Thursday, October 14, 2010

Philippines’ Malacañang’s depraved indifference

Not a lawyer himself, President Benigno S. Aquino 3rd claimed there was no law that could hold top officials criminally liable for the August 23 hostage fiasco in Manila.

“We looked into the laws and we did not see anything that [Interior] Secretary Jesse Robredo and [Undersecretary Rico] Puno violated,” he reportedly told journalists Tuesday.

“We need to be fair,” he reportedly added, “we vowed justice for all.”

Apparently, the President’s definition of “all” excludes the eight visitors from Hong Kong that dismissed Police Senior Insp. Rolando Mendoza took hostage, then shot to death before he too was killed by police snipers after a daylong standoff at the Luneta.

Despite recommendations of criminal charges from the Incident Investigation and Review Committee (IIRC)—which Mr. Aquino himself created—against officials behind the botched rescue, the President has limited the complaints against them to administrative slaps on the wrist.

In the case of Alfredo S. Lim, for instance, the harshest penalty that the remorseless and defiant mayor of Manila could expect is a suspension of one month, which is what “simple neglect” warrants according to our statutes.

Robredo, Puno and retired National Police chief Jesus Verzosa escaped any kind of sanction whatsoever, despite evidence of what lawyers in other countries would call “depraved indifference” on the part of those officials.

Online sources provide this definition: “To constitute depraved indifference, the defendant’s conduct must be so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime . . . ”

Few lawyers in the Philippines are aware of “depraved indifference” although the Revised Penal Code (RPC) mentions “omission” as a felony.

A lawyer-friend of mine cites several RPC provisions, which mandate that omission must be punishable by
law: Article 275, paragraph 1; Article 213, paragraph 2b; and Article 116.

Yet even for the criminal offence of omission, Robredo, Puno, Verzosa and Lim were not cited.

The IIRC was chaired by no less than Justice Secretary Leila de Lima, but Mr. Aquino chose to refer its findings to another panel composed of Chief Presidential Legal Counsel Ed de Mesa, Executive Secretary Paquito Ochoa Jr. and two other Palace lawyers, whose legal expertise are, at best, suspect.

Whether or not the Palace lawyers are as knowledgeable as de Lima on the nuances of criminal law, what is clear is that the President himself had sought to reduce the culpability of the officials that the IIRC had wanted to be sued criminally and not just administratively.

On the day he received the 82-page IIRC report, Mr. Aquino reportedly blurted out: “Napatapang ‘ata masyado ah. Bakit kasama pa sila Puno, Lim, at Verzosa? [It’s too strongly worded. Why are Puno, Lim and Verzosa implicated?]”

In an account published Wed-nesday in The Manila Times and other dailies, Malou Mangahas of the Philippine Center for Investigative Journalism reported that the President blurted out those remarks
“without even a full reading of [the IIRC report’s] contents.”

Mangahas wrote: “The remark caught everyone by surprise. After all, even before he had finished reading the report, the President was already expressing his reservations about including [Puno, Lim and Verzosa] among the culpable parties. He told them he had no problem, however, about filing suit against the other police officers named in the report.”

“I pledged from the very start that there would be accountability,” Mangahas quoted Mr. Aquino saying on Monday, when he finally announced his decision on the IIRC’s recommendations, after several postponements.

Claiming that he wanted to avoid “frivolous lawsuits,” the President had also told reporters: “The purpose of the review was to find the viable legal actions which can be taken against the concerned parties.”

In effect, what the President and his legal team are telling the survivors of the August 23 tragedy and the fatalities’ families is “you’re on your own.”

De Mesa indicated as much when he told reporters: “The victims [or their families] can file civil or criminal cases against whom they believe are liable.”

Hinting at his legal expertise—or lack thereof, de Mesa was also quoted saying: “Mistaken judgment is not
a crime. Error in judgment is administrative in nature.”

Was it simply a “mistaken judgment” that, say, Lim had ordered Manila police to handcuff the hostage-taker’s brother in full view of the media, an act that incensed Mendoza to the point of murderous rage?

Was it simply an “error in judgment” that Lim decided to leave the scene at the most critical moment—and, worse, took along the Manila police chief for snacks at a nearby restaurant?

“Our concern was doing the right thing and setting things right,” de Mesa was quoted saying. “So it’s futile to file charges against them. Charging somebody that will not prosper is not right. It will cause him unnecessary stress, or ruin his career. Criminal law is not an exact science.”

Eight innocent people were killed and several others sustained physical, as well as psychological injury on August 23 in Manila, thanks to the decisions made—and not made—by several officials.

And all that the President’s chief lawyer can say is: Criminal law is not an exact science?

Now, that is both depraved and indifferent.

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