A ‘rotten’ criminal justice system

A NEW report by a Hong Kong-based regional rights group damns the Philippines’s criminal justice system for failing to deliver justice to its people and contributing to the widespread human rights violations in the country.

Calling the criminal justice system in the country “rotten,” the 192-page report of the Asian Legal Resource Center (ALRC) describes how the police and the courts fail to investigate and solve various human rights violations because of the lack of sincerity, despite well-established institutions on paper.

The ALRC report comes barely a month after a United Nations special rapporteur scored the military for remaining in “a state of almost total denial” on the issue of extrajudicial killings, and which was followed by the release of the Melo Commission report pointing to circumstantial evidence linking some elements of the military to the executions.

The ALRC is an independent regional non-governmental organization with general consultative status with the UN’s Economic and Social Council. It is the sister organization of the Asian Human Rights Commission (AHRC).

Read the ALRC report, “The criminal justice system of the Philippines is rotten.”

This is the first lengthy report the ALRC has published exclusively on the Philippines, gathering 110 cases of killings, torture, disappearances, abductions, illegal arrests and intimidation involving 227 victims in the last two years. Of 81 cases of killings it has documented, none has been solved so far.

Basil Fernando, ALRC and AHRC executive director, says these stories reveal a pattern of extreme cruelty and state complicity.

“Filipinos are being threatened, tortured, abducted, killed and destroyed with a brutality that no civilized state would permit. This cruel behavior is permitted, and encouraged, because the country’s institutions for criminal justice are in fact so barbaric that together they bear no resemblance to any modern system of justice.”

Fernando also points out that activists are not the only ones targeted. “Common people also suffer. The entire people of the Philippines are targeted under this rotten system. Even in a case of common murder, it is unlikely that any investigation or prosecution is carried out.”

The ALRC report also notes that the abuses are happening despite a constitution that has assimilated modern international human rights and the country’s ratification of international laws on human rights more than any country in Asia. The Philippines was even elected last year to two key United Nations bodies: the Human Rights Council and the Economic and Social Council.

“The fact that the country has failed to implement key recommendations that the UN Human Rights Committee made in December 2003, in accordance with its obligations under the International Covenant on Civil and Political Rights, also speaks of the low value that the government places on its commitments under international law, despite appearances to the contrary,” the report adds.

With the collapse of law enforcement, Fernando says there is now a virtual impunity in the country — one that is “written largely 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.”

ALRC’s analysis of the “deep institutional rot” afflicting the criminal justice system identifies the following basic problems:

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.

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.

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.

The failure of the witness protection program 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.

The justice secretary is directly responsible for the witness protection program, as recommendations on protection must obtain his endorsement, and as the program operates under his oversight. Yet instead of ensuring that his department works effectively for all witnesses in need of protection, Justice Secretary Gonzalez has on several occasions blamed witnesses and families of the dead for not cooperating.

Ineffectual and biased prosecutors

Prosecutors make little or no attempt to conceal bias in their handling of criminal complaints.

The extent of bias is again best illustrated by the head of the Department of Justice himself. Secretary (Raul) Gonzalez 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.

That Secretary Gonzalez feels 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.

Labeling “enemies”

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 labeling 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 organization has been labeled “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 labeled 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.

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 report recommends six steps which are intended more as starting points for new ideas and discussion to address the grave problems afflicting the country’s criminal justice system:

An urgent comprehensive review of the Philippines’s criminal justice system

The review will be done by an independent commission with the guidance and technical support of key United Nations agencies and other international bodies, to be comprised of senior judges, competent jurists, reputed academics and representatives from civil society, including human rights organizations.

The commission will also investigate, prosecute and adjudicate cases, through public consultations and other relevant methods, to identify defects and hindrances. It will make full recommendations to the government and notify the public of the same within six months.

Rationalizing the deficient witness protection program and law

In the interim, both the Department of Justice and Philippine National Police should clarify and widely publicize a rational, accessible and comprehensive system of witness and victim protection in accordance with the Witness Protection, Security and Benefit Act (RA 6981), together with an explicit set of operational guidelines for police that clearly stipulate officers’ duties to provide protection and spell out the sanctions that will be taken against officers failing to comply.

A full review of the implementation and limitations of the Witness Protection, Security and Benefit Act must be included as part of the work of the proposed independent commission.

Strengthening agencies for the receipt, investigation and prosecution of complaints against police and military officials

This is to ensure that grievances by the victims are properly addressed and acted upon and that complainants obtain adequate protection, and interim measures immediately introduced by which to hold police accountable, through an explicit set of sanctions, for cases that have been filed in court that are found to have been deliberately fabricated.

Ending the use of labeling

There should be an explicit directive from the government that the practice of labeling by the armed forces and other agencies is prohibited and that officials found responsible for such practices will be removed from their positions and investigated for criminal liability in subsequent killings, attempted killings or other incidents that may have occurred in consequence.

Action on findings into extrajudicial killings

The findings of the Melo Commission should be followed by immediate investigations and prosecutions of persons identified as responsibile for extrajudicial killings and other abuses, whether directly or by virtue of command responsibility.

Enactment of domestic laws on torture, enforced disappearance and other fundamental rights in accordance with binding agreements under international treaties and the recommendations of treaty bodies

Aside from enacting domestic laws, implementing agencies should be established in accordance with the requirements of the International Covenant on Civil and Political Rights and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The report also calls for the signing of the new International Convention for the Protection of All Persons from Enforced Disappearance; implementation of the recommendations of the UN Human Rights Committee of December 2003; and issuance of a standing invitation to all United Nations human rights experts to visit the country.