INDEPENDENT COMMISSION TO ADDRESS MEDIA AND ACTIVIST KILLINGS
Created under Administrative Order No. 157 (s. 2006)
R E P O R T (extracts & without citations)
INTRODUCTION
There is no shirking the fact that people, almost all of them activists or militants, have been killed. There is no denying the reality that militant citizens have been liquidated. The numbers vary. Task Force Usig of the Philippine National Police listed down one hundred eleven (111) killings, which has since increased to one hundred thirty six (136). Amnesty International, in its official website, mentions 244 victims. The group Karapatan is said to have counted at least 724 killings. Unfortunately, none of the so-called activist/militant groups, be they outright communist or satellite groups, came forward if only to inform the Commission of the numbers of their members who have become victims of extrajudicial killings. Be this as it may, the number, whether at a low of 111 according to Task Force Usig, or a high of 724 of Karapatan, is one too many.
It is said by those who would justify these killings that the victims are enemies of the State. Verily, one’s attention may be called to the screams in death of the victims of the Communist Party of the Philippines, its armed group the New People’s Army (“NPA”), and its front organizations. Surely, ever present is the only too human feeling of wanting to see one’s enemies and oppressors bite the dust, so to speak, struck down on the quick based on one’s own personal concept of justice or on the military’s unilateral assessment that they are enemies of the State.
This may well be so, but it should be carefully noted that the victims, of which this Commission is concerned, were all non-combatants. They were not killed in armed clashes or engagements with the military. They were killed, it is said, by motorcycle-riding hooded killers in assassination manner.
Government agencies hardly need reminding that in a democratic and civilized state such as ours, one must uphold and observe the rule of law, the principles of justice, and the system and rules of how it is dispensed – from investigation to arrest, to inquest, and to trial. The system may be far from perfect, giving rise to the temptation to take short-cuts. But precisely, short-cuts are in defiance of the system of impartial justice. The rules must be observed at all times.
This is the very reason why President Gloria Macapagal-Arroyo, understandably alarmed by these killings, created this Commission to get to the bottom of why these extrajudicial or extralegal killings are happening and who probably are responsible therefor.
It is regrettable that the militant groups which should be most interested in seeing justice done, forthwith tagged the Commission as not independent in composition. They refused to heed invitations of the Commission to appear—not necessarily with witnesses to the killing, for they may have none (or if there were witnesses, we could not in conscience force them to testify if they were fearful of their safety), but if only to inform the Commission of their own bodycount of victims as well as to give their reasons why they believe that the military is responsible for the killings.
Nevertheless, this Commission gathered what information it could find from different sources. It became apparent early on that the number of killings, whether according to Karapatan or Task Force Usig, is one too many.
A. Factual backdrop
In the wake of a disturbing wave of unexplained killings of civilian activists and media personnel, President Gloria Macapagal Arroyo issued Administrative Order No. 157 entitled “Creating an Independent Commission to Address Media and Activist Killings.” The Commission was given the task to prioritize and focus investigation of media and activist killings and thereafter to submit recommendations to the President on policies and actions, including prosecution and legislative proposals, if any, aimed at eradicating the root causes of the extrajudicial killings and breaking such cycle of violence. Necessarily, the Commission’s first and foremost task was to determine the root cause of the said killings, and if possible, the persons or interest group responsible therefor.
The Commission was not created to solve the killings, or any of them, by pinpointing the actual gunmen involved. Neither will the Commission prosecute who it believes are the persons behind such killings. Those tasks, which would take years and an army of investigators and prosecutors to finish, would be best left to the regularly constituted law enforcement authorities and the Department of Justice.
B. Procedure
It was decided by the Commission that the most effective way of gathering the necessary information about the extrajudicial killings was to conduct public hearings at which evidence would be presented and resource persons and witnesses testify. The General Counsel, under the auspices of the Commission, would be responsible for gathering, sorting, and presenting the evidence and witnesses at the hearings.
Faced with a number of potential witnesses and resource persons, the Commission planned to invite resource persons or witnesses from the various activist or militant groups, families of victims, as well as the police and military authorities.
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Since the Commission essentially relied on the voluntary cooperation of witnesses and resource persons, there was nothing the Commission could do about the reluctance of the activist groups to join the investigation, except perhaps by demonstrating its independence, probity, and integrity in the hearings to be held and in its eventual report.
In the meantime, due to the lack of other witnesses and resource persons from the activist and militant groups, the Commission opted to call the police and military authorities to provide their own information on the extrajudicial killings.
The Commission first called the Philippine National Police, which sent Gen. Avelino Razon, Deputy Director of the PNP, together with his retinue. Gen. Razon is likewise the head of Task Force Usig, which was created to investigate, solve, and otherwise handle the same extrajudicial killings, and it was in his capacity as such head that he appeared before the Commission. The Commission was likewise informed that Task Force Usig was instructed by the President herself to cooperate fully with the Commission. Gen. Razon presented a comprehensive report on the activities of Task Force Usig and their views and opinions on the suspects behind the killings.
Thereafter, the Commission called on the Armed Forces of the Philippines, which was represented by the Chief of Staff Gen. Hermogenes Esperon, who gave a brief report or statement on the killings, and answered various questions propounded by the Commission. The next witness was Retired Gen. Jovito S. Palparan, Jr., who was confronted for his image and reputation as the prime suspect behind the extrajudicial killings.
The Commission then extended an invitation to the Commission on Human Rights, which was represented by Chairperson Purificacion Quisumbing.
Thereafter, the Commission held hearings in Bacolod, Negros Occidental, and in Davao City on the alleged killings of peasants and non-governmental organization workers suspected to be perpetrated by hired goons of landowners. The Commission noted that these killings are within its mandate to look into, considering that the victims were farmers or peasant activists.
I. UNDISPUTED FACTS
From the proceedings, it became plain that certain matters and facts were well-nigh undisputed. Although not necessarily proven in such a manner that would be binding in a court of law, these facts are nevertheless accepted as such by all concerned and, therefore, may be presumed to be true.
The first undisputed fact is that there indeed have been extralegal killings, and that the victims were almost entirely members of activist groups or were media personnel. The numbers of victims and the theories behind their deaths vary between the versions of the PNP and the military, on one hand, and Karapatan and Amnesty International, on the other. However, it is undisputed that there were killings.
More importantly, it is also undisputed that there was a rise in the number of killings to an extent sufficient to alarm activist groups, non-governmental organizations, the PNP, and, in fact, the President herself. Similarly expressing concern was the international community, especially the European Union. The military and police authorities likewise agree with the activist groups that there was even a rise in the extrajudicial killings of activists and militants between 2001 and 2006 as compared to a similar period prior thereto.
Likewise without dispute is the manner of the killings. From the reports of Task Force Usig, victims were generally unarmed, alone, or in small groups, and were gunned down by two or more masked or hooded assailants, oftentimes riding motorcycles. The assailants usually surprised the victims in public places or their homes, and made quick getaways. It is undisputed that the killings subject of the investigation did not occur during military engagements or firefights. These were assassination or ambush type killings, professional hits carried out quickly and with the assailants escaping with impunity.
It is also undisputed that the PNP has not made much headway in solving these killings. Out of the 111 killings of activists acknowledged by the PNP, only 37 had been forwarded to the proper prosecutor’s office for preliminary investigation or filed in court. Obviously, the reason for this poor score was the refusal of Karapatan and its allied groups to come forward and cooperate. Lastly, it is clear that the rise in killings of such activists whom the military brands as enemies of the state was to such an extent that it could not possibly be attributed to a simple increase in the crime rate. In fact, the circumstances clearly show that such killings of activists and media personnel is pursuant to an orchestrated plan by a group or sector with an interest in eliminating the victims, invariably activists and media personnel. The military establishment itself acknowledges this, by attributing the rise in killings to a “purge” of ranks by the CPP-NPA.
