Legal researchers may find the following excerpts from the "Advanced Edited Version of the Report of the UN OHCHR Special Rapporteur PHILIP ALSTON on Extrajudicial, Summary or Arbitrary Executions in the PHILIPPINES", released on November 27, 2007, useful for purposes of studying what reforms should be instituted soonest to help improve the Philippine criminal justice system and to truly promote and preserve HUMAN RIGHTS in the Philippines.
X x x.
X. THE CRIMINAL JUSTICE SYSTEM
A. Overview
45. There is impunity for extrajudicial executions. No one has been convicted in the cases involving leftist activists,62 and only six cases involving journalists have resulted in convictions.63 The criminal justice system’s failure to obtain convictions and deter future killings should be understood in light of the system’s overall structure. Crimes are investigated by two bodies: the PNP, which is organized on a national level but is generally subject to the “operational supervision and control” of local mayors; and the National Bureau of Investigation (NBI), which is centrally controlled.64 Prosecutors, who are organized in the National Prosecution Service (NPS) of the DOJ, determine whether there is probable cause and then prosecute the cases in the courts.65 This is the normal process; however, in cases implicating public officials, the Ombudsman should take over the investigation and conduct the prosecution. Cases are tried before the courts, with the Supreme Court both administering the judiciary and providing the highest level of appellate review.66 Cases against senior Government officials should be prosecuted by the Ombudsman before the Sandiganbayan67 rather than the ordinary courts, but the Supreme Court still provides the highest level of appellate review. The Inter-Agency Legal Action Group (IALAG) is the latest addition to the system, affecting the operations of the NBI, NPS, and PNP.
B. The Inter-Agency Legal Action Group (IALAG) distorts
the criminal justice system’s priorities
46. Senior Government officials are attempting to use prosecutions to dismantle the numerous civil society organizations and party list groups that they believe to be fronts for the CPP. While this project is sometimes discussed as if it were a dark conspiracy, it was explained to me openly and directly by numerous officials as the very function of IALAG, which was established in 2006.68 IALAG is an executive rather than advisory body and, while it includes representatives of various criminal justice, intelligence, and military organs, institutional power and legal authority over its operations is concentrated in the Office of the National Security Adviser.69 At the national level, IALAG meets at least once every other week, discusses the evidence in particular cases and debates whether it is sufficient to file a criminal complaint. There are also regional and provincial IALAG bodies with a similar structure and role. It has been due to the efforts of IALAG that charges have been brought against a number of leftist lawmakers and persons who had been given immunity guarantees to facilitate peace negotiations with the NDF.
47. The reason that such an ad hoc mechanism was established for bringing charges against members of these civil society organizations and party list groups is that they have seldom committed any obvious criminal offence. Congress has never reversed its decision to legalize membership in the CPP or to facilitate the entry of leftist groups into the democratic political system.70 But the executive branch, through IALAG, has worked resolutely to circumvent the spirit of these legislative decisions and use prosecutions to impede the work of these groups and put in question their right to operate freely.
48. What justification is given for waging this legal offensive? One explanation that I received was that when membership in the CPP was legalized, the expectation was that its members would lay down their arms and participate in the parliamentary struggle. On this interpretation, the CPP has instead sought to pursue simultaneously the armed and parliamentary struggles. Many senior government officials stated unequivocally that they consider the party list groups in Congress as part of the insurgency. It is evidently the case that there are persons in Congress as well as in the hills who adhere to a “national democratic” ideology, but when I would ask interlocutors in what respect party list members of Congress belonging to the most criticized parties — Bayan Muna, Anakpawis, and Gabriela — had gone beyond expressing sympathy for the armed struggle to actually supporting it, I was repeatedly provided the same unsubstantiated allegation, that these congresspersons provide their “pork barrel” to the NPA.71 Cases filed against several congresspersons on these grounds have failed. This has not discouraged senior government officials. One insisted that although the publicly available evidence might be inadequate, the charges were amply supported by intelligence information that could not be disclosed. Another informed me simply that warrants had been issued based on probable cause and that he would not stop treating the congresspersons as criminals simply because no conviction had yet been achieved.
