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Interview of Headstart with Atty. Barry Gutierrez

21 March 2017

Legal Adviser to Vice President Leni Robredo, 21 March 2017

Q: All right and joining us in the studio this morning is the Vice Presidential Legal Adviser, Barry Gutierrez. Good morning to you, and welcome to Hot Copy, Barry.

Barry: Good morning, Karen.

Q: Alright, let’s start with this. What Vice President Leni Robredo did, would you consider it an impeachable offense?

Barry: (Laughs) Definitely not. All she did was actually articulate a sentiment communicated to her by some of the people that have been approaching the Vice-President and to talk about their direct experiences with the War Against Drugs.

Besides, if you look at what she said in the video, when she cited the 7,000 deaths due to summary executions it is not something that has not been stated before. In fact every major news agency both in the Philippines and overseas – from the New York Times, to Al-Jazeera, the Washington Post, and so many other agencies have used that figure of 7,000 plus deaths to describe the Philippine Drug War.

And apart from that, international agencies like Amnesty International, like Human Rights Watch have also used that figure and have backed up their assertion that there is a human rights calamity in the Philippines because of exactly the numbers of deaths.

Q: Okay, all right. I wanna challenge you on some points, because…

Barry: Sure.

Q: Clearly if you ask me, you have the Vice-President, who is essentially protected by the freedom of speech, right?

Barry: Yes.

Q: It’s an inherent freedom we all have. There’s some concerns that I think should be answered. Number 1, Let’s go to the basics. who wrote the speech?

Barry: It was written by her staff.

Q: It cannot be her. One, it was too long, too detailed. So who wrote it?

Barry: Obviously she has a staff. So it was a team effort, she had her team of speechwriters.

They consulted with our policy group who actually got some of the figures from official sources like the PNP and Commission on Human Rights.

Q: Who advised Vice-President Leni Robredo to do this speech, submit the video? Was there any senior official in LP or adviser that said, you should do this, you shouldn’t do this?

Barry: No, LP had nothing to do with it. This was a pretty standard, I think invitation.

She received a request from the organization that was going to hold a side event at that UN Conference – requesting her to actually speak on – specifically – they provided a specific topic.

She was supposed to speak on the human rights implications of the ongoing war on drugs in the Philippines. So there was a decision to actually honor this request. So you know, that started the ball rolling.

Q: Just for factual purposes, DRC.net Foundation, their Executive Director Borden spoke and he actually said, as the organizer of the event at the UN, I can attest that the date of the forum was scheduled months ago by the UN Staff. Okay. Because there have been talks that it was timed right with the impeachment complaint.

Barry: Yes, and we find those claims, you know, completely ridiculous. The invitation came to us months before. It was early February – the speech was prepared then and the schedule was completely up to the UN organizers.

Q: Right. So it was by invitation, she submitted a video…

Barry: Yes.

Q: The staff wrote the speech, and she essentially read it…

Barry: Yes.

Q: And submitted it.

Barry: Yes.

Q: Okay. Have you read the full speech?

Barry: Yes. It’s online.

Q: The reason I’m asking you is because I saw the full speech and I’ve spoken to some supporters of the Vice-President who saw the speech and were surprised with the speech. They felt the speech – this were supporters of the Vice-President ha – was almost to a degree, it had the aura of really separating herself from the President. It had an anti-President Duterte feel. Some said it seemed inappropriate… propriety questions, Senator Lacson raised that point given that if something happened to the President, she would be the Constitutional successor. Is she positioning herself as, “you know what? I do not support the President”…

Barry: I don’t think that was the intention. The intention was to focus on the particular issue on deck at that point. And that issue was, specifically the human rights casualty on the War on Drugs.

And you know, if you watch the entire thing, it’s clear that that’s what she’s talking about. She’s citing figures, she’s talking about what people who’ve had a direct experience with the War on Drugs related to her in their meetings.

You know, I don’t think there was any intention to make the President look bad, or if that was the clear direction of what was being said.

Q: Or that was the outcome or perception of some viewers.

