The criminal justice system of the Philippines is rotten

Philippines desk, Asian Human Rights Commission, Hong Kong

Why do victims and witnesses do not come forward to file charges or support cases in court after shootings, assaults and other serious crimes in the Philippines today? Their unwillingness to lodge complaints, support prosecutions or otherwise act to obtain justice speaks to the total lack of confidence in the country’s rotten criminal justice system.

Impunity is written large across the face of criminal justice in the Philippines: perpetrators of killings, torture, abductions and other gross abuses have easy assurances that they will get away with whatever they have done. And where these persons are themselves a part of the police, military or armed groups working on their behalf, impunity is all but guaranteed. Little wonder that attacks are carried out in broad daylight and in public places-a crowded market, the front of the victim’s home, during a church service-by men who don’t even bother to conceal their faces or identities. They know full well that they will never be arrested; the victim’s family may even be too terrified to admit seeing the perpetrators’ faces. Where they do, some innocent persons can easily be found to take the place of the actual offenders. Either way, the lack of witnesses and other evidence together with disinterested and primitive investigating mean that few cases ever reach full trial in the courts.

Flawed and misguided criminal investigations
The police are the first and biggest obstacle to victims and their families obtaining justice in the Philippines. Where family members and witnesses come forward, they often find that police investigations contradict their versions of incidents. Police investigators sometimes make premature pronouncements about the motive for a killing and its cause, flatly rejecting alternative suggestions, particularly where state officers or persons allegedly connected to them are among the possible suspects.

Take Enrico Cabanit (story 46), who was killed on 24 April 2006. The police did not submit the victim’s body for postmortem examination; police investigators later insisted that the failure to conduct an autopsy did not violate police procedures. And although they conducted a crime scene investigation, the police failed to collect and secure several pieces of physical evidence-including empty bullet casings. There are no photographs of the fresh crime scene as the camera used was later found to have been broken. After the victim’s family complained to the National Bureau of Investigation attached to the Department of Justice, Cabanit’s body was exhumed and it was found that “two fatal wounds found in the head were caused by penetrations of a .45 caliber ammunition”, not 9mm as the police had reported. Despite this conclusion, Police Intelligence Chief Wilfredo Puerto has stated that the case is already closed as the gunman whom the police maintain shot Cabanit was himself killed a month later. Despite the NBI’s findings having contradicted their own conclusions, the police have not moved to reinvestigate or charge any other persons with the killing.

A police crime scene investigator walks by the body of a slain congressman in Manila.
[Photos: REUTERS/STR News]

When Alberto Yadan (story 12) was murdered on 6 December 2006 in Batangas, municipal police gathered empty casings and hauled his dead body into their vehicle, to hand it back to his relatives. Neither a proper crime scene investigation nor postmortem was conducted. They arrested Melchor Bataller in the same day, reportedly without any warrant, as he was said to have threatened Yadan and his family prior to the killing. The absence of evidence upon which to make the arrest and the wrong procedure of arrest both undermine the credibility of the case. Not only is it possible that Bataller is innocent and the charges against him are unwarranted, but even if he is the actual perpetrator, the case could be dismissed by the court on grounds of the irregularities in investigation and arrest.

The arrest and torture of ordinary persons in order to have them confess to crimes they did not commit is common in the Philippines. This is what happened to 11 teenagers in Buguias, Benguet on 14 February 2006 (story 105)-two of whom were minors. Police arrested them without any warrants or witnesses to their alleged crime: attacking a military camp and killing a soldier. They were not told why they were being arrested or given access to lawyers. While under police custody, they were beaten on the genitals and electrocuted. While at the provincial jail, one was almost stabbed in an attempt on his life by a fellow inmate; jail guards who had been informed of threats against them had made no special arrangements for their protection. No effective investigation has ever been conducted into the attack to determine who was behind it: the victims suspect that it was in retaliation to their filing of criminal charges against the police and military. The victims were released by a court on December 20 for lack of evidence. They are now uncertain as to whether or not to pursue their complaints against the police and soldiers; they fear for their lives if they proceed, are under pressure from the accused to withdraw the case, lack confidence in the country¡¦s rotten criminal justice system, and have little money for litigation.

Whereas effective investigation in an ordinary criminal case is difficult to obtain, it is all but impossible where policemen are themselves among the accused. After Gerardo Cristobal survived an ambush allegedly by policemen attached to the Imus police station in Cavite (story 44), colleagues of the suspected perpetrators investigated the case and instead accused Cristobal of attacking the police. They filed charges against him in court despite complaints of bias from the victim, whose testimony was not investigated. The charges were thrown out, but no further inquiries were conducted. The police suspected of the attempted killing have never been investigated or charged.

