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Extra-Judicial Killings and Enforced Disappearances: Where Do We Go From Here?

by: J. Magdangal M. De Leon


One of the most pressing issues being faced by the Arroyo administration these days is the so-called “extra-judicial killings” or the increased number of killings of political activists, predominately those associated with leftist groups, and of local journalists, allegedly committed by the military. The human rights group Amnesty International contends that at least 51 political killings took place just in the first half of 2006, and 66 killings in 2005, while 64 journalists are reported to have been killed since 1986 as a result of their work. Bagong Alyansang Makabayan's (Bayan) estimate is even more alarming. In its primer, Bayan claims that there have been 607 victims of extra-judicial killings documented by Karapatan (Alliance for the Advancement of Human Rights) from January 2001 to May 30, 2006, and that from January to May of this year alone, 75 have already been killed, and 25 having disappeared.

The issue has become so controversial and politically-charged, that it has received unwanted international attention. The United Nations sent its own envoy, Professor Philip Alston, Special Rapporteur on Extra-judicial, Summary, and Arbitrary Killings, to conduct an inquiry. And on March 14, 2007, the United States Senate Subcommittee on East Asian and Pacific Affairs Senate Committee on Foreign Relations conducted a hearing on the Philippine situation. In the said hearing, Eric G. John, Deputy Assistant Secretary for East Asian and Pacific Affairs, G. Eugene Martin, U.S. Institute of Peace Executive Director of the Philippine Facilitation Project, among other key U.S. Officials, testified as to the findings of their investigation and suggested strategies to, in their words, “end the violence.”

These inquiries and hearings have led to a common observation: that despite government efforts to investigate the spate of killings and punish the perpetrators, none of the cases that have been so far filed has resulted in conviction.

The Judiciary's Response:

Cognizant of its role in ensuring that the victims of human rights violations will find their vindication in our courts of justice, Chief Justice Reynato S. Puno, in February 2007, directed the Office of the Court Administrator (OCA) to submit a complete inventory of all extra-judicial killings which will include, among others, cases with ideological dimensions, and media killings. The inventory was aimed at helping the High Court in determining the sources of the problems of delay 'to pave the way for a fast resolution of these cases.’ Moreover, special courts were to be established to resolve the killings. The Chief Justice announced this development even before Malacañang made public the findings of the then newly-created Independent Commission to Address Media and Activists Killings, headed by retired Justice Jose Melo, which confirmed the extrajudicial killings. Hence, pursuant to this pronouncement and through Administrative Order No. 25-2007 issued on March 2, 2007, the SC designated about a hundred Regional Trial Courts (RTCs) nationwide to hear, try and decide cases involving killings of political activists and members of the media, with 23 RTCs so designated in the National Capital Judicial Region alone.

Moreover, the Supreme Court has recently organized a multi-sectoral summit on extra-judicial killings and enforced disappearances, aimed at gathering inputs on how the judiciary could fully use its “expanded powers” under the 1987 Constitution in order to resolve the issue, possibly through the rewriting of Philippine legal procedures to make these more helpful to the victims, more forceful on the suspected perpetrators, and more demanding of government agents assigned to solve such cases.

In the light of these efforts of the Supreme Court to facilitate the resolution of cases involving extra-judicial killings, it is imperative to take a look into the most recent cases of enforced disappearances which the Court of Appeals has decided in order to determine what procedural rules need to be reformulated to resolve such cases.

CA - G.R. SP NO. 95303 and CA - G.R. SP. NO. 95656:
A Discussion

CA-G.R. SP NO. 95303 and CA-G.R. SP. NO. 95656 are both petitions for habeas corpus filed against Maj. Gen. Jovito Palparan and other military officials. The former concerns the alleged abduction of Sherlyn T. Cadapan, Karen E. Empeño and Manuel Merino, sometime in June 2006, in Hagonoy, Bulacan, while the latter treats of the alleged disappearance of Leopoldo Maglalang Ancheta, also on June 2006, this time in Guiguinto, Bulacan.

Cadapan and Empeño, alleged members of the Kilusang Magbubukid ng Pilipinas and Alyansa ng mga Magbubukid ng Bulacan, and Merino, a neighbor, were supposedly abducted by armed men wearing bonnets aboard a stainless jeep and taken to the Mercado, Hagonoy police detachment. Upon inquiry, however, by the families of the women and by members of the local chapter of KARAPATAN, a human rights group, the respondent military officials denied that they have custody of the missing persons. Thus, the petition for the writ of habeas corpus was filed with the Supreme Court. The SC, in a Resolution dated July 19, 2006, issued the writ, returnable to the Presiding Justice of the Court of Appeals, with the instruction that the case be immediately raffled among its members. The writ was returned by respondent military officials denying participation in the alleged abduction and custody of the said missing persons. After conducting a series of hearings, the Special Former Eleventh Division, in a Decision penned by Associate Justice Jose Catral Mendoza, and dated May 29, 2007, dismissed the petition.

