Philippines Desk, Asian Human Rights Commission, Hong Kong
Silence, not dissent, has become the norm in the Philippines. Self-censorship about serious human rights problems prevails. The publication of the Asian Human Rights Commission previous report in article 2 (The criminal justice system of the Philippines is rotten, February 2007) was possible only because of victims of human rights abuses who were prepared to break their silence and speak up to make their complaints heard, despite the manifest disinterest in their plight of various authorities. The 110 cases in that first report contain details of widespread and systematic extrajudicial killing, enforced disappearance, arbitrary arrest and detention, and torture, notably of human rights and political activists. Many of the people became exposed to these types of violence precisely because they dared to make complaints. Some found that existing threats or difficulties they faced were compounded after they attempted to make complaints in good faith to uninterested officials.
The cases in that report were a small fraction of the total number in the Philippines at time of publication, but they spoke clearly to the phenomena of killings, torture and disappearance in the country, many of which go unreported because of the dangers that complainants face if they dare to seek redress and demand justice. In recognition of that fact, this new article 2 report, “Special report: The Philippines’ hollow human rights system”. (June & September 2012), is concentrated on the tribulations and trials of people in the Philippines who make complaints about gross abuses of their fundamental rights. For the report, we have selected cases from 2007 to 2012 to inquire into how the system for receipt and examination of complaints in the Philippines is not only failing to provide victims of abuses with redress, but furthermore is very often exacerbating their plight and placing people who are already at risk and in need of protection in further danger.
Complainants at the foundation of human rights work
Although the making of complaints of abuses is integral to any system for the protection of human rights, in the Philippines hardly any discussion exists about their role, or about what happens to those people who do complain.
To begin with, we need to keep in mind that in reality complainants come forward for a variety of reasons. In the Philippines, in truth most of them have no illusion of getting satisfactory remedies. Some want to see some kind of punishment of the perpetrators, some want recognition of the wrongs committed against them, and some want the government to take responsibility for the violations of their rights. But there are many others who want only to get into social discourse about their problems and suffering in engaging with the institutions of justice. These people complain with no expectation of any form of redress from the state at all.
Complainants and the substance of their complaints of abuses are at the foundations of human rights work. They are not mere appendices to the defence of human rights. In the Philippine legal system, the complainant formally plays prominent role. The legal system’s mechanisms are heavily dependent on them, and on paper afford utmost importance to complainants, but in practice the system does not reflect for the concern for complainants on paper. It does not give the institutional protection necessary to ensure that people can complain without fear. Consequently, most potential complainants lack confidence in the capacity of the system not only to afford them some kind of redress but also even to protect them from imminent threats. Under these circumstances, human rights work cannot possibly be effective.
In making complaints, it is the police whom people first encounter. In the prosecution of cases, complainants and their witnesses are expected to work closely with prosecutors; and once a case reaches the court for trial, the court decides on its merits based on the findings of the police and the prosecutors. The effectiveness of all stages in the process hinges upon the participation and credibility of the complainant. Therefore, perpetrators of abuses or other persons with interests in a case understand that the most effective way to destroy a case is to target the complainant. Where authorities fail to understand this fact, where they fail to perform their tasks adequately to this end or where they enable and participate in further abuses perpetrated on complainants, the system itself fails fundamentally.
The police’s abdication of responsibility to complainants
The police are the frontline institution that complainants meet on what is oftentimes a long and torturous road though the criminal justice process. They have duties to record and investigate complaints. They have duties to collect evidentiary information, and investigate and protect individuals who possess such information. Thus, when policemen deny and refuse to record complainants, they both expunge records of violation from police records and abdicate from their utmost responsibility to afford complainants possibilities for remedies.
When victims do not complain at police stations, they are blamed should the police not intervene; however, when the police refuse to record a complaint for no justifiable reason, they are not held to account. If there is no police record, they have no responsibility to the complainant. When complainants are refused, it is tremendously difficult for them to pursue legal remedies. In effect, the entire justice system is cut off from the person coming forward. The failure to record a complaint is a profound denial of basic rights, yet strangely, in the Philippines it is not treated as anything particularly serious or tragic. It is not perceived as a method for the denial of fundamental rights. Rather, police who refuse to register a complaint are seen merely as being incompetent or overworked. They are not seen having abdicated
from their legal obligations and professional responsibilities.