II. PRESENTATION OF WITNESSES/RESOURCE PERSONS
A. Task Force Usig; PNP Deputy Director Gen. Avelino I. Razon, Jr.
1. Introduction
Task Force Usig (TFU) was created, upon instructions of President Gloria Macapagal-Arroyo, by Secretary Ronaldo V. Puno of the Department of Interior and Local Government, to investigate the media and political killings.
2. Statistics on killed activists and newsmen/media men
TFU reported that from the 2001 to 2006, the total number of slain/party list members reached 111 while the total number of media men killed for the same period reached 26. TFU’s statistics are much lower than the figures reported by Karapatan and Amnesty International for the same period. According to Karapatan, there was a total of 724 killings while Amnesty International claims that there was a total of 244 killings. Gen. Razon could not explain the difference in the figures because according to him, Karapatan and Amnesty International have refused to meet with TFU. An updated report of TFU as of 23 November 2006 shows an increased total of 115 cases of killings of activists or militants. Out of this total, 46 cases are already “filed in court” and the remaining 69 are still under “extensive investigation and case build-up.”
2.1 Out of the 111 extrajudicial militant killings, 37 criminal complaints have been filed, while 74 cases are still under investigation. The low number of cases filed is allegedly due to: (1) lack of witnesses; (2) absence of sufficient evidence; and (3) the pendency of preliminary investigation. Gen. Razon further added that there is lack of confidence in the impartiality of police, fear of reprisal by other elements of society, and lack of interest of the victims’ families.
2.2 Of the total of 26 media persons killed, twenty one (21) cases have been filed while five (5) are still under investigation. When asked to explain the substantial difference in the efficiency of the investigation on media men killings vis-à-vis militant persons, Gen. Razon said that in the case of media personnel, there are more witnesses and the police have received more cooperation from the media.
3. Cases solved
Gen. Razon stated that the PNP deems a case solved in line with a NAPOLCOM Resolution stating that a “case is solved” when a suspect has been identified and charges have been filed before the prosecutor or the court, without prejudice to further investigation. However, Gen. Razon clarified that it is not an international definition.
In truth, the “solution efficiency” of 29% is even deceptive or misleading. As stated in TFU’s updated report “Out of the total 45 cases filed in court, the PNP has filed 5 cases with 8 arrested suspects who are all in jail; filed 25 cases under preliminary investigation, filed 1 case with surrendered suspect, while the suspects for the remaining 15 incidents are still at large and are subject of manhunt operations.” It is not, therefore, entirely accurate that 45 cases have already been filed in court since “25 cases [are] under preliminary investigation.” Thus, only 20 cases have actually been filed in court; 25 cases are only under preliminary investigation. These cases may yet be dismissed for lack of probable cause. Of the 20 cases filed in court, the accused or suspects have been arrested in only (6) cases. It cannot then be accurately said that the accused in the 27 cases have been brought to justice. Indeed, with respect to the 78 cases still under “extensive investigation,” it is even doubtful whether the perpetrators can even be identified.
When asked for the meaning of the term of “under extensive investigation,” Gen. Razon said in each case, regular case conferences are held, more men are assigned to investigate and the organization of special teams such as TFU. Upon inquiry, he replied that TFU receives a monthly budget of P300,000.00. As an incentive, each member of the unit receives P5,000.00 for every suspect captured or case solved. Gen. Razon further testified that the PNP has not been successful in investigating the killings of militants because the CPP/NPA has terrorized the witnesses.
4. Reason for political killings.
Gen. Razon admitted that TFU still cannot explain the reason for the increase in political killings. Thus, TFU fell short of its objective to “establish who is responsible for the killings” and to determine whether there is a pattern of serialized killings victimizing leftist activist and journalist.”
4.1 Gen. Razon refused to attribute the upsurge of political killings to the President’s declaration of an all out war against the communist insurgents.
4.2 But he was quick to say that their records show that the killings are the result of CPP/NPA” own purging because of “financial opportunism.” Gen. Razon admitted that he agrees with the statement of Gen. Palparan that organizations such as Karapatan and Bayan Muna are “fronts” of the CPP-NPA, and that unless “we stop fooling ourselves that they are not fronts, we will not be able to solve the insurgency problem.” He further asserted that the NDF and Bayan Muna provide support, money, resources, and legal assistance to the CPP/NPA.
However, when asked by Chairman Melo whether TFU has data on whom among those killed were finance officers, Gen. Razon could point to only two victims who were allegedly involved in financial operations.
5. TFU did not investigate Gen. Palparan, nor was he asked to account for his statements.
5.1 Notwithstanding the widespread reports that Gen. Palparan had been suspected of being involved in the extrajudicial killing of leftist activists, TFU never summoned Gen. Palparan for questioning or investigation. Gen. Razon made it clear that Gen. Palparan is not under the jurisdiction of the PNP or Task Force Usig. Moreover, he stated that there was still no basis/evidence to summon or investigate a personality such as Gen. Palparan. The PNP needs to operate within the law. Hence, it needs evidence before it can investigate officers.
Atty. Vinluan pointed out, however, that the purpose of investigation is precisely to gather evidence. PNP does not need evidence before it can investigate Gen. Palparan
5.2 Gen. Razon testified that TFU did not ask the Deputy Ombudsman for the Military to look into the alleged violations of Gen. Palparan and the military. However, he supposedly asked the head of the AFP to look into the participation of the military in the killings. Atty. Vinluan asked for copies of such letter-request.
6. Command responsibility
TFU did not investigate higher-ranking military officials. Gen. Razon claimed that the PNP cannot go further than the suspect. If the Sergeant remains silent or refuses or fails to point to the involvement of a superior officer, the PNP cannot go higher.
TFU pointed out that military operations are beyond the scope of the TFU. Since the military conducts its own operations. TFU investigated only four military personnel.
7. Personal opinion
When asked by Chairman Melo whether he would have summoned Gen. Palparan if the latter were under his command, Gen. Razon replied that he would have immediately called Gen. Palparan “to explain why there was an apparent increase in the incident[s] in the areas where he was assigned.” But Gen. Razon also said that Gen. Palparan will not incriminate himself.
8. Recommendations of TFU
To conclude his testimony, General Razon made the following recommendations for the successful investigation and prevention of future killings:
8.1 Closer collaboration of law enforcement/prosecution without sacrificing their impartiality;
8.2 Faster issuance of warrants of arrests;
8.3 Expedite conduct of preliminary investigations;
8.4 Strengthen Witness Protection Program, increase budget to provide economic opportunities for families.
B. AFP Chief of Staff Gen. Hermogenes Esperon:
1. Opening Statement: AFP Policy and Practice
Gen. Esperon sternly declared that the AFP does not condone or employ summary executions as a matter of policy and practice. Neither does it tolerate abuses, crimes, or summary executions. The AFP is a professional institution, which does not engage in summary executions. The AFP, in fact, operates on the basis of the Constitution and thus holds the value of human life to the highest degree. Several publications have been made to educate AFP’s soldiers:
a. AFP Standing Rules of Engagement
b. Protection of Non-Combatants in the Philippines
c. The Philippine Army Soldiers’ Handbook on Human Rights and
International Humanitarian Law
d. Primer on the Comprehensive Agreement on the Restrict for
Human Rights and International Humanitarian Law
e. Rules of Behavior on Combat
f. Love of Country/Pagmamahal sa Bayan
g. Code of Ethics
Gen. Esperon further said that it is unfair to link the AFP to all political killings just because the political inclination of the victims is toward the left. He stated that the AFP has been stereotyped as the perpetrator of the extra-judicial killings of journalists and militants. Subjecting the AFP to a trial by publicity is a modus-operandi by the CPP-NPA.
