On Applying the Rights-Based Approach (RBA) to Development and Governance

Rationale for RBA

          The Philippine is a state party to about 23 international human rights instruments under the UN system. Among these instruments are the following core human rights instruments:

          It is through the observance of these human rights standards that expanding choices and opportunities of the poor and vulnerable sectors of our society could be realized under the development process.

Need for Rights-Based Governance and Development Management

          The realization of human rights is the goal of all development efforts. Governance manages development. This brings to the fore the importance of consciously and deliberately mainstreaming human rights standards in development and governance.

          The Rights Based Approach (RBA for short) is a mainstreaming process to link human rights to development. As an approach to development, it essentially integrates the norms, standards and principles of the international human rights system into plans, policies and processes of development.

          The RBA is founded on the UN Declaration on the Right to Development and on the various international human rights instruments to which the Philippines is a state party. Being a State Party means that the Philippine government has the primary responsibility, duty or obligation to comply with all the obligations in the ratified or signed treaties/instruments. The Philippine government and all its branches, agencies, instrumentalities and institutions will be able to comply with its obligations as it applies the RBA in governance and development.

          RBA works in governance and development by facilitating the linkage between human rights and governance and development through the following:

b) Translating in operational terms HR principles, concepts, national and international      standards and norms and its integration into the development plans, policies, programs      and delivery processes of governance and development.

c) Programmatically applying national and international human rights standards and norms     into governance decision-making, policy formulation and development, legislation,     administrative issuances, development and fiscal planning, program, project and     enterprise development.

d) Applying the concepts of state obligations, duty holder for both state and non-state      actors, claim holder for people's rights entitlements and progressive      organizational/institutional planning, review, audit and problem and situation diagnosis,      etc.

Role of Commission on Human Rights of the Philippines (CHRP) in RBA Application

          As the national human rights institution, both under the Philippine Constitution and the United Nation system, the CHRP shall perform the following different roles in the application of the RBA:

  The RBA Framework in Development and Governance

As a result of consultations conducted by CHRP with government institutions, civil society organizations and the private sector, the following RBA framework was designed as a work in progress which ideally aims at the total convergence of human rights into development.

          The total convergence means that human rights framework and principles /concepts of rights entitlements and state obligations and normative content of every right are applied systematically and methodically to development and governance processes at the strategic development planning, policy and legislation, administrative functions, programs, service delivery levels.

Function of Regional Offices in RBA

          All offices, both at the CHRP Central and Regional Offices will apply the convergence of human rights and development through a conceptualization and operationalization of their individual functions along human development concerns using human rights criteria and standards.

          The 15 Regional Offices of the CHRP shall be responsible for the orientation of the local councils, LGUs , leagues of local officials, government agencies, non-government organizations and other members of the Civil Society on the RBA, providing advisory functions on the RBA at the local level and monitoring and evaluation of the progress of the RBA implementation at the local level.

          The advocacy should include provision of RBA orientations to RDC Committees, local planners, regional offices, heads and faculty of academic institutions. It is a continuing commitment that should extend beyond 2004 until all duty holder agencies and individuals are oriented on the RBA to development and governance and will be applying RBA in their agency planning, budgeting, programming and policy formulation review.

Advisory of the Commission on Human Rights of the Philippines

          The CHRP mandate under Article XIII 18, states among others the following powers and functions:

          Article XIII

7. Monitor the Philippine Government's compliance with international treaty     obligations on human rights;

9. Request the assistance of any department, bureau, office or agency in the performance of its functions.

          For this purpose, the CHRP calls upon all branches of government, as duty holders through its attached regional departments, bureaus, offices or agencies including all LGUs , SUCs and all education regulating institutions such as CHED, TESDA, and DepEd to extend assistance upon appropriate representation of the Government Cooperation Office of the CHRP before all national government offices to the active and effective application of RBA in development and governance in their respective jurisdictions and as duty holders of specific human rights through any or a combination or all of the following activities:

•  Conscientiously apply the RBA in development planning, programming, budgeting and     policy formulation or review in their respective agencies or offices, in accordance with     the RBA framework and tools.

