Human Rig htsTreatise on the

Lega l and l udici al Aspects ofImpunj ty

CorurEntncr PnocruDrNcs nruo Rtmtro Anncus

Acts-o\\l-EDG\s\T
The -{teneo H'marr Rrghs Cenrer srshes rc dranl SL{FILD and The Asia Foundation for rhelr umr,rt suppon in firndilg this research project; Carlos P, Medina, Jr., for conceptualizingthe project and making sure it is funded; Dr. Emma Porio for her valuable inputs in the researchframework and survey questionnarres; the Ateneo Human Rights Center Interns, the Constitutional'Law studentsof the Ateneo Law School under Carios P. Medina, Jr., Law Intems from Ateneo de Davao, Xavier Universiry and San Carlos University for conducting most of the interviews; PeachGonzalesfor helping in the research, Dehlma Provido for assistingin the transcriptsof proceedings, RebeccaKoeller and RussellFariflasfor processing the data; the Judges, Prosecutors, Law Enforcers,Non-Govemmental Organizations,Government Organizatiors and families of the Disappeared who willingly cooperatedin the survey; Amparita S. Sta. Maria for the cover illustration (in part adoptedfrom Edvard Munch's "Vampir" and "Tod im Krankenzirnmer" ): the Lawyersof the Ateneo Human Rights Center, namely: Carlos P. Medina, Jr. (Exccutwe Directoron leave), Amparita S. Sta, Maria, SedfreyM. Candelaria,Rea A. Chiongson, Sarah Lou Y. Aniola, Maria Victoria V. Cardona (onleave),Maria Glenda R. Ramirez,Mary Jane L. Zantua, Ana (onleave)and Tricia A. Oco Aleli R. Domingo,Grwn P. Calina,Gilbert V. Sernbrano ,limet F, Sufrga, for all their inpuc and intellectual contributions; and the Staff, Carmelita D. Santos,Raquel F. Constantino, EvangelineB. Riosa,Reuben R. Verdejo and Rodel M. Ernacio for their technical and moral support.

EDIToRIAL BoARD Amparita S. Sta.Maria

Raquel F. Constantino Rea A. Chiongson Yoo-KyeongKwon Mary JaneL. Zanua

Any pan of this publication may be reproducedor quoted for non-commercial purposes with appropriare acknowledgment. Copyright2001. ISBN 971-8899-08-1 A Publication of the ATENEo HUMAN RIGHTS CENTER Ateneo Professional Schools Building 20 Rockwell Drive, Rockwell Center, Makati City 1200 Philippines TeI. No. (632) 8997691 ; FaxN o. (632) 8994342

PREFACE In thisfowth issue of Human RightsTreatise, the AteneoHuman RightsCenter (Center) is plcased, m presentits two)ear sl';.ld! on thel-eyal andluticial Aspects of Impunity. Imptmity or oime without accountabilityis undoubtedlya graoe cause for concern. This is especid)1true whenhuman fig!* uiolatior are invobed, pmticuLrty the right to life. hs magnitule anl, petsistence me an indication that the institutionsand,mechanisms created. to a.ddress it suffer from serious infirmities. Because of its strttcural and procedtnd flaws , thereis a g.owing wrception among the people that accessing thejusticeslsiem is but a futile exercise andrecourse. Beyond. these flaws, ho*"rer, ari orJw extzmal factcrs that equally tlweaten the veryfabric of this system, and corsequently, the people's ight to access and.obtain justice. it is urithin this context that theCenter hos embarked. on an in-dzpth research on theproblem o{ inpunity prtumily /ocruing on is bgal and judicial aspects.The objectives of the research me to identit''1 the root causes d impunity and the different levelswhereit ocans in the criminal justice system; anl ti idntify the polilical, economic and socio-cuhural fort<rrs thot helppupenau it. theedrl! part of theresemch, the Center idzntifiedpotetial subjects fcn interviews amongthz Iaw enfrncers, prosecutors anAjud.ges. Nexc to be identifiedwere the institutions, non-gouerttmental crrgan_i7uiorc anl. fanilies of disappemed persols. The meo of the research coveredLuTon, visayas and Mintznao. Different sets of questionnaires were carefullycrafted and thoughtout uith theenl,ihat in view of eliciting the most int'ormationthatcan be gathered. from the interviewees. After d thedata hadbeen prrrcessed., thecentzr heLd. a natbnal conference on its findings. The conference uns attendedb1 mcne than 100 pmticipantscoming and ciiil frcnn both elw gouemment societl. The first pmt of this publicationpreseftts on overuiewof theproblemof impunity and,I,'y dnun thefranewrrk far theresemch. lt alsoreviews some relevant laws atlares*ng,mp"*ty.- The nixt part coe''ers t.heconfetence proceedings wheredL the dan dwing theactua) presenatiin arereproduced fir the reafurs' better apyeciatim of the resemchfinlings. The Center oJso decided. m incnrporaterebted. articlcsbok a folhw-up on the latest develnpmcnts on some of the ca,esilzntified, in the resemch; and alson git)esp;cid fo,,.,oon issues and sectors that dre n:;r/stly affected.byimpunity. h k theeamest hopeof the center that this publicationcan sen)e as o nrofutble sotnced . informntionfor unlnstanding the problemof impwity anl itsfm,reaching implicaciorson orn irtstitutiorc and,ortr people . k envisions that our law and policyma)<ers and implemenkyrs will utiliTe the resemchto effective\ adaress and.conbat impunit! in aII its formsand at aII leqtels tlvough policJ formdation anA law rdorm.

AMPARIT.A S. STA. MARIA Executive Directm

TABLEoF CoNTENTS
OF IMPUNTTY Page
EflLFh

lnpunity in the Philippines: An Overview Definition of Impunity kgal and Institutional FrameworkAddressing Impuniry F'|npaitils. Se,. Moria Discussions on the legal and Institutional MechanismsRelevant to Impunity Mul]aleL.Zanan Conference Proceedings: Impunity in the Philippines Opening Remarks Fr. JoaquinG.Bernas, SJ. Introduction ReaA. Chiongson Presentation of the Findings A;nnpmitas.S,a' Muia Svnthesis Sedfrey M. Cadelnil Reacton Ljr.dalv{alatab-HafiIa RencSanniena . OpenForum

r6
t6

31

64

IJ

Related Aaicles on Impunity Understanding Impunity: Beyonda Legaland JudicialPerspective RebucaKoeller Postscripton Involuntary Disappearances; Salvador "Bubby" Dacer and Edgar Bentain Gwyn P. Calhw Marcos Human Rights Victims: Fighting for rheir Right to Recovery Sarahl-ouY. ,\r..iolt lmagesof Women in Irhpunity Amgril4S. Su.Maria lmpumty: Foosing on Child Wimesses AnaJatet F. Sr.lF.,ga lMi R. Doningo Yoo&yeargKwor' A Critical Look at the Establishmentof Truth Commissions ReaA' Chi.ongson

103 111 115

IxrnoDUCTIoN

I. INTRoDUcrroN
AmParit4S. Sm. Maria

A. II\,FUNITY IN THE PHILIPPINES: AN OVERVIEW Impunity is currentlybecominga growingconcemparticularlyin the areas of intemationll human rights and humanitarian law. lt is perceived asan ohstacleto State protection and promotion ofhuman righs. Especially in relation to crimesagainsthumanity and other formsof gross violation ofhuman rights, impunity hasbeenregarded asone of the contributoryfactos for their continuedexistence. Thus, the UN Security Council establishedtwo ad hoc intemational criminal tribunals, one for the former Yugoslaviaand another for Rwanda; and inJuly, 1998,the conventionon the establishment ofan internationalcriminal court was finalized and adopted, now known asthe Rome Statute of the Intemational Criminal Coun. Althoggh not yet entered into force, to date, this convention has been signedby 139 countries and is regardedas the institutionalframeworkthat will, amongothers,address impunity. ln its preamble,the Rome Statute expresedis determinationto put an end to impunity for the perpetrators of the atrocitiescommitted against men,womenand children which have deeplyshockedthe conscience ofhumanity and threatenedpeace, security and the well-being of the world. I In the sameyear,the United Nations Commission on Human Righ6 (Commission)under the Economicand SocialCouncil (ECOSOC) in its 52"'rmeeting,adoptedresolutionno. 1998/53on Impunity, urgingthe States,the spectal rapporteurs and other mechanisms of the Commissionto give due attention to the problemof impunity. Among others,it . the importanceof combatingimpunity to the preventionofviolations of "1. Emphasizes intemational human rights and humanitarianlaw and urges Statesto give necessary attention to the questionof impuniry for violationsof intemational human rights and humanitarianlaw, including thoseperpetrated againstwomen,and to take apiropriate measures to address this important issue; 2. Recognizes that, for the victims ofhuman rights violations,prrblicknowledgeof their and the truth aboutperpetratonof theseviolationsare essential suffering stepstowards rehabilitationand reconciliationand urges Statesto intensifutheir effortsto provide victims ofhuman rightsviolationswith a fair and equitableprocess through which these violationscan be investigated and madepublic and to encourage victims to participate in sucha process; xxx xxx xxx

8. Invites the specialrapporteurs and other mechanisms of the Commissionon Human Rights to give due consideration to the issue of impunity in the discharge of their mandates; xxx xxx xxx" The aboveresolutionwasechoedin a later resolutionby the Commission(E/CN.4/RES20O1/70 [25 April 20011), which alsorecognized the establishment ofthe Intemational Criminal Court asan important contribution to ending the culture of impuniry. Earlierstill, and on a morespecificlevel, the Commission adopteda resolutionin 1996appointinga SpecialRapponeurto examine,amongothers,situationsof extrajudicial,summary or arbitraryexecutior$.A yearlater,the Thematic Reporton Extrajudicial/arbitrary executions submittedby the SpecialRapporteur ( 1998). RoME oFTHEINTERNATIoNAL STATUTE CRIMINAL CoURT, U.N. DoC.A/CONF.183/9 ' See

noted thatrrimpunity remains the principal causefor the perpetuation ofviolations of human rights, and particularly those of the right to life." The SpecialRapporteur alsoconsidered that even if in exceptionalcases a Govemment may decide to exemptor limit the liability of perpetrators, its obligation to bring them to justiceand hold them formally accountableshould stand. The report identified conditionsconduciveto impunity, including: (1) legislationthat exempts perpeffators of human rights violationsfrom prosecution;(2) failureof authoritiesto invoke legalprovisions for the prosecution of human righs violators;(3) failureof authoritiesto investigate allegations of human rights violations; (4) absenceof an independent and impartial judiciary; and (5) useof military courts to try memben of the security forces. In the sameyear,the SpecialRapporteur on lmpunity for the UN Sub.Commission on Preventionof Discriminationand Protectionof Minorities, LouisJoinet,submittedhis report and recommended the adoption by the UN General Assembly of the Setof Principles the Prouctian and, Promotion of Hwnan Rights for Through Actim w Combat Impunitl - asa broad strategic frame'workfor the campaign against impunity. The set ofprincipleshave beenprincipallydivided into three areas in reference to the victim's rights.Theseare (a) the victim's right to know; (b) the victim's right ro justice;and (3) the victim's right to reparation.The following is a brief summaryof the three rights as explained in the reporr.

The Rights of the Victim The ight a krww According to the reporq the right to know is not merelyan individual right ofthe victim or his or her nearestof kin, but is also a collective right. With this right comesthe correspondingduty on the part of the State concemed to ensurethat its people "remember"what happened"for the history of its oppressionis part of a people's national heriage and assuchmustbe preserved." The reportproposes two series of measures. First,to dstablish extrajudicialcommissions of inquiry a-l to dismandethe machinerywhich hasmadepossible for impunity to be an almostadminisnativepractice 3:r"ito en-.ure that it doesnot recur,and b.) to preserve evidencefor the judiciary and alsoestablish that r::s- *re oppressors have often denouncedaslies, in order to discredit human rights advocates.The second =.ar:E Li ro prcsewe archives relating to human rights violations. 'r.snbe --.l'-ted rn the right to justiceis the right to fair a and effectiveremedywhich obligatesthe Stateto r:rEsEz:3 r lTiauorL5, to Prosecute the perpetrators and, if their guilt is established, to punish them. t --ranl*. s;glementary procedural rulesshouldalsoenableany victim to becomea civil party to the himselfor herself.Furthermore, -r- : *.e public authoritiesfail to do so, to institute proceedings E =L:r ;L-E= ,r:t that without an effective responseto the need for justice there can be no just and lasting =:--o:-=:.-r: anl ibrgiveness- a private act which implies that the victim must know the perpetrator and the :r=>-t be able to show repentance.Ifforgiveness is to be granted, it must first have been sought. The report alsostatesthat restrictiorson certain rulesof law may be appliedto further prevent :rpunity, one of which is the issue of the grant of amnesty which mustnot be accorded to perpetrators before the victims have obtainedjusticethrough an effectiveremedy. Iz =':

This right entailsboth individual measures Individual measures and general,collectivemeasures. embrace threekinds of action: (a) Restitution(seeking to restorethe victim to his or her previoussituation); (b) Compensation (for physicalor mental iniury, including lost opportunities, physicaldamage, defamation and legalaid costs);and (c) Rehabilitation(medicalcare,includingpsychological and psychiatrictreatment). Generalor collectivemeasures, on the other hand, referto the giving ofhomage to the victims or public recognitionby dre Stateof its responsibility. Aside from the abovemeasures, thereshouldalsobe guarantees that the victims do not get to face renewed encroachments in achievingthis on their dignity: The reportenumerates the following measures (a) the disbandment (b) repealof all emergency purpose: ofparastatalarmedgroups; laws,abolition of emergency courtsand recognitionof the inviolability and non-derogability ofhabeascorpus;and (c) removal ftom officeofsenior officialsimplicatedin serious violations. In a later report (E/CN.4/2001/9[ll January 20011) ofSpecial Rapporteur, Ms. Asma Jahangiron Extajudicial, summary or arbitraryexecutions, the aboveset of principleswasagainreferredto with regardto perpetrators, the obligations of Statesto investigate violationsand prosecute in line with its duty to prevent extrajudicial, summary or arbitraryexecutions. The Specialrapporteur alsomentionedthe Human Righa generalcommenton article 6 of the Intemational Covenant on Civil and Political Rights, Committee's which reaffirmed the States' obligationsto investigate all human rights violations,particularlythoseaffecting the physicalintegrity of the victim, to bring to justicethoseresponsible for suchabuses, to pay adequate compensation to t}Ie victims or their familiesand to preventthe recurrence of suchviolations.z DeJu.re ardDe FactoImpunity Impunity can exist eitherdejure or defacco. This doesnot imply that one situation excludes the other. In reality, (and it is actuallya morecommonscenario)a State can allow impunity to exist on both levels.It can legislate impunity by the grant of amnesty or limit/disableexistinglawsin order for the investigatiory' prosecution of perpetrators to loselegalbasis. The State alsoallowsimpunity to exist when its criminal justicesystem is not efficientlyworking althoughthe legalframeworkfor the machineryto effectively grievance redress maybe present and is capable of functioning, not only on a theoreticalplane. Another important point is that althoughimpunity prevalentlyoccursin war-tom countriesor those underthe rule ofa military govemmentora dictatorshipbacked-up in nonby one, it can alsobe pervasive civil war-stricken countriesand even thosewith functioning democracies. Where the institutions of the govemmentor its legalframeworkcannot or do not adequately grievance address for violations of human rights,particularly,the right to life, impunity presents perpetrators itself,as escape responsibility and punishment.It hasbeenwidely recognized that sucha situationencourages firrther violations of human rights makingit impossible to achievejustice,peace and stabilityfor the country concemed.Thus, it is vital that aside ftom the legalsystem, the govemmentinstitutionsofa country and its socio-economic and cultural factorswhich contributeto impunity, be likewiseidentifiedand considered.

lllusrative Cases of lmpunity in the Philippines In the Philippine setting,threewell-publicized cases demonstrate. impunity occurringin two levels:in the legaland enforcement mechanisms of the criminal justicesystem and in the institution of the Presidency from wherethe powerto grant amnesty illustratehow impunity and pardonemanates. Altogether, thesecases permeates within the Philippine legalsystem:

zSee (2001). E/CN.4/2001/9

The KwamngBalelmg Case The first illustrativecaseis the Kuratong-Baleleng rub.out case wheremembers of the notoriousgang of Kuratong-Baleleng wereall killed by members of the Presidential Anti-Crime Commission(PACC) allegedly in a shoot-outalthoughther! is strongevidencethat no suchshoot-outtook place.The casewas fint filed in 1995.Within a periodof time the prosecution wasleft without any witnessand the caseagainst the PACC operatives weredismissed. Below is a summary of the court'sresolution. 29 Msrch 1999Resolution in Kuratclrg Baleleng Case The subjectof the Resolutionare five separate but identical motionsfiled by the 26 accused praying that the Regional Trial Court (RTC) makea judicial determinationof the existence ofprobablecause for the rs-.uance of wanantsof arrest; hold in abeyance the issuance ofwarrantsin the meantime,and dismiss the c,a--s shouldthe court find lack of probablecause. This casearoseftom a reported shootout between the police and the Kuratong Baleleng Gang near a :}'-over alongCommonwealthAvenue, QuezonCity at about4:00 p.m. 18 May 1995in which 11 gang nemberswerekilled. Shortly thereafter, a certain SpecialPoliceOfficer 2 (SPO2) Eduardode los Reyes erecutedan affidavit claiming that what took placewasnot a shootoutbut a "rub-out" or a summary i\ecution. LikewiseSPO2Corazonde la Cruz executed anotheraffidavit corroboratingthe material :ie_eatrons of de los Reyes stating that he waswith the latter from the time the 11 gangmemben were ,::cted up to the time they werekilled. A reporterfor the daily neivspaper tabloid Remate alsoexecuted an emJavitstatingthat he waspresent when the 11 gangmembers werearrested. Murder charges werefiled by Chief Superintendent Job Mayo and the relativesof the 11 slain gang remben against97 Anti-bank Robberyand IntelligenceTask ForceGroup (ABRITG) peoplewith the )mbudsman The panel createdby the Ombudsman to conducta preliminaryinvestigationof the charges :ecommended its dismissal for lack of probablecause. On review,anotherpanel reversed the first report and :-crmd probable cause for multiple murdercharges against26 officersand personnel of the ABRITG: 10 as after-the-fact. Elevencharges or lnformationswerefiled with the ;rincipals and 16 asaccessories Sandiganbayan but the accused movedthat they be remanded to the Ombudsman for reinvestigation aswell :. to enablethem to file a motion for reconsideration from the panel'sfindings,which motion the granted. Sandiganbayan After reinvestigation, amended informationswerefiled which downgraded the chargeagainst Chief Supt.PanfiloLacsonfrom principal to accesspry after-the-fact. Hence the accused invoked RepublicAct (RA) 7975prayingthat their casebe tansferredto the RTC which hasexclusive jurisdiction pursuantto said law considering that none of the principal accused hasthe rank of Chief Superintendent or higher; and movedfor a judicial determinationof the existence of probablecause for issuance of the warrants. The Sandiganbayan admittedthe amended informationsbut orderedthe tansfer of the cases to the RTC. However,it did not immediatelyact on the motion for the determinationof probablecause. The Special Prosecutor opposed the transferbut the Sandiganbayan did not alsoact immediatelyon this opposition. ln the meantimeRA 8249 took effect5 February1997amendingRA 7975and vestingjurisdiction on the Sandiganbayan over cases involving PhilippineNadonal Police (PNP) officerswith the rank of Chief Superintendent or higher,whether charged asprincipal or otherwise. Said law wasapplicableto all cases pendingin court where trial hasnot begun.Accordingly,the Sandiganbayan resolved to take cognizance of *re cases. AccusedLacsonand the restwent to the Supreme Court challengingRA 8249'sconstitutionality insofarasit is madeapplicableto cases already filed in court. The Court upheld the consrirutionalityof RA 8249but saidthat "for failure to show in the amended informationsthat the chargeof murder is inrimately connected with the discharge ofofficial functionsofthe accused PNP officers,the offensechargedin the

jurisdiction of the RTC, not Sandiganbayan," subjectcdminal cases is plain murder,within the exclusive and so orderedthe casestransferredto the RTC-QuezonCity. determinations have taken placefor a periodof more than two years ' All of thesepre-trial procedural sincethe incident happened. The mediahypeon the incident fadedand the witnesses wereno longerin the public eye.In the meantime,saidkey witnesses have recantedtheir statements which they executedin 1995. WitnessDe Los Reyes who wasnow in Canadaexecuted an affidavit in 1998stating that "the incident of May 18, 1995wasa legitimatepolice encounteior shootoutwith known criminal elements." The same declarations weremadeby the restof the rvitnesses in their respective Even the affidavitsof desistance. relatives of the victims filed swom statements to the effectthat they wereno longerinterestedin pursuingthe cases. Thus, the RTC in finally decidingwhether therewasprobablecause for the crime of murderagainst the accused, held that with the documents showingthe recantationby De los Reyes, Capili, JaneGomezand de la Cruz,and the affidavitsofdesistance ofprivate complainants, the complexionof the case for the prosecution hasdrasticallychanged. As the records of thesecases stood,therewasabsolutely no evidenceto supporta finding of probablecause to issue warrantsof arrestor to subjectthe accused to fi1rthertrial. Amrcsty grantto RA}l The second caseis the grant ofamnestyto the Reformthe Armed Forces Movement (subsequently calledthe Rebolusyonaryong AlyansangMakabansa) - Soldiers of the Filipino People(RAM's armedgroup)YoungOfficers'Union [RAM -SFP-YOU] - an organization within the military closelylinked with fprmer SenatorJuanPonce-Enrile and its mostwell-known leader,formerSenatorCregorio "Gringo" Honasan.The grantedwasin connectionwith the several amnesty co*pd' erat(coup) attemptsit launchedwhich also resulted to the killing ofa numberof people,including civilians. There weretwo major coupattempts(asidefrom several "incidents"involving "military intervention") which the RAM initiated: the August 1987coupattempt and the December1989coup attempt. August1987 According to the Presidential Fact.Finding Commissionto conductinvestigationto the 1989 Rebellioncreated under RA 6832,in the Augustcoupartempt,rherewereat leasteight areas of major conflict betweenthe rebelsand the govemmentforces,and numerous other areas of minor confrontatron. Theseareas wereMalacaflang, camp Aguinaldo,PTV-4/camelot Hotel, Broadcast city, vAB, RECOM 3Camp Olivas,RECOM ?.Cebu,and Legaspi Airport. The rebels wereable to control for a short periodof time theseareas exceptfor Malacafrang. In its final report,the Commission n rote: The 28 Augustcoupattempt lastedfor abouta day and a hali In the end, there were some53 peopledeadand more than 200 wounded,many ofthem civilian bystanders who weresprayed with bulletsasthey chided the rebels govemment and cheered for the troopsin (citing "The Philippine Experience," the areaof Malacaflang. Final Report of the Departmentof National Defense SpecialInvestigating Committeesubmittedto Pres. Aquino on 22 March 1990).This wasthe first time coup participants had ever fired directly at unarmedcivilians,an act that hasdone irreparable damage to the rebel'sreputationand credibility.xx x (p.200) xxx xxx xxx

In Congress, bills wererushedto grant pay increases to soldiers. Across-the-board granted( 106percentfor a Master salaryincreases for the whole AFP wereunprecedentedly Sergeant, to 36 percentfor a General).Furthermore, therewasa joint Senateand House investigationon the coupattemptsupposedly to determinewhether anti-government politicians,includingdeposed President Marcosand rightist elementsin the US govemment, werebehind the mutiny. OppositionSenatorEnrile stronglydeniedany involvement in the coup.x x x In an intewiew over DZRH, SenatorEnrile wasambivalentat one point, refusing to makeany statementof'condernnationor absolution.' x x x Later in the interview,however,he capitulatedby sayingthat the mutineers should'rethink their (citing the article publishedin the Philippine Star, "Enrile urgesGringo to Yield") positions.' December1989 The Commission reportsthat this coupattempt is the mostserious and costliestever mountedagainst the Aquino administration. It noted the Departmentof National Defense SpecialInvestigatingCommittee reportthat asof 18January,1990,therewerefifty (50) civilians who werekilled in the coup. The Commission alsofound that this coupattempt involved the mostnumberof troops.This has beenattributedby the Commission to the tactical allianceforgedbetweenthe RAM-Honasan Factionand the Loyalists - officersidentifiedwith the groupof Brig. Cen. Zumeland Gen. FabianVer. The Commrssion alsofound that a total numberof 2,290military personnel participatedin the coup - 63 officerswere involved in both the August 1987and 1989attemptsand ?1 officersimplicatedin 1989werealso involved in previous coups. The Commission recommended that all the military personnelinvolved be prosecuted under the provisions appropriate Articles of the of War. Aside ftom the officersinvolved,the Commissionalsoobtainedcopiesof the charges with supporting documents filed with the DepartmentofJusticeagainstcivilians involved in the failed coup, inost notably, then Senator with Rebellionwith Murder and Frustrated Murder on 15 JuanPonceEnrile, who wascharged February 1990.This case wassubsequently reducedto simplerebellion . (Ponce Ervilee. JuAge Salazar, G.R. Nos.92163and92164,lune 5,I990). The other case filed against him for harboringHonasanin his house wasdismised.(PorceEmih v. Judge Amin, G.R. No.93335, Septenber 13,1990) Citing the Constitutional provisionon accountabilityof public officers(Art. Xl), rhe Commission alsoplacedon recordthe evidenceit hasreceivedregarding the activitiesand behaviorofseveralopposition politicians,someof whom wereelected,during the coupattempt.It cited Vice President SalvadorLaurel, ExecutiveVice President of the NacionalistaParty,BlasOple and SenatorJuanPonceEnrile. The report stated: Insofarasthe portionsofthe videotape with the Commission shows,not only did Enrile blamethe govemmentfor the coupartempt,but like Laurel,he failed to condemnthe coup participants or call upon them to lay down their arms. Laureland Ople evensuggested that President Aquino considersteppingdown. Ratherthan closeranksto defendthe Constitution and the duly constitutedauthority, as requiredof public officers,both Laureland Enrile took turns in heckling the beleaguered govemmentand thus contributedto the instabilityof the situation.They sounded as if President Aquino, not the rebels, wasthe lawbreaker. Six yearsafter the final reportof the Commission, President Fidel V. Ramosissued Proclamation No. to members 723 grantingamnesty and supporters of RAM-SFP-YOU whosenameswere to be inclLrded in the list mutuallyagreed upon betweenthe govemmentand the RAM. The amnesry coveredactscommitted period betweenthe from February1986 and23 December1992,which havebeencommitted in pursuitof 8

political belie6 including,but not limited to, rebellionor insurrection, sedition,amongothe$. Antecedent to this and asearlier stated, in Salazarrr. Enrile, the SupremeCourt reducedthe charge against Enrile to simple rebellion, stating that murder cannot be tried separatelyfrom rebellion if the former resulted asa consequence u. Hmrandez, an old case of dre laner. It cited People decidedin 1956(G.R. No. L-6025-2699,99Phtl515). Hence, an amnestygranted for rebellion meant an amnestyfor the murders(and homicides) committed 26,1997, a total of3,846 individualsweregrantedamnestyunder the du;ng dre coupattempts.On February proclroation, including Gregorio Honasan for his involvement in the August 1987, October 1988, December 1989,ad October 1990 coup attempts. Mau Hranan Rigfrts Cases

The third caseare the classsuits filed by victims of hurnan rights violations against the late Ferdinand E Marcos and/or his family in Hawaii. Three decisionsare discused here with focus on the isue of impunity. Horever, the most imponant fact to be consideredhere is that until now, no actual recovery has been made ts dre victim-parties. As of 1994, the assesof the Marcoseshave remained frozen, thereby, negating any psibility of recovery or reparation. In ReEsmu Of Ferdinand. E. MarcosHunwn RigfirsLitigation, Ag4im Trajuw; ArchimdesTrQaw, flaintiffs-applhes, v. Fadinsrd E. Mmcos, defendant,atrd, ImeeMarcos.Manoac, il&iant-aDdlant.(978 F -2d. 493 [9'^ Ct.1992]) Archimedes Trajano wasa studentwho attendedan open forum at which Imee Marcos-Manotoc poke. At the forum, he questionedher appointment as the director of an organization. Thereafter, he was kikrapped, interrogated and brtured to death. His mother, Agapita Trajano, brought suit to recover damages qr behalf of his estatefor false imprisonment, kidnapping, wrongful death and deprivation of rights- A Jetault judgment wasentered agairst Marcos-Manotoc conceding that Trajano was indeed tortured, and that hb deathwascaused by military intelligenceauthoritiesunder her control. According to Marcos-Manotoc, shewasbeingsuedin her official capacityasa gorlemmentagent havingconrol over the Philippine military police. As such instrumentalityof a foreignsovereign, shewas drrefore immuneunder the ForeignSovereignImmunitiesAct (FSIA), for foreignstatesand their agenr kxe their sovereign immunity only for tortiousactscommitted in the U.S. The court struck down her aBument,holding that therewasno immunity for the actsofa sovereign committed outsideofthe scopeof her officialdutiesand beyondher authority;and by the defaultjudgment,it wasdeemedadmittedby Marcosl'lanotoc, that sheactedon her own authority,not on the authoriryof the Philippine govemment. Marcos-Manotoc arguedthat when the US ratified the "UN Convention Against Torture and Other Cnrl, Inhuman or DegradingTreatment or Punishment," it understood the sameto require that a private r(:ht of action be broughtonly for torture committed in the territory under its jurisdiction. Moreover,she &ined that to allow suchforeignsuit involving a tonious act not committedwithin its territory to prosper, rqrH leadto moreforeignsuitsbeingfiled in US federalcourr, and engender controversies with foreign nadons. On this point, the Court ofAppeals adjudged that the District Court did indeedhave jurisdiction despiteit being committedoutsideof US territory, because or.erthe case actsof torture fall under the jus ootlns nonn, As such, all statesbelieve torture to be an actionable wrong and no state can claim a sovereign wasunfoundedin this caseas rlirt to tortureeven its own citizens. Parenthetically, the fearof controversy dr Philippinegovemmenthasnot objectedto the US courrs'entenainingTrajano'sclaim. As a final attempt,Marcos-Manotoc assailed the coun'sjurisdictionon the ground that the US C.rstitution did not supportpurelyforeigndisputes.To this, the Court saidthat the questionof whether the jurisdiction, is a matter to be decidedupon by the court beforehearingthe claim againsta FSIA confers fcre(n sute/ofticial. And in a previous case,it had alreadybeen decided that the FSIA did not exceedthe

scope of Aft III of the Constitution by grantingfederalcourtssubjectmatterjurisdiction over civil actions broughtby foreignplaintiffsagainstforeignsovereigns. To wit, it waspointed out that actionsagainstforeign sovereigns in US courtsraised sensitiveissues over US foreignrelations,therebymaking it a federalconcem falling within the ambit of federalcourts. Finally, in the case at bar,Trajano'scause of action wasconsidered asbeing based on murlicipaltort law, not from internationallaw or from US treaties, and so damages wereawarded on the basis of Philippine law. In Re Estateof Ferdinand Marcos,Hunnn Righ* Litigation, MaximoHiLrc,et. ol., Class Plaintiffs; Vicente Clemente, et. aI., ClassPlaintiffs;laime Piopongo , et. aJ., CIas Plaintiffs, ot Plaintiffs-ADellees, . Esate of FerdinandMarcos, Defend ant-Appellafi. (25 F3d. 1467[94 Ci. 1994]) In a separate case broughtby the Republicof the Philippinesagainstir, rhe estarehad alreadybeen enjoinedftom disposing of Marcos'assets. However,due to a settlemenr betweenrhe partiesof that case, the orderwaslifted. As a consequence of this, the claimants(the sameplaintiffs in the classcaseof Hitaoy. Marcos)now seekan order of preliminaryinjunction freezing the assets of the estate,in order to prevenrit from avoidinga collection ofjudgmenr. The estate,in its answer, assailed the district court'sjurisdiction.According to it, under the FSIA therewasimmunity for claimsof damages for personalinjury or deathwhen commiited outsideof the US. To this, the court reiteratedits ruling inTrajano +,.t. Marcos- that the FSIA doesnot immunizeactsof torture and executioncommittedby a foreignofficial,assuchare actscommittedoutsideof the scopeof his authoricy. Furthermore, under the Alien Tort ClairnsAct (ATCA), district courtsare grantedjurisdiction over civil actionsbroughtby aliensfor tort actionscommitted in violation of intemational law or US treaties. Torture is an act prohibitedby internationallaw and all countrieshavejurisdiction ro try cases involving it. The ATCA creates a cause of action for violationsofspecific,universaland obligatoryinternationalhutran rights standards. The violation of the right to be freefrom torture is suchan internationallvpunishableact. It is a concomitantviolation ofa person's fundamentalright to securityand human dignity. (The samerray be said of actsof summary executionand actscausing pe$onsto disappear) In anotherattempt to evadeliability, the counselpropounded rhe argumentthat Marcos'death abatedthe action againstFerdinand Marcos. Although the actionswerebroughtunder the ATCA, these particulartort claimsfor personalinjuriesor wrongfuldeath are very closelyanalogous to violations of the Eighth Amendment right offreedomfrom crueland unusualpunishment,aswell asto claimsfor tortious conductby govemmentofficials. In theseanalogous cases, the death of the tortfeasor doesnot abarethe claim. On the questionof the lower court'sauthority to issue an orderof preliminaryinjunction enjornrng j with the the estate of Marcosfrom transferring or dissipating pendente his assets lite,ih. .orn of agree ^pp.uls plaintifiS. The grant ofprelirninary injunction, it held, could be set asideonly on a showing ofaiuse of discretionand in this case, therewasnone. Despitethe fact that claimantssoughtonly mo-ney damag.r,,. could not be deniedthat the courtshad authority to issue provisionalremedies wherefinal equitableielief was sought,for otherwise, the final grant of relief would be rendered inpossibleto execute. The iernpo.ary injunction grantedby the District Court wasdecreed to be appropriate sincetherewasa greatp.ob"bihty th"t the claimantswould succeed the case on the meritsand damages would be awardedto them.

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Maximo Hilao, ClassPlaintiffs v. , Plaintiff-Appellee, Esate of FerdinandMarcos, Defend,antAppe[ant. (U.S. 9n CircnitC otutof Appeals) Ten thousand fifty-nine ( 10,059)victims and heirsof victitrs filed cases againstFerdinandMarcosfor human-rights abuses committed duringhis regimeby the Philippine military and paramilitaryforcesunder his command.Thesecases weredismissed in the District courtsof Hawaii and Califomia for being nonjusticiable, but on appeal,the Califomia Court ofAppeals reversed inro a class and consolidated the cases suit. SinceMarcosdied during the pendency of the actions,his wife lmelda and son FerdinandMarcos,Jr., as his legalrepresentatives, weresubstituted asdefendants. At the jury trial, the &tate of Marcoswasadjudged llable for abuses it committed.Exemplary damages wereawarded in the amountof $ 1.2 billion and over $767 million wasawarded ascompensarory damages. The Estateappealed the final decisionof the court. First,the counselfor the estate of Marcosassailed the court'sjurisdiction over the foreign case. (978 F.2d493 and 25 However,sincethe issue had already beendiscusedin the ln re: Esnteof Marcoscases F.3d 1467),the matterwasconsidered resjudiccta. Second,the estateattackedthe claimsasbeing barredby the statureof limitations. However,this allegationwasnot deemed meritorious. The ATCA did not conrain a statuteof limitations, therefore,the court adoptedanalogous statutes of limitations.It had a choiceof applyingHawaii's2-yearstatuteof limitationson tort claims,or the Philippines'1-year periodfor bringing actionsfor personalinjury caused by a public officerarisingfrom martial law, or the Torture Victim ProtectionAct which allowedfor an equitable tolling of the statuteof limitations. The court chosethe latter. Sinceany action againstMarcoswastolled during the periodhe wasPresident, until the time he left office in February1986,the claims,having been madein March 1986,weredeemed to have beentimely filed. Third, the estateassailed the certificationof the class asan abuse ofdiscretion. The court'sresponse wasthat Rule 23 (requiringthat a proposed class be madeup of peopleto whom effectivenotice of the pendingaction could be given) had not beenviolated. The class wasnot of an unlimited size. It waslimited to, and composed o( civilian Filipino citizens(including their heirsand beneficiaries) who, berween19?2and 1986,weretortured,summarilyexecuted, or madeto disappear while in the custodyof Philippine milrraryor paramilitary groups. ln fact, the documentationpresented by human rights organizations resultedin the filing of a definite numberof 10,059claims,9,539of which werefound valid. Moreover,combiningthe claimsinto a singleclass could not haveconstitutedan abuse of discretion because the questionof compensable injury for eachcasewasthe same: "Did the victim experience pain and suffering from the torture,summary execution,or 'disappearance' ?And in the caseof thosewho were executed or 'disappeared', did their survivors sufferfrom the lossof the victim's eamingsl" Finally,on the questionof the meritsof the case, the estate wasfound liable as it wasdiscovered that Marcos,althoughhe did not directly order,conspire or aid the military in the torture, had known ofsuch conductby the military and had failed to usehis powerto preventsuchabuses. The court statedthat even internationallaw recognizes the principle of commandresponsibility which holds a superiorliable for the actionsof his subordinates which he knowsof, but fails to take reasonably necessary measures to prevenr. Commandresponsibility is recognized whether in peacetime or during timesof war. "A higher official need performed not havepersonally or orderedthe abuses in order to be held liable. Under international law, responsibility for torture,summary execution,or disappearances who extendsbeyondthe personor persons actuallycommitted thoseacts- anyonewith higher authority who authorized, toleratedor knowingly ignored thoseactsis liable for them." The ruler bearsthe responsibility for human rights abuses committed duringhis personal rule. He alsobears responsibility for the interrogationand torture ofeach person.
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qd JaimePiopcltgco, Plaintiffs-Appellees, JoseMario Si.son o. Estate of Ferdiwnd Marcos,Defarlant-Arye\ant(U.S. 96 Circtit Court of AppeoJs) in ofthe Marcospolitical regime. He wasarrested Jo Ma Sisonwasone ofthe leadingopponents 1977and penonally intenogatedby Marcos,then twice thereafter, by members of the military. During the military's 1" 'interrogation',he wasblindfolded,handcuffed, fetteredand beaten,while being threatened with death. At the 2nd interrogation,he wastied to a cot with a towel placedover his noseand mouth while his pouredwater down his nostrilsfor six hours. In the three daysthat followed,he wasrepeatedly 'interrogators' interrogated and continuouslythreatened.He spentthe next sevenmonths tied to the cot and imprisonedin a hot, dark cell measuring only 2.5 mete$ square. After this period,he spentfive yearsin solitaryconfinement and anotherthreeyearsin near-solitary confinement. wasa politically active owner of a radiostation. Immediatelyafter martial law was JaimePiopongco declared, his home wassearched and his radio station closed. He wasarrested and detained,then taken to the presidential palacewere he washeld incornunicado, interrogated, and subjectedto mock executions. Two monthslater,he wasreleased; althoughthe following day,he wasagaintaken back into custodyupon orders of Marcosand placedunder housearrest(armedsurveillance) for over four years. During thesetimes,he was requiredto reportweeklyto the military and wascontinually threatened. For the period in which he washeld captive,he wasmadeto provideboardand lodgingfor his'guards' in his home until he finally escaped to the

Both men filed cases againstMarcosin 1986,but theseweredismised along with all the othersby the district court of Hawaii on the basisof the act of state doctrine. Due to the Trajano ruling, all dismissals werereversed and all pendingsuitsagainstMarcosfor human-rightsabuses, werereinstated. Sisonand Piopongco, however,asthey pursued their suitsseparately, werenot consolidated in the Hilao class suit. ln 1992, all the casesfor human rights abuses were heard and the jury held the Marcos estate liable against all, including both Sisonand Piopongco. Piopongco put forth claimsfor assault and battery,intentional infliction ofemotional distress, and intentional destructionofbusiness property. The district court, however,rejectedthe claimsbecause they werenot covered by intemational law. He wasawarded damages, but this award $175,000in compensatory wasreduced to $75,000 in orderto avoid the court from having to grant the Btate's motion for a new trial. Sison,on the other hand, had assoleevidencea videotaped dispositionof his direct examination and cross examinationregarding the torturehe wassubmittedto. His counselnotified the jury that it would rely on the evidence presentedat the liability phaseof the trial. At the compensatorydamages phase,he adduced no evidenceand presented no witnesses. Thus, Sison's claim wasnot presented to the jury. Although his counselfiled a motion to reopentestimonyto reintroduceto the jury Sison'sevidenceat the liability phase, judgmentholding the estateof Marcos the samewasdeniedby the district court. It rendered liable to Sison, but awardedthe latter no damages.The court insisted that the jury's finding in the liability phase wasrelevantonly to liability and not damages; it concluded, "Now, somepeoplecan be tortured and not haveany damage at all." On appeal,the Court of Appealsreversed the district court'sruling. The awardof damages to Sisonwasadludged to have beenjustified. The jury instructionsin the liability phase had delined torture as"any act, directedagainstan individual in the offender's custodyor physicalcontrol, by which severe pain or suffering. . . whether physicalor mental, is intentionally inflicred on that individual."According to the CA, therefore, the evidencesufficientto supporta judgmentof liabiliry for torture, is alsosufficientto supportan awardof damages for the pain and sufferingofSison. (Sisonwas t2

seeking onlydamages for painandsuffering, not actual damages) Moreover, the evidence presenred at the tre.properly considered at the compensatlory pr-":t,:"',ld stage si.,.e they were simily different phases l,|!'l::t
or a slngle tnal held belore jury. a single In fact, the definition of torturehad includedprolongedarbitrarydetention,defining the latter as "detentionof a personin an official detention facility or any Jther placewithout any notice lf the .hu.g", and failureqob11nq to trial that personwithin a reasonable iime . . . consider[ing] ali of the .ir"u,oriur,.., existingin the Philippinesat the time of the detention." Sison's solitary.o.fi.!...rt .l."rLy f.il u.rd., th. definition ofprolongedarbitrarydetention,and the abuse which he wassublected to i. th. y."o Jho confinement, constituteda singlecourse ofconduct oftorture. This being tire case, he deserved to receivean awardof damages. In the-matterof Piopongco, on the other hand, the district court washeld to havejurisdiction over . the person and subjectmatter of the case by virtue of the Alien Tort Claims Act. Under this Act, distrrct courtshavejurisdictionover toftious actscommittedby "citizensof a State u"a .i,i"rn, o, ,u1".* oi ro..ig. state" Piopongco wasa U.S. citizenand Marcos,a Filipino citizenaswell asa residentof Hawaii " time at the oI tne surt. The CA held that the lower court ened in dismissing the claimsofassault,batteryand intentional infliction ofemotional distress, againstPiopongco for not beiing based on intemational law. The assault and batteryclaimsaroseout of actsexercised on him during his detenrion in 1972,and such actscould be upheld asactsof torture (asthey were,in fact, the sameactsfor which the Marcos Estatewasfound liable). The claim ofemotional distress, on the other hand,wasbased on the fact of beingplacedund". hour. fo, a periodof four years without charges "rr.rt beingfiled againsthim - a clearcase off,rolongedarbitraryd"t..rtio.,. As statedbefore,no actualrecoveryhas yet been made by the victims of human rights violations whoserightswereduly recognized and adjudicated in thesecases.

