Tag Archives: Prosecutor

[Urgent Appeal] Falsely charged labour leader submits himself to trial to clear his name and those of others -AHRC

Asian Human Rights Commission

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME
Urgent Appeal Case: AHRC-UAC-152-2012

29 August 2012
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PHILIPPINES: Falsely charged labour leader submits himself to trial to clear his name and those of others
ISSUES: Human rights defenders; administration of justice; fabrication of charges
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Dear friends,

Asian Human Rights CommissionThe Asian Human Rights Commission (AHRC) has been informed that a labour leader falsely charged for robbery entered a plea of ‘not guilty’ at the beginning of his trial on August 23, 2012. In order to clear his and those of other activists, he submitted himself to the court proceedings, knowing full well that they are being prosecuted over fabricated evidence as a result of their human rights work.

CASE DETAILS: (Based on documentation by the Center for Trade Union and Human Rights (CTUHR) and the AHRC)

In April this year, the CTUHR reported that Ronald Ian Evidente, a trade union organizer and spokesperson of Kilusang Mayo Uno (KMU), and 30 others have been charged with criminal case of “Robbery in Band” at the Office of the City Prosecutor in Sagay City, Negros. The details of his human rights work is revealed in the aforementioned report. On August 23, 2012, Evidente entered a plea of “not guilty”.

The complaint, filed by Arn Belonio, property custodian of Sagay Agricultural Industrial Corporation (Saicor) and Sagay Aqua Ventures Corporation (Savecor), was in connection with the robbery incident which happened at the compound of Savecor’s in Sagay City, on July 16, 2011. Stolen during the incident were communications equipment, service firearms and ammunition belonging to the security guards at the compound.

In his complaint-affidavit, however, it was not Belonio who had “positively identified” the identity or names of 29 persons in the charge, but Freddie Sanchez. Sanchez, who was not even physically present where the incident has happened, had been admitted as witness for the prosecution and his testimony used as evidence. He claimed to be a former rebel leader and that he was in a meeting when the rebels planned the robbery.

But in Sanchez’ testimony, he did not provide any details as to whether the persons he had identified to have planned the robbery “sometime during the 1st week of July 2011” were also present and the same persons who had carried out the robbery. Nevertheless, the prosecutor admits his testimony to conclude there was “probable cause.”

Also, even the identification of Ruel Bulanon, a worker at Savecor, who was present at the crime scene, of the two persons who robbed their compound, namely Rogelio Danoso and Joefrel Along, was not his own “positive identification”. Bulanon identified them only when “Senior Police Officer 1 (SP01) Danilo Geroldo, intel (intelligence officer) PNCO of Sagay City Police Station showed to me their rogue gallery of members of the NPA.”

Despite questions as to the validity of the evidence, the prosecutor nevertheless resolved in December 20, 2011 to proceed with prosecuting the accused for “Robbery in Band” by copying and pasting verbatim the testimonies of Belonio and Bulanon in his resolution. None of the respondents were informed of the charges against them, nor were they given opportunity to respond to the allegations.

For his part, Evidente had a very strong defense of alibi as he was neither present at the planning nor at the actual robbery. He was busy organizing and assisting workers at the Our Lady of Mercy Hospital in Bacolod City beset by issues of suspension ad termination.

It was only on April 3, 2012, when one of the accused, Christian Tuayon, secretary general Bagong Alyansang Makabayan (Bayan), was arrested in a rally in Bacolod City, that the criminal charges against them was made known to the accused. Also, only this time that Evidente became aware of the order for arrest the Regional Trial Court (RTC), Branch 60, in Cadiz City, had issued on January 20, 2012. Evidente posted a bail of Php 15,000 (USD 355) for his temporary liberty.

SUGGESTED ACTION:

Please write letters to the authorities listed below asking for their adequate and immediate intervention for the withdrawal of criminal charges on the victims.
The AHRC is also writing separate letters to the Special Rapporteur on the situation of human rights defenders for her intervention on this case.

SAMPLE LETTER:

Dear _______________,

PHILIPPINES: Falsely charged labour leader plead ‘not guilty’ to clear name in court
Names of falsely charge activists:

1. Ronald Ian Evidente, spokesperson of Kilusang Mayo Uno (UNO) in Negros
2. Christian Tuayon, secretary general Bagong Alyansang Makabayan (Bayan)
There are 27 others listed as accused.

Details of the case:

The complaint for “Robbery in Band” was filed in July 2011 in connection with the robbery incident at the compound of Sagay Aqua Ventures Corporation (Savecor), in Sagay City. In December 20, 2011, the prosecutor concluded that there was a “probable cause” to proceed with the prosecution of the all the accused. On January 20, 2012, the court issued an order for their arrest.

Status of the case:

On August 23, 2011, Ronald Ian Evidente entered a plea of “not guilty” during the arraignment of his case. The pre-trial conference is scheduled on September 4, 2012.

I am writing to raise my deep concern on the prosecution of the 29 human rights and labour and activists and others, whose names are mentioned above based on patently unreliable testimony and evidence. I am of the opinion that the prosecution of these victims was a result of their human rights work.

I understand that on December 20, 2011, the prosecutor’s office in Sagay City, Negros Occidental, has resolve to charge the victims for “Robbery in Band” based on the complaints of Arn Belonio, property custodian of Savecor; Ruel Bulanon, a worker at Savecor; and the supporting testimony of Freddie Sanchez, who claimed to be a former rebel leader and have known the rebels responsible in the robbery.

However, reading the prosecutor’s resolution dated December 20, 2011 those were copy and paste of the verbatim testimony of Belonio and Bulanon. Neither Belonio nor Bulanon had “positively identified” the alleged rebels who robbed their compound where the communications equipment, firearms and ammunitions were stolen which could have legally justify for the prosecution of all the accused. None of them knows or had personal knowledge of the identity and names of the accused.

