WHY THE PEACE TALKS WITH THE COMMUNISTS WILL SUCCEED

Atty. Alex Padilla, Chair of the government peace panel during President Benigno Aquino’s time, predicted that the peace talks that the Duterte government is having with the communists will fail. He claims this is because the National Democratic Front peace panel members  talking with the government do not represent the New Peoples Army. The NPA has been waging an armed revolution for almost half a century.

But we predict differently. We predict that the talks will succeed. Here are the reasons why:

Upon his assumption to office on June 30, 2017, Pres. Rodrigo Roa Duterte  never departed from his hopes expressed during the campaign that he wanted the armed rebellion to end. In every occasion he addresses the public, he says, “I want to be known as the President of peace. I want the rebels to come down from the hills and enjoy lives of comfort with their loved ones.”

Unlike Presidents before him, Duterte, who self-identifies as a socialist/leftist  had broken bread many times with communists and fathoms their issues. He knows what the root cause of the armed conflict is: the social injustice stemming from  inequitable distribution of wealth perpetuated by the oligarchic control of the system.    He recognizes that the armed struggle will end if the root cause is addressed through socio-economic reforms. In this respect, he and the NDF are on the same page.

Pres. Duterte's  grasp of the real issues is coupled with a like-minded GRP panel made up of people who truly hanker for peace as the presence of justice. This is a great recipe for successful talks with the NDF. Thus, when Pres Duterte cancelled the peace talks last February, GRP peace panel members  themselves knocked on heaven's door for resumption. In meetings of the GRP Reciprocal Working Group on Political and Constitutional Reforms (RWG-PCR) of which I am a member,  no one ever questioned the sincerity and motives of the other side. I have information this is true of the other Groups.

The GRP   peace panel,  on the one hand, and the NDF panel, on the other,  mutually respect and trust each other. They may argue a lot, disagree on matters,  and even threaten to, or actually stop talking to each other like family members do. But they all believe that  the peace talks must keep going and reach their logical conclusion: the end of hostilities and the guarantee there will be social justice. Talks must go on even while there is fighting (although the two sides just signed an interim ceasefire agreement).

On Padilla’s claim that the NDF does not represent the NPA,  I cannot speak for the NDF and its relations with the NPA. But the NDF team seems totally committed to the peace process. The NDF gave assurance  that the rebels would lay down their arms once guarantees are in place to confront and address the economic issues which form the radix of the armed conflict. If the GRP is forthright in its dealings with the NDF, it has to believe the claim. The NDF has yet to give reason for it to be dismissed as the boy who cried wolf.

The GRP panel headed by Padilla is different from the current one which genuinely hopes for an end to the armed struggle. GRP Panel Chair DOLE Sec. Silvestre “Bebot”  Bello is no Padilla. Sec. Bello  negotiates from a position of sincerity believing that peace is possible. If you start your negotiation with the mindset that the other party is only pulling your leg,  you are in bad faith in agreeing to a talk. You are insincere. If you do not believe the other party, why even think of talking? It is a waste of time and money. It raises false hopes to the people who want the armed rebellion to end. It raises false hopes for the countryside where development has been stunted because it is the host of the armed conflict.

It should be  no wonder that Padilla's panel achieved nothing. Maybe, he is now trying to justify why the peace talks between the GRP panel he led and the NDF was  a total failure. But the truth is the failure in the past was the government’s insincerity by which it was itself a peace saboteur.

So far, in just less than a year, the peace talks leaped much, much farther than they ever have in the past two decades. Substantial gains have been achieved. Padilla should not douse ice-cold water. This might be the Filipino people's last chance for a just and lasting peace. Let us all hope together.

Saboteurs and peace spoilers must lay off. This is not about you. This is about the Filipino people and their dream of just and lasting peace..

WHO MADE MARCOS A HERO?

Now, they blame the 16M who voted for Duterte. They say to us: Putang ina ninyo!