Since Cristobal’s colleague Jesus Servida was subsequently shot dead in the same municipality, his family has had little faith in the possibility that they will ever obtain justice. The police did not bother to cooperate with them during investigations and have not kept them informed of their work. The family found out through the media that the police had produced a sketch of the alleged killer.

Police invariably fail to involve the family of a victim in their inquiries, often to the detriment of a case. After concluding their investigation into the murder of husband and wife George and Maricel Vigo (story 34), they filed charges against unidentified members of an illegal armed group. Relatives of the victims accused the police of working haphazardly and failing to interview key witnesses, who had gone into hiding. Requests for new investigations were ignored as the case was ¡§closed¡¨ by virtue of it being in the court, despite the fact that the actual identities of the gunman and his accomplice had not been established.

The failure of police to work with victims’ families is most glaring in cases of enforced disappearance. In practice the police do little or nothing to assist persons searching for abducted and missing relatives. Only where a body is recovered do investigators go through the routine of making inquiries and completing paperwork for the purpose of identifying the deceased, if not the killers. Complaints of disappearances go no further than the daily logbook, again particularly if the police are themselves the accused, such as when they detained five persons on 28 April 2006 (story 89). Relatives of the five who went from one police station or army camp to the next were repeatedly told that they were not in custody there. Days later it was revealed that they had been in police custody, and allegedly tortured, all along.

Criminal investigation in the Philippines is also mocked by way of the establishment of ineffectual and biased special “task force” units for specific crimes. In August 2006 the president of the Philippines reportedly instructed the police task force established to investigate cases of alleged extrajudicial killings (Usig) to resolve at least ten within the following ten weeks. This was never done. Had it been, it would still take 14 years to resolve all the cases of killings known at the time of the instruction. Evidently, the statement was intended as little more than a publicity stunt, as indeed the task force to which it was directed appears to be. Working on a monthly budget of around 300,000 Philippine Pesos (USD 6000) with limited personnel and resources, the task force has at no point been capable of investigating the hundreds of alleged killings and attempted killings had it the inclination to do so, which successive statements by its personnel have made clear it does not. The Melo Commission report made public in February 2007 notes that out of some 111 cases of killings acknowledged by the Philippine police, most of which are under the responsibility of Task Force Usig, only 37 have been forwarded to the prosecutor (see appendix II).

Non-existent victim and witness protection
Most victims of extrajudicial killings in the Philippines have had threats on their lives beforehand; some already having survived earlier attacks. Those who seek protection are frustrated by the unresponsiveness of state agencies that supposedly have obligations to assist in such instances. Many end up dead. Human rights lawyer Norman Bocar was killed in Eastern Visayas on 1 September 2005 (story 69), after seeking protection from the local police because of threats on his life. The police did nothing to assist; nor were they ever held responsible for their inaction.

Section 3 of the Witness Protection, Security and Benefit Act (RA 6981) provides that any person who has “witnessed or has knowledge or information on the commission of a crime” can be admitted for witness protection provided that,

(c) He or any member of his family [has been] subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony.

To the extent that a system of police protection exists under this provision, it works for the rich and powerful with police contacts needing security against persons other than the police themselves. Policemen stationed on protection duty expect to be fed and perhaps housed or transported by the person they are protecting: easy enough for the wealthy, but often impossible for ordinary victims. Their commanders need to be convinced that the threats against the person are real: easy enough for influential persons, but again often impossible for ordinary victims. And police are no protection against other police, as the family of Hernan Baria knows (story 19). They have been living in fear of both the armed men working for a local landowner and the policemen who killed Baria after he was made the target of a “legitimate police operation” in July 2005, apparently for having led a local land reform struggle.

Officials acknowledge the importance of protecting witnesses but fail to do anything about it. In a letter to the Asian Human Rights Commission dated 25 July 2006, Police Director General Oscar Calderon, the national police chief, admitted that police investigating the murder of Porferio Maglasang Sr. on 22 April 2006 (story 47) were having difficulties “in the filing of charges against the assailants due to the non-cooperation of the witnesses and families of the victim, out of fear for their lives”. The alleged perpetrators are suspected to have links with military intelligence. Despite recognising the need to protect the victim’s family, Calderon did not mention what action had been taken, if any, to recommend witness protection under the act, which is the responsibility of the National Bureau of Investigation once approved by the justice department itself.