One convenient excuse for policemen to refuse to record a complaint is a supposed lack of territorial jurisdiction to investigate. In the Philippines, a police station covers a particular area within which it can investigate complaints, and if a complainant is coming from outside of that area, they may refuse by giving this reason that the area concerned is under another police station. But in fact the police could record a complaint and then notify the relevant station of the facts, to enable it to investigate. It should not be necessary for complainants to go themselves to the specific police station with jurisdiction in order to initiate an investigation.
The case of protesting workers at a Korean garment factory, Chong Won Fashion, Inc. (Story 69), is illustrative of the difficulty that complainants against abuses face from the very beginning of the search for justice. When thugs armed with knives and crowbars attacked their picket line, they immediately made a complaint to the police. They were refused because it would be a public holiday the following day. They had to go to another police station where they had their complaints recorded but only after a lengthy argument with the police. The police first refused on grounds that they had no territorial jurisdiction to investigate the case. The complaint was nevertheless recorded only for purposes of record making, not for investigation. No action was taken. None of the policemen who refused to record the complaint were held accountable (see the statement by the AHRC: STM-095-2008). A police investigator also refused to record to the complaints of seven construction workers whom soldiers illegally arrested and tortured, explaining to them that in areas under military control, the police have no jurisdiction (Story 29).
Police often treat the taking of complaint as a simple matter of recordkeeping, rather than an act that has implicit in it an expectation of investigation and action. For example, they recorded but did not take action on the repeated complaints of threats received by Rev. Fr. Gilbert Garcia (Story 50), or the threats and overt surveillance on Myrna Reblando, wife of one of the journalists murdered in Maguindanao massacre and her children (see her testimony in this edition of article 2).
The mere recordkeeping mentality stems from an attitude among police that complaints need not really be taken seriously. The family of Lourdes Rubrico (Story 80), an elderly activist who was abducted by soldiers, was rebuffed without any investigation of their complaint at all. Police Chief Superintendent Fidel Posadas of the Cavite Provincial Police Office trivialized her case, labelling Rubrico as an urban poor leader involved in a land scam as a way to justify his police office’s inaction.
Even though people may know that the police will in a given case do no more than record the complaint, they may still want this much done. Rev. Fr. Gilbert Garcia, a colleague of slain Bishop Alberto Ramento, repeatedly complained about the threats on his life two months after Ramento was murdered (Story 50). The police also kept on recording his complaints but neither investigated adequately nor provided him with protection.
In some cases, police know that a person has been abducted or killed but because the victim is someone who has in the past been critical of the police or military forces, they refuse to get involved. When Gilbert Rey Cardino (Story 71) was abducted, his colleagues immediately went to police headquarters to ask for help to locate him. The police had received reports that Gilbert had been abducted, but offered no help to locate him because he was a known and vocal activist in his community. In another case, the police also did nothing to locate Romualdo Balbuena (Story 73), a man who was abducted in front of his wife inside their home. His family reported his abduction to the police for assistance, but they did not take action. They only recorded the details of his abduction, but did not investigate. The victim’s family also reported the case to the Commission on Human Rights (CHR) but it too did not inform the family of any progress on his case.
In other cases, evidence exists of police complicity in the very abuses about which people are attempting to make complaints. Take the case of Arnold Aliman (Story 70), a man who was forcibly abducted at daytime in open view of the public. When the witnesses and victim’s family went to police station to ask for help, they found the vehicle used to abduct the victim parked just outside the police investigation office. They reported it, but no investigation was conducted. The police merely denied that the car used in the abduction was the same car seen at their office.
Because of the callous and belittling manner with which police treat complainants in serious cases, and because of their own involvement in numbers of abductions, killings and other abuses, people are forced to take matters into their own hands. In Metro Manila, it is common to see handmade posters of disappeared and missing persons in public places. They contain names, photographs, address, dates of disappearance and the contact numbers of family members. People put up fliers on their own because police stations are not seen as places that a family can go with any good effect in the effort to find lost loved ones. The police do not keep systematic and adequate records of disappeared and missing persons, because most of those whose details are posted on public walls are not mentioned in the police records.
