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Of the Philippines the Criminal Justice System Is Vol. 6, No. 1 February 2007 ISSN 1811 7023 special report the criminal justice system of the Philippines is rotten The meaning of article 2: Implementation of human rights All over the world extensive programmes are now taking place to educate people on human rights. As a result today there exists a vast number of persons and organisations firmly committed to human rights; more than at any other time in the history of humankind. Yet human rights continue to be monstrously violated. It is time for the global human rights movement to examine why it may not yet be achieving real improvement in the global human rights situation. One factor hindering honest examination is the belief that improvement of knowledge about human rights will by itself end human rights violations. This is a myth based on the corresponding belief that education is itself capable of improving things. In reality human rights can only be implemented through a system of justice. If this system is fundamentally flawed, no amount of knowledge—no amount of repetition of human rights concepts—will by itself correct its defects. Rather, these need to be studied and corrected by practical actions. Hence research and intimate knowledge of local issues must become an integral part of human rights education and related work. article 2 aims to do this by drawing attention to article 2 of the International Covenant on Civil and Political Rights, and make it a key concern of all partners in the global human rights community. This integral article deals with provision of adequate remedies for human rights violations by legislative, administrative and judicial means. It reads in part: 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority pro- vided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Sadly, article 2 is much neglected. One reason for this is that in the ‘developed world’ the existence of basically functioning judicial systems is taken for granted. Persons from those countries may be unable to grasp what it means to live in a society where ‘institutions of justice’ are in fact instruments to deny justice. And as these persons guide the global human rights movement, vital problems do not receive necessary attention. For people in many countries, international human rights discourse then loses relevance. Other difficulties also arise with article 2. One is the fear to meddle in the ‘internal affairs’ of sovereign countries. Governments are creating more and more many obstacles for those trying to go deep down to learn about the roots of problems. Thus, inadequate knowledge of actual situations may follow. A further and quite recent disturbance is the portrayal of national human rights institutions and their equivalents as surrogate agencies for dealing with article 2 related issues. Some state parties may agree to new national human rights institutions taking on this role because they know that by doing so they may avoid criticisms of a more fundamental nature. Thus after many years of work, the Asian Legal Resource Centre began publishing article 2 to draw attention to this vital provision in international law, and to raise awareness of the need to implement human rights standards and provide effective remedies at the local level in Asia. Relevant submissions by interested persons and organizations are welcome. Contents SPECIAL REPORT: THE CRIMINAL JUSTICE SYSTEM OF THE PHILIPPINES IS ROTTEN Foreword: The rotten criminal justice system of the Philippines must be cleaned out 2 Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong Introduction: The criminal justice system of the Philippines is rotten 4 Editorial board, article 2 The criminal justice system of the Philippines is rotten 7 Philippines Desk, Asian Human Rights Commission, Hong Kong Rotten to the core: Unaddressed killings, disappearances & torture in the Philippines 29 Getting away with murder 116 Asian Human Rights Commission, Hong Kong Six suggestions to improve the criminal justice system of the Philippines 126 Asian Legal Resource Centre, Hong Kong APPENDICES Appendix I: Statement of UN Special Rapporteur on extrajudicial killings after visit to the Philippines 128 Appendix II: The Melo Commission Report 135 Appendix III: Open letters to the Philippine authorities 160 Appendix IV: Witness Protection, Security & Benefit Act 182 Appendix V: Online petition—Stop the killings! 187 Appendix VI: Concluding observations of the UN Human Rights Committee on the Philippines 190 article 2 February 2007 Vol. 6, No. 1 1 Foreword: The rotten criminal justice system of the Philippines must be cleaned out Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong o the ordinary person in the Philippines, neither the police nor the prosecution and courts inspire any confidence. TWhile the country's elite is good at the use of sophisticated and elegant rhetoric on justice and democracy—sometimes couched in the jargon of the right, sometimes of the left—the ordinary person knows that it is far removed from reality. The fine words of the constitution, the bill of rights and various laws ostensibly introduced to protect the people are completely divorced from the crass reality of the absolutely inefficient, corrupt and careless policing, prosecuting and adjudicating systems. Within the last couple of years, the Asian Legal Resource Centre and Asian Human Rights Commission have gathered hundreds of stories that speak to this gap between fine words and reality. Over a hundred of them are contained in this report, “The criminal justice system of the Philippines is rotten” (article 2, vol. 6, no. 1, February 2006). The stories reveal a pattern of extreme cruelty and state complicity. Filipinos are being threatened, tortured, abducted, killed and destroyed with a brutality that no civilised state would permit. This cruel behaviour is permitted, and encouraged, because the country’s institutions for criminal justice are in fact so barbaric that together they bear no resemblance to any modern system of justice. Most in the Filipino elite will find such remarks offensive. They will respond that their laws are modern: many of them adapted from those of the United States and other longer- established jurisdictions; the constitution has assimilated modern international human rights jurisprudence. They will point out that the Philippines has ratified more international laws on human rights than other countries in Asia, and its government is outspoken on human rights in regional countries, such as 2 article 2 February 2007 Vol. 6, No. 1 Burma. But where are these laws found to be implemented effectively? How many Filipinos enjoy the rights promised to them under United Nations conventions? ultimately, Rights are made real not through the enactment of laws but their implementation. Implementation depends on institutions: “working police, prosecutors, courts. If these do not function at all, or other than as envisaged under the laws, then grand declarations of criminal justice rights remain meaningless and people’s lives are made miserable. is about In the Philippines, law-enforcement agencies are utterly corrupt and unscrupulous in their dealings with the public. If wellbeing rights on paper are ever to be given life there, the top priority ” must be to transform the country’s errant and self-serving policing system to one that will serve the people. The public prosecutors are closely associated with the role of the police. Prosecutors are integral in ensuring that criminal justice works with integrity and speed. What if they too are corrupt or deeply politicized? What if they are unable to challenge powerful and connected criminals? What if they are deliberately neglected so as to prevent them becoming a threat to persons at the highest levels of government who abuse their power? These are critical questions for people in the Philippines seeking to defend human rights and democracy there. Where policing and prosecuting are rotten, so too must be adjudicating. In fact, complaints about the courts are common among Filipinos. It is even difficult to find an ardent defender of the system among the legal profession or intellectuals. Citizens going to the courts in search of relief often find their suffering compounded. But to where else should they turn to obtain comfort and resolve their problems? Ultimately, working criminal justice is about wellbeing. While a lot of the talk about people’s wellbeing comes in the form of development jargon, it underestimates or altogether ignores the necessity for working courts, prosecutors and police. Where talk about development and social progress does not adequately address institutions for the rule of law and human rights it is empty talk: sweet rhetoric that will not alter the bitter reality. The task for people in the Philippines is to raise discussion on how to expurgate the country’s rotten criminal justice institutions in order to give meaning to discourse on human rights, democracy and development. This report is intended as a small contribution towards that end. article 2 February 2007 Vol. 6, No. 1 3 Introduction: The criminal justice system of the Philippines is rotten Editorial board, article 2 his special report, “The criminal justice system of the Philippines is rotten” (article 2, vol. 6, no. 1, February T2007), is the first published by the Asian Legal Resource Centre (ALRC) on the situation of criminal justice and wanton killings, disappearances, assault, arbitrary detention and torture by state officers or their agents in the Philippines.
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