Letters from other senior police offer the same excuse for failed investigation, without suggesting any intention to do anything about it. One dated 31 May 2005 from Marcelo Ele Jr., former Police Director of the Philippine National Police Directorate for Investigation and Detective Management (DIDM), stated that “no witnesses had come out in the open for fear of reprisal” over the killings of Ernesto Bang and Joel Reyes on 10 and 16 March 2005 respectively (story 77). He added that in Bang¡¦s case supposedly even ¡§relatives of the victim, when interviewed revealed that they are no longer interested in filing the case due to the absence of a witness who could identify the suspect¡¨. Another dated 29 July 2005 from Chief Superintendent Charlegne Alejandrino, deputy director for DIDM, added that the police could do nothing unless the witnesses “come out in the open and willingly support the prosecution of these cases”. Again there was no mention of what action could or would be taken towards this end by way of witness protection or otherwise.

While the police fail to offer any guarantees to protect witnesses, the perpetrators offer ample proof of what they will do to anyone who threatens to expose them. The lone witness who came forward in Reyes¡¦ case, Dario Oresca, was also killed within days of Reyes. Despite the threats against him, he had no security; nor was there even an attempt to arrange any for him. His case too has not gone to court: both his death and the subsequent repeat failure of justice make an utter mockery of the complaints of senior police officers that witnesses have failed to come forward in this and other similar cases.

Not only the police but officials of other agencies, including the Commission on Human Rights of the Philippines, have admitted to the failure of the witness protection act. The commission’s special investigator in Naga City, Raymundo de Silva, has concluded that the programme is “not yet thoroughly understood by the populace”. Although the commission has rightly pointed to the need to give the public more information on the programme, it is obvious that this will be pointless if the police and justice department persistently fail in their obligations. The police, including senior officers, fail to give immediate security to at-risk witnesses and get them admitted to witness protection arranged by the department. They call for witnesses to come forward but fail to guarantee protection and then blame them for failed cases.

The failure of the witness protection programme must be attributed squarely to the rotten condition of its implementing agency, the Department of Justice. Public prosecutors, who are its officers, have also failed in their duty to refer witnesses for inclusion in the protection programme. Even in the most serious cases of extrajudicial killing, torture and disappearance, they are not known to have made recommendations and applications for protection. This failure is all the more glaring since October 2006, when Justice Secretary Raul Gonzales ordered public prosecutors and witness protection agents “to proactively search, secure and protect material witnesses” in a bombing incident in Mindanao. While the department went out of its way to see the bombing witnesses brought into the programme, it has made no such effort for the witnesses to the hundreds of extrajudicial killings and other serious crimes in recent times.

The justice secretary is directly responsible for the witness protection programme, as recommendations on protection must obtain his endorsement, and as the programme operates under his oversight. Yet instead of ensuring that his department works effectively for all witnesses in need of protection, Justice Secretary Gonzales has on several occasions blamed witnesses and families of the dead for not cooperating. On 3 August 2006 Gonzales was quoted by an online newsgroup People¡¦s Journal as saying that the failure to prosecute cases was the fault of victims¡¦ relatives, adding that, “They want us to solve the cases. But they did not cooperate. They are hypocrites.” Needless to say, the making of such remarks by the senior bureaucrat responsible both for witness protection and prosecutions does little to raise confidence in his rotten department among the persons whom he has admonished. Rather, he has succeeded only in further isolating them from the offices of the state.

Attempts by the Asian Human Rights Commission and others to have Secretary Gonzales acknowledge his department’s responsibility in these cases have been unsuccessful. He and his department have in reply offered only generic assurances that they have “given safe havens to scores of witnesses who fears reprisals”, without any evidence of the same or explanations as to why persons such as Norman Bocar and Dario Oresca, or the families of Joel Reyes, Ernesto Bang and Porferio Maglasang Sr. have never received such services. The fact that extrajudicial killings and abductions are going on unabated and unaddressed in the Philippines speaks to the abject failure of the justice department to offer witness protection as it is mandated, despite its claims to the contrary.