AddresingImpunity: an lmperarive To date,thereare still casesof disappeared persons whosewhereaboub are completelyunknown to their familiesand thesecases not only occurredduring the Marcosregimebut alsounder the administrations of formerPresidents Aquino, Ramos, Btrada and ArrJyo. Thus,fiom the foregoing,it is clearthat impunity continuesto be a major problem . . in the philippines. As earliersiated,it shouldbe examined with morescrutinyto determinehow impunity permeates within the Philippinelegalsystem - in the legaland enforcement meihanismsofthe philippine cri*i""iir",i." ,vr."and in the institution of the Presidency_ from where the powerto grant amnestyand pardonemanates.Unless the problemof impunityls properlyaddresed,the violaiion of hLiman rtghts,panicuia.ly the .igt ii" rir., i, guaranteed to persistin the countrv.

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Refermca: (June1998) (accessed AConuentbnAga tt InpurLitJ!, WtTHouT IMPUNITy Sept.6, 1999) <http://www.derechos.org/wi/1/6.html>. Commission on Human RightsAdopts Resolutions on Effectsof lmpunity, Globalizationand Death Penalry Release HR/CN 1938, on Human Rights,Press ElCN.4ll992[-.81 (1999). ExecutiveOrder No. 299, Directing the National Amnesty Commissionto Conduct Verification, Processing, and Determination of the List of RAM-SFP-YOU MembersWho are to be Granted Amnesty Under Proclamation No. 723. Hilao v. Btate of Marcos,103F.3d767 (9'hCir. 1996). ln Re Btate of Marcos v. Marcos,978 F.2d.493 [9'h Cir. 1992]. In Re Estateof Marcos v. Btate ol 25 F3d. 1467 l9'h Cir. 19941. of Deninees,Commission on Human Rights, Joinet, Louis, The Administratirn of lusticeand the Httrnan Rights Sub-Commission on Preventionof Discriminationand Protectionof Minorities, Forty-ninth session, Item 9 (1997). of the provisionalagenda, E/CN.4/Sub.Zll997l2O Lenz, Marlene, Impla;nitf anl thel-aursl, Public Hearing, Committee on Foreign Affairs, - ATlveat tn Justice (Oct.30-31, 1996). Securityand Defense Policy Subcommittee on Human Rights,Brussels People v. Aquino, Crim. CaseNo. Q-99-81679to 89 (1999). Ponce Enrilev. Amin, G.R. No. 93335(1990). Ponce Enrilev. Salazar, G.R. Nos.92163& 92164(1990). Proclamation No. ?23,Granting Amnesty to Members and Supporters of the Rebolusyonaryong Alyansang Makabansa of the Filipino People- YoungOfficers'Union (RAM-SFP-YOU) \0ho Have or May - Soldiers Have CommittedCrimesAgainst PublicOlder, Violations of the Articles of War and Other Crimes Committed in Furtherance of Political Ends( 1996). Repartof theInfupndent Experton the Rigit to Restitutiofl,Compensation and,Rediliation for Victims of Graue Violaticnsof Hunnn Rights and, FmAamenu) Freednms, Mr. M. Cherf Bassiouni,SubmittedPt4rsrr{tnt to Canmissionon Hu:man" Righas Resolution1998143" , Ctuil and PoliricalRighrs , IrcIuding the Questiat of Independerce of theJuAicimy (1999). , Ad.minisnatimof Jrurice, implniry, E/CN .411999165 Resolutionin KuratongBaleleng Case(29 March 1999). Sisonv. Esate of Marcos(9'hCir. 1996) (No. 95.16779). The 1987Constitution of the Republicof the Philippines. The Final Reportof the Fact Finding Commission pursuantto R.A. No. 6832, (Re: Coup d' Etat of Dec. 1989)(Oct. 1990). The PhilippineExperience, Final Reportof the Departmentof National Defense SpecialInvestigating (Mar. Committee 22, 1990). t4

ThematicReports on Extrajuliciall Arbitrary Executions on Hwtnn Rigfus , Reportto lJnited Nadoru Commission , 53rdSession, Mar.I}-April 18, 1997 (accessed byJanBauer Aug. II,Iggg) <http://uww.hri.ca/uninfo/unhc197/theme >. 2.l.rnnl til/tTHoUTIMpUNrTy, Whst is Impunir1?, Sept.6, 1999) June 1998(accessed <http://www.derechos.org/wi/1 / l. html>. Wilson, RichardJ., A Permanent Intemational Criminal Court: Impunity Loses Another Round, IntemationalConference:Impuniry and lts Effects on DemocraticProcesses, Santiagode Chile, (Dec. 14 1996)(accessed Aug. 8, 1999) <http://rvrvrv.clerechos.orgflroagr/xi/2/,"r'ils<.rn-eng.html>. Repanof dv Special Rapptrcur , Ms . ,\sna Jahtngir, submitted. purvant to Cunmissionon Human Righcs resolution 2000131 , E/CN.4/2001/9(2001). RomeStatueof the InternationalCriminal Court, U.N. DoC. A,/CONF.133/9 ( 1998). U.N. CHR Res.2001/70, E/CN.4/RES/2001/ 70 (2001). (1998). U.N. CHR Res.1998153

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B. DEFINITIoNoF IMPUNITY Impunity asthe term is usedin this studymeansthe absence of punishment,liability and/or accountability by the Stateand is agents for the violation of human rights;particularlyrhe right to life. It includes not only the impossibility or improbabilityofseekingredress within the legalsystem but alsothe failure to obtain justice even after a legal remedyhas been sought and exhausted.Thus, in this study, there is impuniry when there has been a violation on the right to life by the State or is agentsand any of the following circumsAncesaje present: a.) there is no legal remedy available; b.) there is a legal remedyavailable but iustice is not achieved either because: 1.) the investigative and/orprosecutorial process is ineffectiveor inadequate; 2.) there is no independence/impartiality part on the of the judge;or 3.) a subsequent law is enactedor the executiveprerogative is exercised resultingin the failure to hold the perpetrator liable or accountable for the violation of the rieht to life.

C. LEGALAND INSTITUTIoNAL FRAMEWoRK ADDRSSSING IMPUNITY In the Philippines, Sate accountability and the policy to protect and promote human rights are enshrined in the 1987 Constitution- Some provisioru which can be consideredrelevant to the iszueof impunity, either directly or indirectly, are the following:

Hunun Dgnitf andHlrnan Rigfus

STATEPOLICIES
sec. 11. The state valuesthe dignity of everyhuman personand guarantees full respect for human rights.

ARTICLE XIII - SOCIALJUSTICE AND HUMANRIGHTS

Sec.1. The Congress shall give highestpriority to the enactmentof measures that protect and enhancethe right of all the peopleto human dignity, reduce social,economic,and political inequalities, and removecultural inequitiesby equitablydiffusingwealth and political powerfor the common good. To this end, the State shall regulate the acquisition, ownership, use,and disposition of property and its increments-

Rlk o lrle BILLOFRICHTS

Sec I . No penon shall be deprived of life, liberty, or property withour due processof law, u *nll any personbe denied the equal protection of the laws.

|.

.\ccess tolusticeand. Speedl Digosinono/Cases BILL OF RIGHTS Sec.11. Freeaccess to the courtsand quasi-.iudicial bodiesand adequate legalassistance shall not be deniedto any personby reason of poverty. Sec.16. Al[ persons shall have the right to a speedy dispositionof their cases beforeall judicial, quasi-judicial, or administrative bodies.

ARTICLE VIII - ]UDICIAL DEPARTMENT Sec.5. The Supreme Court shall have the following powers: (5) Promulgate rulesconcerningthe protectionand enforcement of constitutional rights,pleading,practice,and procedure in all courts,the admission to the practiceof law, the IntegratedBar, and the legalassistance to the underprivileged.Such rulesshall provide a simplifiedand inexpensive procedure for the speedy dispositionof cases, shall be uniform for a[ courtsof the samegrade, and shall not diminish, increase, rights. 9r modify substantive Rulesofprocedureofspecialcourtsand quasi-judicial bodiesshall remain effectiveunless disapproved by the Supreme Court. Sec. 15 (1) All cases or mattersfiled after the effectivityof rhis Consritution must be decidedor resolved within twenty-fourmonth5from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve monthsfor all lower collegiate court, and three monthsfor all other lower courts. ({) Despitethe expirationof the applicable mandatoryperiod,the court, without prejudiceto suchresponsibility asmay have beenincurredin consequence thereof,shall decideor resolvethe case ot mattersubmittedtheretofor determination.without further delay. Executive Prerogative ARTICLE VII - EXECUTIVE DEPARTMENT Sec.19. Exceptin cases of impeachment, or asotherwise providedin this Consrirution, rhe President maygrant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall alsohave the powerto granramnesty with rhe concurrence of a majority of all the Membersof the Consress.

JudicialIndzDenlznce ARTICLE VIII - JUDICIAL DEPARTMENT Sec.7. (3) A Member ofthe Judiciary mustbe a person ofprovencomperence, integriry, probity, and i.ndependence.

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Accountability

ARTICLE XI - ACCOUNTABILITY OFPUBLIC OFFICERS

Sec.l. Public oftice is a public trust. Publicofticersand employees mustar all timesbe accountable to the people,servethem with utmost responsibilityr integrity, loyalty, and efficiency,act with patriotismand justice,and leadmodestlives. Sect.2. The President, the Vice.President, the Members of the Supreme Court, rhe Memben of the ConstitutionalCommissions and the Ombudsman mavbe removedfrom officeon impeachment for, and conviction of, culpableviolation of the Constitution, treason, bribery,graft and comrption, other high crimes,or betayal of public trust. All other public officersand employees maybe removedfrom officeasprovidedby law, but not by impeachment. Sec.4. The presentanti.graftcourt known as the Sandiganbayan shall continue to funcrion and exercise its jurisdictionasnow or hereafter may be providedby law. Sec. 5. There is hereby created the independent Office of the Ombudsman, composedof the Ombudsmanto be known asTanodbayan, one over-all Deputy, and at least one Deputy for eachLuzon,Visayas, and Mindanao. A separare Deputyfor the military establishment may likewisebe appointed. Sec.13. The Office of the Ombudsman shall have the following power,functionsand duties: ( 1) Investigate on its own, or on complaint by any penon, any act or omissionof any public oficial, employee,office or agency,when such act or omission appearsto be illegal, unjust, improper,or inefficient. xxx xxx xxx

NationoJ Hlrnan Righr lrudrution ARTICLE XIII - S@IALJUSTICE AND HUMAN RIGHTS Sec.l7 (l) There is herebycreatedan independent officecalled rhe Commissionon Human Rights. Sec. 18The Commission on Human Rightsshall have the following powersand functions: ( I ) Investigate, on its own or on complaint by any party, all forms of human rights violationsinvolving civil and political righs; (2) Adopt its operationalguidelines and rulesofprocedure,and cite for contempt violations for thereofin accordance with the RulesofCourt; (3) Provideappropriate legalmeasures for the protectionof human rights ofall prsons within the Philippines,aswell asFilipinos residingabroad,and providefor prcventive measurcs and legal aid servicesto the underprivileged whosehuman rights have beenviolated or needprotection;
xxK

xxx

xxx

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II. DIscUssIoNs oN THE LEGALAND INSTITUTIONAL MECHANISMS RELEVANT TO IMPUNITY Marl lane L. Zanan

NotwithstandingArticle Il, Section 11 of the i98? Constitution, which providesthat the Saie values full respect for human rights,human right: the dignity of everyhuman personand guarantees violationsin the Philippinescontinue to exist. betweenexisting pnctice-.anJ A cursory view of the Constitution and other [aws,and a comparison what theselawshope to achieve,revealan almostformidablestructurethat engenders and makespo**rblefie human rights violations with impunity. commission of

of Powers The Constitution and The Principleof Separation Under the principle ofseparationof powers, eachof the threeco-equaland coordinatebranches of government - the Executive,Legislative, and judiciary - hasexclusivecognizance of matterswithin irs judsdiction,and is supreme within its own sphere(Angaravs. Electoral Corumission, 63 Phil. 139). Being govemment supreme, eachbranch of is distinct and not directly subjectto the control of the others.Of the however,the judiciary maybe deemed threebranches, the weakest for the reason that the courtscannot ?notu proprio act on violationsofhuman rightsbut necessitate the initiation of cases beforethe criminal justice system is put to action. This meansthat a personmay perpetrate a human rights violation in broaddaylight witnesses, before several but the court system cannot move to deliverjustice if that offenderis not or if apprehended, the prosecutors find no probablecause for filing a case. The efficiencyof the apprehended, judicial system, therefore, depends largelyon the competence and efficiencyof law enforcement, investigation point, amongothers,to slow investigative and prosecution agencies and the judiciary itself.Sadly,many cases work and delaysin prosecution and decision-making. Cloggingof court docketsfollow and inevitably,all more often than not, renderthe availablemechanism thesefactors, for redress futile. The apparent distrustin the criminal justicesystem, its being perceived asweak and the fear generated by law enforcers, high-rankinggovemmentofficialsand the military on the citizenryall contribute to impunity.Victims either do not pursue web of their cases anymore, or are caughtin the endless postponement and delays, or arejust too afraidto pursue a litigious rernedy. As shown in the research, fearof reprisalcould either be perceived or actual.It should be bome in mind, however,that this perceptionis alsorooted in the Philippine society's pastexperiences, most particularlyduring the Marcosdictatorship.

fhe Practice of Administrative Detention During the Marcosregime,peopleperceived to be critical of the dictatorshipreceived"invitations" from the military or the police for questioning. ln the case ofBabsc u. N ational Intelligence Board,lediton, columnists, reporters and featurearticle write$ filed on January1983a petition for prohibition with preliminaryinjunction against National IntelligenceBoardand ranking military officers,complainingthat they received summonses, subpoenas them to or directivesfrom military authoritieswho have subjected sustained inteffogation,touching the mostdelicateaspects of their work, beliefs,associations and even their privatelives.Typical of the summonses wasthe confidentialletter sent by the Chairpersonof the National
rArleneBabst,eccl. v. National lntelligence&rard, SpecialOrmmittee No. 2, elat., G.R. No. L-62992,Seprcmber 25. 1984.

IntelligenceBoard,SpecialCommitteeNo. 2, Armed Forces of the Philippines(AFP) Brig. GeneralWilftedo (Ret.), Btrada, to petitioner Babstwhich readasfollows: "Madam: "Pursuant to the authority vested in me by law, you are hereby requestedto appearbefore this SpecialCommittee at PhilippineArmy Officer'sClubhouse, Fort Bonifacio,Metro Manila, (sketchattached),9100 A.M., December 22, 1982,to shedlight on confidential mattersbeing looked into by this Committee. "Your failure to appearon the specifieddate and place shall be consideredasa waiver on your part and this Committee will be constrained to proceedin accordancewith law. "Very truly yours,xxx" The subpoenas camein the wakeof the mirss arrest,indictment and prosecution of the editor and staffof a publication critical of the then prevailing administration. These inviations allowed the circumvention of due proces and the curtailment of basic rights and expandedthe oppomrnity to detain personswho were deprived of adequatelegal protection in the process. In the earliercaseof Peofu v. Diho,2 the police officerclaimedthat he merely"invited" the accused to the precinctwherehe reportedlymadean extra-judicialconfession of his guilt. Noting that such "invitation" wasthe police officer'seuphemism for an arrestwithout a warrant,the Supreme Court statedthat the crucial stagein the custodial investigation of the accusedwas in the precinct where he wassaid to have verballyadmittedhis guilt. "That stage wascritical because of the attendantcircumstances that bring about an intimidating and threateningatmosphere peculiarto custodialpolice investigation.In such an atmosphere, a man of ondinaryor avemgecomposuremay yield to a skilled investigator or one who though unskilled is proneto brutal techniques. All the more,his constitutionalrights mustbe respected". Thus, despite the existenceof lawsproviding for the protection of the rights of all persons,whether or not they aresusPected ofhaving committeda crime, it is difficult to reducethe opportunity of possible abuse of human rights in pre-trial detentionor suchdetentionsintegralto the proces ofbringing suspected offendersinto the justice system.Admittedly, it is in the arena of administrative detention that visilance in securinghuman rights is most urgent and challenging. In 1993, the LAWASIA Human Rights Committee in cooperation with the Ateneo Human Rights Center conducted a field research on adminisnativedetention in the Philippinesby intewiewing detamees, policemen,lawyers, judges prosecutors, and jailersin selected areas aroundthe country. In the study,the administrative detention process (a) anest; (b) wasdivided into four stages: custodial investigation;(c) safekeeping; and (d) inquest. The researc.h project revealedthe following: A. Arrest L Around 90% of the detainees werearrested without warrantand in violation of various procedural requirements under the law. Many ofthe detainees weremerely"invited,'for questioning and then detained and treated like the others directly anested.

: G.R.No.43259, 23, 1980. October

z0

werenot informedof the cause 2. Many detainees of their arrests.Their familieswerealsonot advised of their arrests. force. 3. Employmentof unreasonable

B. CustodialInvestigation
1. Many policemenwereunartrare that custodialinvestigationincludes"invitations". 2. Many of thosearrested werenot informedof their rights to remainsilent and to counsel. Many policemenviewedlawyers to their investigations. asobstacles given by the police: (a) to 3. Many detainees claimedmaltreatmentby the police. Reasons (c) asa resultof provocation;(d) the elicit information; (b) to obtain confession/admission; guilt is certain. suspect is a hardenedcriminal; and (e) the suspect's Safekeeping 1. No presumption of innocence.There wasno differencein the treatmentbetweendetainees not yet chargedand those already charged in court. 2. Jail conditions:insufficientfood and limited space.Somedetainees complainedof times when they had to sleepstandingup. Water, however,wasmostlyavailable,and most prisons had infirmaries. 3. Illegal practices: a- The legallyallowableperiodsof detentionwereoften not compliedwith. Many policemendid not know when the legalperiods ofdetention begin to run, and thosewho knew found them insufficientand often failed to comply with them. b. Extended, legalized and repeated There is extendeddetention when police detentions. prolongdetentionbeyond*re allowableperiodby filing an initial chargependingthe gatheringofevidenceto suppoftthe actualcharge, or by filing chargeafter charge, usuallyfabricated. There is legalized detentionwhen an illegaldetention is placedwith a criminal chargeto justiff continueddetention. There is repeated detentionwhen an illegallydetainedpersonis released beforethe lapse period of the allowable only to be rearrested for the sameor a different offense. c. Other illegal actsincludedmaltreatment, extortion,forcedlabor, and extra-judicial execution("salvaging"). D. Inquest Inquestproceedings failed to address the problems of persons under the administrativedetention because: a. the detainees wereunableto relatethe circumstances of their arrestbeforethe trial prosecutor; b. the inquestprosecutor did not inquire on the length ofdetention beforethe inquest; c. the inquestprosecutor seldominquiredon the detainees' conditionswhile under detention; and d. non-availabilityof prosecutors for inquest.

2l

Many prosecutors saidthey could not do anything aboutabuses during detention unlessthe victim complained.Someadmittedignorance ofextended,legalized detention process.r and repeated

CustodialInvestigation In the samevein, Article III, Section l2 of the 1987Constitution prohibits the useof torture, force, violence,threat, intimidation, or any other meanswhich vitiate the freewill againstany personunder investigation for the commission of an offense, and any confession or admission obtainedin violation of this sectionshall be inadmisible in evidenceagainst him or her. Noting that the penaltiesprovidedfor under Article 235 of the RevisedPenalCodehave not deterredthe commission of the actsof torture and other cruel,humiliating and degrading treatmentof prisoners, ExecutiveOrder No. 62 issued on November 7, 1986, the penalties increased for maltreatmentof prisoners. who prisoner One maltreats a detention under his or her chargeis now penalizedwith Fisidn correccional in its medium period to prisidnmayor in its minimum period, in addition to his or her liability for the physicalinjuriesor damage while one who resorts caused, to maltreatmentin order to extort a confession or informationfrom the prisoner,is punishedwith pnii6n malot in its minimum period,temporary absolute disqualification and a fine not exceeding six thousand(P6,000.00) pesos, in addition to his o\her liability for the physicalinjuriesor damage caused. During the Twelfth Congress, a bill wasintroducedin the Houseof Representatives seekingto prohibit the degrading public displayof persons arrested, accused or under custodialinvestigation.a The bill refers to the practiceof putting suchpersons, who arepresumed innocent by law, in handcuffs and with nametags on public displayor in any mannercausing their degradation, humiliation, dishonor,discredit, ridicule or contempt.lt wasduring the same Congress that a bill wasfiled seekingto providefor the righs of the accused and persons under investigation for the comgnission of a crime and providing for civil and criminal penalties in cases ofviolation thereoi5The measure is basica y a codificationofexisting safeguards for the protectionof the rightsof the accused and persons under investigationfor the commission of a crime under the Constitution, rulesofprocedure,other pertinent laws,jurisprudence and legalopinion that haveso far evolvedin the Philippines.

The Ruleson Criminal Procedure: PreliminaryInvestigation The process of determiningwhetherthere is sufficientgroundto engender a belief that a crime has beencommittedand the respondent is probablyguilry thereofand should,therefore, be held for trial ts preliminaryinvestigation. It is requiredto be conductedbeforethe filing ofa complaint or information for an offense wherethe penalryprescribed is at leastfour years, two months and one day regardless of fine, exceptin cases of lawful warrantless arresdinvolving an offense which requires a preliminaryinvestigation,providedan inquesthasbeenconductedin accordance with existingrules. Under Rule 112,Section3 ofthe Revised RulesofCourt, the preliminaryinvestigationis conducted, thus:within 10 daysafter the filing of the complaint,the investigating officershall either issue a subpoena to the respondent or dismiss it if he or shefinds no groundto conrinuewith the investigation. Within 10 days from the receiptof the subpoena, respondent shall submithis or her counter-affidavit and other clocuments. Within 10 daysfrom the submission of the counter-affidavits or from the expiration ofthe periodfor their submission, the investigating officermayset a hearing,which shall be terminatedwithin five days.Within 10 daysafter the investigation, the investigating officershall determinewhetheror not there is sufficientground
r LAWASIA HUMAN RlcHTs CoMMlrrEE,PRocEEDlNcs oF THECoNFERTNCE lN oN ADMrNrsrRATlvE DETENTTON

SourHEAsr AslA92.93(1999t . (introduced House No. 18l Bill byGilberto Teodoro, " Jr.)( l2'r'Grng.).

22

to hold the respondent for trial. If the investigating officerfinds cause to hold the respondent for trial, he or sheshall prepare the resolutionand information;otherwise, he or sheshall recommendthe dismissal of the complaint.Within five daysfrom the resolution,the recordof the case provincial shall be forwardedto the or city prosecutor or chiefstateprosecutor or, in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction,to the Ombudsman or his or her deputy.They shall act on the resolution within 10 daysfrom their receiptthereofandshall immediatelyinform the parriesofsuch action. Within 10 daysafter the preliminaryinvestigation, judgeshall transmit the rhe investigating resolutionof the case to the provincialor city prosecutor or to the Ombudsman or his or her deputy,for appropriate action. Within 30 daysfrom receiptof the records, the provincial or city prosecutor or the Ombudsman or his or her deputyshall reviewthe resolutionon the existence of probablecause. They shall orderthe release of an accused who is detainedif no probable cause is found againsthim or her. Within 10 daysfrom the filing of the complaintor information,the judgeshall personally evaluatethe resolutionof the prosecutor and may immediately dismis the caseif the evidence probablecause. on recordfails to establish Otherwise, he or sheshall issue a warrantof arrestor a commitmentorder. Once a warrantof arrestis isued, the officerexecutingthe warrant is duty-boundto arrestthe accused within 10 daysfrom receiptof the warrantand to deliver him or her to the nearest police station without unnecesarydelay. When the accused preventive is under detention,his or her case shall be raftled and its records transmittedto the judge to whom the case wasraffledwithin three daysfrom the filing of the informationor complaint.The accused shall be arraigned within 10 daysfrom the date of the raf{leand the pre-trialconference of the case shall be held within l0 daysafter arraignment. While the rulesof criminal procedure providefor a fixed numberof daysfor the above-mentioned proceedings, the arraignment of the accused can be unduly delayed wherea petition for reviewof the resolutionof the prosecutor is pendingwith the DepartmentofJusticeor the Office of the President. Rule 116,Section l1 of the Revised Ruleson Criminal Procedure providesthat the suspension ofarraignmentby the court in suchcases shall not exceed60 daysfrom the filing of the petirion urith the reviewingoffice.In pnctice, however,it is highly exceptional for the reviewingoffice to resolvethe pendingpetirion for review within 60 daysfrom the filing of the petition, causing further unnecessary and avoidabledelays.

The Trial Properand the Right to Speedy Dispositionof Cases From the time a claim or controversyis placed within the jurisdiction of a court until ia final disposition, a prolongedand extendedperiod is demanded from litigants and victims of violations of human rights.This is attributed to institutional and operationalflawssuchasexistingprocedural rulesthat encourage delay,rather than facilitate litigation and dispositionof cases. Ironically, the right to speedynial has long been guaranteed under the 1935, 1973and 198?Constitutions,and continuoustrial is provided under Ruli 119,Section2 of the Rulesof Court. Article IIl, Section14 (2) of the 198?Constitutionand Rule 115, Section 1(h) of the Ruleson Criminal Procedure statethat the accused in all criminal prosecution shall have the right to a speedy trial. Article lll, Section 16 of the sameConstitution guaranrees the right to "a speedy dispositionof their cases before all judicial, quasi-judicial,or administrativebodies" while Article XVlll, Section i2 direcs the Supreme Court within one year from the ratification of the Constitution to "adopt a systematic plan to expeditethe decisionor resolutionof cases or matterspendingin the Supreme Court or the lowercourtsprior to the effectivityof this Constitution. A similar plan shouldbe adoptedfor all soecialcourts and quasi-iudicial bodies."

ZJ

The Probhmof Clogging of Cowt Docl<e*andDelay The presentsate of court dockets discourages even the most zealousof litigants from filing cases seeking to redress violationsof human rights.In 1991,Congress soughtto address the perennialproblemof cloggedcourt dockets by enacting Republic Act No. 7154, amending Section 14 of the Judiciary Reorganization Act of 1981and increasing the numberofRegional Trial Court iudgescommissioned in each judicial region.This law, which authorized the Supreme Court to prioritizethe salas to be established for a given year,however, neglected to provide for a conesponding increasein the number of lower courts. Thus, in 1993,RepublicAct No. 7691wasenacted,expandingthe jurisdictionof the Metopolitan Trial Court, Municipal Trial Court and Muni.cipalCircuit Trial Court and distributingthe workloadof the RegionalTrial Court to severallower courts. However, while Republic Act No. 7691 has somehoweasedthe burden of the Regional Trial Courts, it has made lG more miserablefor lower court judgesand personnel. As a result of the jurisdictionof the Mehopolitan Trial Court, Municipal Trial Court, Municipal Trial Court in expanded Cities and Municipal Circuit Trial Courts, the presentnumber of these courts asprescribedunder Batas Pambansa Blg. 129 could no longer cope with the number of cases now pending before them. Exacerbatedby the yearly volume of cases and the existing court network that cannot cope, there are no limits to the duration of litigation and no immediate effective sanctions againstjudgeswho fail to decide a case swiftly after it is submittedfor decision. Effortsto address theseconcerns have not been lacking,suchas the issuance of Supreme Court AdministrativeOrder No. 51-96designating specialcriminal courtsto exclusively try heinous crimes on a continuous and daily basis,and the enactment of Republic Act No. 8493 or the Speedy Trial Act of 1998,which setsa time limit for trial, and a time limit betweenthe filing of informationand arraignment, and betweenarraignment and trial, and for the entire trial period.Despite these,however, the practice of piecemealtrial in most courts in the country still prevails, court resources continue to be lvasted postponements and avoidable still clutter the records, As the trial of a caseis prolonged, the memories ofwitnesses fadeand punuing remedies for violations of human rights is made prohibitively expensivefor litigants who are poor or unable to pay dre costsof legal sewices. It should be noted that crucialto the effectivityof the Speedy Trial Act of 1998is the acknowledged needunder the law for a favorable climate to set in beforeteal changes in the rate of case dispositioncan occur.Thus, the law requiresthat there be adequatebudgetaryand other support from Congressto enable the SupremeCourt to fill up all vacantcourt positionsand implementrules,regulations, administrativeordersand circularswhich seekto accelerate the dispositionof cases consistent with the standards set by the law.

Institutional Mechanisms The Viavss Prouction Progarn To encourage witnesses to testi6',RepublicAct No. 6981wasenactedon April 2{, 1991' providing for a Wimes Protection, Security and Benefit Programto be implemented by the Department of Justice (DOJ). Under the program,a witnesswho is being threatened for the purpose of preventinghim or her ftom testifrlng may be admitted into the program, provided that the offense in which his or her testimony will be usedis a gravefelony asdefined under the RevisedPenal Code or its equivalent under special laws; and that his or her testimonycan be substantially corroborated in its materialpoints.The witnessshall be providedby the DOJ with a securehousrngfacility.and shall be entitled to relocation or change of personal identity when the circumstances warrant.He or sheshall alsobe assisted in obtaining a meansof livelihood and if relocated, shall be entitled to a financial assistance for his or her supportand that of his or her family. If a witnessis killed because of his or her participationin the Program, his or her heirsshall be entitled to a burial benefitof not lessthan P10,000.00 and his or her qualifiedminor or dependent children shall be entitled to free education, from primary to collegelevel in any state,or private school,collegeor university.The law also provides that the court or investigating authority shall assurea speedytrial where a witness admitted into the

24

program shall testifu,and shall endeavor to finish the proceeding within three months from the filing of the case. In reality,however,the slowjudicial proces characterized by postponements usuallyby the accused, the inability to have the testimonyofwitnesses perpetuated within the shortestpossible time and the length of time that the Supreme Court takesin decidingchangeofvenue petitionsfor the protection of the witnessall contributeto the inefficiencyof the program.
I ne botra ot \,Lqrms

On March 30, 1992,RepublicAct No. 7309wasenacted,creatinga Boardof Claims under the DOJ for victims of unjust imprisonmentor detentionand victims of violent crimes.Under the Act, one who was (a) unjustlyaccused, convictedand imprisoned but subsequently released by virtue of a judgmentof acquittal, (b) unjustlydetainedand released (c) any victim of arbitraryor illegal detention or without beingcharged, (d) any victim of violent crimes,mayfile claimsfor compensation beforethe Board. However,victims of unjust imprisonment or detentioncan only claim compensation based on the numberof months of imprisonment or detention and suchcompensation per month. In all other sho'-rld nor exceedP1,000.00 cases, the maximumamount for which the Boardmay approvea claim mustnot exceedP10,000.00or the amountnecessary to reimbu$efor actualexpenses or other expenses directly relatedto injury, whicheveris lower.In many cases, the amountprovidedunderthe law is manifestly disproportionate to the damage or injury suffered by the claimants,particularlythe vicrims ofviolent crimes.Furthermore, the Supreme Court hasimposed a very strict requirement for an applicantto be able to qualifyfor compensation. It is not enough that saidpersonwasacquittedaftersufferingimprisonment. In the case u. Officeof the of FelicimBasborio Senetury Depmtment of Justice, G.R. No. 109445 Z, 1994,the Supreme Court held that the phrase , Nouember "unjustlyconvicted"has the sameureaningas"knowingly renderingan unjust judgment" in Article 204 of the PenalCode;so that in orderfor compensarion Revised to be given to a personwho haslanguished in jail beforefinally beingacquitted,the judgmentmustbe shownbeyonddoubt to have been"unjust asit is contraryto law or is not supported by the evidence, wasmadewith conscious and the same and deliberate intent to do an injustice."Such requirement would obviouslydiscourage claimsfor compensation, especially if the total sumclaimedis not substantial. Corollary thereto,a bill6 wasfiled during the Twelfth Congress grantingfirst preference to claimsfor damages by victims ofhuman rightsviolations in the dispositionof formerPresident FerdinandMarcos' accounts or proceeds of assets which wereadjudged by local and foreigncourtsto be ill-gotten wealth and forfeitedin favor of the government. Under the bill, victims of human rightsviolations include thosewho werevicti.ms of abuses committedby any military, police,or civil serviceofficer,especially thosewho were unjustlydetained,incarcerated, tortured,maimed,maltreated, summarilyexecuted or disappeared and presumed deadimmediatelybeforeand during Martial Law. The preferred claimswill include the favorable judgmentwon by 9,539victims of human rightsviolations in rhe lawsuitbeforethe U.S. District Court for the District of Hawaii in the amountof $ 1.9bilhon and the "Asreementof Comoromiseand Settlement"in the amount of $ 150million.7 The Cornmission on Hrmzrn Rig/rs Under Article Xlll, Section 17 of the 1987Constitution, an independent office called the Commission on Human Rights (Commission)is created,amongothers,to investigate all formsof human rightsviolationsinvolving civil and political rights,provide legalmeasures to prorecthuman rights,establish a continuingprogramof research, education,and information ro enhancerespect for the primacyof human rights,monitor the Philippine Government's compliancewith intemational trearyobligationson human visitorial rights, exercise powers overjails,prisons, or detenrLon facrlLries, and recommend ro Congr.rt effectivemeasures to promotehuman rightsand to providefor compensation to victims ofviolations of human rights,or their families.To further assist victims of human rightsviolationsand eocourage them to
6 House (12'h BillNo.3048 (introduced by Loretta Ann Rosales) Congress) 7See articler'rnMarcosHuman RightsVicrims for furtherdiscussions ,rn this rsstrc.

25

repoft such violations, a bill6 was introduced seekingto provide for the establishment of Human Rights Action Cetrter in all legislative districts in the country, under the supervlsionof the Commission and in coordination with the Department of Justice.The District Human Rights Action Centers to be created shall to victims of have power to investigate violations of civil and political rights and shall provide legal assistance human rights violations. Moreover, pursuant to its mandate to monitor the Philippine.govemment's Human Rights compliance with international trcaty obligatioru on human righs, it occasionally issues Advisories to rclevant govemment institutions and agenciesreminding them to fully comply with the intemational commitment(s) madeh the govemment asmentioned in such advisories.On October 31, 2001, the Commission iszuedan advisory on the uSexualAbuse and Torture of lUomen in Custody," addrased especiallyto the Department ofJustice, BureauofComections, BureauofJail and Management and Penology,Philippine National Police and the Armed Forcesof the Philippines.eThese efforts notwittstanding, and despite the seeminglybroad mandate o{ the Commisslon, many sectors,noting its lack of prmecutorial powers,have found the Commisslon'spowen manifesdy inadequate to promote the protection of human rights and effectively minimize violations thercof in the Philippines.

8House by NarcisoMonfon) (12dC,ongess). Bill No. 2639(innoduced eHurnanRiglrs Advirory CHR-A10-2001 (2001). 26

IvrpuNITY IN THE PHnTpPINES A Study Presentation*

*The presentationwos slight\ editedin this pubhcotion.

IMPUNITY IN THE PHILIPPINES:A StudyPresentation BahiaRoom September 5, 2001,Hotel Inter-Continental, Makati City, Philippines

Welcome Remarks Father JoaquinG. Bernas,S.J. Dean, AteneoLaw School lmpunity simply meansgetting awayunpunished for an offense.There is growingconcem about it and, moreimpotantly, dramaticthings arebeginningto be done about it. I am not referringto little violations like rrafficoffenses or jaywalking. lVe can live with those. I am talking speciallyabout gross violations of human rights and crimesagainsthumanity hiding behind the immunity or impunity that often accompanies possession ofpower. As part ofwhat FatherRobert Drinan, S.J.calls the "mobilizationof shame,"there have been at leastthree major Jevelopments in the internationalapproachto impunity. Two of thesehave alreadybeenoperative. Theseare the rntemationalcrime tribunalsfor the formerYugoslavia and the tribunal of Rwanda. Both were established by the United Nations SecurityCouncil. Third is the convention establishing an intemational criminal court now known as the Rome Statutefor an lntemationalCriminal Court. The conventionhasnot yet enteredinto force but it has alreadybeensignedby some .39 sovereign states. The Rome Statutewascraftedin 1998. In the sameyearthe United Nations Commissionon Human i.rghtsadopteda resolutionon impunity urgingsomestatesto give urgentattention to the problemof impunity. Our own country is currentlybattling againstimpunity on the domesticlevel. We went through the proceedings againstthen President Estrada. The impeachment eventuallyled to his ousterfrom -:xpeachment Joseph presidency. process ::-e But the is incompletebecause the impeachment, by design,is not meant to punish-lts sole :rect is to removean unworthy officerfrom an official position. Now the criminal process is going on. \Thether or :.-.rir will end in impunity is somethingthat this whole nation is watching.

