Asian Legal Resource Centre, Hong Kong
The Asian Legal Resource Centre (ALRC) welcomes the discussion during the 15th session of the Human Rights Council (HRC) concerning the High Commissioner’s report on programmes and other measures for the protection of witnesses. The issue of failing witness protection systems is a key element in many Asian countries that permits impunity for State agents accused of grave human rights violations. In this submission, the ALRC will focus on the problems concerning the witness protection system in the Philippines.
In his report to the Human Rights Council on April 2008, Professor Philip Alston, UN Special Rapporteur on extra-judicial, summary or arbitrary executions, recommended that the Witness Protection Program (WPP) of the government of the Philippines “should be reformed and fully implemented.” The ALRC has also informed the HRC in a written submission to the 9th session about the government’s failure concerning the WPP’s implementation, identifying this failure as the “the prime cause of the lack of witnesses and therefore convictions.”
Despite the commitments made by government representatives during the Universal Periodic Review (UPR) to “protect the rights of all its citizens, and observe the Universal Declaration of Human Rights,” the government has failed to introduce any effective reforms to the existing law on witness protection to ensure its full implementation and encourage witnesses into coming forward. This is required in order to improve the country’s poor conviction rate. The government’s failure to urgently implement the needed reforms has led to cases being withdrawn from court and even key witnesses, for example, a key witness in the high-profile 2009 massacre of journalists, being killed.
The ALRC would like to draw the Council’s attention to the much-needed reforms to the Witness Protection, Security and Benefit Act (Republic Act 6981) that the government still has not performed and urge the Council to take all measures necessary to ensure that the government of the Philippines exhibits the appropriate levels of cooperation with UN experts and mechanisms, notably by implementing the recommendations made by Special Rapporteur Philip Alston and pledges made during the UPR.
No amendment to the existing law: The proposed amendment to the existing “Witness Protection, Security and Benefit Act (RA 6981)”, which was declared by Professor Alston in his report as “deeply flawed”, is pending in the two houses of Congress, the Philippine Senate and the House of Representatives. According to its official website, the proposed amendment authored by Roilo Golez in the House of Representative, remains “pending with the Committee on Justice since July 27, 2010”. The full text of the said proposal for amendment, however, is not available to the public, preventing a public debate on the matter.
Proposed Senate Bill 2081, authored by Senator Francisco Pangilinan, seeks to amend section 4 of RA 6981 to “provide for a separate Witness Protection, Security and Benefit Program for the resource persons and/or witnesses in legislative investigations.” There has been no substantial progress concerning this Bill since it was first announced on February 13, 2008. Under the existing law, the screening, approval and implementation of the program is under the absolute control of the Department of Justice (DoJ). In highly political cases involving high-ranking government officials the DoJ lacks the independence and credibility to effectively protect witnesses testifying against government officials or members of the security forces accused of perpetrating crimes. For example, the Solicitor General, who is under the DoJ, also represents the interest of the military and police forces in court cases, and therefore has a conflict of interest in protecting witnesses standing against these forces.
The Senate’s decision to increase the budget of the WPP from 84 million Pesos to 114 million Pesos for year 2009 deserves appreciation. However, unless this increase is accompanied by amendments to the budget allocation of the law, there is no guarantee that the WPP, which reportedly maintains only two staffs and borrows staff from the National Prosecution Service (NPS), also attached to the DoJ, can the WPP be shielded from political interference and control. As of December 2008, a total of around 560 state witnesses were known to have received protection under the program nationwide.
Limitations of the law: Under the law a person who is “testifying or about to testify before any judicial or quasi-judicial body” can be admitted in the programme. However, under the existing practice, witnesses are only admitted when the case they are testifying in has been filed in court. There is no interim protection mechanism available for persons who are waiting for a decision by the DoJ, which screens witnesses for the program to determine if the person is qualified to act as a witness. There is also no time limitation for the DoJ to resolve applications for protection under the program. This denies potential witnesses protection at times when they may need it urgently.
The killing on June 14, 2010 of Suwaib Upham (nickname Jessie), one of the key witnesses for the prosecution concerning the high-profile Maguindanao massacre illustrates the gross failure by the DoJ in responding to applications requiring urgent response. At the time of his murder, Suwaib was not officially yet under the program. He had been waiting for the DoJ’s decision for inclusion in the program since March after submitting the necessary application papers, but the DoJ rejected his application in April 2010, after a long delay, without giving adequate explanation.