In his 21 February 2007 comments on his visit to the Philippines (see appendix I), UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Philip Alston, stressed the link between impunity and the absence of witness protection in the Philippines:

The vital flaw which undermines the utility of much of the judicial system is the problem of virtual impunity that prevails.  This, in turn, is built upon the rampant problem of witness vulnerability. The present message is that if you want to preserve your life expectancy, don’t act as a witness in a criminal prosecution for killing. Witnesses are systematically intimidated and harassed. In a relatively poor society, in which there is heavy dependence on community and very limited real geographical mobility, witnesses are uniquely vulnerable when the forces accused of killings are all too often those, or are linked to those, who are charged with ensuring their security. The WPP is impressive-on paper. In practice, however, it is deeply flawed and would seem only to be truly effective in a very limited number of cases. The result, as one expert suggested to me, is that 8 out of 10 strong cases, or 80 per cent fail to move from the initial investigation to the actual prosecution stage.

Justice Secretary Raul Gonzalez presents a high-profile witness under protection of the National Bureau of Investigation
[Photo: REUTERS/Joe Chan]

Ineffectual and biased prosecutors
Public prosecutors in the Philippines depend upon police investigators to do their jobs. They do not have a role in the investigation process itself, and lack the capacity to evaluate reliably all facts submitted by the police. Investigators give credence to police findings without due considerations of other factors, such as allegations of torture or irregularities in investigation by the accused, as in the case of the 11 teenagers arrested and tortured in Benguet: despite their insistence that they were forced to confess under torture to crimes that they did not commit, and that the evidence against them was fabricated, the prosecutor persisted with recommending that the case go to court. The victims¡¦ claims were not taken seriously by the prosecutor. The court first ruled that the police had arrested the victims illegally, and stopped short of a judgment on the charges themselves. The defence then filed a petition for reinvestigation, which the court approved, and subsequently dismissed the case for lack of evidence. In the meantime, the lives of the victims had been put at grave risk while they were kept in jail awaiting trial. Similarly, when police allegedly attempted to kill Gerardo Cristobal and then filed frustrated murder and attempted murder charges against him the same day of the incident the prosecutor indicted Cristobal in court, knowing full well that the case was based upon a report prepared and filed by colleagues of the police he had accused of attacking him. The prosecutor did not inquire into Cristobal’s claim.

In practice, the burden to disprove fabricated or sloppy police investigation reports rests upon the accused. Victims of abuse are treated with cynicism and hostility, as shown by one state prosecutor in May 2006 who told a newspaper that it is “normal for accused people to claim torture”. Even in cases where allegations of torture are given credence, there is no law prohibiting and penalising the use of torture in the Philippines, or means for such complaints to be properly investigated and the victims rehabilitated. Section 6 of Rule 110 of the Rules of Court requires that a complaint can only be sufficient if it “designate an offense by the statute”. Without a law the prosecutor cannot act on allegations of torture, even in the rare instance where one may be interested to do so.

Prosecutors make little or no attempt to conceal bias in their handling of criminal complaints. For instance, eight workers were arrested and illegally detained in Rosario, Cavite on 28 September 2006 (story 99); while being taken to the police station, an arresting officer allegedly threatened one of the victims. The prosecutor indicted the group for trespassing but reportedly refused to register complaints against the police, saying that the workers filed them just to get even with the arresting officers. In another case, the decision by a prosecutor to exonerate a military sergeant and his men for the killing of Talib Japalali and his wife Carmen in Tagum City (story 81) was reversed by the Office of the Ombudsman for Military and Other Law Enforcement Office based on forensic evidence suggesting grounds upon which to lay charges. Even though the prosecutor had showed either partiality towards the accused or a lack of understanding of forensic evidence, he was still appointed to handle the case in court. Appeals for his replacement by the victims’ relatives have not yet been acted upon.

Once a prosecutor has brought a case into court it is extremely difficult to get it withdrawn. One example is the arrest and subsequent prosecution of Haron Abubakar Buisan in General Santos City (story 108). The police who arrested him insisted that he was Ariel Bansalao, a person wanted for robbery and homicide, and that he had been using various aliases. They allegedly tortured him into making a confession. However, he and his relatives have insisted that he is not the same person, and have produced schools records, village certification, and testimonies from persons known to him to support their claims. But the prosecutor proceeded to file a case against him as Ariel Bansalao. Buisan appealed and obtained a reinvestigation; however, the reinvestigation only reaffirmed earlier conclusions that he was not arrested on mistaken identity: there was no actual reinvestigation. Nor have the victim¡¦s allegations of torture ever been investigated, or other irregularities been addressed.

