical and arbitrary actions, and where everyone – rich or poor, mighty and low – is treated fairly and equally, and where a government official enjoys the same legal entitlements as the lowly private citizen.


Right to Life as Foundational Norm


This is not to say that there are no foundational or core human rights; but this is to say that foundational rights anticipate all the other rights and all the other rights are inconceivable and meaningless without foundational rights. By way of a relevant example: the right to life is foundational to all other rights.  


The Universal Declaration of Human Rights (UDHR) puts it thus:


UDHR Article 3.


Everyone has the right to life, liberty and security of person.


Now the UDHR was not and is not a treaty. When it was passed as a resolution by the UN General Assembly in 1946, it was but something of a veritable wish list of rights that all states ought to recognize and adopt. It has since become the preamble to all the other human rights treaties because in time, it inspired and gave birth to a host of international agreements granting human rights protections; it is now considered an an authoritative index of human rights and norms.


The Internatonal Covenant on Civil and Political Rights (ICCPR), to which the Philippines has been a state party since 1966, states:


Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.


Art.III, Section 1 of the 1987 Charter, the Bill of Rights, closely mirrors the language of the ICCPR:


SECTION 1. 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.


Which is why the right to life is non-derogable, whether in times of peace or times of war. It cannot be denied anyone without due process of law, regardless of the circumstances. The right to life means it is the highest of all societal values, so that it cannot be easily dispensed with.


You kill someone without due process, you deprive him not just of his right to live, but of all of the other rights to which he is entitled. Thus, even under International Humanitarian Law (IHL), or the Law of Armed Conflict, the right to life is not obliterated.  


Thus, even in times of armed conflict, Prisoners of War (POW) cannot be executed for alleged crimes without minimum guarantees of due process. They are entitled to a fair trial where all the recognized standards of due process in international law are followed. The same protections are accorded to civilians and other noncombatants.


Both the UN Special Rapporteur on Extrajudicial Killings and Summary Executions and Human Rights Watch have observed that a “Kangaroo” court such as that conducted by the New People’s Army (NPA) does not meet the minimum guarantees of fair trial and due process under international law.


Thus, it is not a wise, let alone, legal and constitutional, government policy to make the NPA revolutionary courts the government’s partner in carrying out sentences against alleged criminals.


You take away that person’s life, you also take away his right to free expression, right to a nationality, right to privacy, right to water, right to housing, right to travel, and so on; you kill his right to dream, to imagine a better future, to kiss his wife and hug his children, to be a better person than he is now. It is meaningless to talk about free speech when everyone who is supposed to enjoy it is dead.


This is why I feel strongly about extrajudicial killings targetting journalists: because to kill journalists is to permanently deny them their right to free expression. Killing without due process is the ultimate form of censorship because its effects are final and eternal.


As you all know, I have been a private prosecutor in the Maguindanao Massace, representing the families of 15 of the 58 victim of what has been described by international organizations as the single worst attack on press freedom in the human history.


If there is anything to say about my experience in the last six or so years prosecuting this case, it is the failure of the justice system to provide and effective remedy to the victims of human rights violations. Perhaps it is time to ask Senator Leila De Lima, who was Secretary of Justice during these last six years, what she has done to address the culture of impunity in the Philippines as exemplified in the Maguindanao Massacre.


Nothing has been done to improve the one-percent conviction rate in the prosecution of extrajudicial killings.


Mr. Speaker, President Duterte himself has announced the creation of a new Task Force to investigate the killings of journalists. This is not the first of such Task Forces. I hope it will be the last. The task forces of the past have all proven to be ineffective, largely because they ended doing no more than coordination of government agencies that added more layers to an already overburdened and complex prosecutorial system. Without actual vigorous investigation and successful prosecution of cases, this new Task Force will go the way of its predecessors, nice to read on paper, but virtually useless.


All this really calls for a massive overhaul of our criminal justice system, including the revision of our Rules of Court, which has relegated the task of investigation to the victims themselves and turned most of our prosecutors into pencil pushers working before desks laden with so much paper. There is also a need for legislation to put into effect the long-standing Minnesota Protocol, or the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.


This Manual prescribes what government must do in cases where those involved in summary executions are suspected to be under the color of government authority.


Mr. Speaker, there is another matter in the President’s speech that I find disturbing. While President Duterte may not have meant it in that way, his pronouncements about bona fide media that he considers to be his partners in his quest for development, implies that there are those who are not. This recalls his earlier pronouncements about the media, which has stirred the proverbial hornet’s nest.


The Power of a President’s Words


If there is anything that we can learn from the history of political rhetoric, it is the fact that words properly marshaled and deployed for a proper purpose can move a nation – even nations – to salutary ends. Ideas when expressed have consequences.


