Today is Sunday, September 23, 2018

Problems In Investigating And Prosecuting Cases Of Extralegal Killings And Enforced Disappearances*

By J. Remedios A. Salazar-Fernando

The difficulty of investigating and prosecuting cases of extralegal killings (EJK) and enforced disappearances (ED) is like a search for the proverbial needle in a haystack. It is like a walk through a difficult labyrinth of mazes connected by a series of related clues, one clue leading to the next. The problem is magnified by the fact that there are cases involving a clash between perceived or suspected “enemies of the state” and the military/police establishment as a whole. In the middle of such conflict, the court, as the ultimate dispenser of justice, is thrust upon the crucial role of delicately balancing the protection and enforcement of constitutional rights viz the interest of the state in the preservation of law and order.

This is perhaps as accurately as I could describe our present predicament, basing from our experience in handling cases involving EJK & ED. So far, two amparo petitions had been disposed by our Division. One, the Jose Pernia case, was dismissed in its incipiency because the petitioner voluntarily withdrew the petition after the preliminary conference, while the other, the Jonas Burgos case, was decided on the merits after almost a year, barely ten days more to be exact, since the initial hearing of the petition last July 27, 2007. I am tempted to say, with all due modesty, that despite the difficulty in resolving the petition, the procedure on the writ of amparo being novel in our jurisdiction and there being only one established jurisprudence on amparo, not to mention the sheer volume of the records, we were able to resolve the case on the merits very expeditiously.

To give you a more practical perspective about the topic, allow me to briefly narrate the details and incidents of the two amparo petitions which our Division disposed of.

In the amparo case which we dismissed in its initial stage, the brother, Jose Pernia, of a missing person, Iglecerio, filed a petition for the Writ of Amparo before the court for the search and production of his brother, who was alleged to have been unjustly taken and detained by the ISAFP. The petitioner only learned about this from a television news program. Petitioner Jose Pernia and counsel were allegedly denied access for several times. When, finally, they were allowed to talk to him, they were given only 10 minutes as the subject was still being investigated. In their return, the respondents explained that the subject person, Iglecerio, was arrested pursuant to several valid warrants of arrest issued against him, for he is charged with several offenses in Informations filed before the lower courts, RTCs of Albay and Legaspi. He was about to be transferred to the custody of the said courts when the respondents received a copy of the petition. They also had airplane tickets for the subject person Iglecerio, and the respondents. As they were required to produce the body of subject person before the Court of Appeals, the respondents decided to request the lower court to postpone the transfer of subject person, to the province (Albay/Legaspi) and allow the respondents to take custody of the subject person for the duration of the petition. The lower court granted such request, hence, the subject person remained in the custody of the respondents. Thus, the respondents explained, that had it not been for the filing of the amparo petition, the subject person, Iglecerio, would have been transferred to the province (Albay/Legaspi). The Court inquired from the respondents if they were willing to deliver the subject person to the court having jurisdiction over the cases. The respondents were willing to do so, but were apprehensive for fear that he might escape. The subject person was brought to the Court during the hearing. At that point, the petitioner signified his intention to withdraw the petition if the subject person is transferred to the province. Later on, with the intervention of the court and on account of the said return from the ISAFP, petitioner, Jose Pernia, filed a motion to withdraw the amparo petition, which the Court granted.

On a personal note, I think that even as this (Pernia) case was not actually resolved on the merits, I believe that the amparo petition served its purpose. Had not the brother, petitioner Jose Pernia, immediately sought succor under amparo, I think that the story would have been a lot more different and perhaps more difficult for the petitioner and the subject person, Iglecerio.

The second, the Jonas Burgos case, is a consolidated habeas corpus and amparo case, and to my knowledge, is probably the first among the most publicized of the amparo petitions filed in the Court of Appeals, involving as it thus the son of an acclaimed human rights activist and journalist, Joe Burgos. In search for her son Jonas, an agriculturist and known activist, the mother, Mrs. Editha Burgos, initially filed before the court a petition for habeas corpus impleading no less than the President, the AFP Chief of Staff, the Commanding General of the Philippine Army, the Chief PNP, among others, to produce the body of her son. That was before the rules of amparo were promulgated by the Supreme Court. Immediately after the rules on the Writ of Amparo took effect on October 24, 2007, the petitioner, Mrs. Editha Burgos, likewise sought a petition for a writ of amparo. These two (2) petitions were raffled to our Division and as I mentioned earlier, were eventually consolidated.