Who made Marcos a hero?

You did, by worshipping at the altar of his anti-poor, pro-oligarch economic policies perpetuated by Corazon Aquino, Fidel Ramos, Joseph Estrada, Gloria Arroyo, and Noynoy Aquino. You did not protest when Ramos was privatizing public utilities even if you knew this would make life harsher for the poor. You did not protest when Congress authorized foreign plunder of our natural resources. You did not protest when Ramos allowed the oil industry to operate without a leash around its neck controlled by the State.

You did, by keeping quiet when the winter of human rights during Martial Law returned during Arroyo's Reign of Terror. You were apathetic to the thud of falling bodies of more than a thousand activists. You did not even say a word when lawyers and judges were getting killed. You did not say a whimper of protest when people were disappearing just for telling the truth.

You did, by keeping quiet about EJKs during Aquino's time. Indigenous leaders were being killed, disappeared, or tortured for defending their ancestral lands. Environmental defenders were suffering the same fate. Their domains were being militarized and they were being brutalized. You did not mind it when Arroyo and Aquino allowed mining corporations to use the government-paid military to become mining corporations' private security forces to harass indigenous communities. You would not even post a status on Facebook to express solidarity. You posted pictures of your food and travels. You could afford those. Some of you made money to help the corporations abuse indigenous communities and the environment some more. You made money to help companies abuse the rights of workers.

You did, by not speaking out against cronyism after Martial Law. You did not question Kamag-anak, Incorporated, and Kabaralin, Kaklase, at Kaibigan.

You did, by not speaking out against Palparan and his ilk. You did not speak out against the very conditions which made Martial Law a dark period when they resurfaced after the Marcos tyranny.

You did, by condemning the national democratic activists who would take to the streets on a regular basis to expose and reject what is Marcosian in society. You called them public nuisance. You called Renato Jr. Reyes a pest more than once.

You helped make Marcos a hero. Shame on you for doing a Pontius Pilate.

And yes, you made Duterte President. Your endorsement of Marcosian practices made Duterte stand out as the only hope for the poor.

Remove that mote in your eye before you remove the mote in other people's eyes.

This is the time to examine national conscience, not to wash the guilt off your hands.

KISSACK, YOU ARE GONE. LONG YOU WILL LIVE.

Last night, we paid tribute to a fine young man who has gone to the West: Atty. Kissack Batong Gabaen. He was known for his staunch defense of human rights especially of indigenous peoples. People came from as far as Palawan to express admiration for this great man. Yes, he had personal flaws, but no one can question his track record as an activist and his dedication to stand up for the marginalized and oppressed and to fight for justice.

In his lifetime, I was blessed to have him as a brother, friend, and comrade all rolled into one. We handled human rights cases together. We participated in the human rights education of communities together. He counted me as one of his mentors. During our two last speaking engagements as a team, one in the Benguet State University and another before a community in Ifugao, he publicly acknowledged me as his mentor. On both occasions, I thanked him for the honorable attribution which I found humbling. But actually, I am now his mentee. His life of service to the people is worth drawing inspiration from.

The last time we saw him conscious was on June 28. I told him jokingly, "Kissack, NUPL-National has a meeting today and I committed to be there (This was true.). But today, something was telling me this might be my last time to see you like this so I chose to be with you and asked Edre Olalia to excuse me." (As an aside, I also sent a message to Grace Saguinsin explaining my non-attendance. I told Grace my inner fear: That Kissack might give up the ghost). He laughed and said, "Aye, I will outlive you."

The next time I saw him on June 30, he was comatose in the ICU. I told him, "Wake up. Today, the man you vigorously campaigned for took his oath as President. Change is coming. Let us help Duterte. Wake up and pay your dues to your children. Watch them grow up. Wake up. There is still a lot we need to do." His partner, Shen, exclaimed weeping, "Look, his tears are rolling." I really hope he heard me.

