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UPDATE (Philippines): Court to hear case of activists, others falsely charged two years ago

July 17, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-041-2008

17 July 2008

[RE: UA-143-2006: PHILIPPINES: Five missing persons are allegedly being detained in the army camp in Lipa City]
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PHILIPPINES: Court to hear case of activists, others falsely charged two years ago

ISSUES: Torture; human rights defenders; right to liberty and security; right to justice; political detainees; arbitrary arrest and detention; administration of justice
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Dear friends,

The Asian Human Rights Commission (AHRC) writes to inform you that the five men, collectively known as the Tagaytay Five, whom we reported to have been missing but were later found in police custody two years ago, will have their petition seeking the dismissal of their case heard tomorrow, July 18. The five accused, who continue to challenge the legality of their arrest, were arraigned only on June 16 of this year.

UPDATED INFORMATION:

As we have reported in our previous appeal UA-143-2006, the five men, namely Riel Custodio, Alejandro Pinpin, Enrico Ybanez, Michael Masayes and Aristides Sarmiento, were first reported to have been missing. However, it was later discovered that the police had actually abducted and kept them in incommunicado detention. Three of them, Riel, Axel and Aristides, were members of the "Kalipunan ng mga Magsasaka sa Kabite (Kamagsasaka-Ka or Farmers’ Federation in Cavite)," advocating for the welfare of farmers, while the two others, Enrico and Michael, were ordinary persons.

Those who forcibly took them into custody were members of the Philippine National Police (PNP) attached to the Cavite Provincial Police Office (CPPO), Police Regional Office 4 –Regional Intelligence and investigation Division (PRO4 RIID), Cavite Police Provincial Mobile Group (PPMG-Tagaytay) and the Armed Forces of the Philippines (AFP)-Philippine Navy Intelligence and Security Force (NISF).

For seven days following their arrest, their respective families were not properly informed of their whereabouts or that they were being held in police custody. From 28 April to 2 May of 2006, they were kept blindfolded and their hands were tied behind their backs. They were also questioned without their legal counsel, as well as physically harmed and threatened with electrocution and death. They were also taken to various military and police camps and safe houses. One of them, Aristides, suffered a second degree burn to his right leg that healed only four months later.

They were charged for supposedly having been involved in an illegal armed group, the New Peoples' Army (NPA), and were allegedly deployed to destabilize the government at the height of a massive protest on May 1 of that year.

The manner in which the charges were filed, however, was questionable. For instance, the charges of rebellion were filed May 3 beyond the prescribed period, and the prosecutor from Tagaytay City prosecutor's office has neither seen them himself or questioned the accused during the inquest he conducted. Thus, there was actually no real inquest proceeding held.

Not only was the inquest proceeding not proper, there was also no preliminary investigation conducted into their case. In this case, since the filing of charges exceeds the prescribed period under the inquest rules, they should have been afforded a preliminary investigation, which means that they should have been released within 36 hours from the time they were taken into custody. However in their case, neither a real inquest nor a preliminary investigation was conducted, yet the accused have had to endure the trial of their case despite the questions of legality in the filing of it.

Apart from the questionable filing of charges, the PRO4 RIID filed charges of murder at the Batangas Prosecutor’s Office in May 2006 against one of the accused, Aristides. The complaint, however, was later dismissed on September 2006 following three hearings at the Prosecutor’s Office "for lack of evidence".

When the accused were presented to the public and before the media on 1 May 2006, the policemen arresting them prematurely claimed, even before the filing of a formal case in court and before their case was concluded, that they were members of the illegal armed group. While the accused were in police custody, their custodians also forced and threatened them in an attempt to make them admit their supposed membership with the NPA.

On 5 May 2006, PNP PR04-RIID took the accused to the Regional Trial Court (RTC), Branch 18 in Tagaytay City for them to respond to the charges of rebellion they filed against them without any aid of counsel. On several occasions also, Judge Edwin Larida Jr., the presiding judge, insisted on arraigning the accused even though the challenge of the legal counsel to the legality of their clients' arrests, the filing of charges and their detention was unresolved.

From the time the case was filed, the five accused have not been arraigned until June 16 of this year because their case suffered repeated delays. For instance, the accused filed a motion to quash the charges against them, which only reached a conclusion on 20 February 2007 denying their petition, nearly a year after the motion was filed.

The accused petition to have the hearing of their case transferred from the RTC Branch 18 in Tagaytay City to any RTCs in nearby Calamba on 21 August 2007 has since remained pending before the Supreme Court (SC) for decision. It is reported that even though both the court hearing the case and the prosecution express no objection to the petition for transfer, the SC has failed to resolve the said petition. They filed the petition due to the continued delay of the conclusion of their case at the RTC in Tagaytay City, and since the accused were anyway detained at a police detention center in Calamba, Laguna.

Even before the five accused were arraigned, there have been repeated postponements to their scheduled arraignment and court hearings-for instance, their scheduled 17 October 2007 arraignment was canceled because the judge had to attend a seminar. The court also canceled the hearing on 25 June 2007 because it needed to give priority to election-related cases. This happened despite the order given by Judge Larida, Jr. himself to consider the case an “utmost priority”.

Moreover, the accused, in seeking for temporary liberty through a bail application, had to submit themselves for an arraignment procedure even without their pending petition for transfer of the hearing of their case resolved to avoid further delays in their case. They pleaded not guilty.

However, when their application for bail was heard on July 4 of this year, the scheduled afternoon hearing was once again postponed because the judge fell ill. The prosecution panel, too, has not been able to prepare for the said hearing. The next bail hearing, scheduled on July 11, also did not complete after the judge ordered for the suspension of the hearing because the accused legal counsel made an oral argument to, once again, seek the dismissal of the charges after he found them questionable in nature.

