Impunity: A Spreading Malignancy in the Philippine Human Rights Situation
Volume 22 Number 2
Tuesday, 19 January 2010 14:14

by Teodoro M. de Mesa
Chairperson, Philippine Alliance of Human Rights Advocates (PAHRA)
Convenor, Citizens’ Council for Human Rights (CCHR)

Introduction:  Impunity Cutting Across All Human Rights

A leader of the National Federation of Sugarcane Workers (NFSW), Armando Dolorosa, 45 was gunned down by three masked men in Manapla, Negros Occidental on 6 June 2008.  Negros is part of a group of islands called the Visayas Islands in the Philippines.

According to Dolorosa's wife, Janetta, she suspects that her husband's murder had something to do with the implementation of the agrarian reform program. She said her husband and 36 other agrarian reform beneficiaries were given certificates of land ownership award by the Department of Agrarian Reform (DAR) last year, to own a portion of a sugar estate. Mr. Dolorosa was the third local NFSW leader slain in Manapla since 2003, local police records show.

Eric Cabanit, staunch peasant leader since martial law period, was extra- judicially killed in Davao City, Mindanao, while he was marketing together with his daughter.

Kathy Alcantara, a woman leader-organizer of the Pambansang Kilusan ng Makabayang Magbubukid (PKMM) - [National Movement of Nationalist Farmers], was killed mid-morning of December 5, 2006 in Brgy. Gabon, Abucay, Bataan in Central Luzon.  She was just a short distance from an on-going seminar of PKMM of which she was both organizer and resource person when she was gunned down by killers on motorcycles.  People who turned to look when they heard the shots were not in a position to recognize the motorcycle riders who in the meantime had sped away.
Their deaths add to the several hundreds of persons who were known for their open stand and advocacy for fundamental freedoms, social justice and human rights.  They are usually, among others, women and men leaders of people’s organizations and / or cause-oriented groups, farmers, workers, youth, professionals, journalists, church people killed by hooded men.  Characteristics of their deaths are more often than not that they or their organizations have been branded at one time or another by the military and/or police as “enemies of the state” or as “fronts of the Communist Party of the Philippines (CPP) or that of the New People’s Army (NPA), the armed wing of the CPP.  Their deaths unresolved, with no perpetrators brought to justice and convicted, entrench deeper the culture of impunity .  The extreme violation, which is the taking of their lives, underscores the indivisibility of human rights.  The killings, which are classified as violations of civil and political rights, are closely linked if not actually caused by the victims’ struggles for economic, social and cultural rights.  In fact, impunity, especially in extra-judicial killings, enforced disappearances and torture, often presuppose a history of impunity in economic, social and cultural rights.  The cases of Armando Dolorosa, Eric Cabanit and Kathy Alcantara attest to this truth.
Unknown Extent of Impunity

The extent of impunity in relation to the human rights situation in the Philippines, particularly in extrajudicial executions, enforced disappearances and torture, at the moment, can never be completely known, In fact, it is hidden from us because it may be bigger than meets the eye.  Allow me to illustrate this fact through a brief case presentation of the Manalo brothers, Raymond and Reynaldo .

On 14 February 2006, armed men snatched them from their homes; the armed men were looking for another brother, Bestre, believed to be a member of the New People’s Army, a rebel group; as Bestre was not around, the armed men took them instead;
  • For the first three and a half months of their captivity, their captors tortured them almost daily;
  • Their captors kept transferring them from one military camp or facility to another;
  • The writ of habeas corpus were presented twice to the military, but the latter denied holding any or both of the brothers;
  • General Jovito Palparan of the Armed Forces of the Philippines talked to them during their captivity; they recognized General Palparan as they had seen him on television prior to their captivity;
  • During their captivity, they saw and talked to other victims who had suffered the same fate of torture and enforced disappearance; they even witnessed other victims being extra-judicially killed; and
  • After about a year and a half of captivity, they succeeded in escaping.
No less than the Philippine Supreme Court believed the brothers’ account of human rights violations against their persons, over government and military denials. The Supreme Court granted the brothers’ Petition for a Writ of Amparo. The enforced disappearance and torture of the brothers confirm the poor implementation of civil and political rights in the Philippines.