29

For the moment, the Btrada trial is being overshadowed by another investigation,that ofsenator panfilo LacsonThe investigation is not at.thepuni,iu. ,i"g. ;.i. ii;,;.^,. is conducting an investigation whose objectis not puniti'e but legislative' will the investigation eventually leadto a punitivestage? And if it does, will it leadto punishment or impuniryl Is the legalatmosphere in the Philippines conducive to imp('niryl The question, I believe, is easily answered Recently,the Human Rightsc""i.r of th. At"rr"o i"* s.hool .onducted a surveyon impunity in the Philippines. The 128respondents consisted ofp.or..uto* un,iln, .nfor..'-, in Metro Manila, cebu, Davao, cagayande oro and Baguiocity' Th. ru*"y ,,.r*r"r r"d homicide cases where the accused wasa ".nt.J"r"""J military officer' a law enforceror a government official. Not surprisingly, the findingsindicate that bringinga military officer,a law enforceror a public official to ;urti.. i, un'uonitt uunt.. A majorityof the respondena felt that the process of both investigationand prosecutionis affectedby the official positionheld bv the aicused. Th" ,nort .o',,'.or,;fr;:;ir;. the speed of the proceeclings. There is a distinct inclination towards delayin the proceedings. Th. p;r*;?;;i.Ly r, *ro.,g.r, *hen the holcls a high wecansee thisverifieJnot ".cus-ed onli in theproceecring, vtr..o..,

l;:t[T;f."oo*r

"g"i,i.r,n.

i", io*,

"rro"r","r,

Pressure can comef'o* th. The result can be eitherdelay, or dismissal of the case, or settlement "..ur.d out ofcourt Pressure can come in various fonns- i",i.iJrii"", ,irr."t, infiuence. pr"rru.. uJr..,, ii,e investigating tnt prosecutor' the aggrieved partv ,h. ;i;;Jr."i'n"',r,o* .urity ,ff..,.d .""-, ,o !l th. aggrie.,.d ""d ;f;:t' the accused is a-powerful person, a major reason for c{elay or dismissal can be reluctanceof the ^---,, Yht" aggrleved party to volunteer information The reluctanca a"a, b..iua to various reasons: -,n", fear of reprisal, financial consideration, distrustofthe judicial ,yrt.- u.d p"...piio" .i,n. ,..*ri,tiu,,n,r, o.i,."., " "o,rri,.rg'utrr-."."

;;'i i' 't'ui agreed ff f;l*"ilT,i#::'l..;;,ffc;f:Tiii;'il' "i'n; "'"'i '";;;;';i;'d;:;'ndents

Th: theoryofour legal.sysrem is equaljustice for all. That is asfar asir goes.The Courr,for - . , rejecrsthe argument rnsrance, rourinely that the deaih penaltyfalls he",,iif o., ,h. p.;;;;J;;*;.i.rl"ii.,o"*.rr"r *" ahvays seekshelterin impunity. It is obvious'therefore,that your conference is not only rnosttimely but alsomost needed. As I welcome . -,-. --reretbre, I wish you all rigor ani all suc."*i;;;;;;;;i*n]r,. rn"r,t vou.

Introducti on Atty. Rca Chiongson Ale neo Hronan Righrs l-'orter

il.ltl.ltn clrn tng lt nt 1r v elc t lI r r et ot he|t es ent lt l( ) l . i o f o u r s t t t , . 1 y t l t r I n t p r 1 1 1 1 y i I l t l r e P }r i l i 1 - l p i r e s . |e rvre $ o f th e pf es ent ir r l( ) lt .

nrrst first clefincimpunity This is the not thc first time thar I Ilrve bcen confionteclrvith the rlrrestion:,Whar is ] : 1I iLlI lit \ ' , we i l a r,e u s e t]tIl e te l n i Irr| u n i tt' anutrrbcl tri ti nres' ()rl Ini r-tgLl l ]\\]i thal l exactc]efi ntti tl tr . . . . i|\ f c \ \ ' ilnt e !l rl l i n th i s c o n ti r.e n c e h a s L -. een,.l i [fi cuIrl .ecaLrsethertarel tl .,r.,fconc" l ,rsrel ati ngt t l -'ctinition of irnprrnity Lsverl' halrl to coclifyin just two o[ three stirtelnents.For the pur.pose of tliis sturly,irnpunity ', 'lciirre.las the commissionof a againstthe fight to lifu l,irhout lccountabiliti. lt neans lack ,,f 'iolation r .:rr:hrrent, lack ofjusricc or lack of accountabiliry. Ftir cturstLr.lv presentarion,impunitl,is limited ro vi()lirtions ..:riisrthe rishr to life.

' lLDpuni!l:r concelni Inprrnirf is zrconcern because it has l..een Ltlcrrtifleti as irn ohsracleto rhe |r.orcctron -r.imotion of human rights. rhe Special Rirpl.rortuer on Extra-]L Quotir.rg rtlicL:rl Srrmmarynntl Arbitl.ari

ExecutLon, he n.rentioned that impunity remainsthe principal causefor the perpetuationof violation particularlyon the right to life because u'hen tl-rere is impunity, it is equivalent to an implicit approval of the crime.

In our research, we have a number of considerations.Article 2 ofthe International Covenant on Cir,il ancipolitical Rights statesthat "a state is obligatedto ensurethat any personu,l"rose r ight has been violated shall ha'e ar.r effectiye remedy." Second,"a state is obligatecl to ensurethat the victim's rights are cleterminec.l b1 competenr luilLcial, administrative, legislativeand competent authorities." And thiLcl,"ir state is obligated to ensurerhat cqlrpetenr iruthorities shall enforcesuch remedy." We should provide a len.rctly, cleterminationmust be b) cgrnlerent authority, and such remediesmust be enforcedbv the government.

Furthernore,Article 2 obligatesthe state to conduct exhaustiveand impartial investigation on allegati,rr-rs of human :ishrs violations. It leadsto identification, bring to justice anclpunish rhe perperrators, grant adequare :ampensationto victims and take effectlvet.rleasures to avoiclrecurlence.

Anotht'r consiclerirIion is the set of principlesfor thc pfotection and promotiorr ,rf human lights thloLrghaction to curnh.rtirrlunLty. This set oflnnciples wrs.lrafteclin 1996 and crrn I'e founrl in rhe speciaL report on irrpunity l hi.h s rn fcfeftn!r fo thr rrghr. of the vrctrn-r.It strtc.l that thc victirr has thc light p1y li11q,,r', righr ro justLce anrl r ighr t Lrrc par a ti o n .

. l] er . igI ] t t ok n o \\' c a n | ..e b o th i n ,.]i v i c l u .l Iant{ co1]ecti ve.Theri ghl trl knorvi tl r,' ol r,eskntl rr' ttrg* ' hor 1lel. cr |et r llr . ll. : !)f $'ils,linowing what cr-lmL'hirs been cornmitte,-1, anrl knorving horv the c|irne w|s coNmitterl. The collectLve riglrt , [11q11q, I-s actui]llya correspon,ling duri Lrnfhc pafr t,f rhr srlrc n r ensurefh rf its people lemembel wlrilt happene,l 'aa.rllsc the hisrolt ofoppressionis part of a people'snirtional hentirge,rnalthcrrfr)fe it rlrr-.rl.e ples.r\ r!1. - : . . r ht s r egar d ' 5 e Ve Ii l l l Ie a s u fe s th i i th 2 IveI' censuggestcdIe| erto| I]cti ghtti l krl tl tl ' .Forexi ttnpLe,t het . car et t t east t r t ,., ling for preselvirtionofeviclenceor neaslrrescalling fof creation ofarchives. This is i;r rclirtLonto tlrc light to ' r r | , . , r . e tf r' ' r fn ' rr rrl ' ,r h .p p e rrcI r . .rc ' n .l r-rrl r' l * tl . r' ..' .1.r err tl r:r' rn r l r nnl ,.r,r' f 1-" ..r' l, . An. l n. :-.e with this a.e 2rlso the calls for truth cornmissions.

The secon,:l right is the right to justice. This inclutlesthe right to tr fair ancleffective rernedyand ir includesirn obligation on the part ofthe state to investigateviolations, to prosecuteperpetrators ancl,if found guiltv, rhe obiigation ro punish thern. There is a note in the leport which statesthat rvithout an effective resp<,nse to the need ior justice there can be no reconciliation or forgiveness.It also sttltesthat reconciiiation ,.rrforgivenes"is prir.ate and, rherefore, implies that the victim must know the perpetrirtorand thc perpetraror,in rLrrnr nust sho* repenrnnce ()r at leastremorsefor committing the vioiation. .{nother rnain issueis the grant of amnesty. One c-,f the basicplir.rcipies in the grant of amnestyis thrrr rr cannot he justice the victim has obtained through an effective remedy. .grantedbefore

'

' 1- r . r he ri " h r to re n ,.rr,rr..nl.t r" b o rh i ndrvi dual.rrr.l.ul l ri ti rc. On thc rn.l rrr.l ualI.r,l rl reri " r.-,' : r:rrolvesrestitution. Restitution meanslestorir-rg previoussitllatron. It rnvolves the victim to his,4rer . :. n. Compensationis the answerto the physical,mental injury, lost opportunities,physicalclatrages, ' physical - l.gal ard, and cost. The third one is rehabilitation, and it refersto rnedicalcare, psychological, - -,r.l other forms of treatment. -

'

On the secondlevel, right to reparationinvolvescollectivemeasures. Collective measures mean that the statemust give homageto the victim and the statemust acknorvledge to the victims ofhuman rights its responsibility violations. Additionally, there shouldbe measures ro ensurethat victims do not facerenewedencroachments on their dignity. And if there is an administrarive pracriceor an apparatus which perpetuates impunity, it shouldbe dismantled so that there would be no further violations.

The third consideration is acknowledging that it can occur on both dejlre arrddefocm levels.This doesnot imply that one siruationwill excludeanother. Dej!.r can happenif you legislate a grant of amnestyand prior to an acknowledgment ofguilt so that it can leadto dr jure. On the other hand, & frcto impunity happensif the criminal justicesystem is not efficientlyworking, althoughthere is a legalframeworkto address the problemsof impunity. The fourth consideration is that impunity can occur at different levels. There has beena numberofrepor$ not just in the Philippinesbut alsointemationally that impunity can actuallyoccur in the whole criminal justicesystem.At this time, there is no law providingfor accountabilityor responsibility of perpetntorsof human rights violations. That, in itsell is actuallya form of impuniry. However,there are timeswhen even if there is a law, there is a slow or process delayed of investigationthat can alsolead to impunity. Even if there is a speedy investigation,rhere is a delayin prosecution and that is impunity that may occur at the prosecution level. Or even ifyour prosecution is all right, there is an absence ofan independent and imparrialjudiciary.Thar, in itsell can alsolead to impunity. And judiciary,there is a grant of amnesty even ifyou have an independent or execuriveclemencyand that alsocan lead to impunity. There can be differentlevelsof impunity. It can occur in differentstages in the criminal justicesystem.

35

Tfre iifth considerationthat rve have in mind is that the causes of impunity vary. It rnay he lesrl. Thcrc may be larvs rhar actualh perpetuateimpunity. For example,if you har,c al) alrnesty lau,or rvhen there is an ,rh.crrcc ,rf a l:lrv on it can lead to impLrnlt\.. It cinr h!, ln.l rtLrtional. lrelentive Jetention of human rights violatorswho are in l-rowcr, For .rample. the CHR i.ras nctprosecutoriai powerswhich somc pcople claim to Ieircl to imf Lrnir\. ()r' tlr. r't rs a witness rhirt can also lead to impunity. Corruption, lirr example,has sometirresl,.ccnclrrssrficJ lrntection progrzrm rrnderthe rnstrr:utlonal level because a lot of peopleare sayingthat it has aLrcr.lybeen instirrrtionaLi:c.l en.l rh.rr irrn also be a ;.ruseli impunir)'. i'i course.there are other socio-culturalficrors like pessimisrn, "rrrangna lool"' or "hahale n.r" .rrrrrLr.i,.. Fcarof rctrts alc an be c har a c re ri :e d a s s o c i o -c u l ru ra lE . c onomrcs, l i ke pol ertl , has al u.i rts hcen.rteJ .n.l r].rc i rcr rh.r r larvyers or thev ciinnot attend to the rvhole process leople cannot affctr',:l of a laq.srrir u.l.irlcth.,\ rrr rr\ rrr,..l ro earn a lrr ing or they have to prioririie certain needsinsteadof Dur.srring a c.se in courr.

When we startedthis projectwe had all the abovementioned considerations. The project involvesa numberof case studies. There are four case studies, one of which is the grant of amnesry to RAM to highlight the issue of amnesty. Someof the cases are the Marcoscase,the KuratongBalelengcase, and a numberof desaparecidos. We alsoconducteda surveyof the legal,institutional, .judicialand rhe enforcement frameworkthat contributesand suppofisrmpunrty. A field research wasalsoconducted. All thesewill be published. For the purpose of this conference, we will focuson the findinssof the field research.

The objectives of the field research are to determinethe causes df impunity in the Philippinesand to investigate the variouslevelswhereit is practicedand the actorsinvolved.

The focrrsis on violations to the right to life and the targetsof the research are iaw enforcers, military officersand governmentofficials. It is a growing concern in our countly thar fieople in power may go Scot-fi'ee or rctually enjol lmpunlty.

The methodologyinvolves intelview questionnaires.We inrervieu,ed police officers,qrainly Chiefs of rhe investigatLon divisior.r and those handling heinous crimes,and prosecutors. !7e targeted20% of tl"retotal nunber of prosecutors and 20% of the total number ofjudges,government organizations, and families of the yLctimsoi disappearances and extra-judicialexecutions. The focus areaswere Metro Manila, Baguio City, Dav2o, Cagayancle Oro and Cebu Citv.

38

Presentation of the Findings Atw. Amoarita Sta. Maria Ateneo Humon Riphts Center

This is one of the hardestpart of the presentation asa lawyer,my frameworkis mainly legalbut I will be because, interpretingdata processed by a sociologist.

Prosecutors and Law Enforcers

WeinterviewedapproximatelyT5Toofthel28respondentsforprosecutors,25o/oarelawenforcers.55.5%workin Metro Manila, 14 7oin Cebu, 12.5o/o inDavao,11.?% in Cagayan de Oro and 6.30lo in Baguio. All questions asked from the respondent refer to murderor homicide cases because we focused our research on the right to life. We had to focuson somethingmorespecificso we decidedto focuson murder and homicide cases wherethe accused is a memberof the military, a law enforceror a governmentofficial. All of the respondents, law enforcers and prosecutors, have workedon cases involving this category of accused.

39

For the first question,we askedthe investigators rvhether their invesrigationor rhe m.nner of and prosecutors prosecution had been affectedby the fact that the accused holds one ofthese positions.45o,i, saiJ "NO rrn.l53oloora majority percentage said "YES." If the accused falls under this categoryof a government official. liru eui ,r'cer, or .r military, their investigation or prosecution is somehow affected. The fflost cor']tr1lon ansu,er*l.ren aske.l ho*'rhe trial is affectedwas that there is an inclination or a tendencyto delay rhe proceedings.

fs tsE

lfu!

dhlty

wli ttEsc cases?

\Wewererryingro probefurtherbecause We alsoasked them if thereis difficultyrviththese cases. if rhci ,ay there ts an effect, then wasit difficultfor the prosecution or investigatorsl While we had 53olo saying thereareeffects on the prosecutors or investigators, a fewerpercentage for admittedthat thenselves theyhaddifficulty. 45% saidthey haddifficultywhile46% saidtheydid nor havedlfficulty. But for thoservhoindicated an increased .litlculty because of these cases, 20% citeddifficultysuchaspressure more fron the accused. 18%inclicated that there\\,as Jifficultydueto a combination pressure, of factors, powerto influence intimidation, drleat,and the accused's the in his or her favor. nroceedinss

WH would mrc la(.t hapF.n b ll|. ca3.3 du. to Prursura from accuSad?
5.00%

lDelay I Dismisstr SUeoutofcourt

We decidedto askagainif there are effects percentage but lesser admitted that they had difficulty. So we asked: "ls therepressure comingfrom the accused to delayor dismissl" Again, we had an increase in response. saidyes 65.57o there is pressure from the accused either to delayor dismiss the case. When we further askedthem, they saidthat 50olo to delay,307oto dismiss, and 5% wasthe tendencyof the aggrieved party ro settlethe case.

We alsoasked who is mostaffectedin the process.So we askedthem to rank. 40% saidall were affcctedwhich meansthoseinvolved in the process of investigationor prosecution. party wasmosrly 207o said the aggrieved affected, 87osaidinvestigator, 5olo saidthe prosecutor and 3olo saidthe witness.247odid not chooseto respondto this question.

4l

Kaasmsrcaddrv or dsnrs.l (42%l (5E.696) (35.2%) ducrlrc! of D.rtiastollbntca inffin|tidl rlu.rtlcc of Frlics to cmtifl. wih invcrirdiol of-orscd lo coo('da Difiorlry in Brth.riar lhlErcrl cviddcr .til lcdnicdilics
7 l _6 .6

7_8 l 4.l

n
?.0

5_3

,E ,E

1.6 All ofhr rbov!

Becausethere has already been a responsethat the reason for the delay or dismissal has been the predominance of rhe pressure applied,we askedthem, "What is the manifestationof this delay?How is it actually manifestedin a prosecution or an investigationl" The predominant answer, 82olo,as you can see from the data, reluctance is very partiesto volunteer information or to continue s ith rhe fen'asive. Reluctanceon the part of the aggrieved investigationwas the most common reasonto explain the likelihood of delay or dismissal.Many saiJ physLcal evidenceis more often difficult to securein the caseand, of course,the application of legal technicalitiesor the invocation of the accused's right to speedytrial because you can actually invoke where you have successive clelays the accused'sright to speedytrial.

Raan Id rdEtlEa of Ftirrs to tufu acr int.Idio'l(rconitr wihrri.l (a2l.Al Dliil! to ruL DilEd of judiciit.yn.rn tldr ndling rill conE od of 8di.n ,eI ofin tlt / titr F.rft6 ofjdi.. PtrnEll / tbla ,$ oflb rbov! r],&rn (523.h\ 19.5

U. J" (29.7/.\

?.0

1.7 1.6 .8 7

3-9

.E

Then we probed furthersowe asked: "What is actually parties i" 82.8%of the causing the reluctance of the aggrieved gavea 1stanswer, respondent 52o/o gave aZnd answer, and 29o/o \,\"as even a 3rd answer. The overu'lrelmingreason rhe fearof reprisal. was primary This the reason parties. or cause of the reluctance of the aggrieved

42

Financialreasons werealsovery important.The respondents thought that many partieswould rather seftlethan continuewith the trial and alsothat many who do not havefinancial resources and are requiredto attend the trial the case. did not pursue There is alsoa perceptionof a generaldistruston the judicial system and a perceptionthat nothing will comeout of the trial anyway, or a generallack of interestbecause of delayin the proceedings.

l/l,tETlER FEARl-tASBASIS

And we asked: "You havefear ofreprisal,do you think there is a basis for this fear? Is there actually a capacrry to actualize any reprisalor any threat7." of the respondents 75o/o believedthat the fear of reprisalhas basis.These remarks are comingfrom prosecutors and law enforcers.

l|| padfth/ of h\ir8ttato|trFroae(||to13 onpronbnl?

1We asked: "After all these,do you think the process An of investigationor prosecution is compromised?" overwhelmingmajoritysaid it is not compromised.Only 20olo saidthe investigationor the prosecutionis actually

43

- r::-: ::r::cl. So \\'e can seehere that despitethe seeminglyantl ovenvhelminglysetbackon this case.rhel feel rl.rat ':- i ::.-::.::\ .'t rhe inlestigarion of the prosecutionis not acruallvcompromiserl.

OOAGGPARTIES PER WIICI.E PRCSASCO{P?'

But then q'e askecl: "Do you think that tl.risis the san.re perccl.rtion of the aggricvetlpartyl" 54.7% of the respor.r.lenrs said the1 l.el1sl's that the partiesperceivethe whole investigationanclprosecutionas compromisecl. So rliere is a diffclenceherrveen what they are sayingthat it is actuirllycoml'r'omisecl an,-lthc perception ofa large nLrmoer thlf rhey knorl rhat the aggrieved partiesthink or perceivethirr the u l.roleprocess is acrualll' comprornrseil.

Re sso n s tOr p e r ce r vin g w hol e iu d icia l p r o ce !! r s co m prom i l ed I n r n l .ccu r e d wr U u se pori l i on to in flu !n cc Dr o ie cu tion ' l- h r n l g o v.r n m e n i *ill covr up/ p r o le ct it. o wn r r n ts f. l u p a g a r n r tg o ve r nnnt ss r r h r n k p r o r e cu to r . / r n vesti gstor! th n ! lv , a r e in tim idated T h r n k th e y d o n o t h a v enough m o n e y to p 5 y o ff p r o e ecutor / T h in k a ccu r e d ln o w! proeecutor / r n ve slicslo r De r so n a llv Pr o Be cu to r ' r r e p u ta tio n f-or bei nB
oil or all ofthe !bove

t.( 60 I % )

Yo 2" fl 5.9% )

5.6
l l .l

16.4 .9

180.3%) 8

7.8
7_8

:.3
?.Q

t.6

5.: 8 4.7

Ffr the reirsons given for this perception,600/o gave a first ansrvcr, again a very high lesponse. 357, girve a secontl ansl er und 80% gave a third answer. These are the reasons given: rhey think thc accusecl will use thc posruon r(l :nt.luence the prosecutionor investig:ttion;there is this percention rhat the govelltment will cover Lrpof pn,rccr iLs -.t n ranks;and, there is also a feeling thzrtthey are up againsrthe go\,ernmentirsir rvhole insriruri()n. -(ince rhe :;cused holds a position in government or is very influential, thel,feel that ir is acruirllvthe rvhole government thirr

they are up against. And then, they also think that even the prosecutors themselves or the investigators are intimidated- And then, of course, they do not have enough money to pay off these people. And they also have this perception that since they come from the govemment, they know each other. They have this rappcrt and personal relation which *rey cannot compete with. Also there is, a small percentage, the prosecutors' reputation for being corruDt.

DOES WPP ADEqIIIEIY

REAPOIA lo llG l{EO OF l|C

,:.

We asked: "Since the fearof reprisalhasbeenvery pervasive and because the witnessprotection programis one program of the governmentwhich apparently aimsto protect witnesses in thesekinds ofcases, doesthe wimess protectionprogmmadequately respondto the needsof the witnessesi" feel that it does.Thosewho said that the 44olo WitnessProtectionProgramis inadequate gavereasons.One is the lack of resources. They said that prorectionis only during and not after trial leaving them open to retribution by the accused or from the friendsof the accused. feel that WitnessProtectionProgramis a biased 7olo system altogether.

45

We alsoasked: "Would it help if the accused weresuspended from the office or detained?" An overwhelming?6.60/o frorn office. of the respondents saidthat it would help the investigationor prosecution if the accused weresuspended Nearly half of Half of the respondents said this preventsthe accused from executingany influenceover the process. weredetainedor put the respondents, 437o,feel that it would help the investigationor prosecutionif the accused right to due underhousearrestfor the samereason, althoughmore than 44% of this said it will violate the accused's processr the assumption ofbeing innocent until proven guilty. Generally,thesewereour Jindings for the law enforcers and prosecutors.

The Judiciary We askedthe judiciary almostthe samequestions.The preliminaryquestionnaires weregiven to judgeswho signifiedwhetheror not they wantedto be interviewedon the subjectmatter of impunity. So, beforegiving them questionnqires, we askedthem first if this is somethingwhich they want to answelbecause we know that impunity is not a topic they can discuss fteely or openlywith anybody.

There werea total of 72 respondenswho agreed.Of the ?2,61olo camefrom Metro Manila, 9.3% caurefrom Baguio,10.7%camefrom Davaoand 6.?7ocamefrom Cagayan de Oro and 12olo from Cebu City. All questions asked of the respondents refenedto murderor homicide. Samewith the prosecutors, cases where the accused wasa memberof the military, law enforcer, or govemmentofficial. Thesewerethe courtswhere thesecases are being tried, rherefore, we did not include the FamilyCourts.

46

The first questionis: "Do you think that trial for murderor homicide is affectedbv the facr that vou have this category ofaccusedl"Lessthan majority, 33olo, saidthat it is affected. An overwhelming65.50/o saidit is not affected. However,when asked whether there is pressure exertedby the accused, there are more answers. 3?% saidtherewas pressure but, of course, the judgeswereprobablythinking that although therewaspressure but the trial itself is NOT affected asfar asthey wereconcerned.But admittedly,there is pressure. So the pressure if broken down was 10% to delay,2.?o/o to dismiss, 4% to acquit and 12% all ofthe above.260/o saidtherewasno pressure and 37yodid not choose to answerthis question.

. Tirgrt .g.imt llft, ..$dV .nd hr*y Pry ot, prorta ol lllt|la conadcralidl

lJrd!. hll.nc. of Iti.ndr rnd C;lhfie

We asked the 37% if they actuallyfeel this pressure, there is a lower percentage again.So there is pressure but they arenot affected and they do not feel it. Only 297osaidthey actuallyfeel the pressure. There is a threat againstlife, 147o; bribery,promiseof future consideration, pressure 6.77o; in a promotion/career, 5.3olo; undue influenceof friends and gift-giving,5.3o/o is pakikisama. ; 1.3o/o

A1

'l

Then we asked whether there is difficulty, 247osaid they had actuallydifficuky in thesekinds of cases, 4% chosenot to answer, and 72% saidthere is none.

And then we asked the sarnequestion we asked the prosecutors ancl law enforcers whether there is n.iore likeiy delay and dismissal in thesekinds ofcases. And then the responses increased, 3?o/o.When we break that dorvn, 16yosay there is pressure to delay,withdrawal or settlement,127o,dismissal or acquittal is 1.3olo, delals and *,irhclral,alor settlementis 6.7%, and ali of the above is 1.37o.

l8

rtnrio&.0tb

Qad.i(.

llut whilt is the actual reasonwhy There is pressure .:- '1easkedfor the reasonfor this delayor disn.rissal. of reluctance. is rhe pewasiveness Again, there . -een delayl ALmost 50o/o to this question. responded There was also delay. was is there that why was reluctance of parties to volunteer the information -: rher-e case,the lack prosecute the to of the prosecutors -. .,f the partiesto continue with the triaL,the reluctance Load,the case ,-.,a1 e'ridence to establish reasonabledoubt, the difficuity in gathering evidence, the heavy .- : .lesistance, the settlementout-of-court technicality and, of course,poverty' r : Fost it but 49ologave a 1st answer, 42o/ogave a Znd answer and 46% gave a 3rd answer'

I R.fu.d b lrtnt a tlrlllnen.r. to r.0. and

manifested.So we saidthey are reluc{ant.What is actuallythe where is the reluctance {iter that we asked for two but this is the provided 357o ofjudges gaveone response, 70%ofjudges of this reluctance? :oncretizarion willingnessto settle the said in the refusalto testify, LZTo percentage. 48% saidthis is actuallyn.ranifestecl -.r.erall is the changingof the testimony' and 8o/o :.ndwithdrarvthe case

49

t L-ld

hl.-ltnradr|l.l

. r9na.'t.of ir.br l.oo. I L.kC lilE'ra r.crcI Ec'gli ll ndtorlr o[ oro, lirl

. Dd.rord.rhqJo.0l!.il.rtn

And then we asked what they think.is the reason why there is pervasiveness of reluctanceon the part of the aggrieved parties we got a very high response. 81.3%gaveo.r" 2.7o/o gave r\Vounrr"r, gave 46.7o/o "**.r, threeanswers. The overwhelmingresponse is againthe fear of reprisal 38.?7o, ihen the d.ri.e io ".rd ,litle through compensation, actual threat to the aggrieved parties,their families,or witnesses by tl-re accused, the distrustin the judicial system,-the perceptionthat nothing will come out of the trial, the lack offinancial resources to continue with the trial, the ignoranceor lack of knowledge of the whole judicial process, the attitude of fatalism,the lack of interest and the lack of time to attend rial.

Ve alsoasked whether they think, with all of these,that the whole judicial process is compromised. Again, we have a very low yes,only 5%, and a very high no, 85olo, and 107o did not chooser; answerthis ;uestion.

50

What tra g|. t0.cltc PtrcaDdonf?

|lrlrdr.t

lr dn rtll(.

Then we also asked if they think that the aggrieved parties perceive that the whole processis compromised. Again there was a higher percentage, 38.?o/o. They know that the agglieved parties perceive it differently from what they actually say that it is not compromised and the specific perception is that they do not have enough money to pay the tudge. The feeling ofbeing up against the government as a whole is also a reason. Mind you, these are the responses of the judges.They are aware of the perception that the government will cover up and protect its own ranks and the accusedwill influence the judge.

And then we askedthem if they think the prosecutors and investigators shouldbe protectedin order to ensurethe Lntegrity of the judicialprocess. 54Tosaidyes they.do needprotection. Andwhenwe asked what arethe suggestions to ensure the integrity of the court process, gaveone answer, 75o/o 36% gavetwo answers.The first one is to :trengthenthe witnessprotection programand then of coursethe secondis to increase the compensation of the judges judges and persons then secure the of the which means to keep the alive, suspend or dismiss the 'udiciary, accused while being tried, and all of the above.Then there is alsothe suggestion to educatethe peopleabout their rightsand the judicial system and compulsory assessment of judges. 51

As addedcomments, most of the judges feel that the witnessprotection programshouldbe stengthened and the judiciary compensation of the shouldbe increased to help reduceinstances or factorsthat will aciuallv helo in the perpetuation of impunity. 647osaidthat the perceptionof the aggrieved partiesaffect the willingnessof rheseparties to pursue the case. Therefore,if there is a perceptionthat nothint will happen,consequently, it iessens willingness to pu$ue the case. 657oalsosaid that if this is the perceptionof the aggrieved party, then impunity is r1-1ore lik.ly to be perpetuated.

Families of Victims of Disappearances We alsointerviewedfamiliesof victims of disappearances or what we refer to asdisappeared. !(le did .c,t ger as many because it wasvery difficult to find them and to convince them to grant an interview. But we found out that their rcsponses actuallyvalidateor reinforcethe other outcomes which had alreadybeen culled from the interviews from the prosecutors and the judges.

E'e wereonly ableto interview 12 family members but againthere is at leastgeographical distribution: 3 from )' letro Manila, 2 ftom Davao,5 frorn Cagayan de oro, and 2 from Cebu City. Trio iamily members learnedof the i:-sappearances or killing aseyewitnesses, nine family membenwere told of ihe incident by other people.

tres
t io

\.nD .b F{ thH( b r69q!bb?

II

ts

l$0 doyqrltilL

|laaanaaL?

'Whenwe asked them who

do they think werebehind the disappearance, half of the family memben saidthey believethat the victim's political vj.ews or affiliationsare the reasons for the disappearance and, of course, military, private individual and police are involved. The response shows that not all accusedare public officials, there are also private individuals.

As to the reason for the disappearance, 50olo said it is because of the political views and affiliation, 337osaidit was because therewasan incident whereaccused wasantagonized by the actionsof the disappeared. A lot of them did not give any response.

53

It y!q, ldich agqrcy did lau rpprEch firil?

rt ra a.rl-h.!Ny

d! p! epr.h

Lrt?

'!?e asked them if

they actuallyreport the crime.They saidyes.And we alsoaskedwhich agencydid they approach first. Five familiesapproached the policefint then the CHR and the military, then the prosecutor, the NBI and no response.

Dd p|l ty b $rk l.g.l -ddrnc.?

ord t ! |'y lo ...* ald ..atr.rc.?

We alsoaskedthem whether they soughtlegalassistance for this. Most families(about 8) tried to seeklegal assistance with respect to the disappearance while four did not.

54

wereconductedand if yes,how long did it take for the investigators ro We then askedthem whether investigations report. Three families said it week, one said I 2 weeks, two said 1 to 3 weeks, one said several act on the took a to years.One gaveno response. Four saidthere wasno action.

'Witnesses wereinterviewedin 10 out of 12 cases.There wereno witnesses in one casebecause they werekilled beforethey couldbe interviewed,4 willingly coopemted, to cooperate our !,i and 2 refused 4 reluctantlycooperated, fearof reprisal. The family of the witnesses said the witnesses cooperated because they u,erefriendsof the family of the victrm or neighbon. They saidthat the otherswerereluctantor refused of to cooperarte because they have had experiences threat and therewasfear of reprisal.

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We asked whetherthey actuallyfiled a case.Only 1/3 of the familiesfiled a case.!7e then askedthem for the reason why they did not file the case.Four saidthey did not trust the entire justicesysten"L, two famiiiessaid they thought nothing would comeout of the trial, two alsosaidthey fearedreprisaland one eachsaid there wasdifficulty identifuing the accused, lackof interest, time andfinancialresources. Most of the farnilies do notfeel that the governmentis capable of protectingthem from the accused. Half of them said that they would file the case anyway even though they do not trust the governmentto provide them with protection. Half said they would ernploythe help of NGOs.

More than hall about9, said that the investigators and the prosecutors shouldbe better protectedirom pressure comingfrom the accused.We then askedthem shouldthe accused be suspended or detained. To better protect the prosecution and the investigation, mostfamiliessaid they would ratherhave the accused suspended or detained.

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Fl, :r ::nily members believedthat their fear of reprisalhasbasis. 587ofeel that the govemment is not capableof :-: *rem and fear that the govemmentis not doing enoughto find the victims. They alsosaid that the 787o ;c:: cannot address corruption,the govemmentis actuallyin the crime. Remember that theseare -':!r:=.ment :-'appeared persons.The courtsare not impartial, investigators are coffupt, there is not enoughinstitutional ::otection, the witnessprotecrionprogramis insufficientand all of the above.

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Non.go vemmen t Organizatio ns cases, in claimsagainsthuman rights We alsointerviewedNGOs that havesomehow been involved in disappeared violations,and in litigating right to life violationscommitted againstcivilians.

Theseare the NCOs interviewed.Ve had a lot of questions but now we focuson someof them.

\\re askedin what stages asa reve$e do cases reach. We do not havea percentage but the result is illustratecl pakonri pvramid.So mcsmcrnming ncngpnlonripendingrrial. Actually, conviction is small so mostcases filing tapos The cases usuallyend after the filing stage reachthe filing stagebut it doesnot go to the extent of prosecurion. get tried but only few areconvicted. L,ecause Somecases thereis no trustin the system.

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what are the difficulties/obstacles agencies or agentsand the reasons. And then we asked in dealingwith governrnent partiesis really a problem. Because First,the reluctanceto pursuethe case of the fear of reprisal, of the aggrieved partiesor the familiesdo not want to pursue mostof the aggrieved the caseanymore. Then you have harassment. partiesexperience like they take They saidthat peoplewho are trying to help the aggrieved harassment themselves picturesof the office of the NCO for whateverreason.And they all saida weaksupportsystem or institution, like a poor'Witness powersand it is very difficult to get an accused, ProtectionProgram, the CHR hasno prosecutorial specifically a law enforcer,to be suspended during investigation. Again the distrustinthe governmentor justice partiesperceivethat governmentfavorsthe more powerfuland wasmentionedbecause the aggrieved system accused and there is the tendencyto protect their own ranks.So they developa {atalistic moneyed/influential attitude towardsthe positiveresolutionof the case. They cannot affordgoodlawyers.Sometimes distanceis a factor. They actuallylack access to the criminal.iustice justice and then there is delayin the system.There is alsolack of informationon their rights on how to access Peopleeventuallybecomedisinterested resolutionof the case. because of the long process and postponements. And thereis alsosocio-cultural factor like the uung naloobso they would rather not testifo.

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who they think are mostvulnerableto pressure. Then we asked Again, there is no percentage but they all mentionedjudges because they have a closeworking relationshipwith the police.They can alsorely more on them for protectionratherfrom familiesof victims. Prosecuton and forcedto compromise are easibpressured by the police or military from amongtheir own ranks. This meansthat even if the law enforcers investigate, there is alsopressure within their own ranksto temper the investisation.

So what weretheir recommendations? First is human rights education.This primarily pertainsto the aggrieved partiesbut they would alsosaythat the peopleinvolved in invesrigation and prosecutionand the whole criminal justicesystem needalsoto be educated on human rights. Educationon access to justice,for example,the transferof venueof cases shouldbe easilydone. Strengtheninstitutionsdealingwith accountabilitylike PCCG, CHR, Witness ProtectionProgram, and the Ombudsman.PAO shouldbe more accessible. Improve the process of review in the DOJ,moredocumentationon hanssment,establishment of truth commission, wirnesses would have given their persons. testimonyand ensure the securityof their

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interviewedthe vitness protection program, NAPoLcoM,cHR, DoJ,iask Force onHer"."r c.t-..]"i ,ir. officeof thecourtAdminis'atr.

Finally,we alsointerviewedgovemmentinstitutions.

we

on'ii' i''go['-. r.,u"ds.,,-;;;;"^;;,i,"i ,..,,,, il::Til:': a"..u", 1i..i1iffi?::X'":[::*'t'p'na'n'

55

we centered on what are the obstacles, difficultiesand resources. They have. inadequate frrndsto efficiently run a programor to conduct invesdgation while the risk ,. ,tr"i. ri".rlr r" great.The compensation or even the resources to conductrnvestigation in far-flungareas is so small or.""rly th"t ir is not worrh risking their lives. one

As a structure'one institution said that mostof their staffare not even prmanent. They cannot actually train peopleto be goodat the prosrambecau* .;;rr*"i .r, they do not have an institutional liaison rvith other departm.ntr. hori*".p1.,.."h." d;;;ll ;;;l'r-ir-,.-rJ-.., -a socialworker because below 18' the anangementwtttr o'swo that witnessis "r " it , "',";; ;"*.^.;: f.ri""rl I, o ,,o, u-n-,;:;;;;;;'r*""r"-.",. ".,u"iiy one alsomentionedthat they owe,their appointmentto the executive.There is alwaysthat tendencyto befiiendor havea goodrelation with the peoplefro.^,'h. ..;.;;i;;h;;;; ,.. appointee. As for the process' in adminiitrative-investigation, the difficulty is always.the possibilityof withdrawing the case 'irr"il,,i.lr, the non-cooperation or of the victims du. .; i;;;;i;.;;;1, *a threats. There waspressure their own superiors, appliedby and other oolitical figrr.r r.r"'uil. ;; ffi;; their superiors.There is a tendencyfor law enforcers to closeranksand p,o*.t th"ir'or.,. ;;;tJ;# fi.':.rds wasgiven asan examole.

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We askedwhat are the obstacles during the trial/process. Again, the slow judicial process characterizecl by postponements usuallyby the accused.Decisionson the petition to changevenue take a long time to be handed down by the Supreme Court. You change the venue in order to secure the witnessesfrom the accusecland you want to transferthe trial but it takesa long time for the SupremeCourt to decide on this. Inability to have the testimony perpetuated of rvitness right away or within the shortestpossibletime would also result in the witnessgerting depressed and losrnginterest if they have not yet opted to leave the country.

.,.. -rlso askedthem for other factors,like the culture ofpakihisoma is strong with government or with the executive . - :rse it is the appointing power and also legislativebecause of butlgetirry consiclerations.

wele to stlengthenthe CHR, appoint and the recommendations lastly, we alsoaskedthem for recommendations credibility of iheir institutionsand, of the redeem ..mmitted to protect and promotehuman rights, p.opi. *tro "r" the salaryof the peoplerunning theseinstitutionsand theseprograms' .ourr., in.r.ase that contribute most to We intervieweda lot of institutionsand individuals.And we have comeup with the factors to Atty. Candelariato l^pr"i,V. Maybein the open forum we can articulatethat more. I'm now giving the floor the svnthesis. oresent

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Synthesis Attv, Sedfrev M. Candelaria Ateneo Human RishtsCentsr

Maybe the more difficult task of doing the synthesisis trying to read things together but I db not want to bore you with the restof the data.The data had beenpresented to you. I would concentrateon these3 or 4 main themesthat we havesofar gathered asthe resultof the study. I will try to elaborate aswe look at the framefor each
-^-:^/^---L^^i-

ruPrL/syrrursrrr.

