Philippines Desk, Asian Human Rights Commission, Hong Kong
Danilo Reyes: Today our topic is about the practice of law and ethics while conducting hearings inside the court. The reason why we have to discuss this is as we have issued a statement of the Asian Human Rights Commission on the reaction of Myrna Roblando, wife of murdered journalist Alejandro “Bong” Reblando to the lack of lawyers’ ethics within court when the hearing was conducted in the case of her murdered husband.
The purpose of this interview is not to say that other countries have better legal practices than in the Philippines and not to say that other lawyers in other countries are better than in the Philippines. The purpose is to have some opinions from a practicing lawyer on how to look at legal practices in terms of ensuring legal remedies for victims of human rights violations and relatives who are seeking remedies and who have acted with a real sense of justice and expectation of how the court will function.
So we have here a lawyer from India, Bijo Francis, a programme officer of the Asian Legal Resource Centre, the sister organization of the Asian Human Rights Commission. He has been practicing law and has dealt with many cases in court, in the media and has also been involved in affording legal aid to victims of human rights violations, in particular in South Asian countries. He is aware of the Maguindanao massacre case and he spoke to one of the journalists who survived, Joseph Jubelag, a few days after the incident.
Bijo Francis: The massacre of over thirty journalists in Mindanao on 23 November 2009 was an event that shocked not only the Philippines, but also the whole world. The event also raised a lot of questions, not only for people of the Philippines, but also for the government of the Philippines and for governments that are engaged in the protection, promotion and fulfilment of human rights across the world.
Since the trial is in process, it would be inappropriate for me to comment on the quality of evidence, on the substance and relation of the evidence and character of witnesses and so on, because I believe that the court will discharge in the full sense its responsibility for these matters. But from what I have been told and what I have come to know from reading materials concerning the trial and events that have unfolded during the trial, I have a few observations to share.
Now in the event of a massacre of this nature, the state has a responsibility to ensure that the investigation of the case is taken in a proper and appropriate manner, and under prompt management with appropriate investigation. Among the things that the state shall ensure when the investigation is under way, which I think is of paramount importance, is the safety and security of persons who could be vulnerable; the rehabilitation of witnesses, because testifying in court involves an examination process of finding truth that hugely extends trauma, not just because people have lost husbands or fathers or wives, but because of the magnitude of the incident. This was not a premeditated murder of one person. It was the premeditated murder of 58 persons.
But on the face of it, there are certain things that I have come to notice when I went through the transcription of the process of examination and also the videos. It appears that the defence is trying to create an impression of corresponding and compounding negligence on the part of the journalists, that they put themselves in a life-threatening situation. I think that raises more serious questions about journalism and the environment in which journalists are working in the Philippines.
From the questions that the defence lawyer posed to the witnesses which I have read, as provided to me in translation, it seems that the lawyers are posing questions of whether the deceased exposed themselves to the risk of being murdered, or did they conduct their job in a way that exposed them in an extreme way whereby they lost their lives? This in itself indicates that the environment in which this incident happened is an environment where journalism is not appreciated, which means that the state to a certain degree has failed to guarantee the rights of professionals to undertake their careers with assurances that they won’t lose their lives in the process.
The event that was being reported was not a bullfight or scheduled bomb blast or war or anything of that sort at all. It was a constitutional process where a candidate in an election was going to post his nomination. It was a process by which people in the Philippines were deciding to contest in an election. It was a process of democracy, the essence of a democratic country. So, reporting about a candidate going to post his nomination in the democratic process, if that is a life-threatening environment, then I am afraid that we are talking about very large and very alarming issues in the Philippines which the state has to answer.
I find that the questions posed by the defence lawyer were posed in a manner which ridiculed the whole process but also in a manner which defied common sense. For example, the defence lawyer posed these questions not only to the wife of the victim, who lost her composition in court, but also to an expert witness who had undertaken an autopsy of a body. These are questions which do not require answers, because I believe that the autopsy report itself concluded how the incident occurred. The lawyer seems to have questions about a document which was already proved in accordance with law so as to offend the expert who undertook an autopsy, in a manner that ridicules the whole autopsy process itself. This implies to me that the defence is not taking the case seriously, or lacks respect for the process.
