Negotiating in bad faith

 

 

In his novel, The Dogs of War (1974), Frederick Forsyth wrote about a group of mercenary soldiers hired to depose a fictional government in Africa. Forsyth called this group the dogs of war, much like the wild pack of soldiers Shakespeare referred to in his play, Julius Caesar.

 

But when the Philippine military named the two dogs and a cat they took into custody during the recent arrest of two high-ranking members of the Communist Party of the Philippines (CPP) as “Ben,” “Wilma” and “Joma,” obviously after the top leaders of the Communist movement, it was a cheap shot, an unfair and malicious attack against their prized captives. On other hand, Forsyth’s dogs of war could probably aptly describe the military like a wild bunch unleashed to pounce on their hated adversaries.

Top leaders of the Communist Party of the Philippines, Benito Tiamzon and his
wife Wilma Austria raise their fists in defiance on their way to their hastily
arranged inquest in Manila after being arrested in Cebu last March 22.

The military also mockingly announced that the well-groomed pets owned by the captured Communist leaders, Benito Tiamzon and Wilma Austria, were better fed than the soldiers in the army whose monthly combat salary wasn’t even sufficient to pay for the pets’ food. Perhaps, the military was sending a hidden message to let the government hear that they are not being taken cared of unlike the Tiamzons’ pets.

 

We can excuse Forsyth in describing his villains as dogs of war since he was only writing a fictional tale. On the other hand, the military had no valid excuse to be insensitive and thoughtless in naming their hostages after their owners. The military’s insensitivity is not just to their prisoners, but to dogs and cats in general, who also have feelings and in fact are more sensitive than people realize.

 

Dogs are very sensitive souls, and if only they could communicate like human beings, they could have let those soldiers know how they felt. Not because they were named after their owners, but it’s just that naming pets is not something to treat like a joke, especially one that is made in poor taste.

 

No species has developed a closer relationship with humanity than the dog, or the cat. We name our pets when we’re prepared to adopt them, to bring them to our homes to become part of our families like our own children. Not to name them in order to poke fun at their owners. These soldiers do not understand what it is about dogs that allows them to live at ease with people.

 

Not so many people really know who the Tiamzons are in person. Just because they were Communists and have lived in the shadows for almost four decades, many who believe the alternative to Communism is far superior think it is perfectly all right to treat the Tiamzons like animals, or even worse than criminals. But it is their affection for dogs and cats that separates them from most of the worst among us who cannot appreciate that such animals also have feelings and rights like people.

 

It is this cavalier attitude of the military and the government that makes the so-called peace negotiations with the rebels really a joke, a process that is wrought from the start with insincerity and lack of genuineness of purpose in achieving the goal of lasting peace. It makes the Joint Agreement on Safety and Immunity Guarantees (JASIG) issued by the government to the rebel participants an ineffectual document of safe passage. Because the government believes they unilaterally impose the JASIG guarantees, that at any time the government wishes to suspend the JASIG’s effect, they can always round up and detain the rebel leaders.

 

Before the capture of Benny Tiamzon and Wilma Austria, other consultants of the CPP and the National Democratic Front (NDF) were also snatched by the military on the pretext that the JASIG has lost its effect because of the impasse in the negotiations.

 

Yet the JASIG guarantees were the product of an agreement, therefore, they can be suspended only if both parties also agreed to do so. But not in the present case. It was only the government who decided on its own irrespective of the other party that the JASIG guarantees are no longer operative since the negotiations were stalled.

 

According to Davao City Mayor Rodrigo Duterte, former head of the government peace panel, Benito Tiamzon and Wilma Austria should be released if they were carrying genuine immunity papers during their arrest. Duterte added that the government should honour its commitment under the JASIG.

 

Under the JASIG, all rebels duly accredited as participants in the negotiations either directly or as consultants are guaranteed free and unhindered passage in all areas in the Philippines. JASIG’s protection covers immunity from surveillance, harassment, search, arrest, detention, prosecution and interrogations or any other similar punitive actions due to involvement or participation in the peace negotiations.

 

JASIG’s immunity is considered necessary in facilitating the peace negotiations between the government and the rebel group because it helps create and sustain an environment conducive to peace talks. It also attracted the Royal Norwegian Government to act as facilitator because of the JASIG guarantees. JASIG further enhances political stability in the Philippines and the government’s peaceful approach towards local insurgency, and this process is made known to the global community.

