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Sereno, the law, and creeping impunity
posted May 13, 2017 at 12:01 am by Tony La Viña
In her speech delivered during the 16th National Convention of Lawyers of the Integrated Bar of the Philippines, which I quoted in my column last Saturday, Chief Justice Maria Lourdes Sereno started by giving stress on the present challenges of public interest lawyers, especially defenders of human rights who have been under increasing attack. Just recently, we saw how Bohol environmental lawyer Mia Mascariñas Green was brutally slain, ambushed in daylight in the presence of her two young children. Three months after, even as it is open knowledge in Bohol who the likely mastermind of this killing was, her killers remain at large. To keep the children safe, the family had to relocate abroad even as they are committed to seek redress. Justice once again is elusive.
Highlighting the importance of the rule of law, the Chief Justice cited Former UN (United Nations) Secretary General Ban Ki-Moon who stated that the Rule of Law is the world’s best hope for building peaceful and prosperous societies. This theme, she said, was taken up in 2012 when the General Assembly took up Rule of Law vis-à-vis conflict situations, and in the ensuing discussions recognized the work that had been built up in many areas of the world as to form a consensus on the need for Rule of Law as the baseline for development. Inevitably, the discussions highlighted the need for transparent legal systems and the role of lawyers.
Chief Justice Sereno then posed the question to her fellow lawyers: With all that we are experiencing as a country, what role do lawyers have in bringing hope to our people?
This question comes to mind in the midst of the increasingly violent times that lawyers find themselves in and the role that lawyers play—or need to play—in promoting, maintaining and nurturing the Rule of Law.
Defining the term, the Chief Justice said that the rule of law is the governance principle holding all persons, institutions and entities, public and private, including the State itself, accountable to laws and rules that are publicly promulgated, equally enforced and independently adjudicated upon, that are consistent with international human rights norms and standards.
The World Justice Project which publishes a yearly Rule of Law Index defines the rule of law as a system in which the following universal principles are upheld. The Chief Justice quotes these principles in her speech: 1) accountability of government officials; (2) clear, stable, and just laws applied evenly and the protection of fundamental rights, including the security of persons and property; (3) accessible, fair, and efficient process of legislation; and (4) an independent, competent, ethical system of delivery of justice that is well-resourced and adequately funded.
The Chief Justice then advanced certain operational components where the judiciary and the legal profession are concerned: “(a) courts that are accessible to ordinary citizens; (b) delivery of justice—consisting of fair resolution of disputes and the consistent levying of punishment, where appropriate—in a timely and effective manner, without any undue or unreasonable delay; (c) courts that are independent—that is, free from improper government influence; and (d) the absence of corruption or the perception of corruption in the adjudication of disputes and controversies; (e) the appointment of competent, ethical, and neutral judges; and, (f) the presence of an independent and ethical Bar.”
The Chief Justice also revealed that in the 2016 Rule of Law Index, the Philippines dropped nine spots to 70th even as the East Asia and Pacific region was the second-ranked region in rule of law, behind Western Europe and North America. In this region, New Zealand and Singapore are the top performers in the 2016 rankings, ranking 8th and 9th, respectively out of 113 countries worldwide, while the biggest mover was Vietnam, rising seven positions to 67th globally, higher than the Philippines’ ranking.
Chief Justice Sereno pointed out that the rule of law cannot be reconciled with a system that allows for undue immunities from these processes and outcomes due to considerations that are political or pecuniary or both. The notion of a rule of law holds these truths to be self-evident—that no one is immune from accountability simply because he or she is powerful or because he or she is rich, or because he or she is both powerful and rich. The contrary view to this is impunity and it is an anathema to the rule of law.
Impunity, according to Sereno, represents a breakdown, in part or in whole, of governance. In its most recognizable form, it is the impossibility of enforcing accountability, in whatever form, against offenders by reason of the unavailability or futility of existing proceedings and processes, means and methods to effect an effective and meaningful investigation, charge, arrest, trial, judgment, sentence or service of sentence. Where an offender is unduly immunized from accountability through external conditions such as policy, politics or pecuniary interests, then impunity has set in and the rule of law is diminished.
The most powerful sentence in Sereno’s speech is this: “Impunity sows seeds of hopelessness and if we are not careful, those seeds will take root and bear fruit.”
Last week, in Geneva, Switzerland, the Philippines had to defend its human rights records before other countries. As explained in the website of the United Nations High Commission on Human Rights, the Universal Periodic Review (UPR) of the human rights records of all UN Member States is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.
According to the UNCHR, the UPR is a cooperative process which, by October 2011, has reviewed the human rights records of all 193 UN Member States. It is one of the key elements of the Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The objective of this process is to improve the human rights situation in all countries and address human rights violations wherever they occur.
In the Geneva meeting, even with a high-caliber government delegation led by Senator now Foreign Affairs Secretary Alan Cayetano, 45 of the 47 members of the Human Rights Council expressed concerns about the human rights situation in the Philippines and called on the government to investigate the extrajudicial killings that have accompanied the war against drugs. Only China supported us with Saudi Arabia as President not voting.
No words can justify what is happening in our streets and in poor neighborhoods. We are in a quagmire, faced with “creeping impunity” to borrow a phrase from the Chief Justice’s speech.
What can lawyers do about this? How does this challenge the many new lawyers that just passed the bar last week and who will take the lawyer’s oath on May 22? What can ordinary people, especially the young who are graduating from college in this season of commencement exercises, do?
Seeking to answer these questions, I will continue to write about this subject matter, in the next weeks, borrowing from Chief Justice Sereno’s IBP speech and also from what is expected to be a powerful speech she will deliver at the Ateneo de Manila University Loyola Schools’ commencement exercises later in the month.
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