Dear Friends,
The Asian Human Rights Commission (AHRC) writes to inform you that after three years of investigation, the soldiers who tortured a man and set him on fire, have been indicted for torture. The entire process, however, has lacked the transparency the law requires which has contributed to inappropriate delays. It took one year for public prosecutors to conclude there is probable cause and another year for the Ombudsman to recommend charges be filed.
UPDATED INFORMATION: (Based on the documentation by the Task Force Detainees of the Philippines (TFDP))
In our appeal in September 2011, we reported that Abdul-Khan Balinting Ajid, a baker belonging to an indigenous Yakan tribe, was tortured and set on fire after soldiers forcibly took him from his home in Sumisip, Basilan. The soldiers who arrested him were attached to the Special Operation Task Force Basilan (SOTF-B) of the 39th Scout Rangers under its commanding officer, Colonel Alexander Macario.
For details, read our previous appeal: AHRC-UAC-157-2011. For more analysis, read this report: “Special Report: The Philippines’ hollow human rights system” (article 2, Vol. 11 – No. 02-03 June-September 2012, p12 & p50-52.)
On 8 February 2012, a criminal complaint for violation of the Anti-Torture Act of 2009 was filed against the perpetrators. Previously, in January 2013, the Office of the Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) concluded in a Joint Resolution recommending for the prosecution of two military sergeants, a captain and others. They did not, however, include the commanding officers.
In the Philippines, the National Prosecution Service (NPS) is required to submit their findings for review and approval by the MOLEO regarding charges against members of the military, whether or not there is probable cause. In the case of Ajid’s complaint of torture, the Joint Resolution issued by the MOLEO, dated 16 January 2013, confirms the NPS found probable cause to prosecute the accused soldiers.
In their Resolution, the MOLEO concluded:
“WHEREFORE, it is respectfully recommended that respondents SGT. GEORGE AWING, SSGT. ELMER R. MAGDARAOG, AND CAPTAIN SHERWIN WILLIAM S. GUIDANGEN AND JOHN DOES be INDICTED with violation of Sections 4 and 5 of Republic Act 9745 (Anti-Torture Act of 2009) and Art. 235 of the Revised Penal Code (Maltreatment of Prisoners). It is further recommended that CAPT. SHERWIN WILLIAM S. GUIDANGEN be INDICTED with the crime of delay in the delivery of Detained Persons (Art. 125 of the Revised Penal Code).
For lack of participation, the criminal complaint against respondents Col. Alexander L. Macario and Sgt. Edgardo B. Santos is hereby DISMISSED.
The administrative charges against all respondents are DISMISSED, without prejudice to the earlier Decision of the AFP including ongoing disciplinary proceedings being conducted by the Western Mindanao Command involving the same incident.
However, it was only on 17 July 2014, over a year after the MOLEO concluded that the accused soldiers should be indicted, that they were charged at the Regional Trial Court (RTC) in Isabela City, Basilan.
Those charged with violation of RA 9745, under Criminal Case No. 6334 and Criminal Case No. 6635 for Maltreatment of Prisoners were: Sgt. George Awing, Ssgt. Elmer R. Magdaraog, and Capt. Sherwin William S. Guidangen. Capt. Guidangen was also charged in Criminal Case No. 1443 for Delay in Delivery of Detained Persons.
The AHRC is please and welcomes the indictment of the soldiers for violation of the Anti-Torture Act of 2009; however, it is troubling that the commanding officer of these perpetrators, Col. Alexander L. Macario and Sgt. Edgardo B. Santos, have avoided legal culpability for their crime of torture.
The failure to pursue legal action against Col. Macario and Sgt. Santos has undermined the principle of “Command Responsibility” in this case, which is embedded in the Anti-Torture Act. To not hold Macario and Santos responsible for acts of their subordinate soldiers reduces the effectiveness of the State in holding state agents accountable, irrespective of whether the crime was committed under orders from, with full knowledge of, or simple failure to intervene by their commanding officers.
Also, the AHRC is deeply concerned with the lack of transparency in the process of the investigation of this case, both by the NPS and the MOLEO. First, although the case was resolved by the MOLEO in January 2013, it was only made known to the TFDP and families of the victims sometime in June 2014 despite repeated attempts at follow-up.
According to the TFDP, follow-up was conducted on 16 June 2014 at the office of the MOLEO so they could get copy of the Joint Resolution; however, the TFDP staffs were told to return because the MOLEO staffs were still looking for the copy.
When the TFDP obtain the copy of the Resolution, they questioned why, more than a year after the MOLEO resolved their review, no criminal charges were filed. It was only after they questioned the delay that the complaint was filed in court.
Furthermore, while the criminal cases have already been filed, the administrative aspect of the complaint was dismissed by the Ombudsman because their records showed that the Command Post of the Western Mindanao Command of the AFP had already conducted its prior administrative investigation involving the same incident, which lead to the discharge from the military service of all the accused.
Thank you.
Urgent Appeals Desk
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)