Let me just put you back to wherewe started. The main objectiveof the research, aswe have laid down to you earlier, is to find the root causes of impunity while focusing on the right to life or the violation of that right that occur in cases of disappearances or salvaging,That is the main focus,so I think we shouldput into perspective all the data and commentsin the light of this particularset ofcases.

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First theme,it would appearthat the research found a variety of socio-cultural factors,political, economicand lega. facton or circumstances that actuallycontributedto the phenomenonof impunity in this particularjurisdiction. quite a numberof the factorscan be illustratedsuchas ( 1) soc.: If we go back to the data and readcertain examples, parties, standingor statusof the both the victims, family of the victirn's themselves in relation to govemment officials;(2) the valuesystem ofthe peoplewill have a lot to do with regardto the mannerby which they have perceived certain institutionsof govemment,for instance,in relation to the remedies availableto them. The particularpowerrelationshipis very distinct. ln much of the data culled out of this presenration, you will see that the perceptionabout the ascendancy ofofficials of govemmentwould wholly beara lot in the mannerby wh:: the victims or the familiesof the victims would try to avail of existingremedies, whether legal,administrativeor evenjudicial. The other point is the financial condition, particularlyof the aggrieved party,and we can sayalso in regardto the financial condition or access to resources of the accused who may be the military or the police or even any of the government agencies. This is a basicfactor alsowhen it comesro mannerby which the victims or the familiesofvictims will try to avail of the mechanism. We haveseenthat someof the problemswith regardthe success of the case will reallydependvery much on the sustainability during the whole courseofthe trial. We haveseensimilarstudies where,because of the financial condition of the aggrieved party, we are unableto sustain, in the long run, interestin the case. And then the inaccesibility ofthe justicesystem. It is one thing to providethe fundamentallaw that everycitr:<:would have the right to access to full legalasistanceor that the victim would have access to any form of availab-e legalremedies and it is another to saywhether it could, in fact, successfully avail of it. And there are factorstha: had beenshownto you about the inaccesibility ofthe justicesystem. This is where I will go to the data. It is ver important to bearin mind what the peoplehavewith regardto availabilityof remedies and alsothe capacityoi institutionsofgovemment to afford them justice.

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I tind it remarkable to makea correlation.You will seethat the data talk about perceptionand also the actualreality of the circumstances party. There is a remarkable of the aggrieved correlationbetweenthe level of perceptionof the respondents asto the effectsof thesefactorscontributing to impunity asdistinguished from the reality of their impacton actualcases. An illustration,for instance,is the commonresponse in regardto the issue of reprisalin the event thar an aggrieved party of his family pursues a case againsta law enforcer,a memberofthe military or a governmentofficial. One thing very distinguishable with regardto the response of the law enforcers and iudicial officersis that they would say that the case will not affectus.That is understandable form the point of view of govemmentofficials.But if you look at the perception, on the other hand, of the aggrieved party, it will be a reverse. They woulclthink thar because of the factorsthat we culled earlier,the powerrelationship,perhaps the financial conditions of the parries,they would think that it is very difficult to get justice. And I just illustratedthe conceptof reprisalbecause reprisalias fairly commonwhen it comesto pursuinga case of this characterespecially murderor homicide. There is a realfear of reprisal on the part of the familiesof the aggrieved party if we go even beyondthe issues that are politicallymotivated.You can even seethis fear of reprisalevenwhen it comesto familieswho are well off who rnayevenhave the sameresources. For example,it existsin kidnapping. So it becomes a universalfactor. lt can happenro a pe6on who is financially-strapped victim or even to one who is financially well off. Again, the fear or reprisalwasaffirmed by the govemmentofficersthemselves whether perceived or in actualpracticeor experience.

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One thing that cuts across the data that we haveseenis this statement. lt is noteworthy that the trend in the responses concemingthe perceivedlevel of trust reposed upon our institutionsof governmentwhich are deemed crucialin addressing the problemof impunity is not very encouraging. This is borne by the fact that many of these institutionsare vulnerableto pressure, influenceor corruption whether it is perceivedor whether it happensin practice., And for us in the civil society, phenomenon. we think this is a verydistulbrng What factorscontribute to theseperceptionslI think this is wherecivil societyand govemmentofficialswill have to eventuallysit and help eachother and arrive at a very accurateand ar leasra reasonable understanding of the problems that createthis perception.I'm not sayingthat this is the full reality because perceptionmay alsobe mirrored by which mediaon onehandhavealsoportrayed insrirutions. these So this is wherewe have to actuallythink and focusa little bit. Thar means we have to work togetherin this area.

Finally, there is the perceived needby civil society,in particular,to ventilate the isue of impunity in a forum beyondthe confinesofthe traditional institutionsofgovemment taskedto affordjustice to rhe vicrims. What this institution could not achieveon accountof the rigidity of rulesin procedure to prove the responsibility of the perpetmtors, truth commissions can actuallydeliver. ln one of at leasta numberor proposals by civil societyrespondents here and if we look at alsothe parameters by rvhich the studyhad beendesigned, there is a firndamentalright to know on the part of the citizenry in order to relieshthe collectivememoryof the peopleand the instrumentthat hasbeenusedin severaljurisdictionsand most prominentof courseis what you may haveseenin South Africa with regardto the authoritarianregimes and in other partsof the world and now we have beentalking about it for awhile in our experience of martial law and all other relatedhuman rightsviolations. The reason it hascroppedup is because if society's perceptionof governmentinstitutions today is such that the average citi:en will not trust or will not get remedy, someof them may have perceiveda different avenue. The road to lustrcervill be several.We have legal,we have administrative, we havejudicial. And perhaps one of the most portertulinstruments that we, asa people,c.ould address through a collectivememoryexercise is a truth commission. It is. pefiap for someofyou, what we call storyte ing with a direction in a constructiveapproach,one that will hopetull';leadto healingand reconciliation.The instrumentalityof truth commissions hasseveralmodels. There are truth commissions that will leadto prosecution. There are ftuth commissions that may not even lead to pro-curron but will leadto genuinehealingand reconciliation. AnJ. trom the respondents, you can seethat soureof thern may not have punued the casein court but have been satistied s'ith the fact that they have beenrendered justice in anotherforum. And that, I think, asa nation, is what rvehase to look at when we look at this type of data.We try to consideragainthe impact on our institutions,the impacr our valuesaspeople.lVhat do we reallyvalue in the long runl Ifthe peopledo not perceivethe available ".n mechansmassufficientto seekrehabilitation,to seekcompensation, to seekrestitution,what nexti This is perhaps a remeJr that rvemayhave to look at but it mustbe in partnership with thosewho are responsible to thosewho had been'icrimi:ed otherwiseit will not go towardsa consrructive solution to impunity in this country. Js a trnal note, what FatherBernas hAsopenedup let me end by citing. I wasreferringto the cunenr situation that he sarsaboutPanfilo Lacson.This is a classic case where the forum perhaps hasbeen perceivedasinadequate. In regardto the courts,especially if you will seethe decisionof the Court of Appealsdismissing a caseon the groundof technicaliq-asagainst substantive rights, the peoplewill now generate a perceptionof the inadequacy or adequacy or the ngldiry of the rulesand levelsof evidenceor degrees of proofsthat will be necessary to convince the public who p.erceive their valuesto have beenencroached upon and infringedupon. In the long run, the forum may be other rhan q'hat we haveseenin the respondent's penpective. is really intendedto bring everyone back to focusfor us to carry on rhe raskof -l,sa flnal point, I think this synthesis looking at how we can recoverthe faith of the peopleand institutionsthat are taskedto deliver justice and avoid impuniq.Thank you.

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Reactors Commissioner Linda Malenab-Homilla (NAPOLCOM) N ational PoliceCommission First I would like to thank the Ateneo Human RightsCenter for inviting me to be part of this forum. When the invitation wasextendedto me, I readilyaccepted it because I sawthat it is one topic that should interestall of us. Now the topic of the studyitself is very comprehensive. It focused mainly on thosewho have experienced, in one way or the other, someimpunity in their daily lives,the responses of the governmentinstitutions and the perception of theseNGOs or theseindividuals. Now, I would like to zeroin on the difficultiesof the NGOs in dealingwith govemmentagencies and the reasons given. given is fear or reprisal. The first reason When I wasa prosecutor, everyday, coming ro us the feelingof complainanrs and the feeling that they will not get anything from the judicial system, the reasonfor rhis is their basically, perceptionthat, especially if the accused or the respondent is from the military or from the police or from the govemment,the prosecutor will always sidewith the institutionsto which they belong,t-heexecutive. Ifyou look at the military and the police,they all belongto or they are all under the executive. But this is a wrong perception.There are few prosecutors, in fact, who do not want to give what is due to a complainant.Then againwe perceivewhen mediaportraysthe prosecutors asbeing partial to somepeople,that is what the peoplewill believeor will have in mind so that when they have their own cases, that is the thing that is on their mindswhentheycometo the prosecutor's office. Because I am from NAPOLCOM, I will have to talk about the police. We admit that we have police scalawags. In fact, everyday you beat our police. But, then again,there are policemenwho reallydo their jobs. in the newspapers, When I wasa prosecutor, I can be a witnessto having goodpolicemen. I remember tl-ratthere wasa studymadeby NAMFREL on policemen.A friend of mine who is with NAMFREL told me that beforethey embarkedon this study,she thought that all policemenwerebad. lmagine,all. But when that studycameout and that was commissioned by NAMFREL, she mellowedand shesaidthis is an agency who will lay down their life for you everyday and yet they live in slum areas, they do not own their houses, they can hardly meer their everyday needs. So, shesaid,it is unfair that we brand all policemenin the samecategory.Perohindiko sinasobinglahat. Meron ding perceptionthat old boys'club '1anso they protect eachother. However,if the complainants or the civil sociery,as you say,arevigilant, then they will back down. I remember, one instance, when I wasa prosecutor in Rizal and there wasa rapewith homicide casein Montalban. When I first sawthe affidavit of the complainant,I alreadytold the police investigator: "This doesnot hold water." They broughtthe personwho allegedly committed the crime and then I askedrhe personro sign his inquestand suggested to him to avail of the 15-daypreliminaryinvestigation.He did and I dismissed the caseagainsthim and requested further investigationbeforeI disrnissed the case. The Chief of Policeof Montalban cameto me and said "Ma'am hinAimo pwedeng i-dismiss '!an, gusto mo ba.ng mag-picket angbuongMontalban ditosa Kapitolloi " So I said: "Dalhinmo angbuongMonalban sa Kapitollo.Matagal na akong takot.l don't carewhat you tell me but I will do my job asI seefit done but don't tell me how I shall do my job." So, when the dismissal cameout aka)a ko mag'pi-picket, walananen. Then I requested the police and the NBI to do further invesrigation. And you know what aroseout of that?The reason why they would not want to pu$ue the investigationwasbecause a son of a Colonel wasinvolved in the case.That would give you an exampleof the old boys'club. That is true and it really happens.The perceptionis therebut againlet rne tell you that the degree of peopleengaged in this is not that big. Let ne go into the weaksupportsystem. Basically this sterns fiom the lack of resources. Let nle tell you rhat in the newspaper the President hasallottedP2 billion to the police. This is not evenenough to payfor retirement benefits 69

of the police who opt to retire. This is not evenenoughto pay current policemenwhat they are entitled under the law. And in our budget,a big percentage goesto personnel.No MOOE which is the operatingexpenses. Sometimes the police would pay out of their own pockets.Maybe if we are well off we can give for the gasoline. Now, the wimessprotection programis adequate if we measure it based on our own standards, but if we rry ro measureit against the standardsof richer countries ka-lang myo talago. Now what aboutdistrustin the justicesysteml Well, it all stemsout from our martial law experience.If we look at the cases that had beenput in this study,you would find out that a lot ofNGOs werethoseof familiesof victims of martial [aw. The mising persons weremissed during Martial law and are still not found. Now, I do not know if we have statistics on how many persons are missing. From after the martial law up to now by then we will know whether there really is impunity. During martial [aw, definitely there is impunity because the military has its way over othersand of course we cannot questionthem at that time. When they pick up that is it. Now at leastwe have the processes and we have agencies we can go to question. And so maybeit would be good to comeup with a studythat would show statistics asto how many had beenmissingfrom the end of martial law up to this time so that at leastwe will know wherewe are taking from. Now one of the very reasons that many of the prosecutors' cases fail in courr is the lack of resources of the complainants. Many timeswe have to give moneyto the complainantfor them to appearin court. Sometimes we have to give them their transportation for the next day. I had this murdercase.lt wasshelvedfor a long time because they could not find the complainant. The complainant wasall along trying to eam a living. So when I went to look for him, I found him and he said:"l am not interested anymorebecause two years haselapsed." He saidhe did not have moneyfor the prosecuror.So I told him PAO services are free.I always announcethat in court because the reason why many of our co-Filipinosdo not come to court is because they think they have to pay thesepeople.However,in many instance,there are people,there are PAO lawyers, and thereare alsoprosecutors who really askfor appearance money.Prosecutors will alsoprotect their co-prosecutors. Fortunately, for me wala a\<otrg pakialamkdit hindi al<okinikibouala akong pakialam. Now we go to the lack of access to the criminal justicesystem.It is not that we lack access to the criminal justice system, the truth is we do not understand the system.This lack of awareness on the part ofthe people,this is what impedes them from going into this system. Sometimes it is difficult. And we have the five pillarsof the criminal justicesystem: the enforcement,the prosecution, the judiciary, the communityand corrections.\fe are proposing a 6th pillar, communicarion. You will note that what is really lacking here is our needto tell the peoplewhat the criminal justicesystemis all about.What we need is popularlaw. 1 do not know how they will do it but we needsomethingrhat will popularize law. We needlawsthat are translated so that the peoplewho will readthem can understand. ln effectwhat I am sayingis sometimes investigators would type the investigarionin Englishor Tagalog and the complainantwould tell the police his story in the local dialect. In effectwhen we saythat we needa truth commission would this in effectbe encroachingon the rights of the persons whom we are trying to bring to the bar ofjusticel I haveseena lot of peoplewhosereputationhad beenon the dust because of this. l, for one, I wascalled ignorant, inutile, when in one caseI had to conducta preliminaryinvestigationand I had to allow the accused to go ftee because the crime happenedtwo yearsbackso underour Rulesof Procedure, he neednot be imprisonedyet. No less than SenatorNoli De Casno calledme so many nameson televisionwithout him knowing what the real scorewas. I tried to call the programat the time it wasairing but nobodywantedto answerme. So it is hard to just throw accusations without any proof. Let usjust pray that it doesnot happento us but what if it happens? 70 :
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I remember readinga newspaper report abouta Filipino who killed himself.This happenedin Sydneybecause the newspaper, one time, laid ambushbeforehis home and took his picture and madea newsstory that this is the Filipino who wasduping all his neighbors.He pretendsto know how to repairappliances but he doesnot and this persondid not have any access to mediaso the lastbestthing that he could do waskill himsell He could not stand the stigmaofbeing accused without having the opportuniry to defendhimself. That is the other sideof the balancewith the truth commission.I hope when we go out, we must alsotell media because sometimes mediais not truthful so thev shouldalsobe subiected ro the truth commission.

Atty, Rene Sarmiento Cioil Societl May I greetthe judges, Villanueva of RTC Makati, JudgeBello of RTC Caloocan,the brorher of my Chair of Judge the govemmentpeacenegotiatingpanel,BrotherJessie Darozaof RTC QC, relative of my wife, members of the diplomaticcore,lawyers from PAO, Dangerous DmgsBoard,my friend from the human rights community,from FIND, Philrightsand others,from SALAC, from CAV, my colleague from the peaceprocess, Atty. Candelaria,the members of the Ateneo Human RightsCenter, from intemational NCOs - magan&ng po sakanilanglahat. umaga Impunity or imprni.dad, asLatin Americanswill call it, meansfailure to bring justice to human rights victims of violatorsand criminal offenders. It is a cancerthat doomsand damnsjustice. A human rights advocate, Natash Kardiconcesaidthat if you want to build a normal society,we mustbe able to facethe truth about thesecrimesand punishthe perpetrators. The research prepared and completedby AHRC is, to me, an inspiringcontribution to the peace, cause of truth and freedom.It tells us about the cancerthat is impunity or irnpunidad. lt tells us the growth and development of impunity in our midst and teaches us how to combat this impuniry. The research, with clarity and forcefulness, tells us about the threat and pressures facednot only by the victims and witnesses but alsoby investigators and prosecutors. They, too, are subjectto threats,to pressures if the suspects or accused are connected with the govemment,or military personnel or are policemen. And it tells us about the poverty ofour people,one factorthat preventsthem from pursuingor prosecuting a case.This is the tragedy of the third world: lack of understanding of the legalsystem. Because of thesefactors,thesecomplainants, thesewitnesses do not pursuetheir cases to their logicalconclusion. This studyalsotells us ofthe admission ofour venerable and honorablejudges why cases are delayed.The pressures that they alsoface,that they are human beingsand they, like us, facestress and pressures from the accused. A while ago,a judgewastelling me abouta casethat is beforeher salaand right in.her courtroomare the suspec$ and their goonswith their armsvisibly tuckedon their waists. This is a si ation that will createapprehension amongjudgesifyou are trying this type ofcase.Theseare the realitiesin our midst that cause human rights organizations to saythesethings. For instance,we have this commentwhich says: "The systemis not working.Some classes enjoy more privilegethan othersin general. There is distrustin our criminal justice system although it is availedof to go after the perpetrators." This is a reality.Why impunity persists is because no big fish hasbeenheld to answer an offense yet. Influence is so much a part of the legalsystem that it is difticult to get anyoneto rule objectively. lf the witnesses seethat the accused hasaccess to so lluch influence,they won,t fight. However,I think that all is not lost. The studygivesus proposals to combat impunity. We have proposals like humanrights educationand to me, this shouldcover the citizenry,the police and our judges. !7e have the PhilippineJudges Associationthat provideshuman rights educationto judges. As a matter offact, this September 1214 therewill be a seminar held for judges. It will be aboutthe indivisibility of the economic, social, andpolitical rightsand the rights and remedies that are being usedby NGOs, by courtsin order to promoreand protect these rights. Next, the samestudyproposes educationon access to justice.I think this is relatedto first proposal. Then the third is to strengtheninstitutionsdealingwith accountability, for example,PCCG, CHR, Ombudsman's Office. !7ith resPect to the Commission on Human Rights,there is a bill that hasbeenflled in Congress to give it the powerto prosecute not simply to investigate cases.

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Then createa commission like a truth commission mentionedby my goodfriend Linda. Thesetruth commissrons arecreations of law. ln South Africa, a law wascreatedby Parliamentto createthis tmth and reconciliation commissions. They observe evidence, processes, they observe beforethey could provide amnestyto violatorswho admittedtheir offenses. A similar commission wascreatedin Argentina, Chile, El Salvadorand Cuatemalaand thesecommissions werehelpful in the healingprocess after undergoing a periodofdictatorship and repression. This commission wascreatedto provide a healingprocess and this process waseffective.So if a commission would be createdin the Philippines,a bill has to be filed. As a matter of fact, there is a draft bill for the creation of the truth and reconciliationcommission. It would be goodif we upgrade the salaries prosecutors, of policemen,judges, and PAO lawyers.They have to contendwith private lawyers receivingfat fees.So, I think we have to upgrade the salaries of theseimportant pillars of our law enforcement system and, finally, I think we have to expandand upgrade our DNA facilities. If you watch Discovery Medical Detectives, you will realize how important DNA is in solving crimesand the prospects are bright, intemationally. Why do I saysol Prospects of fighting impunity, three important new hurnanrights instrumenrc are underconsideration by the UN Commissionon Human Rights and eachwould contribute significantlyto the fight againstimpunity. First,we have the Optional Protocolto the UN Convention Against Torture. This would provide for a globalsystem of visi.ts or inspectionto placesof detention.Any stateratifying the Optional Protocolwould commit itself to allow intemational inspectionvisits to police stations,prisons,and any other placesand territories wherepeoplearedeprivedof their liberty. The secondis the BasicPrinciplesand Guidelineson the Right to a Remedyand Repamtionfor victims of violation of intemational human rights,human rights and humanitarianlaw. The rightsof victims ofhuman rights violations include the right ofaccess to justice,the right to know the truth aboutthe violations,and the right to reparationand others,and finally, the set of Principlesfor the Protectionand Promotionof Human Rights throughaction to combatimpunity. So there is a set of principlesinrendedto combat this problemor cancerthat is impunity. They set out the elements ofthe right of victims to justice and provide guidelines for extrajudicialcommissions of inquiry into human rights violation including truth commission.In other words,the establishment of truth commissions is encouraged by the United Nations and they are to be set up after periods of intensepolitical repression.In addition to this, we have this Principleof UniversalJurisdiction,which is now slowlybeingaccepted universally. Prosecutions on the basis ofuniversal jurisdiction for recentcriureshave takenplacein Austria, Belgium,Denmark,France,Germany,Netherlands,Spain and Switzerlancl. One goodcaseis the case of AugustoPinochet,the formerChilean military ruler who wasarrested in the United Kingdom.A request wasmadefor his extradition to Spain to facecharges of torture and other crimes.The significantdevelopmentthat will help combatimpunity wasthe creationof a permanenrinrernationalcriminal court with jurisdicrion over perpetrators of torture when it constitutes genocide, crimesagainsthumanity or war crimes. The RorneStatuteof ]ntemational Criminal Court enshrines the intemational community'sstatedresolveto put an end to nnpunlty. Impunity wasmentionedin the Rome Statuteof InternationalCriminal Court. There it wasrecalledthat it is the dury of everystateto exercise its criminal jurisdiction over thoseresponsible for international crimes. !?ith these intemationaldevelopments designed to put an end to impunity coupledwith the proposals containedin the study prepared by the Ateneo Human RightsCenter, we hope that one day we will be able to put an end ro impunity. I am reminded,by way of closing,of a Generalwho wasassigned to a very imporrant missionby his Commander-inchiel Beforeleavingfor his assignment, the Generalaskedhis commander-in-chiei "Sir, do you have instructionsl"The Commander-in-Chief told him: "Remember Rule 10." "Sir, what is rule 10i" "Rule 10 means takecharge!""Are thereotherinstructions, Sirl" "Remember Rule 15!" "Sir, what is Rule 151" "lt simplymeans do it rightl" And if I may add to theserules,Rule 3, I think could be usefulto ussoldiers for a worthy cause, whether you area judge,a prosecutor, a lawyer,or a professor, Rule 3 would be "Do it with prayer." I think with thesethree rules,we will succeed in combatingimpunity.

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Atty. BenedictoTabaquero,Office of the City Prosecutor (OCP -Paraiaque): Do we have any represenntive from the Commissionon Human Righs now in attendance? Atty. Amparita Sta. Maria, Ateneo f{uman Rights Center (AHRC): We sent an invitation to the Commissionon Human Rightsbut I don't think there is anybodyhere from the Commission. Atty. Tabaquero:The reason why I askis that arewe to understand that the poll surveyconductedby the Ateneo Human RightsCenter took into accountsomestatistics of that particularoffice? None wasmentionedabout the overallsurveyand the results. Atty. Sta' Maria: We interviewedmembers of the Commission. What the Commissioner saidwastaken into accountin this studybut, aswe said,the focusof this presentation wasthe field research. Our publication, which is set to be released beforethe end of the year,will actuallycover a broaderscopeof impunity and will be dealingwith much more, including human rights institutionssuchasthe Commissionof Human Rights. But for the purpose of this presentation, it only focused on the field studyand that field srudyincludedan interviewwith the Commissionon Human Rights. Atty. Tabaquero:In the poll survey,it says that about 128prosecutors wereinterviewed,?2 judgeswereinterviewed and then l2 farnilyvictims interviewed. From the point ofa crediblepoll survey,are rhesebenchmarks sufficientor adequate to arrive at a crediblepoll surveyresultwherewe have only a limited numberof suweyrespondentsl Atty. Rea Chiongson,Ateneo Human Rights Center (AHRC)I When it cameto the prosecutors and the judges, we got 20olo which is already1/5 of the total numberof prosecutors in the targetareas and total numberof judges also.Of course, when it cameto the familiesof the disappeared, NCO's or govemmenrinsrirurions, we did not usethe surveymethod.It wasbasicallyinterviews.What happened wasthat the family of the disappeared, the NGO\, and GO's, most of them, wereactuallyvalidating the answers alreadygiven by the judges, the law enforcers and the prosecutors. Atty. Tabaquero:Prosecutors all over the Philippinesare about 1,600plusand if this is J2, I don't know whe*rer, on a percentage basis, this will reflect the collective reactionof the group.Also, the poll suweyspeaks of having interviewedprosecutors and judges. Has there beenany interview of the military, the police,our brothersin Mindanao, the NPAs, the MNLF, the MILF and the Abu Sawaf about their reactionswith respect to thesesurveys? Atty. Sta.Maria: First of all, we saidthat we only targeted four Mefto cities:Metro Manila, Metro Cebu, Metro Davaoand Cagayan de Oro City. For the prosecutors, we concentrated on thoseassigned to heinouscrimes, because we limited our research to violations on the right to life. For the families,I alreadysaid in my presentation, we had difficulty gening 20% because very few of them wanted to be interviewed.And I think, for the Abu Sayya(we sharethe sentimentof someof the members of the Commissionon Human Rightsthat we risk our lives.You know, we are NCO's and we lack resources. We did not include the Abu Sayyaf because we wereactuallylooking at the focuson the criminal justicesistem. Atty. Tabaquero:In the presentation not only on the overviewbut on the synthesis, it says that the prosecurors are beingcorrupted,is there any finding, based on your surveyresults, on military officersand police officers being corruptedalso?None wasmentionedaboutcorruption in the military, none wasmentionedabout the corruption in the police ranks.lt merelyconcentrated prosecutors being corrupted.

Atty. SedfreyCandelaria,Ateneo Human Rights Center (AHRC): The term that we usedwasnot corrupted. I did not usethe term.I saidvulnerability. Vulnerability because of the impressions of people irndwe are talking about the possibilityof influences. That is not sayingthat they are corrupt but they are subjectto influence.Is there a possibilityof influence ?of pressure I Thoseweretermsthat wereusecl in the rcsearch. Atty. Tabaquero:\7e mustrecall that prosecutors and law enforcers have their own areaof concernasfar as investigationis concerned.At the level of prosecutors souremay saythat there are bad eggs and there are goodeggs.In the level of the military, we cannot alsoremovethe perceptionthat there are bad eggs and alsogoodeggs. The sarne is true aspointed out by Comn.rissioner Hornilla, that tl-rere are bad and goodeggs in the poLice ranks.So,I do not believe that whenyou usethe wordprosecutor, it is to be un.lerstood as genericasencotnpassing the other law enforcers. I don't know but history will vindicate us wl-ren there are other law enforcers who are equallyperceived ashaving bad ancigoodeggsin their ranks. Atty. Candelaria: My statenentwill speak for itselfthat it did not singleour rhe prosecutols in this case. l'm reflectingon the institutionsasa whole on the basisof what the data had levealed.And they are talking of not just the prosecution but evenother institutionsof govemmentand we basethis on the responses of the lntervtewees.

Silvestre Bello,Regional Trial Court (RTC) Branch 128 (Caloocan City)r You proposecl Judge that in the justice systetn, a numbersix component should be added and that is cornmunication in additionto enforcement, judiciary, prosecution, correction andNGO. How do you prop(lse ro havethrsJ Comrnissioner Linda Malenab.Hornilla, National Police Comrnission(NAPOLCOM): I wassaying comnunicatiort wouldbe the mediaasa part of the Crininal Justice Systern because we will alsobe ableto put in print knowledge aboutthe justice system and how it wolks.Then we will pur in print rhe rightsof the individualswhen it cornes to cases.We will put in print namesof all thosepeoplewho may have had or who are vulnerableto cornrption. I think thereare timeswhen this is not known to the public-many, many times. Thosethat appearin the newspapem are thosethat they want to print. So, rnaybe, if there is a widerdissemination of information justice like this,we will be ableto change the image of the crirninal sysrem. Bello: In oneofyour dissertations earlier, you saidthat the meclia is verymuchbiased Judge or not truthful in their presentations. CommissionerHornilla: Yes,I statedthat because it is true they are nor rrurhful but I am not sayingthat everyone is not truthful. JudgeBello: But then if you makeit a componentto somethingthat alreadyexistsand maybealreacly effectiveyou might just be putting an obstacle or probablya nud. CommissionerHornilla: I don't think so because when we look at rhe systemitself it looks asif the mecliais always on the other side.So why don't we just bring them in and tell them: "Theseare what we are doing. These are the good things in the criminal justicesystem that we are doing. So help us." Insteadof them being always on the opposite sideandsaying this is what is wrongin the judicialsystem. Although,o{course, we welcomethe remarks on what is wrong with the justicesystem because we have to implove the justice system.But it cannot always be negative. MadamCorntrissioner, the media is controlledby because JudgeBello: And that is where I havesomereservations, somepeople.Well, I wouldn't sayit now but if you focusto propose the mediaasa componenrof rhe judicial system, chances are you will have a rnediathat hasalwaysbeen traditionally controlled by people who are"in" and, I think, you know what I mean.lt is not safero pur rhem in asa cornponenrto the judicial system,
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Commissioner Hornilla: We welcome such comment on my proposition because,anyway, this is just a proposition. It may have its pros and cons but at this point in time, I think that, consideringthe bashing that crirninal justice system has been taking on for the past many years, it is high time that the good things about the criminal iustice svstem should corne to fore.

Atty. PersidaAcosta, Chief Public Attorney, Public Attorneys' Office (PAO): First of all, I woulcllike ro express our gratitude,in behalf of the Public Attorney's Office, to the Ateneo Human RightsCenter for inviting us and also,I wasinformedthat they are going to reinburseour RegionalDirectorsof their expenses. This is the first time sinceI wasappointedthat PAO hasnot been malignedbecause PAO, even accordingto Katrina Legarda, is the most malignedagency.And I'm very happy that Ateneo Huuran RightsCenter now realized the important role of PAO in the justicesystem.My friend, CommisionerHomilla, saidsomething aboutthe media. I would like to saythat in fairness to them a few weeksagoPAO lawyerswereportrayedin MissionX, Channel 2 asengaging in tong-its or garnblingactivities. The following day, I went irnmediately In to MissionX. I informed them then that they weremistaken. Thosedepictedwere not PAO lawyers. fairness to theserredia peoplenow, they really rectifiedeverything.So one point is that the mediashouldbe very responsible in airing anything because they uright reallybe creatingprejudiceagainstinnocent public servants.Imagine,we only havenine hunclredfifteen PAO lawyers nationwide despitethe fact that we have moreor lesstwo thousand five hundredcourtsnationwide.So the ratio is one is to three, one lawyeris to thlee courts. You could just imaginehow overworked our PAO lawyers are at handling cirses. But despite that we are the mostmalignedlawyersin town. In the last LAWASIA activity, the IBP Plesident mentionedthat PAO is just a "paamin"agency. To this, I reacted.I said:"You shouldknow that, asPAO lawyer,you haveno choice in criminal cases. Once you are appointedby the judge ascounseldeoflicio especialLy if the caseinvolvesthe poor,you have no choice.Whether the accused is guilty or not you have to handle the case.Where the accused is innocent,we have the solemnduty to defendhim up to the proceedings. appellate However, if he is confessing his guilt or he reallydid the crime,you shouldnot create just injusticeto the victim. Of course, we have to resortto plea-bargaining to afford the benefit of penalty for a lesser offense or to affordhiur the mitigating,exemptingor justifying circumstances. Now, I'm very happybecause even the congressmen last Monday have recognized the plight of the Public Attomey's Office and evenCongressman Ted Failon recommended that the budgetof PAO be increased three times. AIso, a personfrom the BJMP lastweek or two weeksagouttereda remarkthat wasso disgusting to me because she saidwe are not performingwell because we are not doing our part in the decongestion program. I told her it wastheir duty to refer to us and to inform uswho the detainees are,because thesedetainees are not under our custody. They are in the custodyof the BJMP.I think this wasjust a marrerof miscommunication. The public shouldknow what is the role ofPAO in the justicesystem and even in the pillars ofjustice PAO is beingforgottenand neglected and that shouldnot be done.As we have proven in the May 1 rebellioncases filed againstone hundredforty-seven accused the Public Attorney's Office assisted theseallegedErap supporterc and recently we wereableto get a disurissal of the charges filed against then.

Sr. Supt, MercedesForonda,Bureau o{ Jail Managementand Penology(BJMP) - Central Office: I just want to makea reaction to what Commissioner Linda Hornilla saida while ago,that we are going to expandthe five pillarsof the criminal justicesystem into six, making cemmunicationthe sixth pillar of the criminal justice. I arnone of the members of the Technical Committee on Crime Prevention andCriminalJustice System of the NationalPolice part Commission ancl we do understand thar mediais already of the socializecl community. I think we haveagreed planning lastFriday, duringthe Philippine System CriminalJustice session, that we are going to expandthe communications or the trimedia to be not only lirnited to the communitybut will be expanded to all the four pillarsof the crirninal justicesystem so that there will be a balanceof communication.Both sides will be investigated by the tritredia --- from the law enforcement, to the prosecution, to the courtsand to the corrections.They will not only be limited to the community because once they are limited to only one pillar, they becomeimbalanced. '15

(FIND) and Asian \ls. l{ary Aileen Bacalso,Chairperson,Familiesof Victims of Involuntary Disappearance (AFAID); FederationAgainst Involuntary Disappearances First and foremost,in behalf of our organization, the Asian Federation Against lnvoluntary Disappeamnces, we would like to cornrnend the Ateneo Human RightsCenter for the very courageous initiative of coming up and completingthis studyon lmpunityin the Philippines. We believe in our this wouldreallyhelp usa lot in termsof succeeding campaign for truth, forjustice and againstimpunity. We listenedto the presentationand we realized that as far asthe issue of disappearances is concemed,only twelve farniliesof the disappeared have responded to the survey.FIND could have helpeda lot in termsof facilitating the interviewsbecause we have eight hundred trvenryindividual family members of the disappeared frour differentpartsof the Philippines.So, if it's still possible, we would be very glad to contribute more information and to facilitate interviewswith farniliesof who are organized.Although we clon't have any questionon the correctness the disappeared of what the individualfamiliesmentionedbecause we they are in the bestposition to saysomethingabout their cases, justhaveone comment on oneof the graphs privatecitrzens as herewhich mentioned aboutindividual perpetrators perpetrators or alLeged of the cnme of disappearances because asfar asour definition of involuntarydisappearance is concerned, we consider and politicallydisappearance asstate-perpetrated motivatedand we baseit from the definition of the United Nations. It's very usefulif we believe in rnanyof to be the recommendations statedin the surveyand it would be very usefulfor theserecommendations disseminated and, more importantly,actedupon by concemedagencies. \G- Daisy Valerio, FIND: Maybe I can mention someof the things which we have so far initiated in FIND in connectionalsowith the issue of irnpunity. Beforethat I u,ouldlike to mention that the cases of involuntarydisappearance happened not only during the tirne of then President Marcosbut even up to the present.We haveso far a total of one thousandsevenhundrecl seventeen reportedcases of involuntary disappearances sincethe time of Marcosup to the present. Out of this figurewe have documentecl one plus. Andoutof thisfigure, thousand four hundred airnost are missing up to the again, one thousand just recentlyto the President present.\?e have submittedthesedocuments of the Philippineshersell to Congress and alsoto sorneSenators.On August 29, the claybeforethe commemorationof the National Day of the Disappeared, the President herselfmet with someof the representatives of our organization.Atty. Sarmientowaswith us and one of the things the President promisedto do in connectionwith impunity is that shewill makeasone of her priority bills the involuntaly disappearance bill which had beenfiled in Congress sincethe lOth session.That is one big developn.rent. We alsopresented to her someupdates of the intemational lobbyingeffortson involuntarydisappearance particularlyin connection with the Draft Convention on the Protectionof All Persons frour EnforcedDisappearances. There are now aroundthirtyfive countrieswho are recommending the creationof a intercessional body that would study this intemational document. Also, asmy companionhere mentioned,is therestill a possibilityfor us ro contributebecause I'm a little bit sadwhen I heardthat it washald to contact the farnilies. Actually, we are just in Kamias.We will be very willing to contribute whateverdocuments we have for the benefit of us all and we will alsobe very interestedin the concrcteaction points that will have to be done in connection with this very important study. ^{tn'. Sta. Maria: We're very happythat FIND is offeringto lead us to rnorefamilies. We actuallyinterviewed FIND asoneof the NGO's but we earlier on conducted interviews Perhaps the of farnilies of disappeared. center,asa whole, has to come up with a resolutionwhether to add more interviewsor not but I think even if we add more interviews,it's pretty much the samein termsof integrity. But, because of the developments of recent disappearances, we actually plan to includein the study, a case studyon BubbyDacerand Bentain. So we are still thinking of whether to add morebut we'rehappythat FIND is offering. We're very happy and if we have the resources. mavbewe will.

Sr. StateProsecutorPurita Deynata, Department of Justice (DOJ)r First of all, I would like to congratulate Amparita here for coming up with the studyon impuniry in the Philippines. Part of it somehowvalidates '76

the resultof my study,a surveyreport on the victim witness, statusof the witnes protection program,of the inadequacy of the programitself. But my concernis one of your recommendations, which I would like to seekclarificationon. You statethat there mustbe an improvementin the process of review in the DOJ. This concernsthe DOJ properitsell and the stateprosecutors are the onesconducting the reviewof these cases.At what stageof the process are you concerned about? Atty. Sta. Maria: This wasgiven by the Crusade Against Violence.We interviewedthem and ir just says thar rhe DepartmentofJusticemustchangethe process of review,clean the Departmentby removingerrrng prosecutors and address the issue ofcorruption. I think shewasalluding to the issue ofcorruption, which happens during the reviewstages of appeals. Sr. StateProsecutorDeynata: Ellen is here from the CAV and rvehavehad severalinstances where we have collaborated on certain issues beforethe technicalcommitteeon crime prevenrionand criminirl justice. lf the perceptionis there are corruptstateprosecutors in the DOJ properthen it's nor improvementof the process of reviewbecause if we say,improvementof the process of review then we have to go through the process itself-step one, steptwo, stepthree. So I think if that wasthe response of the NGO asregards the process in the DOJ properthen it shouldbe statedso, not to improve the process of review. lfyou talk about process, then you will saythere'sdelayin the reviewprocess but when you talk about corruption that's anotherthing. Then we have to run after them administratively or criminally. Atty. Chiongson: I just want to makea commenton the perceptionofcorruption. I think it is a problem. I think it is somethingthat we have to keepin mind because this perceptionaffectsaccess because it's alreadyan obstacle or an impediment. lf you are going to comeup with the system, we shoulclbear in n.rincl that there is alreadythis perceptionand I think there is a requirement for governmentinstitutions to go an extra mile precisely because there is alreadythis kind of perception. Sr. StateProsecutorDeynata: I agree with you. Yes,of coursecorruption affectsthe process but then you have to stateit in sucha way that we have to improvethe process of review in the DOJ by eliminating corrupdon.