I am physically alive. Kissack is now a cold, hard body which will be cremated at 9:30 AM tomorrow. But he is a memory, too. He is a beautiful, powerful memory that will indeed outlive me. The things we do for the weak and oppressed in the name of justice, the things we do for humanity will stay in the memory of the present and the future---bigger than us, more than us. They will inspire people, they will inspire movements. Today. Tomorrow. They will change the world.

Today, we say our final goodbyes to him.

Au revoir, Atty. Kissack Gabaen, President, National Union of Peoples Lawyers-Baguio. Long shall you live.

A LETTER ON DUTERTE FROM A FRIEND IN AMNESTY INTERNATIONAL AND MY RESPONSE

Now, I can reveal this.

Last 24 March 2016, a month after I wrote my Why Rody Duterte article which would eventually become viral, I received an email from a friend expressing his disconcert over my support for Rody Digong Duterte.

My friend is an Amnesty International leader based in the USA who, along with some others I count as friends, has been working indefatigably on human rights issues in the Philippines for decades dating as far back as the Martial Law Years. These people put up the Ecumenical Advocacy Network on the Philippines (EANP). Among the members are Prof. Tim McGloin and his wife, Linda, Prof. Paul Bloom of Amnesty International and his wife Meg Layese who is also President of the Philippine Study Group of Minnesota, Gary King who is Group 37 Leader of Amnesty International, Brian Campbell, and John Sifton of Human Rights Watch. I know how sincere and dedicated EANP is in watching actions of the US government that have an impact on human rights in the Philippines.

In 2013, I joined them in lobbying the US Congress to reduce if not eliminate its aid to the Armed Forces of the Philippines because of human rights violations the AFP committed -by itself or through paramilitaries- especially against indigenous and environmental activists. They asked me to articulate indigenous issues to offices of Representatives and Senators of the US Congress which I did. The efforts of EANP paid off. This was the same group that asked the Lantos Commission to look into the human rights record of the Arroyo administration with the same call to review the military aid. Hearings were conducted by the Commission. Since 2012, the group has been lobbying that the Commission would convene again to look into the human rights record of the Philippines and to give a critical look into its military aids to the government. They also sent Pres. Aquino a signed petition published in the Philippine Daily Inquirer to stop the X-strata Mining in Tampakan. On my request, they sent a letter to the Korean government to stop the Korean Exim Bank from lending P9B for the Jalaur Megadam Project which would displace the indigenous Jalaudnon-Bukidnon. Because of this and efforts of the mass movement of which Jey Aye Alenciaga, John Warner Carag, and Malaya Pinas are part, a fact-finding mission was launched to look into the concerns of the affected indigenous community. They also worked to stop the possibility of Pres. Aquino being given the Nobel.

I am so proud to have been working with EANP and hope to continue doing so in the future.

Anyway, my friend must have been very disappointed in me when he learned I was supporting the Mayor of Davao City. This was his email:

Chyt, I thank you for the plan about a counter-petition to prevent ‘injustice’ in the case of Palparan. He clearly has been a monster, and has motivated many persons in the military, paramilitary and government to torture, murder, (and) (d)isappear people.

I have sent it to my usual 250 friends who do Amnesty International work on the Philippines. Numerous ones have told me they signed the petition you sent.

I have heard you support Duterte. We know about 800 persons murdered by the Davao Death Squads. And he made horrid statements in the past endorsing and promoting it. Conceivably, this rate of murder is comparable to the sins of Palparan himself. And then they started in Cebu City, another 200 murdered.

Has Duterte said anything of repentance, and a desire to deliver law and order without EJE? If there is no change of his heart, I fear he will allow paramilitary groups to thrive, and death squads will proliferate.

Why can we expect these things to diminish under Duterte?

Warm Regards,

xxx”

As soon as I read the mail, I replied:

Hi, Xxxx,

How are you?