Barry: Well, if that was the perception of some viewers, I suppose that’s because in the course of the last nine months, that the President has been in Office, he is the one who has actually failed to distance himself from the ongoing concern on the War on Drugs that he is in fact waging.

Despite the fact that a number of institutions, a number of elected officials in other countries have raised concerns about the manner in which the War on Drugs is being waged – particularly the rising body count, including both those killed in police operations and those killed by supposedly “vigilantes”.

But related to the Drug War, he has not really expressed a sense that he disapproves or that he is taking very very firm steps to address this situation.

In fact, he was once quoted as if he fails to adequately address this, you can expect the body count to triple to 20,000, 30,000.

So you can’t really be – you’re not really going to be surprised if people feel that when you talk about the War on Drugs, it’s really a criticism against the administration.

Q: Okay, now when the Vice-President makes a step like this, you know, every word will be studied. I’m going to read to you a part of the speech, where the Vice President said, “We are now looking at some very grim statistics. Since July last year, more than 7,000 people have been killed in summary executions.” That no less than Sen. Ping Lacson said is wrong. How could you, not you, but he asks, how could one put the 7,000 deaths all in summary executions where policemen are counted in those deaths? 38 policemen in drug operations are in that number. And then if you go to the nitty gritty of it, you have 3,600 deaths under investigation, the police claim there are 2,500 police operation, if you divide the 7,000. So isn’t summary executions a bit sweeping?

Barry: I don’t think so. I think it’s a fairly accurate summary of the figures that have been brought to us.

Q: So a policeman dying, let’s say, in an actual police operation, would be considered as summary execution?

Barry: No. You don’t count the 38 deaths in the in summary executions. But if you look at the 2,500 killed in police operations, and according to the PNP statistics, those are the people who are not policemen.

These are the suspects that supposedly nanlaban, okay, who were executed. So fine, that’s 2,500. You have another 3,500 that were killed by vigilantes but related to the drug war but the new classification created by the PNP for them, is DUI or deaths under investigation.

3,500 plus 2,500 brings you to 6,000.

And then newer statistics I think, already placed the number of DUIs to something 4,500. So that’s 7,000 plus already, by the PNP’s own admission.

I think a more recent tally brings the total to 8,000. Now, you know, we can dispute whether the 2,500 killed in police operations are all summary executed but if you read the Human Rights Watch report for example, they cast serious doubt on the legality of these killings.

They look at a, several cases, several dozen instances where the police reported that the suspects resisted and had to be shot. And they said that there was a suspicious similarity in the narratives being put by the police.

So according to their conclusions, it seems that the police are not in fact killing people who actually resist. But are, summarily executing suspects and then making it appear, after the fact that there was a resistance. So that’s the textbook definition of what a summary execution is.

Q: And then there’s another criticism about how the Vice President used palit-ulo in the speech. I mean, I interviewed Sen. Lacson yesterday, and clearly he says that the VP was misinformed or she misunderstood. Because in the speech of the VP, she describes palit-ulo and I’m rephrasing as someone na halimbawa, may hinahanap kang suspect, wala ang suspect doon. Kukunin mo ang pamilya, kung baga matakot ang suspect, lumitaw. That was the speech. But apparently, palit-ulo is something else in police operations. It’s an actual suspect wherein he gives information to catch bigger fish.

Barry: Okay. Yes. Well you know, we won’t dispute the way in which palit-ulo is being used by police. That’s their term if they use it to refer to a suspect, you know, ratting out a higher up, you know, a drug pusher, a street-level drug pusher for example pointing a finger at a drug lord, then you know, that’s something that happens and if their term for that is palit-ulo, that’s something that we cannot dispute.

But, the way that the Vice President used palit-ulo, was not her own invention. It was the way it was related to her by people from urban poor communities whom she met sometime early February.

These people paid the courtesy call to the Vice President, they discussed a number of issues, and one of the issues that they discussed was their very very grim experience with the war on drugs.

They were saying that in the communities where they live, urban poor communities in NCR, in the surrounding areas, the police were actually engaging in this type of palit-ulo.

Where they would come to the community, they would look for drug personalities. And if they could not find them, they would take into custody the relatives of these drug suspects to force the personalities to come forward and surrender.