While private prosecutor Harry Roque considered Suwaib, who took part in the killing of 57 people in the November 23 massacre, as being a “strong witness,” former DoJ acting secretary Alberto Agra, referred to him as a “killer.” Roque reportedly said that Agra “did not give a reason for not taking” him under the programme. Suwaib was killed the day before he was to fly to Metro Manila to re-apply for inclusion in the program after learning about a change of leadership in the DoJ.
In many cases the failure by the government to provide interim protection prior to DoJ approval of applications has been preventing most witnesses from coming forward. It also therefore prevents cases from being filed in court for prosecution even if there are witnesses available, or being dismissed due to a lack of witnesses willing to testify.
No provisions concerning breaches of confidentiality: Before witnesses are admitted to the programme, the law provides for punishments for government employees who breach data confidentiality concerning the identity of the witnesses. The law, however, does not have any provisions concerning sanctions against persons who are not part of the government and who put witnesses at risk by exposing their identities. The killing of Suwaib Upham, one of the key witnesses concerning the Maguindanao massacre, can be attributed to the failure to protect his identity and illustrates the lack of accountability in preserving confidential information.
The WPP is built on political control: The DoJ is under the control and supervision of the executive branch of government. When cases that the DoJ is prosecuting conflict with the interests of the executive and its officials, the implementation of the WPP is detrimentally affected. Any applications that risk undermining the government will likely be rejected. The DoJ Secretary is the final arbiter under the law concerning the implementation of the WPP. In order to avoid being under the control of the DoJ, other bodies, for example the Commission on Human Rights (CHR), have had to develop their own witness protection programmes, notably in this instance to deal with cases involving human rights violations by State-agents.
Weak support system: Most witnesses are reluctant to testify because of the very poor support system provided by the DoJ, particularly the financial support given to the witnesses’ families. The amount the witness receives, once admitted to the program, is very low compared to the income the person typically had before he/she was admitted to the program. It cannot support their family, especially if the case drags on for years. For example, the witness to the murder of journalist Dennis Cuesta on August 9, 2008, has reportedly struggled to meet the needs of his wife and children, who were also under the program. They are only given 8,000 Pesos (USD 177) allowance a month. He lives with his family in a safe house run by the program but the living costs in the place where they live are very high and they can’t find alternative sources of income to meet their needs, including for their children’s schooling.
There is also no support system for recreation and self-development for witnesses, for them to become productive, alongside the protecting and security aspect of the program. Concerning the witness in Cuesta’s case, all he does all day is “watch television, read books, and worry about the safety of his children,” according to a report by the Committee to Protect Journalists (CPJ). Witnesses who suffer from trauma do not have any opportunity to receive professional psychological support or treatment. For many persons being admitted to the program is tantamount to becoming a guarded prisoner.
Uneven application of the law: The law provides no interim protection for witnesses. However, influential persons who have connections in the government can obtain security and protection. In the massacre case mentioned above, the policemen who wanted to testify against accused policemen in the case were given interim protection by the DoJ.
Under the law, policemen and military are not qualified to be admitted under the programme; however, in cases in which these policemen are testifying against their superiors, who have power and authority over their promotions, assignments and other aspects, it is simply impossible for them to come forward and testify without protection.
The National Bureau of Investigation (NBI), a special investigating body attached to the DoJ, can provide protection to witnesses, but such protection would have to be paid for by the person being protected. This prevents witnesses and victims’ family members from testifying or asking for protection.
Prisoners who are also witnesses: For a prisoner who wants to testify, the policy on whether or not he can also qualify to enlist in the program is not clear. In one case, after torture victim Rundren Lao and ten of his companions filed charges against policemen following their arrest on February 2006 in Buquias, Benguet, they were informed of a plot to kill them inside the prison. The prisoner, who admitted having received the 100,000 Pesos (USD2,200) and a knife he would use to kill them, chose to inform the victims of the plot instead. He was willing to cooperate in the investigation to disclose the identities of those who planned the killings on the condition that he would have protection. However, despite having been informed of this, the authorities concerned paid no attention to his request and the identities of those planning the killings were never ascertained.
The police’s role in protecting witnesses: In practice, while the police encourage witnesses to come forward, they do not take prompt or effective actions to protect them. Under the police force’s rules, it is the responsibility of the police to give protection to any person that is being threatened, even if the person is not a witness. If necessary, the police may request/recommend that the DoJ admit the person to the program once a case is filed. Because of the lack of protection for witnesses at the early stage of the process, such as during police investigations, most cases do not progress beyond the initial stages of investigation. For example, this is the case in at least 538 cases of vigilante killings since 1998 in Davao City that the Commission on Human Rights (CHR) had investigated by early 2009. In principle those who are testifying or are about to testify can be admitted into the program. However, witnesses who help the police are often not officially enlisted in the program. The police obtain information from them but do not give them protection. Without binding arrangements between the police and witnesses, the latter are not under any legal obligation to appear in court and often can’t be found.
