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Issue Number 32, October 2009
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Kapatiran Issue
No. 32, October 2009
THE WRIT OF AMPARO AND JAMES BALAO
- Joe Hendren
Along with public campaigning to raise awareness of James
Balao’s enforced disappearance, the Balao family and
their supporters are seeking to use the Philippine legal
system to force the State to reveal the whereabouts of
James. While it was not an official part of the
International Solidarity Mission to Surface James Balao,
it just so happened that an important court hearing was
being heard on the last day of the mission, which enabled
participants to go along to Benguet Regional Trial Court
and see the legal team in action. Thus on October 23,
2008 a large group crowded into a courtroom no bigger
than a small classroom.
The Balao legal team was asking the Court to grant the
writ of amparo, a special writ of protection against any
“violation by an unlawful act or omission by a
public official or employee”.i This writ was
created in 2007 by Philippine Chief Justice Reynato Puno
in response to concerns that the Philippine version of
habeas corpus was ineffective when military officers
could simply issue denials and fail to appear during
cases involving suspected disappearances or extrajudicial
killings. The Office of the Solicitor General represented
the defendants, who attempted to have the petition
dismissed on the grounds the respondent was the
“highest ranking official of the land”.ii It was a clear
statement on behalf of the Government that it believes
the President is above the law. Thankfully, the Court did
not find in Gloria Macapagal-Arroyo’s favour on this
matter, even if she may continue to believe she is
personally above the law. So, as the Magna Carta was
signed in 1215, one could say Arroyo’s cronies seek
a legal immunity for the sovereign that is positively
medieval. Off with their heads!iii
Despite attempts by the defence to get the motion
dismissed on spurious technicalities, and delayed
wherever possible, the writ of amparo in the case of
James Balao was finally granted on January 19, 2009,
nearly three months after the initial hearing. Despite
the “miserably long wait” for the Balao family,
thereby also denying James Balao any protection over this
time, the Cordillera Peoples Alliance (CPA) found
vindication in a lot of what that Court had to say. The
Court found substantial evidence of an enforced
disappearance that was “politically motivated”
by his activist/political leanings. Judge Benigno
Galacgac stated: “(James Balao’s)…
abduction came at a time when the Government is engaged
in an all-out war against its perceived enemies, which
has resulted in unabated extrajudicial killings,
abductions, political persecution and violations of civil
and political rights of the people. It happened at a time
when organisations and individuals critical of the
Government are tagged as terrorists or enemies of the
State”.iv
The CPA says this demonstrates that James’ abduction
is “not a purge within the CPA, not an offshoot of
clan disputes or a personal grudge against James as so
stated by the Philippine National Police and the Armed
Forces of the Philippines”. Justice Galacgac
continued: “I have no reason to doubt that in his
time he was a very good CPA researcher, educator, trainer
and organiser who spent most of his time living with,
educating and organising farmers in the provinces while
doing some research for the CPA…..”.
Writ Granted But Still No James And No Clue Where
He Is
“(The) Police and military failed in conducting an
effective investigation of James Balao’s abduction
as revealed by the investigation report of
respondent’s own witness, Chief Superintendent
Eugene Martin and Senior Superintendent Fortunato Albas.
The investigation was … very limited, superficial
and one-sided….To the mind of this Court, there is a
seeming prejudice in the process of investigation to pin
suspects who are not connected with the military
establishment. The Court issues a Writ of Amparo ORDERING
the respondents to (a) disclose where James Balao is
detained or confined, (b) to release James Balao
considering his unlawful detention since his abduction
and (c) to cease and desist from further inflicting harm
upon his person”.
While the strongly worded judgement pleased the CPA, it
feared that the respondents can “simply deny or
probably lie that they have James in custody. In such
denial they have already complied with the Court
order”.v The CPA was also
disappointed the Judge failed to issue an inspection
order due to the failure of the petitioners to comply
with the stringent provisions of the rule of the writ of
amparo. Such an order would have authorised the right to
inspect Police and military facilities while attempting
to locate James. The CPA expressed its disappointment at
the lack of such an order and the legal reasons for its
refusal. “It is unfortunate that the stringent
provisions of the writ defeat the very purpose of the
writ of amparo i.e. to give protection to the victim
“(op. cit.).
On July 22, 2009 the Philippine Daily Inquirer published
an article from the Chairperson of the Philippine
Commission on Human Rights (CHR), Leila de Lima, called:
“Human rights violations rise, culture of impunity
prevailing” where de Lima reviewed the nine years
under the Arroyo Administration. She called on Arroyo to
certify the Charter of the CHR to help combat the
“impression of the CHR as a ‘toothless
tiger’”vi and for the
Philippines to ratify the International Convention for
the Protection of All Persons from Enforced
Disappearances (ICAED). “The ICAED is significant
because we are plagued by enforced disappearances. We
continue to look for the disappeared, notably Jonas
Burgos, the two University of the Philippines students
(Karen Empeño and Sheryl Cadapan, missing since their
June 2006 abduction in Bulacan. Ed.) and James Balao. The
inability of the Government thus far to ratify the treaty
devoted to this very issue is a travesty”. In July
2007 de Lima commented on the efficacy of the writ of
amparo. While the writ had led to some important
breakthroughs, it “only represents the hope that
justice can be had. It cannot be underscored enough that
hundreds remain missing, and hundreds dead without
vindication in the courts of law”.vii
Joe Hendren is the Researcher for the National
Distribution Union in Auckland and a PSNA member.
—————————————
i Quote from
Philippine Chief Justice in “Testimony of Reverend
Cannon Brian Grieves and Alexander D Baumgarten on behalf
of the Episcopal Church” (18/3/09), Submitted to the
United States House of Representatives, Committee on
Appropriations, Sub-Committee on State, Foreign
Operations.
ii Cordillera
Peoples Alliance (31/10/08), “Third Update Report on
Our Efforts to Surface James Moy Balao”.
iii Gloria
Macapagal-Arroyo recently expressed an intention to
revive the death penalty.
iv Quote from
judgement taken from Longid, Beverly L (7/2/09),
“Update Report on the Surface James Balao
Campaign”.
v Longid, Beverly L
(7/2/09), “Update Report on the Surface James Balao
Campaign”.
vi de Lima, Leila
(23/7/09), “9 Years of Arroyo: A Review. Human
Rights violations rise; “Culture of impunity
prevailing”, Philippine Daily Inquirer,
http://newsinfo.inquirer.net/inquirerheadline
s/nation/view/20090723-216804/Huma
n-rights-violations-rise
vii de Lima, Leila
(10/12/08), “State of the Philippines Human Rights
Situation”, quoted in “Testimony of Reverend
Cannon Brian Grieves and Alexander D Baumgarten on behalf
of the Episcopal Church (18/3/09), Submitted to the
United States House of Representatives, Committee on
Appropriations, Sub-Committee on State, Foreign
Operations.#
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