Comment

COMMENTS OF THE COMMISSION ON HUMAN RIGHTS OF THE PHILIPPINES ON THE FOLLOW UP REPORT OF THE SPECIAL RAPPORTEUR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS

(dated 29 April 2009)

The Commission on Human Rights of the Philippines (CHRP) is pleased to provide the Human Rights Council of its submission to complement the follow up report of Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Philip Alston.

The Commission continues to independently monitor all branches of government as to their compliance with international human rights obligations and calls for timely and proper action of all actors as proper to their respective mandates. The CHRP notes that all 3 branches of government have initiated policies and programs in the period from February 2007 to the present. Some have made some impact, others are stall, ignored or lacking in substance. The bottomline is that much more remains to be done by the Executive, Legislative and Judicial branches of government.

We take off on the observation reporting on CHRP's serious steps to begin investigation of unlawful killings.

The Davao Death Squad and other suspected EJK Cases

The Commission has initiated a series of investigations on the Davao Death Squad. Going against the grain of public opinion particularly in Davao City, the Commission is still in the inquiry process regarding the pattern of killings in Davao. Witnesses and informants have been coming to the fore and provided the Commission with their statements. However, these witnesses continue to express their reservations in coming out in the open primarily because of the lack of confidence in the justice system and the lack of assurance that they will not be harmed in the process.

Public hearings have also been held on the shoot-outs involving police personnel in pursuit of suspected criminals, wherein police operations do not seem to follow rules of engagement. These are the so-called Parañaque and EDSA Shoot-outs, and the earlier RCBC killings.

Despite assurances from the Armed Forces of the Philippines’ Chief of Staff and the Director-General of the Philippine National Police, there has been mixed cooperation from the various units of the uniformed services displaying a low regard for the legal processes, which could be another symptom of the culture of impunity within such services.

CHRP, in its monitoring mandate, is preparing an in-depth report on the various measures taken by government and civil society to address EJKs. Initial observations include:

There remains a lack of movement in courts on individual cases of EJK (prosecuted as murders). This is a responsibility of the Judiciary, administered by the Supreme Court. In fact, it being one of the core competencies of the judiciary to hear and decide on criminal cases, the timely, fair, and independent trial and issuance of decisions on these cases could fairly be seen as the most significant role of the judiciary, even more than the initiatives on the writs of amparo and of habeas data.
Judges cite clogged calendars, despite a Supreme Court Administrative Order for 60 days continuous trial. Many prosecutors actually prefer these delays because they feel they lack sufficient evidence for convictions. However, these delays, if not accompanied by continued search for evidence by investigators are mere travesties of justice depriving the accused and the victims' families of judicial hearing.
Administrative Order No. 181, which instructs closer coordination of law enforcement and prosecution to respond to human rights cases including EJKs and Enforced Disappearances, has not been implemented and this means an initiative from the top leadership is being ignored by the lead agency tasked to undertake the implementation and monitoring of the International Covenant on Civil and Political Rights.
The Office of the Ombudsman has not prosecuted or independently investigated any new cases of EJK since the Special Rapporteur’s visit to the Philippines in 2007.
Insurgency groups continue to commit their own human rights violations, including kidnappings and killings of civilians and non-combatants, such as teachers and humanitarian workers. The peace process between the government of the Philippines and muslim and communist insurgency groups are at a point where little progress is expected in the short term.

Also, CHRP noticed a rise in a new form of offensive against so-called enemies of the state, in the form of legal harassment, i.e. arrests and detentions without warrant and without filing of charges, filing of cases that eventually do not prosper for lack of substance. Militant groups attribute this strategy to the Inter-Agency Legal Action Group (IALAG) which, to date, has not been abolished. CHRP has issued an advisory regarding this trend and furnished copies to all relevant government agencies.

To ensure complementarity of investigation of cases and development of indicators including harnessing statistics on EJKs and other arbitrary deprivations of life, the CHRP has launched a new database system that is designed to issue reports on a quarterly basis, working towards issuance of monthly updates. This database, unfortunately, is not capable of adapting automatically the data in the previous database and therefore cumulative data including years prior to 2009 will not be possible until a special backwards encoding project is conducted. CHRP also needs technical personnel for this database.