•  Submit a periodic report as may be asked by the CHRP on RBA application in their     agency/office, through its CHRP Regional office, as part of its compliance with state     obligations under the human rights treaties signed/ratified by the Philippine government.

•  Creatively craft an RBA best practice in their agency or office to serve as model in the     contributions of the Philippine government to the goal of total convergence of human     rights and development in keeping with the human rights treaty obligations.

          To this end, it shall be the duty of all CHRP Regional Offices to provide the following to any regional agency or office or even Civil Society Organizations ( CSOs ) who desire to conduct RBA orientations and apply RBA in their agency/office:

•  RBA user friendly materials to supplement or enrich knowledge gained from RBA     orientations and workshops; and

•  Other technical assistance or consultancy services to enable or capacitate the agency or    officeapplying RBA in development planning, programming, budgeting and for policy     formulation     and/or review in their respective jurisdiction or chosen level of     application.

          Quezon City, 23 June 2004

 

On the No Permit, No Rally Policy

          This is in reference with ordinances passed by key cities and municipalities in Metro Manila pertaining to the "NO PERMIT, NO RALLY POLICY".

          It is the stand of the Commission that such policy is a blatant violation of   the   Constitutional right of every citizen to peaceably assemble and to seek or air grievances which may be expressed through rallies.

          Article   III , Section 4 of the 1987   Constitution   provides:

"No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances."

          This constitutes the fundamental and basic right of every citizen to air their insights to authorities and political leaders on matters involving public concern and interest for the protection of their civil, political and economic rights.

          The right to assemble is guaranteed by the Bill of Rights and is not subject to prior restraint.   Hence, it may not be conditioned upon the prior issuance of a permit or authorization from government authorities.

           No less than the International Bill of Rights promotes respect for the rights to freedom of expression and freedom of peaceful assembly and association, to wit:

          Article 19 of the Universal Declaration of Human Rights states:

" Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

                                                            and

          Article 20 of the Universal Declaration of Human Rights states:

            "Everyone has the right to freedom of peaceful assembly and association"   

          Moreover, the Government of the Republic of the Philippines as a state party to the International Covenant on Civil and Political Rights wherein the following articles are enshrined is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.

           1. Everyone shall have the right to hold opinions without interference.

 2.   Everyone shall have the right to freedom    of   expression;   this   right   shall   include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 3.   The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

 i .    For respect   of   the rights or reputations of   others;

 ii .    For the   protection of   national security or of public order, or of public health or morals." (Article 19 of the ICCPR)

                                                                                    and

          " The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. " ( Article 21 of the ICCPR )

          Further, it was ruled in the case of Primicias vs. Fugoso , 80 Phil 71 and subsequently in the case of Reyes vs. Bagatsing , 125 SCRA 553 that:

          "If the assembly is to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.   But the power of local officials in this regard is merely one of regulation, not prohibition."

          Likewise, BP 880 otherwise known as the Public Assembly Act of 1985 , it is stated that:

          "A permit to hold a public assembly shall not be necessary where the meeting is to be held in a private place, in the campus of a government-owned or operated educational institution, or in a freedom park.   Where a permit is required, the written application shall be filed with the mayor's office at least 5 days before the scheduled meeting and shall be acted upon within two days, otherwise the permit shall be deemed granted.

          Denial of the permit may be justified only upon clear and convincing evidence that the public assembly will create a clear and present danger to public order, safety, convenience, morals or health.   Action on the application shall be communicated within 24 hours to the applicant, who may appeal the same to the appropriate court.   Decision may be reached within 24 hours."  

          Therefore, the burden of showing the existence of a clear and present danger that would justify an adverse action on the application of the permit lies on the mayor as the licensing authority. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test.

          Further, the Commission supports the Constitutional right of every citizen to peaceably assemble to seek redress of their grievances through rallies provided it will not prejudice the public welfare. Any unjustified and unreasonable form of curtailment of this freedom shall amount to a violation of the guaranteed human rights. It may be said therefore that the citizens are merely "utilizing the weapons afforded them by the Constitution, that is, the untrammeled enjoyment of their basic human rights."