 

But when the Philippine government asserts that the JASIG guarantees are suspended due to the impasse in the negotiations, it was making a unilateral decision that has not been agreed by the parties. Besides, the process was never concluded nor deemed terminated. It must also be considered that the JASIG guarantees were the most contentious and toughest to negotiate because they covered essentially the procedural agreements between the parties before they could really commence the negotiations. To say, then, that JASIG has been suspended is in bad faith and without the agreement of the other party.

The arrest of Tiamzon and Austria and the other NDF consultants before them despite their JASIG accreditation, however, signals a clear indication that repression of the 45-year old insurgency continues and it is going on with impunity.

 

Recently, the Philippine Supreme Court has ordered the trial with dispatch of the trumped-up murder charges against former Bayan Muna party-list Rep. Satur Ocampo and CPP-NDF consultants in the peace negotiations Randall Echanis, Rafael Baylosis and Vicente Ladlad in connection with the mass graves discovered in Leyte eight years ago. The mass graves discovered by the Philippine Army were said to contain the remains of individuals believed to be victims of “Operation Venereal Disease” launched by the CPP-NDF’s armed wing, the New People’s Army (NPA), to purge their ranks of suspected military informers and collaborators which happened 23 years ago.

 

Also early this week, the Philippine military reported the mass surrender of NPA supporters from Cagayan de Oro City to the army’s 14th Infantry Division, said surrenderees included civilians and children. Using a hoax surrender by the NPA is a patented pys-war tactic by the Philippine military to flush out other insurgents from their mass base and one of the biggest sources of corruption for AFP field commanders in pocketing the reward money from the government’s Social Integration Program for firearms surrendered.

 

Now the government panel is announcing plans to resume the peace negotiations with the Communist rebel group, but insisting that they are willing to negotiate only with CPP leaders based in the Philippines, and not with their counterparts in Utrecht in Netherlands.

 

Where is good faith and trust in the negotiations when at the same time the government is rounding up and detaining the rebel forces? Immunity from arrest was the purpose for installing the JASIG guarantees in the first place but the government apparently respects the agreement only when it works to their advantage.

 

Obviously the government treats the Muslim rebel forces under the Moro Islamic Liberation Front (MILF) quite differently from the CPP-NDF and other Muslim factions. The pivotal role of Malaysian Prime Minister Najib Razak in facilitating the negotiations between the government and the MILF has been hailed and credited with the adoption of the Comprehensive Agreement on the Bangsamoro (CAB).

 

It should be recalled that the father of the current Prime Minister of Malaysia, Tun Haji Abdul Razak bin Haji Dato’ Hussein, was also Malaysia’s prime minister from 1970 to 1976. It was also common knowledge during that time that he supported the Muslim insurgency under the Moro National Liberation Front (MNLF) by providing the rebels with arms, training and funds. The support of the former Malaysian PM was conditional on the Muslim insurgents preventing the government in Manila from pursuing its Sabah claim.

 

With the change in the leadership of the Muslim insurgency, the current Malaysian Prime Minister shifted his support to the MILF and he became the chief facilitator of the Bangsamoro framework agreement.

 

Would the motive for the current Malaysian Prime Minister’s involvement in bringing the Philippine government and the MILF to the table be the same as his father’s?

 

In both peace negotiations by the government with the MILF and the CPP-NDF, it is crystal clear that the government is hiding its true intentions. Acquiescing to the integrity of Malaysia’s territorial right over Sabah and using JASIG as a pretext for rounding up Communist rebels are now surfacing as the real motivation for the government and not the genuine pursuit for lasting peace.

 

Perhaps, the current government can learn something from dogs and their sensitivity to social cues from people that enables them to fit with human society. Humans often fail to realize the unusual skills of dogs in communicating with their masters. But it’s not just their skills but their sense of loyalty which counts most. That is why dogs are our most trusted friends. Dogs know how to build and foster trust, which seems sorely lacking among humans. If only the military and the government could treat dogs in a better light.

Unequal justice – “too big to jail”

 

 

Crimes in this day and age are usually what ordinary people commit. But when the great and powerful commit them, they are often called business or statesmanship.

