PHILIPPINES: Council urged to ensure that justice is delivered concerning the Maguindanao Massacre

February 28, 2010

Language(s): English only

Thirteenth session, Agenda Item 4

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

PHILIPPINES: Council urged to ensure that justice is delivered concerning the Maguindanao Massacre

The Asian Legal Resource Centre (ALRC) wishes to bring to the attention of the Human Rights Council (HRC) the ongoing situation of impunity in the Philippines, illustrated by the failure by the government to take appropriate action in the widely-reported massacre of 57 persons including 30 journalists that took place in Ampatuan, Maguindanao province, Mindanao, on November 23, 2009. This is the single incident in which the largest number of journalists has ever been killed.

The massacre targeted a group that were travelling to file documents for the registration of Esmael Mangudadatu, challenging the incumbent governor, a member of the Ampatuan clan, in the race to be elected local governor. The party included numerous journalists accompanying Mangudadatu��s wife, as well as two human rights lawyers. They were halted by a group of armed men and executed.

The government of the Philippines�� elected local officials and its security forces were involved in perpetrating this atrocity, now known as the ��Maguindanao Massacre�� which represents the worst election-related violent incident in the country’s recent history. The ALRC urges the Council to react to the interventions made by several Special Procedures regarding the massacre and to urge the government of the Philippines to ensure that this event is effectively investigated, with those found responsible brought to trial and punished in accordance with international norms and standards.

A member of the Ampatuan family, Datu Andal Ampatuan Jr., was identified as the principal suspect in the massacre, and was arrested on November 26, 2009. On February 5, 2010, the Department of Justice (DoJ) indicted 197 individuals concerning the massacre. 15 of them were members of a powerful political clan, the Ampatuans; 62 were policemen; four were soldiers and the remainder included members of several militia forces. The list of those responsible, which includes powerful local officials and top police commanders, makes this a crucial test of the rule of law in the country, as previously State agents have typically enjoyed complete impunity concerning a wide range of human rights violations, including hundreds of alleged extra-judicial killings.

The list of those indicted is telling of the state of law enforcement and the rule of law in the Philippines. State agents function contrary to their lawful obligations to protect lives, and the liberty and property of the country��s citizens. Instead, they serve the interests of the local political elite. The massacre also shines a light on the dangers associated with the government’s policy to recruit and train civilians as a ��force multiplier�� to counter insurgencies, as these have become private armies for local politicians.

The police and the military should also be held to account for failing to protect the lives of the victims. Both Police Chief Superintendent Faisal Ampao Umpa, the regional director of the Philippine National Police (PNP) in the Autonomous Region of Muslim Mindanao (ARMM) and that by Colonel Medardo Geslani, commanding officer of the 601st Brigade of the Philippine Army (PA), denied requests for security escorts by the Mangudadatus and the journalists in their convoy.

Geslani’s senior officer, Major General Alfredo Cayton, commanding General of the Army’s 6th Infantry Division, insisted that it was safe for the convoy to travel when justifying the military��s refusal to provide security. This illustrates the absence of even a rudimentary protection mechanism in the country, and even suggests complicity at the highest levels. While senior police and military officials were refusing to provide protection, their men were directly participating in the pre-meditated executions. It is essential for full and impartial investigations into this massacre to establish responsibility through the chain of command. Given the authorities in the Philippines clearly poor track record in conducting any such investigations and prosecutions, there is a clear role for the international community to play.

Investigations will likely face numerous hurdles, as the policemen involved also attempted to cover up the massacre by deliberately failing to record details concerning the massacre in their daily log, according to the findings of a prosecution panel. The exhumation and recovery of bodies was reportedly also carried out in ways that have destroyed vital forensic evidence.

The government��s response to the massacre was, in initially, one that further threatened fundamental human rights rather than ensured the delivery of justice. The declaration by the President of the Proclamation, No. 1959, placing the province’s 36 Municipalities (except the areas previously identified as having been occupied by Moro rebels) under Martial Law and suspending habeas corpus, resulted in numerous arbitrary arrests and detention, illegal searches of persons and properties, many of whom had nothing to do with the massacre.

Proclamation 1959 has risked making any legal action taken against those accused of being involved in rebellion, as is the case with those charged in the Maguindanao massacre, including evidence collected during the period of martial law, legally and procedurally flawed. This has placed the prosecution of those responsible in doubt.