However, Gen. Esperon refused to categorically state that the AFP has absolutely nothing to do with the killings of activists, as such statement might be too presumptuous.
2. Reaction to Gen. Jovito Palparan’s Statement “Bayan, Karapatan, Anak ng Bayan are all front organizations of the CPP-NPA with Bayan Muna as the umbrella organization”.
Gen. Esperon agreed that there is truth to the said statement. He claimed that the CPP-NPA uses as a shield the National Democratic Front (NDF), which is an aggrupation of legal organizations that are infiltrated with members of the CPP-NPA. For example, Bayan Muna, while being a legal organization has elements that are also members of the CPP-NPA. These members are conveniently hiding under a legal organization to serve the ends of the CPP. Therefore, these organizations become the front organizations of the armed struggle of the NPA. What is meant by the term “front organizations” is that many members of the legal organization are identified members of the NPA. These members, who are identified with the CPP-NPA, are fooling these (legal) organizations to be the umbrella of the CPP-NPA and work ultimately, wittingly or unwittingly, for the cause of the CPP-NPA.
3. Presentation entitled “Knowing the Enemy”
Gen. Esperon confirmed the existence of an AFP Briefing presentation entitled “Knowing the Enemy” which explicitly accuses progressive leftist organizations of being front organizations of the CPP-NPA.
4. AFP considers the CPP-NPA as “enemy of the state”
The CPP-NPA is treated as an enemy of the state because the Philippines is a democratic state. The CPP-NPA wants to supplant our democratic way of life with a communist ideology.
However, Gen. Esperon was quick to clarify that it does not follow that the AFP similarly treats some left-wing organizations (which are considered front organizations of the CPP-NPA) as enemies of the state because these are legal organizations and serve a function in a democratic way of life. He added that Gen. Palparan’s statement that Congressmen Satur Ocampo and Teddy Casiño are “enemies of the state” might have been prompted by the fact that the former was a known member of the CPP.
5. Reaction to Gen. Palparan’s statement, “Even though they are in government, as Congress representatives, no matter what appearance they take, they are still enemies of the State”, as reported in the Philippine Daily Inquirer, May 16, 2006 issue.
Gen. Esperon said he has not been given a manuscript that contained the said statement. He added that there could be truth to the matter in light of a narration made by a certain Mr. Piedad, a former NPA Commander and a witness to the mass graves in Inupakan, Leyte. According to Mr. Piedad, the orders for the mass killings came from NPA personalities which are known in the filed as Ka Gres, Joma Sison, Ka Louie and Ka Satur. In another incident at Aurora, a letter was uncovered which mentions the name “Ka Satur” as responsible for the purchase of Five Million Pesos (P5,000,000.00) worth of explosives. Though the real identity of “Ka Satur” is unknown, it seems to be a popular name in the underground. Thus, this could be the basis for Gen. Palparan’s statements.
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11. Procedure for complaints filed
When asked about the AFP’s investigations into killings, General Esperon stated that before an investigation can commence, a complaint must first be filed. From the years 2000 to 2006, a total of 770 complaints were investigated. Complaints come from the Commission on Human Rights, the victims themselves, foreign or non-governmental organizations, the Department of Foreign Affairs, or the joint-monitoring committee. Thereafter, the report of the investigation will be submitted to the General Headquarters.
However, Gen. Esperon added that although the AFP entertains the complaints filed, it is the PNP which is the rightful or correct agency to proceed with the criminal investigation, with the AFP simply cooperating with the PNP by giving inputs and making its personnel available for investigation.
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15. AFP Investigation of Gen. Jovito Palparan
It was noted that there was an increase in activist killings in the areas where Gen. Palparan was assigned. Thus, it earned him the moniker “Butcher” or “Berdugo.”
Gen. Esperon said that an internal investigation was conducted by the AFP. However, no formal investigation was conducted since no formal complaints were filed against Gen. Palparan. The internal investigations conducted were informal in nature and thus, no records were kept.
Moreover, when the reports came out in the media, Task Force Usig was already organized. Thus, the AFP deemed it more appropriate to let the task force conduct any investigation lest the AFP be accused of whitewashing the matter.
Additionally, Gen. Esperon said that to investigate Gen. Palparan during the time when he was neutralizing the NPA would have been counterproductive. Although Gen. Esperon admitted that the AFP has the power and authority to investigate if any of its officers has violated certain rules and regulations, such investigation may, however, muddle or obstruct any on-going operation. Gen. Esperon added that the AFP has confidence in the duly constituted investigative body.
Atty. Vinluan mentioned an incident in Mindoro wherein Eden Marcellana and Eddie Gumanoy were abducted by 20 men believed to be members of the military and military assets. Gen. Esperon could not say whether an investigation was conducted on the matter, reasoning that he was stationed in Basilan at the time the incident happened.
16. Reaction on the following statements made by Gen. Palparan:
General Esperon was asked for his reaction to General Palparan’s public image and statements appearing in media reports, among which were as follows:
Potential vigilante style actions by anti-communist elements outside the military organization cannot be stopped completely and the killing of activists are necessary incident to conflict.
I cannot order my soldiers to kill, it’s their judgment call, they can do it on their own.
I encourage people victimized by communist rebels to get even.
The killings are being attributed to me but I did not kill them, I just inspire the trigger men.
Their (three student doing research work outside Manila) disappearance is good for us but as to who abducted them we don’t know.
Gen. Esperon refused to answer any question in relation to Gen. Palparan’s statements, reasoning that Gen. Palparan himself should be the one to answer the same.
Chairman Melo asked Gen. Esperon if it occurred to him to call Gen. Palparan to explain his statements. Gen. Esperon related that he called Gen. Palparan regarding the three (3) students who disappeared. Gen. Palparan denied any involvement and expressed his willingness to submit to any investigation by the Task Force Usig. Gen. Esperon added that he recalled calling Gen. Palparan about a statement (he forgot which) and the latter said he was misquoted by the newspaper. Gen. Esperon advised him to be careful with his statements.
Gen. Esperon said that assuming the above-statements were true, those “are not right words that should come from an officer.” He added that the statements, if true, do not reflect well on the AFP, but it does not mean that the military should be blamed for the killings.
It appears that the AFP did not investigate Gen. Palparan on the matter on the ground that no formal complaint was lodged.
17. Command Responsibility
When asked about his concept of command responsibility, General Esperon stated that it means that a commander is responsible for what his men do or fail to do in terms of accomplishing the mission. It does not include criminal liability of the superior if his men or subordinates commit an illegal act that is criminal in nature. Only the subordinate should be liable for the criminal act and not the superior commander. The commander is responsible only for acts he authorized.
In relation to reported abuses allegedly committed by Gen. Palparan, Gen. Esperon said that these are only accusations and that no complaints were filed. Moreover, he reiterated that the matter is left to be investigated by Task Force Usig and the Commission.
18. Actions that may be undertaken by the AFP to prevent extrajudicial killings
When asked what the AFP is doing to prevent extrajudicial killings, General Esperon simply mentioned that the AFP has its rules on engagement and that the AFP conducts courses which have a module on human rights and there are several publications to reinforce AFP’s observance of human rights. Atty. Vinluan suggested that in order to stop extrajudicial killings, the military should correct the impression that left wing organizations, such as Bayan Muna, Gabriela, and Anak Pawis, are fronts of the CPP-NPA. Gen. Esperon countered that Satur Ocampo should denounce the NPA. By doing so, the AFP will know that previous members of the CPP-NPA have truly severed their relations with the underground.