The prosecutor merely heavily relied on the testimony of Freddie Sanchez, a rebel returnee, who claimed to be present in a meeting with rebel the leaders sometime in July 2011 when the robbery was being planned. However, in his testimony, he provided no details whether those who took part in the meeting were actually the same person who carried out the robbery. In fact, Evidente has had a strong defense of alibi as he was neither present at the planning nor at the actual robbery. He was busy organizing and assisting workers at the Our Lady of Mercy Hospital in Bacolod City beset by issues of suspension ad termination.

I am deeply concerned by the prosecutor’s use of unreliable and questionable evidence, the denial of due process and remedies of all the accused.

Firstly, it was Sanchez, a witness who himself had been under the control, influence and getting benefits from the soldiers, who identified the accused and not Belonio. Secondly, although Bulanon had identified two of the robbers or rebels, namely Rogelio Danoso and Joefrel Along; however, their identities were known when the intelligence officer of a local police showed to him photographs of persons in their “rogue gallery.” Thus, Bulanon’s identification of the two persons and others could not be reliable, but rather a result of the police intelligence prodding for him to come out with names.

Nevertheless, despite knowing full well that the charges on them are fabricated, Evidente had resolved to clear his name by submitting himself to a court process at the commencement of trial of his case on August 23, 2012. Evidente pleaded “not guilty” to all the charges. He likewise posted a bail of Php 15,000 for his temporary liberty.

It is disappointing that Evidente and other activists would have to submit themselves to criminal proceedings over a patently fabricated criminal case on them. I am of the opinion that the prosecution and the filing of this case were as result of their human rights work. The AHRC has documented similar cases in the past. I therefore urge you to ensure that the charges are withdrawn.

I trust that you take immediate in this case.

Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:
1. Mr. Benigno Aquino III
President
Republic of the Philippines
Malacanang Palace
JP Laurel Street, San Miguel
Manila 1005
PHILIPPINES
Fax: +63 2 736 1010
Tel: +63 2 735 6201 / 564 1451 to 80

2. Ms. Loretta Ann Rosales
Commission on Human Rights
SAAC Bldg., Commonwealth Avenue
U.P. Complex, Diliman
Quezon City
PHILIPPINES
Fax: +63 2 929 0102
Tel: +63 2 928 5655 / 926 6188
E-mail: chair.rosales.chr@gmail.com

3. Director General Nicanor Bartolome
Chief, Philippine National Police (PNP)
Camp General Rafael Crame
Quezon City
PHILIPPINES
Fax: +63 2724 8763
Tel: +63 2 726 4361/4366/8763
E-mail: ruth_cossid@yahoo.com

4. Ms. Leila de Lima
Secretary
Department of Justice (DOJ)
DOJ Bldg., Padre Faura
1004 Manila
PHILIPPINES
Fax: +63 2 521 1614
E-mail: soj@doj.gov.ph

Thank you.
Urgent Appeals Desk
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)

AHRC Philippines page: http://www.humanrights.asia/countries/philippines
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[Press Release] Hooded witness testifies on false murder charges -AHRC

Asian Human Rights Commission

PHILIPPINES: Hooded witness testifies on false murder charges

Asian Human Rights Commission(Hong Kong, July 17, 2012) Five months after a prosecutor dismissed the fabricated murder charges on 72 activists for lack of “probable cause,” one of them spoke to the AHRC in an interview. He recounted how a prosecutor allowed a hooded witness to testify in the criminal investigation to prosecute them.

When Edwin Egar, a pastor of the United Church of Christ in the Philippines (UCCP) and one of the 72 accused human rights and a political activist, asked the prosecutor why a witness against them had his face covered, he was told only that he would “take note that the witness has covered his face.”

The concern that Egar raised with the prosecutor was matter of Constitutional rights, not merely due to curiosity of knowing who the witness was. In the Philippines criminal investigation process, “to meet the witnesses face to face” is a Constitutional right (1987 Constitution, Bill of Rights, section 14).

For the accused to know his accuser and the witness against him was to uphold his Constitutional right to be presumed innocent. It is to enable him to make his own defense in a criminal trial. But in practice the police and soldiers routinely justify non-disclosure of the identity of their witnesses on the pretext of ‘security reasons’. However, in reality it is done so that they can conceal the identities of witnesses that provide fabricated evidence.

Egar and his co-accused were charged with the murder of two policemen and their civilian driver in an ambush on March 3, 2006 in Puerto Galera, Mindoro. The murder complaint was filed in July 24, 2006, but the court held to dismiss the case on procedural grounds not on merit on February 5, 2009.

In his defence, Egar said that he could not possibly be at the place where the ambush happened as he was in school in Baguio City studying theology. He also produced documentation and witness to support his alibi. Nevertheless, the prosecutor proceeded with reinvestigating the murder complaint which took them three years to resolve after it was re-filed at the prosecutor’s office.

For details please read: AHRC-UAU-012-2012

It was during the re-investigation that Vincent Silva, who declared himself as a deep penetrating agent (DPA) tasked to penetrate the New People’s Army (NPA), appeared for the prosecutor to testify that the accused were the persons “involved in the planning (of the ambush), thirty (30) served as the main body in the attack, and twelve (12) were in charge of blocking the enemy.”

However, Silva was neither present at the place of the ambush nor had he personal knowledge that those who had planned the attack and those charged were the same persons. The prosecutor, nevertheless, accepted his testimony as evidence offered by the police despite its obvious lack of credibility.

Even when the murder case was dismissed in February 2009, the police and the military continued arresting the accused, including Egar. In the interview, Egar talks about how he was forcibly abducted, tortured, interrogated and threatened with death if he refused to disclose the identity of his supposed accomplices.

“I was arrested. I was abducted… inside the vehicle, they interrogated me, asked me if I had anything to do with the case but I told them: nothing,” Egar said. He was released only after convincing his abductors that the murder charges they were arresting him for had already been dismissed.

The AHRC is deeply concerned by the activities of the police and the military in not disclosing the identity of their witnesses which is done with the consent of the prosecutors in investigating cases for criminal prosecution. This is in complete disregard of the fundamental rights set out in the Constitution.