The court then ordered the accused legal counsel to submit their formal and written manifesto seeking dismissal on July 14. Tomorrow, July 18, the legal counsel's manifesto will be heard in court.


SUGGESTED ACTION:
Please write letters to the concerned authorities, particularly to the court hearing the case so that the case can conclude promptly. If there are no sufficient grounds for the continuing detention of the accused, the charges against them must be dropped or their petition for bail, while the conclusion of their case is pending, should be acted upon.

Please be informed that the AHRC has also sent letters to the UN Special Rapporteur on the Question of Torture, the Working Group on arbitrary detention, and the Special Representative of the Secretary General for human rights defenders.

To support this appeal, please click here:


Dear _________,

PHILIPPINES: Please immediately ensure the conclusion of the case of five men, three of whom are activists

Name of victims:
1. Riel Custodio
2. Axel Pinpin
3. Aristides Sarmiento
All of them are members of the "Kalipunan ng mga Magsasaka sa Kabite (Kamagsasaka-Ka or Farmers’ Federation in Cavite)"
4. Michael Masayes
5. Enrico Ybanez
All of the detainees are presently detained at the Philippine National Police (PNP), Police Regional Office (PRO4) in Calamba, Laguna province
The units responsible in arresting them: Philippine National Police (PNP) attached to the Cavite Provincial Police Office (CPPO), Police Regional Office 4 –Regional Intelligence and investigation Division (PRO4 RIID), Cavite Police Provincial Mobile Group (PPMG-Tagaytay) and the Armed Forces of the Philippines (AFP)-Philippine Navy Intelligence and Security Force (NISF).
Status of their case: They were arraigned on June 16, two years after the charges of rebellion were filed against them. Their petition seeking the dismissal of their case was set for deliberation on July 18. In addition to seeking the dismissal of their case, they also filed a complaint with the Commission on Human Rights (CHR) in Quezon City against the policemen who illegally arrested, detained and tortured them.

I am writing to voice my grave concerns for the continuing delay in the conclusion of the case filed against five men, three of whom are activists, after having been forcibly taken into police custody, as well as their continuing detention for two years. The five accused, collectively known as the Tagaytay Five, were facing charges of rebellion and their case has been delayed since May 2006.

As you may already know, they were forcibly taken into custody by a group of armed men who were later identified as policemen. From the time they were last seen being forcibly taken into custody on 28 April 2006 and subsequently went missing, their families were not informed by those who were taking them of their whereabouts, nor were the accused shown to them. It was only seven days later that their respective families were able to meet them—which is completely contrary to existing laws on detainees' rights and to the rules on criminal procedure.

While they were in police custody, they were deprived of their right to counsel, held incommunicado, physically and mentally tortured, threatened with electrocution and death, and were taken to different military and police camps one after the other. They were also deliberately hidden from their families, who, from the time kept on looking for them in various camps and even in morgues.

I acknowledge that the court has jurisdiction in these cases already. However, it is extremely disappointing that the court has since not been able to ensure the prompt conclusion of this case. For instance, if the accused had not submitted themselves for an arraignment on June 16 of this year, despite the continuing challenge to the legality of their arrests and the filing of charges, they would not have been arraigned at all. It is extremely disappointing that the accused have had to submit themselves to such procedures that may have implications to the progress of their case, only to see the continuing delay in the conclusion of their case.

Moreover, the accused’s petition for the transfer of their case from Regional Trial Court (RTC), Branch 18 in Tagaytay City to any RTCs in Calamba, Laguna province, has also not been acted upon promptly, having been delayed nearly one year since the petition was first filed on 21 August 2007. This was even though the court judge hearing the case and the prosecution panel has expressed no objection to such a move.

The petition for transfer was itself made to prevent the continuing delay of the case at the court where it is currently being heard. However, even on these matters the judiciary is unable to comply. In the past, the repeated cancellations and the postponements of the hearing were made with the following reasons: a judge's absence to attend a seminar, sickness, and of giving priority to cases related to the election in 2007.

While I welcome the fact that the accused have already been arraigned, I express deep concern regarding the possibilities of yet another delay once the court once again fails to hear their case, or neglects the duties it ought to be doing. I therefore urge you to ensure that the subsequent hearing of this case should be done without further delay. Should there be no sufficient grounds for continued detention of the accused, the charges against them must be dropped and they must be released without delay.

Also, I urge you to ensure that the complaint for violations of human rights, particularly against the police for illegally arresting and detaining the accused, as well as psychologically and physically torturing them, violating their rights as detainees and depriving them of their right to counsel, amongst others, are acted upon accordingly.

I am deeply concerned that their complaint for the violation of their rights, like many other cases filed with the Commission on Human Rights (CHR), for instance the 12-year-old complaint of torture of the known Abadilla Five, would once again suffer unnecessary delay unless adequate actions are taken.

I trust that you take adequate action on this matter.


Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Edwin G. Larida, JR.
Presiding Judge
Regional Trial Court (RTC) Branch 18
Tagaytay City, Cavite
PHILIPPINES

2. Mr. Christopher Lock
Court Administrator
Office of the Court Administrator
Supreme Court of the Philippines
New Supreme Court Building Annex
Padre Faura St.,Ermita,
1000 Manila
PHILIPPINES
Tel: +63 2 525 5741 / 521 5133

3. 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: chr.delima@yahoo.com, mtm_rodulfo@yahoo.com

PLEASE SEND COPIES 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
E-mail: corres@op.gov.ph

2. Deputy Director General Avelino Razon
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: bluetree73@gmail.com

3. Mr. Raul Gonzalez
Secretary
Department of Justice (DoJ)
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +63 2 521 1614
E-mail: agnesdeva@yahoo.com

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-041-2008
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.