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21. Summary/Notable Matters:
a. The AFP did not conduct any formal investigation of suspects, but admits a rise in reported killings.
b. General Esperon is convinced that the recent activist and journalist killings were carried out by the CPP-NPA as part of a “purge.” Captured documents supposedly prove this. The full contents or a copy of the documents, however, were not presented to the Commission.
c. Likewise, General Esperon was firm in his position that the victims were members of the CPP/NPA and that the activist organizations, while legal, are infiltrated by the CPP-NPA. He stated that these organizations are being manipulated by the NPA.
d. Gen. Esperon admitted receiving reports about Palparan being suspected of conducting extrajudicial killings, being called Berdugo, etc. but he attributed this to propaganda of CPP/NPA.
e. General Esperon admitted that no formal investigation was conducted by the AFP on General Palparan, simply because no complaint was filed. He mentioned that he merely called General Palparan on his cellphone and did not go beyond the latter’s denials.
C. Maj. Gen. Jovito S. Palparan:
1. Introduction
Maj. Gen. Jovito S. Palparan served in the Armed Forces of the Philippines for thirty-three (33) years before his retirement on September 11, 2006. He was invited by the Commission to shed light on the heightened number of extrajudicial killings of media workers and political activists that transpired in the various posts to which he was assigned including, but not limited to, the following:
Commanding General – 7th Infantry Division, Central Luzon
September 2005 – September 2006
Commanding General – 8th Infantry Division, Eastern Visayas
February 2005 – August 2006
Brigade Commander – 2nd Infantry Division, Mindoro
May 2001 – April 2003
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3. Organizations/Party List Representatives as support systems of the CPP-NPA; Enemies of the State
Gen. Palparan stated that certain Organizations and Party List Representatives act as support systems providing materials and shelter for the CPP-NPA. However, when asked to name these organizations, Gen. Palparan declined to mention them publicly but only agreed to disclose the names of these organizations in a closed-door session.
When asked about his previous statements accusing party list organizations such as Bayan, Karapatan, Gabriela, and Anak Bayan as front organizations of the CPP-NPA with Bayan Muna as the umbrella organization, Gen. Palparan neither confirmed nor denied having made these statements.
Upon further questioning, however, Gen. Palparan said that he based this information on video clippings of CPP Chairman Joma Sison naming certain “National Democratic Front Organizations” as the support systems of the CPP NPA.
Gen. Palparan affirmed his earlier statement made before the Court of Appeals wherein he said that these seemingly legitimate and ordinary organizations are actually enemies of the state. He made an exception, however, with respect to members of these organizations who may not really be enemies of the state but are considered as such due to their membership in these organizations.
In an interview by Pia Hontiveros and Tony Velasquez on the TV Program “Top Story,” Gen. Palparan was asked why he considered organizations like Bayan Muna as fronts for the NPA. In response thereto, Gen. Palparan said “… a lot of the members are actually involved in atrocities and crimes …” When asked what evidence he had to support this allegation, he said that he had no evidence, but that “he could feel it.” At the Commission hearing, however, Gen. Palparan said that there are witnesses who are former members of these organizations that have severed their membership who can attest to this. These witnesses or their statements were not presented to the Commission. Gen. Palparan also stressed that “a lot of members” and not all members are involved in atrocities and crimes.
4. Gen. Palparan’s Statements implicating specific Party List Organizations
Gen. Palparan was reported to have made the following statements before the media implicating specific Party List Organizations such as Bayan, Karapatan, Gabriela, and Anak Bayan as fronts for the NPA, to wit:
“Even though they are in Government as Party List Representatives, no matter what appearance they take, they are still Enemies of the State.” (May 16, 2006, Philippine Daily Inquirer)
“The Party List Members of Congress are doing things to further the revolution, the communist movement… I wish they were not there…” (Interview with Pia Hontiveros and Tony Velasquez — Top Story)
“It is my belief that these members of party list in Congress are providing the day-to-day policies of the rebel movement” (February 3, 2006, French Press Agency)
When asked to confirm during the Commission hearing whether or not he made these statements before the media, Gen. Palparan only confirmed the statement given in “Top Story.” With respect to the others, he simply evaded the issue by saying that he was not sure or that he could not recall making the statements. When asked to name which organizations he was referring to as enemies of the state, Gen. Palparan responded “… I just want to be general, I just don’t want to specify …”
During the latter part of his testimony, however, when he was being questioned by Chief State Prosecutor Zuño, Gen. Palparan specifically named Bayan Muna as a recruitment agency of the CPP NPA in Mindoro, to wit:
… in the course of our operation, there were some reports that that BAYAN MUNA headquarters at the time in Mindoro was used as a hideout of the armed group. And as I said, a recruitment agency because they recruit young people there as members of some organizations then eventually go up in the mountain. And then, there were those who surrendered to us confirming this…
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8. Collateral Damage; Civilians and Local Officials; Vigilante Killings
During the course of his testimony, Gen. Palparan confirmed making the following statements:
8.1 Civilians Killed in Crossfire
My order to my soldiers is that, if they are certain that there are armed rebels in the house or yard, shoot them. It will just be too bad if civilians are killed in the process. We are sorry if you are killed in the crossfire.
9.2 Collateral Damage
There would be some collateral damage, but it will be short and tolerable. The enemy would blow it up as a massive violation of human rights. But to me, it would just be necessary incidents.
8.3 Death of Civilians and Local Officials
Sorry nalang kung may madamay na civilian;… The death of civilians and local officials were ‘small sacrifices’ brought about by the military’s anti-insurgency campaign. – Philippine Daily Inquirer 12 September 2006
8.4 Vigilante-Style Actions by Anti-Communist Elements Outside the Military:
[T]hey cannot be stopped completely … the killings, I would say are necessary incidents in a conflict because they (referring to the rebels) are violent. It’s not necessary that the military alone should be blamed. We are armed, of course, and trained to confront and control violence. But other people whose lives are affected in these areas are also participating …
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In fact, Gen. Palparan confirmed his statement given before the House of Representatives’ Committee on National Defense and Security on May 25, 2005 wherein he said: “I cannot categorically deny that (referring to the military having special units, not properly identified in bonnets and masks, operating in the middle of the night.)” Gen. Palparan, however, also said that if there are facts proving that they (soldiers) are engaged in such activities, he is willing to submit them. He also denounced any involvement by the AFP in the acts that may have been carried out by individual soldiers.
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14. CPP-NPA Purge Theory
Significantly, however, when asked about CPP/NPA’s participation in the political killings, he testified that the killings are not attributable to the alleged CPP/NPA purge. “I don’t charge it to NPA purge.” He also mentioned that he had “to be skeptical on th[ese] report[s].”
III. CASE STUDIES
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B. Methodology of Attacks
The extrajudicial killings of activists were carried out in a great number of cases by unidentified men riding on motorcycles wearing helmets or bonnet masks.
The attackers rode in tandem on their motorcycles, with the backrider getting off to do the shooting. In some of the cases where the attackers killed their victims on foot, they made their escape using motorcycles.
The efficiency and confident manner with which the attacks were undertaken clearly suggest that the killers were well-trained professionals who knew their business well. Many of the attacks were carried out during daytime and consummated with a limited number of shots hitting their intended target. The families of the victims in many of the cases reported previous death threats or surveillance by suspected military or police personnel.