Not only do police fail to act to investigate complaints, but also they do nothing to protect complainants who face threats of repercussions for daring to not remain silent in the face of heavy oppression and violence. Florence Manegdeg, wife of a human rights defender Jose “Pepe” Manegdeg who was murdered in 2005, had her repeated requests for protection and investigation ignored (Story 65). After her husband was killed, Florence and her children were the objects of overt surveillance and threats because she demanded a thorough police investigation about the involvement of the military in the murder. Despite her and the AHRC’s repeated appeals to provide her with protection, she has received none. She did not even get a copy of the final report by the task force set up to investigate her husband’s case. Later, a witness who said that he saw a soldier kill the victim withdrew his testimony due to fear and lack of protection (see the statement by the AHRC: AS-282-2007; and, open letter: OL-029- 2007).
Aurora Broquil, Emily Fajardo and Francisco Honra also had been receiving threats but did not receive any form of protection from the police (Story 21). The victims did report the threats because of their campaigning against the operation of a nuclear power plant; however, police neither investigated nor provided them with adequate protection. The same police unit where they had to make their complaint had in the past been involved in illegally arresting, detaining and torturing their colleagues.
In the case of Dante Senillo (Story 47), a labour activist who received threats on his life, the police investigated in response to interventions from the Special Rapporteur on the Situation of Human Rights Defenders of the United Nations. However, their investigation was neither to identify who made the threats nor provide Dante with adequate protection. Rather, he was questioned about how the UN obtained information about his case, and the victim’s story was scrutinized against the information that the UN had obtained in order to find inconsistencies and cast doubts. Subsequently the police failed to provide him with protection, but the threats against him waned.
Under public pressure to be seen to be acting, police sometimes go to the extent of filing fictitious and fabricated complaints to satisfy people that somebody had been arrested, charged and prosecuted.
In the case of Carlito Getrosa (Story 74), police investigators lodged a complaint without her mother,s consent. They forged her signature so that they could proceed promptly with the filing of a murder complaint and declare the case “solved”. In a case like this one, the fabrication of a complainant’s signature speaks to a larger culture of fabricating of charges and evidence that pervades the work of the police in the Philippines, as illustrated in the case of Edgar Candule (Story 37). In his case, the police illegally arrested and searched his house without court orders. On paper, it is an inviolable right of citizens under section 2 and 3 of article 3 in the 1987 Constitution of the Philippines to be “secure in their persons, houses”; but in reality this inviolable right is meaningless. Police routinely conduct illegal searches and use “eviidence” allegedly collected during the search against the accused.
In conclusion, on complaining at police stations, complaints are from the beginning of the process of a search for justice confronted with obstacles to having their complaints recorded, let alone investigated thoroughly and acted upon.
Prosecutors exonerate and protect perpetrators of abuses
Now we proceed to the second line that complainants meet, if they get to it, in the justice system of the Philippines. If complainants are at police stations refused assistance or their complaints are not investigated, does the prosecutor offer any remedies? Where the police fabricate charges, do the means exist to have those charges overturned? Legally, the answer is yes. The country’s prosecution system (see Revised Rules of Criminal Procedure, from Rules 110 to 127) contains elaborate legal procedures that afford remedies to complainants in such cases; however, whether they apply in reality is another matter.
Where police refuse to record or register complaints, a complainant can approach the prosecutor directly. But in these circumstances, the burden to build a case, to collect evidence and to present it is on the complainants, not on the police. The complainant should also have a private lawyer, not a public lawyer, for their complaint to progress from the level of investigation by the prosecutor until the point at which the prosecutor decides whether to proceed in court or not.
The National Prosecution Service (NPS), the prosecution arm of the government under the Department of Justice (DoJ), has the power to decide whether or not to file a criminal case. The power to prosecute a case is an executive privilege. The lodging of a case to prosecute cannot itself be challenged. The only remedy once the case is filed in court is to challenge the evidence and merits of the case, to have it dismissed before trial or defeat the case on the basis of questionable evidence and procedures during trial. Therefore, the bringing of prosecution cases is subject to abuse and political interference, as the AHRC has explained in a range of statements and interventions over a number of years.