On the Inadequacy of the Witness Protection Program of Government

While the Commission has undertaken witness protection on a case by case basis, the effort is confronted with serious lack of resources and its sustainability. A sustainable budget allocation for such a program has not been provided under the General Appropriations Act.

CHRP has been calling for a credible government witness protection program.

On the Writs of Amparo and Habeas Data

While the Supreme Court has promulgated the writs of Amparo and Habeas Data, current application has been wanting of implementation in respect of the witness protection and remedies to ensure that government can be constrained to present accountability and address allegations of government-sponsored and/or tolerated killings.

Some members of the bench still do not fully comprehend or correctly implement the Writs of Amparo and of Habeas Data. This impacts the strength of the protective orders they could/would issue, e.g., by insisting on using the rules for the Witness Protection and Benefits Program law, rather than the provision under the Writ, the judge will not extend to the witness the urgent temporary protection.

The CHRP is engaged in a partnership with the Philippine Judicial Academy, applying some of the 25 million pesos from the Office of the President, training judges around the country on these two legal remedies to address and prevent extrajudicial killings and enforced disappearances.

A recent issuance of an NGO, Free Legal Assistance Group (FLAG), reported on its preliminary review of the effectiveness of the writ of amparo cases one year after its promulgation. Per such report, the writ remains unutilized or, perhaps, even, mis-utilized.

The case of the Manalo Brothers, is a window to a systematic practice of torture, enforced disappearance and extrajudicial killings in the Philippines. As the brothers stated, they have witnessed other disappeared persons who were also tortured while in detention, particularly the two University of the Philippines students, Karen Empeño and Sherlyn Cadapan. These persons were also said to have been killed and burned on site.

On 26 December 2007, the Court of Appeals, and sustained by the Supreme Court, granted the petition of the Manalo brothers for the Writ of Amparo. The Court required the Secretary of National Defense and the Chief of Staff of the Armed Forces of the Philippines to confirm in writing the current assignment of one of the respondents, as well to produce 'all medical reports, records, charts, report of treatment given to and medicines prescribed' to the Manalos. Lastly, the Military were ordered to produce the list of medical personnel, military and civilian who attended to the Manalo brothers from 14 February 2006 until August 2007.

The Commission, to date, has not received any information on the compliance of government in respect of the Supreme Court's production order.

Meanwhile, on 13 to 15 October 2008, the Commission, joined by Karapatan, conducted an inspection of the area alleged by the Manalo Brothers as a Philippine Army camp where they were held in captivity. Burned fragments of human bones, believed to be that of another disappeared, Manuel Merino, were excavated. The Commission is still evaluating the results of such inspection vis-à-vis the testimonies of the Manalo Brothers.

On Ensuring Command Responsibility for Abuses

The Commission has participated in deliberations of legislative proposals to address Command Responsibility. These are found in the bills on Anti-Extrajudicial Killings, Anti-Torture, Anti-Enforced Disappearance and the Command Responsibility Act. All are still pending in Congress in various stages and not a single bill has reached the bicameral level. These measures contain proposed provisions on command responsibility, orders of battles and other related issues.

HR Legislative Agenda

Proposed Legislative Measures	Proposed Provisions on Command Responsibility, Orders of Battleand other related issues	Status in the Legislature
Anti-Extrajudicial Killings Act	Initially proposed sanctions of the death penalty, but has since been removed owing to objections by the CHRP and Human Rights groups	1 st Reading in both Houses, Technical Working Group Level
Anti-Torture Act		Passed 3 rd Reading in the House of Representatives (as of 6 March 2009), 2 nd Reading in the Senate ( concluded the period of interpellation as of 20 May 2009)
Command Responsibility Act	Enumerating the responsibilities of a Military Commander or Superior and defining the circumstances that warrant the presumption of knowledge by a Military Commander or Superior	Filed in the House of Representatives and is being incorporated in the abovementioned bills.

The Commission, in the exercise of its mandate to 'monitor government compliance with International Human Rights Treaties' and 'recommend to Congress effective measures to promote human rights', has issued a Human Rights Legislative Agenda [Annex A: Human Rights Legislative Agenda]

The Human Rights Legislative Agenda includes strengthening of the government's witness protection program. However, we share the observation of the FLAG such that 'not a single bill amends the penalty for interfering with witnesses' and current proposals deal with anti-corruption witnesses which will have little or no impact in squarely addressing witnesses in cases of extrajudicial, summary or arbitrary executions.

