Dear friends,
The Asian Human Rights Commission (AHRC) is from today publishing a series ofInvestigation Reports made by the Office of the Ombudsman on cases they have ruled as “closed and terminated” during the last five years. The AHRC is deeply concerned that the Ombudsman is arbitrarily using its power under the Ombudsman Act of 1989 to dismiss complaints on questionable grounds.
DETAILS OF TERMINATED CASES:
First issued in June 2010, this case (AHRC-UAC-074-2010 ) is about the illegal arrest, detention and torture of five members of an indigenous tribe in December 2009 in Dingalan, Aurora province. We wrote to the Office of the Ombudsman asking for them to intervene due to the “lack of transparency and the delay in the filing of any charges (by the Commission on Human Rights) against the soldiers in court”.
In response, Danilo Remonte, graft prevention and control officer of the Office of the Ombudsman for Military and Other Law Enforcement Offices (MOLEO), wrote in his Final Report dated July 6, 2010 (full text of the report), recommending “that the same be considered CLOSED and TERMINATED in so far as this Office is concerned”, after having referred it to the Commission on Human Rights (CHR).
The excerpt of his report is quoted verbatim below:
“Regrettably, this Office cannot accommodate the above request, considering that the law (as invoked by the AHRC), R.A. 9745 has clearly defined the responsibility of the Commission on Human Rights (CHR) and the Public Attorney’s Office (PAO) relative to the filing of the charges against its violators.
Section 11 of the aforesaid law provides that the tasks of providing legal assistance, investigation, monitoring and/or filing complaint for victims of torture or other cruel, inhuman and degrading treatment or punishment are clearly, unequivocably(sic) and unambiguously vested upon the CHR and the PAO. Thus, the previous explanation by this Office are hereby reiterated, to wit:
“The AHRC is hereby advised that while this Office has primary jurisdiction over acts ofmalfeasance, misfeance or non-feasance committed by public officials/employees (as mandated by the Constitution and R.A. 6770 otherwise known as the “Ombudsman Act of1989), the CHR is granted the primary jurisdiction over human rights violations involving civil and political rights as mandated by the Constitution and E.O. No. 163, prescribing its powers and functions.”
COMMENTS: “ADEQUATE REMEDY NOT MET”
The AHRC knows full well that the CHR and the Public Attorney’s Office has the jurisdiction to commence an investigation into complaint of torture under the Anti-Torture Act of 2009(R.A. 9745); however, the CHR’s Investigation Report in this case is itself questionable.
In a statement (AHRC-STM-231-2010), the AHRC examined in detail the CHR’s Investigation Report questioning the merit and credibility of the report. As explained well in this case analysis, the victims have not obtained “adequate remedy “. It is the CHR, who has the power and authority to investigate this case and it is their failure to do so adequately which effectively deprived the victims the possibility of remedy.
Sections 20 (1 & 2) and 23 of the Ombudsman Act of 1989 sets legal requirements as to when a formal complaint can be dismissed by them justifiably. A complaint can only be dismissed, amongst others, when a complainant is able to obtain “adequate remedy in another judicial or quasi-judicial body” or the “matter (complaint is) outside the jurisdiction” of the Ombudsman.
Thus, unless the irregularities and questions as to the merit of the CHR’s Investigation Report are resolved, the principle of “adequate remedy in another judicial or quasi-judicial body”, as amongst the legal justifications for the Ombudsman to invoke in dismissing the complaint, could not apply in this case.
BACKGROUND INFORMATION
Since 2005, the AHRC has been submitting a formal complaint, by way of letters ofappeals, to MOLEO requesting them either to investigate or to intervene in cases ofextrajudicial killings, torture and enforced disappearance, involving members of the security forces.
However, most of the complaints that the AHRC submitted to the Ombudsman have been “closed and terminated” but no clear and sufficient explanations, as required by sections 20 (1 & 2) & 23 of the Ombudsman Act, have been given. The AHRC argues that these casesshould have not been “closed and terminated” because the condition in the Act has not been met.
ROLE OF THE OMBUDSMAN
MOLEO has the power and authority to decide whether or not any members of the security forces–police and the military–could be prosecuted in court for criminal and administrative charges. No members of the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) who are accused of crimes under the Penal Code can be prosecuted in courts without their approval.
The role of the Ombudsman investigators is very crucial at the early stage of investigation process on cases involving security forces. The decision by the National Prosecution Service (NPS), the prosecution arm of the Department of Justice (DoJ), in determining the “probable cause” whether the accused has the case to answer in court, is subject to the review and approval of the Ombudsman.
For more details about the role and functions of the Ombudsman, visit the Frequently Asked Questions (FAQs) page of their official website.
It is for this reason that the AHRC submits complaints, by way of urgent appeals, to the Ombudsman. However, for the last five years or so, most of the complaints that the AHRC have submitted have been “closed and terminated”.
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
