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UPDATE (Philippines): Prosecutor's failure to ensure appearance of its complainants and witnesses postpones trial of five men

August 1, 2005

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal
2 August 2005

[UA-69-2005: Court orders trial in the case of five torture victims detained after two years of delay]
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UP-92-2005: PHILIPPINES: Prosecutor's failure to ensure appearance of its complainants and witnesses postpones trial of five men

PHILIPPINES: Torture; Failure of justice system
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Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information from a reliable source that the hearing of five men in Davao City on July 25 was once again postponed. This is yet another incident of the prosecutor's failure to ensure that its complainants and witnesses appeared for scheduled hearings.

In June, the complainant represented by elements of the Criminal Investigation and Detection Group (CIDG 12) in Davao City and its witnesses failed to appear in the hearing because they did not receive notice or a subpoena from the court. Even though the court scheduled the hearing for July 25, the CIDG 12 and their witnesses have again failed to appear in court.

The trial of victims Tohamie Ulong (minor), Ting Idar (minor), Jimmy Balulao, To Akmad and Esmael Mamalangkas, has been delayed for two years due to postponements, cancellations and replacement of the court judge. Recently, their case was transferred from the Regional Trial Court (RTC) Branch 12 to Branch 13, following the retirement of the Branch 12 court judge. They are presently detained at the Bureau of Jail Management and Penology (BJMP) in Maa, Davao City.

The AHRC has previously appealed to the Philippine government for the speedy resolution of the case. The five men were reportedly severely tortured into admitting involvement in the March and April 2003 bombings in Davao City. They were charged in court for the bombings but the allegations of torture have not been investigated. Please see our previous appeal for details UA-69-2005.

In a June 28 letter received by the AHRC, Persida V. Rueda-Acosta, Chief of the Public Attorney's Office (PAO), said that the regional office of the PAO in Davao City has been informed that they should take appropriate action. However, the delay and postponement of the trial of the victim's case suggests that this instruction has been ignored.

The use of torture by the police and military during the conduct of custodial investigations is a common practice in the Philippines. The AHRC has previously reported on this fact, such as those involving torture victims Omar Ramalan in Cotabato City (FA-04-2004; UP-09-2004) and Jejhon Macalinsal, Aron Salah and Abubakar Amilhasan in General Santos City (UA-74-2005; UP-78-2005).

We urge your immediate intervention by requesting the Office of the Public Attorney (PAO) in Manila and the Regional Trial Court (RTC) Branch 13 in Davao City to ensure that parties involved in the trial of the case appear at scheduled court hearings. The court must also initiate an inquiry into whether there was negligence by the prosecutor to ensure the complainants and its witness appeared in court. The court must ensure the speedy resolution of the case in accordance with the judiciary's Action Program for Judicial Reform (APJR).

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)

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Suggested letter:

Mrs. Persida V. Rueda-Acosta
Chief, Public Attorney Office (PAO)
DOJ Agencies Building,
NIA Road East Avenue
1104 Quezon City
PHILIPPINES

Tel. No. +63 2 929-9010/929-9436
Fax No. +63 2 927-6810/926-2878


Dear Mrs. Rueda-Acosta,

RE: Prosecutor's failure to ensure appearance of its complainants and witnesses postpones trial of five men

I am writing to draw your attention to the further postponement in the trial of alleged torture victims Tohamie Ulong (minor), Ting Idar (minor), Jimmy Balulao, To Akmad and Esmael Mamalangkas before the Regional Trial Court (RTC) Branch 13 in Davao City. The trial, which was scheduled on July 25, was again postponed due to the failure of the prosecutor to ensure the appearance of the complainant and its witnesses during a scheduled court hearing. This is yet another instance of postponement of the trial due to similar reasons.

I have learned that the complainants, represented by the Criminal Investigation and Detention Group (CIDG 12) and its witnesses, also failed to appear during a scheduled hearing in June. It was reported that they had not received any notice from the court for the said hearing. Although the circumstances behind the CIDG and its witnesses' failure to appear during the July 25 hearing was not known, the prosecutor is accountable for ensuring their appearance in court.

I am deeply concerned that the five persons, who are presently detained at the Bureau of Jail Management and Penology (BJMP) in Maa, Davao City, have not been afforded speedy trial as provided in the Republic Act 8493. I have learned that there has been no relevant progress since the case was filed in court in April 2003. Postponements, cancellations and the resetting of trial dates have ensured this.

I therefore urge your intervention to request Regional Trial Court (RTC) Judge, Isaac Robillo Jr. to ensure that both parties concerned appear during scheduled hearings to avoid further postponements. I also request you to initiate an inquiry in coordination with the court concerned as to whether there was negligence on the part of the prosecutor in ensuring its complainants and witnesses appeared in court hearings.

The court judge of the Regional Trial Court (RTC) Branch 13 must consider imposing administrative sanctions against the prosecutors if they are found to have neglected their duty. The court should also look into citing the elements of CIDG and its witnesses for contempt if found to have deliberately ignored the court hearings. By doing so, similar incidents will be prevented.

I trust that you will take action in this case.


Respectfully yours,


________________

PLEASE SEND LETTERS TO:

1. Hon. Hilario Davide Jr.
Chief Justice
Supreme Court of the Philippines
New Supreme Court Building Annex Padre Faura St., Ermita,
1000 Manila
PHILIPPINES

2. Hon. Gloria Macapagal Arroyo
President, Republic of the Philippines
Malacanang Palace
J.P. Laurel St., San Miguel, Manila
NCR 1005
PHILIPPINES
Fax: +632 2929 3968
Email: pgma@compass.com.ph or opnet@ops.gov.ph

3. Commissioner Purificacion Quisumbing
Commission on Human Rights
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman, Quezon City
PHILIPPINES
Tel. No. +63 2 928-5655/926-6188
Fax: +63 2 929-0102
Email: drpvq@chr.gov.ph

4. Secretary Raul Gonzales
Department of Justice
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +6325211614
Email: sechbp@infocom.com.ph

5. Prof. Manfred Nowak
Special Rapporteur on the Question of Torture
Attn: Mr. Safir Syed
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (general)

Thank you.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Update
Document ID :
UP-92-2005
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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.