In various issuances, including its recent engagement with the Committee Against Torture, the Commission has urged Government to adopt the Human Rights Legislative Agenda, particularly measures relating to the promotion and protection of the right to life, liberty and security of persons and called on the President to certify the measures as urgent and wield its persuasive powers in both houses of the Legislature to pass the proposals.

With national elections looming in mid-2010, there is an imminent danger that these key bills, which have undergone much of the arduous legislative process, may die on the vine and have to be re-introduced in June 2010.

In addition, the Committee Against Torture has underscored, as proposed by the Commission, the unhampered and unrestrained access to all detention facilities to include those under the jurisdiction of the military. This is because there had been instances where the Commission had been denied entry into detention facilities mostly under the jurisdiction of the military, citing reasons of national security and lack of clearance from the military hierarchy.

With government having demonstrated its ability to quickly pass human rights related bills, especially that abolishing the death penalty, the CHRP urges both Houses of Congress and also the Executive branch to add the Human Rights Legislative Agenda to the LEDAC’s (Legislative and Executive Development Advisory Council) priority list and swiftly pass bills that are consonant with human rights standards and principles, and sign them into law.

The CHRP Charter

There are other concerns confronted by the Commission. These include addressing the recommendations of Mr. Alston. [Annex B: CHRP Comments on Alston Recommendations]. CHRP stresses that a sustainable response to the concerns of independence and effectiveness of Commission as an independent National Human Rights Institution in the Philippines will be squarely addressed with the passage of the CHRP Charter.

The Commission is thankful for the 25 million peso grant from the Office of the President, aimed to initially cover investigation and trainings on extrajudicial killings, enforced disappearances and other human rights violations which were initiated as a result of the Alston visit. The Commission, however, views this as a short term, unsustainable measure. The Commission's national budget share is a mere .02% of the total government allocation. There is a need to increase the operational budget of the Commission and include this increase in the annual appropriations therefore.

The Commission has campaigned for the passage of the CHRP Charter that will primarily provide for the needed strengthened investigative powers of the Commission and fortify its organizational structure.

The Legislature is positively responding to the Commission's strengthening with technical working group meetings in progress in the Senate and the House of Representatives’ Committee on Appropriations recently approving an additional initial funding of 300 million pesos or 6.25 million US dollars either for this year (in addition to its existing budget of 253 million pesos or 5.27 million dollars) or next year, for its implementation. [Annex C: Draft CHRP Charter]

With Congress initially expressing its intent to provide the Commission with prosecutorial powers, the Commission respectfully declined and presented an alternative of elaborating on the quasi-judicial powers of the CHRP in aid of its investigative powers as bestowed upon by the drafters of the 1987 Constitution. With strengthened investigative powers, among other mandates elaborated in legislative proposals, the 'teeth' being sought for the Commission will be provided. Legislators have crafted what has been called 'stand-by' prosecutorial powers for the Commission in the event of inaction or refusal by agencies of the state, particularly, the Department of Justice and the Office of the Ombudsman, to prosecute human rights violations the Commission has endorsed.

To this, we fervently seek the Human Rights Council's unequivocal inclusion of the passage of the CHRP Charter as an urgent measure by Government, to address the unfettered violations of human rights in the country.

Free Legal Assistance Group, 'Implementation of the UN Special Rapporteur's Recommendations to Address ExtraJudicial Executions in the Philippines', 30 January 2009.

Court of Appeals GR AMPARO No. 00001, 26 December 2007 and affirmed by the Supreme Court in GR. NO. 180906, 7 October 2008.

The HR Legislative Agenda utilizes core human rights treaties as basis for the harmonization of domestic laws with human rights standards and principles. The Human Rights Legislative Agenda has been offered to both the Legislature and the Executive to ensure the full protection of human rights through the enactment of laws, primarily looking to the passage of measures safeguarding the rights and ensuring effective remedies on the violations of the right to life, liberty and security of persons.

CAT/C/PHL/CO/2 14 May 2009 Advanced Unedited Version