Council urged to ensure that justice is delivered concerning the Maguindanao Massacre
The Asian Legal Resource Centre (ALRC) wishes to bring to the attention of the Human Rights Council (HRC) the ongoing situation of impunity in the Philippines, illustrated by the failure by the government to take appropriate action in the widely-reported massacre of 57 persons including 32 journalists that took place in Ampatuan, Maguindanao province, Mindanao, on November 23, 2009. This is the single incident in which the largest number of journalists has ever been killed.
The massacre targeted a group that were travelling to file documents for the registration of Esmael Mangudadatu, challenging the incumbent governor, a member of the Ampatuan clan, in the race to be elected local governor. The party included numerous journalists accompanying Mangudadatu’s wife, as well as two human rights lawyers. They were halted by a group of armed men and executed.
The government of the Philippines’ elected local officials and its security forces were involved in perpetrating this atrocity, now known as the ‘Maguindanao Massacre’ which represents the worst election-related violent incident in the country’s recent history. The ALRC urges the Council to react to the interventions made by several Special Procedures regarding the massacre and to urge the government of the Philippines to ensure that this event is effectively investigated, with those found responsible brought to trial and punished in accordance with international norms and standards.
A member of the Ampatuan family, Datu Andal Ampatuan Jr., was identified as the principal suspect in the massacre, and was arrested on November 26, 2009. On February 5, 2010, the Department of Justice (DoJ) indicted 197 individuals concerning the massacre. Fifteen of them were members of a powerful political clan, the Ampatuans; 62 were policemen; four were soldiers and the remainder included members of several militia forces. The list of those responsible, which includes powerful local officials and top police commanders, makes this a crucial test of the rule of law in the country, as previously State agents have typically enjoyed complete impunity concerning a wide range of human rights violations, including hundreds of alleged extra-judicial killings.
The list of those indicted is telling of the state of law enforcement and the rule of law in the Philippines. State agents function contrary to their lawful obligations to protect lives, and the liberty and property of the country’s citizens. Instead, they serve the interests of the local political elite. The massacre also shines a light on the dangers associated with the government’s policy to recruit and train civilians as a ‘force multiplier’ to counter insurgencies, as these have become private armies for local politicians.
The police and the military should also be held to account for failing to protect the lives of the victims. Both Police Chief Superintendent Faisal Ampao Umpa, the regional director of the Philippine National Police (PNP) in the Autonomous Region of Muslim Mindanao (ARMM) and Colonel Medardo Geslani, commanding officer of the 601st Brigade of the Philippine Army (PA), denied requests for security escorts by the Mangudadatus and the journalists in their convoy.
Geslani’s senior officer, Major General Alfredo Cayton, commanding general of the army’s 6th Infantry Division, insisted that it was safe for the convoy to travel when justifying the military’s refusal to provide security. This illustrates the absence of even a rudimentary protection mechanism in the country, and even suggests complicity at the highest levels. While senior police and military officials were refusing to provide protection, their men were directly participating in the pre-meditated executions. It is essential for full and impartial investigations into this massacre to establish responsibility through the chain of command. Given the authorities in the Philippines poor track record in conducting any such investigations and prosecutions, there is a clear role for the international community to play.
Investigations will likely face numerous hurdles, as the policemen involved also attempted to cover up the massacre by deliberately failing to record details concerning the massacre in their daily log, according to the findings of a prosecution panel. The exhumation and recovery of bodies was reportedly also carried out in ways that have destroyed vital forensic evidence.
The government’s response to the massacre was, in initially, one that further threatened fundamental human rights rather than ensured the delivery of justice. The declaration by the President of Proclamation No. 1959, placing the province’s 36 municipalities (except the areas previously identified as having been occupied by Moro rebels) under Martial Law and suspending habeas corpus resulted in numerous arbitrary arrests and detention, illegal searches of persons and properties, many of whom had nothing to do with the massacre.
Proclamation No. 1959 has risked making any legal action taken against those accused of being involved in rebellion, as is the case with those charged in the Maguindanao massacre, including evidence collected during the period of martial law, legally and procedurally flawed. This has placed the prosecution of those responsible in doubt.