Unlike the Jose Pernia case, this case went through trial. The testimonies of witnesses were completed after several months of tedious, often extended and tension-packed hearings. If only to stress the special regard and attention that we devoted to this amparo petition, allow me to share some of our rather tension-filled experiences, or should I say “unforgettable experiences”, in handling this case. During our 2008 Summer Session in Baguio, we scheduled a special hearing for this case, and if I am not mistaken, this was the first time in so many years that a hearing was conducted by a Division of the Court of Appeals in Baguio. The said hearing was a “close door” executive session in which we barred the public from witnessing the proceedings and only the lawyers of petitioner, the OSG, and Mrs. Burgos herself were allowed inside the courtroom. (My beloved husband who was also there in Baguio at that time and who also wanted to take a peek at the amparo proceedings was also ordered out of the court room. Apparently, “marital privilege” was not enough to overturn the strict confidentiality of the proceedings.) The “close door” session was necessary because the subject of the hearing was the apparently privileged testimony of an Intelligence Oficer, alleged to contain military secrets and matters which may affect national security, and also the presentation in evidence of an apparently privileged video footage, which the respondents claimed to be ranked number 2 as a “Classified” military document. Last May 6, 2008, the Head of the Intelligence Group of the Philippine Army was presented. After the presentation of the Intel Head, the petitioner requested for another subpoena to another witness. During the May 13, 2008 hearing, a rebel returnee was presented. Her security was so tight that she requested that she had to pass through our chamber. Again, we had to order an executive session for security reasons. Hearing lasted till dinner time. With her as the last witness, the case was submitted for decision.

If I may digress a little more further into the merits of the case, let me stress a few points regarding our ruling on the amparo petition. Our disposition was a PARTIAL GRANT of the petition, ever maintaining that delicate balance between the petitioner's supplication for constitutional protection and the interest of the military to preserve national security. Thus, with respect to the petitioner's prayer for Production Order, we gave Mrs. Burgos free access to documents and records in the possession of respondents, subject only to constitutional limitations and those provided for by law. However, in the case of the petitioner's prayer for an Inspection Order on any military camp and/or installation, we denied the same, a roving inspection order having no basis.

A judicious review of petitioner's documentary evidence and the testimonies of the witnesses she presented established the following facts:

1. At around 1p.m. on April 28, 2007 and after 20 minutes of conversation with a group of four men, Jonas Burgos was forcibly brought out by the group accompanied by one woman from the extension portion of the Hapag Kainan Restaurant located at the ground floor of Ever Gotesco Mall, Commonwealth Ave., Quezon City;

2. On his way out of the restaurant, Jonas told the manager thereof “Mam, aktibista lang po ako”;

3. When a security guard noticed that group carrying out a male person by his arms, he tried to intervene but he was told, “Pare pulis.”

4. The guard backed off but he observed that the man was forced into the back seat of a plain colored maroon Toyota Revo with Plate number TAB-194. The guard noted the plate number and reported the incident to his superiors and the policeman on duty at the mall;

5. On April 30, 2007, Mrs. Burgos held a press conference and announced that her son Jonas was missing. That afternoon, she sought confirmation from the guard if the abducted man was her son Jonas;

6. Upon police investigation and LTO verification, it was discovered that plate number TAB 194 was registered to a 1991 Isuzu XLT vehicle owned by a certain Mauro Mudlong. Per affidavit of DENR employees, it was confirmed that Mudlong was arrested and his 1991 Isuzu XLT vehicle was seized on June 24, 2006 by military men of the 56th IB of the Philippine Army for illegally transporting sawn lumber. The said vehicle was thereafter impounded at the 56th IB headquarters.

Now, on the basis of the plate number TAB-194, petitioner maintains that there is a direct link between the abductors of Jonas and the military. We disagreed. Allow me to read the pertinent portion of our decision and I quote:

“We have meticulously perused the evidence but found it wanting to establish the claimed direct connection between the abductors of Jonas and the military. The evidence does not show how and why the license plate supposedly attached to the Isuzu XLT vehicle impounded at the 56th IB headquarters was seen attached to the get-away Toyota Revo on April 28, 2007, and whether the two license plates are one and the same at all. The evidence does not also show whether the abductors are members of the military or the police or plain civilians, and if they are plain civilians, whether they acted on their own or were commanded to accomplish the task, and by whom. The testimony of Elsa Agasang leaves Us doubting whether the four (4) men Jonas was seen talking to for a full twenty (20) minutes could be persons he already knew or had seen only for the first time. We find it non-sequitur that simply because plate no. TAB-194 belonged to the Isuzu XLT vehicle in the custody of the 56th IB, it was the military who abducted Jonas just because the vehicle used in the abduction had also plate no. TAB 194 attached to it. The direct link still must be established.”

For purposes of our discussion today, I identified some of the problems we encountered in hearing cases involving EJK/ED. Allow me to briefly articulate on these points, one by one.