We really do find ourselves in a difficult position. I do support Duterte and I am not the only one from the left... I must be breaking your hearts but do hear me out.

We are aware of Duterte's HR record. We will always condemn him for that and will continue trying to make him account. But we are also aware- and have personal knowledge-- that he has a track record of supporting sectors we represent. I do know that he has been supporting the Lumads and has always been one with them in rejecting corporate plunder of indigenous resources. There are almost a thousand evacuees in the UCCP Haran Compound right now. They were internally displaced by the AFP and paramilitaries acting for extractive corporations, some of which are supporting Roxas. Duterte and his family are very protective of the Lumads. Sr. Stella Matutina, the Redemptorist nun given a German recognition for her HR work last year, told me that Duterte's family are giving logistical support to the evacuees and have been rallying local business to contribute to their daily needs. This was confirmed by Cong. Karlos Ysagani Zarate of Bayan Muna and other Mindanao fellow HR workers. What is more, he has consistently opposed US military presence in Mindanao and rejected drone testing. And only he has a clear stand on the coco levy funds--give them to the farmers.

The other candidates do not have the same positions; neither a heart for IPs and basic sectors whose issues we passionately stand for and feel strongly about. Roxas is too oligarchic and too pro-mining. Binay is too corrupt which Duterte is not known to be. Poe is supported by Danding Cojuangco. She already announced she would make Col Ariel Querubin, a San Miguel officer, a cabinet official. She said she would open the Philippine economy to foreign ownership. She promised to appoint PNoy as anti-corruption czar. Claims that she is PNoy's other anointed is not hard for me to believe.

Duterte did kill hundreds. This is not right. But at least- and this is not to defend him-- he did not kill activists from the left unlike Palparan. His death squads do not touch the progressive groups. He seems to limit his bloodlust to his perceived criminals. We fear Duterte's death squad but what about PNoy's and the mining sector's paramilitaries? I believe Roxas will not deviate from PNoy's policy on paramilitaries. Shall I support Binay just because he has no paramilitaries? Shall I support Poe for the same reasons?

Moreover, since the 1990s, Duterte has been working with labor organizations (though I do note what he said about KMU). He is actually credited for many Davao initiatives on women, LGBT, children, and other vulnerable sectors. And it is a fact that he donated an inherited property to the government for the construction of a children's hospice. I know people who attest to his simplicity. Yes, he is a man of contradictions: a man with an iron fist but he is also a man with a soft heart.

For me, personally, choosing to support Duterte was not an easy one to make. I cannot vote for the three others. I have hopes that Duterte will make life less harsh for the Lumads and ease the country from corporate stranglehold. I could be wrong. But I have hopes that this man, despite his flawed character, is not as bad a choice as the others.

“I hope you understand my decision.

Find here my statement issued last February explaining why I decided to go for Duterte. I entertained the idea beginning 2013 when it looked like only he was speaking for the Lumads, and while my mind was then made up, I was ready to be flexible should a better or less bad candidate run. The alternatives then were Roxas and Binay. None of the above. Poe? No , because I have not heard her say anything about IPs. In my statement below, I spared Poe from diatribes out of respect for others in the progressive left who support her.

Best regards,

Chyt

Well, Duterte won by a landslide. I still have to hear from my friend. I know he will never stop fighting to protect human rights in the Philippines and other parts of the world. I know EANP will never rest.

Here I am, very elated that my candidate won. Those days of speaking in caucuses and rallies and other meetings to promote Duterte’s candidacy have contributed even if little to Duterte’s victory. For that, I, as the millions of others who fought for his candidacy despite all odds, claim the right to be part of his conscience, to speak out when he deviates from respect for human rights, and to stand by him when he eases the burden of the impoverished, toiling masses.

I have high hopes in the incoming presidency. I, however, do not believe that elections will fundamentally change things. The mass movement, the different sectors, and the new President must work together to dismantle the oppressive structures.