Mr, Gregorio Bacolod,Parole and Probation Administration (PPA): I am representing the correctionspillar ofour criminal justicesystem-the pillar which releases with iurpunity crime offenders from prisons.There was mention madein the overviewpresentation that there is a seeming difficulty in defining the conceptof impunity. I am about to suggest that in accurately defining this concept,the socio-culturaland various historicalfactorspeculiarto our jurisdictionshould be inputted in the definition. I know that in other jurisdictions, particularlySouth Africa, in the establishment of that commission, the peculiarsocio-cultural and historicalfactorswerecritically inputted.There is a needto explorethe inpurting in the definition a verypeculiar andverycriticalfactor,peculiar to our jurisdiction in the Philippines, "Christian the so.called ValuesFactor". I guess this is the bottomline referredto by our reactorAtty. Sarmientowhen he cited Rule 3: "Do it with prayer". Because my stand is we have to start correctlyotherwiseensuingeffortswill be fruitless.The startingpoint here is how to define accurately impunity in *re Philippines. So my contention right now is we have to definecorrectlyso that we can be guidedaccordingly. Atty. Chiongson: I just want to makea shortcomment concerning the definitionof impunity.What I really presented wasthe working definition that we usedin the research that we conducted.The definition that I used is that "it's a commission of a violationagainst the right to life" but it's not necessarily the definitionof impunity and it is without accountabiliry.So I think if u'e look into severalconsiderations anclI rnentioned a numberofprinciples like what is the right to know, rvhat is the right to justice,what is the Lightto reparation, theseare basically conceptsthat are attachedro .lefinition of impunity because if we talk about impunity,on the otherhandwe'retalkingaboutaccountability. Now, I rhink the objective of the research is basicallyto come up with the causes of impunity and if u,e'reable to do so and we'reable to look into the certaincontexton why impunityoccurs in the Philippines, perhaps we can addthat asnot reallya part of the definition but perhaps somestatements on how rvelook at impunity in our counrry. So, ifyou want to

addsomethingaboutChristian Valuesor what is the value of forgiveness in our country, it shouldbe in line with the internationalprinciplesand if there is and if we believethat we valueforgiveness, doesit necessarily meanthat we foregojustice?And how shouldwe put this hand in hand with the intemational conceptof justice? Mr. BacolodrMy suggestion is to make it asan attachedconcept,not necessarily to be included in the definition. What I failed to cite asan attachodconceptto the definition of the conceptof impunity in the Philippines, justice,which is very Christian and very applicable the United Nations hasadoptedthe so-called restorative here in our jurisdiction in the Philippines. So, specifically, asan attachedconceprro the conceptof justrce. impunity in the PhilippinesI am stronglysuggesting restorative

Atty. PersidaAcosta, Chief Public Attornev, PAO: I would like to makea comment that we shoulclnot make generalizations that there is conuption in the NPS. ln fact, a typical exampleis the Vizcondecase. The Vizcondes have no moneyto spendand, in fact, we did not spendany singlecentavo to pay any public prosecutor and even the judgewho handledthe case.The Chief State Prosecutor hasset an exampleto his subordinates that justiceshouldbe servedand I can feel that there'san improvementnow even in the reviewprocess in the DOJ. Even the Secretary ofJusticeis now implementingchanges, although not so radicalor so abrupt,in the process of reviewingcases. l'm very optimistic that all of us can be irssured that the old system in the reviewwill be improvedand cofiuption will be eradicated sooner.With the adventof the Rueda case, which wasa celebrated casein the National Prosecution were Service,all prosecutors warnedfrom committing the mistakeof renderinga ping pong resolution-drop, file, drop, file and I wasa victim of that. Upon gettingjusticebehind the death of my brother last February, I wasconvinced to go back to the samedepartmentwhich I left in 1993. I accepted the appointmentgiven to me by the President.So I'm very optimistic despiteall thesebad remarks againstthe NPS. The NPS is iurprovingand you that the presentSecretary I can assure will do his bestto improve the justice systemin the Department ofJustice.

Ms. Ellen Gran, CrusadeAgainst Violence (CAV); Good Morning, I won't makea violent reactionbecause we are againstviolence.I would like to thank Ateneo Law School for this privilegeof being here and on behalf of Mrs. Agaraowho wasalsointerviewed,I hope that Ateneo Law School would push through with their research and we can give you morevictims to interview because Crusade Against Violence is an organization of victims and relativesof victims ofheinous crimes. This is only a reaction to whar Commissioner Homilla saidand I would like to thank her for being a good prosecutor, for helping the victims,giving food and sharingsomething. But with the six yearsthat I had with the Crusade Against Violence,nevera victim told us that a prosecutor gavesomething,but then, we, asvictims, try our very best not to please the prosecutor papaano but kaAit a1 nakokosukli din kamisa mga ginagatta ngmg4prosecurors srl anin sanlong rc kanilang binibigq. CAV is working hand in hand with the DOJ to help put up reformsin the judicial system. As a victim, we arevery much happywith what Ateneo is doing. My brother and my sister-in-law werekilled in ftont of my mother. I wasambushed pero in front of WPD. Wala kaminghustisla nanditopa rin kami pma matuJungan biktima.l don't want nd ?nzbiktimakap kagala sa nangyari sa lunghindi amin. We will tell the pillarsof the criminal justicesystem what is really happeningbecause only the victims can understand what we arefeelins.

JudgeMarivic Daray, RTC Branch 18 (Digos City) and Ateneo de Davao Legal Advocacy Work (ADDLAW)r I'd like to commendAHRC for this very wonderfulprojectbut I think the commendationshouldalsogo to the students all over the country from Baguioto Cebu to Cagayan and Davaowho conductedthe research. And I'd like everybody to give them a round of applause even if they'renot here.Thesestudentsbravedthe night especially in DavaoCity. We interviewedonly two familiesbut our studentsreally went to the 78

mountainsbecause they wouldn't want to go down for that interview. They wereafraid-the fear of reprisal on their lives. So I'd like to sayto my studentsthat I gavethem this commendation,they've done a very greatjob. There wererecommendations given by the NGO's and I think many ought to be done. I know for a fact that there are plenty that shouldbe done in the judiciary. I have been there for only one yearbut I've seenthat there are a lot of things to be done. Now my questionto the AHRC is this: " After this study, what elseshouldbe done?I mean,wherewould the studygol What are the recommendations of the AHRC (not necessarily the NGOk)i lt's not only the obligationof the AHRC to do something.I'm putting the challengeto everybody who is around,representatives of the five pillarsofjustice that we shouldnot perception confirm the ofeverybody. There is a perceptionofcorruption, that the justice systern is rotten and everything.I think we can start with ourselves. Let us not contribute to suchperception.Let usnot confirm the perceptionof the public. So I go back to the AHRC what elseshouldbe doneI Atty. Sta. Maria: Hopefullyyou have your own ideasof what you shoulddo on your part but for us,after we sumup rhis one, we will write it, which is the harderpart, and then publishthe research.

RTC Branch 76 (QuezonCity): I would just like to make little commentson someirems. JudgeMonina Zenarosa, First about media,this is not for the inclusionof the tredia asa pillar of our judicial systern.What I would like to sayis that because mediais supposed to inform, it shouldfirst be informedand enlighteneditself. What I'ur sayingis that just one look at the newspapers They and you would seethe slant of the reporters. don't know what to report onJthey don't reallynarratethe factsaswhat happensin the courtrooms. Some reportsare muddledwhich would only meanthat they don't understand what they are writing about.Even on television,you'd seethe slant.So what I would propose is for thesemediapeopleto attend seminars so that they can be enlightenedon somesimpletermsin law because they don't even know the basics.So that'svery important. Another thing is about the reviewsin the DepartmentofJustice. I wasa fiscalfor fifteen and a half yearsand I enjoyedmy work. Anyway I don't know if it's still the practicenow that the work of a high ranking fiscalelsewhere is reviewedby a non-rankedprosecutor in the DeparturentofJustice. Also, about this Crusade Against Violence, I am for their purpose, with their diligenceand with I agree their passion, but sometimes they rub the judgesthe wrongway. They appearin court and they make the judgefeelthat without them the victimscannotattainjustice.Besides, you know, it's not always that just because you filed a caseagainstthe personthat personbecomes instantly guilty. There is sucha thing asdue process and I think this shouldbe borne in rnind by the urembers of the Crusade.Ultimately my quesuonrs aboutimpunity.My ideaaboutimpunityis gettingaway with it or havingyourcakeand eatingit too. But I woulcilike to know reallywhat is the puryose of this exercise and what you intend to achieveafrer thisi Atty. Candelaria:One of the purposes of an exercise like this hasbeenmentionedwhich is law refonn. But the other reallyvery important aspectis creatingawareness on the part of the public who may havebeen experiencing this. One, you have to surface issues ofthis nature. If you take a look at the instrumentsthat werementionedearlyon in the overviewwhich is the obligation ofa stateunder the lnternational Covenant on Civil and Political Rightswhich is to affordthe cirizenscertain remedies dourestically, the issue of impunity is very important.As mentionedearlierby FIND, under the United Nations conceptof impunity, we talk about perpetrationof impunity by stateagents.This is not to say,however,rhar non-stare agents shouldnot be madeliable. We make that distinction because even non-srateagentsshouldbe made responsible evenunderinternational instruments. That'sour position.But because, principally, violations have occurredin the areaof stateagents, that meansdifferentagencies govemment of have not beenable to fulfill the obligation in light of the normsof, let'ssay,the lnternational Covenanton Civil anclPolitical Rightsandotherrelated instruments, then we think that a srudyof this naturewill call the attentionof the statemachineryin particularand call them to comply and at leastlook at refonnsif necessary within the differentbranches of the govemment. It is a way not of condemningbut a way of trying to fincl an environmentwherebypeacein this country will prevail so that everyonewill benefit frorn the fruits of a conditionof peace in our country.You might call it a veryphilosophical wayof approaching ir but it is grounded really on fundanental obligationsof statesasmanifested through the actionsof stateagents and statemachinery.

Mr, Antonio Villasor, PhilRights; I workedbeforein Task ForceDetainees and my experience saysthat when you try to fight for justice,you start from the very beginning. When we file a case,of coursewe are not lawyers, but we fight in the sense *rat we put a dry data and the witnessshouldbe protectedand we have to really be very accunte in termsof that. We commendour lawyerslike Atty. Sarmiento,Atty. Boy from FLAG, from all theseorganizations, the PAO. They are lawyers who are very concerned about this. And we NGO's want to saythat we needparalegals. This is a holistic battle. This is not only a battle betweenlawyers and the courtsor the judges. The witnesses, the paralegals, the NGO's, and the citizensshouldreally be armed with procedure or knowledge ofhuman rights or the court procedures and all thesethings. We cannot just look at the pastof martial law, all this apathyofour people,and all this depression. I think we have to be very strong. We have to win this battle. I meanthere are still corruption in our courts.But there is still a lot ofhope in our land. If we fight againstthe former PNP Chief we shouldnotjust go into the categories of '! propaganda and all thesethings. e have to really be stlong asNCO's and we have to put up a case.And I think the intemational court justicesystem and all this covenants should reallyhelp usfortify our strength. And theseare foodsfor our thoughts,food for our bodiesand food for our souls,I think we have to fight.

Sr. StateProsecutorDeynata, DOJ: I would just like to correct the impression that the stateprosecuro$are nonranked.ln fact, they start at salarygradetwenty-seven and that's higher than those in the field. \X4ren state prosecutoru reviewcases brought to them on review they are reviewingfor the office of the Secretary of that thesestateprosecutors comeup with, theseare broughtbeforethe Justice. So the draft resolutions Office of the Secretary and it is the Secretary that signsthe resolutionand being the Secretary ofJustice,of he has administrativesupervision course, and control over all prosecutors in the field or narionwide. So it is but natural that under the rules,any resolutionby the City, Frovincial, and even the Chief State Prosecutor can be broughtfor reviewbeforethe Office of the Secretary.

JudgeCandido Villanueva, RTC Branch 144 (Makati City): While rny court doesnot handle heinouscrimes I happento be a family court judge,drawingmy experience because from the prosecution serviceof the DepartmentofJusticebeforeI became a judge,I can seethe needreallyfor the mutual cooperationof the differentpillarsof the criminal justicesystem for a successful criminal prosecution. During my time, I happento work under a Secretary ofJusticewho really, I think, wassincerein bringing to the bar ofjustice especially offenders of heinouscrimes.I can remember the wordsof the late JusticeVicente Abad Santos. He saida man can afford to be hungry but he cannot afforclto be a victim of injustice. At that time there wasa murdercasethat happenedin SamalBay,SamalGull The casewasdismissed by the District State Prosecutor but the father of the boy victim appealed to the Secretary ofJustice.The casewasassigned to a very goodState Prosecutor. It wasreviewedand the ruling of the District State Prosecutor wasreversed. He happened to sendme there asthe stateprosecutor to handle rhe case, so I had to conduct anorher preliminaryinvestigationand then refile the caseand againit happened to fall on a very goodjudge in Tagum. I happenedto find a very goodmedico-legal officerfrom the NBI assigned in Cebu anc1, contraryto the finding of the District State Prosecutor that the victim died of suicide,the medico-legal officer proved that the man waskilled by scalding. His headwasplacedinsidea cauldronof boiling seawater. With the help of the eyewitness whom I tried to presentaheadin fear that he might be killed by the accused and the testimonyof the medico-legal officer,I wasable to secure a conviction beforea goodludge later Justice Lagamon.Now I can see,when I washandling this case sometimes I went to Samaland then I will go back to Davao,sometimes at night there wasno morepumpboat.I fearedfor my life and I saidwhardo I get if I in prosecuting succeed this case? I put my life at risk and I just had a very small insurancewith the GSIS. But one thing I noticed there and this is a reactionto Atty. ReneSarmiento's remark,I think one way also goodprosecutors to encourage to work in the Departurent ofJusticeor in the Fiscal's office in the provinces is to offer them a goodsalaryand ludges for them to stay. In fact, I have attendedmany seminars, in the PhilippineJudicialAcademy,in the Convention of the PhilippineJudges Associationand the most 80

portion of the speeches applauded of the guestis when there is a promiseof raisingthe salaryofyudges and prosecutors. So I wasthinking we can pass a resolutionafter this seminarand forward it to SenatorRene Cayetano,that is one way not only to insulatethe judges from corruption,offer of promotion and alsoit will encourage goodmen to join the prosecution service, so that is my suggestion following the recommendation of Atty. ReneSarmiento. Atty. Candelaria:Now this paperis going be circulatedto all the agencies concernedincluding the legislative bodv. And in fact we will highlight, in very clearform, the basicrecommendarions. It is reallv oart of the recommendation here in the long run because that hasbeenone of the observations .in the commentsabour the salaries of personnel.

Atty. Hernando Masangkay,RegionalState Prosecutor(Region VII): I feel sad,everytimea conference like this is held, only the negativeaspects about the five pi arsare brought to the fore, not understanding the situationthat thesepillarsare finding themselves in. I could only speakon behalfofthe prosecution.Do you know that the prosecution is very much undermannedl Everyyear the tumover is ovirwhelming on accountof retirement,appointmentto the judiciary,disrnissal, resignationand death. Many prosecurors havedied and the bad thing is the vacancies createdcould not even be filled up because of lack of applicants-no takers.Now peopledo not understand this. I've beenexplaining this to the media in Cetu so that they could understand the predicament of the prosecution.And I think this problemalsoappliestc the other pillarsofthe justicesystem.The numberofcasesis increasing ev.ry year,but the numberof prosecutors is decreasing. The numberofsalasis increasing everyyearbut the numberof prosecutors is decreasing. And I don't think there is a solution in the immediatefuture because the turnover is always there everyyearto the judiciary especially and no replacement could be had because there is no applicantThe requirement of five years experience for a lawyerto qualify asa prosecutor is one prohibition which shouldnot be there because a lawyerwho alreadyhasfiu. years e*peiiencewbuld alreadybe able to establish a namein the law practiceand, therefore, would be earningso much that he would never ever think of joining the govemmentservice.This is one reason why the numberof prosecutors is really decreasing even. year. How can you expectthe five pillarsto be superin everythingthat you expectwhen ihey are f".ing theseproblemsl Theseare the problems we facein the prosecution.And oftentimes.u. a.e condem.reJbr. the public but we are only working under thesecircumstances to the bestof our resources and our abilities.I hope therecould be a conference which could magnifiithe positivesideof thesefive pillars and not focus everytime on the negativeaspects. I think we deserve somerecognition. In Cebu, we have beenfacing a lot of sensational cases. In fact the Abu Sayryaf trial shouldhave beenheld in Cebu but because of the oppositionofthe local governmentofficialsand civil society,it's now being transferred to other places.As far asthe prosecution is concerned, when we are interviewedby the mediawe would alwavssavwe are prepared We havero follow the Department ofJustice, but Jeepwithin uswe areafraidbecause we do not have the resources and we do not have the people.The police and the courts,I think, are facing the same problems. Why can't you focuson all theseproblemsaffectingthesefive pillarsand find solutionsl Conferenceslike this are always focused on the negative,always focused'onthings which would destroythe -Sedfrey, pillars.Now, asregards the ruth commission, rnayI just address this to Professor my colleague at the Ateneo. Commissions, asin any other agency, rvouldbe filled up by peoplewho'd be appointedby the President or by anyone designated. Thesewouldbe poltticalappotntees igain. They woulj againbe vulnerableto pressure and influenceby the peoplewho appointid them oi their padiinoin their appointment. And in their desireto be promotedto higher officeslike the CA or the Supreme Court, ther. wouldperform at the demand ofsomepeople.So,againse aregoinginto this viciouscircle,which really would find no solution to the problemsthat we are discussing. Atty. Sta' Maria: I think it would be inaccurate, asfar asrveare concernedto saythat we onlv focused on the negative. Firstofall the topicis impunityand impunit) is a phenomenon which,we all agree, we should combat.I think the studyactuallygivesyou a rviderancia broaderperspective that, in termsof pressure or fearof reprisal, this is not a monopoly of the aggrieved parties. In fact,eventhe courrs, the prosecutors ani law enforcers themselves are subjected to pressures rvhich may or rray not affect the process of investigarr(-. Ei

or the ftial. We have saidthat the suweysays that asfar asthe courtsand the invesrigators are concemed, the integrity is not compromised.That is the overwhelmingcomment or response that they have said. And then of course we distinguishthat from the perceptionwhich is bigger.The perceptionof the aggrieved parties'we have to recognize, is a problem. Well, it hasalreadybeenalsoesiablished ln the study that the fearof reprisalhasbasis.Now, asto other partsof the perceptionof the public or the aggrieved parties, whether that is true or not, I think we have to agreethat w;have to do somethirrg uboJi i, b..uur", u, .y colleague said,it affectsthe access to the criurinaljusticesystem and if we don't hlve a well maintainedor a very goodcriminal justicesystem, if peoplecontinue with that perception,and if peopleconrinue not to avail of it because of other constraints, then I think it sornehow affectsthe justicesystem. How can you achievejustice if you don't even begin to access the whole process.So I thlnk lCsnor accurarero saythat we only presented the negative_. Actually, I think it gaveusall an eye-opener in sayingrhat if there is fear of reprisal, if there are pressures, this is somethingso imbuecl i.r ou, societythat it actuall| affectsnot only the aggrieved partiesbut the whole of the criminal justicesystem and the four pillars which haye presented. I think this is one ofthe studies, -e though we are which is actuallyvery neutral aboutall the pillars. And even a human rights center,we have tried to presentthe sideof the judiciary ani the prosecution and I think we did themjustice. Atty' Masangkay:I'm not referringto this particularconference. I'm referringto all the conferences I haveattended which focused on the five pillars. Always the negativeare being brought to the fore. I understand ofcourse that the negativeshouldbe presented herebecause your subjectmatter is impuniry so I'm not referringto thisparticular conference Atty' Candelaria;On the truth commission, there are different modelsthat we can study.If you really worry about the influencethat may be exertedon the appointingauthoritieswhen that is put up, there are srodelsthat 'lt will try to lessen, ifnot, elirninate that influence. In fact,civil society can put it up: maynot evenhave the sanction of the lawmaking authotitybecause obviously therewili be someprotl.., at tipes but we can look at some othermodels.The truth cornmission is not just intendecl always to comeup with recommendations for Prosecution.There are truth commissions that may reallyjust fo.u, on the healing aspect of the problemand the judicial aspectcan be taken careof by the ..gula, of gou.rn.ent. "ge.r.i.,

Atty' Leo Carillo, PPA (Region XII - CotabatoCity): First I would like to congratulatethe Ateneo Croup for making this very laudable project and for placinga well-focused topi! on irnpunity in the rnilitary, law -also enforcement and other governmentofficials. i have,however,somecommentson the focuson wherethe studyshouldbe made.If we have to solvethis problernof irnpunity,I think it should focused be alsoon theseareas wherewe could have lot ofexamples. Howeveryou define irnpunity I think you could find it there in Cotabato.Justlike in intemational organizations, if they have toitudyabout human rights violations,they go the placewherethesecrimesare being co.-itt.d like in Koso.,o or arryluf,.r. i., Yugoslavia. And this is probablythe_reason why many peoplein Minclanaowould like to b. ,.p^.ated from the National Covernment because they have bee.,forgott.r-r.I have interviewedsomeof them. There are now manyformer MILF and MNLF commanders who are now with the government. They could be good materials for interview or asan escortfor thosewho are willing to urakeitudy in theseplaces. Justa week ago,beforecoming here,two prourinentpeoplewerekilled in Cotabatoand i don,,.r,.., thir.rkthey reached the headlines ofthe newspaper. That is,again, an example of lackofpunishment, lackofjustice.About a month ago,a govemorwasambushed in a bridgethere whereI usedto pass every weekfrom Davao to Cotabatobut they do not report anymoreto the authorities,they lust kill orr" n.roth.r. I think, thereshould be a deeper studyon why these thingsarehappening ancl will sti'llcontinueto happenif these problems are not addressed. That is just nyobservation and, probably,if rhis is done i., the futi,ie, this wiil reallyenrich the stuciy of impunity in the Philippines. \::r-' Chiongson:We did take that into consideration, however,because of the resources of the studyrve limited it to several pilot areas.But coming from Mindanao rnysel( I'rn from Zarnboanga, and my brother rs rn CotabatoCity and I grewup in Davao,I really know thereare problemsof imlpunityand sometimes it,s even
i-

graverin a lot of theseareas especially in someremoteareas not just CotabatoCity but also in the provinces or municipalities.It's very difficult to access even the criminal justicesystem. I think the peoplethere know eachother and you would havea lot of socio-cultural factorsaffectingaccountability.On the other hand, we alsowould like to focuson the daily occurrence of impunity in our systemthat sometimes a delay itself or is actually impunity. And there may be instances a dismissal that we don't seeit as impunity because it's not reallylike what we call a big case or a graveviolation but what we want to do is show that eachclelay or eachdismissal is actuallya drop in this whole oceanof iurpunity. [f we talk about impunity, it's really a cycle.Ifyou fail to do one thing in one case, you actuallycontribute to the perpetuationof the perception that there is impunity in the whole criminal justicesysrem.

StateProsecutorLilian Doris Alejo, DOJ: To solve impunity and to have a better criminal justice sysrem in our country,it is all right and we reallyenjoy the propositionthat we have higher salaries, especially for members of the criminal justicesystem, but I don't think that alonewill solvethe problem. We should instill and we shouldhave stronsmoral values.

Atty. BenedictoTabaquero,OCP (Paranaque)r I just want to makea little reacrionto the commentof Atty. Chiongsonthat a dismissal or a delaywould actuallybe a specieof impunity. Now, please do understand that when a caseis decided,from the point of view of a judge,it is decidedbased on the factsor the evidence. That is the definition ofa decision. Factsand the evidenceequaldecision. I am very surethat when the judgeconcludes with a judgment,it is on the basisof a broadspectrumof evaluationof the evidenceasthey are presented beforethe court. Ofcourse the court will take into accounthow the prosecution succeeded in presenting its case and likewiseon the part of the defense how well the defense alsoput up its abatementof the charges.ln the rnatterof delay,there are many occasions of clelay which are actuallyexempting,which are not attributableon the part of the prosecutors nor on the part of the judge because many timeswitnesses do not want to come to court or they changetheir testimonyin court. That is why, many timeswe askfor the issuance of bench warrantsor a show cause for thesewitnesses of the prosecution to comeforwardwhy they failed to appearin court. Many times,also,the human facro$ come in, the judge is sick, the defense counsel,the witnesses are unavailable. Theseare all delaysthat are not actuallyintendeddelaysbut because they arisefrorn human factorsor considerations. So for thosecivil groups, for differentvictims, and the crusaders, we just want to assure you that at leaston the part of the Departmentof.)ustice and of which I belongto the prosecutorial you that within the level service, we assure of our competence and ability we will try very hard to assisr in the active prosecution of all rhesecases.

Atty. Cielito Celi PAO (Parafraque): Now the reasonwhy there is ifrpunity in rny mind is that there is no check andbalance. Thereis a stronger sidebecause the scale is not on the otherside. I think, in every department,in everyinstitution there shouldbe a check and balance. That is the very basiccheck and judiciary and the executive,we all know that. The judiciary convicts the accused, balancein the legislative, the executivepardons and when the pardon is not welcornero the legislative, they pass a law. In a democracy, thereis always checkand balance.just like in the prosecution. City prosecutors investigate then the other sideappeals.So, in the DepartmentofJustice,there'sa reviewbut the questionis, is there a balance?

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CLOSINCREMARKS
Atty. Amparita S. Sta. Maria Executiue Director Ccnrer Ateneo Hurnan

conferences Ancl' of course " I would like to thank all of you. This hasbeenone ofour rvell-attended First ofa11, pc" - . for rnakingthis research Asia Foundation The and SEAFILD-CIDA our funders, would like to acknowledge in this area And' ofcourse,l'd like : lltore teseaLch e"tensionsso that we may pul'sue anclfor grantingusse,rer,ll Provido,Atty. Tricia Oco' A:: Dehlma Atty. alsoali the staffof rhe Ateneo Human Rights Center: ackrrowieclge Arr. Atty. ReaChiongson, Candelaria, Atty. Gwyn Calina,Atty. Seclfrey Atty. GilbertSembrano, JaneZarrt.,-a, San Ca:,: . Davao, de Ateneo from the Ai.li Do-ingo, Atty. Annie Sunga, and Atty. Mavic cardona; the students you r'.. Thank our veryown internswho arehere. in iagayan de Oro; and,of course, X-avier University University, no ity or to our staff,Melly, Rocky and Vhangie. I thank you and, of course,impun [ruch. And thank you aLso much. impunity we all have the right to food. So I invrte you to have lunch with us today. Thank you very

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Rprerro AnrrcLESoN IvrpuNrry

UNorRsreNDrNc IprpuNrry: BryoNo e Lrcel aNo Juorcral PuRspncnvn

RebeccaKoeller Impunity is not a new phenomenon. Throughout history, people in positions of wealth and power have been able to act "above the law," to assault,displace, neglect and steal. Their statr-rs has protected them from the punishments meted out to the rest of society. The twentieth century has seen rlore war and atrocity than any other, leaving hundreds of thousandsof war crirne victirns and victims of unlawful detention or "disappearances," without the peace of truth, the healing effects of justice or the constructive aid of cornpensation to easetheir pain. What is new, however, is the widespreadacknowledgrnent that this is no longer acceptable. The Universal Declaration of Human Rights proclairns that all human beings are entitled to life productive lives lived in dignity and with respect,free frorn fear and discrimination. These rights are universal and inalienable, no rnatter ones status in life. Unfortunately, it is the most irnpoverishecl and marginalized members of society who are particuiariy zrtrisk of their rights being violatecl and sadly, all too often, it is those charged with the protection and leadershipof others, who abuse these rights without punishment. Human rights knowledge introduces a languageand tools that can be used both to understand why impunity persistsand to develop the means to effectively fight it. This paper atremptsto provide an overview of the roor causes of impunity. Alrhough examplesand parallelswill be drawn from countries and regions all over the world, the discussionwill focus mainly on the caseof the Philippines. Impunity persistson a grand scale in the world today. Arnnesty International (Al) cites it as a primary obstacie to the realization of hurnan rights in dozensof countries all over the worlcl, such as parts of Latin America, Eastern Europe, African countries iike Sierra Leone and the Congo, and Asia, particularly in China, Cambodia ancl the Philippines.' Although actions, institutions, and perceptionsthat help perpetuateimpunity, like ali social-econornic-political phenomena, are in rnany ways dependent on one another, these factors can be understood as belonging to three broad categories: 1. Institutional and political culture (justice systell, governance,rnilitary); 2. Socio-economic structures in society (patterns of exchange, attitudes, differential accessto services, knowledge and power); 3. Cultural Patterns (religion, norms of behavior); and operating at two basic levels: 1. at the level of individualsand their perceprions; 2. at the level of institutions, social structures, and plocesses that involve multiple players.2 This paper will examine these three categoriesfrorn both the individual and institutional/structural/ procedural levels and draw some conclusions on how to aclclress the problern of irnpunity.

ANNUALCouNrRy REpoRrs(2000). ' AMNEsryINrr.nNarroNAL 2SeeLeonoraC. Angeles,The in rhe ro rheRed)'ess of Human RightsViolarions - Obscacles Quest for Justice Philippines, in.4 PE,qcE, ANDHUN4AN Rtcuts RESEARCH RtpoRts at 107 (Universityof CoNrutcr RESoLUTtoN Press the Philippines 1994).

89

Institutional and Political Culture Regions where impunity flourishes are often characterizedby a history of repressionand political violence. Nations that have experienced pervasive violent regimessuch as the apartheid in South Africa, the Khmer Rouge of Cambodia, the history of ethnic conflict and genocide in the Balkans, repressivecolonial and post-colonial governments in parts of Africa, and the dictatorships of many Latin American countries continue to suffer from widespread impunity. Perpetratorsof massive human rights violations remain unpunished and even often unidentified, as history repeats itself over and over. The same pattern can be seen in the Philippines. The Philippines has struggled through four hundred yearsof colonization and warfare. Not thirty yearsafter independence, Filipinos endured more than a decadeof restricted freedomsand political violence under the dictatorship of Ferdinand E. Marcos. Although Marcos and his administration was toppled in 1986 and democracy restored, human rights records did not improve significantly during the following administrations of Corazon C. Aquino, Fidel V. Ramos, or the recently deposedJosephEstrada.3 In the past year "concerns increasedthat a climate of impunity reportedly protecting police and other officials from effective prosecution for alleged human rights violations was becoming further entrenched."4 Political Culture Maria Socorro Diokno of PhilRights ( 1993) points to four structural trends in Asian political culrure that explain the prevalence of impunity and its relation to the history of repressionancl political violence. These trends can also be seen in other regions around the world. 1. The dactrine of "national security"

Many governments, exemplified by a number in Southeast Asia and the authoritarran regimesof the mid-twentieth century in Central and South America, employ anti-democraric racrics rvhich "seek pre-emptive control of ideas in order to ensure the internal economic status quo that benefits those in power"5 through the suppressionof 'enernies'of the state. Various groups such as alleged communists ("red-labeling"), minority groups demanding autonomy, human rights activists, union and gtudent leadersand other leftist groups are perceived as threats due to their critical analysis of the prevailing power structure. Thus, their censoring, suppression, disappearance,or even extermination is deemed not only justified but essentialto the maintenance of the status quo. The most infamous example of silencing a dissenting voice in the Philippines is the 1983 assassination of Senator Benigno S. Aquino, Jr. The investigation and subsequenttrial has set a poor precedent with over a hundred witnessestestifying (many intimidated and some even disappeared) tut without any significant convictions.6

'Id. ar29.
ANNUALCouNTRyREI,oRTS, sr.rprd nore 1. ' AuNEsTy INTERNATIoNAL 5 Maria SocorroDiokno, Impunity in Asia,in HUMAN RIGHTS FORUM at 68 (PhilippineHuman Rights InformationCenter (PhilRights)1993). u Daan Bronkhorst, Campaigning Against in WE DIo Nor LEnRNHuMAN RtcHrs lmpunityin the Philippines, Fnov rue BooKs: THg PHtt-tpptNES ANDHUMANRtcHTs rN THEPEzuoD or 1986To 1996 (Contreraset al. eds., PhilippineInformationand Documentation Center in the Netherlands1996).

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2. law asan irutrumentof refression Law'straditionalrolesof peacekeeping, socialharmonizing, resolving conflictsand allocating resources aresubverted in manyregions asgovernments employthe law to advance certain interests and "control moralities."They do this by enactinglegislation that nurturesrepression and impunity. For instance, it is particularly commonin Latin Americaand Asia for governments to enactlaws which (a) legalize otherwise illegalacts,suchaspolicebrutality;(b) grantsoldiers/police immunity from prosecution and (c) give security officers amnesty.Diokno (1993)offersIndia, Thailand, and Sri Lanka asexamples of nations whosegovernments have passed amnestydecrees that distort the meaningand intent of amnesty, which is to correctinjustice. She describes the effectof suchacts: Soldiers and policemen aredury boundto protectthe livesand welfareof the population;they havepledged to upholdthe dignity of everypersonin sociery....By exempting soldiers and policemen from their actsof abuse and violence, govemments conveniently forsake their responsibility to protectthe public welfare...contributing to greater abuse and violenceagainst their own people.i In the Philippines, Presidential Decrees Nos. 1822and 1850(repealed in 1991),which ensured that all milimry personnel weretried in military courtsevenfor crimesunrelatedto their duties, areexamples of lawsbeingusedto promotethe interests of the military ratherthan the public. 3 . Disregard judiciary fvr therule of law: lock of poliAcalwill andlar lack of an independent A lack of political will resultin manygovernments subscribing to law in word but in practice operating outsideof it; subscribing to the rule of privateinrerests over the rule of law. This is particularly the casein the Philippines wherethe govemmenthaspubliclyconfirmedirs commirmenr to democracy, human rights and the rule of law while continuing to abandonthe accompanying responsibilities. Human rightsviolatorsin the military and policeregularly keeptheir jobs and are often evenpromoted; secure in the knowledge they will not be calledon to answer for their actions.s Severe lack of independence of the judiciaryalsoleadsto deliberate for the rule of disregard law. Prevalent in Asia, partsof Africa, and Central and South America,is a judiciarythat yieldsto the interests of the executive and armedforces, resulting in chronic impunity and a justicesystem that rarelyserves thb peoplefirst. 4. Priuileged sntus of military and police:obsnuctionandinaction

Military expenditure is prioritized over socialspending in rnanynarionsof the world, from the U.S. to Pakistan, the latter spending 279 timesmoreon defense than health and educatron combined.e Countrieswith a long historyof warfare or military rule often have formeror presenr military men in powerfulgoverning positions. They alsohavegovernment policiesthat cater primarilyto the interests of the armedforces. Lawyers Committeefor Human Rights,a New York(NGO), explains based non-govemmental organization the significanr role playedby the military and justicein rhe Philippines: policein impeding lUhile variousfactorscontributeto the Philippinegovernment's poor recordin prosecuting humanrightscrimes, none is moreimportantthan the obstructionof
'/ DIOKNO, sapranote 5, at 70. o Id. at 80. ' t d. at t).

9r

justice by military and police. Ironically, it is widely believed within the military that prosecuting soldiersfor human rights violations would tarnish the military institutionally rather than promote discipline and demonstrate respectfor the rule of law. The military leadershiphas fosteredan environment where disincentives for prosecuting fellow officers are great and incentives few.l0 As the military are afforded so much prestige and privileges in many regions of the world, it is nearly impossibleto conduct impartial investigations and trials of military and poiice officers accusedof human rights violations. There is a tendency towards corruption, "to cover-up or justify allegations of wr ong- doing ." l I Leonora C. Angeles (1994) of the University of the Philippines, who headed a thorough study of the obstaclesto the redressof human rights violations in the Philippines, cites the lack of cooperation from military personnet,officers and police in the investigation of human rights violations as one of the biggestproblems faced by victims and investigators today.l2This relucmnce to help investigations is due to the corruption within the military and police force that leads to the protection of the accusedat the expenseof the integrity of the system and the lives of the vicrims. Angeles (T994) discovered that obstruction and inaction manifested itself in several ways, each welldocumented in most of the forty cases she investigated in depth. Often when a member of the military or police is accusedof a human rights violation, he or she will deny the incident, attribute it to other parties (e.g. rebels), or claim self-defense. 'l7itnesses and complainants are often intimidated and threatened, sometimeseven killed. Evidence rs suppressed, the procedure inexplicably delayed, and witnessespaid off or judges/prosecutors influenced. Due to the lack of a fully independent judiciary, pressure from powerful politicians and the business sector often works in favor of peersand colleaguesaccusedof wrongdoing. The accused may be transferredto another assignmentto avoid the casealtogether. Finally, the lack of political will to implement court orders,such as a warrant of arrest for the accused,undermines the integrity of the system.13 I ns titution aJ Structur es Institutional structurescan also contribute to the phenomenon of impunity. In invesrigating prosecuting and hurnan rights cases, corruption and a lack of political will are often compounded by the limited efficiency and capacity of the justice systemand relevant governmenr bodies to process these cases.This is particularly true where the accusedis a member of the military or police force. Diffusion of responsibility, inefficiency, lack of resources, and strucrural limitations bury casesin the rusty machinery of the judicial system. After the fall of Marcos, former president Aquino establishedthe Presidential Committee of Human Rights in 1987, now the Commission of Human Rights (Commission), an autonomous government body charged with investigating human rights complaints. The Commission has no prosecutorial powers, its role being limited to making recommendations. In 1991 the governrnent created the Witness Protection Program (Wpp) in responseto the killing of at least six human rights lawyersbetween 1986 and l99l.t4 The existence of the Cornmission and the WPP have, however, t0LRwvrRSCovMITTEE FoRHututRN Rtcnrs, Irurpunrry. PRospcurroNsoF HuMAN RtcHrs Vtot-ATtoNSrN (1991). THEPHTTPPINES " Id. at 5. 12 ANGELES, supranore 2. ' r I d. at 13. raBRoNKHoRsr, silpranore 6, at 232.

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led to few convictions of human rights violators in the Philippines and have failed to gain the confidence of the public . In 1994 the Commission mentioned PNP (Philippine National Police) involvement in 43o/o of its cases.r5 The recordsalso show that between 1987 and 1990, the which included Commission received 7 ,944 complaints. It found enough evidence for 1,500 cases, 603 casesof murder and 19 disappearances.However, only 994 of these caseswere filed as and one dismissal complaints, resulting to merely six convictions, one demotion, three suspensions, l6 from military service. The LawyersCommittee on Human Rights (1991) has said that the Commission counts virtually all criminal activity as human rights violations, some of its offices spending considerable time dealing with private land disputesand marital problems. AI is concerned that "the quasijudicial proceduresused by the Commission have tended to make witnessesand complainants more vulnerable to retribution without offering them any of the advantagesof real iudicial proceeding."rT The effectiveness of both the Commission and the courts in investigating and prosecuting human violations is further limited by bottlenecks in the courts, a lack of resourcesand facilities and rights frequent postponements. This problem is "cornpounded by an institutional structure that diffuses responsibility for investigating human rights violations among a confusing array of agencies."rn Inefficiency and diffusion of responsibility are not limited to the Philippines or Southeast Asia, but is an unfortunate characteristic of justice systemsin many countries plagued by chronic impunity. The negative effectsof an absenceof effective security and protection for victims, complainants, and witnessesin human rights casescannot be overstated. Without protection, victims are often reluctant to file complaints.le If complaints are filed, victims and witnessesare afraid to testifii for fear of reprisal from the alleged perpetratorsof the violations. Most docurnented casesin Angeles's (1994) study sufferedfrom a lack of witnesses,and the majority of the respondents (prosecutors, judges,non-governmental organization [NGO] workers and victims) interviewed by the Ateneo Human Rights Center (2001) cited fear of reprisal as the principle reasonfor reluctance to testify or continue with a case. Respondentsalso describedthe Philippine WPP as ineffective (protecting witnessesonly during the trial and not after), inaccessibleand underfunded.20 The prevailing political culture and institutional structuresensure that impunity remains institutionalized in the Philippines and in Asian countries like India, Sri Lanka, Malaysia and Cambodia. The responsibility for ensuring that all citizens realize their human rights lies with the state. In many countries, however, the prevailing tendency is to treat violations of human rights as private disputes,favoring resolution through settlement, intimidation and negotiation. In the Philippines "throughout each stageof the criminal process,officials place overwhehning pesponsibilities on the victims themselves. Investigative officers stressthe responsibility of complainants to produce witnessesand other evidence."2r This attitude undermines the principle that human rights violations are violations against society and obscuresthe fact that the failure of the justice system in preventing or prosecuting these crimes is a result of deeply entrenched relationships of power and differential access to knowledge.

" Id. t bI d. ar 7 3 3 . ,, ld. rt LAwvERS FoRHuvaN RtcHrs, sapra nore 10,at 8. CoNlrvltrrEs p ANGELES, snpro nore 2, at 65. z0 Ateneo Human RightsCenter,The Socialand PoliticalAspects ,,f Imprrnity:A Legaland JudicialPerspective . FieldStudy(2001) (unpLrblishecl Schools). research, Ateneo De lr{anilaUnn'ersityProfessional 2tLAwYERS Covvtrree Fon HuNa.e.N Rtcurs, sLtDr4 n()relC, at E.