Q: Would it have helped if the VP for example quoted actual studies, like for example, in talking about the 7,000 summarily executed, she could have quoted from the human rights watch report, instead of making it appear as her own general assumption. You know, I’m just asking. I’m just asking. And then palit-ulo for example, in using that, quote an actual person, use a specific photo, instead of saying, this happens. Because I think the difference is she’s not an ordinary person. She’s the Vice President of the Philippines talking to an international body. If I did it, I would make sure my facts, sourcing, were down pat, you know, unquestionable.

Barry: Okay. Let me answer that, in, with several points. First, well, you know, I appreciate that may be it would’ve been better if there was a greater amount of detail but remember, she was being asked to give a message. A short 6-minute message. She was not there to report officially.

If it was going to be an official report, probably. There would be time, and it would be better if you had the full set of statistics, the full sourcing and so on and so forth. But this was a message.

Secondly, as to the point on the 7,000 deaths. Well, you know, at this stage when every news organization on earth is using 7,000 as a, as the baseline, as of a few days ago it’s already 8,000, as I said earlier.

I don’t think that using 7,000 will require, you know, a complete citation of all sources. After all it’s pretty clear. These are the facts that come from the PNP statistics themselves.

Every news agency both locally and abroad is using them. All, so many other institutions, most recently the Progressive Alliance, a group of legislators from Europe and Asia came out with the statement using 7,000. Senators in the US like Marco Rubio have used 7,000.

Q: Except when you say, you know I’m just challenging this for the discussion, except when you say summary execution. 7,000, then it makes it appear that it’s all police officers that were responsible for the deaths.

Barry: Well, I don’t think that that’s the intention. But remember in international human rights law, when you talk about summary executions, it’s not just actions committed directly by the police. You know, police killing suspects.

It also includes actions killed by organized vigilante organizations, which apparently are being tolerated or are not being acted upon by the police. And you know, according to their own statistics, 4,500 unsolved murders of people killed by vigilantes.

And you know, that’s not something that you can simply brush aside and say are isolated incidents and so on.

It demonstrates some kind of organization. But going to the final point, the palit-ulo. One of the reasons why there was a reluctance on the part of the Vice President to go into detail as to who said this, what communities were affected.

Was the reason, to begin with, the reason why she was approached, and you know, why these people did not go directly to the police was, they were afraid.

And you know, the President himself stated that 40% of the PNP are scalawags.

So you know, given that statistics cited by the President, you can’t really blame ordinary Filipinos from having a certain sense of doubt. If I approach the police, what happens if the person I approach is one of the 40%? A person who will be more inclined to actually…

Q: You see, but then, wouldn’t… You know, she could have quoted that. She could’ve said, no less than President Duterte himself said 40% of the police force are scalawags.

Barry: Well, you know.

Q: You get me?

Barry: I’m…

Q: You didn’t write it.

Barry: Yeah, I didn’t write it.

Q: You get the point?

Barry: But the point is, I see the a, I see that there could have been certain clarifications inserted. But again, on hindsight, it’s easy to actually criticize. It’s easy to actually point out that this could have been better. But my a…

Q: Because the cost is too much.

Barry: Well, that’s true. But the point that I want to raise is, first, she did not really say anything in the speech, which was not true.

Second, she did not say anything in the speech that had not been said multiple times by other people, other institutions, both locally and internationally before. So to say that this particular speech put the Philippines in a bad light is a bit, i think, ridiculous.

Considering the Philippines has been in a bad light for the course of the last few months precisely because of what has been happening.

Q: What about propriety questions. Senator Ping Lacson brought that up. Do you think it was improper for her to be the one to give this speech in this manner? Given that if something happened to the President, she is the constitutional successor?

Barry: Well, she is the constitutional successor.

Q: Kaya nasabihan siya tuloy ng si Leni nag-aapura.

Barry: Well, I think that that’s a pretty unfair statement to make about the Vice President. First of all, I’d like to challenge the link being made between making statements on the drug war, and suddenly wanting to oust the President. I don’t think there’s any connection whatsoever.

