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FEATURES/MeloCommissionReport-6/Jan. 22, 2007
INDEPENDENT COMMISSION Created under Administrative Order No. 157 (s. 2006) R E P O R T x x x V. RECOMMENDATIONS The Commission's recommendations, which mostly fall within the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by the Economic and Social Council of the United Nations on May 24, 1989, are as follows: A. Political will With respect to the recent killing of Abra Representative Luis Bersamin Jr., the President vowed that the perpetrators, mastermind, and all, will be brought to justice. As regards the communist insurgency, the President has ordered the armed forces to crush it within two years. In the field of extralegal killings, it is urged that the President reiterate in the strongest possible manner her expressions or pronouncements of determination and firm resolve to stop the same. If extrajudicial executions are to be stopped, the political will to do what is right however great the cost must pervade all levels of government so that our beloved country can move towards the greater ideals of democracy and justice; it must start with the President who must pursue the prevention and prosecution of extrajudicial killings with urgency and fervor. As recommended by Amnesty International, the Government must consistently and at all levels condemn political killings. The President and all the departments of the Government should make clear to all members of the police and military forces that extrajudicial executions will not be countenanced under any circumstances. B. Investigation To ensure that all reports and complaints of extrajudicial killings against the military are investigated promptly, impartially, and effectively, the investigation must be conducted by a body or agency independent from the armed forces. This civilian investigative agency should be independent of, and not under the command, control, or influence of the Armed Forces, and it must have control of its own budget. The personnel must be civilian agents well trained in law enforcement and investigative work and equipped with the necessary array of technical devices to enhance their investigative capabilities. They must be authorized to execute warrants and make arrests. They must be provided with an adequate forensic laboratory and other technical services. In the United States, the Army's professional investigative agency is called the Criminal Investigation Division; the Air Force's is called the Office of Special Investigation; the Navy and Marines are serviced by the Naval Criminal Investigation Service; and for the Coast Guard, the organization is called the Coast Guard Investigation Service. Our armed forces is not so big as to require separate agencies for its services. A single investigating body will be enough. The President should recommend legislation to Congress for the creation of a similar investigation agency to look into and prosecute complaints against military personnel. On the part of the PNP, the law that created the National Police Commission (Rep. Act No. 6995) should be amended and strengthened to ensure the thorough and impartial investigation of erring police officers by personnel not under the control of the PNP command. In the conduct of the investigation of extrajudicial killing of activists, or of any case for that matter, the PNP must be enjoined to ensure that the evidence must be strong and sufficient for conviction. The present policy of the PNP – as confirmed by Police Deputy Director General Avelino Razon Jr. in his testimony before the Commission – to consider their job done or finished from the moment they have filed the complaint with the office of the public prosecutor has inevitably encouraged sloppy and shoddy investigations; it is not infrequent that police investigators, especially in remote areas, would file a case with the office of the public prosecutor, no matter how inadequate the evidence is, just so they can say that the case has been solved and if it is later dismissed for insufficiency of evidence they blame the prosecutor for incompetence or for being corrupt. The office of the public prosecutor in each province or city must assign prosecutors to review all complaints filed by the police to evaluate the sufficiency of evidence not only to determine the existence of probable cause but also for conviction. If the reviewing prosecutor is of the opinion that the evidence is insufficient, then he must reject the complaint and return it to the police, indicating what additional evidence is needed. Once a complaint is accepted after such review, it means that there is enough evidence for a successful prosecution. This will avoid finger pointing on who is to blame for the dismissal of a case or acquittal of the accused and, more importantly, compel the police to do a thorough job in the investigation of every case. If after the lapse of six (6) months from the commission of the extrajudicial killing of an activist or media personality the investigation by PNP has not yielded any positive result, the police personnel in charge must request the NBI to take over the investigation. For this purpose, the NBI must be provided with the necessary funds and allowed to hire additional personnel if necessary. C. Prosecution To ensure that those responsible for the extrajudicial execution of activists and media people are brought to justice and that the prosecution is handled with efficiency and dispatch, the Department of Justice (DOJ) must create a special team of competent and well-trained prosecutors to handle the trial of said cases. Also, the DOJ should request the Supreme Court to designate special courts to hear and try said cases and to require the courts so designated to give the highest priority to them, conduct daily hearings, and resolve them within six (6) months. With respect to pending cases the prosecution of which has not been moving for lack of judges or because of the fault or negligence of the public prosecutor, the Office of the Chief State Prosecutor should make representations with the Office of the Court Administrator to detail judges to the vacant salas, or to designate special prosecutors to take over the prosecution, as the case may be. As regards killings in areas where witnesses are afraid to testify because of fear of reprisal, steps should be taken to transfer the venue to Manila. D. Protection of witnesses As part of the need to ensure the successful prosecution of those responsible for extrajudicial killings, the present Witness Protection Program created under Republic Act. No. 6981 should be enhanced and made more effective so as to guarantee the safety of witnesses to the killings. The existing program is suffering from lack of funds and necessary