49. The central purpose of IALAG is to prosecute and punish members of the CPP and its purported front groups whenever there is any legal basis for doing so. I received no evidence that it was designed or generally functions to plan extrajudicial executions. However, IALAG’s proactive legal strategy requires drawing up lists of individuals who are considered enemies of the state but many of whom will not be reachable by legal process. The temptation to execute such individuals is clear, representatives of the AFP and PNP with the capacity to do so participate in IALAG bodies at all levels, and there is circumstantial evidence that this has sometimes occurred.72 The most deleterious role played by IALAG bodies may, however, be to encourage prosecutors to act as team players with the AFP and PNP in counterinsurgency operations and to de-prioritize cases involving the deaths of leftist activists.
C. The police are reluctant to investigate the military
50. No one I spoke with questioned the PNP’s authority and duty to investigate crimes allegedly committed by the AFP. However, in practice, it does so in only a perfunctory manner. Plausible explanations for this reticence include fear, a tacit understanding that crimes by the AFP should not be investigated, the personal bonds felt among senior AFP and PNP officers,73 and the solidarity fostered by current cooperation in counterinsurgency operations.74
D. Poor cooperation between police and prosecutors impedes
the effective gathering of evidence
51. The current system so discourages cooperation between prosecutors and police that each is tempted to simply blame the other for failing to achieve convictions. Prosecutors rather than judges make the determination whether the evidence provides probable cause for the charges to be brought. During this preliminary hearing, prosecutors are expected to show absolute impartiality. Prosecutors thus perceive themselves unable to guide the police with respect to the testimony and physical evidence that must be obtained to make a case. Even when prosecutors find the evidence presented by the police at the preliminary hearing insufficient, they seldom provide a reasoned explanation for that insufficiency for fear of appearing biased. Police thus lack expert guidance in building cases. While this problem is deeply embedded in the culture of the criminal justice system, changes in the role of the prosecutor could be effected by amending the Rules of Criminal Procedure, which are promulgated by the Supreme Court.75 The Supreme Court should use this power to require prosecutors to provide reasoned decisions for probable cause determinations and to insist that prosecutors take a more proactive role in the ensuring the proper investigation of criminal cases.
E. The witness protection program is inadequate
52. The absence of witnesses is a key explanation for why extrajudicial executions hardly ever lead to convictions. One expert suggested to me that the absence of witnesses results in 8 out of 10 cases involving extrajudicial killings failing to move from the initial investigation to the actual prosecution stage. In a relatively poor society, in which there is heavy dependence on community and very limited 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 present message is that if you want to preserve your life expectancy, don’t act as a witness in a criminal prosecution for killing.
53. The witness protection program is administered by the NPS. This is problematic only because the impartial role prosecutors are expected to play in the early phases of a criminal case can make them loath to propose witness protection. This problem might be remedied by establishing a separate witness protection office independent of the prosecutors but still within the Department of Justice (DOJ).76 That office would then be free to take a proactive role in providing witness protection.
54. Implementation of the statute establishing the witness protection program is deeply flawed.77 It would seem to be truly effective in only a very limited number of cases. The rights and benefits mandated by law are too narrowly interpreted in practice to make participation possible for some witnesses.78 Another widely-cited shortcoming, likely caused by inadequate resources, is that at-risk family members are not admitted into the program, although in theory “any member of his family within the second civil degree of consanguinity or affinity” who is at risk may be admitted.79 A more fundamental problem is that, even when a witness is available, cases seldom move quickly through the justice system,80 and when a case fails to prosper, the witness is expelled from the program, although he or she may still be at risk.
F. Limited forensic resources lead to over-reliance on witness testimony
55. A greater capacity to use physical evidence would allow more cases to go forward without witness testimony. The information that I received from officials was that, while there are some forensic laboratories and experts in Manila, there is very limited access to these resources throughout most of the country.