IV. FINDINGS
From the evidence and presentations received by the Commission, it became apparent early on that the Commission must differentiate its inquiry into the killings of activists from those of media personnel and agrarian reform movement. It appeared that the killings of media personnel are more or less attributable to reprisals for the victims’ exposés or other media practices. In the media killings, local politicians, warlords, or big business interests are viewed as the parties responsible for the killings, while in agrarian reform related killings, it is suspected that landowners and those opposed to the implementation of land reform are behind the killings. On the other hand, the killings of activists were invariably laid at the doorstep of the military.
The investigation of killings of media personnel by the PNP was notably more successful than that that of activist killings. For the media killings, formal complaints have been filed in a great majority of cases. Suspects in the media killings have been named and identified. In activist killings, there have been a measly number of complaints filed with the authorities.
In all, the killings of media personnel have been, more or less, solved, compared to the activist killings and agrarian reform related killings. On the other hand, it is not clear if the agrarian reform related killings have the same etiology as the activist killings. Thus, the Commission hereby sees fit to submit its findings on activist killings independently of that of the media killings and agrarian reform related killings.
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AGRARIAN REFORM RELATED KILLINGS
With the exception of Hernando Baria, the killing of farmers-activists appeared to have followed the same pattern as other activists. In the case of the Vigo spouses, their killing could have been motivated by political reasons or by reason of their perceived ties with the NPA. In the case of Enrico Cabanit, it appears that he was killed for his activities as a peasant farmer leader, and not for affiliation with politicians or with the NPA. In any case, their deaths are equally deplorable and cannot be countenanced. Most of the cases of agrarian related killings have pending investigations or legal action before the proper authorities. Hence, the result of such investigations should shed more light on the persons or interests behind the killings. In this regard, the prosecution and law enforcement authorities concerned should expedite the investigation and prosecution of these crimes. Particular attention should be placed on the investigations being undertaken by the police in the various cases, specifically that of Cabanit, it appearing that the police seemed to have failed to earnestly and properly investigate the same.
ACTIVIST KILLINGS
From the evidence gathered, and after an extensive study of the same, the Commission comes to the conclusion that there is no direct evidence, but only circumstantial evidence, linking some elements in the military to the killings. THERE IS NO OFFICIAL OR SANCTIONED POLICY ON THE PART OF THE MILITARY OR ITS CIVILIAN SUPERIORS TO RESORT TO WHAT OTHER COUNTRIES EUPHEMISTICALLY CALL “ALTERNATIVE PROCEDURES” – MEANING ILLEGAL LIQUIDATIONS. However, there is certainly evidence pointing the finger of suspicion at some elements and personalities in the armed forces, in particular General Palparan, as responsible for an undetermined number of killings, by allowing, tolerating, and even encouraging the killings.
A. THERE IS SOME CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE PROPOSITION THAT SOME ELEMENTS WITHIN OR CONNECTED TO THE MILITARY ARE RESPONSIBLE FOR THE KILLINGS:
No witness came forward to testify that he or she witnessed the military or any military personnel actually participate in any extrajudicial killing. Neither are there in almost all the cases any eyewitnesses to the killings who could actually identify the perpetrators, much more identify them as members of the military.
Quite deplorable is the refusal of the activist groups such as Karapatan, Bayan Muna, etc., to present their evidence before the commission. If these activist groups were indeed legitimate and not merely NPA fronts, as they have been scornfully tagged, it would have been to their best interest to display the evidence upon which they rely for their conclusion that the military is behind the killings. In fact, this refusal irresistibly lends itself to the interpretation that they do not have the necessary evidence to prove their allegations against the military. It would not even be unreasonable to say that their recalcitrance only benefits the military’s position that they are indeed mere fronts for the CPP-NPA and thus, enemies of the state.
Nevertheless, despite the refusal of the activist groups to cooperate, and regardless of the question of their legitimacy, certain facts, taken together with admissions and statements by the witnesses, lead the Commission to conclude that there is some circumstantial evidence that a certain group in the military, certainly not the whole military organization, is responsible for the killings. To maintain otherwise would be closing one’s eyes to reality.
1. Motive
At once, it becomes clear that perhaps a small group in the armed forces may be said to have the motives for the elimination of the civilian activists. In a great majority of the cases of activist killings, the only explanation for the victims’ deaths is the fact that they were allegedly rebels, or connected with the CPP/NPA. Apart from a negligible few solved cases, the PNP has not uncovered any other explanation for their killing.
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2. Capacity and Opportunity
The suspected group in the military has no doubt the capacity or the means to carry out the killings. In fact, the killings appear to be well organized and the killers adequately equipped. More telling, however, is the fact that, with the CPP-NPA out of the question, only a group with certain military capabilities can succeed in carrying out an orchestrated plan of eliminating its admitted enemies.
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3. Reaction
Likewise, the reaction of some officers of the armed forces to the rising number of killings lends itself to the inference that they were not much averse to what was happening. Practically nothing was done to prevent or investigate the killings, not even to look into the worsening public opinion and accusations against General Palparan.
4. General Palparan
The rise in killings somehow became more pronounced in areas where General Palparan was assigned. The trend was so unusual that General Palparan was said to have left a trail of blood or bodies in his wake wherever he was assigned. He “earned” the moniker “Berdugo” from activist and media groups for his reputation. General Palparan ascribes his grisly reputation to his enemies, as part of their propaganda campaign to discredit him and to denigrate his excellent performance in implementing the various missions and programs assigned to him by his superiors.
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General Palparan’s numerous public statements caught on film or relayed through print media give the overall impression that he is not a bit disturbed by the extrajudicial killings of civilian activists, whom he considers enemies of the state. He admits having uttered statements that may have encouraged the said killings. He also obviously condones these killings, by failing to properly investigate the possibility that his men may have been behind them.
General Palparan’s statements and cavalier attitude towards the killings inevitably reveals that he has no qualms about the killing of those whom he considers his enemies, whether by his order or done by his men independently. He mentions that if his men kill civilians suspected of NPA connections, “it is their call,” obviously meaning that it is up to them to do so. This gives the impression that he may not order the killings, but neither will he order his men to desist from doing so. Under the doctrine of command responsibility, General Palparan admitted his guilt of the said crimes when he made this statement.
Worse, he admittedly offers encouragement and “inspiration” to those who may have been responsible for the killings.
He also admits to having helped in the creation of so-called “barangay defense forces”, which may or may not be armed, to prevent the entry of CPP/NPA in such barangays. Such defense forces are equivalent to an unofficial civilian militia. It is well-known that such militia can easily degenerate into a mindless armed mob, where the majority simply lord it over the minority. This is a fertile situation for extrajudicial killings. In this way, General Palparan contributed to the extrajudicial killings by creating ideal situations for their commission and by indirectly encouraging them.
Then too, during a hearing before the Committee on National Defense and Security of the House of Representatives held on May 25, 2005, General Palparan was asked the following questions by the Chairman of the Committee,Congressman Roilo Golez:
“The Chairman: Thank you, Your Honor. May we have your comment on the accusation that you have special teams not properly identified in bonnets or masks operating in the middle of the night?”
“Mr. Palparan: Your Honor, I cannot categorically deny that and also admit that, but our operations …”
“The Chairman: You do have teams that operate that way?
“Mr. Palparan: I don’t have official policy on that matter.”
The lack of a categorical denial on the part of Gen. Palparan in respect of whether the units under his command “have special teams not properly identified [and] in bonnets or masks operating in the middle of the night” is, as a matter of law, an admission of the existence of such special teams. Obviously, such special teams operating in the middle of the night wearing masks or in bonnets have only one sinister and devious purpose or objective: the extrajudicial elimination of the enemies of whoever formed these teams.