manpower. The Government must give the highest priority to the improvement, strengthening, and funding of said program, preferably patterned after the U.S. federal witness protection program. The program should also be made available to persons who have received death threats or who are otherwise in danger of extralegal, arbitrary or summary execution. E. Special law for strict chain-of-command responsibility The President should propose legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offenses committed by personnel under their command, control or authority. Such legislation must deal specifically with extralegal, arbitrary, and summary executions and forced “disappearances” and provide appropriate penalties which take into account the gravity of the offense. It should penalize a superior government official, military or otherwise, who encourages, incites, tolerates or ignores, any extrajudicial killing committed by a subordinate. The failure of such a government official to prevent an extrajudicial killing if he had a reasonable opportunity to do so, or his failure to investigate and punish his subordinate, or to otherwise take appropriate action to deter or prevent its commission or punish his erring subordinate should be criminalized. Even “general information” – e.g., media reports – which would place the superior on notice of possible unlawful acts by his subordinate should be sufficient to hold him criminally liable if he failed to investigate and punish his subordinate. There should be no requirement that a causal relationship be established between a superior's failure to act and the subordinate's crime; his liability under the doctrine of command responsibility should be based on his omission to prevent the commission of the offense or to punish the perpetrator. F. Enhancement of investigative capabilities of the PNP and the NBI The investigative capabilities of the PNP and the NBI should be improved and enhanced through the following measures, among others: (a) improvement of the forensic laboratories and equipment of the PNP and the NBI and further training of forensic technicians; (b) establishment of a national automated ballistic information system; (c) procurement of a software program for composite sketches of suspects; (d) adoption of crime mapping in all police stations and NBI offices; and (e) strengthening of the information reward system. G. Proper orientation and training of security forces Perhaps much of the failure of the proper and accountable officers to prevent, investigate, or punish criminal acts by their subordinates stems from a lack of proper understanding and emphasis on the present concept of command responsibility. The AFP should be encouraged and supported to conduct intensive seminars, orientations, or training for mid to high-ranking officers, to make them conscious of the prevailing doctrines of command responsibility, and the ramifications thereof. This will hopefully foster responsibility and accountability among the officers concerned, as well as the men they command. Understandable is the military's wariness in dealing with the party list organizations. However, unless otherwise declared outside the law by competent authority, these organizations should be treated with fairness and their members should not be unilaterally considered as “enemies of the state.” As suggested in Amnesty International's 14-point Program for the prevention of extra-legal executions: “The prohibition of extra-judicial executions should be reflected in the training of all officials involved in the arrest and custody of prisoners and all officials authorized to use lethal force and in the instructions issued to them. These officials should be instructed that they have the right and duty to refuse to obey any order to participate in an extrajudicial execution. An order from a superior officer or a public authority must never be invoked as a justification for taking part in an extra-judicial execution.” VI. CONCLUSION In ancient Sparta, life was dictated by war. In those turbulent times, city states were almost constantly at war – with other neighboring city states and with marauding invaders. Thus, a strong military was absolutely necessary to the survival of the state. All male Spartan citizens were automatically warriors, and had to train and eventually fight as such. Such militarism gave Sparta its greatness. The valor of its warriors and their unflinching military discipline are legendary, even to this day. They were the strands with which was woven the fabric of Spartan society. Everything revolved around the Spartan warriors. Indeed, it was stated that, unlike other ancient city-states such as Athens or Rome, one can no longer see great temples, palaces or buildings in what was once Sparta, but still the valorous deeds of Spartans are recalled and remain standards of military organizations. Spartans, as they are legendary now, were probably awe-inspiring then. So great was their military prowess that a mere three hundred of them, reinforced by only a handful of allies, held off the invading Persian hordes at Thermopylae, thus allowing precious time for the rest of the Greek allies to organize a defense. History shows that it pays to have a mighty armed force. The Persians were eventually defeated. In modern times, the importance of the armed forces cannot be taken lightly. In the Philippines, the lack of a cohesive and disciplined armed force allowed the colonization of the country by Spain. The same reason led the Americans to simply take the country away from Spain, and quell the Filipino resistance. In the early stages of World War II in the Pacific, Japan's military might overwhelmed its enemies, including the Philippines, though bolstered by American troops and ordnance. Indeed, one of the main reasons for the colonizers is that the Philippines occupies a strategic military location in this part of the globe. Today, the importance of the military is not lost upon this Commission. It is absolutely necessary because of the threat to the nation posed by communist insurgency. The Constitution provides that “[t]he Armed Forces of the Philippines is the protector of the people and the State.” The Armed Forces of the Philippines, as protector of the people, is mandated to rid the country of such insurgency. Verily, the AFP as a whole remains loyal to the Constitution. While communist insurgency must be addressed, the fight against it must not be at the expense of the Constitution and the laws of the nation, and it hardly needs emphasizing, not at the expense of innocent civilians. The armed forces is not a state within a state, nor are its members outside the ambit of the Constitution or of the rule of law. Ours is a government of laws, not of men. On the pervading reach of the rule