The extent of bias is again best illustrated by the head of the Department of Justice himself. Secretary Gonzales has gone out of his way to defend the government by flatly rejecting legitimate grievances about the inability of the authorities to stop extrajudicial killings, referring to them as “black propaganda”. He has adopted the language of the military and insinuated that unseen forces have taken advantage of the situation as “one way to destabilize the government” by way of creating lawlessness within the country, thereby putting the government into shame in the international community: as if the government was not sufficiently adept at creating lawlessness and putting itself to shame. In a letter to the Asian Human Rights Commission of 18 October 2006 he stated that while his department too is “anxious to put a stop to this situation” he went on to make baseless and profoundly disturbing comments to the effect that complainants “may themselves be guilty of such extra-judicial killings” and for this purpose “are promptly pointing their fingers and eagerly complaining the loudest against the government”.  At the end of his letter, Gonzales could not help but take a stab at the commission directly:

It appears from your letter that you know a lot more of our country than other non-Filipinos and feel comfortable in ¡¥urging¡¦ us to do your bidding. Interference from foreign nationals are things [sic] we can do without.

That Secretary Gonzales to feel safe in making open presumptions about the guilt or innocence of persons lodging criminal complaints and indicating that the extent of assistance given by his department depends upon what conclusions are drawn by its officers as to the merits of the complainant rather than the complaint speaks volumes about the rot at all levels of the criminal justice system of the Philippines. The making of veiled threats against groups abroad expressing legitimate and serious concern about the inability of his department to do anything to address grave abuses of human rights is also remarkable, not least of all in view of the country¡¦s membership on the UN Human Rights Council, a seat which it sought on the basis of supposed compliance with international standards and cooperation with international bodies. As the secretary is also chairman of the Presidential Committee on Human Rights, which has among its responsibilities to ensure that the government policy is in keeping with human rights principles-a job that he also seems to be doing particularly badly-the secretary must be aware of the government’s treaty obligations, yet he appears to hold them in very low regard.

Labelling “enemies”
In April 2005 the Intelligence Services of the Armed Forces of the Philippines produced a PowerPoint presentation entitled “Knowing the Enemy: Are we missing the point?”, which included a list of organisations and persons-among them human rights and labour groups, religious organisations, media institutions, political parties and persons critical of the government-who are “influenced by communists”. The presentation was distributed on compact disc and was shown to villagers and otherwise used in communities where the military was conducting so-called civilian-military operations.

The “Knowing the Enemy” presentation followed the release of a book by the former chief of Northern Luzon Command, Lieutenant General Romeo Dominguez (retired) entitled, The Trinity of War, in which he also identified specific individuals and organizations as sympathizers, supporters, if not outright members, of the Communist Party of the Philippines or the New People¡¦s Army. Some of the individuals named in that book were subsequently killed by persons using very similar methods: usually riding motorcycles with ski masks or other face covers, and using vehicles with no number plates.

At the time that the “Knowing the Enemy” CD was distributed, Brigadier General Jose Angel Honrado, chief of the army Civil Relation Services, denied that it contained a “hit list”; however, there was subsequently a dramatic increase in the number of victims, in particular those attached to the organisations listed, extrajudicially killed, tortured or disappeared. Affiliated groups or individuals have also become targets.

For instance, Marilou Sanchez and her brother Virgilio Rubio, both members of the legally-registered Bayan Muna party, were allegedly killed by troops on 22 April 2006 (story 48). The military has tagged Bayan Muna as “aligned with the CPP/NPA”. Soldiers entered the victims¡¦ house to capture Marilou¡¦s husband, Hilario, whom they accused of being a communist rebel. Hilario, a village chief, denied this; however, the soldiers allegedly started beating him, and subsequently tied his wife and brother-in-law to separate posts before shooting them dead; Hilario broke loose and escaped into the surrounding area. There has been no information available as to what investigation, if any has been conducted into the incident.

Under section 14(2) of the Constitution of the Philippines “the accused shall be presumed innocent until the contrary is proved”. In practice the public labelling of accused persons or victims as “communist fronts”, “destabilizers”, “enemies of the state”, or “terrorists” negates this presumption and allows officials to do away with due process. The double standards in implementation of laws are most obvious in cases where such labels are applied. The use of labels also exposes victims, their families and colleagues to the possibility of further violence, and denies them any hope of protection. Once a person or organisation has been labelled “leftist” or “enemy” then there is no possibility of safety. Whatever they may or may not have done, they are in a special category of persons and groups guilty by suspicion, for who the ordinary laws and procedures, to the limited extent they operate for everyone else, are suspended.