The text of the unofficial translation of the interview in Filipino

Victim: I am Edwin Egar. I’m a pastor of the United Church of Christ in the Philippines (UCCP) under the Southern Tagalog Conference. I’m presently working with the National Council of Churches in the Philippines as a human rights worker for Faith Witness Service.

I am a victim of trumped up charges or fabricated charges during the regime of Gloria Macapagal Arroyo. They filed the charges on me on March 3, 2006 in Calapan, Oriental Mindoro. The case happened while I was studying at the Ecumenical Theological Seminary in Baguio City. I was studying theology to be a pastor. There were 72 of us who were charged–including another pastor of the United Methodist Church (UMC), a lawyer, persons attached to youth organizations, women and farmers. Some of them were arrested, including Attorney Saladero. Luckily they were released.

However, when they were released after the information (complaint) was quashed, I was arrested. I was abducted by elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) at Alupay, Rosario, Batangas. The place where I was abducted, few kilometers away from my home, was the house of my nephew. Suddenly, a black van stopped and those inside, who were armed, alighted from their vehicle. They pointed their guns at my head. My nephew’s son saw it and suffered trauma because of that. He did not speak and we could not talk to him at that time.

While inside the vehicle, they interrogated me, asked me if I had anything to do with the case and I told them that I did not. I explained that I had nothing to do with what they have charged about the alleged ambush of NPA (New People’s Army) in Mindoro. But as I have mentioned, I was studying in school when (the ambush) happened. They asked me where I brought those Itak (a bladed farm tool for cultivation) that I was carrying. They accused me of carrying giving them to NPAs (which I denied). But I told them that if they like, I can accompany them to the place where I brought those tools to satisfy them that I was telling the truth.

Also, the military told me that if I can mention one of those 72 accused, they will release me (right away) at the roadside going to their camp. They took me to Camp Vicente Lim in Calamba, Laguna where I underwent several interrogations; however, after few hours they took me back to where they had abducted, blindfolded me and my hands cuffed. They left me at Barangay Padre Garcia. They asked to count until 20 and threatened to shoot me if I refused to count.

Q: You mentioned that a witness in your case had his face covered when he appeared at the prosecutor’s office?

Victim: I also want to mention that the case was quashed in 2009; however, it was re-filed in 2010 at the same prosecutor’s office where it was first filed where it was quashed. In 2011, they re-filed the case at the province of Laguna in San Pablo City. It was filed at the Regional Trial Court in San Pablo City. After receiving a subpoena, I immediately made a counter-affidavit and submitted it to the prosecutor’s office at the RTC Laguna, San Pablo. At the time, the prosecutor also was conducting an investigation and during this investigation I met the witness, Mr. Silva. But his face is covered with handkerchief and you could not recognize him. I asked the prosecutor why this was so, but all they did only was to a note that the witness has covered his face.

Q: What is the status of the case at present?

Victim: On May 2012 the Court of Appeal and the Regional Prosecutor’s Office in San Pablo, Laguna issued a joint resolution. The decision was they dismissed the (murder) charges against the Southern Tagalog 72.

Q: Do you wish to say anything further?

Victim: I call on the government of Aquino. I hope that they will stop the fabricated charges (on activists), ensure justice to victims for victims of extrajudicial killings, enforced disappearances and other cases of the past administration under President Gloria Macapagal Arroyo.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

All submissions are republished and redistributed in the same way that it was originally published online and sent to us. We may edit submission in a way that does not alter or change the original material.

Human Rights Online Philippines does not hold copyright over these materials. Author/s and original source/s of information are retained including the URL contained within the tagline and byline of the articles, news information, photos etc.

 

[In the news] Jailing kids no answer to rising criminality, says DSWD exec -INQUIRER.net

Jailing kids no answer to rising criminality, says DSWD exec.

Leila B. Salaverria, Philippine Daily Inquirer
May 23, 2012

The Philippines will not solve the problem of rising criminality by sending more children to jail.

The Juvenile Justice and Welfare Council (JJWC) has opposed a House bill seeking to lower the minimum age of criminal responsibility to over 12 years old.

The House of Representatives on Monday passed on second reading House Bill 6052, which would allow the criminal prosecution of children who are just over 12 if they had acted with discernment.

The bill seeks to amend the Juvenile Justice Law, or Republic Act No. 9344, which states that children 15 years old or younger are exempted from criminal liability.

Read full article @ newsinfo.inquirer.net

Human Rights Online Philippines does not hold copyright over these materials. Author/s and original source/s of information are retained including the URL contained within the tagline and byline of the articles, news information, photos etc.

[Urgent Appeals] Fabricated murder cases on a labour lawyer and other activists dismissed -AHRC

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME
Urgent Appeal Update: AHRC-UAU-012-2012
27 March 2012
[RE: AHRC-UAU-003-2009: PHILIPPINES: Human rights and political activists exonerated from murder cases face another questionable charge]

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PHILIPPINES: Fabricated murder cases on a labour lawyer and other activists dismissed
ISSUES: Human rights defenders; administration of justice; fabrication of charges
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Dear friends,

The Asian Human Rights Commission (AHRC) is pleased to inform you that fabricated murder charges filed against a labour leader and other activists have been dismissed on grounds of merit by the San Pablo City prosecutor on 13 February 2012. While the same charges were earlier dismissed by a lower court in breach of criminal procedure, the prosecution had re-filed the charges against the same accused, using the same evidence and witness.

CASE UPDATE:

In our appeal (AHRC-UAC-239-2008) of 28 October 2008, we reported the arrest of Remigio Saladero Jr., a labour lawyer. He was arrested and detained over fabricated charges of multiple murder and multiple frustrated murder, together with several other activists whom the police arrested between October and November 2008, for the killing of two policemen and a civilian driver in an ambush in Puerto Galera, Mindoro Oriental on 3 March 2006.

On 19 February 2009, we issued an updated appeal (AHRC-UAU-003-2009) informing that Judge Manuel C. Luna, Jr., of the Regional Trial Court (RTC) in Calapan City, had ordered to “quash” the criminal complaint against the accused due to breach of rules of court by putting together all the charges in one complaint. Judge Luna held the accused could not be charged for multiple murder and frustrated murder of six different individuals in one complaint. He ruled “each act of murder and frustrated murder should have been charged in separate information (complaint)”.