Fine, she was elected as vice president and her principal constitutional duty is to step into the shoes of the president if anything happens. Hopefully, nothing happens.

But the thing here is, apart from being the constitutional successor, she, as an elected representative, who went to a campaign, who made promises, who stands on certain principles, is duty bound to actually express her sentiments on important issues.

And you know, her background as a human rights lawyer, her statements during the campaign, made it very very clear, one of the things that she would stand on if elected would be the issue on human rights.

So if you have something happening in our country, which some observers have described as a human rights calamity, can you really expect anything less from a human rights lawyer who is now the Vice President?

I think it’s incumbent upon her, in fact, it is incumbent upon any elected official, to actually lend their voice, to not really, not just criticize but to challenge the administration to take firm steps to address this decision.

Q: You have some supporters of President Duterte who’ve already said that this is part of a longer, it’s a longer plan, a destabilization plot, where the Liberal Party is using the international community as their audience since the president is very popular here. So, how does that resonate with you?

Barry: Even the President himself has actually downplayed the talk of destabilization. He has dismissed this as simply publicity.

He reiterated yesterday that you know, criticism is part of living in a democracy.

So you know, I take heart from that. At least at the level of the President, it is clear in his head that this is part and parcel of living in a democracy.

Q: So the President seems more open to it than his followers.

Barry: Yes. And that’s actually the surprising thing. The person who is supposed to be the most directly affected is actually being more an adult in this case. Vice President Robredo has been very very clear. She has no ambition of being a president.

But she will take her duties as vice president very seriously and that includes her duty to actually speak up for people who have been deprived of their voice. When she talked about palit-ulo for example, that was her lending her voice, lending her stature to people who were too afraid to step forward.

The idea there is hopefully, when, if she speaks out, then may be action would be taken, and that some help would come and this issue would be addressed, but of course.

We wrote to PNP last January asking for documents and statistics about the drug war, also in relation to some of the input that was given to us in her visits.

Q: And you wrote to the DILG.

Barry: The DILG and the PNP. And you know, nearly 2 months have passed and they have not answered. So, may be we are overestimating the seriousness with which some of our agencies treat the VP, which is unfortunate.

Q: Oh. Okay. So none of them actually responded and helped you with numbers and the data.

Barry: None. We sent the letter January 24, it was received January 30 by both the Office of the Secretary of the DILG and the PNP Chief. It’s now March 21, we have not received any response.

Q: No response?

Barry: In fact, yesterday I heard Director General Dela Rosa deny that such a letter was sent. So that prompted us to actually have to present the actual letter, stamped received, to prove that there was in fact a letter sent to his office.

So if he’s, not really not aware, that there was a letter sent, you know, that’s pretty alarming set-up.

Q: Okay. You have, Senator Lacson said, it would do good for the Vice President to apologize at least to the policemen that have died and were included in the number that she had coded in her speech. Or does the Vice President plan to apologize?

Barry: I don’t think that there is plan to apologize right now. Simply because, when she mentions 7,000, I don’t think she was referring at all to the 38 policemen.

From the start, she has been very very supportive of all efforts to actually clamp down on crime and actually clamp down on the drug problem.

And you know, we are very very appreciative of our police officers who have, you know, they put their lives on the line everyday. And those of them who make the ultimate sacrifice are actually heroes in our view.

But that was not what she was talking about here. It was not meant to actually malign or put down the efforts of our police officers. It was simply meant to point out a problem that has actually been identified. That is currently plaguing our country and is causing us no small amount of embarrassment internationally because of the fact that it has actually generated a lot of interest and concern, both overseas and here.

Q: Now you have the House Speaker who reportedly refuses to address her as Vice President.

Barry: [Laughs] Well, you know. At the end of the day, it’s up to individual people whether they will offer respect to a person or not.

If Speaker Alvarez wants to be a child and act like a child, then you know, he’s old enough, I think, to realize whether what he’s doing is right or wrong.

We won’t force him to do anything, we won’t call him out on it. But it’s clear to us that, you know, I think that there is something improper with that.

Q: Strategically speaking, was it was wise for the Vice President to do this?