 

The United States today is considered the most aggressive country in imprisoning offenders. It puts more people in prison than any other nation on earth. American courts invariably sentence criminal offenders for longer periods of time, and for more trivial offences than any nation in the West.

The Rolling Stone magazine called HSBC the gangster bankers that was
"too big to jail."  Illustration by Victor Juhasz. Click link to view "After
Money Laundering $800 Million in Drug Money, How Did HSBC..."
 http://www.youtube.com/watch?v=K800WHFqy1g

But not everyone is subjected to this kind of penal harshness. It totally changes when the nation’s most powerful actors are caught breaking the law. With few exceptions, the justice system treats them not merely with leniency, but even grants them full-scale immunity from criminal punishment. The most egregious crimes of the last decade in America have been fully sheltered from prosecution when committed by those with the greatest political and economic power. We could point to examples such as the construction of a worldwide torture regime, spying on Americans’ communications without the warrants required by criminal law by government agencies and the telecom industry, an aggressive war launched on false pretenses, and massive, systemic financial fraud in the banking and credit industry that triggered the 2008 financial crisis.

 

Consider the recent full-scale immunity bestowed on HSBC, Europe’s largest bank headquartered in London. A US senate probe found that HSBC has lax controls that allowed money laundering for seven years. The bank’s lax controls allowed Mexican drug cartels to launder billions of dollars through its US operations, according to an investigation by the US senate. It also enabled HSBC bank affiliates to evade US government bans against financial transactions with Iran and other countries. The senate investigation also reported that the US division of HSBC provided money and banking services to some banks in Saudi Arabia and Bangladesh believed to have helped fund al-Qaeda and other terrorist groups.

 

What was the US response to HSBC’s transgressions?

 

The US Department of Justice under the Obama administration believed that big banks are “too big to jail” and decided to fine HSBC instead of criminally prosecuting its vast money laundering operation. Prosecution would upset markets, the White House feared. The US government’s excuse that HSBC is just too big to prosecute is the same lame argument used in refusing to break up the big American banks in the aftermath of the “too-big-to-fail” crisis of 2008.

 

It’s not just HSBC which was misbehaving badly. Before HSBC was investigated, the Barclays Bank scandal in the UK over manipulated interest rates has provoked international outrage over what many view as regulators’ failure to enforce financial regulation. Standard Chartered, another large British bank, also agreed to pay more than $660 million to settle charges for violating US sanctions on doing business in Iran, Burma, Libya and Sudan. The Royal Bank of Scotland is also reported to be facing investigations into possible violations of US sanctions on Iran. Money laundering by large international banks has reached epidemic proportions, and U.S. authorities are supposedly looking into Citigroup Inc. and JPMorgan Chase & Co.

 

Officials from the US Department of Justice flaunted the $1.9 billion fine HSBC would pay as the largest ever for such a case. However, the Guardian noted, “The sum represents about four weeks’ earnings given the HSBC’s pre-tax profits of $21.9bn last year.” There was no doubt that HSBC’s wrongdoing was serious and pervasive, but it is simply too big, too powerful, too important to prosecute, thus prompting the New York Times to declare in an editorial that “It is a dark day for the rule of law.”

 

Glenn Greenwald, writing for the Guardian, was outraged by the US tepid response to HSBC’s large-scale money laundering. He wrote: “The poor and racial minorities in particular are locked up at an astonishing rate, often for minor drug offenses. Yet HSBC gets off the hook. It is truly difficult to imagine corruption and lawlessness more extreme than having the government explicitly place the most powerful factions above the rule of law.”

 

Greenwald considers the HSBC case as a disgraceful illustration of a two-tiered justice system in America, the subject of his book, With Liberty and Justice for Some. He wrote that the principle where all stand equal before the blindness of Lady Justice is “now not only routinely violated, as was always true, but explicitly repudiated, right out in the open. It is commonplace to hear US elites unblinkingly insisting that those who become sufficiently important and influential are—and should be—immunized from the system of criminal punishment to which everyone else is subjected.”  

