On March 20, Commissioner Eligio Mallari of the Commission on Human Rights (CHR) announced it had submitted the results of its investigation that recommend the dismissal of complaints against Maj. Gen. Jovito Palparan, former commander of the 7th Infantry Division (ID) of the Philippine army, and several of his men from allegations of committing human rights violations, in particular extrajudicial killings in Central Luzon. Commissioner Mallari cited the “lack of concrete evidence or a prima facie case” against Palparan and his troops to charge them in court. He also cited the improbability of prosecuting Palparan and other officials under the principle of “command responsibility,” arguing that it “is not a subject matter under the criminal law.”
Although Palparan and most of the soldiers involved were exonerated, one of the military men–1st Lt. Elmer Taglinawan–was recommended by Commissioner Mallari to be charged in court after he was positively identified by a witness in one case. Commissioner Mallari, however, did not mention what was the nature of the offence or the name of the complainants and victims to which 1st Lt. Taglinawan should be held accountable in court.
The exoneration of Palparan and his men further exposes the impossibility of seeking legal redress and justice for victims of human rights violations within a country whose legal system is so defective and dysfunctional. Furthermore, it is not at all a “victory for the rule of law” as claimed by the chief of the Armed Forces of the Philippines (AFP), Gen. Hermogenes Esperon, when asked to comment on the commission’s report that dismisses the complaint against Palparan and members of the AFP.
First of all, to exonerate a person or his accomplices for lack of concrete evidence is completely different from a situation where a person and his accomplices have been exonerated because of the absence of vital witnesses, distrust and lack of cooperation of complainants and deficient methods of investigation that do not produce concrete evidence and a strong case to prosecute perpetrators. This latter scenario is prevalent today in the Philippines and is seriously undermining the fabric of the countrys criminal justice system, not only in Palparans case, for cases frequently do not reach court, and victims and complainants lose faith of attaining legal redress as a result of unfavourable decisions at an early stage of an investigation as in this case.
The meaning of the rule of law is measured by how the system of justice functions effectively and efficiently. In a case where a person or his accomplices are exonerated, not because of the high probability of their innocence but because a dysfunctional legal system has indirectly helped them escape from being prosecuted or held to account, is not the rule of law at all. A system which helps deny victims of atrocities any form of legal redress and justice is not a reflection of the rule of law but a collapse of the rule of law. It is a victory for impunity, not the rule of law. It subverts democracy and civilian authority over the military and police. It promotes impunity and deepens the peoples distrust of enjoying any possibility of justice within the justice system.
Secondly, a military official who is exonerated because of the lack of a provision in the criminal law pertaining to command responsibility is not really exonerated nor does it justify the probability of innocence. Rather, such an exoneration indicates that a person was able to escape prosecution because of the lack of effective provisions in the country’s criminal laws. This instead promotes impunity and encourages atrocities by security forces to perpetrate even more barbaric forms of human rights abuses because they know they can easily escape punishment. Commissioner Mallari and the government’s legislative bodies should push for an enabling law or the enactment of laws that clearly define offences and impose penalties for crimes committed under command responsibility.
The absence of this clear provision likewise tolerates atrocities and illegal acts committed by lower ranking security personnel–either the police or military–that were ordered by senior officials whose command or jurisdiction they are under. In this situation, the circumstances through which an officer can be held accountable–he has personal knowledge or ordered his men to commit a crime, he failed to stop the crime despite his prior knowledge, he failed to act because of negligence and incompetence–are extremely difficult to prove. Moreover, even if they can be proven, the possibility of effectively prosecuting them is still difficult because of a lack of proper laws that, once again, deny victims of justice.
Thirdly, Commissioner Mallaris investigation results and recommendations are long overdue. Mallaris report was released seven months after his team commenced an investigation, which included public hearings in Central Luzon, in August 2006. It has further exposed how inefficient the commissions investigators are as they frequently delay the investigation of cases involving the worst types of human rights abuses. The promptness of the investigation is necessary, not only to protect the complainants and witnesses, but also to ensure that those responsible are prosecuted without delay. This, however, was not properly observed by the commissioner in this case. His excuse of holding the release of his report until Philip Alston, the U.N. special rapporteur on extrajudicial, summary or arbitrary executions, completed his inquiry is completely unacceptable and inexcusable.
The Asian Human Rights Commission (AHRC) therefore urges the CHR to either reconsider or reject the approval of Commissioner Mallaris recommendations unless all means are exhausted to ensure that the necessary requirements of producing a strong case, i.e., by encouraging complainants, witnesses and victims to come forward, are ensured. While the AHRC welcomes the statement that the commission “would conduct further investigations should new witnesses come out,” the commission must take proactive measures to ensure that this is done. In addition, witnesses and complainants in the case against 1st Lt. Taglinawan must be afforded protection without delay.
The commission, as a constitutional body with authority to initiate recommendations to Congress, must take effective steps to propose legislative measures that such obstacles as a lack of criminal laws for the effective prosecution of human rights violations, in particular the lack of clear provisions regarding “command responsibility,” be dealt with immediately. The commission, or any other government agency for that matter, cannot excuse themselves of any failure or inability to protect the rights of citizens due to an absence of laws.
