The Asian Human Rights Commission (AHRC) is deeply concerned by the unilateral declaration of Abdusakur M. Tan, governor of Sulu province in Mindanao, placing the entire province under a ‘State of Emergency’; and urges the latter to immediately lift the declaration as it is devoid of any legal basis and fails to meet fundamental conditions to which emergency declaration could be invoked: threats to the life of the nation.
In his emergency declaration, Governor Tan, in a Proclamation No. 1 Series of 2009 that took effect in March 31, has invoked Section 465 (vii) of the Local Government Code of (the Philippines) in 1991, authorizing chief executives to “carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and calamities”. The kidnapping of three International Committee of the Red Cross (ICRC) workersa Swiss national, an Italian and a Filipinain January 15, has been invoked as the justification for the declaration. The Filipina has just been released.
In its General Comment No. 29, the Committee of the International Covenant on Civil and Political Rights (ICCPR), to which the Philippine government is a State party, laid out conditions upon which governments should have considered prior to declaring a ‘State of Emergency’:
No. 2 Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed.
Governor Tan’s authority envisaged in RA 7160 is restricted to “man-made and natural disasters and calamities” nevertheless he had invoked this although the condition of the situation to which the ‘state of emergency is trying to address could not be as such. In fact, this incident is not the first occasion of local and foreign nationals being kidnapped in exchange for money or abducted and summarily executed by illegal armed groups there. Thus, to use this as justification to place the entire province under a state of emergency is not justifiable. This incident is rather chronic and not ‘exceptional’.
The AHRC shares the concern of the government, the families of the kidnap victims and foreign governments to which they are citizens; however, in securing their release and in prosecuting those responsible for taking part in the kidnappings, the right to liberty and security of other citizens in the province should also not be disregarded. For Governor Tan to declare a state of emergency while having not been able to declare the same in similar previous incidents of kidnappings seriously puts his judgement in issuing the declaration to a serious question.
Also, under the Guidelines in the Implementation of the Proclamation, it is shocking that the Governor have in fact abdicated any notion of civilian authority by allowing, and never hid in any pretence at all, a police and a military colonel respectively, as signatories as the ‘recommending approval’ to this guidelines. In doing so, this declaration is not only devoid of legality but also tantamount to a ‘de facto’ martial rule. It also perpetuates a deeply feudal and parochial society to which the province has had long history of.
Furthermore, the AHRC is concerned that this declaration had been used by the security forces to justify their illegal acts, in particular in the conduct of arrest, searches and detention of persons who had been arrested; or who are about to be arrested as a result of this emergency declaration. In no circumstances, whether in state of emergency or not, can any security forces justify or exonerate themselves from committing illegal acts; and it could not abdicate the rules on criminal procedure.
The Committee also pointed out that while government could unilaterally derogate its commitment to the ICCPR, it could not abandon the fundamental principles of legality:
The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant
The AHRC is deeply concerned by a report from SALIGAN Mindanaw, a group of lawyers in Mindanao, that: “the arrests, searches and seizures are done away from these checkpoints. One of the detainees is a jeepney (passenger utility vehicle) driver, who was arrested while inside his jeepney, waiting for passengers, one was selling his wares at the market. Most were taken from their homes.
The group also added that those “who were ‘invited’ and who went (voluntarily) to the municipal halls to clear their names but were instead arrested thereat”; and one or two persons who have voluntarily yield their selves to the authorities (after hearing) that they were involved to clear their names were instead implicated to the kidnapping. The AHRC have been informed that of 43 persons arrested, 35 have already been released. The eight who remain in custody were taken to Zamboanga City. Of these, three were police officers, one is a village chairman.
The AHRC therefore urges without any reservation that the ‘state of emergency’ be immediately and unconditionally lifted. The national government, in particular the Department of Foreign Affairs (DFA) must inform the Committee of the ICCPR of these actions to comply with its obligation to ‘acknowledge’ any declaration of ‘state of emergencies’ within its territory in order to enable the Committee to monitor the implementation of this; and, the provincial government must be urge to lift the declaration promptly as it lack legal basis.
The police, soldiers and those who have already and would take part in the arrest and detention of persons must adhere to the provision of Rights of Persons Arrested, Detained or under Custodial Investigation (RA 7438) and Rule 112 and 113 of the Revised Rules of Criminal Procedure (RRCP).