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Socio-EconomicStructures As discussed in the previous section, factors like an absenceof an independent judiciary, lack of polrtical will, the prominence of the military and police, and redundant or diffusion of responsibiiitieswithin the justice systemconribute to a political and institutional environment rvhere impunity thrives. So far, this only accounts for structuresand processes that perpetuate impunity at the level of the political and judicial realms. What about wider social trends, like povern', education, corruption and inequality? What role do they play in the perpetuation of rmpunity? Differential access to power plays a key role in the spreadof impunity. The most marginalizedand powerlessin a society live the most precari,ous existence. These groups, like erhnic/religious rninorities, women, children, migrants, indigenous peoplesand the poor, typically have the least accessto decision-making roles, education, security, justice, services,choices, --cportunities and even often basic needs. Both real and perceived differences in accessto various of power contribute to the persistenceof impunity. 'rlnds Most writers and proponentsof human rights (AI, 2000; Angeles,1994; Asia lfatch,7994; .{teneo 2001; Bronkhorst 1996; Diokno 1993; Human Rights Watch 1999; LCHR 1991) identify :.lrverty and inequality as both causes and effectsof impunity. For the victims of human rights lack of power and money producesgreat obstaclesto seekingjustice. First, the costs of '.-:olations, :raveling to a trial and taking time away from work are rnore than many families of victims can bear. Second, the accusedor those acting in his or her interest often attempr to pay wirnessesoff or settle out of court rather than go to trial. Third, complainants and witnessesand their families are often threatened with physical harm or death by the perpetrator of the violation should they pursue their case. When a powerful individual is accused,in India for instance, witnessessometimes disappearor are found dead before having the opportunity to testify.z2 Intimidation and pressurecoming from the accusedis not only felt by the victims and witnesses, but also often by the law enforcersinvestigating the caseand the lawyers and judges tlying the case.z3 Lawyers and iudgescan be susceptibleto pressures from the accusedto dismissor delay an investigation or trial, particularly when the accusedwields rnoney or holds positions that exact honor or loyalty. This is especiallyprevalent in cultures in Asia where these notions strongly influence social interaction.24 Inequalities in economic, social and political power all serve to creare an environment where \:iolators enjoy freedom from penalty and victims find neither truth nor justice, nor receive any form of compensation for their suffering. Although differencesin these forms of power can be fought on ser-eral levels, they cannot begin to be overcome by those rnost marginalized and victirnized without broadening access to education. According to Philippines social scientist Angeles, most of the cases she investigated involved poor and illiterate farmerswho, when violated, "instinctively clamor for -iusticebut lack any real knowledge of their rights."z5 She arguesrhar "human rights as an issueis hardly felt in the remote and peripheral areasof our country."26

AN UNNarunAL FATE ANDtMpuNtrytN THEINDTAN - DrseppEaRaNCES Srnrrsor JaMMU ANDKRsHvrnRNo PUNJAB ASA (Asa 70l4zl93,Dec.t99l). rr AtENeo HuMAN RIcHTS CENTER. suDranote 20. :4 Id. rt ANGELES, srpr4nore 2, at 69. 'u Id.

:: AMNESTY INTERNATIONAL,

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lTithout any knowledge of their rights or the existing mechanisms/organizations designed to help them, groupsvulnerable to human rights violations have little chance to defend themselves. Many victims develop a fatalistic attitude and resign themselves to the fact that they will never see justice.2TDisillusioned with a system that they believe works in favor of the rich and powerful and against them, they turn to unofficial networks of assistance- their community, the church, and NGOs. In some regions, such as parts of Latin America and the Southeast Asian countries of Thailand and the Philippines, networks of community and religious workers and NGOs have been documenting human rights cases for decades. In the caseof Latin America, significant stepshave been made in some casestowards bringing perpetratorsto justice. In other regions, such as in South Africa and Indonesia, recent political changeshave helped open up spacesfor people to begin organizing and educating for human rights. However, in nations such as Myanmar and China, such activities for now continue to be suppressedand forced underground. In the Philippines a pervasivedistrust of the judicial system and the Commission of Human Rights among victims, as well as among NGOs working in human rights, is a major obstacle to the redress of violations. According to Angeles (1994), people distrust the systembasedon their experienceof judicial delay or lack of due process. It is also not insignificant that in the Philippines there is an absenceof caseswhere the government has demqnstrated the political will to persecute police and military men. A common sentiment among victims is: "if the system couldn't work for Cory [Aquino] then how could it work for someone like me?"28The Philippines has one of the most elaborate and extensive human rights monitoring systems in the world. It is still the case, however, that "it is difficult to point to even a single caseof a member of the military, paramilitary, or police who has had a serious trial for participating in gross human rights violations in the Philippines."2e Although it has been shown that the truth can be exposed,there is a'long way to go in respect to achieving justice. Until power structures in society are examined and transformed and the societal attitude towards human rights is changed, impunity will not be eliminated. Public education and awarenessof human rights are crucial tools in the fight against impunity. It is important to focus this education at the grassrootslevel in order to empower peopie towards promoting their own rights and fighting injustices. However, it is also essentialto extend human rights education to those in power economically, politically and socially - in order to reach both those most likely to become abusersas well as those in a position to make large scale positive changes.

Cultural Patterns Social,political and economic structures in societycannotbe divorcedfrom the uniqueset of cultural and religiousbeliefsand normsof a people,since theserealmsare in fact interdependent. With respect to how culturalpatterns affectperceptions of justiceand,specifically, the perpetuation of impunity,little hasbeenwritten. There hasbeensomework done in relation to the waysreligion is connected to the existence aswell asthe fight against impunity in Latin America.3o In the Philippines, the Ateneo Human RightsCenterhasconducted field interviews with prosecutors, judges, victims of human rightsviolations,members of the Commission aswell ashuman rightsNGO in an attemptto pinpoint the root causes workers of impunity. In both the Philippinesand in Latin

27 AtENEo HuMAN RIGHTS CENTER, supranote 20. z8Id. 2'BRONKHoRST, supra nore 6, at228. . Stx Ceses StuorEs rRov LnrrN At.lrRtce (CharlesHarper ed., World 'o lMpuNrry' AN ErHtcnl PERspEcttvE Publications Council of Churches 1996).

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Arnerica certain cultural patterns exist that discouragevictims frorn seeking justice and encourage some to aid the perpetratorsof human rights violations. Both Latin Arnerica and the Philippines are regions dorninated by the Catholic faith, and many of the population in these regions live relatively economically impoverished lives with little access to education. Some victims of human rights violations approachthe possibilityof justice somewhat passivelyor fatalistically, resigning themselvesro the belief that their fate is "in God's hands."3l This belief discourages some from pursuing their casesor seeking help. On the other hand, both in the Philippines and in Latin America it is somerirnesthe Church itself which has spearheaded human rights education campaigns.l2 A secondexampleof cultural patternsthat help perperuateimpunity in the Philippines are the intertwined concepts of "utang na loob" and "hiya."i3 Utang na loob can be understood as a relationship of debt gratitude. When an individual acceprsa favor, be it of money or assisrance, there is an accompanying understanding that in accepting help, one placeshimself or herself in a posirion of debt to the person extending the favor. These favors can be called on to be repaid ar any time and in many forms. For example, a lawyer prosecuting a murder case,where the accusedis an old classmatewho has done rnany favors for the prosecutor'sfamily, rnay feel obligated to help ensure a favorable outcome for the accused. Feelingsof "hiya" (shame) or "pakikisama" (camaraderie) rnay also inhibit a military officer from acting as a witness in a murder trial of one of his peers. These examplesdemonstrate how cultural beliefs and patterns can create conflicts within individuals and communities that work to foster a climate of impunity and corruption. In developing strategiesto combat impunity, deeply entrenched cultural and social norms that help perpetuare it must be acknowledgedand addressed.

Conclusion Impunity is far from an exclusively legal and judicial problern. Its persistenceis rooted in the social, economic, political and cultural structureson which societiesare based. These srrucruresare neither static nor homogeneous- they are continuously changed, reinterpreted and challenged. A thorough understanding of the interrelated and pervasivefacrors that contribute to impunity is the first crucial step towards eliminating it. This understanding need not be only an academic one. On the contrary, it is essentialthat everyone - membersof the military, victims of human rights violations, human rights workers and the general public - be sensitizedto the processes underlying the persistenceof impunity and the ways in which their behavior and atritudes may contribute to lr. The development of a human rights consciousness, or a "rights revolution," in the last halfcentury has opened up spaces where violations that were once considered "necessaryevils" or simply impossibleto combat are now recorded, monitored, and called into question. The dernand for tru1h, acknowledgment, justice and compensation for breachesof human rights can be heard from every corner of the world. As Bronkhorst ( 1996) wnres:

After 40 years of communistrule,states includingEastGermany,Romaniathe CzechRepublicand Bulgaria haveopened up the filesof their formersecurityforces and havebroughtdozens of thosewho werein the positions of political

HuvnN RtcHrsCENTER, sup,ra note20. 'r ATENEO t' IMPUNITY, AN Erntcal PrRspecrtve StxCnsesSruotesrRov LnrtN At'.reRt cA,suDr& note30. )r ArENgoHuMAN RtcHTS CENTER, suDra note20. 96

responsibility to trial. In Latin America, half a dozen counrries have establishedfarreaching investigative "truth" commissions. Nearly ten yearsafter the fact, the Bolivian judiciary has ried dozensof highly placed military and politicians for their part in human rights violations. In Africa, countries such as Ethiopia, Eritrea, South Africa and Rwanda have instigated or are preparing for trials of large scale. Japan rs only starting now to account for many of the crimes against humanity it committed 50 yearsago, among them the forced prostitution of the "comfort women." In lTestern Europe, the justice meted out or not meted out to war criminals is still a focus of public debate and these criminals are still hunted down in places as far off as Canada or Paraguay.34 In the Philippines, trials such as these may not be realizedin the near future. However, the extensive human rights NGO community has been working painstakingly to investigate, record and rnonitor the details of human rights violations, which has led to the development of a solid basefor advocacy and possibleprosecutionsin the future. hnpunity will continue to reign if the prevailing relations of power and inequality remain. Before social and power relations can be transformed, there has to be a change in societal attitudes about human rights. Education must, therefore, continue to be a priority. In the Philippines, as in many other regions of the world, the foundation of human rights knowledge and advocacy has been established. The millennium marks the mid-point of the United Nations Decade for Human Rights Education (1995-2004). Hopefully, in the future this foundation will be srengthened and wili be seen as supporting more human rights initiatives at the local, national and international levels. The more people become aware of their rights and obligations, the more difficult it will be for those righrc to be violated without consequences for the perpetrators.

supra mrte 6, at 238. 'aBRoNKHoRST,

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POSI SCnTPT ON INvOTUNTARYDIsapprRnANCES: THE CASEor SeIveooR ..BUBBY,, DAcER exo Eocen BBNTRw P. Gcrln Calina EdgarBennin EdgarBentainor Egayashis loved onesand closefriendswould call him wasthe son of Universityof the Philippines PoliceChief Eduardo Bentainand a fatherof two children,Noe1,his five-year-oldson who is in kindergartenand Kay, his daughterwho is only two yearsold. He is known to the public asthe person who released the video clip showingthen Vice President Joseph Estrada and his friend Charlie "Atong" Ang playinghigh-stakes baccarat 15,1996at on September the HeritageHotel Casino,wherehe usedto work asa video camera operatorof the casino's closedcircuit television system. The footage of the gamblingactivitiesof then Vice President Estrada wasexposed to the publictwo monthsbeforethe May 1998presidential elections by Manuel Morato, the former chairperson of the PhilippineCharity Sweepstakes Office and one of the candidates to the presidentialpost. It wasalsoManuel Morato who identified Edgarasthe sourceof a video foorage. On January 16, 1999,Edgarwasabducted by unknownpersons ashe stepped out of the CasinoFilipino of the Grand Boulevard Hotel alongRoxasBoulevard.He waswith his girlfriend, CecilleSubido,his brotherEdwin and Edwin'sVietnamese wife Hung. His family believes that his disappearance wasconnected to the controversial videotape he wassupposed to have leaked. More than two years had passed sincehis abduction, the case remains a mystery.Both the (NBI) and the PhilippineNational Police-Criminalinvestigation National Bureau of Investigation and DetectionGroup haveno leads asto who wasresponsible for his disappearance. This eventually promptedthe two agencies of the govemmentto drop the case.The family wasleft with the scarof injusticeand the perpetrators, whoeverthey maybe, on the other hand,wereneverbroughtto the barsofjustice.

"Bubby"Dacer Salvadar "Bubby"Dacerwasreputedto be the bestin the public relations Salvador His forte business. wasin the field of the so-called "CrisisPR [PublicRelations]."Arnong thosewho soughthis services werepoliticianswho had problems with controversies, businessmen battling on corporate arena,and contractors competing for a big infrastructure or service contract. He had all the right connections and wasknown for deliveringresults.Because of these, he could dictatea fabulous price which his clientsseldom found unreasonable. He seemed to be on top of the world. That is, until he was abducted. The abductionoccurred at 11:00in the morningon November2!,2000 at the intersection of ZobelRoxas& SergioOsmefla streets.Newspapers reportedthat witnesses sawat least4 armed men grabDacer. One of the men wassaidto be wearinga policeuniform undera white shirt. Two of threevehiclesinvolvedin the abductionwereseensandwiching Dacer's Revo,giving his driver, Emmanuel Corbito no choicebut to stop. Two of the armedabductors ordered Corbito to get down and transfer to anothervehicle. The Revoand threeother vehicles wereseenmoving south,in the directionof Cavite. Later on, forensicexperts from the Universityof the Philippines confirmedthat bones and teeth retrieved from an unmarked gravein Indangbelonged to Dacerand Corbito.

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Many speculationshave been conjured up regarding the abduction of Dacer. One theory alludes responsibility to as high up as the former President Estrada. It has been confirmed that the President met with Dacer two days before his disappearance. The PR man was believed to have discreetly worked for Estradain the 1998 Presidential elections. However, sorne sourcessay that the relationship between the former President and Dacer turned sour presumably that Dacer becauseBubby became the object of intrigue among Estrada'sfriends. This theory suggests was killed for helping Ramos in an Erap-hate and resign campaign. Malacaflang accusedDacer of helping destabilizethe government becauseof his close ties with Ramos. Those who foster this theory also point to the fact that one of the abductorswas seen in a police uniform, a fact which the former PNP Chiei now a senator, vehemently opposed. Of course, the Estradaadministration has its own theory. It suggested that Dacer might have angered the Ramos camp becausehe shifted loyalties and agreedto help counter the negative publicity Estradawas getting after meeting with the forrner president. Another related theory does not go as high up. This alludes to former Police Chief Panfilo Lacson. Dacer refusedto accept Lacson as a client when the latter was implicated in the 1995 Kuratong Baleleng case.One of those pointing fingers belongs to former governor "Chavit" Singson believing that only the PNP (Philippine National Police) and the PAOCTF (Presidential AntiOrganized Crime Task Force) have the capability to do that.t To date, none of the theories have been conclusively confirmed. The mastermind of this crime is stiil unknown. However, the people who were ordered to abduct and kill Dacer have come forward. Two officers of the disbandedPAOCTF stated that their superiorsmisled them into believing that the abduction and killing of Dacer and Corbito was a lawful mission.2 Superintendent Glen Dumlao and Chief Inspector Vicenter Arnado are the superiorsthey were referring to. Eleven ( 11) suspects have surrenderedto police authorities. Four of them were members of the defunct

PAOCTF.
The PNP investigatorshave a theory of their own. They believe that Dacer had vital information and documents on the alleged involvement of deposedPresident Estrada in the Best World Resources(BW) scandal. Dacer was a PR consultant of alleged Estradacrony and BW president Dante Tan. BW was in the middle of the stock market manipulation controversy. Police sourcessaid that Dacer helped draw attention away from the scandal. However, when the irnpeachment trial started, plans to eliminate Dacer were undertaken. While there is alre4dy ample evidence as to the immediate perpetratorsof the crirne, Justice SecretaryHernando B. Perezstated that he would dig deeper into the caseto determine the mastermindsbecausethose who turned themselvesin could not have acted without orders from above.

Factors contributing to the Perpetuation of hnpunity in Involuntary Disappearances The illustrative casesof Edgar Bentain and Bubby Dacer are only two of the latest incidents among the many involuntary disappearances and summary executions which have been prevalent during the Marcos dictatorship, and which have persistedduring the Aquino, Ramos, Estradaand

i ChristinaMendez, - Chaqtit, PHtl-tpptNr STRR, Nov. JO, of DacerAbduction Only PNP, Lacson's Men Capable 2001, at 5. 2ChristinaMendez, Operation, PnlltpptNe SrAR, Apr. 20, 2001,at 1. er ai., We Thougfu It wasaLegtimate

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Arroyo governments. Focusingon these two fairly recent cases,this article identifies some factors preventing their early and effective resolution. Lack of prompt and immediate action or inuestigation by the authorities Essentialin an effective prosecution of a particular caseis the prompt and immediate action or investigation of the agency of the government charged in the investigation of cases. It is likewise essentialthat the investigation not only be done immediately or with reasonablepromptness but the samemust also be conducted under the cloak of impartiality and independence. It is public knowledge that some authorities, especiallywhen one of their own is accusedof a crime, have the tendency to close ranks and protect their colleagues. As a result, they may refuseto investigate, delay the same or conduct a sham investigation. In the caseof Bentain, the investigation did not start until Manuel Morato called attention to the video footage which identified Edgar Bentain as the source thereof; and in the caseof Dacer, even if former president Ramos called and reported to Estradathat the publicist was missing, it took three daysfor the government to act upon the case. With so many suspects, the PNP in the Dacer case,has so far identified 22 people,14 of whom were members of the disbandedPAOCTF under former chief (now Senator) Panfilo Lacson. The other suspects are civilian agents retained by the agency. Lack of material witnesses It is a sad reality that most witnesseswho can shed light to what really happened choose to remain silent and apathetic, fearing for their own lives. For those who opt to testify, they can no longer expect a normal life. Even those who are already under the Witness Protection Program of the DOJ sdll fear that the perpetratorswill get back at them. Moreover, the program itself protects only witnesseswithin a certain period, that is, only during the trial. Thereafter, the witnessesare on their own, Another reason why there is lack of material witnessesis the fact that the investigatorc rely so much on the victims in the gathering of evidence and identifying witnesses. There is also the just to make sure that their financial aspect. Victims are the ones who shoulder the expenses witnessesappear in court at the day they are askedto testify. In the caseof Bubby Dacer, it is fortunate that his family can afford such an undertaking. Lack of political will on the part of the govemment to end"impunity The disappearances of Dacer, Corbito and Bentain are just few of the reported casesthat took place under former President Estrada. Certainly there are numerous caseswhich remain unresolved,with perpetratorsenjoying the mantle of protection whlch the system is giving them. This scenario is no longer new to Philippine society. In fact, this problem continues to plague every administration. \forse than just lack of political will is the accusation of President Gloria Arroyo that the Estradaadministration attempted to "stonewall" and not proceed with the investigation.3

r ChristianV. Esguerra, ErapMenBlockedDacer PHtl-tpptNE Feb.5,2001, at A2 Probe", Dntly INeutREn,

10r

Fi nal W ord Investigations and complaints in pursuit of perpetratorsof involuntary disappearances cases must be zealouslyundertaken by every administration, regardless of whether or not said disappearances occurred during its incumbency. The longer it takes for the government to adclress this particular human rights violation, the more likely thar perpetratorsof this atrocity would be more emboldened to continue with this practice. In the meantime, lessand lesswitnessesmay come forward to offer their testimonies and the people in the processwill be desensitizeto rhe phenomenon of involuntary disappearances and summary executions, learning to accept them as "facts of life." \7hen this happens, impunity is guaranteednot only to be institutionalized in the criminal jusrice systembut also to be deeply ingrained in the psyche of Philippine society. It is indeed a frightening thought that our legacy to future generationsis a legacy of apathy, unprincipled peace and a .rllruie of imounitv.

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MnncosHuueN RrcHrsVtctttvts: FrcnrrNoFonTHrn RrcHr ro Rucovsnv

SmahLouY. Aniola of theamount battlefought unongMarcoshumanngfusvictims pertairun the release The mostcontrouersioJ (hereinofter whichwas and Setdement o/ US$I50 Million aspart of the Agreement of Compromise , Settlement) to bedrawnfrom the byJudge Realin theUS DistrictCourt in Hawaii. The US$I 50 Million is enuisaged approorcd in Scriss Banks arcounts by the PhilippircNational Bank (PNB) from ntmiousMarcos arnoturthellin escrow sonFerdinandR. cmdher estimated to beoverUS $550 MiLlion.In the Settlementr lmeld.aRomualdezMarcos deciAed in that in variouscases Marcos,Jr., presumnbly representatives of theEswteof FerdirundE. Mmcos,agreed the the"humonrighruictims"woul.dbepaidanaggregateclrnountolUS$l50Million,inlieuof thelJnitedStates, thearnowntto bepaid originalawardof the US District Cowt in Hawaii for oclerUS$I .9 Billion. In this Settlement, juAgment. whilethe thisSettlement hadbeen reduced to 7 .5o/o of theonginal Thegroupof Claimants l07l suppcnts the SanohanngMgaDetaineessaDetensyonatparasaAmnestiya(SELDA) andTaskForceDewineesof (TFDP) oppose thesarne Philippines for beingimmoral. s heldin thattheSwiss deposit After muchdpbate, on September 19, 2000 declared , theSandiganbaym escrow by thePNB nant unountingto ouer US$627 Billion are ill-gottenweahhand me forfeitedin fauor of the Snte. . deposirs maAeby Congress Thus, no part of theSnr.'iss cango to the claimants without appropriations Background The much debated dating from 1995up to Settlementis a productof a long process of negotiations when RobertSwift, the present.However,talksof possibly wasactuallyprecipitated arrivingat a settlement for the claimants in Hawaii,together counsel with RodrigoDomingo,his local co-counsel, and Representative LorettaAnn Rosales, honorarypresident of Claimants1081,talkedwith then President Estrada negotiate on September 9, 1998. It wasagreed that the government would help the claimants Joseph promised with the Marcoses. President Estrada of 1998.t to havethe agreement beforeChristmas The lawyers from both partiesand one from the Presidential Commission on Good Government (PCGG) met in a settlement negotiationin late September without much success. In November1998,the government interceded. By December 18,a draft documentwasfinalizedand wasreadyfor signing.Z ImeldaMarcosinitially decided that shedid not want to sign the documentand it took one month to convinceher to agree.Thereafter, This the parties reproduced the draft settlement for separate signatures. joint wasdonein consideration of the impracticability signing.l of bringingtogetherthe principalsfor got hold of the documentsigned When the claimants they founclout that the latter by the Marcoses, changed or inserted irrelevantmattersinto saiddocumentwithout, however,reneging on the substantive termsof the settlement.a

The SettlementDebates As earliermentioned,the groupof Claimants1081stands by the Settlementwhile SELDA opposes for beingimmoral.Similarly,the Task ForceDetainees the same of the Philippines(TFDP), anotherfaction

1PAIIRA BriefingPaperon the dass Notice of Proposed Action MarcosHuman RightsLitigation. Setdement of Class 2Id. -.:

103

of Claimants 1081 actively campaignsfor the rejection of what it considersan obnoxious deal with the Marcoses. On the one hand, what makes the Settlement "blatantly irnmoral" and, therefore, unacceptable to othersare the following provisions:

1. Paragraph 5,2 . provides,among others, that "the late Ferdinand Marcos was never charged with
human rights violations civilly or criminally in the Philippines. It also provides thar his wife Imelda R. Marcos, and children, Imee Marcos-Manotoc, Ferdinand "Bongbong" Marcos, Jr. and Irene Marcos-Araneta, have never been charged civilly or criminally with human rights violations anywhere in the world, including the Philippines (with exception to rhe irajano case of Imee Marcos'Manotoc). All of them, including the "immediate members of their families by consanguinity and affinity within the fourth civil clegree have been releasedfully frorn such liability."5 Paragraph 6.2 ' provides that whatever the Marcosesand their lawyerssign or agree ro will only be recommendatory and does not oblige the Marcosesto comply with the same. However, the same paragraphprovides that whatever the Class Counsels sign or agree to are for and in behalf of the members of the classsuit.6 Paragraph 7.3 , statesthat all parties to the agreement (meaning Swift on behalf of the 9,539 victims, the Estradagovernment and the Marcoses)have agreedto "exercise their best efforts and to take all reasonablestepsnecessary to effectuate the settlement." Paragraph 7.6 . statesthat the settlement agreement"may be executed in one or more counterparts, each of which shall be deemed an original but all of which togerher shall constrtute one and the same instrument."T

7.

J.

Oppositors to the Settlement argue that Paragra ph 5 .2, if accepted, is like a slap on the clairnants. Although the claimants themselveshave no authority to absolve the Marcosesfrom any human rights violations, it would be quite ironic if it is through them that the Marcosescould find their absoluti,cn. To quote the Task Force Detainee's Pressstatement dated March 18. 1999: "lmelda Marcos should never be given a chance to have the "absolution" she is scheming for to erasethe blood spilled during the late dictator,s reign of terror and greed. What she ulr.,d the rest of the Marcos Btate and representatives deserveis the perpetual nightmare from the dark imagesof their draconian rule. They should nor be allowed ro resr noJask in the luxury of their stolen money until they atone for their sins and bow to the final judgment of the Hawaii FederalCourt, and settle their crimes under the terms to be set by the victims and survivors of the dictatorial regime." Paragraph6.2 of the Settlement is also being branded a farce. Accordingly, it is not a serrlement between equals,but an agreementof subservience; and that the Marcosesshould never be given preferential treatment in the said Settlement. If the claimants are to be rnade to comply with the final agreeinenr, if in casethere is one, then so should the Marcoses. According to SELDA's lawyer, Atty. Romeo Capulong, Paragraphs7.3 and 7.6 both give blanket authority for all three signatoriesto act singly or collectively on behalf of their respective principals to irnplement the agreement.Such authority includes executing other and further ugi."*..rir, the contents of whlch may never be disclosedto the victims and the people, or discussed in public and scrutinized by them. 5.See Edwin et3l., T.hpBamle A_gainst Impunity: MarcosHumanRighrsVictims (2oOo) (unpublished rerm'paper, !a9ayo_3q, Ateneo Law School)(on file with author) [hereinafterCacayorin]. 6TaskForceDetainees of the Philippines Press Sratement, Mar. L8, L999. 7 Cacayoin,supranote 5.

104

He views this as a catch and escapeclausecontrived to sneak in more unacceptable provisions as part of the settlement agreement,such as the dropping of all ill-gotten wealth chargesagainst the Marcosesand their cronies, the granting of immunity to the Marcosesfrom all future human rights suits, including tax evasion and a sharing ratio in the division of such wealth satisfactoryto the Marcoses.8 cases, Furthermore, Capulong arguesthat through this open-ended authority, the signatories to the agreementcan do the following: First, make it difficult for some victims, such as those suspectedcommunists or Marxists to collect their sharesin the compensation packageby subjecting them to a humiliating processin the so-calledTruth Commission. Second, make it easyfor the lawyers, including those of the Marcosesto collect huge attorney's feesand reimbursement expenses. Third, give the Marcosesand the then Estrada government the power to control and divert part of the US$ 150 Million for purposesother than payments of the claims of the victims, such as channeling the unused balance for World War II veterans to be managed by the Marcos Foundation. Finally, it could allow the Marcosesand their cronies to invoke the agreement and its so.called counterparts or additional agreementsfor any number of self-servingpurposesin pending court
cases.tt'

On the other hand, the views of Claimants 1081 representativeMs. Hilda Narciso present another perspective.She arguesthat many of the claimants are already dying as paupers.The little that they will be able to get from the Settlement will go a long way. According to her, while it is true that these victims did not suffer death or injury during the Marcos yearsjust to make money, it will, nevertheless,be insensitive to their present plight not to exhaust all means for them to recover even a small amount. Moreover, the mere fact that the Marcosesare willing to settle is already a victory on the part of the claimants since it is already an acceptanceby the Marcosesthat they are human rights violators. Accordingly, the Settlement is a moral victory in itself.ro Although Claimants 1081 sharesthe view of SELDA and TFDP regarding the implications of paragraph5.2 of the Settlement, it considersthe insertions to have no bearing on the substanceof the particularly criminal cases,that may be brought against the agreement,on the case,nor on other cases, Marcoses.ll the Furthermore, the membersof Claimants 1081 are of the opinion that the settlement only reieases Marcos estate,which is the defendant in the classsuit, from the claim of civil damages. The criminal liability of martial rule instigators and their minions, including those of the Marcoses,remains.l2

Republicv. Ferdinand Marcos,et al.r3 Civil Case No. 0141

the 10,1999,pendingforfeitureproceedings accounts, On February of the US$550Million Swiss Presidential Commission on Good Government(PCGG) and the Marcoses signedthe Undertakingor (Republic),throughthe PCGG filed a motion seeking the Settlement.The Republicof the Philippines approval of the Sandiganbayan to allow the release of US$i50 Mlllion out of the US$550Million held in escrow by the PhilippineNational Bank (PNB). Under saidSettlernent, the amountwould be usedas
8ld eld toInterviewof Hilda Narciso (lt4ar. I 5, 2001). tt HRClaimantsWelcomes Press Feb.27,1999,at1. SenlementAgreement, Conference,
tzld

r3Republic v. PCGG, Civil Case No. 0185{sandiganbayan. v. Marcos,Gvil Case No. 0141& Chavez fhereinafter Jul. 27, L999) Sept.19,2000)[hereinafter No. 0141(Sandiganbayan. Resoludonl; Republicv. Marcos,Civil Case Sandiganbayan Decisionl. Sandiganbayan

I i.j

paymentto the human rightsvictims in lieu of the US$1.9Billion originallyawarded by the U.S. District Court in Hawaii.ra In effect,the Republicsoughtto excludethe sum of US$150Million from the US$550,which is the advanced by the Republicto in Civil CaseNo. 0141. The reasons subjectmatterof the forfeitureproceedings justifi' the release are, to quote: in behalfof the Republicout of sympathyfor the plight of 1. The UNDERTAKING wasexecured the human rightsvictims; Federal Court'sdecision, aswell Z. The UNDERTAKING is in compliance with the Swiss Supreme aswith the ForeignPolicydirection, of the Republic,which the ExecutiveDepartmentthrough the Presidenthas the authority to undertake; 3. Without the resolutionof the human rights victims' problems, the Philippineswill be exposing itselfto claimsfrom human rightsvictims; by still in litigation, it is still not covered 4. Sincethe US$150Million is to be takenfrom the sums from assets No. 131which requires that the receipts RA 6657 [Sec.63(b)] nor by Proclamation recovered and from sales of ill-gottenwealth recovered throughthe PCGG shallbe one of the rationale for this is, accordingto the sources of funding for the Agrarian Reform Fund. The PCGG, that the fundsin litigation arenot yet recovered "ill-gotten wealth" and are,thus,not yer covered by law.15 in dismissing The Sandiganbayan, the motion, refutedthe abovecontentionsof the PCGG. The Republic's allusionto its sympathy to the victims waslikewiseunheeded.The court took notice that while on the one hand, the plaintiffwasexpressing sympathy to the victims,it is limiting the victims' judgment the claim to 7.5o/o rendered of the by the Hawaii Court on the other. Hence,if approved, (up Undertaking will release the Marcoses to the fourth civil degreeof consanguinityor affinity) from over 90o/o of their total obligations.16 Furthermore, the PCCG, in this light, did nor deny that not all of the US$150Million will go to the victims. SELDA, asa:rnicus curiae,adducedthat the lawyersare making the following claimsfor their fees: Robert Swift RodrigoC. Domingo,et al. Belli & Mclean Brown.Fabbro& Scarlet PaulHoffrnan,Ellen Lutz & Ralph Steinhardt

$ 34,585,000

$ 44s,ooo

$ 3,459,500 $ 2,000,000 $ 542,ooo'7

As can be seen, the feesof the lawyersalone amount to more than US$40 Million or more than onefourth ( U4) of what the Republic seeksto allocate for the benefit of the human rights victims. Other expensesare yet to be deducted-for notices served to all the claimants as well as fees of the administrators and their expensesin the evaluation, to determine who among the claimants are entitled to what amount. In sum, the claimants have to content themselvesto what would be left of the US$110 Million.18 According to the ponenciaof PresidingJustice Garchitorena, there is also nothing in the decision of the SwissFederalSupreme Court that implies any link between the Swissaccounts and the amount awarded
la SaeOliver S. Faustino, et al., Marcos Human Rights Victims and The Undenaking/Sedement paper, Ateneo Law School) (on file with author) fhereinafter Faustino]. 1 5 Sandiganbayan Resolution. te Faustino, supranote L2. 7 Resolution. ' Sandiganbayan \8 Id

(2001) (unpublished term

106

by the Hawaii Court. The graft court also lamented that the dispositive portion of the Swissdecision did not hold Swissaccounts liable for the compensation of the human rights victirns, to whom the Hawaii Court made an award. Accordingly, the Sandiganbayanconcluded that in the context of existing procedural rules, the remedy for the human rights victims is to initiate proceedingsin the Philippine courts to enforce their claim.le The PCGG's fear of exposing itself to human rights claim was also dismissedby the Sandiganbayan. The court held that the PCGG failed to show any procedural or substantive law to support its apprehension. \Thether or not the victims may enforce their claim against the governrnent remains at best, doubful, if not a total legal impossibility. Under existing laws, if the amount under forfeiture proceedingsis declared iii-gotten, it would be for the exclusive use of funding the Agrarian Reforrn Program. Even without this statutory provision, the said amount cannot be appropriated without an enabling Appropriations Law passedby Congress. This position by the court consequently negated the fourth contention of the rnover-Republic that the US$550 Million is not under the coverageof any statutory limitation.zo are assets The Sandiganbayanin striking down the contention of the PCGG that the sequestered the law stated: outside "lndeed, the view of the PCGG, this sum is part of a greater amount alleged to be of illegal provenance.' The PCGG is, therefore, bound by its Charter to keep this money under the control of the Court and to work towards its eventual delivery under RA 1379. lt has no authority to give up the fight over these funds or any portion thereof for any reasonsexcept for a total compromise agreement in this case. It is illegal for the PCGG to yield the US$150 Million of this money to the Hawaii Court in order to pay for'a judgment debt against the Marcosesthemselves,who are the very defendants in this forfeiture case. Furthermore, it is disposing of what could be money of the Republic; yet it is disposingof this sum in a manner contrary to what the law provides with respectto recovered ill-gotten wealth, namely, for the funding of the Comprehensive Agrarian Reform Prograrn. By asking the Court to affirm its own UNDERTAKING, the PCGG is making sure that the money never becomes"recovered ill-gotten wealth" and that it never becomesproperty o[ the Republic. k is "short circuiring" RA 665i. It is making sure that existing law never operatesover the US$150 Million. The PCGG is making sure that the government never gets the US$ 150 Million, and that it is never disposedof by any law that may now or hereafter be enacted by the Legislature. In ordinary language,the PCGG is pre-empting any act of Congressover this sum." 2l Moreover, the Sandiganbayanreiterated that the obligation to compensate the human rights victims is on the Marcos Estate and not on the Reoublic. "lt must alwaysbe borne in mind that the obligation to compensatethe human rights victirns under the decision of the US District Court in Hawaii against the Estate of Marcos in Hawait is as much a moral indictment as it is a financial obligation. The late Pres.Ferdinand Marcos has been adjudged responsiblefor the death of, and injury to, thousandsof his own countrymen. The Estate of Marcos, therefore, has not rnerely a legal but moral obiigation to satisfythat judgment with its own money. Money of illegal provenance' or ill-gotten wealth
te Faustino, supra note 12. 2aId. zt Sandiganbayan Resolution.

107

is not moneyof the MarcosBtate - it is moneythat is to be confiscated from that estatein favorof the Republic' It cannotbe usedto paydebts of the Marcosrrr"r., .r*r, lessthe debt owedto the humanrightsvictims- Filipino human rightsvictim, ,o t. precrse. The govemmentof the past'EDSAPhilippines shouldnot be madeto assume the moral obligationimposed by that human.ightsludgment.Paymentin this human rightscaseis morethan just a materialrestitution io. th. Jeathof or physical injuriesinflicted upon a Filipino;it is primarily an acknowledgment of u *oolgriti,o ,r,. iiripi"o f.opt.. It mustbe clearin the mind of the PCGG that the adjudged human righmvictims did not suffer deathor-injuryduring thoseyears of Martial Ruie in orderto mafe money,or in anticipationof paymentfifteenor twenty years larer. They did nor sue ;;;., ro make moneyor to get rich; rather,they suedto affirm the ^ and wrongdone to them to have those who havedone them wrongheri publiclyresponsibre for lhu, wrong. There is no questionthat the adiudged humanrightsvictims could makeuseof whatever moneythey will receivetoday. But moneywasn"ot all that the lawsuiti., Hu*uii wasabout; certainly,that is not the meaning of sucha judgmentby the US District Court in Hawaii.... It is not for this Republicnow to assume tha.rresponsibility or any portion of that judgment in favorof human rightsvictims in orderto bring ubout completerelease of the estate of Marcosfrom any liability. That would be immoll.,,22 " Finally' on September 19,2000,the s-andiganbayan declared the sequestered amountsfrom five Swiss bank deposits as"ill-gotten" and assuchwereforfeitedin favor of the state.23

Analysisand Recommendations If the argum""r.9{the Sandiganbayan, SELDA, and TFDp is to be followed,the settlemenr taken wholly with the inserted "Marcospro-visions" is in itselfimmoraland in fact, perpetuates impunity. However, the present situationwherethe M"r.o, human rightsvictims cannot claim anythingdespite the judgmentof the foreigncourt alsoresults in impunity. The swissBank accounts havebeendeclared ill-gottenwealth. Thus, any atremptfor a Settlement or compromiseusingsuchaccounts will be immediately strr.k down ascontraryto law. At the moment,all properties and accounts declared to be ill'gotten shall be allottedfor the Agrarian Reformbeneficiaries. The only wayfor theseaccounts to be used,, .'o.np..rrution for the Marcoshuman rightsvictims is throughan appropriation madeby Congress. To date,therearethreeoptionsthat the victims can resortto. First,file a case for the enforcement of the $us 2'Billion judgment' second,lobbyfor l"r th"i*li gus62z Million ill-gotten the wealthand other properties "fproprirte and accounts oi th. " Marcoses a".t#a asill-gottenfor the compensation of the humanrightsvictims' Third, and perhaps the best o to resorrto both the above-mentioned measures. "t,.^uu"", As earlyasthefirst Congress afterthe EDSA I revolution,therehave beenseveral bills that were filed at the senateand Houseof ieprerentativeson the mannerof compensatio.of Mar.os human rights victims' For reasons that escapes the average mind, thesebills and oth., ,ou.hi.rg on the issue of -."sur", zi Sandiganbayan Decision. 108

compensation remain unactedupon.24 Thus, it is recommended that these[;lk s3.,,r,'rnr,ft,flluii. m6 Js1i.gt36gi asurgent by the President. Almost 16 yearshave passed since the ousrerof rhe Marco*. ;a* fu r'@ry,o of martial law still haunts the nation through the injustice of neglectbeing suffered L'r dE tr!@@ m@ victims. Until now, through the insensitivityof many legislators and the executive,theserrcnns roagrr@ E victims, unassisted and almostforgotten. While it is true that the State must not pay for the crimesof the Marcosregime,it should alsobe takeninto accountthat Marcoscould not havecommittedmassive human rightsviolationswithout the useof State agents. FerdinandE. Marcoswaspresidentat that time. It wasthrough rhe useof military might and other Stateagents that the commission of humanrightsviolationsand atrocities weremadepossible. The Statecondoned thesehuman rightsabuses. Thus, the Statemust takeresponsibility. It may be true thar over US$627Million do not belongto the Marcoses but to the State. However,sincethe Statewaspart of the systematic unlawfularrests, detentions and convictions, tortures, disappearances, rapes, maltreatments and otherformsof abuses committedduringthe martialrule, it mustalsosharethe burdenof compensating the human rights victims. It is only fair and just that the US$2 Billion judgmentbe enforced to the fullest.Part of it should comefrom the ill-gotten wealth that hasbeenforfeited and then the remaining awardshould comefrom rhe visibleassets of the MarcosEstate.Obviously, the Marcoses arenot living in poverty. They continueto bask in their ostentatious and lavishlifestyle. Thus, their visibleassets can be attached for the purpose of compensating the victims. It is true that no amount of moneycan heal the woundsof thosewho were tortured and have suffered injustice.However,the moneythat thesevictims and their familiescan collectcan be usedto rebuildtheir lives. Both the Marcoses and the Statecontributedto the darkest daysof martial rule. Therefore, both shouldcarry the moral, legal and political responsibilityto rectify in the bestway possiblerhe wrongsthat havebeencommitted. Until the claimants aregiven what is due them,justicewill remaina dream;the never-ending nightmare of martialrule and the perpetuation of irnpunityduringthe Marcosyears will continue.