Prosecutors can file charges whether or not the accused had been adequately informed or has submitted a response to the allegations in court. Consequently, some accused are not even aware that they have been charged in court, or that arrest orders have already been issued against them, prior to time of arrest.
Once cases are filed, particularly cases against human rights and political activists, or in cases where the accused are portrayed as rebels or terrorists, courts routinely admit charges for trial. Allegations that evidence has been fabricated or procedures breached do not typically concern them, even though legally, judges have the power to summarily dismiss fabricated charges. The accused then must spend years, if not decades, to prove his innocence in court. Other falsely charged accused prefer to go into hiding, although jurisprudentially this constitutes an implied admission of guilt. What follows are just a few examples.
Eleven human rights and labour activists in Bicol (Story 9) were charged with murder on the basis of evidence brought by the military, including a former rebel whom the prosecutor brought as a witness. It is clear that the witness was not actually present during the attack of the military camp that killed a soldier and a civilian, but the prosecutor nevertheless submitted his testimony as evidence, even though evidence exists to show that some of the accused, like Leo Caballero, could not have been physically present at the crime scene.
The presenting of individuals who are former members of a rebel group, former members of kidnap-for-ransom groups and groups involved in terrorist activities as prosecution witnesses is a common tactic. These witnesses testify in fabricated cases in exchange for money or other privileges from the military. For instance, the military-sponsored witness in the case of Abdul- Khan Balinting Ajid (Story 7), a bakeshop owner in Basilan whom the military had illegally arrested and tortured by pouring gasoline on his body, has received not only full witness protection but the prosecution also has refused to disclose the name of the witness to the lawyer of the accused, disregarding any notion of the accused right to confront his accuser and to know the charges on him.
In the case of Fernando Tawagon (Story 88) it was clear that at the time of his arrest soldiers neither had evidence that he committed a crime and nor was he involved in an illegal armed group. He was a farmer. The charges brought against him were based on a forced confession obtained by the soldiers and the material evidence was taken in an illegal search. He was deprived of sleep, food and medicines while being held for four months at a military camp. He signed a document but did not know the contents. Later this document was produced in court as a confession and used against him.
The charges against human rights activists Rafael Limcumpao, Domingo Alcantara and Archie Bathan (Story 27) were conceived only after the police arresting them tortured and extracted confessions from them. The police also forcibly extracted samples of body fluids, fingerprints and other material evidence from them. They presented neither an arrest order nor search warrant because they had nothing to present. To make sure there was no evidence of torture, they had the victims examined by a doctor who then issued a medical certificate that the three had no injuries. After that, they took the victims back to their camp to be tortured further.
Despite strong evidence of torture and breach of legal process, like in cases of torture victims Asraf Jamiri Musa (Story 6), Jedil Esmael Mestiri (Story 5) and Rahman Totoh (Story 4), the prosecutors in this case deliberately ignored evidence in defense of the accused. They proceeded with the prosecution of fabricated charges the military had filed, abdicating their role to enforce the law and to protect the persons from being prosecuted on fabricated charges. They ignored the compelling evidence of torture.
Where prosecutors resolve to prosecute soldiers for murder, they do not take seriously the threats against the complainants and witnesses even though they know full well that such threats effectively undermine their case. They do not conduct adequate investigations to hold to account the soldiers who make the threats and undermine their authority. Take the murder case of Ronel Raguing and Julito Quirante (Story 28). There is strong evidence of military involvement in their killing because soldiers were seen together with the victims before their dead bodies were found. A witness even pointed to the exact place where the soldiers had allegedly buried their bodies in a shallow grave. To suppress the case, the accused soldiers forcibly took Julito’s son-in-law, Noli Bendersin, to their camp, forcing him to sign a sworn statement exonerating them from any involvement in the killing. Noli had to leave home and go elsewhere due to fear for his life and safety.