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B. GENERAL PALPARAN AND PERHAPS SOME OF HIS SUPERIOR OFFICERS, MAY BE HELD RESPONSIBLE FOR FAILING TO PREVENT, PUNISH OR CONDEMN THE KILLINGS UNDER THE PRINCIPLE OF COMMAND RESPONSIBILITY.
It being well-nigh obvious that some elements in the military were behind the killings of activists, it becomes equally plain that some ranking officers in the Army (for the Navy, Air Force and Coast Guard are not herein involved), have not performed their function of investigating or preventing the said killings, as well as punishing their perpetrators. Under the doctrine of command responsibility, one may be held responsible for the killings if he authorized, encouraged, ignored or tolerated the killings.
This failure to act may perhaps be attributed to the misconception of some that command responsibility extends only to acts which a commander orders or authorizes, and not to criminal acts of his subordinates done on their own, although he had knowledge or, had reason to know of, or should have known about the same. Failure to investigate and to punish is just as inculpatory.
1. Command Responsibility defined
Contrary to the apparently inaccurate notion of command responsibility entertained by some officers in the AFP, command responsibility in the modern international law sense is also an omission mode of individual criminal liability wherein the superior officer is responsible for crimes committed by his subordinates for failing to prevent or punish them (as opposed to crimes he ordered).
The doctrine of “command responsibility” is not unfamiliar, being a guiding principle in military organizations. The doctrine was formalized by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the Trial of Emil Muller. Muller was sentenced by the Court for failing to prevent the commission of crimes and to punish the perpetrators thereof.
The 1946 Yamashita case is a decision of the US Supreme Court which was appealed from the Philippine Supreme Court, when the Philippines was still a colony of the United States. The US Supreme Court convicted Yamashita as the superior of the Japanese forces which committed unspeakable atrocities throughout the Philippines, acts of violence, cruelty, and murder upon the civilian population and prisoners of war, particularly a large-scale massacre of civilians in Batangas, as well as wholesale pillage and wanton destruction of religious monuments in the country. The US Supreme Court determined that Yamashita possessed the duty as an army commander to control the operations of his troops, and was criminally liable for permitting them to commit such despicable acts. Various laws of warfare were cited as basis of such superior responsibility: Articles 1 and 43 of the Regulations annexed to the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention of 1907, and Article 26 of the 1926 Geneva Convention on the wounded and sick. The Court concluded that Yamashita possessed:
…an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by
our own military tribunals.
In the Medina case, concerning the infamous My Lai Massacre in Vietnam, it was held by an American Court Martial that a commander will be liable for crimes of his subordinates when he orders a crime committed or knows that a crime is about to be committed, has power to prevent it, and fails to exercise that power.
After the Hague Convention, the first international treaty to comprehensively codify the doctrine of command responsibility is the Additional Protocol I (AP I) of 1977 to the Geneva Conventions of 1949, Article 86(2) of which states that:
… the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from…responsibility…if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 obliges a commander to “prevent and, where necessary, to suppress and report to competent authorities” any violation of the Conventions and of AP I. In Article 86(2) for the first time a provision would “explicitly address the knowledge factor of command responsibility.” While the Philippines signed and ratified the Geneva Convention of 1949, it has only signed and has not ratified AP I.
The establishment of the International Criminal Tribunal for Yugoslavia (ICTY) by the United Nations Security Council has led to further international jurisprudence on the doctrine of command responsibility.
Article 7(3) of the ICTY Statute states that the fact that the crimes ‘were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.’ In Prosecutor v. Delalic et al (“the Celebici case”), the ICTY elaborated a threefold requirement for the existence of command responsibility, which has been confirmed by subsequent jurisprudence:
1. the existence of a superior-subordinate relationship;
2. that the superior knew or had reason to know that the criminal act was about to be or had been committed; and
3. that the superior failed to take the reasonable measures to prevent the criminal act or to punish the perpetrator thereof.
The applicable standards of knowledge defined in the second requirement can further be classified as: (a) “Actual knowledge” – which may be established by either direct or indirect evidence; and (b) “Had reason to know” wherein absence of knowledge is not a defense where the accused did not take reasonable steps to acquire such knowledge. Notably, in the case of Prosecutor v Timohir Blaskic, (“the Blaskic case”), it was held that ignorance is not a defense where the absence of knowledge is the result of negligence in the discharge of duties.
The latest expression of the doctrine of command responsibility in international law is in Article 28 of the Rome Statute of the ICC which states:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such
forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Article 28(a) imposes individual responsibility on military commanders for crimes committed by forces under their effective command and control if they ‘either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.’
Interpreted literally, Article 28(a) adopts the stricter “should have known” standard. Notably, the Trial Chamber in Celebici strongly suggested that the language of Article 28(a) may reasonably be interpreted to impose an affirmative duty to remain informed of the activities of subordinates. However, given the example afforded by the ICTY’s conflicting interpretations of the knowledge requirement in Article 86(2) of AP I, it cannot be assumed that a literal interpretation of Article 28(a) will be adopted by the ICC. In fact, the meaning of the phrase ‘owing to the circumstances at the time, should have known’ in Article 28(a) has already become a point of contention within international law literature. AP I and the Rome Statute, however, have not been ratified by the Philippines, but clearly the international trend is towards their application.
From the long line of international conventions and cases, it can be seen that the doctrine of command responsibility has evolved from its simplistic meaning at the time of the Hague Convention towards the much more stringent concept under the Rome Statute. Hence, in the Yamashita case, a commander had the duty to take appropriate steps or measures to prevent abuses on prisoners and civilians by his subordinates. In AP I, a superior is responsible if he fails to take feasible measures to prevent or report violations if he had knowledge or information of the same. In the Medina standard, the same responsibility extends to violations or abuses by subordinates which a commander “should have knowledge” of, meaning that the commander is now responsible for criminal acts of his subordinates of which he had actual or constructive knowledge. In the ICTY Statute and in the cases of Delalic and Blaskic, the commander is liable if he fails to act when he “had reason to know” that offenses would be or have been committed by his subordinates. The Rome Statute adopts the stricter “should have known” standard, in which the commander has an affirmative duty to keep himself informed of the activities of subordinates. Clearly, the indubitable trend in international law is to place greater and heavier responsibility on those who are in positions of command or control over military and police personnel, the only forces with the most lethal weapons at their disposal.
2. Command Responsibility as Binding Customary International Law
As early as 1949, the Philippine Supreme Court had the occasion to rule that the Hague Convention, including the doctrine of command responsibility, was adopted as a generally accepted principle of international law by the Philippines. In this case, shortly after the end of World War II, Shigenori Kuroda, a Lieutenant General in the Japanese Imperial Army, questioned before the Supreme Court the creation of a military tribunal that tried him for his “command responsibility” in failing to prevent his troops from committing abuses and atrocities against the Filipino populace during World War II. He claimed that the Hague Convention on Rules and Regulations covering Land Warfare, of which he was accused of violating, among others, was inapplicable since the Philippines was not yet a signatory or party to it when the alleged violations took place.
In ruling against Kuroda’s objection, the Supreme Court of the Philippines categorically stated that while the Philippines was indeed not a party or signatory to the Hague Convention at the times in question, it nonetheless embodied generally accepted principles of international law adopted by the 1935 Constitution as part of the law of the land. The Supreme Court, through Chief Justice Moran, stated:
It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.
Even without Kuroda, the doctrine of command responsibility has truly acquired the status of customary international law, and is thus binding on all nations despite the lack of any ratified treaty embodying it, at least insofar as the Philippines is concerned. Its long and universally accepted application since WWI until the present allows this. In fact, based on the jurisprudence of the ad hoc international tribunals, and of other international tribunals and national courts, as well as on state practice, no less than the International Committee on the Red Cross (“ICRC”), has pronounced the following as a rule of customary international humanitarian law, in both international and non-international armed conflicts, binding on all States:
Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.
