By the legal defense team of the PILC and NUPL
- The Tiamzon spouses are covered by the Joint Agreement on Safety and Immunity Guarantees (JASIG) arising from the peace negotiations and thus must not be arrested by the Government of the Philippines (GPH).
- Benito and Wilma Austria Tiamzon are holders of documents of identification (more popularly known as “safe conduct passes”) numbers ND978227 and ND978226, respectively, as consultants of the National Democratic Front of the Philippines (NDFP). Both have also been issued Letters of Acknowledgement by two Chairmen of the GPH Negotiating Panel, Howard Dee in 1996 and Silvestre H. Bello III in 2001.
- Wilma Austria Tiamzon is publicly known by her real name to be involved in the GPH-NDFP peace negotiations since the 1990s, and must be afforded recognition and protection as such. The use of assumed names by accredited or protected persons, such as “Crising Banaag” by Benito Tiamzon, is justified by:
3.1. Accepted practice in peace negotiations with underground organizations, and as agreed upon by the Parties.
3.2. Additional implementing rules pertinent to the JASIG signed by both Parties explicitly allowing such use.
3.3. Historical lessons during the 1986 peace negotiations when a number of participants from the NDFP were exposed, arrested, and even killed.
3.4. Security and privacy considerations, to encourage those who want to participate in the negotiations, and as assurance against present or future reprisals. - The status of the Tiamzon spouses as consultants of the NDFP is not questionable. There is no need for further or additional verification/validation of their identities.
4.1. They are in possession of and presented documents of identification and letters of acknowledgement. Further verification is only obligatory when there are no other means of establishing identity. (JASIG Implementing Rules)
4.2. Out of 427 political prisoners in the Philippines, only 14 are being claimed by the NDFP as consultants. - Arresting the Tiamzon spouses constitutes bad faith on the part of the GPH in complying with its obligations under binding bilateral agreements.
5.1. JASIG was crafted precisely to facilitate the peace negotiations, to create a favorable atmosphere conducive to free discussion and free movement during the peace negotiation, and avert incidents that may jeopardize the peace negotiations. It actually benefits the panelists, consultants, staff and security of both Parties to safety and immunity guarantees.
5.2. Under the principle in international law of “pacta sunt servanda” (Latin for promises must be kept), agreements are binding between the Parties and must be kept and performed in good faith.
5.3. A Party like the GPH cannot use its domestic law as a justification or excuse for the non-performance/compliance with its obligations under a binding international agreement like JASIG. - Protection of the Tiamzon spouses under the JASIG subsists.
6.1. JASIG can only be terminated by written notice of either Party to the other and will only be effective 30 days upon receipt (JASIG Part III. No. 5). No written notice has been sent or received by the NDFP for the termination of the negotiations by GPH under the Aquino administration.
6.2. There is no provision in the JASIG allowing for suspension or “inoperatibility” of its protections as this will render nugatory its objectives and practical value.
6.3. The whole peace process or negotiations are huge and elaborate and do not only involve scheduled formal talks across the negotiating table. It equally involves continuing phases such as consultation, research, study, education, information, advocacy, backchanneling, exploratory meetings, informal talks, and formal talks. Absence, suspensions or impasses in formal peace talks do not mean the whole peace negotiations/process are automatically absent, suspended or terminated. - The Tiamzon spouses are engaged in activities directly related to their role as consultants in the peace negotiations.
7.1. The Tiamzons were conducting intensive consultations with peasants and basic sectors in the Visayas at the time of their arrest particularly with respect to socio-economic issues and the effects of supertyphoon Yolanda.
7.2. Even the GPH alleges them as leaders of the Communist Party of the Philippines – New Peoples’ Army. It stands to reason and common sense that they should be monitoring implementation of agreements on the field, be consulted by and conduct consultations with members of the NDFP and pertinent individuals and groups, in such a significant work as the peace negotiations. - Four days after their arrest have passed yet still no valid warrants have been presented against the seven detained.
8.1. The detained and their counsels have not received, nor have been furnished previous valid warrants against any of them. Even present attempts to procure these are being blocked by the military. It is not implausible that shotgun warrants would eventually surface as the Tiamzon spouses are mechanically made default respondents or “usual suspects” in incidents allegedly involving the New People’s Army.
- The belated inquest proceedings for the trumped-up charges of illegal possession of firearms and explosives are highly irregular and cannot be given legal credence or effect.
9.1. It was conducted 44 hours after the arrest, way beyond the GPH maximum period of 36 hours of legal detention without charges being filed; thus the detention is arbitrary and illegal.
9.2. It was conducted not at the place of the alleged crimes in Cebu, but some 355 miles away, in Quezon City.
9.3. Evidence has been planted. It is incumbent now upon the GPH prove the integrity and admissibility in court of the firearms and explosives allegedly taken from the detainees. The presumption of innocence subsists and the burden of proof and evidence does not shift to them.
9.4. New, false, and fabricated charges were filed as an afterthought to cover previous fatal infirmities in supposed warrants almost two days after the incident.
9.5. Police CIDG officers did not inform counsels for detained about the inquest despite presenting themselves the day before. Counsels were surprised with and only informed about the inquest for the new and fabricated charges only three hours prior by members of media. - The practice of charging common criminal offenses, instead of political crimes, against consultants of the NDFP (and other political prisoners) cannot legalize the arrest and detention of the Tiamzons.
10.1. Filing criminal charges , false, anomalous and fabricated at that, are precisely calculated to undermine and remove the very protection of the JASIG; conversely, the JASIG was intended to shield participants of the peace process from harassment and other acts that hinder their work, like the filing of such charges.
10.2. These new false charges are designed to ensure the detention of the Tiamzons when other possible old charges against them wither in the face of intense scrutiny.
10.3. These trumped up charges violate the political offense doctrine, which mandates that all crimes in furtherance of political beliefs must be subsumed under one political crime of rebellion. Any person investigated, charged, arrested, prosecuted or convicted in violation of this judicial doctrine must be released as mandated by the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL), which the GPH co-signed with the NDFP way back 1998.
References:
Atty. Rachel F. Pastores
Managing Counsel
Public Interest Law Center (PILC)
+639279219539
Atty. Edre U. Olalia
Secretary General
National Union of Peoples’ Lawyers (NUPL)
+639175113373
National Secretariat
National Union of Peoples’ Lawyers (NUPL)
3F Erythrina Building
Maaralin corner Matatag Streets
Central District, Quezon City, Philippines
Telefax no.920-6660
Email addresses: [email protected] and [email protected]
Follow us on twitter @nuplphilippines
and facebook @https://www.facebook.com/nuplphilippines
Visit the NUPL website at http://www.nupl.net/