Although the police and military initiate prosecution with ease, for victims of rights violations it is much more difficult. For some years, the AHRC has observed that the prosecution system in the Philippines routinely operates to the disadvantage of ordinary complainants, taking prosecutors years, if not decades, to conclude their investigations.
Prosecutors also dismiss such cases on questionable grounds. For many people, the prosecution agency is just a means to exonerate public officers of alleged violations, because of the pattern of dismissal of complaints against officials despite compelling evidence. Prosecutors operate and work closely with the police and the military even to the extent of conducting inquest proceedings at military camps. To distinguish their role from the police and soldiers is oftentimes difficult.
The existence of specialized agencies, like the Commission on Human Rights (CHR) and Office of the Ombudsman for the Military and Other Law Offices (Moleo), which are mandated to conduct investigations of both administrative and criminal offenses at prescribed ranks of the police, the military and public officials in the performance of their duties has not made the prospects of prosecution much better. These two agencies also remain beholden to the power of the prosecution service.
In cases investigated by the CHR, the prosecution service has the sole power to decide whether or not to prosecute a case. Even when the CHR recommends prosecution, the prosecutor retains the power to reject, amend or reverse its recommendations. Nor is the prosecutor under any obligation to explain why a case is not prosecuted. For this reason, the CHR has been seeking power to prosecute cases itself.
In cases investigated by Moleo, a mechanism exists whereby the prosecutor’s decision is subject to its review. The decision to prosecute ultimately is with Moleo, not the prosecutor; however, the latter must still be deputized to a case and can influence its outcome. Although this leaves the prosecutor with less authority than in cases brought by the CHR, the problem is that under Administrative Order No. 07, the jurisdiction of Moleo in matters of prosecution is limited to certain ranks of police, military and public officials–usually high-ranking officers. Such cases against senior officers can proceed if Moleo works on them, but because of the ranks of the persons against whom they are brought they also take years, if not over a decade, to conclude investigations.
In the case of murdered couple Bacar Japalali and Carmen in September 2004, Moleo reversed the prosecutor’s decision not to prosecute. The prosecutor who investigated the murder complaint initially recommended dismissal of the murder charges against 32 soldiers. The prosecutor had agreed with the soldiers’ position that they were only their exercising their duty and the killing of the two at home while they slept was a result of a “legitimate encounter”. However, Moleo rejected the prosecutor’s argument based on compelling evidence that the couple were obviously inside their mosquito net when they were killed. The charge, however, was reduced from murder to homicide. But even though the charge was filed in court, the court issued an order of arrest only two years later, and the trial began three years after the killings. After almost eight years the court has not yet concluded the trial, due to delays. In these years, the complainants, particularly Talib Japalali, elder brother of Bacar, and his family had to endure continuing threats on their lives. The persons making the threats pressured his family to consider withdrawing the complaint but he refused to give in. The first court judge who heard the case had to be replaced because he acted as a middleman for the soldiers to convince Talib to settle the case. He was told in person that if he decided to withdraw the prosecution, the soldiers were willing to pay.
In the case of the Abadilla Five, who police had illegally arrested and tortured in June 1996. It took 15 years for Moleo to conclude that there is a case of torture against the policemen who arrested them. The CHR recommended prosecution in July 1996, but it was not until January 2011 that Moleo concluded their investigation into the complaints of torture against the policemen. By this time, two of the high-ranking officers involved were already dead. Had Moleo acted on the defendants’ complaint promptly, they could have used their findings to support their claims of innocence in the trial. Now, Moleo’s findings would have no evidentiary value other than that they have affirmed the victims’ claims of innocence. They have already been convicted of murder through the use of evidence taken by way of torture.
Moleo also has the power to initiate its own investigation, even on complaints by anonymous persons, on allegations of wrongdoing by the police, the military and public officers. However, this power is good only on paper. How can Moleo be expected to conduct effective investigations on anonymous complaints when they have hardly any outcomes in cases with compelling evidence that are not anonymous?