Added to this, there is legal ambiguity concerning the crime of rebellion. For example, in a case involving the so-called “Tagaytay Five,” the Regional Trial Court (RTC) in Tagaytay City ruled, in August 2008, that the prosecutors failed to prove that the crime of rebellion existed at all or had been committed, resulting in their case being dismissed and their release from jail. The court held that: “by its nature, rebellion is a crime of the masses or multitudes involving crowd actions done in furtherance of a political end.” In order for the crime to legally exist “both the purpose and overt acts are essential components of [the] one crime, without either of them the crime legally does not exist.”

The act of taking up arms and the presence of “heavily armed groups” in order “to resist government troops” from affecting arrests or conducting searches – the arguments used as the justification by President Gloria Macapagal-Arroyo in declaring martial law – did not meet the fundamental elements that constitute the crime of rebellion. So, legally, the crime never occurred and prosecution in court is inappropriate. The Ampatuans, a political clan accused of involvement in the November 23, 2009 Maguindanao massacre, were not taking up arms to grab power from the government. They, and their hundreds of supporters, are the people in power. The crime of rebellion was concocted by the government to justify the constitutionality of martial rule.

Grabbing power from the government was not the Ampatuan’s political end, nor was it the purpose of their heavily armed supporters. They are, as shown by their overt acts, either resisting arrest or obstructing the security forces from arresting and conducting searches as part of a police investigation. This is thus a purely criminal matter that should be dealt with accordingly by the police. Thus, the prosecution of the accused in the rebellion case was instead a political move by the Department of Justice, one of the agencies that openly defended martial law, to justify Proclamation 1959. This was never truly about prosecution of the crime of rebellion or for violations of criminal law.

Although Proclamation No. 1959 has now been lifted, Proclamation No. 1946, which was issued on 24 November 2009, placing the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato under a state of emergency, remains in effect. The military establishment has recommended prolonging the state of emergency until the winners of the May 2010 elections assume office in June 2010. However, under the state of emergency, human rights have been suspended and violations of rights are taking place on a daily basis. The ALRC urges the government of the Philippines to immediately lift this state of emergency and ensure the safety of its citizens through legal means that respect human rights.

The ALRC also urges the government of the Philippines to dismantle all non-State armed groups provided with law-enforcement powers, as the use of such groups has enabled local politician to maintain private armies, leading to numerous incidents of violence, including the massacre in question here. Specifically, the government must dismantle the police’ Civilian Volunteer Organization (CVOs) and the army’s Civilian Auxiliary Force Geographical Units (CAFGU). Their continuing existence to this day, despite repeated local and international demands to have them dismantled, is an indicator of the government’s tolerance of vigilantism, for which it must make amends.

The government should also without further delay implement the recommendations made in the Melo Commission Report in January 22, 2007, notably that calling for the enactment of a ��Special law for strict chain-of-command responsibility.�� The government’s failure to do so despite the passage of three years has contributed to the continuing impunity with which the police and military establishment conduct widespread human rights violations. The Maguindanao Massacre should act as a test case to assist in the establishment mechanisms and laws to ensure that such atrocities cannot occur again. The best way to ensure future protection of human rights is to tackle impunity in the present.

The government should also review the existing processes through which police officials are selected and appointed to head provincial and town police commands. Presently, local executives have had control over the appointment and transfer of police commanders in their localities, leading to the police being heavily politicised.

There remain significant concerns that as international turns away from the Philippines in the aftermath of the massacre, that the early steps taken by the government, including the arrest and indictment of 197 suspects in the massacre, will not progress into successful prosecutions and the effective delivery of justice. It is imperative for the future of human rights that justice be done and be seen to be done concerning this high-profile case. Anything less than fair trials establishing and punishing all of those responsible for the massacre, regardless of their rank in the establishment, will have a seriously deleterious impact on the struggle to establish human rights and combat impunity, as well as the freedoms of expression and the media, in the Philippines.

The Human Rights Council is therefore urged to take all measures necessary to ensure that credible, impartial investigations are conducted, prosecutions are carried out in line with international standards and those responsible receive adequate punishment and the relatives of those killed in the Maguindanao Massacre receive adequate compensation. This is important not only as concerns the case itself, but also for the prospect of improvements to the protection of human rights in the Philippines in general for years to come.

About ALRC

The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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