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FIFTEEN years have passed since I became an
investigating prosecutor of the Presidential Committee on Human
Rights (PCHR) under former Justice Secretary Teofisto Guingona. In
that capacity, I witnessed firsthand the massive violation of human
rights committed by military and police officials in hinterland
territories. Not much has changed since then as confirmed by recent
reports of Justice Jose Melo and UN Special Rapporteur Philip Alston
describing human rights abuses, which had long been enumerated in
our official PCHR reports denouncing the government’s total
approach to counter-insurgency, also known as the total war policy.
There, however, appears to be some hope for change. Asia Foundation
lawyers Carol Mercado and Damcelle Torres, asked me to write a
manual of human rights remedies into substantive and procedural
criminal law for possible integration in the Justice department’s
manual for public prosecutors, which is being comprehensively
reviewed by topnotch prosecutors, more particularly by Senior State
Prosecutor Peachy Deynata and Regional State Prosecutor Tony
Arellano under the able guidance of Chief State Prosecutor Jovencito
Zuno.
Participating in this round-
table discussion on draft procedural manuals for the National
Prosecution Service, I pointed out that there exists a special
category of serious crimes violative of people’s fundamental human
rights so repugnant to our Constitution, and so revolting and
offensive to humanity. These are crimes generally committed by
agents and instrumentalities of the State; precisely because of the
official positions held by the perpetrators, these crimes are
committed with impunity and diabolical daring. Collusions among
government officials occur to cover up, camouflage, and whitewash
the abominable offenses, allegations of which I cautioned should not
attach to the National Prosecution Service, whose courageous
litigators have every so often stood up to the most prominent and
influential perpetrators holding top-ranking positions in the
military, police, executive and legislative branches of government.
Particular focus should be made
on torture, enforced disappearances, extralegal or extrajudicial
killings and involuntary displacements of indigenous peoples.
Although many of these criminal offenses partake of common crimes
defined and enumerated under the Revised Penal Code, such
definitions, their penal sanctions, and corollary procedure are
quite outdated considering that these laws were first promulgated
during the American colonial period based on medieval Spanish law
and adversarial procedure. But the Philippine Constitution already
recognizes international law as part of national law. Thus, Supreme
Court Chief Justice Moran, in Kuroda vs. Jalandoni, held that
international customary norms are automatically incorporated into
our system of law, without any need for domestic legislation or
concurrence to treaty. Those who violate international customary
norms, such as United Nations conventions against torture and
genocide, which constitute jus cogens, must be held criminally
accountable, precisely for those crimes.
Because of the sophisticated
complexion of human rights violations perpetrated by military and
police generals and their personnel, procedural and substantive
criminal law must be reinvented albeit within parameters of existing
legislation. Extraordinary measures must be adopted in the
investigation of such grave crimes with serious allegations against
top law and military enforcers. But CenterLaw’s Rommel Bagares
decries the government’s failure to live up to its human rights
commitments despite the Executive Secretary’s response to the
Alston Report before the UN Committee on Human Rights. First,
because existing domestic laws do not call such crimes for what they
are—torture, genocide, extralegal killings, enforced
disappearances and involuntary displacements. Second, penal
provisions on maltreatment of prisoners, physical injuries, and
slander by deed, which constitute torture, or grave coercion which
constitutes involuntary displacements of indigenous cultural
communities from their ancestral domain, prescribe immediately and
do not reflect the gravity of these crimes, which are extremely
serious because of the acquiescence or commission by public
officials. Third, criminal procedure does not allow for motu propio
investigations and unnecessarily requires submission of affidavits.
For example, American district attorneys are allowed to direct crime
scene investigations of serious crimes. Due process is followed by
inviting suspects for questioning and clarification of their
whereabouts. Delineations between police and prosecutorial
initiatives are not as clear-cut and defined as in Philippine
criminal procedure so that determinations are immediately made by
district attorneys and crime scene evidence ordered for
preservation. Fourth, our procedural laws do not recognize
extra-territorial application of international law prohibitions of
such serious crimes nor the universal jurisdiction of crimes against
humanity and war crimes.
However, the Justice committee is
favorably recommending that these special crimes now be recognized
by Congress and that special procedures also be legislated for the
proper investigation of such crimes. It is hoped that when
Philippine Congress acts posthaste in promulgating adequate
legislation, with the endorsement of President Gloria Arroyo within
her term remainder, then the darkness enshrouding this country may
soon clear. Otherwise, commitments pledged before the United Nations
will just remain promises etched in sand, readily eroded by the
demands of a purely political agenda.