But what is particularly alarming in the brothers’ sworn account is how they saw:

  • Other victims of torture and enforced disappearance, and
  • Other victims being extra-judicially killed.
Consequently, this glimpse that the brothers’ escape gave us into the phenomenon of impunity gives us a staggering, if not horrifying, possibility, of a much bigger number than whatever quantity of documentary evidence could be presented in this or any conference.  Furthermore, the extent to which the perpetrators of these acts would go so as to suppress any evidence can only be called ruthless.  They burn the bodies of victims.   Concomitantly, the climate of fear and the culture of impunity generated by these heinous acts are much more extensive and intensive, as well as in their consequences in the lives of survivors and their families, than meets the eye. Campaigns against insurgencies and terrorism become operations, directly or indirectly, against the whole range of human rights.  Such an environment severely impedes people in effectively participating in their development.

Corruption: A Component of Impunity

Ms. Gloria Arroyo, as both Chief Executive of the Republic of the Philippines and Commander-in-Chief of the Philippine Armed Forces of the Philippines had thrown obstacles on the people’s way to access information that are vital to the latter’s societal and personal lives.  These obstacles, among others, are exemplified in Executive Order 464 , Memorandum 108 , the use of executive privilege , and an Administrative Order 197 .  These legal measures supplement and exacerbate an already existing coercive environment and climate of fear among the people.

The stonewalling to truth allows impunity to dig deeper into the ground because of the State’s unwillingness to give in to demands of transparency and accountability, including loans and economic projects in bilateral and multilateral agreements .  These actions run counter to subsequent principles in combating impunity  as seen particularly in the case of star-witness, Jun Lozada, in the bribery / corruption case pertaining to a communications project between the Philippines and China.  What is pertinent in the present discussion is that Mr. Lozada was abducted and could have been a victim of enforced disappearance had it not been for the persistence of his wife and of the media to know his whereabouts from the authorities.  Access to some witnesses of the abduction and other persons with corroborating information were denied to the counsels of Mr. Lozada.  The project and the persons involved in the deal between became an arena for disinformation, especially the part wherein substantial loans were going to be made and paid for by the Filipino people and consequently would cut through the basic services needed especially by the poor.  The project was announced to have been cancelled by Ms. Arroyo.  It must be pointed that at least 30% of our national budget is automatically appropriated to our external debt.  Corruption thus breeds violations of esc rights of people.
Vilification Campaign: Military Response to Protests Against Human Rights Violations

The vilification campaign  against people’s organizations as “enemies of the State” with consequent harassment and intimidation of the members, the use of the “order of battle or OB” listings reveal a pattern that can only come from a State policy.  Although unwritten and unofficial, the results of the policy are just as deadly for people and disastrous for human rights issues.

Aside from Prof. Alston’s independent find of an “order of battle” list during his official visit as U.N. Special Rapporteur on Extrajudicial Killings, the Report of the EU Needs Assessment Mission, Philippines, has this to say:

…in Region 3, the Brigade level Order of Battle lists 300 individuals.  It was reported to the Mission in that Region that Orders of Battle are amended and updated from time to time.

Officials in the military headquarters in Manila questioned the authenticity of the document.  In the same EU report, an earlier paragraph of the same section on the Armed Forces of the Philippines can give a chilling effect on people’s organizations and even cause-oriented individuals.

The overall counter-insurgency strategy, including military involvement in civil affairs, blurs the differentiation between combatants and non-combatants, thus contributing to the extrajudicial killing and forced disappearances.  On more than one occasion, AFP personnel confirmed that civilians who supported the counter-insurgency through political affiliation, financial support, or legal representation were legitimate military targets.
The People’s Struggles to Break Impunity: Government and Military Responses

The campaigns to expose grave human rights violations have been made and sustained by concerned groups both in the national and international arenas.  Part of the campaigns is human rights education and para-legal trainings to enable communities especially in difficult and/or militarized areas to assert their human rights whether to State or non-State actors.  Efforts are also continuously made to organize formations of human rights defenders and to dialogue with appropriate government officials and bodies towards obtaining a breakthrough against impunity.  People’s diverse actions, on their own and/or in solidarity with others, toward the common goal of breaking impunity elicited different responses from the three branches of Philippine government.

The Chief Executive and Commander-in-Chief of the Armed Forces of the Philippines, for example, praised the work and record of then General Jovito Palparan, Jr.  who was suspected as responsible for the extrajudicial killings done in the areas of his different assignments.