1. Governmental or military privilege

Probably the most serious roadblock to any investigation and prosecution of EJK/ED cases would be a claim of governmental or military privilege on the part of the respondents. In such a case, documents claimed to be “highly classified”, “confidential” or “top secret” can be sought to be withheld or suppressed.

In our jurisdiction, governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters is, of course, given paramount importance transcending even the individual interests of the citizen.

From our experience, however, the claim of governmental or military privilege almost always immediately stops the proceedings on its tracks, tarrying it further by the ensuing oral arguments of counsels from both sides, with their usual arsenal of objections.

Worse, attempts to suppress or withhold vital and relevant documents or information are made invoking such privilege. If allowed, it will completely jeopardize the entire proceedings.

2. Chain of Command

Corollary to the claim of governmental privilege is the adherence of the military/ police to the doctrine of chain of command. While we are very much aware of its indispensability to the discipline of the military/police, this claim stands as another roadblock to the investigation and prosecution of EJK/ED cases.

The military/police follows a different set of rules in the release of documents. Junior officers who were subpoenaed to produce certain documents which are in their possession, were reluctant, hesitant or unable to produce the requested documents because prior authority from their superiors was needed. The protocol in itself delays the proceedings.

The chain of command likewise hampers the attendance of witnesses from the PNP/AFP and compromises the integrity of their testimonies. Like the cloak provided by EO464, some witnesses from the military/police asked to be excused from testifying upon the pretext that their testimony might infringe or break the chain of command. And even when they testify, most of the witnesses may be hesitant to talk and had to request for time for fear that they might get into trouble with their superiors.

3. Natural Reticence of Witnesses to Testify

As always, the instinct of self-preservation precludes otherwise competent and credible witnesses from surfacing and sharing their stories. Thrust against the awesome powers of the military/police, or any armed entity, or influential individual, an ordinary witness who may have had an eyewitness account of a particular incident is expectedly wont to avoid testifying.

4. Media Hype

Sometimes, media reports are slanted, inaccurate, or incomplete. This is probably a result of misapprehension or non-acquaintance of rules of procedure on the part of media people. The tendency to sensationalize in an effort to entice the reading public is also there.

5. Security problem

Judges, justices and court personnel are not spared of threats to their lives when they handle cases involving EJK/ED. During hearings, unusually huge crowd appear in court or infront of the court with loud sound system which interfere with the proceedings. Worse, judges/justices and personnel are being harassed.

6. Time constraints

In view of the urgency and sensitiveness of the issue/s in EJK/ED cases, judges/justices are subjected to a lot of pressure from the work. Deadlines have to be met. Remember, these are not the only cases handled by the judges/justices!

7. Expectation of the parties/public

Parties and the public sometimes expect too much from the court. They expect miracles to happen once they file the petition for habeas corpus or writ of Amparo. Filing of petition is sometimes being resorted to fish for evidence.

Prescinding from the foregoing backdrop, I would like to propose the following recommendations:

1. The parameters of governmental or military privilege should be properly delineated. When invoked, the court should be immediately allowed to examine the matter, document or information and determine whether or not there is sufficient reason to consider it privilege and excluded from the evidence.

In our experience, the conduct of “executive sessions” is very helpful in dealing with documents or information claimed to be privileged.

2. The rules of admissibility of evidence, i.e., relevancy, materiality and competency of evidence, should be relaxed and liberalized insofar as amparo petitions are concerned.

Taking into account the clandestine manner in which EJK/ED cases are perpetrated, there are no firsthand witnesses and there is usually no direct evidence available. More often than not, the court has to contend itself with circumstantial evidence that need to be pieced together.

3. The use of the modes of discovery under the Rules of Court should be encouraged in order to expedite the proceedings.

The testimony of witnesses, who cannot personally testify in court because of distance or due to the confidentiality of their identities, may be taken through depositions, subject to cross-examination by the other party.

4. Media briefing should be conducted to inform the members of the media on what transpired. While we acknowledge the crucial role of media in public information and enlightenment, the serious risks it poses to the fair administration of justice, especially when emotions and passions are running high on the issues stirred by a case, should also be carefully safeguarded.

5. Witness protection should be strengthened. Funds should be made available to witnesses in the government.

6. Number of amparo petitions filed in a court should be considered in assessing the performance of judges and justices. Since amparo petitions are priority cases, the period prescribed to decide other cases should be relaxed to avoid administrative sanction.

7. Additional security should be provided to the Court.

It is hoped that these humble suggestions be seriously considered. Thank you and a good day to all.


*A talk delivered by Justice Remedios A. Salazar-Fernando during the Panel Discussions on the subject sponsored by the PHILJA on October 10, 2008 in Iloilo City.

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