Indeed, Moleo has not acted upon numerous cases of serious allegations of involvement by the police and the military in killings, threats and intimidation, illegal arrest and detention, torture and disappearance. These include the case of Cipriano Ligaspo (Story 76), a tricycle driver who was murdered one month after soldiers forcibly took him and others to their camp for questioning; the murder of Felisa Timog Ocampo (Story 75) who ignored a summons for questioning from the military; the killing of four villagers (Story 8) during a military operation on pretext of “legitimate encounter”; the illegal arrest and detention of couple Jimmy and Clarita Soledad (Story 45); the harassment of labour leaders Roldan Anover, Aurelia Yray and Cerila Anding (Story 23) by soldiers because they refused to stop their union
activities; the threats on teacher Yolanda Pineda (Story 11) for questioning the deployment of soldiers in their community; the threat on Bernardino Patigas (Story 10) for helping sugar farmers to claim land that they were cultivating under land reform; the torture of Jedil Esmael Mestiri (Story 5) by soldiers after he was illegally arrested and detained at a military camp; and the disappearance of labour leader Jaime Rosios (Story 64) after he was falsely charged by the police.
Courts fail to afford justice to ordinary complainants
As described above, both police stations and the prosecution service work routinely to prevent any complainants and their complaints from reaching a courtroom. Not only do police and prosecutors refuse to record or act upon complaints, they also act as middle persons for both parties to reach out-of-court settlements, even in cases of murder. The refusal of policemen to register complaints and not to act on their complaints; the dismissal by the prosecutors of cases, despite the compelling evidence for criminal prosecution, are clear indications of a systematic and widespread practice to prevent complainants from
reaching the courts for trial.
Yet, in the Philippines, still some expectation or perception exists that courts will afford some sort of remedies and redress, whether of constitutional rights, statutory rights or via jurisprudence. However, this notion is detached from reality. Why? Firstly, the very fact that courts are unable to or refuse to exercise their power to dismiss patently fabricated charges speaks to the inability of the judiciary to apply even the rudimentary principles of law. Courts allow prosecution of obviously fabricated and questionable charges. Even though they do close some cases after trial, they fail to exercise their power when the victims need them most. If even rudimentary principles of the law–like the principle that an illegally obtained confession is inadmissible as evidence–cannot be applied, what expectations would complainants have of their possible remedies?
For complainants to hold the police, military and public officials accountable for their actions, is the judicial system–and in particular, the protection mechanisms in the court system–sufficient adequate and effective for them? While a law exists to protect witnesses, none exists for complainants, as discussed in this special edition of article 2 by Myrna Reblando, wife of Alejandro “Bong” Reblando, one of the journalists murdered in Maguindanao massacre. Her complaints for murder and claims for civil damages of her husband could not proceed for reasons of want of security. Legally, no one could pursue the murder case of her husband other than her, since the law considers her as the “offended party”. In a case of this sort, it is obvious to the perpetrators of a crime that if they pursue the complainant and threaten her vigorously, they can destroy the entire case against them. Myrna left her hometown and refrained from appearing from court trial due to imminent danger on her life and on those of her children. The absence of adequate protection for her and her children forced her to refrain from pursuing the case. Philippine President Benigno Aquino III instructed the military intelligence to provide her security and protection. But she did not know that it was an unofficial protection mechanism: an ad hoc arrangement in response to the exigencies and profile of her case.
The threats on the life of Myrna and her children are real. She had spoken to and helped Suwaib “Jessie” Upham, one of the key witnesses of the Maguindanao massacre, to come out in public and testify in court. Like other witnesses, Upham had divulged what he knew on television, with his identity hidden. But his television testimony legally could not be used as evidence in court, unless the court takes judicial notice of it. Meantime, he was killed while he was about to apply for admission for witness protection under the DoJ.
Conscious of the targeted killings, abductions and threats against individuals who are seeking remedies in the courts, the judiciary promulgated a judicial remedy that provides protection orders by way of the Writ of Amparo and Writ of Habeas Data. The former is concerns threat to life and liberty while the latter concerns protection of persons from breach of their privacy due to profiling of the police and military intelligence. The court had to go beyond its role of arbitrating criminal and administrative cases, to protect persons whose life and liberty are at risk. The judiciary took the role of being a protector where other institutions failed.