2a ExplanatoryNote, House Bil 2L92(12tt'Cong.)

.,:.r

Iuecns orWorrarNrN IptpuNtrv

AmparinS. Sto. Mana

The recent study of the Ateneo Human Rights Center (Center) on the Judicial and Legal Aspects of Impunity reveals that the ends of justice are often thwarted by the various means in which the accused is able to generate a pervading atmosphere of fear amongst his or her victims. This is reinforced by a weak criminal justice system both in terms of its structure and implementing mechanisms.Thus, while the accusedboldly wields power in order to instill fear on victims, their families and potential witnesses, he or she is also often successfulin generating that same effect on the very people and institutions that are supposed to be independent, impartial and free from fear and intimidation. Furthermore, the accused has the added advantage of actually making the criminal justice system work for him or her becausesaid system is characterized by a slow process of investigation, clogged dockets and lengthy court proceedings. 'Women nd" theCriminal J*stice System

Delay is often resorted to in order to defeat and frustrate the pursuit of justice. Through the use of dilatory tactics the accused is able to buy time and "persuade" the investigators/prosecutors to dismiss the case or the plaintiffs to drop the same. Predictably, delays take a toll on complainanrs especially if they do not have the resourcesto follow-up the investigation or to regularly attend court hearings. This is even more problematic in the case of women. In the Center's research, it was evident that women whose spouseshave "left" either by reason of forced disappearances,murder or homicide have found themselves in a very difficult situation, since traditionally, their primary role has been to take care of the children and the household. With their spousesgone, they suffered the added burden of having to tend to the financiai needs of the family. This, logically, became their preference. Their quest for justice as regards the fate of their spouses became merely secondaryin their list of priorities. This was especially true in those cases where the investigation and/or trial were saddledwith undue delays and technicalities. In situations such as these, there is a great probability that women will opt to settle the casesor abandon them altogether. Consequently, there is also a greater probability that the accusedwill get away with impunity. Ideally, both men and women pursuing casesagainst a govemment official, law enforcer or member of the military should not be subjected to harassment and threats to life and limb. They should also be able to rely on the criminal justice systemfor the fair and speedydisposition of their cases. However, even in this situation, women may sdll find thernselvesat a disadvantageover their male counterparts since as stated above, they have to assumethe role of being a breadwinner albeit unexpectedly, in addition to taking charge of responsibilities and other obligations which, because of their subordinate role in the family, they are not used to assuming. With more reason then is the woman rendered powerless and vulnerable to settlements and/or dismissalsonce the present state of the criminal justice system is taken into consideration. Slow investigative work and delays brought about by severalpostponementsand other technicalities are guaranteed to discourageher from pursuing the case. It should also be emphasized that it is not only the legal mechanisms that the woman has to contend with. Unfortunately, in the course of her fight for justice, she also has to come to grips with the loss of a loved one, who is at the same time the head of the family and the principal breadwinner. The effect of such loss heavily impacts on the decision of a woman whether or not to pursue the case.The burden is particularly heavy on her becauseshe has not really been prepared by society to take on such responsibilities.

ln

Recognizing that gender role socialization has a profound effect on the perpetuation of impunity as seen in this particular situation should impel both the government and civil society to seriouslyexamine how the pervading ideason what a woman should or should not be, and what she should or should not do, impact not only on impunity but also on other situations and circumstances where she suffersprejudice and undue disadvantageprimarily becauseof her subordinate status in the family and society. W omen ard G ender-B ased V iolence To reiterate, the situation where the accusedis able to get away with impunity invariably resultsin the disempowerment of the victims and their families. They are confronted with the reality that if they continue to pursue their cause,they could be vulnerable to further violations. In fact, their very lives could remain in constant threat and danger. For wotnen who are subjected to torture, threats and/or intimidation, either becausethey themselvesare detained or becausethey are a family member or loved one of the victim, choosing to remain silent is not necessarilya consequenceof fear or intimidation alone. More often than nor, there is an added dimension that ensuresthe perpetuation of impunity. This is seen in the manner by which torture, threat and/or intimidation is carried out. In October 2001, the Commission on Hurnan Rights (Commission) issuedHuman Rights Advisory CHR-A10-2001 on the "Sexual Abuse and Torture of Women in Custody." In said advisory, it stated that there had been "[c]asesof rape, sexual abuseand rorture committed against women detaineesby the police, military and prison officials/personnel,"and that rnost of rhe women belonged "to the socially disadvantagedgroups."The advisory cited one report, whlch revealeclthat at the Correctional Institute for Women (CIW), of the 100 detained women interviewed, ten percent had sexual contact with guardsat the provincial, city or municipal jail prior to their rransfer to CIW. Among the recommendations of the Commission were to have all complainrc of rape, sexual abuseor torture committed by state officials investigated promprly and independently and that effective stepsbe taken in protecting women detaineeswho report said crimes from threats, reprisals or any form of intimidation. The above facts are also confirmed by a report of Amnesty International (AI), which states that between 1995 and 2000, it has received reports of more than 30 incidents of rape or sexual abuse of women and girls in custody.r AI further statesthat the lack of systematicmonitoring in the Philippines makes it difficult to estimate the true extent to which women are subjected to rorrure. Added to this difficulty is the.stigma and feelings of shame which prevenr women from speaking out. The report also mentions the lack of sensitivity by law enforcersand the intrusive media reporring of the cases. Thus, women who report rape to law enforcerssometimesfind that their complaints are not taken seriouslyor that they are subjected to humiliating jokes by these officials who are supposedto protect them. This situation is by no means unique to the Philippine situation or to countries run by oppressiveregimes,or those indifferent to women's causes.In the United States, Human Rights Watch and AI report that most women prisonerswho have experienced sexual harassmentand sexual assault are very reluctant to come forward because they suffer serious reprisals in the process of

Asian Human Rights Comrnission,Women:Fear, Shame andlmpunity The ' AuNESty INTERNRTIoNAL, (basedon sections of a report releasedon Mar. Rape and Serud Abuseof Wornenin Custodyin the Philippines 2,2001) (accessed Jan. B, 2002) <http://www.ahrck.net/hrsolid/mainfile.php/2001vol11no3/46/>.

t12

pursuing a complaint.2 The reasonsgiven for the non-reporting are rernarkably similar to those mentioned in the reports concerning the Philippines. They are: fear of not being believed especially when the perpetrator has authority or trust relationship with the woman; the-social standing of the perpetrator compared to the woman; the fact that these actions are done usually without wirnesses; the volatile nature of the allegations and fear of reprisalsespecially in the context of a prison.r It is true that men, either as victims of hurnan rights violations or as relatives of said victims, must also contend with fear of reprisal as do the women who find thernselvesin a similar sifuation. The difference for women, however, is that when the threat of bodily harm is acrualize,the kind of violence inflicted against them is also often gender-based, that is, violence direcred against thern specifically becausethey are women.4 Thus, the dilernrna for the wornen in this particular situation is compounded by the very nature of the injury inflicted, rnaking it hard for them ro report the same even without pressurecoming from the perpetrators.Then, if the women eventually decide to file a complaint, they are not only confronted with the arduous task of proving rape, sexual harassrnentand other forms of intimidation of a sexual nature against the perpetrators;but they also have to face the disgraceand dishonor that society has attached to victims of these transgressions. It is an unfortunate but neverthelessundeniable fact that the focus on these violations has been directed more on the "shame and humiliation" they cast upon the victims rather than the violent and deprave nature of the acts and the actorb. It is within this context that Filipino women once again find themselvesin a disadvanraged position among the disadvantagedand powerless.In their fight for justice, they must stand up against the perpetrators,a criminal justice system that lacks sensitivity ro wolnen and a society that has long stigmatizedvictims of gender.basedcrimes. In the area of International Law, a rnost recent developrnent is the articulation of specific acts of gender-based violence as crimes coming within the jurisdiction of the Inrernarional Crirninal Court. This is embodied in the Rome Statute. Articles 7 and B respectivelycategorizethe following acts as "Crimes against Humanity" and "\far Crirnes." Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" rneansany of the following acts when committed as part of a widespreador systemaricattack directed against any civilian population, with knowledge of the attack: (g) Rape, sexual slavery,enforced prostitution, forced pregnancy, enforced sterilization, or any other forrn of sexual violence of comparable graviry; (h) Persecutionagainst any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious,gender as defined in paragraph3, or other grounds that are universally recognizedas impermissibleunder international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; 2 See ThdrdseLajeunesse, Christie Jefferson, GenderMonitoring Joan Nuffield and Diana Majury, Cross (citingHuman Rights Watch, Nowhere to Hicle: Retaliation Against 'Women in Michigan State Project Prisons.4-5 (1.998)<http://www.csc-scc.gc.ca /text/prgnn/{iw/gencle13/cg-26_e.shtrnl>. 1 I d. a See General Recornmendation19 of the UN Comrnittee on the Elirnination of Discrimination Asainst Women ( 1lth Session,l99Z).

l13

Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scalecommission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (e) Other serious violations of the laws and customs applicable in armed conflicm not of an intemational character, within the established framework of intemational law, namely, any of the following acts: (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy' as defined in article 7, paragraph2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; The above provisions in the Rome Statute are a significant development in rhe fight to have gender'based violence acknowledged as a serious violation of human righ6. It also sends a clear messagethat such acts are now recognized as independent transgressionsand not merely incidents to, or consequencesof, war or armed conflicts. In the Philippines, the crime of rape has been re-classified from a crime against chastity to a crime against person. Jurisprudence, however, has yet to develop and evolve so that it would concentrate more on the offense's nature as a violation of a person rather than as a violation of a woman's honor. Pronouncements regarding this offense must now focus more on the vileness and depravity of the act and the perpetrators thereoi rather than its characterization as an "assault on x x x honor and womanhood." There should also be less emphasis on the "shame," "humiliation," "dishonor," "embarrassment" and "stigma" befalling the woman.s More importantly, jurisprudence that accords credence to the victim's testimony principally becauseshe is 'iinexperi.n."din sex" or for being a "provincial lass" and "not.a sophisticated woman" must be abandoned.6 The change in the law should result in the promotion of the righm of women and girls. The woman and girl-child must be believed on the basis of an appreciation of th.ir own testimony and other evidence, if available, but not on how chaste or innocent they have remained or how well they have taken care of their repuration. Courts have rhe responsibility of reflecting this change, not only becausethey have the duty to interpret the law but also because tirose in .hatge of enforclng and implementing it, every so often rely on jurisprudence for guidance. The Center's research has shown that the Philippines indeed has a serious problem with impunity. Adding a gendered perspective has made it even worse. \fomen's experiences as seen above have been more difficult, painful and'oppressive primarily because they happen ro be women. Thus, it is quite obvious that gender is an indispensable factor that must be considered in arriving at a genuine assessment of, and an effective soludon to, the problem of impunity. This is the only *"y to guarantee that gender-based violence especially within the context of impunity would not go unnoticed, unreported and unpunished. 5 SeePeoplet,.

(Jul. 133190 19,2001). uSee People u.Santos (Jul. hr, G.R.No. 133190 19,2001).
tl4

Manayan,G.R. Nos. 142741-+3 (Ocr.25,2001); andPeople r.,. Santos Lor, G.R.No.

IupuNlrys FocusrNcONCHno WtrNrssrs

AnaJmetF. Sufrga AIeIiR. Domingo Yoo-KyeongKwon

Introduction uv l*'v impunity c^rrLs when wrren rne justicesystem the crlmlnal criminalJustlce system is not not efficiently efficientlyworking worki although the legal ?" {*g '.Puruly exisrs framework for the machinery to redressgrievance ,rruy b. present.r This is most evident when when the the alleged allesed

ffTt^t:T:::1t:lff t be manifestedat different stagesand levels within the criminal iustice svsrem.

tovemmentofficials,.military office.s-or lawenforcers. In these cases, rmpunity may

This paperexamines-the current syste-r_n of prosecuting cases of murder or homicide allegedly committedby govemment officials,military officersor la* enflrcers. In particular, it seeksto discuss and illustrate how impunity presents itselfwherechildrenarematerialwitnesses to the saidcrimes. Key govemmentofficialswithin the Metro Manila areaand social workerswho actually handled such cases have beeninterviewed'Existinggovemmentinitiativesand programs protect to and secure child witnesses were alsocarefully assessed' Part I of the papergivesan overviewof childrenaswitnesses; part II reviewsthe existing govemmentmechanisms and initiativesto protectchild witnesses; part and III analyzes the factors contributing to the perpetuationof impunity and providesrecommendations to improve the current systemto ensure betterprotectionof child witnesses arrdpr"re*ation of their testimonies. ChildrenasWirnesses Children constitutea smallbut significant percentage of the total numberof wirnesses who get caughtin the criminaljusticesystem. In cltiH abuse and e*iloitutio. cases alone,child witnesses who are usually the victims,numberin the thousands. Nevertheless, with respect to cases wherethe accused are govemmentofficials,military officersor law enforcers, the number of do.u*..rted cases involving children as witnesses is much smaller.The Departmentof Social l0Telfare and Development(DSWD) programsand Projects Bureau estimates that morethan 15 childrenwho havesougntits protectionand services have pendingcases againstgovemment officials,military, and law Of this number,around two to three cases involve murderor homicide'2It shouldbe noted that this ".rfo...rr. numberexcludes childrenwho havesought the services of the local socialwelfareand development officeln their particularcitiesor localities. child witnesses currently under the lritness Protection-Security and Benefit program (wpsBp) of the Departmenr (ooJ) numberaround50 or 13.8%of the total of Justice 3 of numberof wirnesses placedunder the program. this number,around three children arewitnesses to the crimesof murderor homicide allegedlycommitted by govemmentofficials,military or law enforcers.4 In thesecases' the preservation of the child witness' testimonial evidenceis always an imperative. Thus,steps mustbe taken to ensure that the child witness will testifyon the dare,time, and placeset by the court and that his or her testimonywill be a truthful account of rhut he or shehaswitnessed.

I See Amparitas' sta' Mari4 "lmpuniry in the Philippines: An overview" (2000) (unpublished manuscript .n file with the Ateneo Human Rights Centei). ' Interview with Tricia Mazo & Delilah Samson'Fuertes, Programs ancl l,rojects Bureau,Department .f S.cial rgTelfare and Development(Nov. 14, zool) [hereinafterMazo& Sams.rm-Fr,..tes]. 3 Interview with Ma' NerissaM. Carpio, Asst. Director, DoJ Witness p()recrion, Secqrity and Benefit Program, Department (Nov. 14, 2001). of Justice a Interview with Philip Aguinaldo, former Director of the DOJ Witness pnrtecrion, Security an6 Be'efit Program, Department (Nov. 14,Z00l) [hereinafter of Justice Aguinaldo].

115

The experience of professionals helping child witnesseshas shown that children can be excellent courtroom witnessesif they are properly prepared to testify. Although they are often apprehensive about testifying in court, child therapistshave seen how children can become empowered by the experience when they know what to expect becausethey have been preparedfor the experience.5 The appearanceof a child witness in court and his or her testimony could be vital to properly prosecutethe caseand to bring the alleged perpetrator to justice. It is for this reason that the life, safety and security of the child may be in peril. Anecdotal evidence reveals that child witnessesand their farnilies often becomevictims of harassment, threat or intirnidation exertedby the perpetrators directly or indirectly in order to discouragethe child from testifying. According to the social workers interviewed, an estimated 10o/o to 20o/o of child witnessesin all criminal casesthey participated in desistfrorn testifying at some point. The main reasonthey cited was the influence of the child's own family. Often, the children's own relatives will persuadethem not to testify becauseof fear of retaliation by the alleged perpetrators. The threat becomes very real becauseof the perceived ascendancyof the said perpetratorswho are government officials, rnilitary officers or law enforcers. According to Dr. Bernadette Madrid of the Child Protection Unit of the Philippine General Hospital (CPU-PGH), family support is usually the cruciai factor in the child's decision to testify. Once the family support dies down, the child's willingness to testify also withers.6 It is, therefore, not surprisingfor children to desistafter the perpetratorshave contacted relatives, directly or indirectly. Thus, to assurethe child's participation in prosecuting the case,his or her protection from pressure,threat, or intimidation must likewise be extended to membersof his or her family. Another crucial factor is the length of the case. According to Ms. Eva Villegas,Tthe long and tedious legal processof prosecuting crimes often frustratesand discourages children from continuing with the case. They may decide not to testify or withdraw their testimony so that they can resume normal and peaceful lives. Ms. Villegas added that although the willingness to seekjustice remains high, trust in the system runs low. Indeed, it is important to speedup casesinvolving child witnesses. In preseruingtestimonial evidence, not only should the child's presencebe ensured when called upon by the court to testify, but his or her testimony, itself, must be preservedin such a way that it can withstand scrutiny by both the court and the defense. Corollary to this, the child's testimony urust be free fi'om any outside influence. In an interview with JudgeNimfa Cuesta-Vilches, she stated that there are several means employed by the perpetratorsto influence the testimony of the child witness.sThreats, pressureand intimidation are frequently exerted not only against the child but also against his or her family. In fact, the child's testimony may be influenced even when he or she is ah'eadyon the witness stand. According to Judge Vilches, the accusedwill often employ methods to intimidate witnessesin court. For example, rnilitary officials will appear in court in full uniform or the accusedwill corne to court with his or her colleagues. Defenseattorneys addressthe accusedby their official rank. All these pioys creare an intimidating environment for the child whlch can negatively impact on his or her abilitv to narrate what he or she has witnessed. Postponementsor attempts to delay proceedingscan also affect the child witness' testimony especially when he or she is very young. According to Dr. Madrid, it is best that the child resrify as soon as possible. Although the child witness' testimony as to the traumatic experience will remain consistent, resrimony as regardsperipheral matters may change, which could substantially affect his or her credibility or comperence to testify.

t LyNN M. CopEN & LrNnn M. Puccl,Gerrrnc Re,roy roRCounr (1996).

'' lnterview with Dr. BernadetteMaclricl, Chilcl Plotectior-r Unit-Philipl'rineGenelal Hospital (Nov. 16, 2001). ; Interview with Eva Villegas,SlfO II, Nayon ng Kabataan,Pasay City (Nov. 20, 2001) lhereinaftelVillegas]. ' Interview with Nimfa Cuesta-Vilches, FarnilyCourt Judge,Manila (Nov. 16, 2001) [hereinafterVilches].

r16

No doubt, attemprs to prevent child witnessesfrom testifying in court and/or influence their resrimony contribute to the problem of impunity. Thus, multi-sectoral efforts to provide children ancl their families sufficient protection and security must be intensified'

Existing Government Initiatives and Programs The Neq., RuJeon Exunination of Child Wicnesses '!ilitnesses (New Rule) in Prior to rhe enacrment of the New Rule on Examination of Child December 2000, the country had no separaterules of court to govern the conduct of casesinvolving children as litigants or witnesses. For a long time, children were treated as adults inside the courtroom without much regard to their special needs. Cognizant of the secondarytraumatization experienced by rnany child witnesses in court, the Supreme Court enacted the New Rule in order to create and maintain an environment that will encouragechildren to testify in legal proceedings,allow them to give reliable and complete evidence, minimize their trauma, and facilitate the ascertainment of truth. Under the New Rule, the competency of a child witness is presumed. To facilitate the testirnony of they are allowed to useemotional securityitems (e.g.blankets,toys, etc.) and testimonial aids child witnesses, of an interpreter, a facilitator, (e.g. anatomically-correct dolls, drawings, puppets) and to obtain the assistance (who child's relative, teacher, rnay be the and/or support persons.An interpreter and/or facilitator psychologist,psychiatrist, social worker, guidance counselor, or religious leader) may assistsaid child who is unable to understand questions or communicate properly due to his/her developmental level, fear, shyness,or disability. Support personsare also allowed to accompany children and hold their hands while giving their restimony as emotional support. A guardian aAlitem rnay also be appointed by the Court to make recommendations to the court concerning the welfare of the child, to explain to the child the legal processes anci special servicesfor the child. involved, and to marshal and coordinate the delivery of resources Furthermore, to create a more comfortable environment for the child, courts are encouraged to provide a waiting area for children, to avoid wearing their judicial robes,and to direct the location and deportment of all personsin the courtroom. Under the New Rule, the child is now allowed to testify from a place other than the witness chair; to avail of screens,one-way mirrors and other devices to shield him or her from the accused;and to give his or her testimony in a place outside the courtroom via live-link television. The presentation of video-taped depositions and audio/video-taped investigative interviews rnay also be permitte.dby the court in certain instances. With these innovative procedures,it is hoped that child witnesses may be able to testify without fear or hesitation. gram The Witness Protection,S ecurityand Benefit Pro Provision for the adequateprotection, security and benefits to chlld witnessesof heinous critnes, especiallythose committed by government/military officials and law enforcers,is essential in securing and ensuring children's cooperation as witnessesand facilitating the prosecution of criminal cases. Republic Act No. 6981, otherwise known as the "Witness Protection Security and Benefit Act" (Act), was enacteclin Aprii 1991 to facilitate the prosecution of casesof violent crimes such as murder, robbery, and kidnapping. The Act, however,contained no provisionsparticular to the needsof chiid witnesses.On August 20, 199 i , the "'Witness Protection, Security and Benefit Program" (WPSBP) was forrnulated by the DOJ in order to implement the Act. This was followed by a Memorandum of Agreement (MOA) entered into by and on December27,199I, which taskedthe DSWD to extend bei*ee.r the DOJ and other governmentagencies')
ancl Ernployment. ' The MOA signargries are Department of Justice, the Department ,rf Health, Department of Labor Btrreau ot National the Sports, ancl Ctrlttrre Department of Social Welfare and Development, Department of Eclucation, Investigation and the Philippine National Police.

1.-

crisis in connection with "traumatic reactionsevokedby court appearances, f,Li-s--ance to witnesses procedure guidance, and explanationof unfamiliar terminology :-:e:a-enrion,counselingorientation and :sne,rallvto children."ro Another MOA, enteredinto betweenthe DOJ and the DS\UD on November1995, --:..,teirhe DSWD with extendingfamily casework, psychosocial and skills services, livelihood assistance rarning to witnesses accepted underthe Program.llIt wasonly on March 16, 1999,that specificprovisions ior child witnesses were incorporatedinto the 1995DOJ-DS\UD MOA in the form of an Addendum to the on "lmplementingGuidelines" for child witnesses underthe \fPSBP wasissued \tOA. The Addendum's 9,1999, in a Joint Memorandum Circularby the DOJ and the DSWD.tz December desiringto avail of the government's Under the Implementing Guidelines, a child victim/witness protection may apply with a DSIUD Field Office for inclusion into the \7PSBP. The DSWD socialworker of the child and his or her eligibllity for the then prepares a socialcase studyreportassessing the needs into the program,which is submittedto the \7PSBP for final determination. The criteria for acceptance \7PSBP of child witnesses are the sameasthat for adults.It is requiredthat the personhaswitnessedor has knowledgeor information about the commissionof a gravefelony; that his or her testimony can be substantially corroboratedin its material points; and that he or she is subjectedto threats to his or her life or in order to prevent him or her from testifying or to coerce bodily injury, or to intimidation and harassment giving falsetestimony.l3 him or her into A child admitted into the programis provideda myriad of services by the DS\UD, including physical examination,protective custody,psychological evaluation,counseling,therapeuticactivities, and crisis intervention, on the child'sneeds.la Psychological which maybe extended to the child'sfamily based preparationof the child and his or her family is conductedbefore,during and even after court hearings. Periodiccaseconferences Piosecutors are alsomadeto assess and betweenthe DSWD and DOJ-\7PSBP/State propermanagement ensure and coordination betweenthe two bodies.l5 of cases As a generalrule, the physicalcustodyof child witnesses under the \YPSBP is entrustedto the DSWD. The child may be placedunderthe custody of a DSWD-operated/supervised facility, an accredited Non-GovernmentalOrganization(NGO) Center, or in the community under the supervisionof DSWD. For high profilecases, however, wherethe DSWD is not capable services, the of providingthe necessary security child is transferred to WPSBP safehouses. Under the ImplementingGuidelines,the DSWD is taskedto continueprovidingpsychosocial interventions of the and counseling services regardless of who holdscustody parq child.r6 For its the DOJ-\fPSBP undertakes to provide securityand escortservices and vehicles to and from the courts,investigating bodies is or hospitals upon prior notice by the DS\07D. Financialassistance likewiseprovidedto all child witnesses under the programin the form of monthly allowances depositedin the children's account.lT savings
of Agreementby and betweenthe Departrnent of Justice, Departrnent of Health, Departrnent of Labor '" lu{emorandum and Employment,Department of Social \Telfare and l)evelopment, Department of Education, Culture and Sports, the National Bureauof Investigation, and the PhilippineNational Police,To hnplernentthe Witness Protection,Security and Benefit Program (Dec. 27, l99l). :: l!{emorandum of Agreementby and betweenthe Departmentof Social lfelfare and Developmentand the Department of Justiceto Extend Assistanceto l7itnessesCovered under the Witness Protection Security, Benefit Program(Nov. 9, 1995). Skills training assistance was insertedas an Addendurn to the Guidelineson the Implementationof the \4emorandum of Agreernent Executed Between the DOJ and DSWD in March 1996. :: Guidelines in the Implernentation of the Addendumtt'rthe Mernoranclum of Agreementof R.A. No. 6910,Otherwise (Dec.9, 1999)[hereinaftel Known asWitnessProtection, Securityand BenefitAct, Joint MemorandunCircr-rlar Joint lv'f emorandum Circularl. " R. A . No. 6981,$ 3 . sr,pr4 note 2. '* Mazo& Samsom-Fuertes, tt Memorandum supra note 12, Circular, Joint 'o Id.
ti Id.

118

The lTitness Protection Act mandates the speedyhearing or trial of casesinvolving witnesses admitted into the WPSBP. Under the said law, judges or hearing officers shall endeavor to finish the proceedingswithin three months from the filing of the case.rsPrior to the dischargeof a child witness from the WPSBP, the handling social worker is tasked to coordinate and conduct pre-dischargeconferenceswith a social worker who will provide after-careservicesto the child and his or her family.le This provision ensures the proper reintegration of the child back into society. The Supeme Court andPHILlA The Supreme Court's Philippine Judicial Academy (PHILJA), which servesas the country's training school for justices,judges,court personnel and lawyers,has embarked on several projects for the benefit of children who enter the criminal justice system. PHILJA, in cooperation with concerned government agencies such as the DOJ and the DS\fD, conducts multi-sectoral trainings for the different members of the criminal justice systemwho handle child-related cases - judges,prosecutors,public defenders,social workers, police in order to enhance their knowledge, attitudes and skills in responding appropriately to the needs of children. With the aim of securing competent and effective testimony frour the witnesseswith the least possible inconvenience to them, participants are trained by a multi'disciplinary team of trainers on how to interview children, how to prepare them for court trial, and how to examine and cross-examinethem in court.20 Another program of the Supreme Court and PHILJA relating to children is the "Development of a New Set of Judicial Rules and Proceduresfor Family Courts." PHILJA has conducted sectoral workshops to discuss, consolidate and harmonize the proposalsof various sectorsrelating to special rules of court for children. In fact, the New Rule is just the first among a seriesof reforms being undertaken by the Supreme Court to develop an entirely new set of rules for family courts.Zr Other initiatives of PHILJA inctude the "Development of a Manual on the Comprehensive Juvenile Justice System for Children" and the "Establishment of Pilot Family Courts in NCJR and Major Cities Using Video Conferencing." To date, video conferencing equipment and facilities have already been set-up and pilot-tested in three courts in Quezon City, Cebu City and Davao City, under the auspices of United Nations Children's Fund. PHILJA, in cooperation with the DOJ, has also produced a video-tape rnock-trial presentation on the use of videoconferencing in courts as an educational tool for its trainings. T he C ommission on Human Rights The mandate of the Child Rights Center of the Comrnission on Human Rights (CRC-CHR) is to "spearheadthe investigation and initiate legal action for and in behalf of child victims of human rights violations and monitor government's compliance with specific provisions of the Convention on the Rights of the Child."22 Some of the servicesit provides children are the investigation of human rights (including child rights) violations and referral to the prosecution arm for the filing of proper charges,preparation of affidavits, counseling and advice regarding preliminary investigation and court procedures,accompaniment in hearings and trial if needed, and financial assistance.zlUnder the financial assistance program of the Cornmission on Human Rights (Commission), victims of human rights violations or their families may avail of a financial packageafter due investigation of the caseby the Commission, basedon the gravity of the human assistance $ R. A . No. 6 9 8 1 , 9 . $ p Memorandum Circular,supranote 12. Joint 20Interviewwith Purificacion V. Quisr,rmbing, Commissioner, Commissionon Human Rights and former Chair of ::.. International Law and Human Rights Committee of Philippine Juclicial Acaclemy (Nov. 15, 2001) [hereina::.: Quisumbing]. 21Id. 22 Continuingthe Child RightsCenterin the Commission on Human RightsanclAppropriatingFundsTherefrrr, Menrorandum Order No. 257 (Feb.7, 1995). 23 Interviewwith KarenGomez-Dumpit, Director,Child RightsCenter,Commission on Human Rights (Nov. 14, l.-,: Gomez.Dumpit]. [hereinafter

rights violation committed, the economic status of the victim and his or her family, the expensesincurred as a result of the human rights violation committed, and the social history of the victim and his or her family.za A child witness, therefore, who is himself or herself a victim of human rights violation, or whose parents were victims of human rights violation, may avail of the said financial grant on top of the financial assistance provided by other government agencies.

Analysis and Recommendations T he D epar tment of Social \X/elfare and D eveIopment Among the success indicators relied upon by the DS\UD in determining the effectivenessof its programsfor children are the latter's successful reintegration with their families and their ability to relate their experienceswithout reservations. Indeed, many child victims-witnesseswho have been placed under the custody of the DSWD or who have availed of the servicesof DSWD, were able to overcome their trauma and articuiate their experience with little difficulty after undergoing the various programs offered by the DSWD. Despite these successes, the DS\7D social workers interviewed pointed to various obstaclesto the effectiveness of these programs,which have also contributed to the perpetuation of impunity in the present justice system. The main obstaclesor factors they have identified are: the efforts of the accusedto tarnper with existing evidence, contrive new evidence, influence witnessesand generally to securean outcorne in their favor; the inadequacy of financial resources and facilities suitable for children under the \VPSBP and the slow and tediousjudicial process.25 In cases where the accusedis a government/military officlal or law enforcer, the accusedoften useshis or her position and connections to exert pressure,intirnidation, and/or threaten child witnessesto delay their testirrronyor to compel them not to testify. DS\UD recordsshow that in 1999, 12% of child abusecases serwed by the DS\fD and referred for legal intervention were terrninated through desistanceor "ariricable settletnent."26 The main reason cited was fear on the part of the child due to the influence being exerted by the accused,either directly or indirectly through the family members of the child. Emotional rraulna was rarely the reasonfor desisting (although seeing the perpetrator face-to-face increasesthe fear of a child witness). In addition, the authority that the accusedcarries as a result of his or her position or rank, by itsell influences the processof investigation and/or prosecution. This authority, coupled with financiai resources, also enablesthe accusedto influence other people into hiding/changing evidence, or fabricating new evidence or false testimony in favor of the accusedin order to destroy the credibility of the child witness. Thus, the social workers interviewed believed that it is more difficult to deal with a child witness in a homicide or murder caseif the accusedis a government/ rnilitary official, or law enforcer. Inadequacy offinancial resources was cited as another factor contributing to the perpetuation of injustice. The social workers interviewed felt that funds should be provided for the additional responsibilities of the DSWD following the 1991 and 1995 MOAs implernenting the WPSBP. Although the DOj was given funds for the operation of the \7PSBP, other government agencieswhich signed the 1991 MOA (e.g. DS\7D, Department of Health, Department of Education, Culture and Sports) were not. For example, the DSWD intervieweesbelieve that when child witnessesare placed in DOJ-WPSBP safehouses, additional funds should 'fe provided for the families to live with their children in said safehouses.This holds true especially in high profile casesinvolving government officials or influential personalities,where the family of the child wirness :. usually also at risk and, therefore, it is deemed safer if they live with the child in the safehouse. Under the Inplementing Guidelines of the WPSBP, should there be a necessityfor the child to live with his or her :aniiy for emotional support, all efforts should be rnade to have them accomrnodatedin the sarnefacility. In

t'

' CHRRes. No.A96-060.

\fazo & Samson-Fuertes. suDrd. note Z.

1999DS!7D Quick ReactionTeam (QRT) Accornplishrnent Report.

practice, however, this is rarely the case. First, it is hard for the family-members who are not themselves to meet the criteria of the WPSBP. Moreover, the rnonthly financial allowances provided for the witnesses, child witness under the WPSBP are not sufficient to rneet the normal needsof the child's family. Knowing can that family membersare under security risk but cannot afford to stay with children in the safehouses discouragesome children from remaining with the program and testifying. In additlon, due to lack of resources, there are not enough private attorneys able and willing to handle the casesand adequately prepare for trial.z7 This can reduce the effectivenessof child witness' testimony in court and aid in child wirnesses the the perpetuationof impunity. Another gap in the \UPSBP which may contribute to irrrpunity is the lack of suitable facilities for and offices. For security reasons,social child witnessesof high profile casesin DOJ-WPSBP safehouses workers and other service-providersare not allowed to visit child-witnessesin DOJ-WPSBP safehouses. social workers, psychologistsand other helping According to the DSWD interviewees, in such cases, professionals can only meet the child by special appointment in DOJ offices which have no suitable facilities for conducting counseting and other therapeutic activities for children. Unlike in DSWDo. "q,iipm..tt are not supervisedby operatedor supervisedfacilities, children staying in DOJ-WPSBP safehouses nutritionists, social workers, or casemanagerswho can constantly monitor their progress.This lack of proper psychosocialsupport servicesfor children makes them ill-prepared to face the rigors of trial. A heavy toll also exacts on the children's education becausetheir schooling is also usually disrupted. The last factor contributing to the perpetuation of impunity is linked to the first two. Despite the law mandating the speedytrial of casesinvolving child victims or child witnesses,the litigation processin the country remains long and tedious. According to the DSWD, it takes an averageof three to five yearsbefore child witnesseshave the opportunity to give their testimonies in court. The lengthy judicial processhas discouragedmany children from testifying. They are just eagerto resumetheir regular lives. The reasonfor the lengthy processis largely due to the protection ensuredby the legal system to all accusedof criminal casesto defend themselvesagainst the chargesbrought against them through the filing of various motions/pleadings and other legal procedures. However, a frequent reasonfor these delays is also the unavailability of the judge, prosecutoror defenselawyer. Lawyerssometimesdo not appear in court becauseof intimidation or threats by government/military officials or law enforcers. Another reason is that judges' dockets are often overloaded, contributing further to the delay in adjudicating cases. The long legal processalso gives the accusedthe opportunity to go into hiding or to leave the country, thus resulting in the archiving of cases. All these factors make it easierfor the accusedto get away with crimes and thwart justice. A concrete recomrnendation offered by DSWD interviewees to addressundue influence from the accusedis for the DOJ to give children alias names that are lesssimilar to their real names, thereby rnaking it financial constraints, they suggestusing NGOharder for the accusedto locate their whereabouts. To address operatedsites as alternative facilities for custody of child witnesses. They also recommend additional funds to meet the educational, psychological,financial and other needs that the DOland DSWD under the 1999 Implementing Guidelines have agreedto provide for. 28 Lastly, to prevent delays or withdrawals in the testimoniesof child witnesses,they recommend that courts schedule marathon hearings and give high priority to casesinvolving child witnesses;that lawyersspend more time in casepreparation; that judges be stricter in accepting and granting motions meant to delay the cases;that courts be stricter with deadlines for pleadings and with trial schedules;and most important of all, that the psychological and emotional preparation of child for eventual court testimony be strengthened through one-on-one counseling and psychosocial witnesses therapy by social workers.

27 Villegas, supra note 7. 28 Circular,supra note 12. Joint Memorandum

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The Department of Justice The major factor contributing to the perpetuation of irnpunity is the ability of the accusedto influence the legal system to his or her advantage. An illustrative casehandled by rhe DOJ-\7PSBP that has been ongoing for about 2 years is a casewhere two siblings, a9-year old boy and a 1Z-yearold girl, wirnessed the,murder of their parents under the hands of law enforcers in their city.ze The parents of rhe*children, prior to their deaths,had filed an administrative casewith the People'sLaw Enforcement Board (pLEB) for the suspension/dismissal of the law enforcer for allegedly conducting an illegal search of their home. While the administrative casewith the PLEB was ongoing, the law enforcersallegedly returned to the home of the family and shot the parents and their two children. The parents died insranrly. The two children survived but the daughter'skidney had to be removed. The two children are now under the protection of the WPSBp. After around two years,only one criminal caseagainst one of the suspects has been hl.d i., court, bur the trial has been delayed becausethe suspect-accused remains at large. Although the said accusedhas been allegedly sighted severaitimes by the victims' relatives within their community, iaw enforcershave failed to arrest him. The other police suspects, although identified, have nor even been called forth for preliminary investigation. None of the suspects have been suspended frorn office, much more arrested,despite clear and condernriing evidence against them which have been presentedat the preliminary investigation and adrninisrrarive hearings. In addition, they have been able to freely use rheir positions to threaten people close to the deceased parents, tamper with the children's affidavits, to pressurethe childr.n not to testify, influence the complainants' attorneys not to appearfor "tt"-p, the hearings, and generally to clelayand frusirate the legal process.3o After two yearsunder the WPSBP, the two children harr. y.t ro tesrify in courr. In order to prevent caseslike the one describedabove from being repeated,State Prosecutor Philip Aguinaldo, the former head of the \flPSBP, recommends institutionalizing proceduresro facilitate the immediate suspensionof government/military officials or law enforcerswho have a criminal suit brought against them and who can use their position to influence the outcome of the casein their favor. h-i the illustrative case,this would have minimized the accused's abiiity to influence the judicial process. Another recommendation is to make the \fPSBP an autonomous body within the DOJ, similar to the National Bureau of Investigation. Currently, the \7PSBP is headed by the Secretaryof Justice. As a result, a change in government leads to a change in the leadershipof the \7PSBP, which can have a disruptive effeciln lts operations. ProsecutorAguinaldo also identified the insufficiency of financial resourcesro carry our rhe . objectives of the WPSBP as_ a factor that may contribute to impunity. The insufficiency of resourcesis clearly illustrated by the fact that child witnesseswho stay in safehouies usually have ro ,hu." th" same with 2 or 3 other families. Safe housesare usually rented rooms, housesor apartment units situated outsiclethe vicinity of the crime scene' Unlike in a DSWD center, there is no schooling, playground or adequarefacilities provided for the children. Security personnel assignedto guard them also have no orientation on children's rights. Furthermore, the financial allowance allocated for each family is not enough to meet their norrnal needs and the specialneedsof children. The consequent loss of freedom and source of income for the farnily megrbers itscouragesthem from staying in the safe houseswith their children. Further complicating the matter is the DCI-IUPSBP policy that parents who choose not to be under the prograrn or whodo not"qualify uncler the \\''PSBP are not made privy to the exact location of the children for security reasons. Parents cannor visit rneLrchildren in their temporary shelter, but are only allowed to see rhem at rhe DOJ office upon prior appointment. This disheartenssome children from remaining wich the program and pursuing their tesrimony.