On the other hand, CA-G.R. SP. NO. 95656 treats of the disappearance of Leopoldo Maglalang Ancheta, who was allegedly working with the National Democratic Front of the Philippines Peace Panel. Ancheta's wife contends that, per the eyewitness account of tricycle drivers, he was abducted by armed men aboard a Toyota Revo near the supermarket where they were supposed to meet early evening of June 24, 2006. The investigation of the group KARAPATAN which Ancheta's wife contacted for help, stated that the suspected perpetrators were elements of the military, hence the petition for writ of habeas corpus was filed. The writ was returned by the respondent military officials on August 15 and 16, 2006, denying that Ancheta was in their custody, as well as disavowing any participation in his abduction/disappearance. The former Fourteenth Division of the Appellate Court, to which the case was raffled, immediately conducted hearings where both Ancheta's wife and her witnesses as well as the respondent officials appeared, the latter through counsel. After such deliberations, the Court, in its Decision dated June 19, 2007, dismissed the petition for lack of substantial proof, without prejudice to its refiling should new factual circumstances warrant it.

It is interesting to note that in both cases, evidence or the lack thereof, played a pivotal role in the resolution. As the ancient Greek historian and playwright Aristophanes noted, “You should not decide until you have heard what both have to say,” so does this Court need to have clear and convincing proof to arrive at a finding of guilt on the part of respondent military officials relative to their alleged participation in the disappearances. More so considering the nature of habeas corpus cases. As emphasized in the Cadapan decision, citing Martinez vs. Mendoza, “When the respondents deny custody of an allegedly detained person, petitioners have the duty of establishing the fact of detention by competent and convincing evidence; otherwise, the writ of habeas corpus cannot be issued.” To buttress their claim that the military authorities have Cadapan, Empeño and Merino in their custody, petitioners therein presented an eyewitness to the abduction and two alleged former victims of abduction. The eyewitness testified that the three were abducted by armed men wearing bonnets, tied and blindfolded, and forcibly taken aboard a stainless jeep, which vehicle was allegedly seen at the 56th Infantry Battalion headquarters at Iba, Hagonoy, Bulacan by a volunteer staff of the Barangay Human Rights Action Center where the abduction was immediately reported to. One of the alleged abductees testified that two days later, he was also taken by armed men accompanied by Merino and brought to a military detachment. The other alleged abductee, for his part, testified that he was likewise abducted, detained and tortured for five months, during which he noticed two women fitting the description of Cadapan and Empeño in the place where he was held. Respondent military officials, on the other hand, denied that they have in their custody the three missing persons, though Maj. Gen. Palparan admitted that he was aware of the disappearance of two women and a man in Hagonoy, Bulacan, having received information on such. Hence, while noting that respondent military officials “were not telling the whole truth as they appeared evasive in their declarations,” and arriving at the finding that Cadapan, Empeño and Merino are indeed missing, the Court ruled that the petition should be dismissed, there being no indubitable evidence that they are in the custody of respondent military officials. It ratiocinated, thus:

“As Sherlyn Cadapan, Karen Empeño and Manuel Merino are indeed missing, the present petition for habeas corpus is not the appropriate remedy since the main office or function of the habeas corpus is to inquire into the legality of one's detention which presupposes that respondents have actual custody of the persons subjects of the petition. The reason therefor is that the courts have limited powers, means and resources to conduct an investigation.” (emphasis supplied)

This lack of sufficient evidence to hold respondent military officials responsible for the abduction of the three missing persons prompted the Court to recommend the conduct of an investigation that will confirm whether Cadapan and Empeño are indeed the Ka Lisa and Ka Tanya whom Maj. Gen. Palparan referred to in his testimony as having been abducted on the same date, and, in the Court's words, “to fill or bridge the gaps.” The Court declared that without more concrete evidence and sufficient basis linking respondents to the abduction, the writ cannot issue and charges cannot be filed against them.

The Former Fourteenth Division was placed in the same dilemma in the Ancheta case. Therein, the Court noted that “xxx in habeas corpus proceedings, the first circumstance that must be established by convincing evidence is the fact of unlawful restraint. Where the unlawful restraint is not shown to exist, or where the restraint is voluntary, the writ will not lie.” Hence, it ruled that:

“Petitioner failed to discharge the burden of proving that her husband, Ancheta, was unlawfully restrained of his liberty. Her testimony consists merely of narrations of events immediately preceding her husband's supposed visit to Mexico, Pampanga, and her own actions after he subsequently missed his rendezvous with her. She, herself, did not witness the alleged abduction but only learned about it from the information volunteered by unidentified tricycle drivers operating in the vicinity six days after his disappearance.

x x x x

Petitioner's narration of what was related to her by unnamed persons six days after the incident subject of inquiry will not pass for competent evidence of the fact of Ancheta's unlawful restraint. It is completely hearsay. A witness can only testify on those facts he knows of his personal knowledge, that is, which are delved from his perception, except as otherwise provided in the Rules of Court.”

