human rights advisories 11-15

On the Handling of Lifeless Bodies of Victims During and/or After a Non-International Armed Conflict

Tri-media reports on the alleged encounter on 15 March 2000 in Tabaco, Albay, between the Philippine Army (PA) and the New People's Army (NPA) and, in particular, the manner of handling the cadavers of the six (6) insurgents who died in the process, prompted the Commission on Human Rights to look into the incident and to determine whether there is any violation to the Philippines' commitment on standing international human rights obligations.

The act of wrapping the corpses of the six (6) NPA members killed during the encounter in worn out sacks and tying each with abaca fibers to a bamboo pole like roasted pigs (lechon), and then carried by two (2) people to military truck at Barangay Oras, is repugnant to the principle of a civilized and democratic society. The mortal remains of a person, lifeless though they be, still deserves respect.

In this vein, the Commission on Human Rights, as an independent national human rights institution, with advisory authority to the government on human rights concerns hereby reminds government authorities, particularly the members of the Armed Forces of the Philippines and those acting under their directives, as well as those within the armed movement, of their obligations under the Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) to which the Philippines is a party.

Article 7 of Protocol II reads:

"1. All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected."

Further, Article 8 of Protocol II reads:

"Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being despoiled, and decently dispose of them."

Respect for human rights and human dignity, as the foundation of freedom, justice and peace, are not shed off nor is to be disregarded even in the midst of armed conflict. Along this line, even the lifeless body of a person retrieved after an encounter, be he/she a combatant or not, deserves due respect from the living regardless of the varied ideologies of the parties to the conflict.

Quezon City, 23 May 2000

On the Treatment of Persons Under Police Custody

Various complaints show that Philippine National Police officer and other law-enforcement agents have been maltreating or torturing persons under their custody. One recent instance is the torture and beating up of suspects of the bombing incidents in Metro Manila while they are in custody for investigation. Some of them alleged that they were arrested without judicial warrant. Some prosecution officials have admitted said maltreatment but merely dismissed them as inadmissible in court. Allegations also have been made on the extra judicial execution of persons under the custody of the police and other law enforcement agents.

In some instances, detained persons are denied visits and/or consultations with any member of his family, lawyers, or individuals authorized by the Commission on Human Rights for consultations.

The Commission on Human Rights reminds all law-enforcement officers of several international instruments on human rights which the Philippines, has ratified. Article 10 of the International Covenant on Civil and Political Rights reads:

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be              segregated from convicted persons and shall be subject to              separate treatment appropriate to their status as unconvicted              persons;

      (b) Accused juvenile persons shall be separated from adults from             adults and brought as speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the       essential aim of which shall be their reformation and social       rehabilitation. Juvenile offender/s shall be segregated from adults       and accorded treatment appropriate to their age and legal status.

Article I of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reads:

"For purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

These human rights instruments are substantially reiterated in the Philippine Constitution and statutory legislation. Article III, Sections 12(2) and 19(2) read:

Section 12 -

(2) No torture force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Section 19 (1) -

(2)The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under sub-human conditions shall be dealt with the law

Section 2 (f) of Republic Act 7438 reads:

Any person arrested, detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his/her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward".

As used in this Act, "custodial investigation" shall include the practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the 'inviting' officer for any violation of law.

Any maltreatment of the persons detained for investigation and of the convicted prisoners is an outright defiance to the Declaration of the State Policy under Article II, Section 11 of the Philippine Constitution, which reads:

"The State values the dignity of every human person and guarantees full respect for human rights."

The Commission on Human Rights respectfully addresses this Advisory to all police officers, law enforcement agents and all concerned on their compliance with the human rights instruments, the Constitution and pertinent legislation.

Quezon City, 26 June 2000

On the Violent Dispersal of Rallyist During the SONA on July 24, 2000

Along the stretch of the Commonwealth Avenue going to the Batasan Complex where the President delivered his State of the Nation Address (SONA) yesterday, 24 July 2000, law enforcement agents violently dispersed groups of activists from sectors of society who were marching towards the Batasan Complex where they planned to converge and conduct their public protest. Television footages dished out enough of the fracas that depicted policemen breaking up peaceful assemblies and clubbing harmless rallyists including women. Whatever reasons the police had for the dispersal of the marchers, no legal niceties could justify the brutalities of some policeman on some marchers who were already in their custody or were cowering or huddling at some corners to avoid the path of rampaging baton-wielding policemen.

This incident is a national tragedy. It defines the sad state of our law enforcement agency and the revenant character of our culture of violence that we thought was stifled 14 years ago at the bloodless revolution in EDSA.

We pride ourselves as a bastion of freedom and democracy. We even exceeded the Americans in our avowals of these ideals. Our Constitution contains more guarantees for the promotion and protection of human rights than the Jeffersonian Constitution of the United States. In the United States, rallyists are allowed to converge and conduct their public protest at the gates of the White House, the official residence of the President of the America who is the leader of the most powerful nation on earth. In our country, it all seemed to be that some public commons are too sacred to be trodded upon or some public servants are too divine to be object of protest.

Our Constitution is a human rights instrument, ensuring every citizen their right to exercise their freedom of speech and expression and to peacefully assemble. Decisional law has decreed that its exercise could not be subjected to prior restraint. When an assembly is peaceful and orderly, and national security, public safety and public health, and the rights and freedom of others including motorists are not prejudiced, it is our considered opinion that the police should not hinder rallyists from going to any public ground to express themselves.