2e Aguinaldo,supranote 4. r0Id.; Mazo & Samson-Fuertes, snprd note 2; Villegas, supra note Z.

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The Courts The main problems identifiedby FamilyCourt Judge Nirnfa Cuesta-Vilches sternfrom lack of resources that leadto time delays and lack of sensitivityto children'sneeds.3r Both affectthe ability of childrento testifyeffectively in court. Other factorsincludethe failureof prosecution to prepare childrenfor testimony and the methods ernployed by government/rnilitary officialsor law enforcers to intirniclate thernin
coul t. In responseto these problems, JudgeVilches recommends an awareness carnpaign to sensitize justice different sectorsof the system to the differencesbetween children and adult witnesses. This would include training programs that would sensitizejudges,lawyers,court staff, law enforcers,etc. to tl-reneedsand sensitivities of child witnesses. Caseswhere children are supposecl to testifyshould also be given priority. JudgeVilches presently puts this into practice. She gives priority to casesinvolving child witnessesand tries to schedulechildren's testirnoniesduring vacation time. Currently, PHILJA also conducts training programson child rights to judges and court personnel of designatedfarnily courts as well as prosecutorsand public defendersregularly assignedto these farnily courrs.rl It should be noted, however, that casesbrought by adults involving child wimesseswho are not thernselves victims of crime or accusedof a crirne often end up in ordinary courts, hence, there is also a need lo train judgesof regularcourts to be more child sensitive.3l In addition, JudgeVilches recommends making the court atrnosphere lessintirnidating for child witnesses. For example, governrrent/military and law enforcersshould be forbidden from appearing in court in their uniforms, and should not be acldressed by their official ranks. Lastly, the judge recommends the establishment of a Court Appointed Special Advocate / Cuardian ad Litern ("CASA/GAL") Prograrnsirnilar to what exists in the United States. Judge Vilches is zrkey person working towards its establishrnent. Under the CASA/GAL Prograrn,volunteers would be trained, supervised, and appointed to act as advocatesand casemanagersfor child witnesses. This would help children feel rnore at easewhile testifying in court and throughout the enrire dur:rtion of the case. Child R(hrs Center of theCommissionon HumnlRights Ms. Gomez-Dumpit,director of the CRC-CHR, opines that although children are generally vulnetable due to their age and imrnatulity, they are rnore likely to tell the truth about what they have witnessedand are lesslikely to be corrupted. Children are also usuzrlly braver and rnore idealistic than adults becausethey are unburdenbd by the responsibilitiesand worries of adults, and therefore rnake better witnesses. So long as children receive the full support of their farnily, and service-providers/duty-holders effecrively perforrn their respective tasks in caring for and preparing child witnesses,chilclren will be able to give their accurate testimonies in court, despite negative influences frorn the accused.14 Sorne of the factors contributing to the peryetuation of irnpunity mentioned by Ms. Gomez-Durnpit include the solidarity among law enforcersand efform by the accusecl to intimidate the witnesses. Police and/or rnilitary officers often work to protect each other becauseof their loyalties to their work. The irnpartiality of investigatorsand prosecutorsrnay be compromiseclby the mere fact that the accr-rsec{ is a law enforcer/rnilitary/ governrnent official since it is a common hurnan instinct to protect one's colleaguesat
t'

Vilches, srzpra note 8. 'r Quistulbing, supranote 20. tt These casesoften encl up in regulal courts hecausethe Family Courts Act cloesnot specifically rnention such categories of child witnessesas falling uncler its juriscliction. \ 4^ '- L iomcz-D r r ur pits ,upr ar r ot c 2J .

t23

\'.ri. Faiii...lLtv, alb,eit not so evident, rnay be expressecl in the tenclency of investigators orhearing officersto be ni..:e sciutrr-rr-ing and to find rnore legal, technical or evidentizrry loopholesin the casewhich rnzry e\onerate the accused. Also, the accused will often try to pressure or intimidate the child either clirectlyor threrush iamrh'mernbers.Ms. Gornez-Durnpit cited cases monitored by the CRC-CHR where the accused sent his comrades to r,isiblystalk rhe child witnessas he or she was being escortedto court. Pressure can also (resort to piry) which are corunon be ererreJ Lndirectly through "pakiusap"(imploring) or "pagmamakacLwa" Filrprnotraits. Go-betweenssuch as friendsor other relativesof the child-witnessare utilized by dre accusecl to persuaJe the child and his or her immediatefarnily to desistfrorn pursuingthe caseor from testifyingby appealrne to their senseof pity and forgiveness.Many cases have been settled through such rneans.t5 The recornmendationsoffered by Ms. Gomez-Durnpit are two-fold: first is the provision of adequate support for child witnesses. According to her, the rnain support should be provided by the family ancl supplemented by the psychosocial supportof other duty-holders(e.g.social workers,teachers, psycl-rologists). It is irnportant for duty-holders to alwayskeep in mind that children have other lives outside their legal cases and that their lives have to ffrove on despite the existence of such cases. Children must therefore be given the lneansto continue exercisingtheir rights, including rights to farnily support,education,recreationzrndnormal der,eloprnentthroughout the whole process.As rnuch as possible,they should not be separatedfrom their farnilies. If separationis unavoidable,children should at leastremain in frequent contact with their farnilies ancl be reunited u'ith thern as early as possible. Ms. Gornez-Durnpit, also recommends providing lnore financial assistance to the families of child witnessesbecausetl-refarnilies support to their children usually dependson their financial rnear-ls to pursue the case. Furthermore, she recornrnendsthat all persons protecting and caring for the child witnesses,including the cl-rildren'slzrwyers and security personnel, be given tr-aining on children'srights and child sensitivity. A multi-disciplinaryapproachin the prepararionof child witnesses should be utilized. Second,Ms. Gornez'Durnpitemphasizes speedingup the trial as much as possiblein ordel to prevent child witnesses from withdrawing their testimonies due to discouragernentor lack of financial means. The testimonies of child witnessesare often delayed due to absenceof the hearing officer or judge, or the alleged sicknessand non-appearanceof the accusedor the accused's lawyer. She, thus, recommends schecl,rlir-rg the trial dates as early as possibleto prevent further delaysfrom lack of open court slots. She also emphasizes the irnportance of getting lawyerswho are proactive in advocating for a speedytrial and objecting to Lrnrrecessary clelays. The importance of adequatelypreparing chiidren as witnessescannot be overemphasized.

Conclusion Deficienciesin the provisionsfor the protection and supportof child witnesses, no doubt, contribute to the perpetuation of irnpunity. This article has reviewed existing governlnent initiarives and programs and has servedas a forum for different government organizationsinvolved in the protection and care of child witnesses to identify factors contributing to the perpetuation of irnpunity and to recornrnendsolutions therefor. As in the rnain researchon Impunity by the Ateneo Human Rights Center, the article h:rs validated the Center's flndings that the rnost effective tools ernployedby the accusedwho are law enforcers, governlnent officials and rnembersof the rnilitary are the creertionof an intirnidating environlnent, in tl-ris case,againstchild witnessesand their farnilies; ancl tire employment of delaying tactics to clefeatthe enclsof the crirninal justice system to apprehend and punish the guilry within the soonest possible time. Tl-re recommendationsoffered involve reforms at all levels, frorn rninor adrninistrative improvements to rnajor structural and legislative changes. It will require a concerted ancl coordinated effort frorn all parties ir-rvolved to properly implement the protection and care of chlld witnesses.

1d.

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The celebrated"saranggola Case" is one example worth mentioning. It involves the killing of a young boy by a ranking police officer. The boy climbed the roof of the police's house in order to fly his kite. th" poli." caught and siolded the boy, and shot him while he was clirnbing down the roof. Although several neighbors witnessedthe shooting, no one came out to testify against the police becausehe was known to be ,rioie.rt and was a drunkard in the neighborhood. Only one witness, an 11-yearold boy, was bold enough to volunreer himself as a witness against the police. The child, with the full support of his parents anclwith the backing of an NGO, was placed under the WPSBP. Mararhon hearings were set and conducted by Judge Diosdado Peralta of Quezon City. Within four months after the incident and with the lone testimony of the child witness, the accusedwas convicted for the murder of the young boy.36 support aucl services, caseis illustrative of how a child witness, given all the necessary The Saranggola justice. Hopefully, to including rhe beneiit of a speedytrial, is able to bring a perpetrator of a violent crime there will be more caseslike this, where children can properly testify without worrying about their lives, their caseproves that it is possible for chlld wilnesses to be adequarcly families and their future. The Saranggola protected. It also offers hope that in the future, impunity may yet become a less significant problem confronting the Philippine criminal justice system.

t" Aguinaldo, supranote 4.

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A CnrrrcerLoox ATTHE EsrenusuMENT or TRUIHCounrssroxs

ReaA. Chiongson'r' On March 18, 1986,PresidentCorazonAquino by virtue of Executive Order No. B createcl extrathe PresidentialCommittee on Human Rights to investigate cornplaints of disappearances, (salvaging), klllings violations of rlassacres, torture, harnletting, food and blockages other ludicial hurnan rights, past or present, comrnitted by officers or agentsof the national governrnent or persons acting under their orders' This Cornrnittee corning on the l-reels of the transition from the Mar-cos regime to democracy was tasked to report its finclings to the President and make thern public and to recommend actions to the new governrnent for compensation of victirns and punishrnent of perpetrators.2 The Committee began docurnenting human rights violations cornmitted during the Marcos regime. As an agency of the newly installed dernocratic government, it was but appropriate for it to iook back and investigate. Despite its mandate, this "truth-seeking and investigating" mechanisrn, which would have helped the Aquino government anc{the nation as a whole deal with the past, never issued a final report. All the membersof the Cornrnission resignedto protest the Janualy 22, 1987 "Mendiola Massacre"where the military opened fire or-rpeasantsrnarching to Malacanang to seek an audience with the President. A secondopportunity for an official investigationof the pastcarneon May 5, 1987, when the President,pursuant to the 1987 Constitution, issuecl Executive Order 163 declaring the establishrnentof the Cornrnission on Human Rights (Cornrnission) and transferring the powers zrnd functions of the Presidential Con-rrnitteeon Hurnan Righm to the Comrnission.l However, very lirnited documentation and investigation were done by the Cornrnission on violations during the Marcos regirne. Thus, until now, there is a continuing clarnor to look into the past once more, investigate the violations, punish the perpetratorsand addressthe cultule of irnpunity that pervadesup to the present. Policy makers,NCOs, legislators and the acaclemic community have been consideringthe establishrnentof a truth commission as a way of dealing with the past. However, a caveat seerns to be that in a list of mechanisms p:rstviolation of human rights, truth that can be usedto address commissions are "fast becorninga staplein the transitionaljustice rnenu of options."{ This popularity policy makerson the cornplexities should not b1incl of setting up a truth commission. This article seeksto focuson two rnajor issues concerning rruth commissions in the hope that an elucidation on these rnatterswould assistin the formul:rtion of inforrned policy decisions. It seeks to contrastthe use of truth commissions as an option vis-i-vis ludicial tribr-rnals. It also looks into the State'sobiigation to investigateand prosecute and its relation to the question of arnnesry5.
a'The writer wishes to thank Patrick Hocnig, Mark Freernan,Yrxr-Kyeong Kwon, Christian Courtis ancl the interns of the Ater-reoHutlan Rights Center frlr their invalLrableassistance in the conlpletion tlf this article. I ExecutiveOrclerNo. B, $ 1 and 4(a). ' Id., $ 4( a) . r ExecutiveOrder No. 163, $ 4. B. HRvNEn, UNspER<RnlETRUTHS:CoNTRoNINC SrATE TTRRoRAND ArRocrry (2001) ' PRtscrLL,c The FirscCasuaLtlof Truthl , Tus NartoN Maca,ztNt, April fireleinafter H,a,vNrn] as circdin ReeclBrocly,"/usrice; 30, 2001, at 3 <http'//www.thirclwollcltraveller.corn/jtrstice/jrrstice_First'Z'ZOcasualty.html> [hereinaftcr Bt..txiy]. 5 In tl'risl.rrl'rer, tl're tenr arilnesty is useclto refcr to both amnestiesancl paldons. It is also trsedinterchangeably prosecutions in most transitionaljustice articles. Accuratcly, amnesties f<rrecl<lse for statecl crimes,often in ()n the other hancl, are givcn after refcrence ttr crimes or conrluct that took place before a stated clate. Parclons, convictitur, tl-rtrs, releasingconvictec'liruman rights ,rffenllels fr,lrn serving their sentences. (SrEtNan, infi'a note 18 . at 10911, n. 12) .

What are Truth Cornmissions? Truth commissionsrefer to a wide variety of bodies set up to investigate a pasr hisrory of human rights violations.6 It does not concentrate on a specific event in the past but attempm to paint an overall picture.? They are usually establishedirnmediately after transition when violarions are still fresh in the peoples' memory and therefore, they avoid sinking into collective amnesia abour the past. Truth commissionsare generally set up to seek out the truth: what happened, when and where did what happen, who were the perpetratorsand who were the victims. It provides the space for survivors and perpetratorsof violence to engagein "truth-telling." Truth commissions are mandated to give a report of these findings and to confront the public with this truth.s By virtue of this report, they officially establishthe truth about the past,emaking it difficult to deny that human rights atrocities were committed and by whom. They also make it possiblefor the narion to officially acknowledge the past violations. Government admits its wrongdoing and the society acceprsirs involvement.lo Aside from confronting past violations, some truth commissionsare expected to be forwardlooking. Part of their mandate includes drawing lessonsfrom the past and providing recommendationsfor preventing the abuses from occurring again. Truth commissionsbecome part of rebuilding the rifts in society and facilitating reconciliation.

Prosecution versusTruth Commission The usual way of confronting a violation is through prosecutionsand trials. Powerful reasonsexist in resorting to them where they are politically possible.Trials convey the message that no group, including public officials and the armed forces, is above the law and that the new government will not tolerate such behavior. They enable the victims to establish their dignity as holders of legal rights and exact punishment and reparation from the guiltyrt. Truth commissionssimply do not adequatelyaddressthe gravity of many crimes. However, they offer an alternative or complementary mechanism for dealing with grossviolation of human rights in the past. It is simply not practical to expect the criminal jusrrce sysremro processthousands

6 Angelika schlunk, Truth andReconciliation commissions, at 2 (accessed Nov. 30, 2001) <http://www.nsulaw.nova.edufstudent/organizations/lLSAJournal/4-2/Schlunk%ZO4.Z.htm> [hereinafter Schlunkl. 7 PriscillaHayner, FifteenTruth Commissions-1974 to 1994:A Comparaciue Study in GeNgnel CoNSIDERATIoNS (Neil J. Kritz,ED.,1994) as citedinSchlunk, supranote 5, at 2 (Priscilla Hayneridendfiedfour primary constituting elements to definea truth commission. a truth cornmission focuses on the past. Seconcl, it .First, doesnot concentrate clna specific event in the pastbut attempts ro paintsan overallpictureof certainhuman rightsviolationsover a periodof time. Third, it exists for a pre-determined periodof time. Lastly,it is vested with certainauthority). I Id., atZ. to Forget: Isszes [o Consider when Esnblishing Snuctures ' BrandonHarnber,Remembering for Dealingwith thePast, in Pasr IMpERrEct: (Brandon DEelntc wtrH THEPRsr n NonrHEnN IRrr-RNo ANDSoctETtES lN TRANStTtoN Hamber, ed.,1998)(accessed Dec.21,2001)<htq.://w\vw.csvr.()rg.;a/ptrl.list/pul.srrc.htm> [hereinafrer Hamberl. toSchlunk, sup,r4 note 6, at 3. tt Brody,srrpn'4 note 4, at 4.

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of complaintslz. This is especiallytrue in a country where court dockets are already clogged with ordinary criminal and civil cases. As trials rely on individual testimony, they fail to investigate the broader picture. A court is not expected to give an account about the circumstancesof the historic, economic and political reasons for the past violation nor political influences which rnay have fostered the violence that rnade crimes such as disappearances, torture and masskilhngs possiblerl. It focusesmore on establishing individual guilt. On the other hand, truth commissionscan link testimonies and draw the over-all picture of abuses. They can identifi, the systematic nature of the atrocities and infiltrate the apparatusand structure of oppressionused in these violations.la Trials are more demanding and costly than truth commissions. Proof beyond reasonable doubt needsto be establishedto ascertainguilt.15 Criminal procedure requiresstrict adherence to technicalities. Expensesare required for additional ludges,prosecutors,public attorneys and court staff to addressthe huge number of trials to be undertaken. Furthermore, truth commissionscan allow victim-centered story-telling, unburdened by too much technicalities of procedure and evidence. As opposed to trials, they can provide a psychologicallysensitive environment for human rights victims. Finally, truth commissionscan lay the groundwork for reparationl6and compensation to the victims in a way that trials probably cannot.ri Their findlngs can be the preliminary basisfor the grant of individualized compensation to victims. Furthermore, they pave the way for official

It Graeme in Commission: SomeLessons ftrr Societies Simpson, South Africa'sTruth and Reconciliation Transition,at 16 (available at Centerfor the Studyof Violenceand Reconciliation, [hereinafter Johannesburg) Simpson]. 13 Schlunk,sup'rd note 6, at 3. raBrody,strp,r4 note !, at 4. t 5I d. . ar 2 . 16 provisions Reparations do not only referto monetary and medicaland mentalhealth benefitsto indiviclual (Simpson, victimsbut alsoincludecollectiveand often symbolic reparative measures supranoteI I , at 27). In reportto the Chile, President Aylwin when presenting the National Comrnission on Truth and Reconciliatit>n's nation publiclyapologized to the victimsand their farnilies on behalfof the state. In addition,alongwith a copyof the Cornmission's report,eachfarnilyreceived a letter signedby the president in which he forrnally (Srrategic apologized Choices in theDesign of Truth Commissdon: Design Faccors-lontinuation of Efforx (accessed Dec. 21, 2001) <hnp://www.truthcommission.org/factor.php?fid=8> [hereinafterStrategcChoices-lontinuacion of Efforxl. One of the rleasures implernented in response work wasto by the Aylwin governlnent to the Commission's establishment a "National Corporationfor Reparation which followedup work of the and Reconciliation" Cornmission and adrninistered reparations ancltheir families. Children of disappeared for the identifiedvictin-rs persons to could receive fundingfor their education.Medicaland mentalhealthbenefi$ weremadeavailable (Id.). victimsand relatives arebetter truth commissions Despite the fact that, compared to the traditionalcriminaljusticemechanisms, of reparationand redress, able to address the issue a numberof difficulties exist. Catering to a largenumber of is the primarychallenge.Victims may at tirnesbe victimsrequiringreparation with individualized needs resendulof the need to prove their qualificationsfor reparation. Different victims may requiredifferent for perpetrators in packages. wherethe Statesubstitutes Furthermore, reparations, reparation State-sponsored which haseffectively providingreparation to perpetrators to survivors orr iiccouotof the grantingof amnesty flow of fundingfrom the of any civil claimsagainst the latter entailsrnassive deniedvictims the possibility (Simpson, government supronote 11,at 27). t7Brody,silpranote at 3 4,

t29

acknowledgment of, and apology for, violations that can corollarily lead to learning from the past. They can offer recommendations to prevent future occurrencesof violations as well as provide proposals for reconciling society with its past. In the best of cases,truth commissionscan be complementary to the criminal justice system. For instance, its report, especiallywhen officially acknowledgedby the govemment, can be used by prosecutors as evidence to establish the pattem of abusesor the oppressive and intimidating political environment during the regime. In Argentinals and Chad, facts compiled by the truth commissions were later used by prosecutorsto try the perpetratorsle.

Amnesty and The Duty to Investigate and Prosecute A more important concern regarding truth commissionsis the accusation that it sacrifices justice for truth, dernocracyand/or reconciliation. This has been the most contentious issue, especiallyin the light of the establishment of the South African Truth and Reconciliation Commission (TRC), which granted conditional amnesty to perpetrators in exchange for truth. In this regard, the questions to be considered are: Does international law impose on States an affirmative duty to punish human rights violators so that a States' grant of amnesty amounts to a violation of international law? Does the relationship between truth commissionsand amnesty betray this dury? Are there exceptions to the States obligation to punish perpetrators? Are truth commissions created with an amnesty-for-truth, democracy or reconciliation provision incompatible with the State obligation to promote and protect human rights? Amnesty for Truth Despite the existence of the dury to investigate and prosecute,prosecutions are few and far between. In Argentina and Chile, where truth commissionswere first established,human rights abuses consist of disappearances which made the exposition of the truth a priority.2o Truth commissions, therefore, evolved becausehuman rights violations consist of clandestine and deniable operationswhere one of the only ways in which victims could obtain the truth was if perpetrators not afraid of prosecution would come forward and make full disclosureas regardsthe crimes that they committed. In South Africa, the incentive to disclosethe truth was conditional amnesty-- an amnesty arrangement with a parallel obligation to disclose the systematic nature of the crimes perpetrated. The TRC fused the truth recovery and reparative processwith the grant of amnesty. This is without precedent among similar initiatives.2r This has been characterizedby some writers, albeit crudely, as a sacrifice ofjustice in favor of truth. Disclosure of the truth has been further given importance in the South African experience where inherited institutions were engaged in an "organizational culture of clandestine, unaccountable and covert activity which has been fosteredby the myriad of legislative measuresthat actively tuThe court explicitly relied on NancaMas, the report of the Argentine National Commissionon Disappeared (CONADEP), asevidenceof pattem of abduction,torture and murder though it addedthat the Persons evidence it had hearddirectlywassufficientto establish the patternof ourrage on which its verdict wasbased. (Ronald Dworkin, Invoducaonb NuncaMas, in NUNCAMes (REponr oF THEARGENTINE CovvtsstoN oF THE DtsRppERnro) xi ( 1986) [hereinafterDworkin], in HrNnv J. StstNsRe,NoPHU-tp ArcroN, INTERNATIoNAL HuvaN Rtcnrs n CoNrexr: LAws, PoLITrcs,MoRar-s 1096 ( 1996) [hereinafterSrgnrn]). t' Brody,srpranote (, at 4. 20 Brody,supranote 4 , at 2-3. tt Simpscln, supr4 note 12,at 3.

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preservedsecrecyand governmental privilege in the name of state security." The absenceof disclosurewould impede the processof building transparencyinto these institutions.22 Arnnestyfor Democracy Often, fears of destabilization are brandished by the new government to defer or refuse prosecutionz3 and/or to grant amnesty. This is more reflective of the political reality. The extent of dominance or power of the perpetratorsafter the transition dictates whether investigation and prosecution is in order. Where the military still enjoys political dominance in a fragile democracy, the newly installed governments had repeatedly engagedthemselvesin political compromisesto preservethe statusquo. Consequently, in some cases,truth commissionsoperate within the context of a prior grant of self-amnestyby the previous regime, such as in Argentina and Chile or within a situation of conditional amnesty as in South Africa. Thus, even on the basisof their findings, prosecution remains a difficult task. In Argentina, the previous regime enacted a law which granted immunity from prosecution to every member of the armed forcesfor crirnescommitted between May 23,1973 and June 17, 1983 and a government decree that ordered the destruction of documents relating to military repression. PresidentRaul Alfonsin and his newly elected government, therefore, inherited a full-blown amnesty. The new Congress,however, repealedthe grant of amnesty.2a The National Commission on DisappearedPersons(CONADEP) was establishedand a report of its findings was published. Thereafter, Law 23.049 was enacted which moved against any member of the military who acted with "decision-making" capacity. Middle and low level officers were exempted from prosecution unless the acts committed were "atrocious" or aberrant.z5 Prosecutionswere carried out and some convictionswere obtained. When the new government, however, started indicting rniddle and low level officers, miiitary unrest became apparent and threats of a coup surfaced. Forced to yield to rising pressure from the military ranks, in 1986, the new government passeda law that imposed severetime lirnits on the prosecution of military officers. In 1987, the "Law of Due Obedience" was enacted whlch exernpted low and middle ranking officers from prosecution under the assumption that they only folioived orders.26 These later paved the way for the pardons issuedby President Menem to all but the five previously convicted commanders.2T In Chile, the Pinochet regime passed an amnesty law in 1978 before relinquishing power to the incoming government of President Patricio Aylwin. General Augusto Pinochet remained the head of the sufficiently powerful armed forces after transition.2s A Chilean National Commission on Truth and Reconciliation (Rettig Commission) though was established,to officially investigate,
22 Id ., a t 4. 2i Brody, saprdnote !, at4. zaStrategic Choicesin the Designof Truth Commisslon: Design Factors-Amnesty (accessedNov. 1, 2001) <http://www.trtrthcommission.or5ffactor.php?fid=6> [hereinafter StrategicChoices-Amnesty]. 25 Larv 23.049 of February 14,1984 prclvided that any member of the military who acted "without decisitrnmaking capacity" would be presumedjustifiably to have regardedall the orclershe received as legitimate orders, except thai this presurnptkrn wt'ruldnot hold if the acts he cornmitted were "atrocit'rus"or "aberrant". It was widelv understood that abduction was not atrocious but torture, rape, murder and robbery were atrocities. lt further stated that all prosecutionsof the rnilitary for alleged crimes committed under the cover of a war against subversives were to be tried by the Supreme Council of the Armed Forcesbut subject to automatic review by the civilian FederalChamber of Appeal. (Dworkin, srrpranore 18, at 1094-1095). lo Id. t7 An'eh Neier, Whar ShouldbeDone about theGuihy? , in SIEINER,srrpr4note 18, at 1097. 26 Srraregic Choices-AmnestJ, supranote 24; Simpson, silpra nore 17, at 2.
tal lJl

record and acknowledge human rights abuseunder military rule. However, as a result of the continued influence and strength of the military, the new governrnent was effectively unable, save in a few exceptional cases,to bring chargesagainst those who had been responsiblefor assassinations, torture and disappearances under General Pinochet's rule. Those responsiblefor these abuses remained unpunished.2e In both these countries, amnestieswere much more the result of powerful and interventionist rnilitaries, which refusedto allow a real transition to democracy or which threatened new dernocracies with coups, unlessconditions were met. These amnestieswere in large part a product of coercion by force.l0To preservethe existing democracy, the newly installed governments catered to the military and abstainedfrom prosecution. The South African TRC, on the other hand, was a scenario of doing away with prosecutions to achieve a peaceful transition. It was an explicit political cornprornisebetween the broad amnesty that apartheid leaderssought and the prosecutionsproposedby the African National Congresswhich would have antagonizeda peaceful transition of power. During the negotiations, it was alreadyforeseenby the new government that it would have to depend on the former regime's civil service institutions, including agenciesof State security and criminal justice. Many of these institutions were central to sustaining the apartheid system.rl On the other hand, many of those who will corne to power were themselvesactively involved in armed resistanceto Apartheid, which also entailed violation of hurnan rights.3z Thus, the ingenious solution was to keep the prosecution option open but to grant individual amnestiesfor those who came forward and told the truth about their crirnes.l3 Amnest^y for reconciliation The post-amble to the new South African Constitution statesthat: "ln order to advance...reconciliation and reconstruction, amnesty shall be granted in respect of acts, ornissions and offensesassociated with political obiectives and comrnitted in the course of the conflicts of the past." Proponents for the TRC argue that the South African Constitution explicitly made a choice in favor of ubuncu(reconciliation),r4 thus sacrificing some prosecutions through the grant of conditional amnesty to securethe truth. This is because,in the words of Archbishop Turu, "Reconciliation is only possibleif we build on the foundation of rrurh."35 The establishment of the truth is the first step to reconciliation. It is impossible ro expect reconciliation if part of the population refusesto accept the past existence of grave human rights violations and the other part has never received any acknowledgment, compensation and apology for its suffering.Furthertnore, it is difficult to promote personal healing in rhe absenceof knowledge about the circurnstances of abuse.36
" Sirnpson,sripranote 12, at I-2. to Id., a t 1 8. 'r Sirnpson, srrprdnote 17, at 4. \z Id. " Blocly, sr,pranote 4, at 3. e.g., AZAPO v. the Presidentof the Republic of South Africa, 1996(4) SALR 637 (CC). 'a See, It Srracegic Choices in theDesignof Trurh Commissions: Background Cases-South A/rica (accessed Nov. 1, 2001) <http://www.truthcomrnission.org/commission.php?cid=3&case.x=58&case.y={> [hereinafter Straregtc Choices-Sou th Africa]. "'Hamber, silprcin()te 8, at 2.
tJ!

In further emphasizingthe importance of truth recovery in the reconciliation process, Graeme Simpson statesthat the restorative enterprise of building reconciliation is not only about uneatthing the truth to facilitate personal and individual healing. Neither is it sirnply about prosecutions. It is also about learning the truth to be able to transform and rebuild public confidence in State institutions and personnel inherited from a previous regirne. Disclosure of the truth is important to strip these institutions of the layersof secrecythat it developed through the years.rT The crucial question though is whether or not the crirnes comrnitted during the apartheid regime can be the subject of amnesty. The international cornmunity has universally condemned apartheid. Its worst forms of manifestation consist of crimes against humanity and genocide. By reasonalone of the gravity of these offensesand the non-derogable narure of the right to life, grants of amnesty in this context should not be an option. Building a Framework for Arnnesty In the International Covenant on Civil and Political Rights (Article2) , rhe American Convention on Human Rights (Articlel) and the European Convention on Hurnan Rights and Fundamental Freedoms(Articlel ), States undertook the obligation ro respecrand ensure to all individuals their human rights, including the right to life, the right against rorrure and the right to liberty. On account of these treaties, the State is required to investigate every situation involving a violation of the rights protected. If a State allows the violation to go unpunished and the vicrirn's full enjoyment of such rights is not restored,it has failed to comply with its duty to ensure the free and full exerciseof those rights.38Furthermore, States are also obligated by rreaties to provide an effective remedy to victims even if the violation was committed by personsacting in an official capacity.l" Over and above treaties,when violations consist of crirnes against humanity and genocide, they rise to the level of jus cogens and constitu te obligatioerga omnes.4o It is also the sarne with the right against torture, arbitrary and extra-legal executions and enforced disappearances.The State is, therefore, obligated to investigate and prosecutethese violations, as it is the obligation of every one to do so. It is anathema to suggestthat amnesty could be granted with respect to such crimes.4l This is further strengthened by prohibitions againsramnesriesregarding grave violations. The Declaration on the Protection of all Personsfrom Enforced Disappearanceaz states that perpetratorsof enforced disappearances shall not benefit from any special amnesty law. The Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Sumrnary Executions emphasizedthat "under no circumstances...shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal,summary or arbitrary executions.43In fact, the Inter-American Human Rights systemhas stricken down blanket amnesries,declaring thern to be in contravention of the duty to respectand ensurehuman rights. Reconsvuction, reconciliation and theChangingNature of '? GraemeSimpson,RebuildingFractwedSocieries: Violence-SomeSelf-critical Insights Post-Apartheid SouthAfrica(A PaperCommissioned by rheI,JNDP from , 2000) (accessed Nov. l, 2001) <http://www.wits.ac.za/csvr/papers/papunclp.htm>. Rodriquez Case, 4 Inrer.ArnCt. H.R. (ser.C), ql 176 ( 1988). " Velas.luez INTERNATToNAL CovENANToN Ctvll ANDPoLtrtcALRrcHTS, Art. 2; AvcRICANCoNVENTtoN " oN Hurr,reN Rtcnrs, Arr. 26; EuRopra.N CoNveNrtoNoN HUMANRtcnrs ANDFuNDAMENTAL FREEDovs. Art. 13. a"simpson, sr,p'r4 n()te12,at 13. a' Simpson, sr,prd note 12,at 13. q l l B. 3 9 9 2 ), " U. N. C A O R R e s .4 7 l 1 3 (1 a] Prirrciples on theEffectiue Prevention and Inuestigations of Exva'Legal, Summary and ArbitraryExeczcions, U.N. g 19. (1 9 8 9 )e n d o rs e d i n U .N .GA OR (1989), E S CO R\9 8 9 1 6 5 441162

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ln 1997, the Inter-American Commission on Human Rights declared that Uruguay's Law No. 15,848 (Caducity Law), which blocked any State action to seek punishment of crimes cornmitted prior to March 1, 1985 by military and police personnelas incornpatible with Articles 1, 8 ancl 25 of the American Convention on Human Rights. This is despite the fact that such general amnesty law went through legislatureand was upheld by the Supreme Court and by a plebiscite.aa The Commission held that the law eliminated any judicial possibility of a seriousand irnpartial investigation to establish the crimes and to identify their authors. No national investigatory commission was ever set up nor was there any official report on the very grave hurnan rights violations committed during the previous de facto governrlent. Furthermore, on March 14,2001, the Inter-Arnerican Court of Human Rights in the Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru) held that the Peruvian self-amnestylaws are "manifestly incompatible" with the aims and spirit of the Arnerican Convention on Human Rights becausethey "lead to the defenselessness of victims and perpetuate impunity."45 It decided that Peru breachedArticle 4 of the American Conventiona6 through the enactment and enforcement of Arnnesty Laws No. 26479 and 26492 which exonerated frorn responsibility mernbersof the arrny, police force and civilians who had violated human rights or taken part in such violations from 1980 to 1995.47 It further held that Peru is under obligation to investigate, to make investigations known to the public and to punish those responsiblefor the viotations.aE These standards,however, must be considered in the light of political realities earlier highlighted in this paper. Thus, the following guidelines would be a more realistic alnnesty framework within the context of transitional jusrice: 1. Blanket amnestiesand self-arnnesties are incornpatible with the duty to promote and protect human rights, in particular with the duty to investigate and prosecutehuman rights violations. 2. There can be no full amnesty for grossviolations of hurnan rights, such as those qualifying as crimes againsthumanity and genocide. 3. It is "generally-acceptedin international law that'a nation does not have to commit political suicide' in fulfilling its obligation to punish those responsiblefor grossviolations of hurnan rights. If the duty to punish certain crimes under international law would plunge a country into violence or destroy an embryonic transition to democracy, then this obligation should be ternpered by other considerations."4e Thus, the govemment may decide that perpetratorsshould benefit from rneasures that would exempt them or limit the extent of their punishrnent. However, its obligations to investigate, to prosecute,to hold perpetratorsformally accountable and to grant compensarion remain.50 In this regard, conditional pardons (post-conviction amnesties)are preferable than general amnesttes.

No. 29/92(1993), in SrEtNrR, supr'.r rlore18,at 1099. '* Inter-Am.C.H.R. 154, Report a5 ( ac c es s ecl De c .1 8 ,2 0 0 1 )< h ttp ://u ,v v * .i rsrl .,,rg/i l i h/i 11r.111111--fl l i l r04 >. a"Article states that "Everyperson hasthe right to havehis life respectecl. This right shallhe protecte.l 1,y 4 law...No one shallbe arbitrarilydeprivetl of his life." a7 (accessed Dec.18,2001)<http://u,',v,,v.asil.org/ilib/ilil)041(r.hrrn"tJ2>. aFlnter-American Courr of Human Righrs: BarriosAbosCase(Chumbipuma Aguineet. aI. ot.Peru) (March 14, 200,I)(accessed Dec.18,2001)<htt1.r://rvrvrv.c,rrtciclh.or.c:r/plr.:rrs:r-ing/c1.70l-rrrs.lrtlnl>. a' Dianne Orentlicher, Settling 100 Accounts: The Dutl to Prosecuce Human Righrs of a PriorRegrme, Violarions in Simpson, YaleL.J.2537(1991)ascited srpranore 12,ar 27. 50 UN Special Rapportern onExtra-Judicialsummary or ArbitraryExecutions Reporr,UN Doc. ElCN.4ll994l7, ar saDrd note 18,at 1089. 157asciteclin SrptNEn,

In extreme situations, all govemments, at the very least, have an obligation to establish the rruth, ro have it publicly known and make it officially part of a narion's history. These obligations exist even when the situation makes prosecution impossibleat a particular time.5l where the evidence necessary to obtain convictions does not exist or has been deliberately 4. In cases valuing destroyedand truth may only obtained through the voluntary disclosureof perpetrators,52 truth to uncover the violations should be given priority to be able to extract an accurate account of the past. Conditional amnestiesshould be favored over blanket ones. Varying approachesto achieving justice other than prosecution, such as compensation to victims and their families, identification of perpetratorsand the like, should not be disregarded.5l In the discourse on amnesty, it should be emphasized that the general goal in addressing past violations is to combat impunity and to ensure that the culture of impunity does not continue. In balancing the interest of truth, democracy and/or reconciliation against justice, this caveat must be borne in mind: "Impunity for atrocious crimes of the recent past undermines the law's authority just when a society is poised to reassertthe supremacyof law. A Faustian pact with a brutal regime -a pact to allow impunity in exchange for the end of a dictatorship-raises the specter of perpetuating the very lawlessness that is meant to be ended."54For arnnestiesnot to impede the proper functioning of a truth commission and consequently, the implernentation of its recommendations, it must be used with caution lessit perpetuatesimpunity.

Truth Commissions asPart of a Process Truth commissions areonly part of a long term process for dealingwith the past. This process requirescomplex and multifold strategies where policy makersshould makeuseof a variety of policy optionsratherthan merelyfocuson truth commissions.55 Full socialand economicjustice,for justicebe its example, cannotbe solelythe mandate of a truth commission.to Nor can retrospective soleresponsibility.5T Truth commissions thoughcan beginthe process of learningfrom the pastand moving forwardwith the lessons from it. In considering whetheror not a truth commission is appropriate in the Philippinecontext, this article hasraisedsomeof the more pressing issues regardingits esnblishment. It is hoped that discussions herein can be helpful in facilitatinga meaningful discourse on the matter and consequently, in adoptingan appropriate action by policy makers.

a Policy Framework(availablewith the " Fin.r:Cachalia,Human Rights in Transitional Situations:Towarcls in Simpson, as cited supra note 18,at 21. Cenrrefor Applied LegalStudies, Johannesburg) ': S,mgsr-rn, sup'ra note 18, at 16. " l.rseZalaquett,BalancingEchicallmperatiues andPolicical Consnaints: The Dilemmaof New Demouacies C.,-r":r.rdng PastHumanRightsViolatioru, 43 HastingsL. J. 1425,l43Z (1992.)(referringto the Chilean t:q\enence of prioritizingtruth overjustice), in STEINER, sr.p4.4 note 18,at 1107. * asciced D,tane GrossHuman RightsAbuses: Punishment anclVictirn Compensation Orentlicher,Addressing :n S:*asup'ra note 18,at 1107. - SS}.wrL slrtra note 6, at 4. t note lZ, at28. SmEi".ru -strp'ta -;,r m b,

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The Ateneo Human RightsCenter

The Ateneo Human Rights Center (Center) was establishedin October 1986 as one of the first university-based institutions engagedin the promotion of peace,development and human rights in the Philippines. It is housed in the School of Law of the Ateneo de Manila University. The Center seeksto realizeits mandate through programswhich focus on the continuing formation of human rights advocdtes among lawyers,law students and grassroots leaders, the monitoring of the human rights situation in the Philippines and abroad, researchand publications, public education on peace, developmentand human rights, and legal assistance to indigent victims of human rights abuses. Thus, the Center assigns law studentsthrough the internship program to human rights organizations in the Philippines,conductstraining seminarsfor the benefit of government and non-government organizations and grassroots communities,publisheshuman rights legal treatise,and renderslegal assistance to indigent clients and grassroots communities. As varied as the Center's programs,its beneficiariesinclude urban poor communities,women, children, laborers,migrant workers, indigenouspeoples, asylumseekers, students, non-governmentalorganizations, and the generalpublic. As an institution of the Ateneo de Manila University, the Center has access to valuable resources of the university and the School of Law in the implementation of its programs. lolunteer law professors, alumni practitioners and law studentslend additional supporrto its activities. The Ateneo Hurnan Rights Center is located at the Ateneo Professional Schools, Rockwell Drive, Rockwell Center, Makati City, Philippines.