Till now, determined efforts are made to make justiciable many human rights treatises that the Philippine government had already signed and ratified, especially the ICESCR.  That bills formulated to this end have not been certified urgent by the Chief Executive show the rank of importance Ms. Arroyo’s administration gives to the justiciability of human rights.
There is, for example, an absence of laws criminalizing torture and enforced disappearances. This situation is contrary to the international commitments of the Republic of the Philippines under Article 7 of the ICCPR.  The Philippines is a State Party to the Convention against Torture (CAT).  And yet, the FIDH mission in 2007 stated that “…in zones of armed conflict, acts of torture accompany every military operation”.   While human rights formations welcome the signing of the Optional Protocol to the Convention against Torture (OPCAT), its full effectiveness can only be felt when a law is passed criminalizing torture.  At the moment, most if not all human rights defenders do not think one could certainly make a “presumption of regularity” of respect for human rights, especially against torture, when arrests or abductions are made by the military or the police of people perceived to be “enemies of the State”.
Impunity thus could persist due to the absence of laws that translate ratified international human rights instruments into national laws.  Impunity could also thrive through laws that masquerade to protect human rights, such as the new anti-terrorism law, the Human Security Act of 2007, which uses “a misleading semantic” .
In fairness, there are now bills on criminalizing torture and on enforced disappearances which closely follow definitions and provisions in the related international conventions.  Their passage into laws could help in realizing justice for people on the ground coupled with favorable circumstances.
In the meantime, the laws leading to the resolutions of cases of extrajudicial killings and enforced disappearances have been found wanting.  Victims and relatives of victims who pursued justice through the legal system have been frequently frustrated by persons and processes meant to assist them to obtain redress. For example, FIDH keenly observed that: Article 7 of the ICCPR and article 15 of the CAT [to both of which the Philippines is a State party], Section 25 of the 2007 anti-terrorism law, RA 9372, also prohibited the admissibility of evidence obtained through torture or duress.
However, the actual case of the Supreme Court in this domain threatens the effectiveness of this principle.  Indeed, the Supreme Court considers that “the confessant bears the burden of proof that his confession is tainted with duress, compulsion or coercion by substantiating his claim with independent evidence other than his own self-serving claims that the admissions in his affidavit are untrue and unwillingly executed.  Bare assertions will certainly not suffice to overturn the presumption.”
It is in this context that the judicial activism of the Supreme Court led by Chief Justice Puno resulting to the issuance of the writ of amparo and the writ of habeas data must be seen.
The two writs created hope that they would decrease occurrence of EJKs and enforced disappearances.  In fact, initial successes have been obtained.  Some people who were abducted were surfaced.   But then, for fear of retaliation and of the possibility of undergoing another round of harassment and intimidation or even worst, that of being extra-judicially killed, the victims and/or relatives do not pursue the filing of charges against, among others,  abduction, torture and/or illegal detention. In fact, there are some who were surfaced expressed gratitude to the military for “keeping them safe”.  Some even returned with the military to the latter’s camp.
Others who have been brought back home by the military after almost a year of enforced disappearance are even too afraid to even just officially acknowledge that they have been surfaced and are alive.
There is at least one case wherein a writ of amparo was filed against the human rights organization, Karapatan.  The military made use of the family of a youth who was in the protection program of the said organization.  This showed that the military are learning how to make use of both law and intimidation to further entrench impunity against the people.
According to the EU Needs Assessment Mission: “The legal framework, including standard operating procedures, for investigating extrajudicial killing is in place, but seems not to be implemented or applied.”   Furthermore, [a] main obstacle to successful investigation of extrajudicial killings, given by officials within the Philippine authorities concerned, is the unwillingness of witnesses to come forward.”   FLAG had enumerated the weaknesses of the government’s Witness Protection Program in its report to the Special Rapporteur on Extrajudicial Killings.
From investigations to court hearings to protecting witnesses, the Philippine criminal justice system needs to win back the trust and confidence of the general public.
As for the AFP, it is not seen as politically neutral entity in terms of its constitutional mandate.  The current degree of involvement of the AFP in civil affairs is counterproductive in developing democracy, especially among the grass-roots communities, as well as the democratic processes and institutions.  It is hoped that the new human rights office of the AFP, so as not to end up as a mere window-dressing, would provide not only the education and training to officers and soldiers up to the local level on human rights and international humanitarian law but would also monitor their obligations of conduct and of result regarding human rights practices especially in difficult areas.
The posturing of the top officers the AFP and the PNP last February 25 headed by the Chief of Staff, Hermogenes Esperon confirmed themselves as a partisan force for the incumbent political power but apart from the people.  It is doubly alarming because as mentioned earlier, the military has still the general mind-set of the Cold War.
It is thus not surprising that Prof. Alston stated at the end of his initial report:
But I would stress that these recommendations will make little difference unless there is a fundamental change of heart on the part of the military or the emergence of civilian resolve to compel the military to change its ways. Then, and only then, will it be possible to make real progress in ending the killings.
Concomitantly, real progress in the participation of people to realize their economic, social and cultural rights can only be done when the said fundamental changes have set in government and in the military.
Working for the Emergence of Civilian Resolve

Building formations of human rights defenders at the grass-roots level is an imperative and not an option when the rule of law is weakened, and a culture of impunity pervades Philippine society.  Furthermore, impunity in the whole range of human rights persists not because it is formidable, but because civil society, and even human rights defenders are fragmented.