          Another point of controversy raised is: In the event that the protesters are not armed with permits, and injuries are inflicted on them in the course of dispersal then should the PNP or other officers be held accountable for the commission of Human Rights violations?

          The Commission stands on the affirmative for the reason that although   dispersal units of the PNP are allowed to use truncheons and tear gas on the protesters provided that maximum tolerance is exercised before these methods or means of dispersal shall be effected. The reasonableness of the means employed shall depend on the circumstances present during the protest because the allowed means of dispersal must be in consonance and relative with the danger which they seek to prevent .

          In the absence of imminent danger to public order, safety, convenience, morals or health, then the use of these means of dispersal is clear violation of human rights.

          Henceforth, whether or not the assembly or rally was effected with permit, then the PNP may be held liable for the commission of any human rights violation on account of the unreasonableness of the manner employed to effect the dispersal.

          The case of Republic vs. Sandoval, 220 SCRA 124, shall find application where it was ruled that:

          "An officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority.

          While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority.

          Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic.

          The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter.

          This court has made it quite clear that even a high position in the government does not confer a license to persecute or recklessly injure another.

          In line with the ruling of this court in Shauf vs. Court of Appeals, 191 SCRA 713, herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages."

          Thus, based from the foregoing decision of the Supreme Court ,   it may be inferred that "any abuse of authority committed by the dispersal units in the exercise of their functions shall amount to human rights violation resulting to liability, may it be criminal, civil or administrative."

            Quezon City, 20 September 2004.

ON THE KILLINGS OF MEMBERS OF BAYAN MUNA, ANAKPAWIS, GABRIELLA and OTHER ALLIED ORGANIZATIONS

No other right is most basic, most enshrined and most fought for in all of the international community, and at the same time most abused and exploited, than the “right to life, liberty and security of persons” ( Article 3, Universal Declaration of Human Rights).

This right precedes from the inherent right to human dignity of every person regardless of race, sex, nationality and any other kind of discrimination.

Under Article 6 of the International Convention on Civil and Political Rights,

“1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

xxx”

The right to life is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation ( Article 4, Ibid.).

The International Human Rights Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces.

States parties should also take specific measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life.

The right to life includes the right of an individual to his body in its completeness, free from dismemberment and extend to the use of God-given faculties which make life enjoyable. (Justice Malcolm, Philippine Constitutional Law, pp. 320-321). The right to liberty, on the other hand, includes “the right to exist and the right to be free from arbitrary personal restraint or deprivation.”

The Commission on Human Rights, on complaints received and on its own, has conducted investigations relating to the systematic killings committed against unsuspecting victims including members of Bayan Muna, Anak Pawis, Gabriella and other allied organizations.

On the basis of the investigation reports (38 reported killings and harassment gathered from the CHR Regional Offices), most of the perpetrators are perceived to belong to the military and/or paramilitary arms of the government. Some of the investigations have been closed for monitoring due to various reasons such as, but not limited to, its consequent filing in court and lack of information due to refusal of witnesses and family members to shed light and furnish details on the incident for fear of their own lives, some have even gone to the extent of transferring residence in order to avoid whatever repercussions the incident may cause them.

Aside from the rights to life, liberty and security of persons, other rights violated are the freedom of expression and association which are foundations of democracy. The right against discrimination is likewise breached.

Since time immemorial, our country has always adhered to the principle that “ours is a government of laws and not of men.” This simply means that no one is abovethe law, “nemo est supra legis.” Not even those who possess power has been given the unbridled right to use (or abuse) it.

No amount of reason will justify the indiscriminate killings committed by any person, much more by the military, against the ordinary and helpless citizen. Not even membership to any group or organization is reason enough to justify this kind of summary execution. In fact, this runs counter to the constitutional guarantee of presumption of innocence unless proven guilty. These summary executions without due process of law has no place in a cultured world.