Quezon City, 25 July 2000

On Searches of Persons a Police Checkpoints

Several complaints have been received by the Commission on Human Rights that checkpoints in several places in Metro Manila have been up where police and other enforcement agents search people at random in connection with the campaign against loose firearms and for other purposes.

The police and all other enforcement agencies and the people at large are reminded of the constitutional guarantees of unlawful searches as well as provisions of the International Covenant on Civil and Political Rights on the freedom from arbitrary arrest and the right to privacy.

Article III, Sec. 2 of the Philippine Constitution reads:

"The rights of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall be issued except upon probable cause to be determined properly by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the persons or things to be seized."

Article 9 (1) of the International Covenant on Civil and Political Rights respectively reads:

"Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Likewise, Article 7 of the said Covenant also reads:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honor and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

While the motive of police is a laudable one to apprehend people in possession of unauthorized firearms and other unlawful objects, the practice of putting up police checkpoints might be the subject of abuse and unnecessary interference of the liberty of the individual such as unlawful searches or arrests and also violative of the right to privacy of persons.

The Supreme Court, in several rulings warned of putting up checkpoints or the so-called 'stop and frisk rule' when police stop vehicles or arrest individuals to search for guns and ammunitions or even illegal drugs may be susceptible to abuse of men in uniform. The Commission on Human Rights cautions the police on this advisory. To present such possible abuses, all persons who are unlawfully accosted by the police or law enforcement agents may inform the Commission on Human Rights.

Quezon City, 14 August 2000

On the so-called "Moro Problem" and the Bounty Money for the Capture of the Top Leadership of the Moro Islamic Liberation Front (MILF)

Recently, Secretary Alfredo S. Lim of the Department of Interior and Local Government offered a prize or bounty to anybody who can give information that will lead to the capture of the leadership of the MILF notably, Ustaj Salamat Hashim, Chairman of the Front; Al-Haj Murad, Vice Chairman for Military Affairs of the Front, and Eid Kabalu, the Front's Spokesman. Obviously, this action compliments Government's total war policy against insurgency.

Such a policy is anachronistic and it offends the very concept of the dignity of every human person enshrined in the Philippine Constitution as a state policy (Art. 2(11), Philippine Constitution).

Moreover, this policy pronouncement by Secretary Lim will only serve to dim any prospects for the early, peaceful resolution of the MILF insurgency in Mindanao. It gives the impression that Government's profession of willingness to sit down with the MILF for a peace talk is only a hollow show.

Furthermore, such policy trivializes the so-called "Moro Problem" or the problem of Moro insurgency as an ordinary law enforcement problem or an ordinary peace and order problem that can be considered as a "closed case" with the capture or even death of its perpetrators. The problem has been with us for four centuries and, like a cough virus, it has remained as a sore in the throat, at times mutating into its worst forms that threaten the very stability of the Philippine body politic as it is. The military solution to the problem did not work in the past and it will not work in the present and in the future.

In a Government White Paper issued on March 10, 1987, Emmanuel Pelaez, then chief peace negotiator of the Government Panel during the 1987 Peace Talks with the Moro National Liberation Front and former vice-president of the country and ambassador to the United States of America, acknowledged the human rights dimensions of the problem and declared that government is willing to admit the mistakes of the past relative to the Muslim population of the country, Thus:

"In all frankness, it is hightime that the Christian Filipino majority should rectify more vigorously its serious mistake in regarding the Muslim minority as being somehow inferior in their faith, culture and way of life. For this attitude and prejudice stem from our ignorance of Islam and of the great achievements of Islamic civilization and its contributions to the world as a whole. Moreover, until now many Filipinos do not appreciate the reality that poverty and underdevelopment in the Moro lands are traceable in part to the Moro's nationalistic resistance to Western imperialist powers, to defend freedom and to keep their faith and way of life as a distinctive ethno-religious minority. Similarly, after independence they expended great time and resources to fend off their continuance of universalistic policies of political integration, cultural assimilation and national development that were applied without due regard to the distinctive characteristics of the Islamic and Moro cultures in Mindanao.

With the massive migration to Mindanao of Christians from the Visayas and Luzon and their spread to areas originally settle by Muslim ethnic groups, which government encouraged and facilitated, the Moros felt the increasing loss of their ancestral lands to Christians. This led to the apprehension that their faith, culture and way of life may be endangered as they become outnumbered and as they fall behind economically, socially, and politically.

(Emmanuel Pelaez, "The Empowerment of the Muslim Filipinos", M arch 10, 1987. In Aid Memoir on the Mindanao Peace Talks. The Philippine Information Agency, Manila, May 1987, pp 208-209).

It is therefore in such a context that the problem of Moro insurgency should be viewed and considered. And rightly so. In democratic constitutions the world over including that of the Philippines, the right to self-determination is a recognized human rights. The United Nation's Universal Declaration of Human Rights goes farther with its third preambular statements:

Whereas, it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law.

This is not to pontificate on such an issue in political philosophy. We just wish to bring home the point that the Commission feels in the neck the stricture of a wrong political policy towards the Moro insurgency such as the offering of a bounty money for the capture of the top leadership of the Moro Islamic Liberation Front, among other things.

Quezon City, 16 August 2000