UPDATE (Philippines): A Davao court denies a lawyer and target’s petition for judicial protection

Dear friends, 

The Asian Human Rights Commission (AHRC) deeply regrets to inform you that a Regional Trial Court (RTC) in Davao City, southern Mindanao, has denied a human rights lawyer temporary judicial protection via a Writ of Amparo petition. The court ruled that he failed to prove ‘by substantial evidence’ that the inclusion of his name in an ‘Order of Battle’ – one reportedly made by the military to target people and groups with communist sympathies – poses a threat to his life. This contradicts a recent UN report which notes that many civil society activists in the Philippines are being extra-judicially killed simply for their perceived association with leftists groups

UPDATED INFORMATION: 

In a previous appeal (UAU-013-2009) we mentioned that Carlos Zarate, secretary general of the Union of People’s Lawyer in Mindanao (UPLM), sought protection via a Writ of Amparo on June 16, 2009, as did two of his colleagues, Angela Librado-Trinidad and Lilibeth Ladaga. 

In his petition, Zarate argued that the ‘mere inclusion of the petitioner’s name in the said Order of Battle is not only putting his life in danger, but a clear threat as well to his liberty and security, including that of his family’. The Order (in a PowerPoint presentation) also ‘clearly show that the names listed therein have been branded as ‘enemies of the state”. 

Zarate’s concern for his and his family’s security and liberty was prompted by the murder of Celso Pojas, a peasant activist, on May 2008 – a man whose name also appeared in the list. Other lawyers included in the list (which names 105 people, among them lawyers, journalists, human rights and political activists, physicians, union leaders and religious leaders in Davao City) have been receiving continuous threats. 

However Judge Jose Manuel Castillo of the Regional Trial Court (RTC), Branch 10, ruled that the petitioner failed to prove ‘by substantial evidence, that indeed, his perceived threat to his life, liberty and security is attributable to the unlawful act or omission of the respondents’. He also declared that there was not enough to link Celso Pojas’ murder with the target list. 

Judge Castillo has also argued that even if Satur Ocampo – the member of the House of Representatives who first received the leaked presentation – testified in court, his testimony would be ’empty’ if he could not testify alongside his anonymous source. It would be concluded that he ‘he has no direct or personal knowledge about the authenticity of the subject ‘OB List’, hence, whatever he says about it is hearsay.’ 

This line of reasoning rejects observations of United Nations Special Rapporteur Philip Alston in his report last year (16 April) that stated: ‘Human rights defenders and trade unionists, along with many other civil society leaders, appear to be killed due more to their association with leftist groups than to their particular activities’. Those listed in the OB are accused of collusion with communists. Zarate has since filed a motion asking the same court to reconsider his ruling. 

ADDITIONAL COMMENT: 

The AHRC has expressed its deep concern about the standards being used by the court in denying Zarate’s petition. Here is a case in which a petitioner under threat is being asked to investigate and prove the precariousness of his position, before being granted any kind of judicial protection. 

Foremostly, when the Writ of Amparo was promulgated in September 2007 it was not as a form of criminal action, and ‘proof beyond reasonable doubt’ should therefore not be required. Demanding this kind of evidence is to equate it to a criminal trial. 

Accordingly, in Zarate’s petition the court has argued that testimony from the anonymous ‘conscientious soldier’ who leaked the PowerPoint presentation and its military origins ‘could have possibly put the petitioner’s position in a better light’. But for the court to require Zarate to produce the ‘conscientious soldier’ is impractical. This interpretation of the ‘substance’ of the evidence has undermined if not defeated the purpose of the Writ of Amparo, by weighing it as though it were a criminal trial. 

Interestingly, similar reasoning was used in the criminal trial of the Abadilla Five – innocent men dealt a death sentence for murder – when evidence from a third absent party which could exonerate them was rejected (see various former appeals and statements: UA-182-2007, UAU-029-2008, OLT-002-2009). The court argued that unless the person appeared in court and handed in the evidence himself it could not be admitted. Even in this criminal case it was an impractical demand; the person who had personal knowledge of the Colonel’s murder was part of the illegal armed group who had committed it. He was later killed. 

Finally, despite suggesting that the anonymous soldier testify in Zarate’s petition, no mention was made of ensuring his or her safety. To have this person come forward would itself require a separate Writ of Amparo petition – either that or they would need to be covered by the Witness Protection Security and Benefit Act. Therefore, to require the ‘conscientious soldier’ to appear in court is not practical. 

SUGGESTED ACTION: 

Please write to the concerned authorities, particularly to the court hearing the case, and raise your concerns on this ruling. The court should review the argument of the petitioner and comply with the main purpose of the Writ of Amparo. 

The AHRC has written letters to the UN Special Rapporteurs for human rights defenders and for extra-judicial, summary, or arbitrary executions. 

To support this case, please click here: SEND APPEAL LETTER