Bayan Muna is a duly registered political party and the killing of any person by reason of his membership to the same is illegal and inhuman. The Constitution itself guarantees this right to association. The only limitation is that its purposes must not be contrary to law. Bayan Muna’s registration with the COMELEC showed not only its regularity but also its legality.

Again, the military must be the protectors of the State and its citizens and not the oppressors and violators thereof. No one may take the law into their own hands. Otherwise, the justice system and the courts of law will serve no purpose. This is what separates the civilized world from the barbaric one.

“Juris praecepta sunt hec, honeste vivere, alterum non laedere, suum cuique tribuere.” The precepts of the law are these, live honestly, not to injure another and to give each one his due.

This maxim sums up the totality of every man’s duty and responsibility to society in general. Thus Article 19 of the Civil Code provides:

“Every person must in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

A chapter on Human Relations was formulated in the New Civil Code, to present some basic principles that are to be observed for the rightful relationship between human beings and the stability of the social order. The lawmaker makes it imperative that everyone duly respect, the rights of others (Report of the Code Commission, p. 39). Indeed, the said Chapter is calculated “to indicate certain norms that spring from the fountain of good conscience. These guides for human conduct should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice.” (Ibid.)

The Commission on Human Rights totally detests these inhuman practice of summary execution committed against our helpless brothers especially those who belong to Bayan Muna, Anak Pawis, Gabriella and other allied organizations.

If this arbitrary taking of precious lives would continue without being restrained by the government, worse if the killings were done by the government itself, it will not be long when the democracy fought for by our heroes slip our hands and we will be ruled by chaos and anarchy.

The conduct of an inquiry specifically relating to this issue could not be on a more better time. A stop must be placed on this series summary execution committed by those who think they are above the law. Violations of these kind deserves the most severe punishment to serve as deterrent against those who, in the future, may be tempted to take the law into their own hands.

We call on the government, especially the PNP, the DND and the AFP, to conduct the necessary investigations regarding these killings and to report violations covering the same. Further, we ask that these law enforcers furnish copies of the said investigations to the Commission on Human Rights.

Sadly, the reported offenders belong to their ranks. We remind them, however, that their primary duty under the 1986 Philippine Constitution is the “protection of the people and the State” (Section 3, Article II). While the Armed Forces may be tempted to feign and simulate the truth or to put the law into their own hands in order to protect and show loyalty to their ranks, we say again that their paramount duty is to the welfare of the citizens of the State and to the rule of law.

Finally, under the same Article II, specifically under Section 11 of our Constitution, it is stated that,

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

 With this in mind, no justification will rationalize these indiscriminate killings against members of Bayan Muna, Anakpawis, Gabriella and other allied organizations whose groups are considered legitimate under Philippine Laws.

Quezon City, 8 July 2005 .

 

ON HUMAN RIGHTS VIOLATIONS COMMITTED BY THE CAFGU AND OTHER PARA-MILITARY GROUPS AGAINST INDIGENOUS PEOPLES

 Introduction/ The Philippine Situation

The number of human rights violations committed by the military and paramilitary groups specifically against our Indigenous Peoples, as recorded in the Regional Offices of the Commission on Human Rights, has rapidly increased in the past years. This deserves our utmost attention.

In Region XII, the most pressing human rights issue is the armed conflict between the government forces and the Moro Islamic Liberation Front (MILF) in Liguasan March Area, known as the Buliok Complex situated in the Municipalities of Pikit and Pagalungan, province of North Cotabatao and Maguindanao. The sectors affected are the children, women, youth, internally displaced people and Muslims. It was gathered that there was displacement of about 6,583 families or 39,498 persons. Some stayed in the government centers and others sought shelter among their relatives who are not affected by the armed conflict. Some houses were burned in Barangay Galigayanan, Pikit, Cotabato in the course of the intense fighting between government troops and the MILF. The people lost their livelihood and others lost their livestocks, working animals and harvest. The school children in the affected areas stopped going to school. Women, children and the elderly suffered poor health condition. Water supply was almost not available and food rations from the concerned government line agencies were non-accessible.