G. The Ombudsman lacks independence
56. The Office of the Ombudsman is responsible for investigating and prosecuting crimes and other misconduct committed by public officials.81 However, the Ombudsman’s office has done almost nothing in recent years to investigate the involvement of Government officials in extrajudicial executions. Despite having received a significant number of complaints alleging extrajudicial executions attributed to State agents, no information was provided by the Ombudsman’s office indicating that it had undertaken any productive investigations.
57. The Office of the Ombudsman has surrendered its constitutionally-mandated independence from the executive branch. First, it has adopted an untenably narrow interpretation of its jurisdiction, choosing not to initiate an investigation into an extrajudicial execution unless there is already very strong evidence that a public official was responsible in the particular case.
Second, the Office of the Ombudsman often operates as a de facto subsidiary of the Department of Justice. The NBI conducts most of its investigations. Pursuant to a Memorandum of Agreement between the DOJ and the Office of the Ombudsman, the relevant Regional State Prosecutor and other senior members of DOJ’s NPS monitor and oversee the “successful prosecution and speedy disposition of Ombudsman cases”. “Deputized prosecutors” from the NPS “have the primary responsibility of prosecuting Ombudsman cases”, and prosecutor-investigators from the Office of the Ombudsman “assist, if practicable, the Deputized Prosecutor in the prosecution of the case” and “may, with prior clearance from the Ombudsman or his Deputy, take over the prosecution of the case at any stage”.82 As a practical matter, these arrangements serve to all but completely subordinate the Ombudsman to the DOJ.
58. The Ombudsman insists that her office can take over a case being handled by the DOJ at any time, but it is unclear how the Ombudsman would even be aware that such a measure was necessary given her Office’s lack of involvement. One NPS prosecutor at the local level explained that, in his locality, the local representative of the Ombudsman sits in the DOJ office, reviews the work of DOJ prosecutors and passes this on to the Ombudsman in Manila. It is, in his words, a “chummy” relationship, because the person from the Office of the Ombudsman is disinclined to criticize the conduct of what are, in effect, his colleagues.
H. The role of the courts
59. When most cases stall at the investigation or prosecution stage, it is difficult to evaluate the effectiveness of the judiciary. Two issues specific to the judiciary were, however, raised by my interlocutors. First, trials are routinely delayed and are generally not held on consecutive days, increasing the opportunities for witness intimidation. If fully implemented, the Supreme Court’s decision to establish “special courts” for “cases involving killings of political activists and members of the media” should remedy this problem for those cases.83 Second, witnesses often relocate to avoid retaliation, but judges seldom grant a change of venue on that basis.84 The judiciary should ensure that docket management and venue decisions facilitate witness participation and protection.
X x x.
XIII. RECOMMENDATIONS
66. I am encouraged by the many measures recently taken by the Government,91 and I have found instructive the many recommendations made in other reports.92 Based on my own observations, I believe that the following measures are essential.
67. Extrajudicial executions must be eliminated from counterinsurgency operations:
(a) As Commander-in-Chief of the armed forces, the President must take concrete steps to put an end to those aspects of counterinsurgency operations which have led to the targeting and execution of many individuals working with civil society organizations.
(b) The necessary measures should be taken to ensure that the principle of command responsibility, as it is understood in international law, is a basis for criminal liability within the domestic legal order.
(c) The Government should immediately direct all military officers to cease making public statements linking political or other civil society groups to those engaged in armed insurgencies. Any such characterizations belong solely within the power of the civilian authorities. They must be based on transparent criteria, and conform with the human rights provisions of the Constitution and relevant treaties.
(d) Transparency must be introduced to the “orders of battle”, “watch lists”, and similar list of individuals and organizations maintained by the AFP, PNP, and other elements of the national security system. While their contents might justifiably be considered secret, which lists exist, their purposes, the criteria for inclusion, and the number of names on each should be made public.
