PHILIPPINES: KILLINGS — Why can’t security forces act without being asked?

On January 9, the Court of Appeals (CA) reportedly heard the petition for writ of amparo filed by Cleofas Sanchez, mother of disappeared victim Nicolas, who, together with his cousin, Heherson Medina, disappeared on 17 September 2006. The writ is a newly adopted rule by the Supreme Court which provides judicial remedies to persons whose life, liberty and security, is violated or threatened.

In her petition, Cleofas reportedly sought permanent protection and to allow them to inspect the camps where she claims her son is being held. The court, however, required her to include in her petition the names of the two military men who allegedly had knowledge of the victim’s whereabouts. The two victims were abducted by armed men wearing military uniforms while they were collecting edible frogs in Capaz, Tarlac. Witnesses though had seen them in the custody of the military’s custody in several camps days after they disappeared.

Cleofas’ petition was challenged for supposedly failing to constitute the “cause of action” and that they sought the “wrong legal remedy” to locate their kin. Sarah Jane Fernandez, assistant solicitor general, had been quoted by the, to have said: “Sanchez [petitioner] should not expect the Army to assist or help in locating the whereabouts of her son and Heherson without her filing a formal complaint”. She was appearing on behalf of Gen. Hermogenes Esperon, chief of staff of the Armed Forces.

Fernandez’ argument subverts the notion of legality and utmost obligation of the State to ensure protection and security of its citizens. To consider the filing of a “formal complaint” solely as basis for taking action, in this case the Army, to help and assist the relatives of disappeared victims to locate their loved ones, deprives them of remedies and effectively gives the army a convenient excuse. Whether or not there a formal complaint is filed, they have Constitutional obligations to act on violations of rights.

Taking action in absence of a formal complaint is a fundamental concept in the 1987 Constitution, particularly on matters involving investigations; for instance, the mandate of the Commission on Human Rights (CHR) and the Philippines National Police (PNP). The Constitution requires them to act on their own, with or without a formal complaint, into investigating violation of rights and abuses by the police. The CHR commences actions even on newspaper reports; and police investigates murders relayed to them by phone—none of these required a formal complaint but they nevertheless act on it.

When the relatives started searching for the disappeared victims, the military had already been properly informed of their disappearance. However, instead of helping and assisting them in locating the disappeared victims, they have not taken action apart from telling them the victims were not in their custody. Fernandez’ reported argument confirms the long standing practice by the military which ignores the need to take action, or to cooperate, when required. This inaction is already unacceptable and to further justify this on the pretext of lack of filing a formal complaint is inexcusable. It is tantamount to tolerating illegal acts and emboldens the perpetrators to do the same with immunity.

In the Philippines today, filing formal complaints is often no longer an option by the victims because some had their own experiences that their complaints would either be not acted upon or obtain no substantial progress. Even filing a formal complaint does not guarantee any remedies or redress; therefore, a person showing disinterest into filing complaint should no longer be surprising but expected. To deprive a person or anyone of any remedy and redress purely on the basis of failing to file a complaint is not acceptable.

The government’s reluctance to take adequate action by allegedly attempting to undermine the victim’s relatives from obtaining judicial remedies is of serious concern. Though Fernandez claims the petition lacks merit or fails to satisfy a “cause of action”, which suggests that the petition fails to establish and illustrates the wrongdoing of the respondent, but there is no denying that the two persons have been forcibly abducted and disappeared and that the witnesses saw them in military camps and in the custody of soldiers.

The facts of abduction and subsequent disappearance of the victims are acts sufficient to merit a cause of action. The military also did not act to help and assist in locating the victims. These acts and acts of omission had already satisfied cause of action as defined by Section 2, Rule 2 of the 1997 Rules of Criminal Procedure, which is an “[the] act or omission by which a party violates a right of another”. “Cause of action” is acts which are described by facts to illustrate a violation; not facts to describe and satisfy to merit a “probable cause” as the army’s legal representatives are suggesting.

To define the cause of action as they understood it would result in the complainants or the petitioners doing a de facto work taking over what should have been the obligations of the police, that is investigation and production of witnesses. What is written in the petition are accounts and allegations regarding the victims’ plight according to what she and the witnesses knew, and that the government had the obligation to adequately act on it. Whether or not they merit judicial action it is for the court to decide following a credible and effective adjudication; and not for the government purely on their own notion of legality.

Apart from that, to suggest that the remedy the victim’s mother and her legal counsel should have taken is to file the petition of writ of habeas corpus was impractical, if not out of context. Section 1, Rule 102 of the Rules of Criminal Procedure, habeas corpus could be invoked on “cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto”. But victims Nicolas and Heherson’s case falls in none of these circumstances. They were taken and held in captivity without any regard to due process. The notion of rightful custody could not even be invoked.

Under the rules of criminal procedure, once a person is arrested or detained, presumably he or she violated laws which resulted to the arrest and detention of rightful authority, let’s say by the police. Had they been arrested and detained by the military; then the writ of habeas corpus could be applied to challenge the military’s lawful right to arrest and detain persons. But this is not the case in Nicolas and Heherson’s disappearance. They could not even be considered detainees or arrestees as this connotes a lawful procedure have been complied with.

Not only they were held captive illegally, their life, liberty and security have also continuously been threatened because of their disappearance. They were taken against their will and subsequently forcibly disappeared ignoring any lawful process. And when victim’s family sought the military’s assistance to locate the victims they did not take adequate action. They have instead undermined the family’s action seeking judicial remedies and to locate the disappeared victims.

Document Type : Statement
Document ID : AHRC-STM-014-2008
Countries : Philippines,