Danilo Reyes, Programme Officer, Asian Human Rights Commission, Hong Kong
On that day, the wife of Esmael Mangudadatu, a local politician, was to submit a Certificate of Candidacy on his behalf. He was to run for provincial governor. Local journalists joined them in a convoy going to the office of the Commission on Election (Comelec) in the municipality of Shariff Aguak. The journalists took interest to cover the filing of candidacy, as it was in the local political context historic. It was a challenge to the Ampatuans, the powerful ruling political clan. The Ampatuans were supporting Andal Ampatuan Jr., son of the then incumbent governor, Andal Sr., to succeed him as governor.
But before Esmael’s wife, her party and the journalists could reach the Comelec office, the local policemen, soldiers and paramilitary forces blocked their way at the highway. They were allegedly given orders by Andal Ampatuan Sr., then incumbent governor and also the patriarch of the Ampatuans; and his son, Andal Jr., to kill the group. All the victims were taken to a hilltop where they were executed. Their bodies were buried in a mass grave together with their flattened vehicles. The attempt to conceal completely any traces of evidence of the mass murder was prevented when it was discovered.
Right to effective remedy: sources of law
In this essay, I will inquire into the legal and human rights implications of court delays when a state party violates its domestic and the international legal obligations for the protection of human rights. I will inquire whether the Philippine government, a party to the International Covenant on Civil and Political Rights (ICCPR), has complied with its legal obligation ¡§to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy¡¨ under article 2(3)(a) of the Covenant.
The Philippines, a democratic and republican State, has stipulated in article 2, section 2 of the 1987 Constitution that it “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom….” To ensure its domestic compliance, the Constitution mandated the Commission on Human Rights (CHR) to monitor the Philippine Government’s compliance with international treaty obligations on human rights”.
Under article 3 (sections 14 & 16) of the Constitution’s Bill of Rights, the right to “speedy trial” of the accused and the right to “speedy disposition of cases” of the complainants are protected. These rights were further codified in domestic law via the Speedy Trial Act of 1998, and the Revised Rules of Criminal Procedure (Rule 115, on rights of accused; rule 116, arraignment and plea; and Rule 119, trial). The Philippines’ court system also adopts jurisprudence and case-law from foreign jurisdictions on condition that they satisfy with the ¡§generally accepted principles of international law”.
As a state party to the Optional Protocol of the ICCPR, legally the views and the recommendations of the United Nation Human Rights Committee (UNHRC) on individual complaints concerning cases on the Philippines are binding as they forms part of its international legal obligations. Also, apart from cases on the Philippines, it also binds itself to the views and recommendations by the Committee on cases from foreign countries; thus, this jurisprudence can legally be invoked in domestic courts.
However, I will examine the ongoing case of the Maguindanao massacre so as to ask whether the Philippines, who has legal obligations under article 2 of the ICCPR to ensure an “effective remedy” has at the domestic and international level met its obligations in reality.
The case study is followed by the Committee’s views and recommendation on two cases regarding the government’s compliance to article 2 of the ICCPR. I will examine whether the domestic laws and criminal procedures that purportedly ensure “effective remedy” conform to international laws; and whether the Constitution’s doctrine that it accepts international law “as part of the law of the land” operates in reality.
Case analysis: (in)effective right to remedy?
The magnitude of the Maguindanao massacre stands as evidence of an enormous challenge to the country’s system of justice in ensuring that the “right to speedy trial” and “speedy disposition of cases” is protected.
In this case, there are 196 defendants, each of them charged with 57 counts of murder for the death of 57 people, all charges being heard at the Regional Trial Court (RTC) in Metro Manila. The body of one journalist, which is required in prosecuting a murder case, could not be found. Over 500 others named only as “John Does” in the criminal charges have not yet been identified. Of the 196 defendants, 93 have been arrested; however, three of them have accused the police officers of arresting them in the place of real accused. Of the 93 defendants in detention, 29 of them have not been arraigned in open court yet.
Before the trial could begin, it took the National Prosecution Service, the prosecution arm of the Department of Justice, over two months to file the 57 counts of murder in court against the defendants. Here, although the prosecution body did comply with its legal obligation to complete the preliminary investigations in at least 40 days for ordinary cases and 90 days for cases involving public officials as required by the Revised Rules of Criminal Procedure, Rule 112 on Preliminary Investigation, to be able to proceed with the trial to ensure that an “effective remedy” is achieved has been problematic in reality.
The failure of the Philippine National Police to arrest the other 103 defendants, who are still at large two years after the massacre, has further delayed the trial of the case. Although all of the accused are charged for murder in a single incident, in determining criminal liability each must be arraigned, tried and examined individually in court during the trial. The accused could also question the merit of the case by submitting petitions and motions in court either to have their names excluded from the murder charges or having the entire case dismissed on question of merit.
However, not all motions and petitions filed by defendants, particularly those of powerful and influential political figures are in good faith. In this case, some defendants who invoked a remedial right filed their petitions to either exclude their names from the murder charge or dismiss case allegedly to deliberately delay the trial. To date, there are still 29 defendants, including Zaldy Ampatuan, former governor of the Autonomous Region in Muslim Mindanao, who have not been arraigned. Zaldy is the son of Andal Sr.
Under the Speedy Trial Act of 1998, section 6, in trial of criminal cases “in no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial”; however, four of the seven “exclusions” applicable in this case, as stipulated in section 10 of the same law, have rendered the law inoperative. These exclusions are delays due to trials with respect to charges against the accused; interlocutory appeals; hearings on pretrial motions from orders of inhibition, or proceedings relating to change of venue of cases; finding of the existence of a valid prejudicial question; and absence or unavailability of the accused or an essential witness. Thus, the delay in this trial has so far been justifiable in the domestic law.