Integrating human rightsFIFTEEN
years have passed since
I became an investigating prosecutor of the Presidential Committee
on Human Rights (PCHR) under former Justice Secretary Teofisto
Guingona. In that capacity, I witnessed firsthand the massive
violation of human rights committed by military and police officials
in hinterland territories. Not much has changed since then as
confirmed by recent reports of Justice Jose Melo and UN Special
Rapporteur Philip Alston describing human rights abuses, which had
long been enumerated in our official PCHR reports denouncing the
government’s total approach to counter-insurgency, also known as
the total war policy. There, however, appears to be some hope for
change. Asia Foundation lawyers Carol Mercado and Damcelle Torres,
asked me to write a manual of human rights remedies into substantive
and procedural criminal law for possible integration in the Justice
department’s manual for public prosecutors, which is being
comprehensively reviewed by topnotch prosecutors, more particularly
by Senior State Prosecutor Peachy Deynata and Regional State
Prosecutor Tony Arellano under the able guidance of Chief State
Prosecutor Jovencito Zuno.
Participating in this round-
table discussion on draft procedural manuals for the National
Prosecution Service, I pointed out that there exists a special
category of serious crimes violative of people’s fundamental human
rights so repugnant to our Constitution, and so revolting and
offensive to humanity. These are crimes generally committed by
agents and instrumentalities of the State; precisely because of the
official positions held by the perpetrators, these crimes are
committed with impunity and diabolical daring. Collusions among
government officials occur to cover up, camouflage, and whitewash
the abominable offenses, allegations of which I cautioned should not
attach to the National Prosecution Service, whose courageous
litigators have every so often stood up to the most prominent and
influential perpetrators holding top-ranking positions in the
military, police, executive and legislative branches of government.
Particular focus should be made
on torture, enforced disappearances, extralegal or extrajudicial
killings and involuntary displacements of indigenous peoples.
Although many of these criminal offenses partake of common crimes
defined and enumerated under the Revised Penal Code, such
definitions, their penal sanctions, and corollary procedure are
quite outdated considering that these laws were first promulgated
during the American colonial period based on medieval Spanish law
and adversarial procedure. But the Philippine Constitution already
recognizes international law as part of national law. Thus, Supreme
Court Chief Justice Moran, in Kuroda vs. Jalandoni, held that
international customary norms are automatically incorporated into
our system of law, without any need for domestic legislation or
concurrence to treaty. Those who violate international customary
norms, such as United Nations conventions against torture and
genocide, which constitute jus cogens, must be held criminally
accountable, precisely for those crimes.
Because of the sophisticated
complexion of human rights violations perpetrated by military and
police generals and their personnel, procedural and substantive
criminal law must be reinvented albeit within parameters of existing
legislation. Extraordinary measures must be adopted in the
investigation of such grave crimes with serious allegations against
top law and military enforcers. But CenterLaw’s Rommel Bagares
decries the government’s failure to live up to its human rights
commitments despite the Executive Secretary’s response to the
Alston Report before the UN Committee on Human Rights. First,
because existing domestic laws do not call such crimes for what they
are—torture, genocide, extralegal killings, enforced
disappearances and involuntary displacements. Second, penal
provisions on maltreatment of prisoners, physical injuries, and
slander by deed, which constitute torture, or grave coercion which
constitutes involuntary displacements of indigenous cultural
communities from their ancestral domain, prescribe immediately and
do not reflect the gravity of these crimes, which are extremely
serious because of the acquiescence or commission by public
officials. Third, criminal procedure does not allow for motu propio
investigations and unnecessarily requires submission of affidavits.
For example, American district attorneys are allowed to direct crime
scene investigations of serious crimes. Due process is followed by
inviting suspects for questioning and clarification of their
whereabouts. Delineations between police and prosecutorial
initiatives are not as clear-cut and defined as in Philippine
criminal procedure so that determinations are immediately made by
district attorneys and crime scene evidence ordered for
preservation. Fourth, our procedural laws do not recognize
extra-territorial application of international law prohibitions of
such serious crimes nor the universal jurisdiction of crimes against
humanity and war crimes.
However, the Justice committee is
favorably recommending that these special crimes now be recognized
by Congress and that special procedures also be legislated for the
proper investigation of such crimes. It is hoped that when
Philippine Congress acts posthaste in promulgating adequate
legislation, with the endorsement of President Gloria Arroyo within
her term remainder, then the darkness enshrouding this country may
soon clear. Otherwise, commitments pledged before the United Nations
will just remain promises etched in sand, readily eroded by the
demands of a purely political agenda.
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