The areas particularly affected are that of Sultan Kudarat, Maguindanao and Saranggani Provinces. Among the problems identified are the exploitation of the IPs ancestral domain perpetrated by some unscrupulous individuals/groups. One case is that in Datalbao, Columbio, Sultan Kudarat. The B’laan natives of Sition Lam-alis were reportedly harassed, illegally arrested and detained by the military soldiers. Their properties were looted after their houses were forcibly entered into. The natives were accused of being NPA guerillas. Allegedly, the IPs built a bunkhouse for the rebels. Some of the natives were forced to admit that they were NPAs for fear of death. The villagers admitted though that once a month, the NPA guerillas pass by their village but only to rest under the trees for a couple of minutes after which they leave again. Sometimes they asked for food, and if there is nothing, they just leave. The instant case was already referred to the Office of the Military Ombudsman, recommending immediate indictment of the responsible elements of the military, should prima facie case exist. Aside from investigating and providing legal assistance, the Region also conducted dialogues among the concerned parties and some awareness activities on the rights of Indigenous Peoples. The B’laan village in the said area has already been declared as “Zone of Peace.”

In Region IX, the continuing internal armed conflict hostilities resulted in wanton and indiscriminate killings, ambuscades, unlawful seizures and searches, unlawful arrest, social unrest and economic instability. The victims of these atrocities were the most vulnerable sectors of society – women and children, the peasants, the fisher folks and the elderlies. In the areas of armed conflict, economic empowerment was limited. There was inadequate delivery of basic health services and protection, and education of the children and youth was disrupted. It also resulted in child labor due to the need to augment the family income for subsistence.

In the Cordillera Administrative Region (CAR), a delegation of 40 persons from Barangays Mainit, Dalican and Guinaang, Bontoc and Belwang and Betwagan in Sadanag, all in Mt. Province , complained to their mayor that three of their rice granaries have been forcibly entered and ransacked by the Philippine Army Units operating in the area. They also complained that old men pasturing their livestock were fired upon, illegally detained and interrogated and their belongings searched on the suspicion that they were NPA supporters. During the dialogue, the complainants said that their carabaos died due to bombings and more of their cows and carabaos are missing. The peanuts, beans and rice have been left unharvested and rotting in their fields. For over a month, residents were forced to stay at home, resulting in the delay of their agricultural calendar.

Reports from the Cordillera Peoples’ Alliance (CPA) claim that operations of the 54 th IB and the Reconnaisance Group harmed civilians in Bontoc and Sadangan towns wherein, multiple incidents of harassment and illegal arrest have terrorized the residents of the town.

In Region IV, a specific area in Southern Tagalog, has been a hotbed of insurgency and of social unrest. This is not because there are mountain ranges where the NPA rebels take refuge from attacks by the military. To counter the insurgency, four (4) battalions of the AFP were deployed in the area, not to mention the paramilitary units called the CAFGU Active Agents (CAAs). Charges of militarization have been hurled against the military such as the celebrated case of the killing of Eden Marcellana and Eddie Gumanoy where the suspected killers were alleged members of the military. On the other hand, the military blames the NPA of killing farmers and rebel returnees.

In the Caraga Region, a member of the Indigenous Peoples group who is also a barangay captain of Lanuza, Surigao del Sur, lodged a complaint for harassment and grave threats against the Battalion Commander of the 62 nd IBPA. Unfortunately, the unit is now based in Catbalogan, Samar . CHR is still in the process of completing its investigation but through its intervention, this office was informed that the Battalion Commander was already relieved.

The militarization of some areas contributes to the increase in number of human rights violation. Military men are deployed in the following areas: Aurora Province ; Nabuclod, Floridablanca and Porac, Pampanga; and Doña Remedios Trinidad, Bulacan.

The Indigenous Peoples in the provinces of Bukidnon and Lanao del Norte are situated no differently. Issues such as war conflicts between the lawless armed elements and the government armed forces prevail.