In dismissing the complaint, however, the court did not rule on the substance and merit, but rather on the procedural violation of court rules. Considering that the dismissal of cases on this ground does not prohibit them from re-filing the case, the prosecution proceeded to re-file the complaint by separating the case into two complaints, while still using the same evidence and witness.

This time, however, the prosecutor who first conducted the investigation and indictment of the case in Calapan City court withdrew himself from the prosecution. The complaints were thus turned over to another prosecution office in San Pablo City for determination of ‘probable cause’.

Three years later, on 13 February 2012, the prosecutor in San Pablo City investigating the complaint, Elnora Nombrado, issued her resolution (note: we are publishing the resolution in verbatim as we received it) concluding to dismiss the two murder complaints, firstly, for frustrated multiple murder, secondly, for multiple murder, against all the accused that was earlier argued by the prosecutor to have had “probable cause.” Here, the dismissal by the prosecutor deals with the merit and substance of the case.

In her resolution, Prosecutor Nombrado dismissed the complaint on two grounds; firstly, the complainants could not identify their attackers, and secondly, the sole witness, who himself was not at the scene when the ambush happened, “failed to identify any of the respondents”. She argued that,

“Pivotal, then, is the positive identification of the alleged perpetrators of the ambush. It is curious that during the confrontation conducted by the undersigned, Silva failed to identify any of the respondents present in the before him. As matters stand, the present complaints hang by ‘a single thread of evidence, the direct evidence of Silva’s identification of the perpetrators of the killing. But that Single thread was thin, and cannot stand sincere scrutiny. In every criminal prosecution, no less than moral certainty is required in establishing the identity of the accused as the perpetrator of the crime. Silva’s identification of tile respondents as tile perpetrators did not have unassailable reliability; the only means by which it might be said to be positive and sufficient. Silva failed to substantiate his allegations by clear and convincing evidence. His allegations are so general and so sweeping but lacking in providing details of the actual attack and of the identities of the actual shooters.”

In its written submission for the 19th Session of the UN Human Rights Council, the Asian Legal Resource Center (ALRC) has already raised concerns about the systematic abuse of legal procedures by prosecutors in prosecuting fabricated charges against political and human rights activists: ALRC-CWS-19-03-2012.

To end, the AHRC wishes to thank those who responded to this appeal. We also express our appreciation to the local groups, the Center for Trade Union and Human Rights (CTUHR) and the Prolabor Legal Assistance Center (PLACE), for their invaluable efforts in this case.

Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)
AHRC Philippines page: http://www.humanrights.asia/countries/philippines
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[Statement] PHILIPPINES: Prosecutor dismissed charges of torture by invoking acts of torture -AHRC

Asian Human Rights Commission

PHILIPPINES: Prosecutor dismissed charges of torture by invoking acts of torture

The Asian Human Rights Commission (AHRC) has learned that a city prosecutor in San Fernando, Pampanga, had dismissed the complaint of torture by five torture victims against a police colonel and other policemen due to “insufficiency of evidence” because their identification of the accused were ‘dubious’ since they were ‘blindfolded’. The five complainants filed a petition for review at the Department of Justice (DoJ) asking them to reverse the prosecutor’s recommendation. This is still pending. Under the Philippine‘s prosecution system, it is the secretary of the DoJ who has final decision on whether or not criminal charges would be filed in court for trial.

Asian Human Rights CommissionThe complainants, Lenin Salas, Jose Gomez, Jerry Simbulan, Rodwin Tala and Daniel Navarro, filed charges on August 9, 2010, for violation of the Anti-Torture Act of 2009 against P/Supt. Madzgani Mukaram, commander of the Provincial Public Safety Office (formerly Regional Mobile Group) and other police officers whose names could not be immediately identified at the time. They were arrested and detained for their alleged involvement with the Marxist Leninist Party of the Philippines, an illegal armed group. Read details here: Story 1: “There are no human rights for us”. They filed complaint of torture while in detention six days after their arrest.
After the overly delayed and lengthy process of, for example, the submission of affidavits, appeals and petitions (including demands by the accused to expunge from record the complaint of torture), prosecutor Maria Gracella Dela Paz – Malapit, concluded in her resolution dated July 21, 2011 that “the instant complaint for violation of Rep. Act No. 9745 (Anti-torture Act of 2009) against P/Supt. Madzgani Mukaram be DISMISSED for insufficiency of evidence”.

However, while Prosecutor Malapit admitted that “there exists a probability that they (victims) were tortured”, she nevertheless dismissed the complaint invoking that the facial identification of the accused was dubious because they “did not have the opportunity to see him considering that they were blindfolded”. In justifying her argument she invoked the Supreme Court (SC) ruling on People vs. Acosta1, by merely copying the jurisprudence that the “identification of the offender is crucial in every criminal prosecution”.

In People vs. Acosta, the jurisprudence was applied in the context in which the convicted person, Jesus Acosta, challenged the identification of Freddie Osmillo, the principal witness of the prosecution of him as the person who shot dead Rafael Villavicencio, Jr. in April 28, 1980. Here, the SC weighs the defence of alibi of the accused as against the positive identification of the witness. The SC held to affirm the conviction of Acosta with finality in determining his guilt for murder.

However, in her resolution Prosecutor Malapit applied the doctrine of ‘positive identification’ in exonerating the accused P/Supt. Mukaram and eventually also the other accused police officers from criminal liability for torture. In Acosta’s case, it was after the conclusion of a criminal trial, but in this complaint of torture it was dismissed invoking exactly the same doctrine even though it was not a criminal trial, but rather the process of determination of probable cause. Her application of the doctrine of positive identification in dismissing the complaint of torture, therefore, is completely taken out of context. Here, she pre-empted and usurped the authority that should have been solely for the court to decide: positive identification to determine the innocence or guilt.