Without doubt, President Duterte is an engaging and powerful weaver of stories. He is able to endear himself to the broader masses of Filipinos with his down-to-earth, folksy manner, of speaking. But when he likes to, he can hold up on his own when addressing a gathering of leaders of the different spheres of society.


I look at my social media feed and I am worried by what I see. President Duterte’s anti-drug campaign has so polarized society that to speak out against the spate of killings all over the Philippines following the launch of such campaign appears to be interpreted as a tacit support for drug traffickers.


Thus, media reporting on these killings are being taken by some quarters to be solid proof that journalists are in the pay of drug lords and that their pockets are being lined with drug money to keep them from exposing the drug syndicates.


Contemporary experience has shown how perilous it is for freedom of expression whenever governments deign to villify media for not toeing the official line. In my years as a lawyer working in various ASEAN states to promote free expresison, I have seen various shades of repression in the name of law and order. And it is not pretty.



Our own Supreme Court has warned against the dangers of official pronouncements warning media about some imagined violations of the law. In Chavez v. Gonzales, the High Court struck down mere press statements as acts that constituted content-based prior restraint in a case involving, if you can still recall, the publication or broadcasting of the Hello Garci tapes. It declared thus: (quote)


in resolving this issue, we hold that it is not decisive that the press statements made by Defendants-Appellees were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by Defendants-Appellees while in the exercise of their official functions. Undoubtedly, Defendant Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. (unquote)


Thus the High Court said that a criterion to determine whether the act of an Executive official is tantamount to prior restraint is this: “Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint.”


The majority opinion thus proffered an expanded understanding of an “act” as a legal concept in relation to free speech and free press issues: (quote)


The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non-formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. (unquote)


The import of the majority’s rationale comes to in stark relief when viewed in relation to this finding that the assailed acts of the public officials actually created a chilling effect on media:


There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less than the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.



Here, the press statements of the Secretary of Justice were struck down for unconstitutionality, these having been considered as instances of prior restraint for the chilling effect they raise on free speech.


Imagine the power of the words of a President like President Rodrigo Roa Duterte.



State Responsibility for human rights and humanitarian law


In the international legal system, the state is the primary domestic institution charged with the task of ensuring the promotion and protection of human rights.


This is so for the following reasons:


First, States are the principal parties to human rights instruments as well as to international humanitarian law conventions, and are therefore the principal institutions charged with implementing them in their respective jurisdictions. Thus, the failure of the state to comply with its obligations under the same treaties is a breach of its obligations and engages its responsibility under international law.


Mr. Speaker, we simply cannot dispense with our obligations under international law with impunity. We have to be consistent whenever we invoke international law, as in the landmark Permanent Court of Arbitration ruling in the South China Sea Arbitration. If we want other countries to abide with their international obligations, we should as well do so.


Second, as early as 1928 in the Las Palmas case where the Philippines lost title over the island of Las Palmas (or Miangas) to Indonesia, international law has always recognized that states, in the grant by the international legal system of sovereign and territorial rights to them, have concomitant obligations to the protection of human rights. As held in that case by the lone arbitrator Max Huber: (quote)


Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. (unquote)


Thus, this obligation under international law includes the prosecution of all cases of extrajudicial killings, whether or not perpetrated by state agents. The state cannot stand idly by while unidentified gunmen ride as marauding parties in the streets, killing people with impunity. Such gross negligence by the state amounts to supporting impunity and lack of public accountability.


Third, it is true that there are now various international mechanisms to hold perpetrators of international crimes responsible for their actions; for the most part, however it is the institution of the state as a public legal community that plays a lead role in ensuring that the demands of public justice and the common good are best served within its jurisdiction.


This is because the state’s law enforcement and prosecutorial arm for protecting and promoting public justice and the common good in the domestic legal order sets it apart from other societal institutions; only the state is the immediate institution in the domestic sphere entrusted with the legal duty – backed up with the force of arms – to protect and promote the Rule of Law.


For example, the International Criminal Court (ICC) – the first permanent international tribunal with jurisdiction to hear individual crimes involving cases of gross violations of human rights and humanitarian law – generally works under the principle of “complementarity,” where the state is given the primary jurisdiction to try these cases, and the ICC only steps in when the concerned state fails to prosecute an international crime.


It is worth noting that we now have a law implementing our obligations as party to the Rome Statute that created the ICC, imperfect as it is, the Philippine International Humanitarian Law Act, or Republic Act 9851 passed into law in 2010. It is a law that begs to be enforced, as despite its passage six years ago, the violations of IHL continue on either side of the fence.


In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure. This is something that we cannot stand for.


Thank you, Mr. Speaker.








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