Attorney Jose Manuel Diokno takes a stand on behalf of thousands dead, and aims to help survivors through this recurrence of dark nights.
This article was written by by Alcade Mal and with photos by Carlo Gabuco. First published in the May 2017 issue of Rogue with original title SONA2017: Chel Diokno’s War on the War on Drugs
In the age of Duterte, it is the obvious question no one wants to have to ask. What does one do if he finds out his name is on the local drug list?
The creation and maintenance of these lists has color of legal authority, through PNP Circular 16-2016, promulgated just one day after Rodrigo Duterte assumed the presidency on June 30, 2016. Yet there is no built-in mechanism for one who may have been wrongly accused to challenge his inclusion in the list. Surrender, as a means of clearing one’s name or even of one’s conscience, has become the instinctive response of many who find themselves tagged, but not charged, through any formal legal mechanism as a criminal suspect.
And yet, many of those who have surrendered, who have sworn oaths to never, ever become involved in the illegal drug trade, still end up dead. Albert Sidayon of Pasig City; Bryan Agsalda of Jones, Isabela; Rogelio Salamate Jr. of Las Piñas City; Annabel de la Cruz of Mandaluyong City; Arman de la Paz of Marikina. All previous surrenderees, all since gunned down.
The definitions of extra-judicial killings equivocate. The numbers vary, but certainly rank in the thousands, more than the 3,240 documented murders during the martial law regime of Ferdinand Marcos. Thousands of families grieve for their dead, and for their thousands more left orphaned by the drug war. Some of them will choose to grieve in silence. Others will want to fight back, to seek the justice that is very much the entitlement not just of the victims of drugs, but also the victims of the drug war. Yet in a culture where the accuser is also the official investigator, as well as the suspected executioner, the integrity of the authorities to prosecute the perpetrators of extra-judicial killings is compromised. How then can one who is aggrieved obtain justice under these circumstances?
These are questions that bedevil even the most committed human rights lawyers such as Jose Manuel “Chel” Diokno, the president of the Free Legal Assistance Group and dean of the De La Salle University College of Law. While lawyers are obliged to support the Constitution, especially the Bill of Rights, their clients also expect them to offer concrete and helpful solutions to their cases. Further harm to the families of EJK victims does not help. “It’s a very difficult situation for a lawyer at this time,” Diokno says. He does not blame the people for being afraid. “It is very clear the government has sent the message that if you speak out, your name might be on the list the next time.”
“As a lawyer,” Diokno says, “I would explain to clients what their legal remedies are, and I would encourage them to pursue those remedies. But at the same time, I wouldn’t want to encourage them to file a case, because I don’t want it to be on my conscience that they would be subject to extra-judicial killing or similar kinds of activities. So it’s very hard for us at this point to pursue legal remedies.”
Diokno clarifies that the legal strategy for now, though, is not one of abject surrender. In fact, there have already been victories before the courts in those instances where the families of victims have decided to fight. Efren Morillo, the lone survivor of a police raid in Payatas, and Cristina Gonzales, widow of a drug suspect killed in Antipolo, were both able to obtain from the Supreme Court writs of amparo—protection orders that prevent law enforcement from approaching within one kilometer from their homes or work places. These protection orders, Diokno says, are apparently respected by the government, for now.
Even in those cases where victims or their families have been more apprehensive in fighting back right now, Diokno offers a remedial effort that may bear fruit in the long run. “One of the things that FLAG has been doing, what we’re after at this point, is documenting cases. We have developed a template for all victims of the war on drugs and EJKs and similar human rights violations to make sure at this point that when the day comes that cases can be filed, that we have the evidence required to pursue these cases.” The quest for precise documentation is the exact opposite of the scarlet listings being employed by law enforcement. “It’s very easy to make allegations of human rights violations, but for us to gain a lot of headway in terms of vindication of human rights, we have to make sure that they are properly supported by the facts. Right now, it’s really a fight for the truth. You have a lot of people pushing for a reality that isn’t really real, and we want to make sure that if called upon, we want to make sure what really happened...We hope that the time will come when people will feel that it is time that they vindicate these rights.”
Law students, the Commission on Human Rights, and other human rights organizations are being trained by FLAG to properly document these emerging cases of extra-judicial killings and other human rights violations. The afflicted are encouraged to reach out to these organizations, or even to their own religious organizations, which Diokno observes, have become “really more and more open to helping those who have been victimized by these kinds of cases.” This is an approach geared towards the bigger picture. “The template we have developed, we think, is compliant even with international standards, so that if people from the United Nations and other international organizations look at the documentation, they would be satisfied that it is sufficient.”
“..Even human rights lawyers were branded as Communists at that time. Nowadays, the branding is different. If you are a criminal, drug addict, drug pusher, then you are not human and you don’t deserve human rights.”
