The magnificent Magnitsky Act

In the field of law, one of the best things that has happened recently is the enactment of the Global Magnitsky Act in the United States. It is expected that the European Union will enact a similar  law soon. Likewise, it has been reported that Australia is considering a similar law.

This is good for the world. This is good for the Philippines as well. I write this as a constitutional law and public international law professor in many law schools.

I would certainly want us to prosecute in the Philippines those who may violate the human rights of our overseas Filipinos.

This is not and has never been about sovereignty. Human rights norms are universal, they transcend boundaries of both territory and time. If you violate the human rights of individuals and or groups, you should be held accountable anywhere and anytime. In public international law, human rights atrocities violate jus cogens norms –  from which no derogation is permitted by way of particular agreement. Human rights are erga omnes rights or obligations that are owed toward all.

There are actually two Magnitsky acts. The Global Magnitsky Act, the law now being applied against violators of human rights in the Philippines – those responsible for the massacre of the poor in the war against illegal drugs, those harassing Maria Ressa and Rappler, and  those persecuting Senator Leila De Lima – is the second of two laws named after Sergei Magnitsky, a whistleblower who was killed in Russia. 

 The Sergei Magnitsky Rule of Law Accountability Act, known as the Magnitsky Act and enacted in 2012, orders and authorizes the United States State and Treasury departments to restrict the travel and freeze the assets of any individuals who have committed gross violations of human rights in Russia.

The Global Magnitsky Act, on the other hand, extends the sanctions t to human rights violators outside of Russia, including the Philippines.

The Washington Post distinguishes the two laws: “Unlike the first law, this second law does not require the president to impose any sanctions. Instead, the global version gives the president the legal authority to institute a travel ban and asset freeze on human rights violators in any country, while leaving the president with the discretion to determine whether to do so. But to make it more difficult for the president to ignore the law, Congress included in the Global Magnitsky Act a requirement that the president respond within four months to requests from the heads of certain congressional committees for the executive branch to determine whether particular individuals engaged in human rights violations.”

That is where we are now. The insertion of the provision on Senator De Lima, an amendment in the 2020 State and foreign operations appropriations bill and is now part of the US government’s 2020 budget signed into law by Trump last week, should be considered both the legislative request and the executive action rolled into one. It is now immediately executory and officials and individuals who have been complicit in De Lima’s persecution are now covered by the Global Magnitsky Act.

The United States Congress and President Trump are not the first to make the judgement that Senator De Lima’s rights have been violated.

As I have written in the past columns, the United Nations has chronicled how the rights of De Lima, as a detainee and accused, were and are being violated, particularly her rights enshrined in the Universal Declaration of Human Rights. According to the UN Working Group, the evidence and charges against Ms. De Lima were manufactured and fabricated upon the orders from the highest official of the land. Worse, according to the UN Working Group opinion following the President’s orders, the Secretary of Justice pronounced the guilt of Ms. De Lima in public even before any formal government investigation had been conducted against her. But despite strong evidence that the rights of De Lima for a fair trial have been violated, and the calls by local and international organizations for her release, the Duterte administration refuses to budge and release her from detention.

As for our Supreme Court, I have analyzed that case in depth and have taught it to dozens of classes and hundreds of students and plainly put, a proper Summation of Votes of the Court in the De Lima case shows that only five justices consistently upheld all the actions of the lower court upon the purported grounds and basis that it so acted, i.e., the Information is sufficient in charging Illegal Drug Trading, and that probable cause exists that this crime was committed by De Lima. But five is not a majority. How the petition was therefore dismissed on the basis of the vote of a minority of five, the dissenting votes of six, and the concurring but actually non-concurring votes of three justices on the vital issues of what crime is actually charged and whether probable cause was properly determined to exist for this crime, is the million-dollar question in any bar examination.

Recently retired Associate Justice Carpio rightly observed  that based on the information itself, the charges against petitioner is blatantly a pure invention; indeed, the information is laughable if not for the non-bailable detention of the accused. Because of this, we have, according to the eminent Justice, one of the “grossest injustices” in recent memory.  

Justice Marvic Leonen also registered his strong dissent to the majority opinion and found disturbing the unsettling of established doctrines, the misapplication of unrelated canons and failure of the majority to render a good judgment.

Carpio and Leonen were joined by Chief Justice Maria Lourdes Sereno and Associate Justices Benjamin Caguioa, Francis Jardeleza, and Estela Bernabe who also submitted strong dissents.

I tell my students that like many Marcos era decisions – for example Javellana vs Executive Secretary that paved the way for the 1973 Constitution to be in effect and that awful decision Ilagan vs Enrile decision that justified the arrests of three heroic human rights lawyers from Davao City – the dissents in the De Lima case will be more remembered than the majority decision.

I am also sure that in the near future, a courageous Supreme Court will apply  the precedent established in Brocka vs Enrile – that any prosecution tainted by politics and especially by the anger of a president must be set aside and have all its proceedings annulled.

In the meantime, we have the magnificent Magnitsky Act.

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