Nation


10 reasons why Iqbal should not be prosecuted for using alias, according to DoJ Secretary de Lima




Posted on April 18, 2015


PROSECUTING MORO Islamic Liberation Front chief negotiator Mohagher Q. Iqbal for using a nom de guerre would be a form of harassment violating the peace process with the government, Secretary Leila M. de Lima said in a 12-page position paper to the House of Representatives.

“Lost in the discussion is the elementary premise that the use of an alias and non-prosecution for such use, at least while the peace process is alive and ongoing, has basis in the very nature of the peace process and the initial agreements entered into to set the stage for the holding of peace talks,” Ms. de Lima told lawmakers.

Listing 10 reasons why Mr. Iqbal could not be prosecuted, Ms. de Lima noted the peace agreement provides protection to negotiators against criminal charges, at least while talking peace with the government.

1. The use of noms de guerre protected rebels’ families.

Ms. de Lima noted that the practice of using noms de guerre -- war names -- originated in historic France and was adopted by revolutionaries to protect their families’ identities. She said national hero Jose Protacio Rizal dropped his last three names after his brother Paciano Alonso Mercado was linked to the martyred priests GomBurZa.

2. Iqbal did violate criminal law -- but is exempted from arrest for now.

Yet, Ms. de Lima’s position paper did not contest politicians’ assertion that Mr. Iqbal’s use of an alias for legal documents was a violation of Article 178 of the Revised Penal Code and the Republic Act No. 6085, which regulates the use of aliases.

“The use of a nom de guerre in a rebel organization in times of rebellion is not one of the authorized uses of pseudonyms under RA 6085, although it may be deemed a crime incidental to... the criminal charge for rebellion,” Ms. de Lima said, adding there may be a violation for executing documents without stating his real name.

But the Justice secretary said the “clear issue here” is whether he could be prosecuted for the violation.

Ms. de Lima said that since MILF negotiators could not be searched or restrained for rebellion as assurance for their safety, they could also not be held for related crimes including the criminal use of an alias.

But this applies “at least throughout the duration of the peace talks,” she said.

In the aftermath of the peace process, Ms. de Lima said that Mr. Iqbal may be given amnesty -- or hunted down as a rebel when hostilities resume after talks break down.

3. Allowing aliases was a concession on the government’s part.

Ms. de Lima said that the government generally allows noms de guerre “as a matter of safety guarantee and personal security during the peace negotiations, where they surface in the legal arena at the risk of exposing themselves and their families.” She noted that the negotiators are working without guarantees peace talks would be successful.

4. Mr. Iqbal’s other personal details are known to the government since 1979.

She also noted that officials of the MILF Central Committee, including Mr. Iqbal, notified the government of their real names when they were issued passports by the Department of Foreign Affairs (DFA).

“This, in itself, can already be considered as an act of good faith and a confidence-building measure on the part of the MILF officials,” the position paper stressed. In any case, she added that government intelligence agencies had kept track of the group’s officials since it broke away from the Moro National Liberation Front in the late 1970s.

5. The government allows aliases to gain MILF’s confidence.

Ms. de Lima said that no peace negotiations will be possible “if the government continues to arrest and detain rebel negotiators... while calling for peace talks. No rebel organization will trust or believe [in the government’s sincerity] if it keeps on arresting their negotiators, leaders or representatives for committing rebellion or... the use of war names.”

She added there is a “tacit understanding” that the government defers from prosecuting rebels for rebellion or related crimes with the view of granting them amnesty upon the conclusion of peace talks.

Demanding the negotiators’ real names, Ms. de Lima said, is “the opposite of a confidence-building measure,” with the government failing to “live up to its commitments to the most basic political pre-conditions” of negotiations.

6. Users of alias cannot be prosecuted because they are guaranteed protection.

Mr. Iqbal could not be prosecuted because he was provided protection by the March 2000 Agreement on Safety and Security Guarantees signed in Cotabato City.

The agreement said that MILF members could not be restrained, seized or harassed for their involvement in peace talks, except in cases they committed common crimes against persons or property. Ms. de Lima said the pact “effectively binds the government to refrain from arresting and prosecuting rebel peace negotiators.”

The demand by some lawmakers to reveal Mr. Iqbal’s real birth name, she said, may be deemed a violation of the 2000 agreement’s provision against harassment of MILF negotiators. On the part of the Executive, she added that giving in to the demands may be akin to reneging on its commitment to protect the negotiators.

7. All government officials are bound by the peace process commitments.

Ms. de Lima added that all government officials, especially Cabinet officials are bound by the state’s commitments in the peace process. She explained that Cabinet officials could not reveal information or take action without the President’s permission.

8. Parties’ identities are not required for contracts to be valid.

She noted that Article 1318 of the Civil Code of the Philippines did not list the identity of the contracting party as a requisite for a contract to be valid; neither would the use of an alias void a contract under the same provision.

In Mr. Iqbal’s case, she said he could not be cited for fraud to void the contract because the government did not compel him to use his birth name. She added that even if the peace agreement could be voided, it would only happen if the government actually renounces or refuses to ratify it.

9. Mr. Iqbal cannot disown the obligations he entered into.

Ms. de Lima added the principle of estoppel does not allow Mr. Iqbal to disown his obligations or present evidence contrary to his admission that he was using an alias.

“He is conclusively presumed, by law, to have entered into [the peace agreement] and cannot, at some future time, be allowed by any court to falsify it,” Ms. de Lima said.

10. Performing obligations in peace agreements is a political issue, not legal.

Concluding her position paper, Ms. de Lima said that “whether or not either party performs its obligations... is not a matter of legality, but politics.”

A party reneging on its obligations would risk losing the goodwill of the other, she said, adding that in such a case, the MILF would not go to the courts when the peace terms are violated because it would not recognize the government’s authority.

She said parties in peace-building could not be bound by “ordinary legal parameters.”

“The most inherent and essential pre-condition to any peace negotiations is government restraint on any legal action against rebel negotiations that would prevent them from freely performing their role as such,” she said. -- Vince Alvic Alexis F. Nonato