I hope my friend will eventually tell me, “Chyt, you made the right choice.”

NOT AGAIN. NEVER AGAIN.

Kicker Daily news reported that Imelda Marcos says she wants her son, Bongbong, to serve the Philippines "like his father."

Omigosh, omigosh. Not again. Never again.

Who wants a return to the bleak winter of human rights in the Philippines that covered two decades?

There will be blood on the streets. The only sound will be the thud of bodies falling after a long day protesting social injustice. And before the blood of the fallen will dry, more fresh blood will flow like a river. Silence will become the norm.

There will be massive hunger despite the opulence of the very few. Bongbong will be fishing into the pocket of the national treasury as if it is the pocket of his trousers.

Everyday, everywhere in the Philippines, everyone will be experiencing the terrors the indigenous peoples in Mindanao and elsewhere are facing right now.

No to Bongbong Marcos!

Imelda says she wants Bongbong to serve PH “like his father”

Posted on October 13, 2015 by Marcus V

Photo Credit: SCMP

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• Former first lady says she believes her son can reach the top someday
• Her son learned a lot from his father, she says
• Bongbong earlier said his mother was disappointed in his decision to run only for VP

MANILA, Philippines – Call it a mother’s intuition, but former First Lady Imelda Marcos believes her son Senator Ferdinand “Bongbong” Marcos Jr. has what it takes to become president someday.

“Of course, we can only pray that he makes it so that he will have the privilege to serve the Filipino like his father,” she told GMA News.

She was seen accompanying her son to file his certificate of candidacy on Tuesday but did not go inside the COMELEC building due to the crowd.

Imelda earlier defended her husband’s regime as one of the country’s best eras ever and said her son learned a lot from his parents.

“I want him to to be able to serve the country and benefit the country,” she said. “I think he has the potential there and after all he was 21 years in Malacañang and he saw how his father and mother were dedicated to the Philippines and to the Filipino people, and that was the best time we had in our history.”

The senator himself said his mother was disappointed by his decision to run only for vice president.

“She’s wanted me to become president since I was three years old. Imagine how disappointed she was,” he said.

Nevertheless, the son and namesake of the late dictator also vowed to return the country to its former glory.

In filing his certificate of candidacy on Tuesday, the senator also noted how he was the seventh person to have filed his COC.

“I was told that when I filed my COC that I am the seventh person to file, so the lucky number 7’s still there for us Marcoses,” he said. “I think it’s a good omen.”

The late strongman believed in numerology and frequently pointed to the number 7 as his lucky number.

WHY RODY DUTERTE?

...This man, despite his dirty mouth, draws voters and indigenous activists like me. Along with his new "loveteam partner" Miriam Santiago, he is the first among the presidential candidates to notice and denounce the latest atrocity committed against the Lumad: the burning of their evacuation center. He has always championed the rights of the Lumad and has always matched rhetoric with action.

He is a self-confessed killer of people he self-righteously and arbitrarily judged as rapists, murderers, kidnappers, or drug lords, but he has not killed a single activist in the struggle to dismantle structural/national oppression or a single indigenous person protecting ancestral domains. In fact, he has been providing shelter to internally displaced IPs. The other candidates consider IPs invisible - we haven't heard them say anything about the issue even if it is burning right before their very eyes. Two candidates are said to be using the private planes of people connected to abusive mining in IP territory. Any candidate who supports corporate mining on indigenous land is automatically off my list.

So do not judge me, a human rights lawyer and activist before anything else, for gravitating towards this foul-mouthed, dirty old man named Rody Duterte even if my husband, Leandro B. Yañgot, is committed to campaigning for Mar Roxas. With the exception of Grace Poe and Santiago, your candidates have meaner, harsher, and dirtier human rights records. Human rights violations are not just about killing without due process. They are also about neglecting to do your job well or looking at your job as a way to upgrade your burning presidential ambition, resulting in the death of thousands of people in a storm. They are about keeping quiet as a Cabinet official, even if you could have spoken out while DSWD was hoarding and later burying food worth millions of pesos meant for disaster victims. They are about stealing from government coffers millions or billions of pesos that could have gone to alleviating the economic tribulation of the poor. Poverty, hunger, and lack of security in times of disaster are human rights violations, too, as serious as death. At least, death ends suffering but how about those who remain alive? 