Added to this, there is legal ambiguity concerning the crime of rebellion. For example, in a case involving the so-called “Tagaytay Five,” the Regional Trial Court (RTC) in Tagaytay City ruled, in August 2008, that the prosecutors failed to prove that the crime of rebellion existed at all or had been committed, resulting in their case being dismissed and their release from jail. The court held that: “by its nature, rebellion is a crime of the masses or multitudes involving crowd actions done in furtherance of a political end.” In order for the crime to exist legally “both the purpose and overt acts are essential components of [the] one crime, without either of them the crime legally does not exist.”
The act of taking up arms and the presence of “heavily armed groups” in order “to resist government troops” from affecting arrests or conducting searches – the arguments used as the justification by President Gloria Macapagal-Arroyo in declaring martial law – did not meet the fundamental elements that constitute the crime of rebellion. So legally, the crime never occurred and prosecution in court is inappropriate. The Ampatuans, a political clan accused of involvement in the November 23, 2009 Maguindanao massacre, were not taking up arms to grab power from the government. They, and their hundreds of supporters, are the people in power. The crime of rebellion was concocted by the government to justify the constitutionality of martial rule.
Grabbing power from the government was not the Ampatuan’s political end, nor was it the purpose of their heavily armed supporters. They are, as shown by their overt acts, either resisting arrest or obstructing the security forces from arresting and conducting searches as part of a police investigation. This is thus a purely criminal matter that should be dealt with accordingly by the police. Thus, the prosecution of the accused in the rebellion case was instead a political move by the Department of Justice, one of the agencies that openly defended martial law to justify Proclamation No. 1959. This was never truly about prosecution of the crime of rebellion or for violations of criminal law.
Although Proclamation No. 1959 has now been lifted, Proclamation No. 1946, which was issued on 24 November 2009, placing the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato under a state of emergency, remains in effect [at time of writing]. The military establishment has recommended prolonging the state of emergency until the winners of the May 2010 elections assume office in June 2010. However, under the state of emergency, human rights have been suspended and violations of rights are taking place on a daily basis. The ALRC urges the government of the Philippines to immediately lift this state of emergency and ensure the safety of its citizens through legal means that respect human rights.
The ALRC also urges the government of the Philippines to dismantle all non-State armed groups provided with law-enforcement powers, as the use of such groups has enabled local politicians to maintain private armies, leading to numerous incidents of violence, including the massacre in question here. Specifically, the government must dismantle the police’ Civilian Volunteer Organizations (CVOs) and the army’s Civilian Auxiliary Force Geographical Units (CAFGUs). Their continuing existence to this day, despite repeated local and international demands to have them dismantled, is an indicator of the government’s tolerance of vigilantism, for which it must make amends.
The government should also without further delay implement the recommendations made in the Melo Commission Report in January 22, 2007, notably that calling for the enactment of a ‘Special law for strict chain-of-command responsibility’. The government’s failure to do so despite the passage of three years has contributed to the continuing impunity with which the police and military establishment conduct widespread human rights violations. The Maguindanao Massacre should act as a test case to assist in the establishment of mechanisms and laws to ensure that such atrocities cannot occur again. The best way to ensure future protection of human rights is to tackle impunity in the present.
The government should also review the existing processes through which police officials are selected and appointed to head provincial and town police commands. Presently, local executives have had control over the appointment and transfer of police commanders in their localities, leading to the police being heavily politicised.
There remain significant concerns that as international attention turns away from the Philippines in the aftermath of the massacre, the early steps taken by the government, including the arrest and indictment of 197 suspects in the massacre, will not progress into successful prosecutions and the effective delivery of justice. It is imperative for the future of human rights that justice be done and be seen to be done concerning this high-profile case. Anything less than fair trials establishing and punishing all of those responsible for the massacre, regardless of their rank in the establishment, will have a seriously deleterious impact on the struggle to establish human rights and combat impunity, as well as the freedoms of expression and the media in the Philippines.
The Human Rights Council is therefore urged to take all measures necessary to ensure that credible, impartial investigations are conducted, prosecutions are carried out in line with international standards, and those responsible receive adequate punishment and the relatives of those killed in the Maguindanao Massacre receive adequate compensation. This is important not only as concerns the case itself, but also for the prospect of improvements to the protection of human rights in the Philippines in general for years to come.
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Footnote: This article comprises two submissions by the Asian Legal Resource Centre to the 15th and 13th sessions of the UN Human Rights Council in Geneva during 2010. For all statements by the centre to successive sessions of the council visit the ALRC website: www.alrc.net