68. The use of a death squad in Davao City must end:
(a) NAPOLCOM should withdraw the mayor of Davao City’s powers of supervision and control of PNP units within his jurisdiction and should hold the officers commanding those units accountable for shutting down the death squad.
(b) While particular crimes should be reported, laws and practices in which barangay councils or captains submit names (e.g., of drug pushers) for inclusion on law enforcement watch lists should be abolished.
(c) An independent investigation should be conducted to identify the persons directing the death squad’s “assets” and hit men.
69. Convictions in a significant number of extrajudicial executions must be achieved. Appropriate institutional arrangements exist but they must be more transparent if they are to be effective. Thus:
(a) CHRP should issue a monthly report listing allegations of extrajudicial executions that it has received together with the current status of its investigations.
(b) Members of the public should be able to submit cases to be overseen by Task Force Usig. If it concludes that a case does not fall within its mandate, it should provide a reasoned explanation in writing.
(c) Task Force Usig should issue a monthly report on the status of all cases it is attempting to resolve.
(d) The Supreme Court should issue a monthly report on the status of all cases before the special courts.
70. IALAG should be abolished, and the criminal justice system should refocus on investigating and prosecuting those committing extrajudicial executions and other serious crimes.
71. The witness protection program should be reformed and fully implemented:
(a) It should be proactively administered by an office independent of the NPS.
(b) Witness protection should be unstintingly provided to all those who will be put at risk by an individual’s testimony.
(c) Individuals should be permitted to remain in the witness protection system for as long as they are at risk, even if a case stalls.
(d) Housing and other benefits provided under the witness protection program should ensure the security and comfort of those protected.
72. The Supreme Court should take all available measures to ensure the effective prosecution of extrajudicial executions. Among other measures:
(a) The system of special courts for killings of political activists and members of the media should be fully implemented so as to improve the efficiency of trials, and the judiciary should take all other measures necessary to facilitate the participation of witnesses, including sympathetic consideration of requested venue changes and docket management decisions that facilitate witness participation and protection.
(b) In conjunction with the executive branch of Government, the Supreme Court should use its constitutional powers over the practice of law to impress upon prosecutors that they have a duty to the public to uphold and protect human rights by acting to ensure the effective investigation of cases and protection of witnesses and that they should provide reasoned decisions for probable cause determinations.
73. Human rights should be safeguarded within the peace processes:
(a) The JMC should meet and fulfill its mandate under the CARHRIHL.
(b) Consideration should be given to establishing a mechanism for monitoring human rights abuses within the framework of the Government – MILF peace process.
74. The Commission on Human Rights (CHRP) should guard its independence and increase its effectiveness:
(a) CHRP should hire and train more investigators and provide them with the resources necessary for effective investigations.
(b) CHRP should increase the resources available for victim assistance to ensure that witnesses are sufficiently secure as to enable the non-judicial clarification of their cases.
(c) To provide more accountability in the AFP promotions process, CHRP should follow-up on its human rights clearance decisions by publicly tracking the subsequent promotion decisions of the AFP and the Commission on Appointments.
(d) CHRP should consider measures to more effectively protect as well as monitor human rights during military operations throughout the country.
75. The Ombudsman’s office should begin to fulfill effectively its independent constitutional role in responding to extrajudicial killings plausibly attributed to public officials.
76. The Government should reinstate a policy of facilitating the constitutionally-mandated role of Congressional oversight in relation to the AFP and the PNP, starting by rescinding all directives, memoranda, and orders that impede such oversight.
77. The CPP/NPA/NDF should stop using people’s courts that do not comply with human rights and humanitarian law standards and should ensure that lethal force is directed only against combatants and civilians directly participating in hostilities.
78. The CPP/NPA/NDF should repudiate statements that persons owe “blood debts”, have “accountabilities to the people”, or are subject to prosecution before people’s courts.
X x x.