Friends, if your main criterion in choosing a candidate is his/her position on who should or should not get buried in the Libingan ng mga Bayani, that to me is not enough. Besides, the other candidates may be anti-Marcos and spewing anti-Marcos rhetroic but where were they and their families during the anti-Marcos days? When they got to the helm of power, what did they do to reverse the after-effects of the Marcos presidency? One pandered quite solicitously to foreign interests, and indefatigably worked for the same Marcosian solutions to economic ills - the solutions friendly to hacienderos, abusive domestic and foreign corporations, the elite. One claims to be indigenous but what has he done for indigenous peoples? He ruled a city that benefits immensely from the oppression by corporations of indigenous communities. The big corporations wantonly plunder ancestral domains and pay taxes as residents of his city. His city gets a large share from the Internal Revenue Allotment. His city is rich because of indigenous sacrifices and unabated suffering, among others. The resource-rich LGUs where the IPs are remain to be this country's poorest and they deal with the environmental degradation wrought by corporate pillage. Very Marcosian situation. You are anti-Marcos? How can you support these candidates who continue the same anti-people policies of Marcos?

I am indigenous and I look at the world with indigenous eyes. I am engaged in development work and work with communities. I hold office in my shoes and where they take me, and not in some posh four-cornered room. I look at the world from that vantage. For that matter, I look at the elections with the same eyes. I will vote for a candidate who has been kind to the most oppressed people in this country, who are fighting to protect the country's last living lung (even if he is condescending at times. I have not forgotten that he said, "Let an Ifugao or Badjao run, but please... not an American." I wish I could force him to gargle with the strongest laundry soap.).

And he is not "epal". In fact, he seems to be destroying his own campaign. He exaggerates his flaws and does not talk about the Samaritan acts he did for people in distress. But actions speak louder than words.

So, please stop asking why I, a human rights lawyer, am supporting Duterte who supports a Marcos burial in Libingan  ng mga Bayani and I will stop asking why you are supporting one I perceive to be anti-people. :-) With the exception of Grace Poe and Miriam Santiago, the candidates are all killers, all human rights violators, all evil.

I chose the least evil.

THE UDHR AND THE ICCPR VERSUS THE ACHPR

By CHERYL L. DAYTEC

“Human beings’ natures are alike; it is their habits that separate them.”

                                                       -Confucius

                                                                

          The Universal Declaration on Human Rights (UDHR) and  the International Covenant on Civil and Political Rights  (ICCPR) differ from the African Charter on Human and Peoples’ Rights (ACHPR) on the matter of the duties they impose on individual rights holders. The differences are:

1.     Both the UDHR and the ICCPR  declare that individuals have duties but opted to be silent on what these duties are, while the African Charter enumerates them.

2.     The UDHR and ICCPR state   that    duties of individuals are owed to  the community, and, under the   latter,  to other individuals,  while the African Charter is specific that individuals have duties to  their “fellow beings,” the family and specifically the parents, society, the State, other legally recognized communities and the international community.

3.     The UDHR and ICCPR suggest that states impose   on human beings  duties to others and to  the community to ensure an environment conducive   to  the full enjoyment of individual human rights indicative of an individualist view. The ACHPR creates  individual duties to promote the interest of peoples, states and societies evidencing a communitarian view.   