Anybody extrajudicially killed in the Philippines is likely to be labelled a leftist by virtue of the police having made a blanket assessment that these killings are the result of an “internal purge” within the communist movement. In a letter to the Asian Human Rights Commission of 26 July 2006 Chief Superintendent Rodolfo Mendoza, deputy director for the Directorate for Investigation and Detective Management, stated that,

The document entitled “Cleansing Bushfire” specifically disclosed the order by the National CPP/NPA [Communist Party of the Philippines/New People¡¦s Army] leadership of launching special operations by special teams targeting enemy agents which had penetrated the ranks of CPP/NPA, referring to the enemy spies and counter revolutionaries working against the movement and other legal organisation [sic].

In his letter, Chief Superintendent Mendoza implies that communist rebels have perpetrated most of the killings. His opinions were reflected in the 18 October 2006 letter from the Secretary of the Department of Justice, Raul Gonzales, who while acknowledging that ¡§suspicions alone do not give the police authorities the green light to make arrests¡¨,

We strongly deny, as evidence in the possession of the authorities will support this, that such killings are government-inspired. [The] majority of these killings were done by elements of Communists, the NPA, who pass themselves off as peasants but who are in practice and in reality, no more than bandits.

While Secretary Gonzales claims that the killings are not government-inspired, public statements by military officials and the consistent pattern of police and official inaction towards killings, particularly those that have followed labelling of individuals or groups, speaks to the opposite. For instance, retired Major General Jovito Palparan Jr., former head of the 7th Infantry Division, was quoted by the Philippine Inquirer on 22 August 2006 as saying that,

We are encouraging people to fight this problem. If the people, who have been victimized by insurgents, decide to take it upon themselves to get even with the enemy, that is their individual responsibility. They know who were responsible for these killings before we came in. I have encouraged the people to take the law into their own hands.

These remarks were made the subject of a Herald Tribune editorial of the following day, August 23:

The mindset and the blatant disregard of constitutional rights of a people by the Armed Forces of the Philippines were made clear by an Army officer, who, even in disclosing this, didn¡¦t seem to find anything illegal and unconstitutional about soldiers violating the rights of citizens…The fact that Palparan and his ilk believe that they can disregard-and with impunity-these constitutional guarantees of a people, and even encourage “those victimized” to take the law into their own hands, already shows that they do not believe in the rule of law. And to think they are mandated to protect the people and defend the Constitution.

Despite the weight of national and international opinion against him, Palparan was not sanctioned for making such statements, instead enjoying support from government officials, including President Gloria Macapagal-Arroyo, who had lauded him for his anti-insurgency campaign during her State of the Nation Address in July 2006. In October Secretary Gonzales even offered Major General Palparan a consultancy with his department. When challenged about the alleged gross abuses of human rights committed by Palparan and his subordinates, Gonzales replied that these have “not yet been proven”. Presumably with his oversight of the “justice” department they are unlikely to be.

However, military and official denials of responsibility have become irrelevant since the findings of the presidentially-appointed Melo Commission-announced at the end of January 2007-that the killings are linked to the armed forces and that the police and justice department had failed to address them effectively (see appendix II). On Palparan specifically the commission noted that:

General Palparan’s statements and cavalier attitude towards the killings inevitably reveals that he has no qualms about the killing of those whom he considers his enemies, whether by his order or done by his men independently. He mentions that if his men kill civilians suspected of [communist] connections, “it is their call,” obviously meaning that it is up to them to do so. This gives the impression that he may not order the killings, but neither will he order his men to desist from doing so. Under the doctrine of command responsibility, General Palparan admitted his guilt of the said crimes when he made this statement. Worse, he admittedly offers encouragement and “inspiration” to those who may have been responsible for the killings.

According to the Philippine Inquirer of January 30, these findings led to recognition by the armed forces chief, General Hermogenes Esperon, that “some members of the AFP have been involved in the deaths of some members of militant organizations”. Additionally, before the Melo Commission he “refused to categorically state that the AFP has absolutely nothing to do with the killings of activists, as such [a] statement might be too presumptuous”.

Notwithstanding, the police investigate such incidents with an eye on proving that the killings are perpetrated by rebels, or are the result of “legitimate operations”, rather than to gather evidence with which to identify and prosecute the perpetrators. In Palo, Leyte, eight villagers died-including a seven-month-pregnant woman-when soldiers opened fire at a house that they claimed was used by rebels (story 66). The incident was described as a legitimate encounter with armed groups, rather than a massacre.