of law, a legal luminary opined thus: The rule of law is supposed to pervade our legal system. The rule of law has been considered, in a government like ours, as equivalent to the supremacy of the Constitution. It is generally recognized that the Constitution sets the limits on the powers of government; it prevents arbitrary rule and despotism; it insures government by law, instead of government by will, which is tyranny based on naked force. In the Philippines, just like in any rule-abiding society, there exists a hierarchy of human positive laws, the highest of which is the Constitution, “being the highest expression of the sovereign will of the Filipino people.” The principle of Constitutional supremacy was explained by an eminent authority in Constitutional law in this wise: [The Constitution] is ‘the written instrument agreed upon by the people… as the absolute rule of action and decision for all departments and officers of the government… and in opposition to which any act or rule of any department or officer of the government, or even of the people themselves, will be altogether void.' It is, in other words, the supreme written law of the land. “The Philippines,” declares the Constitution, “is a democratic and republican State.” An essential characteristic of such State is the rule of law, which principle is expressly mentioned in the Constitution's Preamble. According to the previously cited authority, the rule of law “expresses the concept that government officials have only the authority given them by law and defined by law, and that such authority continues only with the consent of the people” Thus, without any hesitation, the Supreme Court in Callanta v. Office of the Ombudsman declared that “[i]n our jurisdiction, the rule of law, and not of men, governs,” while in Villavicencio v. Lukban, it upheld the primacy of law by declaring that “[n]o official, no matter how high, is above the law.” The rationale for this rule of law was probably best expressed by Brandeis in this wise: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means… would bring terrible retribution. In fact, the Supreme Court is not unfamiliar with the present situation. Of particular interest is the case of Aberca v. Ver. In ruling that pre-emptive strikes by the military against suspected communist safehouses violated the civil rights of the victims, and thus made the perpetrators thereof liable for damages, the Supreme Court, through Justice Pedro L. Yap, stated: Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield -- borrowing the words of Chief Justice Claudio Teehankee -- to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. “Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. x x x It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, “to prevent or suppress lawless violence, insurrection, rebellion and subversion” in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre-emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untrammeled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. x x x Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. Even assuming that these victims and these “enemies of the state” are indeed guilty of crimes against the nation, they have not been convicted of the said offenses. If some military elements indeed had reason to believe that these persons were NPA agents or operatives, then they could have simply instituted the proper criminal actions against them and had them arrested. By declaring persons enemies of the state, and in effect, adjudging them guilty of crimes, these persons have arrogated unto themselves the power of the courts and of the executive branch of government. It is as if their judgment is: These people, as enemies of the state, deserve to be slain on sight. This, they cannot do. Such an abuse of power strikes at the very heart of freedom and democracy, which are, ironically, the very bylines and principles these rogue elements invoke in seeking the “neutralization” of these so-called enemies of state. This Commission is not ignorant or unmindful of the crimes committed by insurgents, nor of the benefits of having a decent military to defend our freedom and way of life. To be sure, those slain by rebels and insurgents far outnumber the killings attributed by the leftist to the government. Many of our sons, husbands, and fathers have been slain or injured in encounters with the NPA, or have been assassinated by dreaded hitmen or mowed down in ambuscades and other acts of terrorism of the CPP-NPA. Understandable, justified, and commendable, in fact, is the fervor with which the State, through the military, feels the need to avenge these heroes who perished in the defense of the country. However, this should not be at the cost of the freedom we are protecting in the first place. The military and police authorities are laudable and necessary institutions, whose smooth operation according to the Constitution is absolutely essential to the country's security. The military should not be allowed to descend to the level of the insurgents and rebels themselves with their lawless, treacherous methodologies. It is in this light that the whip must be cracked to bring the rogue military elements back in line. The words of the Supreme Court in Aberca v. Ver are apropos: This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. Some may say that this Commission is quick to place blame on the military, while it hardly considered the past heinous crimes committed by those who would overthrow the government. Some may say that the death or killing of the activists, while illegal, is a blessing for which the military should be commended. Some will even say that the military deserves special treatment owing to their crucial role in containing and defeating insurgency. Nay, we say. The military must match its strength with restraint, and the only special treatment the military will receive from this Commission, and before any inquiry for that matter, is that it will be judged with more stringent standards. As Gen. Esperon said in regard to the court-martial of some army and marine officers, military justice is harsh and strict. Truly, justice must be stern and exacting on the military because the military has great power, and with great power comes greater responsibility. As the Book of Wisdom states: THE MIGHTY SHALL BE MIGHTILY PUT TO THE TEST
RESPECTFULLY SUBMITTED. January 22, 2007.
JOSE A. R. MELO NESTOR M. MANTARING JOVENCITO R. ZU ÑO NELIA T. GONZALEZ REV. JUAN DE DIOS M. PUEBLOS, D.D. Attested:
(Back to: Melo Commission Report-1 -- Introduction) * * * (POSTSCRIPT comes out in the Philippine STAR every Tuesday, Thursday and Sunday. Its online edition is uploaded the night before at http://www.manilamail.com)
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