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A crowd gathers at the site of the Maguindanao massacre to observe excavation and recovery of bodies (Mark Navales)
Unfortunately, when trial is conducted, defence lawyers undertake very stressful tasks. I myself have the experience, and I have also prosecuted criminal cases of a highly politically charged nature in India and outside of India, and I understand the difficulties of professionals as well as the difference in understanding of witnesses in such a charged situation, but it is up to the lawyer to be true to his or her profession and not cross the limits of the lawyer, particularly when cross-examining witnesses.
The logic of cross-examination is to encourage the witness to tell the truth before the court of law. It is not, as many lawyers see it, an attempt to pose all sorts of questions to ridicule the witness or to intimidate the witness or just to find contradictions. But from what I saw and what I have understood about this particular trial is that the manner in which the witnesses have been examined was unfortunate, in that it appeared to be ridiculing the witnesses: not only the expert witness, the doctor who conducted an autopsy, but also the woman who broke down in court.
This is an occasion where the court should step out from its role as merely being an umpire and also show the maturity to guarantee that the process which is underway is done in a manner that is convenient for the rendering a justice. And that term “justice” has immense weight, because it should not be a process which should be undermined by defence lawyers or by a prosecution lawyer who gets the witnesses to speak whatever that he or she requires by using whatever means.
DR: Bijo, you mentioned two very important points. You mentioned about the purpose of court examination, which unfortunately in the Philippines, as you have put it, is that the understanding among lawyers is whatever they do it is a part of the legal process and not that cross-examination is for the purpose of encouragement for a witness to tell the truth. You also mentioned that the court has a responsibility to ensure that the environment for a witness allows him or her to tell the truth. So how do you, according to your experiences as a lawyer in India, ensure this responsibility of helping the truth to come out instead of suppressing or distorting it, or confusing the witnesses to defeat the purpose of the cross examination?
BF: I think a lawyer has a very limited role in a court of law, even though that limited role in itself is a very noble role. It is unfortunately often wrongly conceived that the role of the defence lawyer is somehow to get his client out of the dock, but that is not a role of a defence lawyer. The role of a defence lawyer and the role of a prosecution lawyer is the same so far as a criminal trial is concerned. Both have roles to help the court find the truth and nothing but the truth, and in that process, you are encouraging the witnesses to speak, you are trying to get clarification from the witnesses. Now in prosecution examination, chief examination, the prosecutor would encourage the witnesses to speak to the prosecution case and the prosecution case is based on certain facts, and a question of fact is what is discussed with supporting evidence. The role of a defence lawyer is much more limited than that the prosecution lawyer in that sense, because once the witness has spoken his or her mind and also deported regarding the facts and circumstances in the case, as the court may consider as relevant or irrelevant, the role of the defence lawyer is to find out whether there are any contradictions in the statement that has been made, and whether there are any possibilities by which the court can consider that the crime happened in a manner that has not yet been brought to the attention of the court. If there are any contradictions, then the question is, what is the reason? Was there any bias for the witness to speak against the accused in the court of law, and if there was bias, what is the proof of that, and so on.
So, the role of defence lawyer is not to defend clients by all means possible, although it is often considered like that, because in this world of high-ended competition, a successful defence lawyer is assessed by the number of cases that he has successfully defended by getting the clients out. It also counts quite a lot if in a particular bar or country defence lawyers are mostly seen as bullies. It means that the role models that these lawyers are following are quite wrong. I would say that if the defence lawyer is conducting the defence or the prosecution lawyer is conducting the prosecution in a manner which is not congenial for the court to do its duties, then we have a problem relating to professionalism itself.
