|Justice Reynato S. Puno
SOLIMAN M. SANTOS, JR., Esq.
Attorney’s Roll No. 32334
Lawyer, Legislative Consultant, Legal Scholar
18 Mariposa St., Cubao, Quezon City
Tel. 7252153, Fax 4138821
98 Albatross St., RJ Vil., Canaman, Cam. Sur (currently here)
Tel. (054) 4744659, Cel. (0920) 29036xx
Hon. Reynato S. Puno
Dear Mr. Chief Justice,
Re: National Consultative Summit on Extrajudicial Killings
and Enforced Disappearances – Searching for Solutions
Greetings of Peace and Justice!
I am writing you on the above-indicated subject in various capacities but, first of all, as a member of the bar and thus officer of the court. As a human rights lawyer, I join others in commending you on this initiative as well as your earlier administrative order designating RTC branches nationwide to handle such cases. Allow me to proceed to some points for consideration in relation to your planned Summit, for some of which points I mention my relevant capacity.
(1) I wish to share with you the enclosed “Joint SSN-PATH Reaction to Prof. Philip Alston’s Philippine Mission Press Statement of 21 February 2007” to which I was a co-signatory as Regional Focal Point for Asia of the South-South Network (SSN) for Non-State Armed Group Engagement. The main point of this reaction is that it may help to place the current extrajudicial executions (EJE) issue in perspective by noting that it swirls around the facts (and propaganda) involving at least three types of EJE with different sets of victims of human rights violations:
a) state/military-inspired or anti-Left EJE, esp. killings of legal Left activists and media persons from 2000 to 2006 -- which is what the Task Force Usig, the Melo Commission, the Alston Mission, some other international missions, and local human rights groups like Karapatan have focused on
b) ongoing NPA liquidations or summary executions of civilians outside combat e.g. civilian informers or spies, criminal “bad elements” like rapists and cattle rustlers, policemen who do not have combat duties but are killed for their weapons, “despotic” landlords and “abusive” local officials/politicians -- regarding which the AFP claims to have listed 1,227 liquidations, also for 2000-2006
c) CPP-NPA internal purges of many of its own members suspected of being military “deep penetration agents” in the 1980s -- which has been PATH's advocacy issue as victims, survivors and relatives
Any inquiry into the current EJE issue in the Philippines should be informed by this local context of an internal armed conflict which involves two sides. Political violence in the Philippines is both state and non-state.
There must therefore be no mixing up of or confusion about the three types of EJE as outlined above, so that correspondingly appropriate measures for justice can be laid out whereby the victims of all types, not just one type, of EJE are given their due. In a state-oriented legal and human rights system, there mechanisms and processes for responsibility and accountability are much more developed for states and state actors than they are for non-state actors like rebel groups. This asymmetry has to be reckoned with in the search for solutions and justice.
(2) In a context of armed conflict, as we mentioned, international humanitarian law (IHL) is of particular relevance as a term of reference, not just constitutional and human rights. For while human rights have been traditionally invoked against the state and state actors (though there is a recent trend to invoke it also against non-state actors), IHL can be invoked against both state and non-state actors, more precisely government and rebel forces which are parties to an armed conflict. Thus, human rights instruments on EJE largely deal with the state and state actors, while IHL provisions on EJE cover both/all parties to an armed conflict.
Regarding IHL, it bears noting that in the case of Kuroda vs. Jalandoni [83 Phil. 171 (1949)], it was ruled 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… 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.” (italics supplied) In fact, the same decision referred to “generally accepted principles and policies of international law which are part of our Constitution.” (italics supplied)
With regard in particular to enforced disappearances, we should therefore factor in whatever relevant guidance not only from the new human rights instrument which is the International (UN) Convention for the Protection of All Persons from Enforced Disappearances but also from the IHL regime on the missing or unaccounted for as a result of armed conflict or internal violence. Aside from the relevant codal provisions of key IHL treaties like the 1949 Geneva Conventions and their 1977 Additional Protocols I & II (30th anniversary this year!), there is much developed guide material on this particular area of IHL based on many years of experience in handling the matter by the International Committee of the Red Cross (ICRC). The most developed material is known as the ICRC Report: The Missing and Their Families. The Court and/or the Summit can avail of this from the ICRC-Manila Delegation Office.