In her resolution Prosecutor Malapit argued:

“Like Salas, the identification made by Tala, Simbulan and Navarro seemed to be dubious. It is unusual that they should be able to identify the respondent talking to them when they did not have the opportunity to see him considering that they were blindfolded. Uncertainty thus exists as to the veracity of respondent’s identification as it is possible that owners of the voices they heard belong to that of other persons who inflicted physical harm on them⦔

If this reasoning is not corrected, the exoneration of the accused by invoking  “blindfolding“, which itself  defined as act of torture under section 4 of the Anti-Torture Act of 2009, renders any sort of remedy inapplicable and meaningless. Here, P/Supt. Mukaram and other policemen had been exonerated from criminal liability for the crime of torture for reasons because the perpetrators had blindfolded the victims they were torturing. This type of reasoning rather emboldens perpetrators to create more sophisticated form of torture without them being identified and assured of impunity.

Prosecutor Malapit, however, admitted the existence of probable cause:

“In here, with the presence of the above-stated injuries of the complainants, there exists a probability that they were tortured. It bears to emphasize that physical evidence is that mute but eloquent manifestations of truth which rate high in our hierarchy of trustworthy evidence (People vs. Vasquez, 280 SCRA 160)”

Anyone who studies law, reading this argument would say these are contradiction in substance as to what the role of prosecutors should be in criminal cases. In the Philippines legal system, the prosecutor’s role is to determine ‘probable cause’, meaning a reasonable ground or circumstances that demonstrate a crime had probably been committed. None of the parties challenged the existence of probable cause. It is not within the prosecutor’s authority to make judgement on whether or not the identity of the person who is accused of committing crime as charge is actually the very person who had probably committed the crime. This principle explains the practice of using John Does and Jane Does, which denotes the identities of persons that are yet to be identified, in the criminal complaint. Therefore, the authority that prosecutor Malapit had taken to herself is in effect, that of the court.

Here, in dismissing the torture complaint, Prosecutor Malapit arbitrarily assumed the authority and power of the court. By deciding this matter to herself, beyond her obligations on determining probable cause, she disregarded the role of the court in determining the matter within their authority. Thus, the questions as to identities of the accused involved in torture, the merits of the case and determination of guilt or innocence, which are supposed to be heard in proper trial, were denied effectively from the court because the case did not reach their jurisdiction.

Freedom from torture is an absolute right. It is a serious crime as it is attributed, not only to an individual criminal act of a person, but a person acting on behalf of the State. Therefore, in applying doctrines and jurisprudence, more caution must be observed. They cannot be interpreted narrowly by arguing and invoking analogous to ordinary case-laws and jurisprudence. In fact, the Resolutions of the Prosecutors are not court decisions, where the guilt or innocence of the accused are determined, but rather contains details on existence of ‘probable cause’. But the manner how Prosecutor Malapit argued in her Resolution it has become in form effectively a court decision following a criminal trial.

The Asian Human Rights Commission (AHRC) is shocked, but not surprise as to how prosecutor who had legal obligations to investigate complaints of torture, understands and interprets how the probability of the crime of torture under the Anti-torture Act of 2009, are committed for them to proceed in recommending prosecution of case in court. In the Philippine legal system, the duty of the prosecutor in determining the existence of ‘probable cause’ is very crucial in criminal prosecution. They are ‘bottle neck’ on whether or not a case proceeds in court for trial.

The AHRC therefore urges Department of Justice (DoJ) to resolve without delay the complainants’ petition for review asking for the reversal of the city prosecutor’s decision in their favour so as to proceed with the prosecution of the case in court. If this wrong is not corrected, it will deny any possibilities of remedies and redress for victims of torture. In prosecution of cases of torture, where public officers are acting within the authority and the power of the State, utmost caution must be observed.

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[1] People v. Acosta, G.R. No. 70133, July 2, 1990, 187 SCRA 39, full text: http://www.chanrobles.com/scdecisions/jurisprudence1990/jul1990/gr\_70133\_1990.php
Read this statement online

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

Visit our new website with more features at http://www.humanrights.asia.

FOR IMMEDIATE RELEASE
AHRC-STM-060-2012
March 15, 2012

[Press Release] PHILIPPINES: Human Rights Council must act on widespread arbitrary dismissals of torture complaints and resultant impunity -AHRC

PHILIPPINES: Human Rights Council must act on widespread arbitrary dismissals of torture complaints and resultant impunity

The Asian Legal Resource Centre (ALRC) wishes to inform and seek the intervention of the Human Rights Council and the Special Rapporteur on torture concerning the frequent dismissals of complaints of torture, which speak to a system of legal and procedural obstacles and systemic institutional failings that are ensuring that perpetrators of torture typically enjoy impunity in the Philippines.

Torture remains widespread in the Philippines, not only concerning counter-terrorism and counter-insurgency operations, but also by the police concerning a large number of petty criminal cases. Despite having acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in June 1986, over 25 years later, the practice remains endemic and victims have no truly effective avenues to seek redress, while the perpetrators go free. This climate of impunity only engenders the further use of torture.

As the members of the Human Rights Council negotiate a resolution on torture during the body’s upcoming 19th session, it is imperative that such obstacles and the resultant impunity they confer on perpetrators of torture be included as an area of focus, in order to enable the more effective application of the Convention at the national level around the world. While this statement concentrates on the situation in the Philippines, similar obstacles and systems enabling deeply-entrenched impunity for torture are witnessed across Asia. The international system has thus far proven ineffective at addressing situations comprising endemic and widespread torture as a component of regular police investigations.

The ALRC documents numerous case of torture in the Philippines each year, and is gravely concerned by the range of systemic failings and actions by prosecutors, the police and the country’s courts, that are leading to dismissals of cases in which victims of torture are seeking justice and reparation. Several key case examples are presented below, in order to illustrate various facets of the phenomenon of case dismissals.

