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UPDATE (Philippines): A Davao court denies a lawyer and target's petition for judicial protection

September 18, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-022-2009



18 September 2009

[RE: AHRC-UAU-013-2009: PHILIPPINES: Lawyers listed as targets sought judicial protection]
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PHILIPPINES: A Davao court denies a lawyer and target's petition for judicial protection

ISSUES: Threats; human rights defenders
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Dear friends,

The Asian Human Rights Commission (AHRC) deeply regrets to inform you that a Regional Trial Court (RTC) in Davao City, southern Mindanao, has denied a human rights lawyer temporary judicial protection via a Writ of Amparo petition. The court ruled that he failed to prove 'by substantial evidence' that the inclusion of his name in an 'Order of Battle' – one reportedly made by the military to target people and groups with communist sympathies – poses a threat to his life. This contradicts a recent UN report which notes that many civil society activists in the Philippines are being extra-judicially killed simply for their perceived association with leftists groups

UPDATED INFORMATION:

In a previous appeal (UAU-013-2009) we mentioned that Carlos Zarate, secretary general of the Union of People's Lawyer in Mindanao (UPLM), sought protection via a Writ of Amparo on June 16, 2009, as did two of his colleagues, Angela Librado-Trinidad and Lilibeth Ladaga.

In his petition, Zarate argued that the 'mere inclusion of the petitioner's name in the said Order of Battle is not only putting his life in danger, but a clear threat as well to his liberty and security, including that of his family'. The Order (in a PowerPoint presentation) also 'clearly show that the names listed therein have been branded as 'enemies of the state''.

Zarate's concern for his and his family's security and liberty was prompted by the murder of Celso Pojas, a peasant activist, on May 2008 – a man whose name also appeared in the list. Other lawyers included in the list (which names 105 people, among them lawyers, journalists, human rights and political activists, physicians, union leaders and religious leaders in Davao City) have been receiving continuous threats.

However Judge Jose Manuel Castillo of the Regional Trial Court (RTC), Branch 10, ruled that the petitioner failed to prove 'by substantial evidence, that indeed, his perceived threat to his life, liberty and security is attributable to the unlawful act or omission of the respondents'. He also declared that there was not enough to link Celso Pojas' murder with the target list.

Judge Castillo has also argued that even if Satur Ocampo – the member of the House of Representatives who first received the leaked presentation – testified in court, his testimony would be 'empty' if he could not testify alongside his anonymous source. It would be concluded that he 'he has no direct or personal knowledge about the authenticity of the subject 'OB List', hence, whatever he says about it is hearsay.'

This line of reasoning rejects observations of United Nations Special Rapporteur Philip Alston in his report last year (16 April) that stated: 'Human rights defenders and trade unionists, along with many other civil society leaders, appear to be killed due more to their association with leftist groups than to their particular activities'. Those listed in the OB are accused of collusion with communists. Zarate has since filed a motion asking the same court to reconsider his ruling.

ADDITIONAL COMMENT:

The AHRC has expressed its deep concern about the standards being used by the court in denying Zarate's petition. Here is a case in which a petitioner under threat is being asked to investigate and prove the precariousness of his position, before being granted any kind of judicial protection.

Foremostly, when the Writ of Amparo was promulgated in September 2007 it was not as a form of criminal action, and 'proof beyond reasonable doubt' should therefore not be required. Demanding this kind of evidence is to equate it to a criminal trial.

Accordingly, in Zarate's petition the court has argued that testimony from the anonymous 'conscientious soldier' who leaked the PowerPoint presentation and its military origins 'could have possibly put the petitioner's position in a better light'. But for the court to require Zarate to produce the 'conscientious soldier' is impractical. This interpretation of the 'substance' of the evidence has undermined if not defeated the purpose of the Writ of Amparo, by weighing it as though it were a criminal trial.

Interestingly, similar reasoning was used in the criminal trial of the Abadilla Five – innocent men dealt a death sentence for murder – when evidence from a third absent party which could exonerate them was rejected (see various former appeals and statements: UA-182-2007, UAU-029-2008, OLT-002-2009). The court argued that unless the person appeared in court and handed in the evidence himself it could not be admitted. Even in this criminal case it was an impractical demand; the person who had personal knowledge of the Colonel's murder was part of the illegal armed group who had committed it. He was later killed.

Finally, despite suggesting that the anonymous soldier testify in Zarate's petition, no mention was made of ensuring his or her safety. To have this person come forward would itself require a separate Writ of Amparo petition – either that or they would need to be covered by the Witness Protection Security and Benefit Act. Therefore, to require the 'conscientious soldier' to appear in court is not practical.

