Transcript of Sen. Defensor Santiago’s Interview
30 January 2007
They are not strictly following the Rules of Court. The Rules of Court are a set of rules of procedure that are strictly followed in court as a way of determining who is telling the truth. So in this case, you notice that one of the aspects of the findings was given banner headline treatment and was immediately disputed by Gen. Palparan who was placed in the wrong by that finding. It is extremely difficult for an objective observer of the proceedings like myself to find out who is right. Because this commission, as I said, have their own rules of procedure and they are not as strict as those followed in a courtroom. So we have to be careful because generally the findings will be applicable to both situations. But we’ll have to make exceptions to those situations which do not conform to the regular way events turn out. So I will say that if there is any crime indicated and there is a possibility that the perpetrators can be identified, then of course the report of the commission should be referred to the NBI so that they can gather enough evidence constituting probable cause that the Ombudsman or the prosecutor can initiate charges in court. Otherwise, it would be unfair to the persons who are implicated by the findings without any element of decisiveness. That’s what’s unfair about the special commissions or special fact-finding bodies.
They are pointing on Gen. Palparan on the doctrine of command responsibility since he was in charge at that time. Any atrocity that may have been committed should, in the final analysis, be attributed to him. But that doctrine of command responsibility laid down by the Nuremberg Tribunal after the World War does not necessarily apply in a just way as to produce a just result in a case of armed conflict within the civilians of the same community. And so, to make a blanket statement that since there was only one general, that general will have to assume responsibility for anything that his man committed, whether he knew or approved or both of those incidents, is not allowed by our Rules of Criminal Procedure. It was not a war situation. It was not a battle situation. It was more, what they call in international law, a situation of armed conflict. So it was not a case of states fighting each other, in which case command responsibility is necessary so that the victor can ensure that the vanquished state will never do it again. That’s the principle of the Nuremberg Tribunal. But this is a different case. It is a domestic case of a domestic armed conflict. There should be a more thorough investigation which will take years by the NBI.
Kasi ang senado sunod din ang findings namin sa testigo na mahagilap namin cause we have no authority to conduct a criminal investigation. What we conduct is an inquiry in aid of legislation. So generally, we are even worse because normally we will end up with vague generalities about what law should be passed in the future and we cannot make specific findings on specific cases.
‘Yang Command responsibility na iyan ay hindi maganda dahil yang prinsipyo ay ginawa nung Nuremberg Tribunal pagkatapos ng World War. Ibig sabihin nun, gusto nilang parusahan ang Hapon at ang Germany na kailanman ay huwag ulitin yung mga ginawa noon lalo na ang pambobomba ng Pearl Harbor kaya sinabi nila na ang pinaka-pinunong heneral ang siyang dapat managot. Pero ito ay hindi naman giyera kundi ito ay domestic lamang, sa loob lamang ng ating bansa, hindi siya World War. It is a domestic situation of armed conflict kaya hindi mo maaring i-apply yang command responsibility na iyan dahil magiging labag iyan sa ating Rules of Criminal Procedure. So they will have to prove first that there was conspiracy between Gen. Palparan and whoever the individual soldier was or group of soldiers that apparently carried out those atrocities before you can even include him in the charge.
It is very easy to say that, “Well, let’s just identify who was in ultimate command at that time and then let’s make him assume criminal responsibility.” But that’s not going to be a fair conclusion. First you have to prove that he knew and that he approved, he gave his consent whether it was express or tacit.