Thus, because of these reasons, rural dwellers migrate to the urban centers to find a place in the sun or for a greener pasture or scamper for their family’s safety from the ensuing firefight between the lawless armed elements and the government armed forces.

The basic human rights issues involved are the right to life, liberty, dignity, security, food, water housing, health and education.

Failure of peace talks, dialogue and ceasefire agreement and lack of security for evacuees result in more IP evacuation and displacement. IPs are often victims also to forced recruitment of CAFGUs/NPAs and tribal forces and massacres, abduction, kidnapping and threats.

The Stavenhagen Report

 This miserable plight of our cultural minorities is further bolstered by the so-called “Stavenhagen Report” submitted by Mr. Rodolfo Stavenhagen, Special Rapporteur of the United Nations, who visited the Philippines in December, 2002 specifically for the purpose of knowing the situation of the Indigenous Peoples in the Philippines .

The said report gave an account of the current situation and condition of the indigenous peoples in the Philippines , the measures being undertaken by the government in protecting their rights as well as specific recommendations therefor. The basic issues and/or human rights violations surrounding the indigenous peoples were found as follows: rights to ancestral domains, ‘‘development aggression,’’ and militarization.

 The Report stated that:

“These activities (economic development activities such as but not limited to quarrying and mining) are often carried out without their prior, free and informed consent, as the law stipulates. Communities resist development projects that destroy their traditional economy, community structures and cultural values, a process described as “development aggression.” Indigenous resistance and protest are frequently countered by military force involving numerous human rights abuses, such as arbitrary detention, persecution, killings of community representatives, coercion, torture, demolition of houses, destruction of property, rape, and forced recruitment by the armed forces, the police or the so-called paramilitaries, such as Civilian Armed Forces Geographical Units (CAFGUs). The militarization of indigenous area is a grave human rights problem, as members of indigenous communities are sometimes accused of rebellion or engaging in “terrorist” activity. In the context of the armed conflict that still prevails in the countryside, indigenous communities and organizations are often victimized and their human rights abused.

 When indigenous peoples were involved in counter-insurgency operations they suffered indiscriminate firing, dispossession and destruction of their property, food blockades, illegal detentions, physical assaults, harassment, torture and threats. Such incidents have been reported in various parts of the country.

Special mention must be made of CAFGUs set up by the army in numerous indigenous municipalities, whose semi-military activities often tend to divide local communities and set one group against another. The Under-Secretary of National Defense informed the Special Rapporteur that these units should be considered as reserve units of the armed forces, which occasionally carry out military activities when the need arises. However, indigenous peoples reported that these are not regularly trained military units and that their objective was to control the political and social life of local communities, in disregard of the latter’s traditional customs. They reported that divisions among indigenous peoples were created by a tactic whereby the military actually chooses the community leaders (Datu) in order to manipulate and control the community. They asked that CAFGU’s be removed from their communities because they do not carry out any beneficial activity.”

The Report includes details of the information gathered and those submitted by various non-governmental agencies concerned with the monitoring of these indigenous peoples.

Accordingly, as part of the recommendations, Mr. Stavenhagen, in his report said:

“Given the severity of the various alleged human rights abuses and the divisive effects on indigenous communities caused by irregular military units or paramilitary groups, the Special Rapporteur urges that CAFGUs be withdrawn from indigenous areas altogether, within the framework of national programme to demilitarize indigenous peoples’ territories. Furthermore, the Special Rapporteur recommends that the Government of the Philippines take maximum caution to protect indigenous peoples’ rights during its military operations, in accordance with international humanitarian standards.”

 International Instruments Relating to Human Rights and the Proper Deportment of law Enforcement Officials

 The world community, while acknowledging each State’s necessity of maintaining a strong national military arm, recognizes the possibility of abuse coming from the military ranks. Several International Instruments addresses this issue in order to prevent human rights violations especially to those members of the community who are the least able to protect themselves.