I argue that these open-ended and broad exclusions have denied both the accused and the complainants their constitutional rights to speedy trial. The absence, if not lack of, adequate legal provisions that would ensure that motions and petitions that the defendants filed are examined thoroughly to prevent any attempt to deliberately frustrate the course of justice has exposed the court system as being open to manipulation. In this case, the defendants filed numerous petitions, motions and appeals that were legally justifiable in the ¡§exclusions¡¨ clause of the Speedy Trial Act.
Even though according to the Philippine Daily Inquirer “the court (had) practically holds three hearings a week — motions are heard on Mondays in Quezon City while the actual trial is conducted at Camp Bagong Diwa in Bicutan, Taguig City, on Wednesdays and Thursdays” (23 November 2011) for over a year now, there is no sign that the trial of the massacre case could reach its conclusion anytime soon.
Therefore, the remark by one of the private lawyers, Harry Roque that the trial could take “55,000 years” if we take as a basis that “it takes five years to try a single case in the Philippines” (according to one study) is not an overstatement. This could in fact be the length of the trial if the 196 defendants would be tried each for charges of 57 counts of murder.
Effective remedy: violations in international law
I argue that the Speedy Trial Act, in particular its section 10, does not conform to international norms and standards because its exclusions institutionalize delays in trial of cases and thereby deny an “effective remedy”. The domestic law and the rules of procedures that protect these rights exist, but they do not conform to international law. The domestic law rather has diluted substantive rights to be mere procedural rights.
The UN Human Rights Committee has already held that the Philippines was in two cases in violation of its obligation under the Covenant for failing to ensure the “effective remedies” at the domestic level.
In its views on Evangeline Hernandez v the Philippines (Communication No. 1559/2007, views adopted on 26 July 2010, UN Doc. CCPR/C/99/D/1559/2007), the Committee held it was in violation ¡§of article 6, as well as a violation of article 2, paragraph 3″ because domestic remedies had been “unreasonably prolonged”. The Committee reminded that the “State party may not avoid its responsibilities under the Covenant with the argument that the domestic courts are dealing with the matter, when the remedies relied upon by the State party have been unreasonably prolonged.”
Evangeline is the mother of Benjaline Hernandez, a human rights defender murdered by the military and paramilitary forces in Arakan, North Cotabato in April 2002. Evangeline filed the individual communication even without fully exhausting domestic remedies, arguing that investigations, prosecution and trial in her daughter’s murder “have been ineffective and unreasonably prolonged.” The Committee has also observed that for “over eight years later, at the time of examination of this communication, it would appear that criminal proceedings initiated against the accused have not yet been finalized.”
In another case, Lenido Lumanog and Augusto Santos v the Philippines (Communication No. 1466/2006, views adopted in 20 March 2008, UN Doc. CCPR/C/92/D/1466/2006), the Committee also held the state party violated article 14, paragraph 3 (c) of the Covenant because it failed in concluding the petition for review into the death sentences of the complainants for eight years. Here, the state party was reminded of its legal obligation with article 2, paragraph 3 (a), of the Covenant, to ensure “an effective remedy, including the prompt review of their appeal before the Court of Appeals and compensation for the undue delay”.
The complainants, Lenido Lumanog and Augusto Santos, are two of five torture victims, collectively known as the “Abadilla Five”. The five were illegally arrested and detained, tortured to confess and after over 14 years of trial, were convicted for the assassination of Rolando Abadilla, a police colonel, in June 1996. They were convicted based on the testimony of one witness, Freddie Alejo. Alejo’s credibility has been questioned.
Discussion and conclusion
In these two cases, the Committee found the Philippines has violated the rights of the complainants because the domestic remedies were ineffective and unduly delayed; however, legally these violations to international law had found justification under the country’s domestic law, notably the Speedy Trial Act. In the domestic legal framework, delay is justifiable as part of the domestic criminal legal process, even though in these two cases it constituted a breach of the ICCPR.
When domestic remedies are “ineffective and unduly delayed”, the aggrieved parties can file individual complaints with the Committee, since the Philippines has ratified the Optional Protocol of the ICCPR. Even when cases are within domestic procedural jurisdiction, the state could not invoke this as non-compliance to “exhaustion of domestic remedies.”
To my knowledge, the Committee’s views and opinions have so far not been implemented at the domestic level. While the country’s Constitution adopts the “generally accepted principles of international law”, without an established mechanism to fully implement the Committee’s views, even if a state is held to have committed the violations of the Covenant and international law it signed, the notion of “effective remedy” will not exist in reality.
The Maguindanao massacre is proof that the existing domestic mechanism, despite its recognition of the rights, is unable to comply with its international obligations because of the chronic defects of its own criminal justice system.
The recognition of these rights in the 1987 Constitution, the codification of statutory laws and in criminal procedures and adoption of jurisprudence from foreign countries will not have substantial benefits to ensure protection of the right to an “effective remedy”. A well-developed domestic mechanism is a precondition in order to implement these rights.
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Footnote: This article was originally written as part of the requirements for an LLM degree in Human Rights at the University of Hong Kong. Thank you to Kelley Loper, the director of the programme, for allowing it to be republished.
On 23 November 2009, 58 people were murdered, 32 of them were journalists, in a massacre in the southern province of Maguindanao, the Philippines. The mass murder, now known as “Maguindanao massacre”, was the largest number of journalists murdered in a single incident worldwide. The massacre’s sheer brutality shocked not only the Filipino society but also the world.