Although the intention behind this approach is good, when applied in reality there is a lack of understanding about the purpose of these writs. The judiciary invariably issues protection orders, but where a protection order is needed the most, it dismisses petitions on questionable grounds. Some court judges require a higher standard of proof, putting such a burden on the petitioner to prove that his life is under threat and needs judicial protection: the “failure of the victims-petitioners to prove that their rights to life, liberty or security were violated or under threat” is used to justify dismissal of petitions for writ of amparo.
In other cases the writ of amparo could not even be applied. Bernardino “Toto” Patigas (Story 10), a human rights activist threatened by the military, could not file his petition for writ of amparo because the witness who had personal knowledge about who made threats against him refused to testify to support his petition. Moreover, the petition of Lourdes Rubrico (Story 80), an elderly activist who was forcibly abducted and later released by soldiers, was rejected because of her failure “to allege ultimate facts as to make out a case” (Supreme Court decision, G.R. No. 183871, 18 February 2010).
Complainants and witnesses who lack protection develop their own methods to draw public attention to support the complaint. Some witnesses who choose to cooperate with complainants agree to make statements in public, but not to testify in trial. Consequently, a proposal now exists to record the testimonies of witnesses not only during trial but even beforehand. One example of such a case is the murder of Jose “Pepe” Manegdeg III, the husband of Florence Manegdeg (Story 65). The prosecutor took over a year to conclude its investigation. During this period, the key witness had no protection because he could not yet be admitted into the witness protection program, since the case has not yet been filed in court. But when the witness withdrew from testifying due to threats, the prosecutor concluded that the case against some soldiers ought now be dismissed for lack of witnesses. It is not true that there was no witness. There was a witness, however, due to threats and the prosecutorial delays the witness withdrew his testimony. His withdrawal the prosecutor used to argue that the case be rejected and military exonerated. Nevertheless, the witness agreed to testify by other means, not in court.
It is clear that in the Philippines neither protection of witnesses nor complainants is adequate. If there is no adequate protection, a court case can hardly proceed for trial. It is clear that having or not having a law to provide protection in practice hardly makes any difference; neither the complainants nor the witnesses are protected by the law. It is the utmost duty of the police to provide protection to any persons facing threats; however, in reality to obtain security and protection from them one has to have good connections. For poor persons with no police connections, there is no sort of protection when their lives are at risk.
The role of complainants is integral to the functioning of the Philippines’ criminal justice system; however, the actual operations of the system completely disregard the importance of complainants in the administration of justice. The Public Attorney’s Office (PAO), the government legal aid department, is also supposed to be responsible to help complainants and witnesses to obtain protection by endorsing their applications for protection under the witness protection program, but in reality only when there is pressure on them do they take action. It is easy for soldiers and police to get their witnesses in fabricated
cases to be admitted for protection, but for ordinary persons it is far more difficult.
The courts need to have the competence to weigh up the power of the state with the rights of the individual subject. Their role is not only to determine the guilt or innocence of persons in trying cases to afford remedies. They are also obliged to protect any individuals whose rights are violated or at risk, through the firm and fair application of the law. It is clear that it is not only uneven application of the law that denies and deprives a large section of the Filipino society, particularly the poor and the oppressed, any sort of remedies. On top of this is the manner in how the complaint mechanism operates to defeat the very purpose of obtaining remedies. Some sort of protection from the law exists; however, the application of the law and rights varies from one section of the society to another.
Underneath all this is the problem of understanding the notion of the rule of law. The courts do not understand the rule of law in terms of substantive rights but rather as the limited and narrow enforcement of the law. The rule of law is seen as procedural and technical, not tied to the idea of justice and law as substantive rights, as it ought to be.
These types of social conditions have over many years aggravated and enhanced extremely sophisticated forms of oppression, forms of oppression that breed silence and submission, which make them norms. In such an environment, not to complain is also a norm. To challenge the status quo and to dissent, even with clear aspirations only to seek remedies and obtain redress, is somehow a threat to social order. From how the police, prosecution and courts in the Philippines operate, we are forced to conclude that much more of how the system works is based upon the application of unwritten law, rather than what is on paper. A parallel system has developed, and in practice everyone knows of its existence, yet it is hardly ever talked about.