The International Bill of Human Rights consisting of, among others, the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the International Convention on Economic, Cultural and Social Rights, to which the Philippines is a signatory, clearly mandates all member states to respect the human rights of all persons without discrimination of any kind. Thus, whether you belong to the minority or the so-called civilized society, everyone deserves equal protection and treatment before the law.

The rights enshrined in the abovementioned International Bill of Rights are, inter alia, the rights to life, liberty, security of persons, equal protection before the law, due process, privacy, of movement and to freely participate in their cultural life. The rights against discrimination of any and all kinds, slavery, torture or to cruel, inhuman or degrading treatment or punishment, arbitrary arrest are likewise protected.

More specifically, under the Code of Conduct for Law Enforcement Officialsadopted as early as December 17, 1979 , the following were pronounced as basic principles to be observed:

Article 1

“Law enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.”

Article 2

“In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.”

• The human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention on the Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.

Article 3

“Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”

Article 5

“No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”

In the same vein, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted by the General Assembly on August 27, 1990 contains the following guidelines:

General Principles

Principle 4

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

 Principle 5

Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

• Exercise restraint in such use and act in proportion to the seriousness of the offense and the legitimate objective to be achieved;
• Minimize damage and injury, and respect and preserve human life;
• Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
• Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.  

Principle 8

Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.

Special Provisions

Principle 9

Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

The Armed Forces of the Philippines is the Protector of the People and the State

At the national level, no less than the Philippine Constitution enshrines, under Article II, the following as its declared national principles,

Section 3

“Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.”

Section 4

‘The prime duty of the Government is to serve and protect the people. xxx”

Further, the Philippines , under the same Article of the Constitution, adopts the generally accepted principles of international law as part of the law of the land.

Recommendations

The current state of affairs of our indigenous peoples is already appalling as it is. Violations of their human rights aggravate their condition and endanger their respected recognition transcending to the Filipino national cultural heritage. It is stressed that indigenous peoples are human beings. The protection of their human rights should be the principal consideration akin to respecting the nation’s identity and the Filipino’s being.

Like all civilians, the indigenous peoples fall prey to violations in the government’s efforts to put a stop to terrorism and insurgency. The sufferance of our brethren are by no means measurable because of oppressive acts amounting to their being marginalized as a sector of our society and resulting to the violations of their human rights. This simply has no place in a civilized society. The Commission on Human Rights totally abhors this practice.

This calls for national action. All sectors must cooperate in order to obviate the violations committed against our brothers. However, the Commission on Human Rights as well as the other non-governmental organizations can only do so much.

We call on the Armed Forces to help in realizing this objective. A review of the military operations, especially those conducted in the mountains and by the CAFGUs, is highly called for. CAFGU activities must be monitored and evaluated. Safeguards must be set in place in order to protect the human rights of our indigenous peoples. Violations must be reported and properly addressed. Violators must accordingly be punished.

The use of force by law enforcement officials should be exceptional, the principle of proportionality of must be observed and that the use of firearms be considered as an extreme measure.

If we don’t give the protection and respect due our indigenous people today, we are only to blame if they will no longer be there to receive our protection in the future.

12 September 2005 .

“ON THE PROTECTION OF HUMAN RIGHTS AND THE DECLARATION OF THE STATE OF NATIONAL EMERGENCY”

On Friday, 24 February 2006 President Gloria Macapagal Arroyo issued Proclamation No. 1017 Declaring a State of National Emergency.

The Proclamation cited unrestrained political opposition “engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004,” and invokes Article 2, Section 4 of the Constitution which provides that “the defense and preservation of the democratic institutions and the State is the primary duty of Government.”

The 1987 Constitution created an independent Commission on Human Rights with the mandate to ensure that the state indeed “values the dignity of every human person and guarantees full respect of human rights.” (Article II, Section 11, 1987 Philippine Constitution)

The Commission, in the exercise of this mandate, issues this advisory to remind the Government and the general public of the pertinent provisions of human rights treaties to which the Philippines is a state party. In particular, the Philippines ratified on 23 January 1987 the International Covenant on Civil and Political Rights.