Complaint dismissals often result from the failure to adequately record medical evidence concerning the use of torture, despite provisions in the 2009 Anti-torture Act and the Implementing Rules and Regulations of the Anti-torture Act, which contain specific instructions concerning the right to physical, medical and psychological examinations prior to and following interrogation, and the specific information that must be recorded by doctors conducting such examinations. The rejection of torture complaints that were lodged by detained Muslim victims Jedil Esmael Mestiri and Rahman Totoh, who were allegedly respectively tortured by the 32nd Infantry Battalion (IB) of the Philippine Army (PA) on June 26, 2011, and the Basilan Police’s Special Action Force (SAF) on July 28, 2011, speak to this problem.

In Mestiri’s case, the military took him to the Isabela City General hospital, but the doctor who examined him ignored his chest pains and injuries. In Rahman’s case, although the Basilan General Hospital doctor who examined him did record his injuries, he failed to give adequate medical explanations, as required by Anti-torture Act, to explain the cause of the injuries. In a letter dated January 6, 2012, Police Director Nicanor Bartolome, rejected both Mestiri and Rahman’s allegations of torture against the perpetrators, citing a lack of medical evidence. Placing the burden of proof upon victims is unacceptable, and the doctors’ failures in conducting forensic examinations are violations in their own right and must be independently investigated and dealt with as such, but the authorities typically fail to take such action.

In another case, State prosecutors dismissed a torture complaint against the police on July 21, 2011, on the basis that the victim, who was blindfolded during torture, could not positively identify those responsible. On August 3, 2010, Lenin Salas and three others were arrested the San Fernando City Police and the Provincial Public Safety Office under Superintendent Madzgani Mukaram in relation to their alleged involvement with the Marxist Leninist Party of the Philippines (MLPP-RHB), an illegal armed group. During arrest, Lenin Salas was reportedly assaulted and beaten with a stick. Inside the police headquarters he was blindfolded and beaten with a gun, burnt on the body and neck with lit cigarettes, suffocated with cellophane, kicked in the genitals, and subjected to mock execution. The other three men were also reportedly tortured. This treatment lasted until they were taken to the Provincial Prosecutor’s Office (PPO) in San Fernando, Pampanga Province, where they were charged with Illegal Possession of Firearms, Ammunitions and Explosives.

The case of Misuari Kamid, who was arbitrarily arrested on April 30, 2010, and tortured in order to force him to confess to selling illegal drugs, also shows the unwillingness of the authorities to prosecute state officials for torture. Following his being severely beaten, Misuari was framed by the police, with two plastic sachets containing illegal drugs and a 500 peso bill being placed on the ground and his being forced through beatings to kneel beside them in order for photos to be taken. He was paraded before the media on May 1 along with the planted evidence. The injuries that he suffered were confirmed in a medical certificate issued on May 18, 2010. Misuari remains detained in the General Santos City Reformatory Center. According to information received recently, the prosecutor has downgraded the case from one concerning torture to physical injury. It is thought that this is a compromise position to allow the case to go forwards rather than dropping it altogether, due to pressure from civil society groups. However, this remains indicative of the in-built resistance by the authorities to ever proceed with cases specifically relating to torture.

Further inconsistencies in the way torture complaints are dealt with by the authorities are illustrated by the case of Darius Evangelista, who was allegedly tortured on March 5, 2010, in Tondo by policemen attached to Police Stations 2 & 11 of the Manila Police District, having been arrested on allegations of robbery. Three detainees witnessed him being taken upstairs to a room inside Police Station 11 where he was interrogated and tortured. The torture resulted in him being badly injured, with visible blunt trauma to his face and swollen eyes, according to one of the witnesses. The police denied having Darius in detention to his family members. He was seen being taken away from the police station on March 6 by one of the detainees and has not been seen alive since. His family reported his disappearance to the police, who filed a “Missing Person Alarm Report” that omitted any reference to his having been detained. Subsequently, in late March, a severed human head thought to be Darius’ was found by scavengers, although forensic identification has still not been completed. His father and three witnesses signed sworn statements regarding Darius’ arrest, torture and disappearance which have been provided to the Commission on Human Rights, which has failed to conclude an investigation as mandated under the 2009 the Anti-Torture Act.

However, on August 17, video footage of Darius’ torture at the hands of the police surfaced, and was broadcast by national television station ABS-CBN. In the video, the victim is seen having his penis pulled by a string tied around it as he is lying on the floor naked. He is beaten every time he folds his body as he tries to reach his genitals in pain. Several policemen from the police station are visible in the video footage. The policeman shown torturing the victim is the chief of the police station, SI Joselito Binayug. After the video was aired, the police were under pressure to create a team to investigate the case, which they called Task Force Asuncion. They again interviewed the three witnesses. On August 23, 2010, the Criminal Investigation and Detection Group filed charges for violation of the Anti-Torture Act with the Department of Justice (DoJ) against the accused policemen. Section 9(a) of the Act requires the DoJ to resolve whether the policemen have a case to answer within 60 days; and if there is an appeal, it must still be “within the same time period prescribed”. However, it was only one year later, on August 22, 2011, that DoJ prosecutors recommended the filing of charges for Torture Resulting in the Death of any Person, under the 2009 Anti-torture Act.

While the ALRC welcomes this landmark prosecution, which it believes is the first known case in which members of the security forces will be tried for violations of the 2009 Anti-Torture Act, the delays witnessed in this process, despite overwhelming evidence, remain a serious concern. The ALRC recalls that in cases of torture, the Anti-Torture Act provides for victims’ right to prompt and impartial investigations, however, the absence of a mechanism to deal with prosecutors and investigators who fail to comply with the law has resulted in cases remaining pending for years. In less high-profile cases, such delays often result in victims abandoning complaints, in particular due to the threats and lack of protection that they face during these extended periods. The ALRC therefore urges the government of the Philippines, in particular the Department of Justice, as well as the Commission on Human Rights, which are the two agencies that have the primary obligation to implement the Anti-Torture Act, to ensure the prompt establishment an effective mechanism to prevent needless delays in investigating and prosecuting torture cases.