DR: With regard to this case in the Philippines, the Maguindanao case has drawn a lot of attention from different news organizations and is a highly political case, and you can see on video and from the translation also of conversation in court that there is no showing of any pretence at all about how lawyers conduct themselves, how they talk to journalists, that they are indifferent to the suffering of the complainants or victims. So, I know that this may not be within the legal framework, but if you could reflect on ethics, on the issue of morality, should this issue not been one for everybody in society? Because if we have seen this sort of behaviour in highly political cases, there must be thousands of hearings in courts involving ordinary persons, most of them with no lawyers, most not having not received any coverage from the media, in which the same types of behaviour go on. So how do you look at this?
BF: I am not of an opinion that it is just a problem of morality. I am fully convinced that it is a problem of law and justice, so a lawyer whether dealing for the prosecution or for a defendant, to come out and comment on a witness or to comment upon the manner in which a witness has deported in the trial when he or she is engaged in the trial is against the law, because I believe that the purpose of making comment can be to interfere with the process of trial by trying to influence the judge by making opinions regarding a particular witness, the nature of the evidence that has been tendered to the witness box, or the bias or lack of trustworthiness of the documentary or other scientific statistics produced. This is all legally wrong, because this is for a judge and nobody other than the judge to decide. In the country where I have practiced, if you make such a statement, your license can be suspended, and action can be taken against you as you have tried to interfere in the court of law.
It is even worse for a lawyer who is directly engaged for the prosecution or defendant to speak out of context about a witness when the trial is under way because it can be easily interpreted or it will be interpreted as none other than an attempt to interfere in the court process through the media. It is not also for the media to say that the nature of a witness is like this or that. If it was otherwise, I mean, if it was for other people to comment about the evidential value or the merits of a witness or the nature of the evidence produced in a court of law when the trial is on the way, then you would not need a judge. That is the difference between media trial and court trial. Media trial can be used for influencing judges, influencing the adjudicating process, and a judge also needs to be aware of that.
The time when opinions are to be given is when the argument of the case happens in open court. You give your view about the evidence, about the implications of the evidence, to the judge as a part of the argument. You can do that in court, but it should not be done outside the court, particularly when the trial is under way, because it cannot only be interpreted as trying to interfere with the judge and judicial process in the argued case, but also it can be interpreted as trying to intimidate the witnesses. So this thing is prohibited in advance in a mature jurisdiction, and in a jurisdiction where these things are allowed and considered as normal then I would say that this judiciary has a jurisdiction where the notion of rule of law starts to be erased, or has been erased already.
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Three victims of the Maguindanao massacre: at left, Victor Nuñez, seated on ground at centre, John Caniban, on right, MacDelbert Areola (Mark Navales)
DR: In order to end our discussion today, can you give a brief closing summary of your thoughts on the legal practices in this case.
BF: I just want to come back to the reflection that I made when we started our discussion, that a massacre of 32 journalists because of nothing other than that a candidate went to file his nomination in the democratic process, in a democratic country, is shocking. It not only points to how dangerous it is to be living in that country. I also would suggest that today the victims were journalists, tomorrow they can be doctors, the day after tomorrow they can be lawyers, the next day they can be judges. It can happen to anybody.
From my understanding, what has happened in the Philippines is that the state of affairs of the country is in such an appalling condition, that such an incident could happen. There are places where there are extreme restrictions on freedom of opinion and expression and so on, and there are places where the judiciary and judicial process are completely wrrecked. I don’t think that the Philippines is a place like that, but that 32 journalists were massacred this way in public, and that not just the persons but the vehicles were taken, we can see the extent of preparation that must have been made. What makes a person in a country like the Philippines think that he or she can do this? What makes people in power believe that not only do they want to do this and can conceive of doing this but that they have a possibility of escaping punishment for it? This is an incident which has cast such shame on the Philippines and its people that is not easy to overcome.
As to the trial, when you engage in the process of finding the truth for what has happened in an event like this, as an investigator, a defence lawyer, a prosecutor or judge, I believe that the person is undertaking an extraordinary duty with immense social, political and legal implications, and that the job has to be done in the utmost seriousness. It has to be done in a manner that respects the process itself. Anyone involved in the process must legitimize their presence in the court. They should not conduct themselves in a way that ridicules the notion of justice.