The Philippine Government is legally obligated to comply with its provisions, as follows:

“ x x x

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (ICCPR Art 2, Sec. 1).

To ensure that any person whose rights or freedom as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity (ICCPR Art. 2, Sec. 3a). x x x”

Recognizing that there are indeed situations when a state is allowed to derogate from a part of its obligation to the ICCPR, Article 4 provides:

• In time of public emergency which threatens the life of the nation, and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
• No derogation from articles 6, 7, 8 (par. 1&2), 11, 15, 16 and 18 may be made under this provision.
• Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made through the same intermediary on the date on which it terminates such derogation.

In plain language, the ICCPR proscribes (or prohibits) derogation from the following rights:

Article 6 The Right to life: No arbitrary deprivation of life, duty to investigate state killings, duty to punish offenders for state killings, duty to protect persons from killings by non-state actors, Death Penalty for the most serious of crimes, right to seek pardon, commutation, no imposition for death sentence for minors, no execution for pregnant women, no delay in abolition of the Death Penalty.

Article 7 Prohibition of torture or cruel, inhuman, degrading punishment or treatment: all persons deprived of their liberty must be treated with humanity and respect for dignity or human person, no medical or scientific experimentation without valid consent, no justification or extenuating circumstances may be invoked to excuse torture, cruel, inhuman, degrading treatment or punishment.

Article 8 Prohibition of slavery, slave trade, servitude, forced or compulsory labor: Slavery occurs where one human being owns another that the former can exploit latter with impunity, Servitude refers to other forms of egregious economic exploitation or dominance or ‘slavery – like practices, Force or Compulsory Labor defined as ‘all work or service which is extracted from any person under the menace of any penalty and for which he has not offered himself voluntarily.

Article 11 Prohibition of imprisonment because of inability to fulfill a contractual obligation: no imprisonment for private law civil obligations due to ‘inability’ which indicates incapability rather than unwillingness.

Article 15 The principle of legality in the field of criminal law: prohibition of retroactive criminal laws, no crime except in accordance with law or nullum crimen sine lege, no punishment except in accordance with law or nulla peona sine lege, no punishment under extremely vague laws.

Article 16 Recognition of everyone as a person before the law (a person’s humanity must be legally recognized).

Article 18 Freedom of thought conscience and religion (freedom to adopt a religion or belief of his choice, freedom to manifest individually or in community with others in public or private, in worship, observance, practice and teaching, freedom to manifest one’s religion or beliefs subject only to limitations prescribed by law and are necessary to protect public safety, order, health or morals or fundamental rights and freedoms of others).

The fundamental rights of the Filipino People cannot be overemphasized. These rights must be in the context of the Universal Declaration of Human Rights which provides:

“x x x

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society (Art. 29, Sec. 2).”

This is of paramount importance for the system of protection for human rights under the ICCPR. While it allows the unilateral derogation from a part of its obligations thereto, the measure of derogation must be of an exceptional and temporary measure. Government must consider primordial, even in a state of emergency, the fundamental rights of the Filipino People. Thus, it must be subject to a specific regime of safeguards where the restoration of a state of normalcy must be the predominant objective.

The Commission on Human Rights urges the Philippine government to manifest its commitments by demonstrating its compliance to the obligations set forth in the said Covenant.

Done in Quezon City, Philippines on this 27 th day of February 2006.

Joseph, Schultz and Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2000, pp 109 - 137
Human Rights Committee General Comment No. 20 adopted at its 44 th Session, 1992
Joseph, Schultz and Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2000, 199
Ibid., p 198-9
ILO Convention No. 29 on Forced and Compulsory Labor.
Joseph et al, p 201
Nowak, CCPR Commentary, quoted in Joseph, Schultz and Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2000, p 342
Joseph, Schultz and Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2000, pp 201-2
Human Rights Committee General Comment No. 22 adopted at its 48 th session, 1993
Human Rights Committee General Comment No. 29 adopted at its 1950 th session, 2001