What explains the differences? To be very sure, the UDHR and the ICCPR are documents applicable to the entirety of the globe, a conglomeration of states of  diverse  peoples and cultures. Thus the  language on duties was deliberately   couched in general terms to grant states room  to determine those duties appropriate or relevant  to their contexts.  On the other hand, the ACHPR is limited to Africa, a region comprised of states whose respective political, economic and cultural landscapes, though each distinct,   are similar. Logically,  its drafting was  influenced by the region’s  material circumstances. The strong emphasis  on individuals’ duties  to the state and society to foster national and regional unity may be impelled by the   imperative to consolidate power against any form of colonial domination in either its old or new configuration, i.e. neocolonialism. It  is significant  to note that the states parties were relatively newly emergent from the cocoon of colonial bondage when they ratified the Charter. To advocates of realism, this polemic  is reasonable. States will always act in their interest.

The question is whether or not these differences suggest different understandings of the nature of human right. There is  a  strong bedrock for the conclusion that the UDHR and ICCPR, on one hand, and the ACHPR, on the other, understand the nature of  rights differently. For one thing, the ICCPR and UDHR regard the individual as the “be-all and end-all” of rights inherent in human nature, reflective of a naturalist approach. This is clear from the rhetoric of  ICCPR  which states that “(e)veryone  has duties  to the community on  which alone the free and full development of his (sic) personality is possible.”[i] The maintenance of a just society will  guarantee the enjoyment of  individual rights, as in the discourse  of John Locke articulated by Shestack.  Having emerged from a social compact, the state now vested with  police, eminent domain and taxation powers must  send its apparatuses working to cloister from any form of assault the rights to life, liberty and property which human beings resolved not to alienate to it. In short, the state exists to promote individual rights.  

 The ACHPR views  collectives (e.g. states,  societies and peoples) as the ultimate beneficiaries of any rights regime. Individuals’ rights must be respected to the extent that they result in the realization of a collective identity (e.g. as a people, or as Africans)   and of collective aspirations which may be interpreted to mean the State’s interest. On this score, the approach resembles the Marxist slant which subordinates individual  interests to the collective’s. 

Also worth noting is that the ICCPR and UDHR  contain  derogation and limitation clauses,[ii]  while the ACHR has none which exposes human rights to susceptibility of  erosion by states as feared by Buergenthal. The absence of provisions as to  the extent of derogation or limitation of rights demonstrates  a positivist approach to human rights. Rights are legal constructs that derive their breath and  reason d’etre  from  states. Necessarily, the power to grant carries with it the power to withhold.  This approach consigns rights to the ideological temperaments of those whose hands are hoisting  the  power trident.

But the ACHPR may be regarded as  a bipolar document,  or a knife that cuts  both ways. After all, it has strong guarantees for individual rights as much as it has strong orders for duties. At  best, the protection or violation  of human rights is left to the proclivities, reason and/or sympathies of  individuals given the mandate to interpret its provisions.  To the African peoples, it can be either a blessing or a curse, or both.

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[i] Art. 29(1)

[ii] Arts. 4, 5,  8(2), 6(2,3,6), 10(2a),  12(3), 14(1), 18(3), 19(3), 21, 22(2,3),  and (29 (2) of ICCPR and  Art. 29(2) of UDHR.

MARGIN OF APPRECIATION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

by: CHERYL L. DAYTEC

        Litigation is fallible. As the satirist Ambrose Bierce defined it, it is “a machine which you go into as a pig and come out of as a sausage.” Yet, in dealing with difficult issues involving human rights  calling for political judgment, it is still the best adversarial process there is, short of a revolution or political upheaval. None superior or less inferior to it has been contrived yet.

The adoption by the Strasbourg organs of the doctrine of  margin of appreciation  is not so much  an acknowledgment that “litigation is not the best procedure for dealing with matters of political judgment”[1] as it is a recognition of the fact that it is vulnerable  to flaws. Supranational bodies concerned with international human rights adjudication are confronted with similar  issues  with similar if not identical factual backdrops involving various  states.  Yet, this does not mean that they will  resolve all  cases by the same token. It may happen that  the political, socio-economic or cultural substructures of  similar issues raised against states are  each peculiar on its own.  To treat these unequally circumstanced states equally  is to discriminate.