Despite documenting and following numerous cases of torture in the Philippines, the ALRC is unaware of any related torture complaints that have resulted in the successful prosecution of those alleged to have committed these acts. The ALRC calls on the government to provide detailed information to the Human Rights Council, the Special Rapporteur on torture and in particular in its upcoming reporting to the Universal Periodic Review, concerning the number of successful prosecutions of persons accused of perpetrating torture it has recorded to date, the punishments they received, and statistical and analytical data concerning successful and dismissed torture complaints, including the reasons for dismissals. This data should include sufficient information to enable case by case verification of the claims made.

Additionally, the ALRC recalls that as part of the Philippines initial UPR process, a number of states and observers made recommendations concerning the need for the government to address the issue of torture, which the government accepted. The Holy See called for the complete elimination of torture and extra-judicial killings. Mexico, the Netherlands, Slovenia (as EU President) and the United Kingdom called for the government to sign and ratify the Optional Protocol to the Convention against Torture (OPCAT). The government has failed to take the required action concerning these accepted recommendations. In a related matter that is relevant here, Switzerland called on the government to “Intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible.” The problem of a lack of effective investigations and prosecutions concerning extra-judicial killings mirrors that found concerning torture, and the ALRC therefore urges the afore-mentioned states and other members of the UPR Working Group to make further recommendations concerning the issue of torture, including the need to eliminate its use, to sign the OPCAT, but also to ensure the prompt investigation and prosecution of complaints of torture through the systematic recording of medical evidence, the elimination of delays and obstacles to prosecutions, the effective protection to victims and witnesses, and the effective punishment of perpetrators of torture, in line with the 2009 Anti-torture Act. Furthermore, the government must be urged to establish legal provisions and an effective oversight mechanism to ensure the punishment of all officials who participate in the obstruction of justice concerning the prosecution of torture complaints.

# #
About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
Visit our new website with more features at http://www.humanrights.asia.

FOR IMMEDIATE RELEASE
February 24, 2012

HUMAN RIGHTS COUNCIL
Nineteenth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on torture
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

[Isyung HR] Para kang Impeachment…Baket? Baket? Nakakainit ka kasi ng ulo!

Isyung HR: Para kang Impeachment…Baket? Baket? Nakakainit ka kasi ng ulo!

by Mokong
MokongPersperctive.wordpress.com

Weh!!!

Missed ko na ang mga pick-up lines ni Madam. Palagi na lang kasing pang hypertension ang eksena niya these past few days.  It seems that it’s less fun to have impeachment in the Philippines especially with prosecutors that we have.  Hmp!

We can’t blame them to take the impeachment seriously, it’s their job anyway, and it’s supposed to be for the people, for the country (saying this while hands on the chest) pero for mokongs mukhang the impeachment trial only exposes how vast ang kamokongan nilang lahat. Hahaha!

Imagine Senator Meriam uses her pick-up lines to our on spotlight prosecutors and defense teams.

Sen Meriam: Prosecutor ka ba? (Addressing to head prosecutor Tupaz)

Tupaz: Yes your honor baket baket?

Sen Meriam: Hindi halata a.

[The senator judges would cheer.] wooohhh!

Sen Meriam: Sana macho dancer ka na lang

Tupaz: Baket baket

Sen Meriam: Para hindi sayang pag-iinit ng dugo ko sa inyo!

[The senator judges remain quiet except for somebody from the audience. Guess who?] woowoot.

Sen Meriam: What the F_ck is wrong with you? Sinubukan ka ba i-abort ng nanay mo? Bakit nagkaganyan takbo ng utak mo?

Sen Meriam: “Kapag nagkabentahan ng utak, malaki ang kikitain mo sa utak mo”

Tupaz: “Talaga?”

Sen Meriam: “oo,kasi hindi mo man lang nagagamit eh,bagong bago pa rin”

Sen Meriam: (to Sen Lapid) Para kang nanggaling sa giyera?

Sen Lapid: Baket?

Sen Meriam: Duguan ka kasi… Nose bleed!

————–

Isang Governor sa isang probinsiya sa Mindanao ang nagpower trip. Using all his available resources and might to implicate a human rights defender to a bombing incident.  Madami pang mga katulad ng HRD na ito ang naglalakas ng loob to defend the people against sa mga trapo at aabusadong violators of human rights.

Ganyan daw madalas, kapag hindi mahuli ang tunay na may sala, ang mga HRDs na open sa pagtuligsa sa pamamalakad ang ididiin.

—————

According to a press statement issued by the DOT “The Tawi-Tawi incident is considered unfortunate and could have been avoided had the visitors taken necessary precautions many European tourists usually take in heed of these advisories.” O sisihin ba naman ang mga turista.

A mokong proposed that DOT slogan be changed into “It’s more fun in the Philippines except in areas where kidnappers operate.” Kahit mahaba atleast tourists are warned. Hahaha!

————

Lovelife of PNoy again hits the headline like Ondoy and Impeachment.  A mokong friend commented it’s like seeing aswang daw during elections. Pampalamig daw ng ulo. Pampakalma ng hysteria. Effective! Hahaha!

Pag tinanong mo na daw ngayon si PNoy “How’s your lovelife?” PNoy would answer “Wow, maganda and  It’s more fun now.”

———–

Mokong of the world unite! Occupy their brains!

[In the news] Bishops begin plenary assembly, may tackle Corona impeachment | Sun.Star

Bishops begin plenary assembly, may tackle Corona impeachment | Sun.Star.

January 28, 2012

 MANILA–At least a hundred bishops from various dioceses across the country will meet to tackle church and pressing national concerns for their three-day plenary assembly at Pope Pius XII Center.

However, it is not immediately known if the Catholic Bishops’ Conference of the Philippines (CBCP) will issue a statement regarding the ongoing impeachment trial against Supreme Court Chief Justice Renato Corona, who has since rejected calls to leave his post.

Read full article @ www.sunstar.com.ph

[In the news] Prosecution: Corona may have committed perjury for ‘undervalued’ assets – GMAnews.com

Prosecution: Corona may have committed perjury for ‘undervalued’ assets
by Andreo C. Calonzo, GMA News
January 19, 2012

  The House prosecution team on Thursday said that Chief Justice Renato Corona may have lied under oath when he allegedly undervalued his properties in his Statements of Assets, Liabilities and Net Worth (SALNs).

