Nearly four years ago, a group of armed men and women abducted Jonas Burgos from a restaurant in Ever Gotesco, along Commonwealth Avenue. That someone can be forcibly disappeared in broad delight a few hundred meters from the offices of the House of Representatives, the Sandiganbayan and the Commission on Human Rights, attests to the climate of impunity prevalent under the former regime. Even the judicial process, at first instance, failed to recognize the link between Jonas’ disappearance and the GMA administration’s draconian counter-insurgency policy. In its order issued in the waning days of the former administration, the Supreme Court found the investigative procedures conducted by the Criminal Investigation and Detection Grup (CIDG) and the National Bureau od Investigation (NBI) woefully short of the honest-to-goodness standards required by the circumstances of the case.
It was in this context that the Court ordered CHR to investigate Jonas Burgos’ disappearance. In the same vein, the Court ordered the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP) and the Department of Justice (DOJ) to cooperate with the investigating agency. Unfortunately, the level of cooperation extended by these agencies, particularly the AFP, fell far short of the investigation’s requirements in gross defiance of the Court’s order.
Nevertheless, the CHR proceeded with its investigation with diligence, thoroughness and dispatch, notwithstanding its limited financial resources and the various stonewalling of the agencies supposed to have been cooperating with it. The CHR team of human rights lawyers and investigators, headed by Commissioner Jose Manuel Mamauag, made sure that the ends of justice would be served by its report to the Court. That report had been submitted to the Court last March 15. We trust our esteemed magistrates to give full credence to our report as they deliberate on Mrs. Burgos’ petition to hold the AFP institutionally responsible for her son’s disappearance.
We would like to emphasize three key points —
1. The AFP’s failure to cooperate in the investigation has raised suspicions that the military had been involved in the abduction of Jonas Burgos to the level of legal presumption. Under the Rules of Court, evidence deliberately withheld is presumed prejudicial to the interests of the one who withholds it.
2. The abduction of Jonas Burgos is not a simple case of kidnapping done by some individuals in the military, but in fact a part of the entire counter-insurgency program of the past administration wherein both military and police forces played a crucial role in its enforcement. Hence, assignment of criminal responsibility must not be confined to the few soldiers who purportedly executed the crime. If ever, they are mere henchmen of the hierarchy of fear that held sway in the past. What is more fundamental is how the principle of command responsibility may be made to bear against the higher-ups who ordered the disappearance of Jonas Burgos, an activist and critic of the former regime. Command responsibility, as explained by the Supreme Court in the cases of In Re Yamashita and Kuroda v Styer, allows courts to exact accountability from persons exercising policy, strategic, operational and tactical control over the systematic criminal acts of foot soldiers. A judicial determination in line with the facts as found by the CHR investigation can only lead to the conclusion that personalities bigger and more powerful personalities than LtCol Baliaga were responsible for Jonas Burgos’ disappearance, and, in all probability, for the many other cases of enforced disappearance and extra-legal killings in the past administration.
3. A just and full closure can only come when Jonas Burgos is reunited with his family, and his whereabouts in the meantime explained. This is only possible if the new administration’s paradigm shift towards a human rights-based internal peace and security is pursued in a steadfast and sincere manner, beginning with the AFP’s commitment to expose all service personnel complicit in these violations to the full range of administrative and criminal sanctions. Shedding off the obstructionist mindset of the past, the AFP must now work in tandem with the CHR and the DOJ in recovering all documentary, testimonial and object evidence necessary to put a final stop to the culture of impunity that has claimed Jonas Burgos and countless others.
We welcome the AFP’s initiatives, towards a human rights-based paradigm shift from militarist solutions, toward this direction, including its willingness to submit to the writ of amparo and the CHR’s investigative jurisdiction. We also expect it to abide by all lawful writs and orders emanating from the investigative bodies and the Court. We are confident that our partnership with the defense establishment will be intensified so that state security reform may be more firmly anchored on the inalienability, inviolability and universality of human rights.
LORETTA ANN P. ROSALES
Chairperson Commission on Human Rights – Philippines (CHRP)