Police in Palo conducted investigations on the basis of the military’s account, and filed fabricated charges of illegal possession of firearms and ammunitions against surviving victims, who were described in the police report as “captured enemies”. In November 2006 the court dismissed the case as “the prosecution failed to establish the ownership or possession of any of the guns by the accused”; i.e., they had been planted. Although the victims were exonerated, none of the actual perpetrators has ever been held to account. Notwithstanding, multiple murder charges were lodged against the soldiers on 21 November 2006, one year after the incident. The police involved in producing false investigation reports have not been held accountable.

The investigation function is thus completely perverted, directed towards justifying and explaining away killings rather than punishing and stopping them. And under any circumstances, if indeed the police and justice department had proof that the killings have been perpetrated by rebels, still they cannot excuse themselves of their failures to protect the lives of victims, bring cases to court, and prevent further incidents from occurring.

Among those commonly labelled and targeted are labour rights defenders and union organisers. Labour leader Enrico Estarez was forced into hiding after the military accused him of involvement with the communist movement and soldiers started harassing him and his colleagues, three of whom were arrested and tortured after being invited for questioning (story 107). The three claim that they were forced to provide information on persons unknown to them and sign fabricated statements implicating such persons who were labelled by the military as “communist rebels”. Similarly, Private First Class Rommel Felipe Santiago admitted under police questioning on 5 October 2006 that he had been assigned to tail labour leaders on their way to a law office that provides legal services for workers, and that he was on duty at the time. He was released after a short time and no further effort is known to have been made to identify who had ordered him to conduct surveillance or for what purpose.

Church workers also are often the subject of attacks and baseless allegations. The United Methodist Church has reported that Librado Gallardo and his wife Martina of Nueva Ecija committed suicide in November 2006 after being tortured by the military over their alleged support for communist rebels. Gallardo was chair of the local church council. The church has claimed that the couple took their lives because of continued intimidation by the personnel of the 48th Infantry Battalion stationed in Barangay Conversion, Pantabangan. The couple¡¦s nine children are now orphaned and traumatised, and have also been forced to separate because of continuing threats.

One of the human rights groups on the army’s list of those “influenced by communists” was Karapatan. On 22 August 2006 eight Karapatan volunteers were arrested and allegedly tortured and falsely charged because of assistance they rendered to the family of Raquel Aumentado, who was reportedly killed in an encounter between the military and insurgents in Mulanay, Quezon (story 100). The military charged them with rebellion but the prosecutor proceeded with a case of obstructing justice. It was reported that one of the grounds for suspicion that they were rebels was that they had mud on their legs. In other cases, Karapatan volunteers have been refused assistance in inquiries by soldiers because they are supposedly communists.

Also in August 2006 Major General Palparan, after being identified by Amnesty International as connected with extrajudicial killings, was quoted as saying that, “I cannot blame the people [of Amnesty] because they are invited here and the invitation comes from the enemies of the state”; i.e., the local rights groups that may have helped Amnesty gather information. An association of retired and active senior army officers proposed that Amnesty be barred from the country. It is not known as to whether or not the proposal has been followed, but in December a member of the International Labour Rights Fund was refused entry to the Philippines; he had earlier joined a mission on labour rights and extrajudicial killings of labour leaders in the Philippines during May 2006, and had been actively working with local groups that have been labelled as “enemies of the state”.

Others have been taken away for no more than non-cooperation. Brothers Reynaldo and Raymond Manalo were arrested and allegedly forcibly disappeared by armed men identifying themselves as soldiers who entered their house in February 2006, after they had refused to cooperate with troops trying to locate their neighbour and for not participating in a meeting called by the military on their anti-insurgency campaign (story 95).

Whereas the highest levels of government should be issuing explicit orders to prohibit the use of public labelling by soldiers and law-enforcement officers, the practice is becoming increasingly widespread, and is now virtually a de facto policy. National Security Adviser Norberto Gonzales has pushed for official labelling of party list political organisations with supposed links to the communist movement in the forthcoming May 2007 elections. Gonzales has not named specific parties himself, but five alone were listed in the army’s “Knowing the Enemy” presentation, and unsurprisingly the proposal is known to be popular among the military. The effect of such tagging of registered political parties would be just short of declaring them illegal, and would imply that any persons voting for them are also “influenced by communists”. And in case anybody is as yet in any doubt about the implications of that tag, Major Michael Samson, the military Civil Relations Service group commander, said in an interview of 18 January 2007 that, “In the Armed Forces¡¦ continued campaign against communism, those that were either supportive or sympathetic to the communist movement were considered as enemies of the state.”