SUGGESTED ACTION:

Please write to the concerned authorities, particularly to the court hearing the case, and raise your concerns on this ruling. The court should review the argument of the petitioner and comply with the main purpose of the Writ of Amparo.

The AHRC has written letters to the UN Special Rapporteurs for human rights defenders and for extra-judicial, summary, or arbitrary executions.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ________,

PHILIPPINES: A Davao court denies a lawyer and target's petition for judicial protection

Name of the lawyer: Carlos Zarate, secretary general of the Union of People’s Lawyer in Mindanao (UPLM).
Status of his petition: Regional Trial Court Judge Jose Manuel Castillo of the Regional Trial Court (RTC), Branch 10, denied Zarate's Writ of Amparo petition on August 15, 2009. The petitioner has filed another petition asking the court to reconsider his decision.

I am writing to express my deep concern at the denial of temporary judicial protection for human rights lawyer Carlos Zarate by the Regional Trial Court (RTC) in Davao City.

Zarate and his two colleagues, Librado-Trinidad and Lilibeth Ladaga, filed their individual Writ of Amparo petitions on June 16, 2009. The writ is a temporary judicial protection which the Supreme Court (SC) of the Philippines promulgated on September 2007 for persons whose life, liberty and security are threatened; the lawyers filed their petition after learning that they were included in the 'Order of Battle' of May 2009. This Order includes a list of 105 persons, most of them human rights defenders in Davao City, and suggests their involvement in communist activities. It is widely believed to have been created by the military.

United Nations Special Rapporteur Philip Alston in his report dated 16 April 2008 stated: 'Human rights defenders and trade unionists, along with many other civil society leaders, appear to be killed due more to their association with leftist groups than to their particular activities'.

Zarate has sought temporary judicial protection for himself and his family, and for the military establishment to produce the documents relating to him. He has noted that another person named in the list – peasant activist Celso Pojas – has already been murdered, and that others named have been receiving continual threats. Zarate and his two fellow petitioners endure continual intimdation as human rights lawyers.

The court, in denying Zarate's petition, argued that he 'failed to prove, by substantial evidence' that there are threats to his life, liberty and security. Even testimony from the first person to receive the leaked Order, would be considered 'hearsay' and 'empty' which effectively prevents any chance of the origin of the document being investigated.

Though the court has implied that the testimony of the source him or herself may affect this verdict, they have offered no arrangements to ensure their safety.

It is unfortunate that the court, in its standards of evidence, is considering the petition as if it were a criminal trial. This was not the purpose of the Writ of Amparo when it was promulgated, and unless the court reviews these standards, it is defeating the point of the writ and depriving all future persons who seek protection. I consider it impractical and alarming that such a burden of proof is placed upon victims whose lives are in danger.

I therefore urge you to use your authority to intervene in this case.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mrs. Gloria Macapagal-Arroyo
President
Republic of the Philippines
Malacanang Palace
JP Laurel Street, San Miguel
Manila 1005
PHILIPPINES
Fax: +63 2 736 1010
Tel: +63 2 735 6201 / 564 1451 to 80

2. Ms. Leila De Lima
Commissioner
Commission on Human Rights
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman
Quezon City
PHILIPPINES
Fax: +63 2 929 0102
Tel: +63 2 928 5655 / 926 6188
E-mail: mtm_rodulfo@yahoo.com

3. Deputy Director General Jesus A. Verzosa
Chief, Philippine National Police (PNP)
Camp General Rafael Crame
Quezon City
PHILIPPINES
Fax: +63 2724 8763
Tel: +63 2 726 4361/4366/8763
E-mail: ruth_cossid@yahoo.com

4. Ms. Agnes Devanadera
Secretary
Department of Justice (DoJ)
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +63 2 521 1614
E-mail: raulgonzalez_doj@yahoo.com

5. Lieutenant General Victor S. Ibrado
Chief of Staff
Armed Forces of the Philippines (AFP)
AFP-GHQ Offices, Camp Gen. Emilio Aguinaldo
Quezon City
PHILIPPINES
Fax: +63 2 911 6436
Tel: +63 2 911 6001 to 50

6. Justice Reynato S. Puno
Chief Justice
Supreme Court of the Philippines
New Supreme Court Building Annex Padre Faura St., Ermita,
1000 Manila
PHILIPPINES


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-022-2009
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.