Diokno, now 56, has been practicing law since 1988. He counts among his clients such personalities as ZTE whistle-blower Jun Lozada and Senator Leila de Lima. But perhaps the identities of those whom he has sought to prosecute as a private prosecutor is more telling. Then chief of Task Force Habagat of the Presidential Anti-Crime Commission Panfilo Lacson and 33 police officers involved in the alleged rubout of 11 suspected members of the Kuratong Baleleng robbery group. General Jovito Palparan and several military and para-military personnel, for their alleged involvement in the torture of suspected New People’s Army members, brothers Raymond and Reynaldo Manalo. It is no surprise that Diokno has been popularly identified as a human rights lawyer.
(A young Chel Diokno with his father. Image courtesy of Jose Manuel Diokno.)
Jose W. Diokno, Chel’s father, was the first ever chairperson of the Presidential Committee on Human Rights (the predecessor agency of the Commission on Human Rights). Just one month before his death in February 1987, an ailing Diokno resigned as chair to protest the killing of 15 unarmed farmers gunned down while protesting at Mendiola Bridge. Three decades earlier, the elder Diokno was fired as Secretary of Justice after he had insisted on the investigation of powerful American businessman Harry Stonehill, who was believed to have wielded undue influence over numerous Manila politicians of all stripes. And as a senator, Diokno resigned from the Nacionalista Party to protest the emerging authoritarian tendencies of his party-mate, President Ferdinand Marcos.
“One thing I would say about my dad,” the younger Diokno says, “he really had a lot of guts and a lot of balls. He didn’t hesitate to speak out when he felt that something was wrong. So even when most people were afraid to say anything, he was one of the few who had the courage to speak out.”
Senator Diokno was among the first imprisoned upon the declaration of martial law in 1972. He was detained for two years without ever being charged before any tribunal, or without even being told why he was jailed. After his release in 1974, Diokno founded FLAG, which took on cases of political prisoners whose rights were violated by the martial law dictatorship. Despite having been freed from detention, Senator Diokno was still required to report to the military the list of people who would consult him as a lawyer.
Chel Diokno sees many similarities between the pattern of oppression during martial law and the situation today. The primary difference lies in the branding. “During martial law, if you were branded as a Communist, if the government said you didn’t have any rights, you were not a human being, and therefore, you can be killed. Even human rights lawyers were branded as Communists at that time. Nowadays, the branding is different. If you are a criminal, drug addict, drug pusher, then you are not human and you don’t deserve human rights.”
Diokno is fearful that with the current pervasive attitude towards drugs being fostered by the government, anyone who is branded as being affiliated with drugs would be highly prejudiced by the justice system, even if innocent. A similar atmosphere pervaded during martial law. He explains, “At certain points during martial law, there were no civilian courts, there were only military courts and even civilians, prominent people opposing the government who were tried and convicted by military courts. Ninoy Aquino, convicted by military courts whose Commander-In-Chief was none other than the President. You could not really expect justice during that time.”
The deterioration of the administration of justice during martial law, Diokno feels, has helped enable the current drug war. The public’s trust in the fairness of our judges is indispensable to respect for the rule of law. That fairness was directly attacked at the start of martial law. “One week after martial law was declared in 1972, Marcos issued a letter of instruction, where he said that from now on, all judges must submit their courtesy resignations that he could accept at any time. A year after that, in 1973, the transitory provisions of the new Constitution provided that judges will remain in office until such time that they are removed by the President. What that means is that from 1972 to 1986, the dictatorship really owned every judge in the country. And that affected our legal system fundamentally. Lawyers realized that if they wanted to win their cases, if they wanted to get clients and make money, they would have to be close to the regime.”
That legal network that operates to fix cases, according to Diokno, remains today. “I tell my law students at DLSU that there are two kinds of lawyers in the country today: lawyers who respect the rule of law and respect justice and the merits of the case, and lawyers who just respect one thing, and that’s money. The unfortunate thing—many of our corporate clients, for example, would rather go to those lawyers of that type rather than those who respect the merits of the case. And that has resulted in a justice system that doesn’t really care much for accountability or transparency.”
Rodrigo Duterte is the first Filipino lawyer elected to the presidency since Ferdinand Marcos. Duterte is also the first prosecutor elected to the presidency. Diokno accredits the President with particular understanding of the problems of the justice system he inherited. “The President is a lawyer, he was a prosecutor, he knows the problems of our justice system. He knows why it’s so hard to hold criminals and corrupt people accountable… As a long-time prosecutor, he saw firsthand how the legal system worked, and I think that was one of the reasons why he got fed up with it. That’s why he’s been advocating these issues on war on drugs; forget about the proper procedure, just get the results that the country needs. For a short-term solution that may work, but for the long term, I really fear that will destroy the legal system that he is trying to preserve and lead to a system where power will be the determinative factor and the merits of a case or the justice of a case will not really matter anymore.”