The wider consequences on the Philippines’ electoral system and democracy would be profound and far-reaching. Tagging not only exposes individual political organisations and persons to violence and persecution, but undermines the entire exercise of government and challenges the rights of all citizens to participate in legitimate political activities.

The persistent official tolerance of public labelling of persons and organisations as “communist fronts” by military and other security officers speaks to the complicity of the government in the unremitting killings and violence throughout the Philippines.  For this reason the killings are-contrary to the conclusion of the Melo Commission-certainly attributable to the military organisation and the state itself. Official tolerance excuses policing and prosecuting agencies from their abject failure to successfully identify and prosecute perpetrators. It is contradictory to accept, as the commission has done, that there exists a pattern of killings that can be linked to the military while denying that it is a systemic problem that goes to the heart of the rot in the Philippine criminal justice system.

Command irresponsibility
Even though the Melo Commission concluded that Palparan and other military commanders are liable for killings under the principle of command responsibility, there is as yet no clear indication of how the government intends to deal with senior officers found to be complicit in grave human rights violations.

The doctrine of command responsibility in the Armed Forces of the Philippines is stipulated in its Circular No. 28, Series of 1956, which holds that for military commander to have criminal and civil liability in abuses committed by his subordinates, three elements must be proven: that those committing the atrocities were under his command; that the commander knew or should have known that the subordinates were engaging in impermissible conduct; and, that the commander failed to prevent or punish those responsible.

In its findings (see appendix II), the Melo Commission discusses the principle of command responsibility at length, and-while reaching dubious conclusions-notes clearly that:

Contrary to the apparently inaccurate notion of command responsibility entertained by some officers in the [Armed Forces of the Philippines], command responsibility in the modern international law sense is also an omission mode of individual criminal liability wherein the superior officer is responsible for crimes committed by his subordinates for failing to prevent or punish them (as opposed to crimes he ordered).

To establish the three elements requires careful collection of evidence and use of witness testimony; yet in the Philippines prosecutions in even ordinary criminal cases fail due to inadequate evidence and frightened witnesses. To collect sufficient evidence and obtain witness testimonies upon which to hold powerful senior officers accountable will be a task far beyond the country’s rotten criminal justice system unless it is subjected to serious reform. So far the government has shown no commitment to taking any steps that may lead to the notion of command responsibility being made real. Despite persistent serious allegations against Palparan and his men in particular, there has never been any attempt to have them investigated or sanctioned by a binding authority.

The sheer impunity enjoyed by soldiers and their commanders is apparent in the case of Bacar Japalali and his wife Carmen, who were killed in Tagum City during September 2004. Even though prosecutors and the court established probable cause upon which to arrest and charge a military sergeant and 31 of his men with the killings, the court broke with practice and insisted upon all of the accused being named before the issuing of warrants for arrest. The superior officers of the accused refused to name their subordinates; they themselves have not been held responsible for this denial of information to the court, or for the killing. The court order remained pending and arrest warrants not issued for some two years; although the warrants were finally issued, the local police were reportedly too afraid to serve them; the respondents have meantime been transferred to another tour of duty and are no longer in the locality.

Conclusion
When the Philippines became a party to the International Covenant on Civil and Political Rights in 1987 it signified the birth of a new era for the protection and promotion of human rights in the country. But the significance of this and other steps to uphold human rights must be measured in terms of implementation. Article 2 of the Covenant stipulates that where persons’ rights are violated, they must be afforded remedies. This means investigating and prosecuting the perpetrators, and compensating and rehabilitating victims. In his annual 2005 report to the UN Commission on Human Rights, the Special Rapporteur on extrajudicial killings spelt out what this means where a pattern of killings occurs:

In most situations, the isolated killing of individuals will constitute a simple crime and not give rise to any governmental responsibility. But once a pattern becomes clear in which the response of the Government is clearly inadequate, its responsibility under international human rights law becomes applicable. Through its inaction the Government confers a degree of impunity upon the killers.

The Philippines is now faced with a very serious threat to its fragile democracy and institutions for the rule of law. So far the government response has been characterised by inaction and a lack of proper direction over the police, justice department and army, which acting in interests other than those of the public have invariably made the situation worse. The government must now counteract these steps in the wrong direction and demonstrate that it has the will and is willing to make the reforms necessary to dig the rot out of its criminal justice system and erase the name of impunity from its face.