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PHILIPPINES: Court fails to conclude an activists' appeal to dismiss false charges on him made three years on

July 6, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-025-2012

6 July 2012

[RE: AHRC-UAU-002-2012: PHILIPPINES: False murder charges on activist must be dropped]
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PHILIPPINES: Court fails to conclude an activists' appeal to dismiss false charges on him made three years on

ISSUES: Arbitrary arrest and detention; fabrication of charges; human rights defenders; prosecution system; right to fair trial
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Dear friends,

The Asian Human Rights Commission (AHRC) has been informed that nearly six months after the arrest and detention of Temogen "Cocoy" Tulawie, a human rights activist laid with fabricated murder charges, the court has not commence the trial. The court suspended the proceedings due to its own failure to conclude the victim's petition to dismiss the charges filed nearly three years ago.

UPDATED INFORMATION: (Based on the information received from the Mindanao People's Caucus (MPC))

On January 26, 2012, after Temogen "Cocoy" Tulawie's was arrested and detained, we issued an appeal (AHRC-UAU-002-2012) and have written to government authorities, notably Leila De Lima, secretary of the Department of Justice (DoJ), asking her to "consider reviewing the evidence and merits of the case" as the basis of concluding that there was a probable cause by the prosecutors.

In our letter, we argued that the DoJ should consider dismissing the charges on Tulawie considering that the evidence on him "is based on the forced confession that were obtained from the two accused themselves," implicating Tulawie's supposed role as "mastermind" of the May 13, 2009 bomb attack, which they already recanted. The AHRC, however, has not received any response from De Lima's office on this.

For detailed discussion, read our statement: AHRC-STM-011-2012.

Nevertheless, the Supreme Court (SC), Third Division, issued a Resolution dated June 13, 2011 to transfer the trial of Tulawie's case from the Regional Trial Court (RTC), in Jolo, Sulu "to any Court may deemed convenient, and considering that there is an indication of actual imminent threat to the life of the petitioner (Tulawie) and his family."

In fact, on December 14, 2011, the SC again issued its subsequent Resolution that upholds this order, in which Governor Abdusakur Tan, the complainant of the murder charges, questioned. In this order, the SC resolved that: "considering that no substantial matter has been raised therein to warrant a modification of this Court's resolution, the Court resolves to DENY reconsideration with FINALITY."

However, despite the SC's order and the case folder of the documents having been transferred to Davao City, notably the Regional Trial Court (RTC), Branch 11, under the jurisdiction of Virginia Holifena-Europa, the trial of the case could not proceed. In her order dated May 4, 2012, she argued that:

"Pending resolution is a Motion to Quash filed by the accused…for the record, Prosecutor Marte Melchor S. Velasco who is assigned to prosecute cases in Branch 11 of the RTC, Davao City had previously manifested that he has not yet been duly authorized by the Department of Justice to appear and handle this case. That being the case, he cannot file any comment and/or opposition to the pending Motion to Quash even with the appearance of private prosecutors."

Judge Europa further argued that:

".....this Court received a copy of a petition filed before the Honorable Supreme court by one of the private complainants asking for the transfer of venue of this case to Manila." For this, the court ordered:"In view of the foregoing, further proceedings in this case are hereby suspended in deference to the Honorable Supreme Court."

In the court's hearing on this case on May 25, 2012, the court itself agreed that since the jurisdiction of the case has been transferred to its branch; thus, it is automatic that the prosecutors assigned in that branch have the authority to handle the case. This corrects the prosecutor's earlier claims that he could not comment on the Motion to Quash as "he has not yet been duly authorized by the Department of Justice".

However, although the obstacles regarding the lack of authority of the prosecutor, which have already been revealed as misconceived--and have already been addressed; and those orders of the SC have affirmed the court's authority to try the case, Judge Europa has been unable to commence the trial of Tulawie's case.

It is obvious that the failure to commence the trial of the case since Tulawie's arrest in January 13, 2012 have been due to the courts' failure to resolve the Motion to Resolve the Motion to Quash that the counsel of the accused has filed. Tulawie first filed his Motion to Quash on July 25, 2009.

The AHRC therefore urges you to write letters to: Judge Virginia Holifena-Europa, presiding judge, Regional Trial Court (RTC), Branch 11, Davao City, PHILIPPINES, asking her to resolve the accused appeal promptly.


Thank you.

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

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-025-2012
Countries :
Issues :
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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.