Having said this, I agree  that “decisions about human rights are not a technical exercise in interpreting texts, but judgments about political morality.”[2] As a general rule, in exercising judicial review, it is not the province of courts to inquire into the wisdom of acts of sovereignty, otherwise they end up supplanting it.  But to observe metes and bounds set by the   political question doctrine  which is a bar to interpretation in domestic settings  is to give states an argument with which to legitimize human rights abuses. The obvious compromise is the application of the  margin of appreciation doctrine under which  supranational courts will scrutinize the necessity of the use of  a coercive measure or the derogation from obligations  or limitation of fundamental rights by states on the basis of the political morality thereof.

If decisions were about legal hermeneutics, supranational bodies can just pull the wool over their  eyes and invoke the doctrine of stare decisis.  In principle,  this doctrine is not controlling but in practical terms, there is nothing that stops them from citing precedents. Considering the volume of decided cases,  texts of human rights conventions have  been  construed in every possible way. Interpretations that may appear conflicting  lend credence to the fact that human rights conventions are living instruments.  Their interpretations insofar as   balancing  polarities created by  divergent interests in  a political community is evolving   with  the socio-political milieu. They are much  larger   than their  texts. Beyond cavil then, international human rights adjudication is not about expertise in text interpretation  because expertise cannot  be achieved when the meaning of a text is  ambulant, i.e.,  it is never final. What may be mastered is the science or art of judging the political morality of acts of states involving the use of coercive power.

In deferring to a state’s political judgment on a matter involving sensitive cultural, religious or national issues, a supra-national human rights court must not compromise universal values of morality. This is the lowest level it should go to. Otherwise, it becomes  a toothless body, shaved of its relevance in humanity’s unending struggle  to protect inalienable rights.  As  foundationalists argue,   “political morality is derived from  universal, immutable first principles that can be apprehended by rational reflection,”[3] which is not a faint echo of Yash Ghai’s assertion that human nature is universal, knowable by reason.[4]

For example, a state with a debt-ridden economy needs to generate revenues. After resorting to taxation, the national treasury remains cash-strapped. It has “white elephant” assets, the maintenance of which is further eating a sizable chunk of the national budget. To pave the way for mining as  source of revenue, it  expropriates the remaining  ancestral domains of indigenous peoples over the latter’s objection. The said domains are their source of livelihood, culture base and sacred grounds. Most of indigenous territories have been taken over  by the state in the past for development projects in the name of national interest.   The expected revenues from mining will pay part of the state’s debt and provide the much needed funds for  the state’s operation.  The state offers compensation beyond the properties’  fair market value to the affected peoples.  Is the act of expropriating the indigenous territories  politically moral?

 If I were the supranational court, I would rule that the state’s action is indefensible. Under Art. 1 of the International Covenant on Civil and Political Rights, in no case may a people be deprived of their means of subsistence,  an immutable principle. The taking of ancestral lands deprives the indigenous peoples of their means of subsistence. The act is tantamount to  cultural genocide  as indigenous peoples are attached to their land, divorced from which they become culturally extinct. Balanced against the  national interest sought to be served, which may be addressed through the sale of idle assets, the  taking of these peoples’ ancestral domains has far more onerous consequences and is politically immoral, infringing on the non-derogable right to life.   

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[1] A.H. Robertson and J.G. Merrils. Human Rights in Europe. Manchester-New York, Manchester University Press, 1966, p. 190

[2] Ibid., p. 204

[3] Amstutz, Mark. International Ethics: Concepts, Theories, and Cases in Global Politics. Lanham: Rowland and Littlefield Publishers, Inc.; p. 12

[4] Yash Gai. “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims” in  21 Cardozo Law Review (1999-2000),  p.1096.