More interestingly, the Philippines, even if not a party to Additional Protocol I to the 1949 Geneva Conventions, is among the states cited by the ICRC whose military manuals, military instructions, and legislation specify the responsibility of commanders for the crimes of their subordinates, confirming that the above rule has crystallized into a norm of customary international humanitarian law. In truth, the Philippine Armed Forces’ own Articles of War recognizes a commander’s responsibility for the actions of his subordinates under the general provision that a commander must maintain discipline within his ranks. Thus, Article 97 of the Articles of War states:
General Article. Though not mentioned in articles, all disorders and neglects to the prejudice of good order and discipline and all conduct of a nature to bring discredit upon the military services shall be taken cognizance of by a general or special or summary court martial according to the nature and degree of the offense, and punished at the discretion of such court.
Likewise, the utterance of statements which tend to induce subordinates to misbehave, such as words that would inspire subordinates to commit extrajudicial killings, is categorically punished in times of war under Article 76 of the Articles of War. Furthermore, Article 105 of the Articles of War recognizes the duty of commanding officer to punish men under his command for “minor offenses” and imposes a penalty for his failure to mete out the appropriate penalty when there is enough evidence to warrant such disciplinary measure.
Hence, it is clear that the doctrine of command responsibility in general has been adopted by the Philippines, as a generally accepted principle of international law, and hence, as part of the law of the land. The doctrine’s refinements and restatements – AP I and the Rome Statute, while signed by but as of yet lacking ratification by the Philippines, may be considered similarly applicable and binding. This was probably put best by Justice Perfecto in his separate opinion in Yamashita v. Styer, where he stated:
The treaties entered into between members of the family of nations are but specific definitions and reinforcements of the general common law of nations, the “unwritten” rules of warfare, which for centuries have limited the method and manner of conducting wars. The common law of nations, by which all states are and must be bound, dictates that warfare shall be carried on only in accordance with basic considerations of humanity and chivalry.
3. International and State Responsibility
While the killings are certainly not attributable to the military organization itself, or the State, but only to individuals or groups acting pursuant to their own interests, this does not mean that the State can sit idly by and refuse to act. Ultimately, the State has the responsibility of protecting its citizens and making sure that their fundamental liberties are respected.
The growing worldwide consensus for state responsibility for non-state acts posits that if the State fails to investigate, prosecute or redress private, non-state acts in violation of fundamental liberties, it is in effect aiding the perpetrators of such violations, for which it could be held responsible under international law. Of note is the ruling of The Inter-American Court of Human Rights in Velasquez-Rodrigues v. Honduras, viz:
172. […] An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.
173. […] What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. Thus, the Court’s task is to determine whether the violation is the result of a State’s failure to fulfill its duty to respect and guarantee those rights, as required by Article 1 (1) of the Convention.
174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.
175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages […]
177. In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serous manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.
The Inter-American Court of Human Rights eventually found Honduras, as a state, liable for the prolonged detention and disappearance of a detainee, thereby entitling the victim’s family to damages.
The same offenses may also give rise to liability for the commanders for damages under the municipal law of other States. In another case relevant to the Philippine setting, Maximo Hilao v. Estate of Ferdinand Marcos decided by the Ninth Circuit of U.S. Court of Appeals, victims and families of victims of human rights violations during the administration of Pres. Ferdinand Marcos filed a class suit against the estate of the late President seeking damages for human rights abuses committed against them or their decedents. The principal defense of the Marcos Estate was that the Estate would only be held liable for “acts actually committed by Ferdinand Marcos”. The U.S. Circuit Court of Appeals rejected this defense under the doctrine of command responsibility, holding that
“[A] higher official need not have personally performed or ordered the abuses in order to be held liable” and that “[R]esponsibility for torture, summary execution, or disappearances extends beyond the person who actually committed those acts – anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.” This shows that responsibility for acts committed in violation of customary international law may be recognized outside the state where they were committed by the international community.
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V. RECOMMENDATIONS
The Commission’s recommendations, which mostly fall within the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by the Economic and Social Council of the United Nations on May 24, 1989, are as follows:
A. Political will
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In the field of extralegal killings, it is urged that the President reiterate in the strongest possible manner her expressions or pronouncements of determination and firm resolve to stop the same. If extrajudicial executions are to be stopped, the political will to do what is right however great the cost must pervade all levels of government so that our beloved country can move towards the greater ideals of democracy and justice; it must start with the President who must pursue the prevention and prosecution of extrajudicial killings with urgency and fervor.
As recommended by Amnesty International, the Government must consistently and at all levels condemn political killings. The President and all the departments of the Government should make clear to all members of the police and military forces that extrajudicial executions will not be countenanced under any circumstances.
B. Investigation
To ensure that all reports and complaints of extrajudicial killings against the military are investigated promptly, impartially, and effectively, the investigation must be conducted by a body or agency independent from the armed forces. This civilian investigative agency should be independent of, and not under the command, control, or influence of the Armed Forces, and it must have control of its own budget. The personnel must be civilian agents well trained in law enforcement and investigative work and equipped with the necessary array of technical devices to enhance their investigative capabilities. They must be authorized to execute warrants and make arrests. They must be provided with an adequate forensic laboratory and other technical services. In the United States, the Army’s professional investigative agency is called the Criminal Investigation Division; the Air Force’s is called the Office of Special Investigation; the Navy and Marines are serviced by the Naval Criminal Investigation Service; and for the Coast Guard, the organization is called the Coast Guard Investigation Service. Our armed forces is not so big as to require separate agencies for its services. A single investigating body will be enough. The President should recommend legislation to Congress for the creation of a similar investigation agency to look into and prosecute complaints against military personnel.
On the part of the PNP, the law that created the National Police Commission (Rep. Act No. 6995) should be amended and strengthened to ensure the thorough and impartial investigation of erring police officers by personnel not under the control of the PNP command.
In the conduct of the investigation of extrajudicial killing of activists, or of any case for that matter, the PNP must be enjoined to ensure that the evidence must be strong and sufficient for conviction. The present policy of the PNP – as confirmed by Police Deputy Director General Avelino Razon, Jr. in his testimony before the Commission – to consider their job done or finished from the moment they have filed the complaint with the office of the public prosecutor has inevitably encouraged sloppy and shoddy investigations; it is not infrequent that police investigators, especially in remote areas, would file a case with the office of the public prosecutor, no matter how inadequate the evidence is, just so they can say that the case has been solved and if it is later dismissed for insufficiency of evidence they blame the prosecutor for incompetence or for being corrupt.
The office of the public prosecutor in each province or city must assign prosecutors to review all complaints filed by the police to evaluate the sufficiency of evidence not only to determine the existence of probable cause but also for conviction. If the reviewing prosecutor is of the opinion that the evidence is insufficient, then he must reject the complaint and return it to the police, indicating what additional evidence is needed. Once a complaint is accepted after such review, it means that there is enough evidence for a successful prosecution. This will avoid finger pointing on who is to blame for the dismissal of a case or acquittal of the accused and, more importantly, compel the police to do a thorough job in the investigation of every case.
If after the lapse of six (6) months from the commission of the extrajudicial killing of an activist or media personality the investigation by PNP has not yielded any positive result, the police personnel in charge must request the NBI to take over the investigation. For this purpose, the NBI must be provided with the necessary funds and allowed to hire additional personnel if necessary.