Considering, for example, that the initiative to investigate in the first instance belongs to the State and in circumstances where public powers do not undertake it, that initiative should be taken by the victims, the members of their families and human rights organizations; a human rights perspective enhances the peoples’ analysis of issues and events.  Organizing such formations ensures a sensitized citizenry with appropriate skills and an engaged civil society.  Aware of their dignity as expressed in their human rights, the affected people would exact accountability from all actors , whether state or non-state yet without confusing that the state is the primary duty-holder.

Barangay constituencies had earlier been drawn to a signature campaign to change the form of government without total disclosure of the issues involved.  The Supreme Court later ruled against it.  It was a massive fraud of the Filipino people.  The necessity and urgency of establishing formations of human rights defenders at the barangay/village level had also been highlighted by a full page ad of the Liga ng mga Barangay (League of Barangay’s) calling a week before the Barangay elections for the passage of a bi-lateral treaty between the Philippines and Japan (JPEPA).

In reiteration, fighting impunity should not just be in the realm of civil and political rights, but much more now in the arena of economic, social and cultural rights .   The rights to food, water, electricity and other basic services in this present crisis should be link to the loss of people’s money due to corruption such as the NBN-ZTE deal with China.  The concomitant violations in the economic, social and cultural spheres in the government’s fight against terrorism must also be noted and denounced.  Civilian resolve should not just break impunity, but to reclaim back one’s own and the people’s dignity and obtain justice for us all.

Recommendations for the International Community

1.    Support the efforts towards the emergence of a strong civilian resolve to halt extrajudicial executions and enforced disappearances, such as, through the building of formations and sustained professional development of human rights defenders from the barangay (village) levels to the national level.

2.    Support the interim efforts of CSO to ensure the security and the sustaining of victims and witnesses to extrajudicial executions and other grave human rights violations as well as their families as part of sustaining their courage to break through impunity by providing protection measures, financial and psychological support and access to justice.

3.    Support the development and sustainability of Community as the fifth pillar of the Philippine criminal justice system through the systematic and formal training of human rights defenders as trainers in para-legal work, and possibly be designated as community monitors of the human rights implementation.

4.    Support the “establishment of a transparent monitoring mechanism to oversee the investigation of extrajudicial killings and the prosecution of perpetrators”. This mechanism is to be independent of government and be comprised of constituents from Philippine society, including members of civil society.

5.    Facilitate the implementation of the EU Guidelines on Human Rights Defenders, including the security of Philippine human rights defenders.

6.    Provide technical and financial assistance to lawyers who take up cases in relation to human rights violations, particularly, extrajudicial killings, enforced disappearances and torture.

7.    Persuade or pressure the Philippine authorities
a.    to free immediately all persons arbitrarily detained in the framework of the fight against terrorism, or to bring charges against them and produce them before a court of law;
b.    to stop using civilian auxiliaries of the AFP in the fight against so called “terrorism”, and as a minimum and immediate step, to ensure that these auxiliaries are properly trained in the field of human rights and prevention of torture;
c.    to criminalize torture in domestic legislation in accordance with Article 4 of CAT;
d.    to ratify the International Criminal Court so as to broaden the avenues of redress for victims of gross human rights violations;
e.    to investigate, as pursuant to the Melo Commission recommendations, the allegations of human rights violations against then Gen. Jovito Palparan, Jr., starting with the decision on the case of the Manalo brothers;
f.    to investigate human rights violations by non-State actors and to prosecute them in full respect of the fair trial guarantees;
g.    to extend a permanent invitation to the UN special procedures, and invite in particular the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, the UN Working Group on Enforced and Involuntary Disappearances, as well as the UN Working Group on Arbitrary Detention.
h.    to use a rights-based approach / framework in governance and in development projects.
8. Encourage the Supreme Court to call a Summit on the justiciability of economic, social and cultural rights, especially in the light of recent developments.

9. Call on non-State actors to cease and to desist further perpetration of human rights violations and to strictly abide by international human rights and humanitarian law.

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