Decades of injustice make a datu support jury system

Decades of injustice make

a datu support jury system

By BERTENI “TOTO” CATALUNA CAUSING

Editor-in-chief, Dyaryo Magdalo

                Surigao City (Dec. 16, 2011) – When the idea of a people’s justice system was broached to a leader of a big group of Manobo tribesmen here, he readily agreed that this is the kind that should be put in place in this “mining capital” of the Philippines if only for the indigenous people’s lives to be better.

                The idea of this justice system commonly called “jury system” was broached to this datu by this author, an of the Pamantasan ng Lungsod ng Maynila College of Law who is the president of Hukuman ng Mamamayan Movement Inc. (HMMI), which was organized for the purpose of conducting campaigns to educate the Filipinos about this system of justice.

                The author flew here on Dec. 15, 2011 along with National Press Club president Jerry S. Yap and his chief of staff to speak at the inauguration of the first set of officers of the newly-organized Caraga Region Tri-Media Practitioners Association, Inc. (CARTRIPA). Due to typhon “Sending,” the flight back to Manila on Dec. 16, 2011 was cancelled.

                The datu believed that the inherent strength of the jury system closes the possibility for the influential and the rich law breakers to buy or threaten the jurors and ensures fairness all the time.

The jury system proposed by HMMI

There are two juries that are being proposed by HMMI for adoption in the Philippines. 

The first is the grand jury that functions as the body that decides by majority votes whether to file a criminal case in court or not. In contrast, in the present system the Offices of City or Provincial Prosecutors are the ones determining who should be indicted in court; that have shown vulnerability to corruption that may fiscals have been labelled as “fix-cals.” 

Under the grand jury or the investigating jury system, a raffle picking about two hundred from the voters’ list shall be done. Those picked shall be screened down by means of interviews and by means of eliminating those who have criminal records.  The final 23 and two alternatives shall be chosen to serve as grand jurors for six months when the new batch replaces them.

While serving, the names and faces of the grand jurors are to be kept secret, removing the possibility of intimidating or buying the jurors through their relatives.

In doing their duties, the procedure calls for the prosecutors to present their case before the grand jury and a lawyer shall be employed to advise the jurors on questions of laws.

If the grand jurors voted by a majority to indict a person being proposed by the prosecutors to be charged, the prosecutors concerned shall have the obligation to present evidence in court against the indicted person before the trial jury.

The second is the trial jury that tries or hears the evidence and decide the facts of the case.  The judge of the court will be the one who will preside over the proceedings of the trial and will be the one who will decide as to the penalties and the laws to be applied upon the facts determined by the jurors who are laymen.

During the hearings, the trial jurors shall be kept in seclusion if the accused are persons of dangerous characters like the Ampatuans in the present trial of the infamous Maguindanao Massacre of 57, including 32 journalists. Thus, this seclusion eliminates or reduces the possibility of influencing or threatening the trial jurors.

Unlike in the US system, the one being proposed by HMMI is a system where a majority vote of the 12 trial jurors is sufficient to convict the accused. Votes of 7 to 8 shall merit a minimum punishment. Votes of 9 to 10 shall merit a medium punishment.  Votes of 11 to 12 shall merit a maximum punishment.  These categories are provided because the Revised Penal Code usually prescribes punishments in three degrees.  The Indeterminate Sentence Law will also be applied to the sentence for the purpose of determining the minimum prison service when the convict can apply for parole.

The procedure of choosing trial jurors is similar to that of the grand jurors. Many will be picked by a computer raffle from the voters’ list. Then these picks shall be summoned for interviews and a list of 50 shall be picked.  These 50 shall be assigned corresponding numbers and descriptions for the lawyers of both the accused and the accuser to decide to choose the final 12 and two alternatives.

“This is very good. This is the solution to our present justice system that is dysfunctional due to the overwhelming influences of the war lords, the brave, the rich and the greedy,” the datu reacted after having been educated of this system of justice.

Decades of injustices

The datu disclosed that many Manobo tribesmen in the province of Surigao del Norte have been killed and have not found any justice in the fight for actual possession and control over lands, mostly mountainous, which lands they own since time immemorial, dating back to the time when the Spaniards and Visayans were not yet here.

                The killings in the last decade numbering by hundreds rooted from issues of mining, legal or illegal.

He said that mining has been the center of greed among stakeholders, who, in turn, include the armed groups, military, rebels, politicians and miners many of whom maintain their own private armies.

Not one of the victims among the tribesmen, according to a new-found friend who is a datu, has ever gotten justice or vindication.

The present courts here, he said, are practically not working with respect to issues involving mining and indigenous peoples in the Caraga region that got its name from the word “kalag” which can also be spoken as “karag” that, in turn, means “ghost.”

He lamented that almost not one criminal investigation has been filed of these incidents of violence, oppression and all other kinds of despicable acts that included grabbing of lands for mining and the massive cutting of trees necessary to give way to open pit mines.

He recalled that there was one datu who got the courage to file a case that reached the trial court.  However, he said, the judge was murdered even before the case could progress.

There was also another case where a lawyer helped one clan. But the lawyer was gunned down.

The datu who is a man of nerve of steel showed a very sad face as he narrated that what has made their problem worst has been that they have also been exploited and cheated by the very office created by law to protect them: the National Commission for Indigenous Peoples (NCIP) regional office in Caraga.

He intimated that an official of the regional office has been the one taking shares or royalty of each of the tribesmen clans whose ancestral lands have been hosting mining companies.

He stressed that not a single peso has been given to any family of any indigenous peoples (IP) here.

Under the Indigenous Peoples Rights Act (IPRA), any investment inside any ancestral domain or land must have the so-called Free and Prior Informed Consent (FPIC) issued by the NCIP.

This FPIC can only be issued after the tribal council concerned has given the consent of the whole clan.

 In other words, no mining can be allowed in any ancestral land without the consent of the tribe family that owns the land.

But the datu cannot understand how it happened that many companies have been operating even without obtaining from the tribes council of elders any consent.

Lost faith in government

Because of these mountains of problems, the datu said that the Manobos have lost faith in the government. 

They had a hope once when President Benigno Simeon Aquino III was elected in 2010.  It needs stressing that of all places in Mindanao it is only in Caraga that P-Noy won; the rest went for former president Joseph Estrada.

However, nothing has changed according to the datu.

The datu said that P-Noy removed the regional official of the NCIP in the region who he said pocketed the monies from mining firms that should go to the tribes.  Then this corrupt official gave some to NCIP officials in Manila.

However, the replacement is as good as or worse than before, prompting them to think that P-Noy would only be another Gloria Macapagal Arroyo in so far as their issues are concerned.

Adding to his worry is that P-Noy reappointed national commissioners named by Gloria who have been reputed to be “commissioners” in the truest sense of the word.

Clear case of dysfunctional justice system

He said that this is a clear case that the present justice system is indeed dysfunctional in the region.

Datu said that there is no willing official of the Department of Justice (DOJ), the Philippine National Police (PNP) or the Judiciary who would perform their job of dispensing justice when the issues are tied to the ancestral lands subjected to mining.

Because they cannot get any justice from the government’s justice machineries, datu said that many in his tribe have armed themselves and joined the New People’s Army (NPA).

Through their membership with the NPA, some tribesmen burned mining sites ran by companies they deemed to be oppressors.

The lack of justice among the IPs of Surigao is but a small part of the bigger picture of dysfunctional justice system in the entire Philippines.

But after knowing the jury system concept and after having been convinced that this is the one urgently needed in Surigao, the datu promised this author that he will educate his own people about this and will tell them to support this cause until it becomes a law in the Philippines.