C. Prosecution
To ensure that those responsible for the extrajudicial execution of activists and media people are brought to justice and that the prosecution is handled with efficiency and dispatch, the Department of Justice (DOJ) must create a special team of competent and well-trained prosecutors to handle the trial of said cases. Also, the DOJ should request the Supreme Court to designate special courts to hear and try said cases and to require the courts so designated to give the highest priority to them, conduct daily hearings, and resolve them within six (6) months.
With respect to pending cases the prosecution of which has not been moving for lack of judges or because of the fault or negligence of the public prosecutor, the Office of the Chief State Prosecutor should make representations with the Office of the Court Administrator to detail judges to the vacant salas, or to designate special prosecutors to take over the prosecution, as the case may be.
As regards killings in areas where witnesses are afraid to testify because of fear of reprisal, steps should be taken to transfer the venue to Manila.
D. Protection of witnesses
As part of the need to ensure the successful prosecution of those responsible for extrajudicial killings, the present Witness Protection Program created under Republic Act. No. 6981 should be enhanced and made more effective so as to guarantee the safety of witnesses to the killings. The existing program is suffering from lack of funds and necessary manpower. The Government must give the highest priority to the improvement, strengthening, and funding of said program, preferably patterned after the U.S. federal witness protection program.
The program should also be made available to persons who have received death threats or who are otherwise in danger of extralegal, arbitrary or summary execution.
E. Special law for strict chain-of-command responsibility
The President should propose legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offenses committed by personnel under their command, control or authority. Such legislation must deal specifically with extralegal, arbitrary, and summary executions and forced “disappearances” and provide appropriate penalties which take into account the gravity of the offense. It should penalize a superior government official, military or otherwise, who encourages, incites, tolerates or ignores, any extrajudicial killing committed by a subordinate. The failure of such a government official to prevent an extrajudicial killing if he had a reasonable opportunity to do so, or his failure to investigate and punish his subordinate, or to otherwise take appropriate action to deter or prevent its commission or punish his erring subordinate should be criminalized. Even “general information” – e.g., media reports – which would place the superior on notice of possible unlawful acts by his subordinate should be sufficient to hold him criminally liable if he failed to investigate and punish his subordinate.
There should be no requirement that a causal relationship be established between a superior’s failure to act and the subordinate’s crime; his liability under the doctrine of command responsibility should be based on his omission to prevent the commission of the offense or to punish the perpetrator.
F. Enhancement of investigative capabilities of the PNP and NBI.
The investigative capabilities of the PNP and NBI should be improved and enhanced through the following measures, among others:
(a) improvement of the forensic laboratories and equipment of the PNP and NBI and further training of forensic technicians;
(b) establishment of a national automated ballistic information system;
(c) procurement of a software program for composite sketches of suspects;
(d) adoption of crime mapping in all police stations and NBI offices; and
(e) strengthening of the information reward system.
G. Proper orientation and training of security forces.
Perhaps much of the failure of the proper and accountable officers to prevent, investigate, or punish criminal acts by their subordinates stems from a lack of proper understanding and emphasis on the present concept of command responsibility. The AFP should be encouraged and supported to conduct intensive seminars, orientations, or training for mid to high-ranking officers, to make them conscious of the prevailing doctrines of command responsibility, and the ramifications thereof. This will hopefully foster responsibility and accountability among the officers concerned, as well as the men they command.
Understandable is the military’s wariness in dealing with the party list organizations. However, unless otherwise declared outside the law by competent authority, these organizations should be treated with fairness and their members should not be unilaterally considered as “enemies of the state.” As suggested in Amnesty International’s 14-point Program for the prevention of extra-legal executions: “The prohibition of extra-judicial executions should be reflected in the training of all officials involved in the arrest and custody of prisoners and all officials authorized to use lethal force and in the instructions issued to them. These officials should be instructed that they have the right and duty to refuse to obey any order to participate in an extrajudicial execution. An order from a superior officer or a public authority must never be invoked as a justification for taking part in an extra-judicial execution.”
VI. CONCLUSION
…
While communist insurgency must be addressed, the fight against it must not be at the expense of the Constitution and the laws of the nation, and it hardly needs emphasizing, not at the expense of innocent civilians. The armed forces is not a state within a state, nor are its members outside the ambit of the Constitution or of the rule of law. Ours is a government of laws, not of men. On the pervading reach of the rule of law, a legal luminary opined thus:
The rule of law is supposed to pervade our legal system…. The rule of law has been considered, in a government like ours, as equivalent to the supremacy of the Constitution. It is generally recognized that the Constitution sets the limits on the powers of government; it prevents arbitrary rule and despotism; it insures government by law, instead of government by will, which is tyranny based on naked force.
In the Philippines, just like in any rule-abiding society, there exists a hierarchy of human positive laws, the highest of which is the Constitution, “being the highest expression of the sovereign will of the Filipino people.” The principle of Constitutional supremacy was explained by an eminent authority in Constitutional law in this wise:
[The Constitution] is ‘the written instrument agreed upon by the people… as the absolute rule of action and decision for all departments and officers of the government… and in opposition to which any act or rule of any department or officer of the government, or even of the people themselves, will be altogether void.’ It is, in other words, the supreme written law of the land.
“The Philippines,” declares the Constitution, “is a democratic and republican State.” An essential characteristic of such State is the rule of law, which principle is expressly mentioned in the Constitution’s Preamble. According to the previously cited authority, the rule of law “expresses the concept that government officials have only the authority given them by law and defined by law, and that such authority continues only with the consent of the people”. Thus, without any hesitation, the Supreme Court in Callanta v. Office of the Ombudsman declared that “[i]n our jurisdiction, the rule of law, and not of men, governs,” while in Villavicencio v. Lukban, it upheld the primacy of law by declaring that “[n]o official, no matter how high, is above the law.”
The rationale for this rule of law was probably best expressed by Brandeis in this wise:
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means . . . . would bring terrible retribution.
In fact, the Supreme Court is not unfamiliar with the present situation. Of particular interest is the case of Aberca v. Ver. In ruling that pre-emptive strikes by the military against suspected communist safehouses violated the civil rights of the victims, and thus made the perpetrators thereof liable for damages, the Supreme Court, through Justice Pedro L. Yap, stated:
Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. “Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls.
x x x
It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, “to prevent or suppress lawless violence, insurrection, rebellion and subversion” in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch preemptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untrammeled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.
x x x
Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.
Even assuming that these victims and these “enemies of the state” are indeed guilty of crimes against the nation, they have not been convicted of the said offenses. If some military elements indeed had reason to believe that these persons were NPA agents or operatives, then they could have simply instituted the proper criminal actions against them and had them arrested. By declaring persons enemies of the state, and in effect, adjudging them guilty of crimes, these persons have arrogated unto themselves the power of the courts and of the executive branch of government. It is as if their judgment is: These people, as enemies of the state, deserve to be slain on sight. This, they cannot do. Such an abuse of power strikes at the very heart of freedom and democracy, which are, ironically, the very bylines and principles these rogue elements invoke in seeking the “neutralization” of these so-called enemies of state.
…
RESPECTFULLY SUBMITTED.
January 22, 2007.
JOSE A. R. MELO
ASSOCIATE JUSTICE (Ret.),
SUPREME COURT
Chairman
NESTOR M. MANTARING
DIRECTOR, NATIONAL BUREAU OF INVESTIGATION
Commissioner
JOVENCITO R. ZUÑO
CHIEF STATE PROSECUTOR
Commissioner
NELIA T. GONZALEZ
REGENT, UNIVERSITY OF THE PHILIPPINES
Commissioner
REV. JUAN DE DIOS M. PUEBLOS, D.D.
BISHOP OF BUTUAN
Commissioner
Attested:
ATTY. ROGELIO A. VINLUAN
General Counsel