(3) While we are speaking of international legal references, it might also be relevant to any effort of the Court to enhance the rules of court or promulgate new ones, to refer to the Rules of Procedure and Evidence of the International Criminal Court, which is considered the highest development of international criminal procedure. Of course, this procedural instrument is tied to or is in the context of a substantive international treaty, the Rome Statute of the International Criminal Court, not yet ratified by the Philippines [see Senator Aquilino Pimentel, Jr., et al. vs. Office of the Executive Secretary, et al., G.R. No. 158088, 6 July 2005]. But this should not necessarily deter your Court from adopting or adapting good rules from an international model, such as in the procedural protection of victims and witnesses.
(4) In connection with the coming Summit, you were reported as speaking of the possibility of altering the scope of command responsibility. As you know, there was extensive discussion of this concept, including its historical legal antecedents, in the Melo Commission Report (at pp. 63-71). Though the latest precise definition of command responsibility is that found in the Rome Statute’s Article 28, the general concept (not necessarily the Rome Statute definition) of command responsibility can already be considered as part of binding customary international law. Still, it is in the realm of substantive law (principles of criminal responsibility) rather than procedural rules.
For the information of the Court and of the Summit, there have been bills filed in Congress which define command responsibility in the accordance with the latest international criminal legal definition per the Rome Statute. It is found in what the proponent Philippine National Red Cross (PNRC) calls the “IHL Bill,” or more precisely “An Act Defining and Penalizing Crimes Against International Humanitarian Law and Other Serious International Crimes, Operationalizing Universal Jurisdiction, Designating Special Courts, and for Related Purposes.” The leading example of this in the defunct 13th Congress was the enclosed Senate Bill No. 2511 (see Sec. 10) introduced by Senator Richard J. Gordon who happens to also be the PNRC Chair. I in turn happen to be the PNRC legislative consultant for this IHL Bill. This will be re-filed in both legislative chambers of the coming 14th Congress.
(5) It has also been reported that the coming Summit might tackle the problem of false charges/fabricated cases which are politically motivated by the government against Leftist personalities and activists. I wish to bring up another matter of false charges/fabricated cases especially for murder – those filed, prosecuted, tried and decided against innocent fall guys despite rebel group (e.g. NPA) claims of responsibility for the extrajudicial killings in question. There have already been a number of cases of this sort over the years. I can speak with personal knowledge of one such case which has reached the Court wherein I was a defense counsel. I am referring to the Abadilla murder case of 11 years which reached the Supreme Court in 2000 on automatic review as G.R. No. 141660-64 (People vs. Fortuna, et al. but transferred to the Court of Appeals in 2005) and on certiorari petition as G.R. No. 142065 (with a Decision on 7 September 2001, see Lumanog vs. Salazar, 364 SCRA 719).
In that Abadilla murder case, both the RTC first and then the Supreme Court twice later rejected motions/petitions of the “Abadilla 5” death convicts to present new/additional evidence showing Alex Boncayao Brigade (ABB of the NPA then) responsibility for the extrajudicial killing of a former military officer turned civilian politician and businessman Rolando Abadilla, including his taken Omega wrist watch which an ABB personality had turned over to “Running Priest” Fr. Robert Reyes to back up the ABB’s claim in several written and verbal media statements that it was responsible for the killing, so as to exculpate the innocent death convicts. There must be a way to receive, test/cross-check and appreciate various forms of evidence that underground rebel sources who cannot come out might proffer in relation to extrajudicial killings and enforced disappearances which they have had a hand in or have intimate knowledge of, if only to spare the innocent from false charges/fabricated cases.
This is relevant to our early point in paragraph (1) above about the problem of existing mechanisms and processes, including judicial ones, when it comes to non-state actors like rebel groups which cannot just surface from their underground status – lest they themselves become victims of extrajudicial killings and enforced disappearances. There is an element of vicious cycle here – killing and counter-killing - that must be broken.
Again, you and the Court must be commended for doing your/its part in breaking that cycle. The coming Summit, together with the earlier catalyzing Alston Mission, have emerged as key parts of a counter-cycle of searching for and finding solutions. Thank you for your efforts, and for your attention to this letter.
SOLIMAN M. SANTOS, JR.