The failure to present the tricycle drivers as witnesses proved fatal to petitioner’s cause, as petitioner's testimony could not be given weight in order to prove that her husband is in the custody of respondent officials. Hence, the Court had no choice but to dismiss the petition. Notwithstanding said dismissal, the Court noted that the same is without prejudice to the filing of another petition should new factual circumstances warrant it, in line with the ruling in Gordula vs. Enrile.

Final Words:

The Court's rulings in the Cadapan and Ancheta cases only underscore the difficulty in securing convictions in cases involving extra-judicial killings and enforced disappearances due to insufficient evidence. More often than not, there are no eyewitnesses, or if there are any, they are reluctant to testify, as in the case of the tricycle drivers who allegedly witnessed Ancheta's abduction. Especially in habeas corpus proceedings such as the subject cases, the evidence, at best, are circumstantial, making it difficult for the courts to arrive at a finding that the respondents indeed have the desaparecidos in their custody, as claimed.

This situation places our courts in an unenviable position -- that of dismissing petitions and complaints due to lack or insufficiency of the petitioner's evidence, even though respondent's rebuttal evidence is in itself weak and full of contradictions, as was noted in the Cadapan case. But unless and until our procedural rules are modified to suit the special circumstances obtaining in extra-judicial killings and enforced disappearances, the courts' hands are tied, so to speak. “For the rule is that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense.” Given this predicament, what the Court can only do under the circumstances is to recommend the conduct of further investigation, as was made in the Cadapan ruling, or to dismiss the petition without prejudice to its refiling, should there be new evidence that will come up, as held in the Ancheta case.

During the Supreme Court-initiated National Consultative Summit on Extra-judicial Killings and Enforced Disappearances held on July 16-17, 2007 at the Manila Hotel, some of the more relevant proposals and recommendations, with respect to the judiciary's role in resolving the issue, include the following:

  1. Amend the Rules of Court to issue protective orders in favor of witnesses in cases of extra-judicial killings;

  2. Expand the definition of the term “extra-judicial killings”, as specified in SC Circular No. 25-2007 to include extra-judicial killings of persons by reason of their “advocacies;”

  3. Increase the prescriptive period for filing cases of extra-judicial killings and forced disappearances from 20 years to 25 years;

  4. Create disputable presumption of knowledge by the superior of the acts of the subordinate, disputable presumption of command responsibility, and eliminate the presumption of regularity in the performance of official duties in prosecution of cases involving extra-judicial killings and forced disappearances;

  5. Revise the provisions of Rule 102 on Habeas Corpus to grant a more permissible presentation of evidence and counter-evidence; as well as allow the petitioner to search public and private premises under court-prescribed guidelines and in the presence of the police and a representative of the Commission on Human Rights;

  6. Allow transfer of venue of cases to prevent undue influence;

  7. Encourage judges to use perpetuation of testimony and the rule on conditional examination of witnesses;

  8. Review the rules on evidence, hearsay and modes of discovery;

  9. Revise Rule 113 (Arrests) of the Rules of Criminal Procedure; and

  10. Allow the use of electronic and remote testimony.

On the part of the legislative department, the significant recommendations that may have a bearing on our present laws, rules and jurisprudence, include:

1. Study the possibility of creating a new crime in which the victim or the offended party is a journalist, judge, media, or militant who is kidnapped or killed in the course of the performance of his duties or the conduct of his profession;

2. Strengthen the Commission on Human Rights by giving it prosecutorial and contempt powers;

3. Ratify the Optional Protocol for the Convention Against Torture and the International Convention for the Protection of All persons from Enforced Disappearances, Protocol 1 of the Geneva Convention on the Protection of Victims of International Armed Conflicts, the Hague Convention on the Protection of Cultural Properties, and other treaties; and

4. Review the government's Witness Protection Program and strengthen its mechanisms, or create a special witness protection program exclusively for extra-judicial killings.

It can be gleaned from the foregoing that most of the proposals and recommendations entail the amendment of our present laws, rules and regulations, or the enactment of new ones. It will take some time, as well as a series of consultations, for these amendments to take effect and be implemented. In the meantime, and while these changes are being formulated and considered, this Court has no choice but to follow the prevailing rules of evidence and procedure, as well as the jurisprudence governing habeas corpus proceedings.

Indeed, as this writer noted in the Court's Decision in the Ancheta case, of which he was also the ponente, “It is always heartrending to see agony and anguish in the eyes of a person whose loved one has disappeared without a trace. And who can remain unaffected, having to listen to the stifled sobs of a soul torn to pieces by loss and desperation? We do understand the plight of petitioner, and commiserate with her. Sadly, for now, that is all this Court can do.”

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