HSBC,  Europe's largest bank  was caught in  drug money laundering scandal.
Photo by Julius Kielaitis/The Shuttershock. Click link to view "Monkeys &
Cocaine: HSBC Money Laundering Case,"
 http://www.youtube.com/watch?v=IO4KRUnipNM

Listen to what Greenwald would further say about the perverse premise that large and powerful financial institutions ought to be shielded from the long arm of the law: “Worse, we are constantly told that immunizing those with the greatest power is not for their good, but for our good, for our collective good: because it’s better for all of us if society is free of the disruptions that come from trying to punish the most powerful, if we’re free of the deprivations that we would collectively experience if we lose their extraordinary value and contributions by prosecuting them.”

 

This was the same reasoning for justifying immunity for state officials for torture of war prisoners and US telecom giants in illegally spying on Americans. We’re told that we need them to keep us safe and that we can’t disrupt them with prosecutions. That is, the government cannot prosecute Wall Street criminals for fraud because prosecuting them for financial crimes would disrupt our collective economic recovery.

 

If the justice system can be distorted to accommodate and protect the great and powerful, ordinary and powerless folks, on the other hand, who commit petty crimes are oftentimes prosecuted and imprisoned with the greatest aggression possible. Thus, when a Muslim is prosecuted for helping a terrorist group, even by accident, he would be going to prison for a long, long time. Powerless, obscure, low-level employees are in fact routinely sentenced to long prison terms for engaging in relatively petty money laundering schemes, unrelated to terrorism, and on a scale that is a tiny fraction of what HSBC and its senior officials are alleged to have done.

 

Take for instance the following two petty crimes compared to the misdemeanours of HSBC and other large banks.

 

Robert Docherty, a wild mushroom picker from Maple Ridge, British Columbia, found himself an unhappy victim of the mighty hands of the law when applied to common people like him. Canadian customs officers at the Toronto Pearson International Airport seized from Docherty cash amounting to $10,000 which he was carrying while boarding a flight bound for Costa Rica.

 

Under Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, Docherty was entitled to carry $10,000 and not a dollar more, out of the country without declaring it.

 

There was $9,880 in U.S. currency and another $335 Canadian in Docherty’s possession. Docherty explained he’d calculated the Canada-US exchange rate so the total amount to come in under the $10,000 limit. Unfortunately for Docherty, by the time he took his flight the US dollar had strengthened, making his package worth more than $10,000 Canadian.

 

Whether Docherty was telling the truth that the money he was carrying was destined for a real estate deal involving a seller who wanted cash, his experience shows what happens when ordinary people who live by the rules run afoul of the law.

 

Or consider the sad tale of Genet Shume, an Ottawa resident and single mother who came to Canada from Ethiopia. Last September 2012, Shume was about to travel to her home country with her two children. She was carrying a large amount of cash—$12,000—that she saved from working at a bank. Shume was unaware of the restrictions under Canada’s law on money laundering and terrorist financing which require those leaving the country with $10,000 or more in cash or foreign currency to report it to a border services officer.

Genet Shume, a single mother who came to Canada from Ethiopia, was headed to
 her home country with her two children to give family and friends money she had
 saved working at a bank. Photo by CBC News.

Before authorities seized the $12,000, they asked Shume whether she was involved in drugs or terrorism. When she answered no, they allowed Shume and her children to board the plane, but without the money. Shume was forced to beg for food when they arrived in Ethiopia.

 

The law is applied differently and much more leniently, however, for alleged perpetrators from the great and powerful, as in the case of the family of former Philippine strongman Ferdinand Marcos. Marcos had been accused of funnelling billions of dollars into Swiss and other foreign accounts abroad. Up until now, the Philippine government has not fully recovered money that was illegally pilfered from the country’s treasury. Meanwhile, the survivors of the dictator—his wife and children—are back in political power and have remained untouched by criminal prosecution.

 

Marcos wasn’t alone in this acknowledged custom of Philippine public officials of ransacking the government’s coffers. Former presidents Joseph Estrada and Gloria Macapagal-Arroyo and other major officials of the government and high-ranking officers of the military have remained unscathed despite accusations of plundering the country’s economy for personal gain.

 

It appears that the justice system and its courts, whether in advanced or less developed societies, are not where we can find the future’s best hopes for the idea of equal justice to prosper, and to apply it equally to everyone, no matter what their station in life is. When the great and powerful are shielded from criminal sanctions to which the rest of us are subject, it becomes only a matter of time when that tipping point is breached for the ordinary and powerless to take matters into their hands.