Marikina Rep. Romero Quimbo, one of the prosecution panel’s spokesmen, said the testimonies of Taguig and Quezon City registers of deeds revealed that the value of Corona’s condominium units are higher than what he declared in his SALNs.

“Sinusumpaan ito. The SALN is under oath. Kung hindi ka nagsasabi ng totoo, you are guilty of perjury,” Quimbo said at a press briefing.

Read full article @ www.gmanetwork.com

[In the news] Senate slams House panel Prosecutors told disclosure of CJ Corona’s penthouse against impeach rules – INQUIRER.net

Senate slams House panel
Prosecutors told disclosure of CJ Corona’s penthouse against impeach rules
By Cathy C. Yamsuan, Cynthia D. Balana, Philippine Daily Inquirer
January 5th, 2012

 Hold your horses.

The House of Representatives’ 11-member panel that will prosecute the impeachment complaint against Chief Justice Renato Corona drew flak on Wednesday not only from his lead lawyer but also from senators and Catholic bishops for its purported overzealousness.

The senators who are to serve as judges in Corona’s impeachment trial expressed dismay at Iloilo Representative Niel Tupas Jr.’s disclosure of the Chief Justice’s purchase of a high-end penthouse and encouraged him and the other prosecutors to take a close look at Rule XVIII of the “Rules of Procedure on Impeachment Trials.”

Rule XVIII states that the presiding officer (in this case, the Senate President) and the members of the Senate “shall refrain from making any comments and disclosures in public pertaining to the merits of a pending impeachment trial.” It adds that “[t]he same shall likewise apply to the prosecutors, to the person impeached, and to their respective counsel and witnesses.”

Senator Panfilo Lacson suggested that he and his colleagues “throw our impeachment rules out the window or straight at [the House prosecutors’] faces.”
Senator Gregorio Honasan cautioned the prosecutors against the “swaying effect” that their revelation might have on public opinion.

“Masyado silang atat (They are too eager),” Senate President Pro Tempore Jose “Jinggoy” Estrada said of the prosecutors.

“Why, would it be the media who would decide Corona’s fate? So they have documents proving that Corona owned all these condo units? Present those to the Senate! The problem is that some parties seem to have a mind-conditioning agenda,” Estrada added.

Read full article @ newsinfo.inquirer.net

[People] A Bright Shining Moment by Fr. Shay Cullen

by Fr. Shay Cullen
www.preda.org

When the Philippine National Bureau of Investigation (NBI) raided the apartment in Olongapo that night of May 7, 2010, they found a den of iniquity – money, computers, a gun, video cameras, memory sticks and a pregnant young teenage girl in bed with a man more than twice her age. The man’s father was there also. They are American-Filipinos and had been holding two children, 15 and 16 year-old sisters, in their power and influence since they were ten years old. Medical evidence shows that the16 year-old was used as a sex slave and pregnant at the time of the arrest.

Her sister ran away from the sex den to find help and protection and tell the horrific story of years of abuse to the Preda social workers. Her statement contains allegations of sexual exploitation, the making of child pornography, sexualization and exploitation of the children in photographs and videos which were stored on hard disks and on a laptop found in the apartment.

These photographs were seen by an Assistant Secretary of Justice and showed the main suspect with the child on a bed in the apartment surrounded by what appeared to be hundreds of thousands of US dollars and Philippine pesos and stuffed into the child’s bikini together with a gun.

Mysteriously, the money disappeared soon after the arrest. When the suspects were brought to Manila and jailed, the computers and the laptop and forensic evidence were withheld by the National Bureau of Investigation (NBI)  for unknown reasons and were not submitted to the prosecutor at that time, they claim they did so months later.

Despite the efforts of the Preda Foundation legal department to convince the NBI and the Department of Justice to submit the forensic evidence – the photographs, the gun and the money to the prosecutor and pursue justice, nothing was done then. The evidence allegedly mysteriously disappeared.

This led to the dismissal of the charges of trafficking against the two accused. They were released from the NBI detention cells in Manila and immediately took a plane back to California. Allegedly, they claimed they never got back any of the money from the NBI arresting agents. The NBI agent in charge said some money was spent as expenses and claimed that there was no incriminating forensic evidence that showed any child abuse.

This failure to prosecute prompted the Preda paralegal team to file charges themselves against the accused for child sexual abuse under Republic Act 7610. Appeals to the NBI to submit the forensic evidence produced some   results recently. The NBI said they submitted the forensic evidence to the docket section under the office of the city prosecutor Emilie Fe M.De Los Santos. But that evidence has not yet reached the desk of prosecutor Melani Fay Banarez who is assigned to the case.

Yet the one shining moment came last 19 May 2011, when prosecutor Melani Fay Banarez reviewed all the existing evidence and determined that the medical evidence of one sister showing her to be pregnant, the statements of the other younger victim and other strong evidence showing that they were sexually abused by the suspects since they were 13 and 14 years of age. This and other evidence was sufficient for Prosecutor Banarez to file the charges before the Olongapo city Regional Trial Court Branch 73. This is an important and positive step in the right direction.

The dark clouds of unknowing and inaction that allow  the regular dismissal of child abuse complaints and charges that have traditionally hung-over the prosecution of sex offenders who molest and rape children, parted for one bright shining moment and a shaft of light has shone through. How long this spotlight will remain on the case has yet to be seen. But the human rights workers and child defenders are determined to see it through to the end and pursue justice.

Yet justice, the heart of a civilized and caring nation, cannot be done until the system is cleansed of corrupt practices and procedures, unfair tactics, bribery and skullduggery. It is in the implementation of the law justly, honestly and with compassion and discipline as determined by the circumstance of the case that a peaceful and equal society will prevail.

(Fr. Shay’s columns are published in The Manila Times,
in publications in Ireland, the UK, Hong Kong, and on-line.)
http://www.preda.org/main/archives/2011/r11062901.html