Barry: Well, I don’t think…

Q: Was the timing right? Considering she’s just, she’s been a critic on so many issues. I’ve interviewed her, I mean…

Barry: Yes.

Q: I mean, few weeks ago. She spoke against the Marcos burial. She’s spoken against already these deaths. In other words, was it, I don’t know the right word because the word isn’t appropriate, was it just wise for her to do this at this point, if she had a longer vision of where she wanted to go?

Barry: Well I think the main consideration in making the statement was not any political calculation. The main consideration was we need to actually tell the truth on this particular point.

We need to actually express a concern communicated to us by people on the ground, who have no other venue to raise this particular problem that they are encountering on a day to day basis in their communities and I think that’s a duty the Vice President takes very seriously.

To tell the truth and more importantly communicate and be the voice for people who are not actually given access, who are not given the time of day by so many

Q: You have Lozano and Robles that are actually asking the House Speaker to endorse their impeachment complaint… What are you going to do with this?

Barry: At the moment we can’t do anything yet. They filed what I think was a letter to the Speaker, I haven’t read it actually.

I only know Atty. Lozano by reputation, he has filed I think 7 impeachment complaints against the past two presidents so you know on that basis, I would like to have a look at the work of this veteran impeachment filer if I can call him that but…

Q: He does look like the former president Marcos…

Barry: Well that is the other angle here. I just feel the need to point out that Atty. Lozano and the other guy who filed with him, is Mel Robles his name?

I don’t know are both KBL members not just supporters they are KBL candidates, they have repeatedly filed their candidacy for the senate under the KBL.

It is clear that they are Marcos loyalists and I can’t help but draw a line between this impeachment complaint and the Marcos camp until and unless you know.

Q: Do you feel that there will be now a more proactive approach to unseating her as VP and putting Bongbong Marcos in?

Barry: Ok let me put it to you this way, if you just look at the contents of the statements being made supposedly as the basis for the impeachment, it can be dismissed out of hand it is really pretty shallow to say that a statement talking about EJK can be a basis for impeachment but what is worrisome here is that you have Lozano who is affiliated with the Marcoses filing this impeachment complaint. You had a few days before, the Speaker of the House, the leader of the institution…

Q: Who does not really support Vice President Robredo. This is not the first time he criticized her.

Barry: Exactly. More than that, he is the leader of the institution, which supposedly will weigh the evidence against the Vice President if an impeachment complaint is filed.

Even before he’d seen a complaint, even before a process has been started, he is already saying that you he think there is a basis for impeachment. So our concern here is how can we expect a fair process in the House when the leader of House itself, who presides over a 266-person majority is already weighing in.

Q: But you cannot be this naive. An impeachment is not fair. I mean come on. When it reaches the Senate then you can ask for fairness but in the House it’s about the numbers even in the US.

Barry: I will both agree and disagree with you Karen. Ultimately it will be a political process, there will be voting but in past impeachments both here and the United States, there was also an adherence to certain legal standards.

In other words, you just didn’t vote immediately. You had to go through some kind of process, you had to have an assessment. Sufficiency in form and substance.

You had witnesses, you had an evaluation, so at the end of the day I would still like to believe that when members of Congress vote, they do so with that in mind.

But now what we are seeing is impeachment stripped away of all the legalities, stripped away of all semblance of process and reduced to pure numbers and pure political power.

And I do not think that that was intended in the constitution. If you look at the Constitution, impeachment is both a legal and a political process because otherwise, even if you say that it is practically true, if you cynically say that it is just numbers then what you have is essentially a hundred elected representatives over ruling 14 million people who voted for the Vice President. That should not be the case.

Q: Last words, how is the Vice President?

Barry: All things considered she is used to this over the course of the past few months she has been the target of so many attacks online and I know you have personal experience with bashing online so she is used to it and she is trying her best to focus on what she thinks is her responsibility.

Today she is in Lanao to attend one of the Angat Buhay projects that she is launching and that is what she has been focusing on the past few months.

At the end of the day despite all the political noise we have to keep our eye on the ball and that is she has to serve her constituents and despite the headlines that these political noise might grab at the end of the day it is not what is important and that is very clear in so far as the Vice President is concerned.

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