I am sure that the decision in this trial, whatever it be, will go on a long way, not only to the present generation of the Philippines, but also to future generations of Filipinos. So, the task that the lawyers, investigators, witnesses and judge are engaging in is of immense importance to Filipinos and the Philippines. I hope that the people who are involved will realize that and conduct themselves with the seriousness that the trial demands.
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Maguindanao massacre case demonstrates the delusion of the existence of a justice system
(A statement by the Asian Human Rights Commission, AHRC-STM-234-2010, 24 November 2010)
It does not take much time for any rational person to agree that the families and the victims of the Maguindanao massacre must obtain justice. Anything less is unacceptable. The sheer evil that the perpetrators demonstrated in killing 57 innocent people, 32 of whom were journalists, and to disappear one person in the manner that is already widely known, obviously stimulates outrage and condemnation.
But to demand for justice must also involve conscious thinking as to whether the institutions of justice to whom these demands are addressed can deliver it in a real sense. It is madness and foolishness for one to demand justice knowing full well that it is something that could not possibly be given. It is nothing less than self-deception for a person to believe that something can be created from nothing. Water cannot be squeezed from boulders; nor can boulders be softened by hammering.
Demands that are detached from reality will have no real contribution and are meaningless when attempting to afford redress to victims. It rather perpetuates, consciously or otherwise, the delusion of something that is not there. To make demands without any regard as to whether they would make sense in reality is nothing less than echoing popular demands, to satisfy a person or a group’s desire of having supported a cause. This is the usual gesture by politicians to show solidarity as they gain more by supporting rather than ignoring popular causes.
The quest for justice must confront head-on the realities. Witnesses and families of the victims are being bought, over a hundred suspects remain at large, the criminal justice system allows out of court settlements, the continuing lack of protection to families, journalists and persons who are testifying and the repeated delays in court hearings that are endemic in Philippine courts are allowing this to happen. The quest must not also place limits on the punishment imposed upon the perpetrators, but should also have a clear judgement on the certainty that the perpetrators have committed the crime. That they would be convicted based on the evidence that the police and the prosecutors have collected in establishing their guilt; not due to popular demands and the public pressure and political consideration that is prevalent in political cases, like the Abadilla Five case.
If that case has taught us anything it has revealed that in the Philippines, cases are often decided not because of their merit but rather because of political pressure. The more pressure is applied, the more likely the possibility of redress for victims and punishment to perpetrators. Thus, in reality the system of justice functions contrary to how most people in developed systems of justice thought it should be. The question must be: can this type of institution of justice be considered competent, impartial and effective? Can this system of justice function on its own without pressure? No. If it is the contrary of what makes a system exist in a real sense, the country does not have it.
While it is easy for all to agree on demanding justice that the perpetrators of the massacre must be punished and that murders of this magnitude must not happen again, there is no real certainty that justice will be done. The people know full well that the case will not be resolved any time soon; not even in ten years to come. The journalists, the lawyers, witnesses, the widows and families of the dead also know this to be the case.
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Demonstrators call for justice for the victims of the Maguindanao massacre outside the Consulate General of the Philippines in Hong Kong
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Footnote: This article is an edited transcript of an interview dated 23 February 2011 by Danilo Reyes of Bijo Francis, an Indian lawyer who handled numerous human rights cases before joining the Asian Legal Resource Centre, Hong Kong, on the Maguindanao massacre case, which is currently going through the criminal justice system of the Philippines (for details see the Asian Human Rights Commission’s Urgent Appeal AHRC-UAC-165-2009). Bijo has met with Joseph Julebag, one of the three journalists who had survived the 23 November 2009 massacre. Since then, he has followed the progress of the case in court. The interview is available in the podcast series of the AHRC Philippines desk, available online at www.humanrights.asia/countries/philippines. The same podcast series includes an interview with Myrna Reblando, widow of Alejandro “Bong” Reblando, on her discontent as to how the trial of the persons accused of the murder of her husband is taking place.
